The most complex Covid patient in the world: Planning for a re-hearing after a successful appeal

By Celia Kitzinger, 30th November 2021

This hearing before Mrs Justice Theis on Monday 29th November was to sort out what needed to be put in place for re-hearing the case of AH, “the most complex Covid patient in the world”. 

The full and final re-hearing is listed for 7th and 8th December 2021 (starting “not before 11am on the 7th) before Mrs Justice Theis.  We will publish details about how to access the hearing once it has been listed on the RCJ listings, (i.e. on the evening of  6th December 2021), but it is likely to be held via MS Teams and be accessed in the usual way via an email to the Royal Courts of Justice court staff. 

Background

A 56-year-old woman, AH, has been an inpatient at Addenbrooke’s Hospital, Cambridge, since the end of December 2020, where she was admitted, on an emergency basis, suffering with severe symptoms of Covid-19. She no longer has Covid-19 but the virus has left her with extensive and serious brain damage.

Dr Chris Danbury, a Consultant Intensive Care Physician instructed by the Official Solicitor, reported back in July 2021 that she has cerebral encephalopathy, brainstem encephalopathy,  motor neuronopathy affecting the anterior horn cells or axonal degeneration and necrotising myopathy.  She was said to be in a minimally conscious state.

After a hearing before Mr Justice Hayden (blogged here), the judge ruled that continued ventilatory support was not in AH’s best interests (Cambridge University Hospitals NHS Foundation Trust v AH & Ors (Serious Medical Treatment) [2021] EWCOP 51).  

The judge said: 

I do not consider that AH’s best interests are presently met by ventilatory treatment in the ICU; ventilation is now both burdensome and medically futile; it is protracting avoidable physical and emotional pain.”

He allowed time for family members outside the UK to travel to be with AH and ruled: “I make it clear that ventilation should be discontinued by the end of October 2021

In fact, ventilation was not discontinued, because the family launched an appeal and the order was stayed pending the outcome of that appeal.

The appeal (blogged here) was successful, and reported widely in the media (e.g. “Relatives of ‘most complicated’ Covid patient await life or death appeal ruling”, “Family of woman with Covid allowed to appeal against end-of-life ruling”).  

The full judgment from the Court of Appeal is available here: Re AH (Serious Medical Treatment) [2021] EWCA Civ 1768

Grounds of Appeal

There were five grounds of appeal, only one of which was successful. 

  1. The judges did not consider that Hayden J had given insufficient weight to AH’s earlier capacitous decision (as recorded on a ReSPECT form) that she wanted “full escalation of treatment”.  That, said Moylan LJ, who wrote the main judgment, relates only to emergency care and treatment, and not to her current ongoing situation.
  2. The judges did not accept that Hayden J had failed to appreciate the overwhelming importance, to AH, of her religious and cultural values and the impact of those on her treatment decisions. They concluded that Hayden J did consider those issues and was entitled to conclude that “I am not prepared to infer that it would follow that those views would cause her to oppose withdrawal of ventilation in these circumstances …”
  3.  The judges did not accept that Hayden J had failed adequately to consider AH’s past and present wishes and feelings.
  4. The judges did not accept that Hayden J had failed properly to balance the inteference with AH’s right to life in accordance with the European Convention on Human Rights.

As Alex Ruck Keene puts it: “The Court of Appeal were at pains in this case to make clear that this was not a case where it considered that Hayden J had necessarily reached the wrong decision as to where AH’s best interests lay.”

The appeal was successful on the fifth ground of appeal.

5. The judges accepted that Hayden J’s visit to AH in hospital, and the use he appeared to make of it in his judgment, undermined the fairness of the process and the validity of his decision. Hayden J visited AH after the conclusion of the hearing and without subsequently reporting back to the parties about what transpired during that hearing, or his interpretation of that.  In his subsequent judgment he wrote: “I got the clear impression [AH] wanted some peace, she showed me that she did”.  This is capable of being interpreted as indicating that Hayden J considered that AH had given him some insight into her wishes.  This is problematic on two grounds. First because Hayden J is not properly qualified to make any such assessment, given AH’s complex medical situation; and secondly because in order to ensure procedural fairness, the parties needed to be informed about this and have the opportunity to make submissions.

On that basis – and that basis alone – Moylan LJ, “very regrettably,” came to the conclusion that Hayden J’s decision could not stand and must be set aside, saying that “There will need to be a rehearing which will have to take place as soon as possible”.

The key message of the appeal for those involved in the Court of Protection is a pressing need for guidance on judicial visits to the person at the centre of the case (e.g. Pressing need’ for guidance on judicial visits in CoP – McFarlaneThe black box of the judicial visit to P – the Court of Appeal’s concerns and requirements‘).

What happened at the hearing on 29th November 2021?

The hearing was listed for an hour, starting at 9.30am[1] – from which I deduce that it was slotted into the listings before the usual court sitting times in response to the Court of Appeal ruling that the re-hearing “will have to take place as soon as possible”.  

The family had new counsel, Simon Miller of Harcourt Chambers, acting pro bono through the Bar Pro Bono Unit (without, as yet, a solicitor). Three of AH’s four children were in court, as well as her sister.

As before, Nageena Khalique QC continued to act for AH via the Official Solicitor, and Katie Gollop QC continued to represent Cambridge University Hospitals NHS Foundation Trust.  

The Trust

Katie Gollop QC (for the Trust) said that to “start from the end and work back[2], the final hearing had been listed for 7thand 8th December 2021, although she understood there was an application from the family to push that back.  Before those dates, it would be necessary to get updated medical evidence, provide the full set of medical records since the last hearing to the parties, and give the family the opportunity to update their witness statements. 

Additionally, the family were asking for a capacity assessment of AH to be performed by someone outside the Trust, and they would like to be involved in the choice of assessor.

She added that the ICU at Addenbrookes is “at capacity at the moment” and that “a Winter surge is anticipated by 13thDecember.  Preparation for more capacity is being made.  If it’s in the best interests of AH to be ventilated the hospital will continue to do so, but that is the situation, with intense pressure on resources and concomitant intense pressures on staff, and that’s why we’ve asked for an early hearing”. 

The Official Solicitor

Nageena Khalique QC (for AH) said “We are going to propose updated evidence from Dr Danbury.  He’s available on 8thDecember only, for oral evidence. He’d require records from July onwards by the end of tomorrow midday.  He’s indicated that he can then provide an updated report, possibly by the end of Friday but certainly by 9am on Monday 6thDecember”.  

She listed some of the medical records he’d need (CAT scans, nerve biopsy, EEG and so on) but said he was “working on the assumption that he does not need to see her unless there is something in the records that alerts him to the contrary”.  

She suggested that, if the family want another capacity assessment, then (although “the Official Solicitor doesn’t see the need for one”) Dr Danbury as an independent expert, might be asked to see if there’s anything in the records that gives rise to the need for a further capacity assessment.  She suggested, too, that the family could send Dr Danbury the videos they have made which give them hope that their mother might be recovering further, and might even have capacity to make her own decisions.

The family

Simon Miller (for the family), said he’d only had a chance to speak to family members for the first time that morning. 

He said there was a broad measure of agreement with the proposals from the Trust and the Official Solicitor.  In particular, the family felt that the videos they’d made would be helpful to Dr Danbury.  

He gave an example of a recent event which they saw as evidence of improvement: “they were joking with their mother and she laughed and giggled back.  They believe there is a response that is coming back from her that they haven’t seen before.  It may be small but it is important to them that there is an engagement from their mother when she hears their voices and, indeed, what they are saying”. 

He raised the question as to whether the final hearing might reasonably be deferred with reference to “the well-worn mantra that justice must not be sacrificed on the altar of speed” (a near quotation from para. 40 Mrs Justice Pauffley in Re N (A child) [2014] EWHC 270 (Fam).   

He said that the family would need time to digest the report from Dr Danbury – and especially if it was only provided first thing Monday morning (with a hearing on Tuesday and Wednesday) the court should “exercise some caution”.  There needed to be time allowed for them to reflect on their response, not just individually, but to share their views within the family as well.

There was also an issue with an application for a Property and Affairs Deputyship which Simon Miller raised and Nageena Khalique supported,  saying that there was “financial hardship for the family”.  The Deputyship, she said,  “was going to be dealt with by Mr Justice Hayden but essentially it got stalled, and in fact it would be quite straightforward for the court to make this order, dispensing with some of the procedural hurdles.  In the circumstances the Official Solicitor supports the making of a Deputyship order so that property and affairs matters can be dealt with as a matter of urgency.”

The judge seemed favourable to this position.

Simon Miller said, “Thank you. That’s very reassuring to the family.”

Timetabling matters and other details

The judge asked for a written document to accompany the videos to be sent to Dr Danbury (and acceded to Simon Miller’s request that this is not “formalised within a COP statement”).  

Katie Gollop reported new information she’d just received that a formal capacity assessment had been undertaken on Friday and that “nobody in the Trust considers AH has regained capacity to make her own medical decisions”.  Apparently Simon Miller’s clients (AH’s children) had not seen this capacity assessment.

There was some further discussion of timetabling: Dr Danbury’s report will hopefully be received by 4pm on 3rd December and the family evidence (having read it) will be due at 2pm on 6th December.  If Dr Danbury’s report is not available until 9am on 6th December then the family evidence is due at 9am on 7th December.   The hearing will be listed to start “not before 11am to give everyone time to absorb the documents”. 

It’s planned that the treating clinicians will give evidence on Tuesday, Dr Danbury on Wednesday morning, and then the family after Dr Danbury  (although Katie Gollop suggested that it may also be possible to hear some family evidence on the first day of the hearing).

The judge sought to establish what it would be necessary to hear in court: “The previous medical history was dealt with in detail and was tested in court. It seems to me we don’t need to go back historically because of the detail in the judgment”.  This seemed agreed.

Simon Miller said that Paragraph 69 of Mr Justice Hayden’s judgment “would appear to be the main issues for this court to consider”.

69.              Some key facts:

                                                            i.            AH is currently being cared for in a critical care unit and is dependent on mechanical ventilation, continuous nursing care, nutrition and hydration delivered via a nasogastric tube, and receiving various medications. Dr B described the burden of the ventilation on AH as the equivalent of being compelled to run a marathon every day;

                                                         ii.            AH requires frequent suctioning of her trachea to control respiratory secretions, this is, all agree, extremely painful (my emphasis). She is turned frequently to avoid pressure lesions and a hoist is used to allow her to sit in a specially adapted chair. The burden of the turning means that her rest is constantly disturbed. Added to this, is the inevitable noise generated in the ICU, which I witnessed and was rather surprised by on my own visit. AH has a urinary catheter and a rectal tube to manage faeces. She is unable to move other than small movements of her head and neck;

                                                       iii.            The care for a patient in this condition is, in Dr A’s words “associated with a loss of dignity and a total loss of autonomy – she is unable to provide consent and cannot participate in any meaningful choice about how she is treated. This extends from decisions of the utmost gravity, such as withdrawal of treatment, to very modest choices like whether her head faces the window so that the sun warms her, or whether her head does not face that way because the light hurts her eyes.”. I signal that, in my judgement, this weighs very heavily both in evaluating the quality of AH’s existence and in assessing how she would regard her present circumstances;

                                                        iv.            It is impossible to reverse, treat, or ameliorate any of the effects of the damage to her peripheral nervous system or brain;

                                                          v.            Until recently the treating team were concerned that if her consciousness level improved, she may become increasingly aware of her condition and its consequences and that her distress would worsen. They wished, if possible, to reach a consensus about her best interests before this occurred. They were concerned that whilst she may never recover capacity, the countervailing disadvantage of neurological improvement might be that her increasing awareness would be associated with inconsolable distress. It is Dr A’s settled view that such a point has now been reached. Ms C (senior nurse) also agrees with this as does Dr B. Indeed, in my judgement there is universal professional consensus on this important point;

                                                        vi.            During examinations, and for some time now, AH has become distressed, cried and appeared anguished. This occurs on every occasion. As I have already mentioned, this is reported to be very distressing to those who are treating her, particularly the nurses, because it makes them feel as if they are causing rather than alleviating discomfort;

                                                     vii.            The above describes a parlous existence but into this misery are the shafts of sunlight created by the presence and reassurance of her family. This is plainly both meaningful and important to AH, but it does not abate her physical and mental discomfort which continues in their presence. This I also saw on my visit as well as M and A’s sensitive efforts to ameliorate it. (I was shown a video of AH having a visit from her grandchildren. Her bed had been pushed out into the garden. She was undoubtedly happy to see them. I am also constrained to record that both the eldest son K and Ms C told me that AH had been initially resistant to the visit because they both strongly sensed she did not want her grandchildren to see or remember her in her present state);

                                                   viii.            Dr A is “now deeply worried that her awareness has reached a point where all she is able to focus on is fear, anxiety, and hopelessness”. He considers AH’s “recall is minimal” and speculates “it is possible that she relives the discovery of her condition repeatedly” (with respect to Dr A, whose evidence I have found to be extremely impressive, I am not prepared to follow him in that last speculation, for which I can see little, if any, forensic base);

                                                        ix.            Dr A concludes that “I cannot reasonably believe that she would choose to live in this way, unless there was a clear signal from prior discussions with her family, or evidence of any previous statements she may have made or written”.

Capacity

Katie Gollop was still concerned about the possibility that the family position would now be that AH has capacity to make medical decisions for herself – and the burden this might place on clinicians if their evidence was required to counter this since “they have a lot on their plates at the moment”.  She said:

I wonder if it would be fair to ask this.  If the capacity assessment on Friday is emailed by 11.30 this morning, can the family notify us by 4pm today whether it is their position that AH now has capacity to make the decision in question, and if that is their position, whether there are factual aspects of the assessment documented in the record that they wish to disagree with.”

After some to-ing and fro-ing, it was agreed that the family would do so by 9am the following morning.

As I left the hearing, the judge was asking whether there could be an agreed note about the clinical picture at the time of the last hearing (or at the time of the judgment).

All this detailed planning – what exactly needs to be provided by what deadline and by whom – is part of preparing for a full hearing, especially where (as here) matters are contested.  

Hearings like these feel relatively pedestrian: they lack the intrinsic interest we all feel about the ethically weighty decisions made in final hearings.  

But they are the essential scaffolding upon which those final hearings depend.

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


[1] The hearing continued beyond 10.30am – though it seemed to be winding down – but I left at 10.30am for another hearing, so am not able to report on anything that happened after then.

[2] We are not allowed to record hearings, so all quotations of things said during the hearing are as accurate as I can make them, based on rapid typing during the hearing (I do not have shorthand), but are unlikely to be verbatim.

Photo by Clark Gu on Unsplash

Capacity to engage in sex: Nine responses to the Supreme Court Judgment in Re. JB

By: Daniel Clark, Dr EM, Marion Gray, Rosie Harding, Amber Pugh, Ruby Reed-Berendt, Kristy Regan, Kirsty Stuart, and an Anonymous Couple (Collated and introduced by Celia Kitzinger)

Note: This blog discusses rape and sexual assault.

The Supreme Court considered the issue of whether to have capacity to decide to have sexual relations with another person, a person needs to understand that the other person must have the capacity to consent to the sexual activity, and must in fact consent before and throughout the sexual activity.

The Supreme Court states: “The appellant, JB, is a 37 year-old single man with a complex diagnosis of autistic spectrum disorder combined with impaired cognition. JB has expressed a strong desire to have a girlfriend and engage in sexual relations. However, his previous behaviour towards women has led the respondent local authority to conclude that he cannot safely have unsupervised contact with them. 

The local authority filed an application in the Court of Protection seeking declarations as to JB’s capacity in various areas, including his capacity to consent to sexual relations. The expert evidence was that JB understands that mechanics of sexual acts and the risks of pregnancy and sexually transmitted disease, but his “understanding of consent is lacking“. 

In the Court of Protection, the judge held that it was not necessary for a person to understand the need for their sexual partner’s consent and declared that JB has capacity to consent to sexual relations. The Court of Appeal disagreed. It held that, to have capacity to engage in sexual relations, a person needs to understand that their sexual partner must have the capacity to consent to the sexual activity and must in fact consent before and during the sexual activity. JB appeals to the Supreme Court.”

The Supreme Court judgment “confirmed that for a person to have capacity to consent to sex, they need to understand that their sexual partner must also have the capacity to consent to sex. The Supreme Court also confirmed that a person needs to understand that their sexual partner must consent before and throughout the sexual activity” (quoted from the Easy Read Summary on the Supreme Court webpage, which has lots of other useful links).

These nine responses to the judgment handed down on 24th November 2021 capture some of the issues and concerns raised when considering capacity to consent to sex or to engage in sexual relations.


  1. Sexual capacity in the Court of Protection by Rosie Harding

Overall, I welcome the clear expression by the Supreme Court of the centrality of consent in understanding capacity to engage in sexual relations. In short, the Supreme Court set out that the appropriate test for capacity in sexual relationships is focused on capacity to “engage in” rather than “consent to” sexual relations. The content of that test follows the Court of Appeal decision, but with one small change.  In the Court of Appeal, the consent element was set out as “the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity” [2020] EWCA Civ 735 at [100] per Baker LJ.  In the Supreme Court, the wording of this was amended to “must be able to consent“, avoiding the need to engage with abstract notion of capacity (and, especially, a need to ‘assess’ capacity of prospective sexual partners under the MCA 2005 [see paragraph 95 of the Supreme Court judgment]).  (Other elements of the test include the mechanics of the sexual act, the fact that P can say yes or no and can decide whether or not to have sex, that heterosexual sex can result in pregnancy, and that there are health risks involved which can be reduced by using a condom).  Jaime Lindsey and I published a paper in the Journal of Law and Society(open access) earlier this year making the case for re-focusing the legal test for sexual capacity onto the social risks resulting from non-consensual sex and exploitation. That paper drew on case file analysis and observations in the Court of Protection. Our focus in the research was on cases relating to capacity regarding sex, marriage or contact. Yet 18 of the 20 case files we reviewed involved allegations of abuse or sexual violence. In our paper (like the Supreme Court), we agreed with the Court of Appeal’s reformulation of the test for capacity to consent to sex into capacity to engage in sexual relations. This re-focusing enables consent to be (rightly) understood as central to all sexual activity. Overall, I think this Supreme Court decision is to be welcomed as a clarification of the information relevant to sexual capacity. There are other aspects of the decision that warrant further scrutiny, but analysis of those is for another day!

Rosie Harding is Professor of Law and Society at Birmingham Law School. She tweets @rosiehardinguk


2. The right decision by Marion Gray

I think it is the right decision, as ‘engage in’ reflects not just being an active instigator of, or passive recipient of, sex. It is in my opinion relevant information for P to understand, that the other party has to consent from beginning to end, as the act takes place through mutual consent. There are potential generalisable aspects like Lord Stephen’s rejecting the submission that the Mental Capacity Act 2005 is solely confined to the protection of P, that are controversial. Some mention has been made of the MCA being used for public protection in this regard. I have no idea about that but I do agree with the decision based on mutual consent being relevant information.

Marion Gray is a Special (Medical) Visitor at the Office of the Public Guardian


3. Anticipating test cases, by Kirsty Stuart

It is positive that the judgment reflects the fact that people are individuals and the law needs to reflect that but I do have some potential concerns about the ways in which some groups of people may be affected by the fact they may inherently struggle with consideration of others’ perspectives and what may happen with two individuals with needs. I look forward to watching test cases to ascertain the approaches being taken

Kirsty Stuart is an associate solicitor at Irwin Mitchell and a member of the core group of the Open Justice Court of Protection Project. She tweets @MrsArcticride


4. Between protection and empowerment A carer’s reflections, by Daniel Clark

I have been interested in the case of A Local Authority v JB since it first came before the Court of Protection in 2019. As a (paid) carer of people living with dementia, and previously of people living with an Acquired Brain Injury, issues relating to sex and sexual relationships have not been uncommon. This has ranged from disinhibited sexual behaviour (such as inappropriate touching) to clear expressions of intent (such as explicitly stating a desire to have sex with another person).

However, the consensus (prior to this ruling) on what amounts to the ‘relevant information’ related to capacity to engage in sex has been woefully inadequate. Whilst there is, of course,  great importance in understanding the risk of STIs and pregnancy when one has sex with another person, this does not tell the full story. Sexual relations are, by their very nature, complementary. For a monogamous same-sex couple, who both have some form of cognitive impairment, problems about STIs and pregnancy are not relevant. 

Consent, however, is. It is not enough for one of them, A, to understand that he consents to sex; it is of the utmost importance that A understands the other person, B, also needs to consent to sex both before and during sex. Where B does not consent to sexual activity, but A persists in that sexual activity, a sexual assault occurs.

I once supported two people who, of their own volition, struck up a friendly relationship. Its exact nature was only discovered when the woman told a member of staff that she was planning on having sex with the man. It soon became apparent that she did not want to have sex: she thought that ‘it had to be done’ and that she couldn’t say no because this man had been so kind to her. 

Here, issues of consent and capacity collided. The woman thought she had to have sex, and her cognitive impairment meant that she lacked insight into the fact she could withhold consent. In this instance, she was supported to explain that she did not want to have sex (which the man accepted without hesitation) and a therapeutic programme was put in place to help her talk through these issues in a safe environment. 

This example highlights two things. The first is that, when discussing questions of sex, the approach must be sufficiently strengths-based, anti-oppressive, and trauma-informed. The second is that the delicate balance between protection from harm and empowerment to make one’s own choices must be struck. 

It is for this reason that I was relieved to see the ruling of the Supreme Court today. The Mental Capacity Act 2005 was ‘designed to protect and empower people’ who lack the capacity to make certain decisions, and it is on the element of the protection of P that these issues pivot. As a carer of people who may lack capacity to make certain decisions, I am very aware of the tension between protection from harm and empowerment to be as independent as possible.  

As the judgment repeatedly and sensitively states, the risks associated with P being deemed to have the capacity to engage in sex, whilst lacking an adequate understanding of consent, are extremely high. These risks include the potential to commit a sexual assault, which in turn will increase the risk of prosecution and imprisonment. It was noted that imprisonment would have an extremely detrimental effect on the mental health of JB (Stephens J, para.40, [2021] UKSC 52) and, without doubt,  on anyone else with an impairment or disturbance of the mind or brain who cannot understand the issues of consent. 

Furthermore, not to include consent as part of the ‘relevant information’ would unnecessarily put others at risk. If somebody withdraws their consent halfway through sex but the other person does not understand this can happen, and persists, a sexual assault occurs. Both emotional and physical harm can arise.

However, a focus on protection runs the risk of a paternalistic attitude developing. It is quite common for care staff to be risk-averse in their attempts to protect from harm, which can inadvertently cause psychological harm. As I have mentioned, the Mental Capacity Act 2005 was designed not only to protect but also to empower individuals. References to potential education programmes within the judgment itself were, on my part, well received (Stephens J, para.42-46, [2021] UKSC 52). If P can be educated on issues about consent, with the potential that they may (re)gain the capacity to be able to engage in sexual activity, then this should be promoted as much as possible. 

Whilst I do not have personal experience of the types of education programme that the judgment has in mind, I do have experience of supporting people to modify disinhibited sexual behaviour that arises as a result of a cognitive impairment. This can range from unwelcome touching to frequent sexually charged comments. In particular, I think of one man who would tell explicit sexual stories, and then tell female members of staff to get into bed with him. When rejected, he could become quite distressed.

Much of the work done to modify such behaviours is concerned with emphasising the consent of the other person, taking into account their potential feelings as well as the social situation. It is not an easy process, and has the potential to be extremely distressing to the person in question. I would be very interested to see how this can be expanded into comprehensive education programmes.

Critics may argue that the suggestion of education programmes puts an undue burden on certain people. For example, it is well known that disorders such as dementia make learning difficult. If somebody cannot retain information as a result of their impairment, it is unlikely they will be able to use or weigh up that information. This effectively makes sexual activity prohibited for people who, because of their impairment, will be unable to meaningfully engage with education about sex. This is actually an argument similar to the second grounds of appeal in this case.

I concede that this is a compelling line of argument. Its implication is, in effect, that this is a discriminatory ruling which sets a criterion that is unreachable for certain people. However, I remain unconvinced by the merits of this discrimination argument. It is a fact that there is an inevitable tension between protection and empowerment, and that this tension cannot always be reconciled. In cases where there is a question of somebody’s capacity to engage in sexual relations, and that person cannot be empowered to understand issues of consent, I believe that protection must take precedence. That is, of course, protection not just of P but of others who are put at risk by the potential behaviour of P. 

In September of this year, I completed my MA in Political Theory. It’s therefore quite natural for me to fall back on philosophy and theory when reflecting on certain problems. In this instance, I’m reminded of Amia Srinivasan’s recently published book ‘The Right to Sex’. In it, she argues that no such right exists: ‘sex’, she says, ‘is not a sandwich’ (p. 72). The state may distribute sandwiches, but it would be unacceptable for a state to distribute access to sex.

It’s a useful analogy because it cuts to the core of this case. None of us has the right to access the bodies of others; none of us can just assume that others have a duty to concede to our sexual desires. 

The Supreme Court has restated that simple fact. 

Daniel Clark is a paid carer. He is also deputy director of Backbench: an unaffiliated, open platform, blog that publishes a range of articles about current affairs. He has recently completed an MA in Political Theory. He tweets@DanielClark132


5. Beyond the protection of P? by Ruby Reed-Berendt

 “[T]he protection of the public provided by the criminal justice system or by a sexual risk order cannot detract from the protection which is provided in practical terms by including in the information relevant to the decision the reasonably foreseeable adverse consequences for P and for members of the public. For all these reasons I reject the submission that the purpose of the MCA is solely confined to the protection of P” (From the Supreme Court judgment: para. 92, my emphasis)

The finding that the Mental Capacity Act (MCA) 2005 goes beyond the protection of P appears to be at odds with its ethos of empowerment and placing the individual at the heart of the decision. The reference to a dual function of protecting P and the public aligns more closely with the Mental Health Act 1983, which explicitly makes reference to the risk that P might pose to others as a reason to make decisions on treatment without their involvement. I am concerned that the involvement of risk in a finding of incapacity might mean that individuals (such as JB) who are deemed a possible risk to others are not given the opportunity to be supported to develop their capacity to take decisions for themselves, but instead are found to lack capacity out of concern for something they might do in the future. If risk is indeed to become part of capacity assessments, it will need to be reflected in the Code of Practice to ensure it is applied appropriately and consistently. Notwithstanding this, the use of individual and public protection calls into question the MCA’s purported focus on ensuring that individuals participate in decisions about them, instead giving the courts another “practical” means to exert control over the lives of those found to lack capacity.

Ruby Reed-Berendt is a PhD Candidate and Research Associate at Edinburgh Law School. Her research focuses on mental health and mental capacity law from a feminist perspective. She tweets @rubyreedberendt


6. A feminist perspective on Re C and Re JB, by Dr EM

Two important legal cases originating in the Court of Protection and heard by the Court of Appeal (Re C) and the Supreme Court (Re JB) in 2021 have dealt with and settled on legal – and subsequently cultural –  understandings of sexual relations between adults. 

In Re C, the case concerned whether care workers for a 27-year old man, “C”,  would be risking a criminal offence if they were to facilitate the practical arrangements for him to visit a sex worker.

In Re. JB, the question was whether an ability to recognise that a sexual partner must be able to give consent, and is in fact doing so, before and during sexual relations,  is required in order to deem a person to have capacity to engage in sexual relations. 

Although not headline front page news in the newspapers, these cases have resulted in a significant challenge and reassertion of the parameters of what is acceptable sexual contact between adults.

Both cases focused on male sexual wants and rights in conflict with ideas about female consent. Both cases attempted to argue from Article 8 of the Human Rights Act 1998 that the men concerned had a right to sexual relations with women. 

For me, the questions which emerged from the two cases can be boiled down to ‘do men have the right to purchase women’s consent?’, ‘do men have the right to purchase women’s bodies for sexual use?’, ‘do a man’s sexual wants override women’s safety?’, ‘does a man have to understand that women may not consent or can remove consent to sexual activity?’. Feminists from the Centre for Women’s Justice intervened in both cases placing the issues in the wider context of male violence against women and girls.

These rulings could have re-relegated women to the level of masturbatory aids for men. Women would have been legally understood as physical holes for penetration, and sex implied to be an act absent mutual want or desire. A supposed male right to sexual intercourse would have been deemed more important than a female’s right not to be assaulted, raped or exploited. 

Instead, both courts have resisted the renewed objectification of women and reasserted that women’s rights must be considered in cases where male sexual entitlement is claimed. Both courts have rejected the argument that males have a right to sexual intercourse with females and the corollary there exists a corresponding duty for sexual access to female bodies to be provided. In both cases we see women’s safety made an important factor in deliberations. 

Re C

In the case of Re C the court acknowledged:

 ‘It is an undoubted fact that many of those working as prostitutes have been exploited, for example as victims of modern slavery or trafficked to the United Kingdom. It is the regular experience of the courts to come across such cases in both the criminal and immigration contexts. Interveners before this court (charities called Nia and women@thewell) attest to its prevalence’. (para. 34)

Section 53A of the Sexual Offences Act 2003 makes it a criminal offence to pay for sexual services of a prostitute subjected to force or coercion. The court declared in the case of Re C that ‘It is irrelevant to liability under this section whether a defendant knew or had reason to believe that the prostitute in question had been exploited. The section was the subject of debate in these proceedings because although checks made before engaging the services of a sex worker might reduce the risk of committing the offence, they can rarely eradicate them altogether. Based on the arrangements contemplated there would necessarily be a risk that both C and his carers might commit an offence under section 53A’ (para. 34).  This is a significant statement.  The court has acknowledged that due to the widespread coercion and force in the sex trade in England and Wales, one could never be certain that the woman being purchased is engaging freely.

C’s case could have entrenched the sex trade, since the argument advanced under Article 8 entailed:   

“…  the underlying proposition that there is a positive obligation on the state to allow care workers to make arrangements for sexual contact with prostitutes for those in its care over the age of consent (or at least over 18) who are unable to make the arrangements themselves, at least in circumstances where contact with prostitutes is not generally prohibited. There is no sign of such a positive obligation having been recognised by the Strasbourg Court, nor of that court having recognised that article 8 entails a positive obligation on the state to allow the purchase of sex without fear of criminal sanction.” (para. 53)

Re JB 

The men in both these cases claiming the legal right to sexual activity with women had recognised histories of sexual predation or violence against women. The courts thus had to implicitly balance women’s rights to safety with male sexual wants. The Supreme Court pointed out that:

  ‘JB has made repeated attempts to invite vulnerable women somewhere he perceived they would not be seen (such as a lavatory) with a view to initiating sexual contactOn one occasion, in 2016, JB’s behaviour, towards such a vulnerable woman, led to a police investigation. Although there was an allegation that he had assaulted a woman, the police decided not to prosecute’. (Para. 28).  

The court further details that:   

‘… reports suggests that, when previously attending events for people with learning disabilities, JB would make a “beeline” for highly vulnerable women which suggested to Dr Thrift that he is able to discern those with such vulnerabilities and weighs them in relation to his ability to be successful in his aim of having sex’. (Para. 29).   

Furthermore, ‘JB’s understanding of the concept of consent was also graphically illustrated by his response to the question asked by Dr Thrift: “If a woman gets drunk at a party and has sex with a man there, is she fair game for anyone else?”, JB[‘s] response was: “I’d say she was fair game yes. Especially if she’s done it with one person. Yes if she drinks enough she’s bound to do it with the second one too.”. (Para. 35). 

 JB poses a clear risk of sexual violence towards women and girls and his care plan should subsequently not be changed to enable him to potentially act in a harmful way. The court balanced women’s right to safety with JB’s right to private life.

In the case of JB, the judge made what is culturally acceptable in terms of sexual activity explicit when he stated that ‘The fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity applies to everyone in society’ (para . 120).

Dr EM is a feminist academic, disability rights campaigner and  traumatic brain injury survivor. She tweets @PankhurstEM


7. State surveillance of our sex lives, by an Anonymous Couple

The Supreme Court judgment relates to a particular case (JB) but will now be applied to all future Ps in the Court of Protection, for many of whom the case-specific facts will be very different.  

The key legal change introduced by this ruling is that the information relevant to the decision to engage in sexual relations now includes  “the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity”.  This judgment extends the weight and scope of the understanding of “consent”, underscoring its central importance in determining capacity for sex. 

In our view, this will have a detrimental effect on the rights and well-being of some vulnerable people – especially older people in long-standing relationships. 

We recognise that understanding that the other person must consent is of key importance in the context of trying to prevent male violence against women, sexual assault and rape.  But to allow this “protective” imperative to determine whether or not vulnerable people with (for example) dementia may or may not be permitted to have sex with their spouses seems to us an illegitimate extension.

We note the proviso in the judgment that: “A general and non-specific basis is not the only appropriate formulation in respect of sexual relations as even in that context, “the matter” can be person-specific where it involves, for instance, sexual relations between a couple who have been in a long-standing relationship where one of them develops dementia or sustains a significant traumatic brain injury. It could also be person-specific in the case of sexual relations between two individuals who are mutually attracted to one another but who both have impairments of the functioning of their minds.” (para. 71).  We are sceptical that these “person-specific” ways of considering sexual relations will be generally understood or appropriately applied on the ground.

More broadly, as a married  couple in a loving relationship of nearly 40 years duration, we have long been appalled by the idea that strangers might in future believe themselves entitled to assess our capacity to engage in sexual relations with each other.  We are horrified that we might be cross-questioned about the mechanics of the sexual act and be denied the right to share a bed if we don’t answer correctly.  The Supreme Court judgment has done nothing to obviate our existing concerns, and has added another.  In addition to each of us being required to demonstrate capacity to consent to sex, we now have to demonstrate that we understand that the other person must be able to consent to sex, and does in fact so consent before and during the sexual encounter.  

All these enquiries into our sex life seem to us to be prurient and offensive. This feels like creeping state surveillance of our sexual lives.  Frankly, we do not wish to be protected against each other by the state in this way.  Our sex life is an intensely private and intimate aspect of our relationship and we object to it becoming a matter of public scrutiny for capacity assessors or in a court of law.  We would rather risk a future of sex without consent than be subjected to the encroachment of this kind of state ‘protection’.  

And what of the scenario where, for example, one member of a couple is deemed not to have an understanding that the other must consent to sex, but the other person is in fact consenting.   This opens up the possibility of both spouses consenting to sex – and actively desiring it – but marital sex being prohibited nonetheless on the grounds that one or other of the partners doesn’t meet the new capacity stipulation laid down by the Supreme Court.  It’s wholly unclear that (or how) the “person-specific” stipulations would play out in this situation.  In sum, we are dismayed by this further encroachment of the state into our private lives.


8. A shift toward ‘pre-crime’ control? by Kristy Regan

There is always an inherent tension in completing Mental Capacity Act assessments as to the nature of relevant information. The MCA Code of Practice (2007) s. 3.09 says ‘The Act (MCA, 2005) cannot state exactly what information will be relevant in each case’.  It then goes on to discuss a number of steps which should be taken, including using ‘simple, broad explanations…yet not miss out important information’. A bit of a challenge at the best of times, and one which can be interpreted in a number of ways depending on the views of the assessor. 

Helpfully, over the years there have been a number of cases which have led to the current position of what ‘relevant information’ in relation to sexual relations entails. In my view, the case of JB has filled a concerning gap in what should be considered relevant, namely that the capacity to engage in sexual relations needs to include the understanding that the other person must have the ability to consent to the sexual activity, and indeed consent before and throughout. As argued by others, this is more akin to the principles of the Mental Health Act 1983 rather than the MCA, namely in invoking the idea of the impact on others. 

In practice, I have seen best interests decisions reframed in order to avoid  explicitly saying that a decision is for the protection of others. For example, in one case I reviewed a service user (P) with a learning disability who had a sexual interest in minors. The justification for the use of restrictions on the service user had been reframed, to say that the risk was to P, due to retaliation from others or due to risk of imprisonment. The unspoken reality was that the restrictions were to minimise risk to others rather than to P himself. 

While I do agree in principle about adding this additional element to the relevant information, I think the addition of consideration of harm to others or the potential to engage criminal law could have more far-reaching implications on other decisions made under the Act. How this plays out will be interesting to witness. It definitely feels like a shift away from empowerment to a means of controlling future, as yet unacted, criminal behaviour: a bit of a “Minority Report” (see Footnote)  scenario. How far from this to a situation where assessors take risk-averse decisions on a variety of issues? 

Kristy Regan is a Senior Lecturer in Social Work at the University of Sunderland and also a Court of Protection Visitor. She tweets @kristyregan13

Footnote: Minority Report is a 2002 American science fiction action film, directed by Steven Spielberg, starring Tom Cruise, and loosely based on the 1956 short story, “The Minority Report” by Philip K Dick.  The film is set in the year 2054, where ‘Pre-crime’, a specialised police department, apprehends (potential future) criminals based on fore-knowledge provided by psychics called “precogs”.


9. A landmark decision, by Amber Pugh

The decision of the UK Supreme Court (UKSC) in A Local Authority v JB marks the first time that the UKSC has considered the test for lack of capacity contained in the Mental Capacity Act 2005, and so it is certainly a landmark decision. In addition to providing a useful overview of how capacity should be assessed under the Act generally, the judgment in JB is a long-awaited authoritative statement from the summit on the matter of capacity and sexual relations.

Understanding the other person’s ability to consent

The UKSC upheld the Court of Appeal’s judgment (available here and discussed here),  but made a slight tweak to the phrasing of the relevant information, so that P now needs to be able to understand that ‘the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity’ [98]. The Court of Appeal had previously held that P must be able to understand that the other person has ‘the capacity to consent’ [100] (although later on in its judgment the Court of Appeal had also referred to P needing to understand that the other person is able to consent [106]). The change in phrasing from ‘capacity’ to ‘ability’ was to ensure that the threshold for sexual capacity was not set too high [95]. Regrettably, however, the UKSC did not provide any guidance as to exactly what level of understanding will suffice here, nor how it is to be assessed in practice. During the hearing, counsel for the local authority had suggested that it would be sufficient if P could identify physical cues which may indicate that a person lacks capacity, and gave the example of someone who is ‘just looking around the room not connected to anything’. However, as I stated in a previous blog post, this would be counter to s.2(3)(b) of the Mental Capacity Act [MCA] 2005 because it would require P to make an unjustified assumption about the other person’s capacity based on their condition or behaviour. The UKSC may have been reluctant to provide guidance on this point because any such guidance would have to be extremely carefully crafted to ensure that it did not risk making prejudicial assumptions about disabled people.Without further direction, however, there is scope for inconsistent and potentially restrictive approaches to be adopted when assessing P’s understanding of the other person’s ‘ability to consent’. Indeed, it may be the case that, in practice, some assessors will expect P to make unjustified assumptions based on the other person’s impairment. I suspect this is an issue that we will see the lower courts grappling with in future cases.

Issue-specific, person-specific, or decision-specific?

The UKSC found that the test for lack of capacity contained in the MCA is decision-specific, and it therefore requires the courts to have regard to the facts of each particular case when determining the information relevant to the decision. Lord Justice Stephens explained that, in the context of sexual relations, this means that the relevant information may be formulated in a generic, non-specific way where P wishes to have sex but there is no identified (or identifiable) partner at the time of the capacity assessment. But it can also be formulated in a person-specific sense where the other person is known [70]-[71]. The Court stated, however, that sexual capacity should ordinarily be assessed in a non-specific way. A person-specific approach may be required where there is:

‘a couple who have been in a longstanding relationship where one of them develops dementia or sustains a significant traumatic brain injury. It could also be person-specific in the case of sexual relations between two individuals who are mutually attracted to one another but who both have impairments of the functioning of their minds.’ [71]

It is likely that a significant number of capacity assessments moving forward will, in actuality, be person-specific. 

If the test for capacity to engage in sexual relations were to be applied in a strictly non-specific way, then there would be potential for draconian decisions to be made. Indeed, in HD (Capacity to Engage in Sexual Relations) [2021] EWCOP 15,the only barrier to HD having capacity was an inability to understand that the other person had to have the ability to consent. The evidence of HD’s social worker suggested that HD could be supported to understand this in relation to a specific person, but would be unable to develop a general understanding of this concept [23]. Consequently, HD was found to lack capacity [27]. The decision-specific approach in JB may, therefore, provide much-needed flexibility and allow people in situations similar to HD to enjoy mutually consenting sexual relationships. Permitting a person-specific approach to be adopted in some cases also allows for the relevant information to include risks posed to P by a specific person (JB at [72]). This should provide a necessary safeguard  against abuse, and has long been argued for by commentators.

Although the flexibility provided by a decision-specific approach is desirable in some cases, it  also has the potential to give rise to illogical outcomes, which I have discussed here.

Public protection

The UKSC held that the courts must have regard to ‘reasonably foreseeable adverse consequences…for members of the public’ when determining the information relevant to a decision [92]. Such an explicit statement about public protection considerations in the context of the MCA is highly unusual. It will be interesting to see what effect this has on subsequent MCA cases, and I am concerned that it could exacerbate current risk-averse approaches ‘on the ground’.

Supporting P to gain capacity

The prominence given to the importance of section 1(3) of the MCA – which states that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken – is particularly welcome. This provision, which is sometimes referred to as the support principle, can often be forgotten about. Yet, the judgment of the UKSC highlights that it has a crucial role to play in ensuring that any interference with P’s Article 8 rights is proportionate and justifiable [118].

UNCRPD

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is an international human rights treaty which focuses specifically on the rights of disabled people. Although the CRPD has been ratified by the UK, it has yet to be incorporated into domestic law and so it is not binding on domestic courts (the courts can choose not to follow it). Nevertheless, it can, as both the UKSC and the Court of Protection have previously recognised, have a persuasive influence when interpreting the MCA. Despite this, the UKSC in JB found that:

the contention that this court should examine whether the United Kingdom has violated provisions of an unincorporated international treaty (which is the effect of the appellant’s contention at (b)) has recently been considered, and rejected, by this court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2021] 3 WLR 428, paras 77-96.’ [120]”

It is disappointing that the Court’s only engagement with the CRPD was to dismiss it in this way. The lower courts were initially reticent to address the CRPD at all, and this statement might result in fewer references being made to it in future cases. 

Amber Pugh is a final year PhD candidate in the School of Law and Social Justice at the University of Liverpool. Her research examines the balance between empowerment and protection in mental capacity law, with a particular focus on decision-making around sex and contraception. She tweets @Amber__Pugh (note – that’s two underscores!)

We welcome critical engagement with the points raised in this blog post, as well as any additional commentary people would like to add. Please use the “Leave a Reply” button at the end of this post to add your views.



Photo credit: UK Supreme Court

Fact-finding, ‘magnetic importance’, and the consternation of colleagues: A final hearing adjourned

By Celia Kitzinger, 23rd November 2021

Update: I have been told that the next hearing is listed for 21st – 23rd February 2022.

Walsall County Court Room 2 is a modern covid-safe space.  There are three rows of tables with benches facing the front.  Strips of yellow and black tape outline each available sitting space, with crosses marked on alternate spaces to prohibit their use.  The 20 or so wall-mounted cantilever folding chairs around the edge of the room (normally for observers?) are taped up. 

There’s plenty of time to take in the scene because the hearing is starting about half an hour late.  We were told that the interpreter had only just arrived at the building, about 15 mins after the listed start time.

It’s case number 13698212 before His Honour Judge Lopez on 25th October 2021.  It’s hybrid (I’m attending remotely via the Cloud Video Platform) and it was originally intended to be a fact-finding and final orders hearing, listed for four days.

Instead, the hearing comes to an abrupt and unhappy end with an adjournment on the second day.

Background

The case concerns an eighteen-year-old (P) with profound learning disability, cerebral palsy, visual impairment and scoliosis.  

She lacks capacity to conduct litigation, or to make decisions about where she lives, her care and support, and her contact with others – and no party seeks to challenge that.  Final declarations to this effect were made on 14th June 2021 and are not contested.

On 16th December 2020 (mid-pandemic), the local authority had removed her from the family home (she’s always lived with her family) and placed her in residential care, contrary to her family’s wishes.  She’s remained there ever since – and significant restrictions were placed upon contact between mother and daughter, some relating to lockdown restrictions during this period.

The local authority (represented by Lee Parkhill, Cornerstone Barristers, instructed by Alexander Gidden) takes the position is that it is in P’s best interests to remain in her current placement. 

The local authority has a whole litany of concerns about P’s welfare at home, including:  exposure to physical aggression (from the mother’s partner towards the mother), missed medical and dental appointments, dental decay, the mother (Ms X) not providing P with prescribed medications (including baclofen for muscle spasms and nutrient supplements), not following advice about the need for P to wear her back brace, allegations that she was putting P at risk of choking because she won’t use a blender to puree food, and in other ways “wilfully ignoring” the advice of professionals, and behaving “aggressively” towards care staff.  The local authority also says that Ms X’s (privately rented) property is “wholly inappropriate” for a wheelchair user like P.

Ms X (represented by Jake Rylatt of No. 5 Chambers, instructed by Kirstine McFarlane) says that P was removed from her care unlawfully, without notification or discussion, and she wants her daughter home again immediately.  She disputes the allegations against her in relation to the adequacy of the care she’s provided for her daughter at home. She denies ever having missed appointments with speech and language therapists, although she thinks some appointment letters may have been sent to her previous address.  She has not missed appointments for P’s dental treatment – rather, appointments have been cancelled by the dentistry services.  She didn’t give P the food supplements because when she picked them up, they were out-of-date and had worms in them.  Baclofen made P sweat profusely and she was told to reduce the medication.  She has raised safeguarding concerns (a counter-allegation) about the care of her daughter in her current placement – including bruising and scratching on P, staff failure to wash and clean P properly, and their failure (like hers) to get dentistry treatment for P.  She is (now) willing to accept a package of external support at home if the court considers it necessary.

Initially the plan was for preliminary “fact-finding” as part of the final hearing, to determine whether or not the claims made about Ms X’s failings as a carer are true.

Fact-finding hearings are most commonly directed by the court (either separately or as part of the final hearing) in what might be termed ‘safeguarding cases’ brought by local authorities. In such cases, the local authority is usually seeking adverse findings against an individual or individuals to support its contention that (for instance) their contact with P should be limited, or that P should live somewhere other than in the family home.” (“Fact-finding hearings in the Court of Protection”; see also Sophy Miles on “When to Find Facts” in the Court of Protection Handbook).

P’s best interests are represented (via the Official Solicitor) by Pravin Fernando of Serjeants’ Inn Chambers, instructed by Kirstie Lennox. The Official Solicitor has some concerns about the mother’s ability to engage with and provide care for P in a safe and suitable way, but will provide views on where it is in P’s best interests to live after hearing the oral evidence.

Pre-trial review: 14th June 2021

Prior to the pre-trial review in June 2021, the case had been the subject of initial case management directions from District Judge England in January 2021. He made interim declarations that P lacks capacity and that it’s in her best interests to remain in the care home; he authorised her deprivation of liberty on an interim basis, invited the Official Solicitor to act as litigation friend for P, and joined her mother to the proceedings.  

Then there was a directions hearing on 9th March 2021 before District Judge Riley (which I also didn’t observe).  The order from that hearing recited that there was now a standard authorisation for P’s deprivation of liberty at the care home to which to local authority had removed her.  The court proceedings were reconstituted pursuant to s21A MCA 2005.  (This means that P and her Relevant Person’s Representative – I don’t know if this is her mother? – are entitled to non-means tested legal aid.) The order also included a recital that face-to-face contact with family should commence as consistent with the (then) most recent government guidance. Orders were made for the provision of s.49 reports from relevant health professionals (e.g., P’s dentist, dietician, physiotherapist, learning disability nurse).  A three-day final hearing was listed to begin on 7th July 2021, in advance of which there would be a pre-trial review. 

The pre-trial review on 14th June 2021 was the first hearing I observed in this case.  It was before Her Honour Judge Sally Hickman, sitting in Wolverhampton.  Apparently, it was supposed to have been heard by His Honour Judge Paul Lopez, but he had been unable to do so,  “and I was catapulted in, just for this hearing[1] (said Hickman J). 

I found it distressing to observe because P’s mother, Ms X, was crying throughout the hearing.  As the lawyers talked about s.49 orders, details of care packages, the need for transition and conveyance plans if P is returned to her mother, and the need for contact arrangements to be clarified if she is not, Ms X – observing via her mobile phone, with her interpreter on another line – simply wept. 

Her microphone was (mostly) turned off, but there were times when her face was streaming with tears and she was mopping her eyes with tissues – and nobody acknowledged this until right at the end of the hearing when the judge asked counsel to “thank her for contributing and keeping her composure: I could see how distressed she was at times”.

The only sense in which she had “kept her composure” was that she had not interrupted proceedings after an initial attempt, at the beginning, to get her voice heard (via her interpreter).

While Lee Parkhill (as counsel for the applicant local authority) was still laying out the introductory summary of the case, the following intervention took place: 

Interpreter:  Ms X would like to know if P can live in her home with her because

that’s where she’s been caring for her for the last 18 years.

Judge: Please explain that’s what the hearing will decide in July.

Ms X: (says something, tearfully, in her native language)

Interpreter: Ms X is missing her daughter.

That was the extent of her contribution.  

Counsel for the applicant then continued to outline the order he was inviting the judge to make, which included a recital that a new standard authorisation had been granted in respect of P’s deprivation of liberty, a final declaration concerning P’s lack of capacity for the relevant decisions, the evidence required for the next hearing, and arrangements for in-person attendance for P’s mother and her interpreter and counsel, with remote attendance for others (since the court is not large enough to hold all parties).  

Ms X continued to weep throughout the statement from her own counsel, and that of the Official Solicitor.  It felt a bit brutal to me – and not representative of the level of humanity I usually see in the Court of Protection.

Still, it was clear that the lawyers were all doing their best to ensure that the hearing in July would be “effective” and that everything would be in place so that decisions about P could be made when the court reconvened in just over three-weeks’ time.

That didn’t happen.  Permission to adjourn was granted the day before the final hearing was due to start, because one of the advocates was ill with Covid-19. 

 It was a further 3-months (so now more than 9 months since Ms X’s daughter had been taken from her) before the final hearing took place.  And that final hearing has now been adjourned, part-heard until February 2022.

The final hearing: 25th October 2021

My expectation, based on my experience of the pre-trial hearing, was that the final hearing would begin with ‘fact finding’ to determine whether or not the allegations against Ms X could be sustained. I’d understood that the court would then use what had been determined to be the ‘facts’ of the case in making a decision about where it is in P’s best interests to live and receive care.  If her mother was as poor at caring for P as the local authority claimed, then it seemed likely that P would stay in residential accommodation (notwithstanding the question mark hanging over the lawfulness of taking her there in the first place).  If Ms X could ‘clear her name’ and show that she was acting reasonably, and that the social worker and others had misunderstood or misrepresented her actions, then she would stand a chance of having her daughter returned to her care. 

As it turned out, that’s not at all what happened – partly, I think, because of developments since the pre-trial hearing which was now four months ago.

Instead, the local authority argued against any ‘fact-finding’ exercise on the grounds that, irrespective of the facts relating to Ms X’s behaviour in relation to her daughter, there was an over-riding factor on the basis of which a decision could be made about where P should live – and that was the unsuitability of the family home.  

Counsel for the Official Solicitor, Pravin Fernando, also took the view that the completely unsuitable nature of Ms X’s home was an issue of “magnetic importance” in this case. It’s not realistic, he said, to imagine that P can live safely at home, so “the utility in proceeding through a fact-finding exercise … is questionable where in practical terms P can only realistically stay where she is.”

I’ll  now describe how these arguments were advanced and challenged, and how the judge addressed them – and, crucially, the response from counsel for Ms X, P’s mother, Jake Rylatt – as the arguments emerged in the course of the hearing.

I’ll also explain what happened on the second day of the hearing to derail the entire process.

DAY ONE (25th October 2021)

Starting the hearing

I watched the parties enter and take up their assigned seats. Everyone was masked.  

Ms X (P’s mother) and her interpreter were seated together in the back row of the court: she seemed more composed than at the pre-trial hearing.  

Counsel for Ms X, Jake Rylatt, and his instructing solicitor were seated in front of them. 

This is a surreal experience” said Jake Rylatt (referring, I assume, to the experience of a hybrid hearing). He asked if he could take off his mask (yes) and then said hello to the other members of counsel visible on screen.  

From an observer’s perspective (and I assume also for the lawyers attending remotely), this was an excellent audio-visual experience, with the camera on the right people at the right time (I think someone was repeatedly re-directing it from judge to counsel and back to achieve this effect?).  There was high-quality sound, and no connectivity problems.  Well done Walsall County Court!

At 11.06 am, the judge entered at front of court and was seated on his ‘bench’ – a bright green office chair.

After being introduced to the legal teams, he immediately started listing documents that were missing from his bundle, or were “outdated”.  He hadn’t received Ms X’s statement, served a few days earlier.  Nor the updated Occupational Therapy report.  Nor some supplementary information from the dietician.  There’d been “a plethora of emails this morning about various documents, but then I got recall statements so I didn’t open them”.

Counsel for the applicant local authority said that he wanted to address the judge on the preliminary fact-finding component of the hearing.  There’s a problem, he said,  because “some of the local authority witnesses are now no longer in the employment of the local authority”: two have left; another is on long-term sick leave.  The local authority no longer proposes to rely on the evidence of one witness, and is also no longer pursuing the allegation that Ms X did not follow advice regarding the importance of P wearing a back brace, “so the absence of that witness to be cross-examined won’t present any difficulties”.

The judge said that it was necessary, first of all, “to decide whether there needs to be a fact-finding hearing at all.  If people who’ve left the local authority are needed to give evidence, we can find out where they are and get them in. It will cause a delay, but it will mean that P’s Article 6 rights [right to a fair trial] are maintained. If it’s necessary to make findings of fact, we’ll get on and do that.  If not, we’ll get on with deciding where this young woman should live”.  

Before proceeding, though, the judge adjourned the case for 30 minutes (which actually extended to nearly 45 minutes) to give himself time to read the missing documents, and to give Ms X and her counsel the time to have “a proper chat”, given that this hadn’t been possible previously in person and with an interpreter present.

On reconvening at 12.40, we turned to submissions proper, with a key focus on the question of whether or not a fact-finding exercise was needed.

Counsel for the applicant local authority: Lee Parkhill

Lee Parkhill, counsel for the applicant local authority, began by saying that there was now agreement between the parties (as there had not been at the pre-trial hearing I’d observed) that there was no lawful basis for removing P from her mother’s care in December 2020.  

The local authority’s action in removing P from her mother’s care was, he said, in breach of P’s Article 8 rights, because it interfered with her private and family life, and in breach of P’s Article 5 rights by unlawfully depriving her of her liberty.  

There remained a difference between the parties as to how long this unlawful breach of P’s rights continued, with the local authority claiming it ended on 18th December 2020 when this application was lodged, and others saying it continued until 13th January 2021 when a standard authorisation was issued. 

In any case, it was obvious that the now-accepted fact that P had been unlawfully removed from her mother did not mean that she would be returned forthwith.

Counsel then said that there was now no need for a preliminary fact-finding exercise.  There seemed to be three (inter-related) strands of argument in support of this claim.

First, a ‘fact-finding’ exercise was no longer needed in relation to some of the disputed ‘facts’ alleged against Ms X, because they were no longer being submitted as evidence by the local authority.  In some cases, this is because the social worker who had enquired into them had found insufficient evidence to sustain them (e.g., the physical abuse allegations).  In other cases, it’s because the local authority – despite apparently still holding them as ‘facts’ – is not able to argue for them as ‘facts’ in court because members of staff are not available (due to having left the local authority or being on leave) to give evidence and be cross-examined.  

Second, the applicant questioned whether a time-consuming fact-finding hearing was necessary or proportionate, relying on the “leading authority”, Re AG [2015] EWCOP 78.  This concerns an unsuccessful appeal, by P’s mother (obviously this is a different P and a different mother), against what she said was the court’s erroneous failure to conduct a fact-finding hearing into the matters that triggered the proceedings.  The background was that P lived at home, and allegations had been made that P had been abused physically and emotionally by her mother – following which the court made orders that it was in P’s best interests to move into, and then to remain in, a supported living placement.  Sir James Munby dismissed the appeal, quoting another judge in another case, saying:

“… it does not follow, in my judgment, that the proceedings must be dismissed simply because the factual basis upon which the local authority instituted them turns out to be mistaken, or because it cannot be established on the balance of probabilities.  What matters (assuming always that mental incapacity is made out) is which outcome will be in [P’s] best interestsThere will plainly be cases which are very fact specific. There will be others in which the principal concern is the future, and the relative suitability of the plans which each party can put forward for both the short and the long-term care of the mentally incapable adult.”  (Wall, J para.18  in Re S (Adult’s Lack of Capacity: Care and Residence) [2003] EWHC 1909 (Fam)).  

The gist of the local authority’s argument, drawing on Re AG, was that, whether or not the allegations against Ms X are true, and irrespective of the fact that P was unlawfully removed from Ms X’s care in the first place, what matters now is, pragmatically, to determine where it is in P’s best interests to live and receive care.  A lengthy and costly fact-finding exercise concerning historic events is disproportionate to that goal.

In fact – and this is the third part of the argument advanced by the local authority –  it’s only necessary to look at the evidence from the Occupational Therapist to make a determination as to P’s best interests.  That report reveals that Ms X’s home is so wholly unsuitable for P that it alone can determine the issue.  The property is small.  A ground floor living room has been converted to a bedroom and there is a downstairs bathroom with a small bath. But access to this bathroom is via a narrow galley kitchen (53cm wide).  Before P was moved into residential care, family members were carrying P through the galley kitchen (at risk of scalding if hot liquids or steaming pans were on the stove) and lifting her in and out of the bath.  There are no hoists.  There is an 11inch threshold at the front of the property with no ramp access. P is lifted in her wheelchair over the threshold, with risks of falls.  

As the judge pointed out, “there are many cases where properties aren’t suitable, but the problem here is that this is privately rented and the landlord won’t have adjustments put in place.  He, or she, just refuses to carry out, or to allow to be carried out, adaptations that could otherwise be done”.

Counsel for the local authority confirmed that this was the case.  The landlord will not grant permission to install a lift, hoists, or a level access shower 

Judge: Does the court have any power to compel him?

Parkhill: No.

Judge: Does the mother as tenant have power to compel him?

Parkhill: No.

Judge: And while that might seem completely unreasonable, what can I do?

Parkhill: There is nothing the court can do.

Ms X had acknowledged in her statement (said Lee Parkhill) that the situation of her housing isn’t likely to change in the foreseeable future.

She has made efforts to find somewhere more suitable, but without success. This is not to criticise her – there is a limited supply of social housing and suitably adapted accommodation.  So, the key issue in this case is the relative suitability of two options.  [1] A care home fully able to cater for her physical and care needs, versus  [2] A property that Occupational Therapists say is entirely unsuitable and has risks.  And we say on that basis that the court can conclude that it is in P’s best interests to live in the care home.  Of course, it’s important for P’s relationship with her family to be maintained and there are proposals for that.  We submit that the evidence from Occupational Therapy is of such weight as to allow the court to determine the issue without reference to findings of fact that would be disproportionate in the circumstances.” (Counsel for the local authority)

Counsel for P’s Mother, Ms X: Jake Rylatt

There were some Heath-Robinson moments as Jake Rylatt, the only barrister physically present in the courtroom, attempted to create a make-shift lectern or reading stand to support his laptop, so that he’d be able to read from his screen while standing to address the judge.  After a failed attempt to balance his laptop on an upright ring-binder, the judge suggested a cardboard box (that worked!) and he began his submission.

He said he was “grateful for the concession regarding the removal of P from her family home” (i.e. the local authority had now conceded that what they’d done was unlawful) but wanted to “seek clarity” on one matter.  Did the local authority also accept that “my client’s Article 8 rights were also engaged and violated in removing her daughter from her care?”  “Yes,” said Lee Parkhill (who seemed to think he’d already said that, though I don’t think he had).   The judge said:  “On my reading of the papers, I agree with you. It wasn’t lawful, full stop.”

In his (written) position statement, counsel for P’s mother had raised concerns about the adequacy of a fact-finding hearing given that only one of the social workers was available to give oral evidence – and two of those who had “provided the bulk of [the local authority’s] narrative evidence” were not available for cross-examination.  Although a supervisory social worker was able to comment on the analysis of her colleagues, she could not report on the basis of any first-hand experience.

Although counsel for the local authority and for the Official Solicitor were now saying that no fact-finding exercise was necessary, the judge was obviously still considering this question and asked counsel for P’s mother whether he wanted to seek an adjournment to enable the relevant witnesses to be called before the court.  

The reason why I ask is because there were three people to give primary evidence as part of the fact-finding exercise.  Two have left the local authority and one is ill and returning on a gradual basis.  But those who’ve left the local authority haven’t fallen off the edge of the earth.  They’re probably still out there somewhere, probably still working in social care, and we could find them.  And then you have the opportunity to question the person who said it, who did it, rather than a person in a supervisory role.” (Judge)

Jake Rylatt said that, given the length of time that his client had been deprived of her daughter, he wanted to proceed without waiting for further witnesses to be found.  He pointed out that some of the allegations against his client had now been dropped (e.g. Ms X’s alleged failure to use the spinal brace) or could not be substantiated by the local authority (e.g. the claims of abuse or aggression).  Although his client had been accused of not providing her daughter with dental appointments, it was clear that the local authority has also had difficulties “in obtaining services from dental experts”. 

The judge said:

There are allegations made about your client and the suitability of the care she provided for her daughter.  If the local authority wants me to take those into account, then they have to prove them. Your client says they’re not true or it didn’t happen like that.  If these are not found to be facts, then they cannot be part of the case.”

The  judge quoted from the decision in Re AG:

I bear in mind, however, that those allegations … are strongly denied by [P’s mother] and, applying a normal approach to the forensic fact finding enquiry, in the absence of the specific findings I do not hold them in the background as it were by way of a suspicion lurking over [P’s mother].”

Counsel for Ms X accepted this position, saying, “So the local authority needs to decide whether to pursue these allegations or not – and, if not, then tear up the Scott Schedule and proceed without this sword of Damocles hanging over my client”. 

He then addressed the question as to whether the unsuitability of the family home is such as to be determinative of the question of P’s best interests, which is what both the local authority and the Official Solicitor claim.  He made three key points.

  1.  The family has already found ways of addressing some of the concerns raised by the occupational therapist via various “practical work-arounds”.   For example, they no longer carry P through the kitchen to the bathroom, but wash her on the settee, thereby obviating concerns about scalding risks in the kitchen and lifting problems in the bathroom.
  2. Ms X accepts that it’s not the most suitable property for her daughter, but says that the local authority and Official Solicitor are “striving for perfection in an imperfect world”.  Counsel cited Peter Jackson J in A and B (Court of Protection: Delay and Costs) [2014] EWCOP 48, who said that “the search for the ideal solution” can lead to “decent but imperfect outcomes being rejected”.  People with mental capacity do not expect perfect solutions in life, and the requirement in Section 1(5) of the Mental Capacity Act 2005 that “An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.” calls for a sensible decision, not the pursuit of perfection.” (para. 14, emphasis added)
  3. The suitability of the family home is not a factor of “magnetic importance” (in the sense in which Munby J used it in ITW v Z and M [2009] EWHC 2525 (Fam)) but just one issue to be factored in to the overall best interests analysis the court has to conduct. It would be an inappropriate exercise of the court’s case management powers to, in effect, summarily dispose of the case on the basis of but one factor in the best interests analysis.

Then the hearing adjourned for lunch.

I was back in court at the predetermined time, but the judge was not yet present and counsel were catching up with each other on their current positions and planning what to say to the judge.  The big news relayed by counsel for the local authority is “we have found [the occupational therapist] – she’s left us but we’ve tracked her down. She needs to have put to her the work-arounds Ms X is proposing.”  There was also some discussion about the date on which the unlawful deprivation of P’s liberty could be said to have lapsed, with counsel reading aloud from “the Blue Book” and Lee Parkhill pointing out that 4B MCA permits depriving P of her liberty pending a decision from the court, if the deprivation of liberty is in order to carry out a “vital act” (“A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P’s condition”, 4B MCA).  But (said Lee Parkhill) “it only arises once the application has been made, so it can’t assist us before the 18th, but does afterwards”.  (When I sent some tweets about this exchange, to check my understanding of it, barrister Victoria Butler Cole tweeted back, “4B is often the last refuge of the desperate” (quoted with permission)).

When the judge appeared fifteen minutes later,  Lee Parkhill reported the availability of the occupational therapist to the judge, who offered to issue a witness summons “if it would assist” – but was assured this wasn’t necessary.

Lee Parkhill also made clear that the position of the local authority remained that the evidence from occupational therapy as to the entirely unsuitable nature of the family home was sufficient in and of itself to make a best interests decision, and hence there was no need to engage in a fact-finding exercise about the allegations against Ms X.  “However, if the court is of the view that the matter cannot be resolved solely by reference to the occupational therapy evidence, then we would want to proceed to findings of fact”. (I took this to mean that if the court made the decision that it was in P’s best interests to return home based on the evidence before the court from the occupational therapist, that then the local authority would resuscitate the allegations against Ms X to try to prevent P’s return home.)

The judge summarised his understanding of the local authority’s position (but made clear this was not necessarily his own position):

I think your case is this.  We don’t need to look at what has been alleged historically because we can take one look at the evidence from the occupational therapists and that’s it! The evidence is such that this woman cannot live with her family.” (Judge)

Counsel for P (via the Official Solicitor): Pravin Fernando

The Official Solicitor’s position (on behalf of P’s best interests) was that it would be appropriate to “consider the significance of the evidence from occupational therapy before we go on to consider it as part of a bigger best interests trail.

What the local authority is saying – and the Official Solicitor’s position – is that the occupational therapy evidence is of such significance that in no conceivable way could you determine that it’s in P’s best interests to go home. That inevitably requires some evidence from the occupational therapist before we embark on anything further.” (Counsel for P)

He then read out parts of the three occupational therapy reports, emphasising the words “wholly inappropriate”, the term used as a description of the property – though there was some doubt about whether the first of the three reports related to the current property or a previous property (“Ms X’s evidence is that she moved to her current address on 11th February 2021, but she’s accepted that she meant 2020”). 

The recommended adaptations include ramps, conversion of the bathroom into a wet room, installation of a lift, hoists and more.  There is some concern that the layout of the house (if it is the current and not the previous house) “would not allow for appropriate adaptations even if permission were obtained”. 

The difficulty with Mr Rylatt’s submission is that it’s not an aspect of the home that’s unsuitable, it’s the entirety of the property.  It’s unfair to suggest that anyone is ‘striving for perfection’.  You are being invited to place P in a home environment which is ‘wholly inappropriate’ and will place her at risk of harm.  These factors are of such significance that I don’t think there’s anything in the mix that could be said to countenance that.” (Counsel for P)

Counsel accepted that there might be “more nuanced” situations where less-than-perfect accommodation might be sanctioned (for example because of the significance of family life), “but here we have a property that’s ‘wholly inappropriate’ from the very moment of access all the way through. … So there are no circumstances [in which] it would be appropriate to put P back into that situation, knowing the risks that we do now know.  I can’t conceive of that situation.” (Counsel for P) 

The judge commented: “You may be right. I might hear evidence from the occupational therapists, and Mr Rylatt will examine them with his usual skill, and he might get absolutely nowhere…. Mr Rylatt may fail miserably. But he wants the opportunity to put whatever he wants to say.  He’s saying it’s not perfection, but it’s good enough, and you’re saying it’s nowhere near perfection – it’s wholly inadequate.”

The evidence is so compelling,” said counsel for the local authority, “that it doesn’t really matter what you hear. Unless Mr Rylatt turns the occupational therapy evidence on its head and says that black is white and green is purple.

There was an agreement between the parties that (as Lee Parkhill put it) “it would seem sensible to hear from the occupational therapist first.  It may well be that after the occupational therapist’s evidence, the court considers that it can reach a view”.

And so, it was agreed that the occupational therapist they’d “tracked down” over lunch would be on the witness stand the following day.

The judge said he would be available to the parties if they needed him before tomorrow’s hearing: “Well-being doesn’t apply in the Lopez household, so I will be at my desk late into the evening. Contact me if you need me, but not after 2.00am.”

Just before the judge rose, Jake Rylatt asked, on behalf of his client, whether her partner could also be allowed into court. Oddly, since I was in court as a public observer (meaning, I believe, that there would need to be special reasons to exclude other members of the public), this wasn’t immediately granted, and the judge indicated that an application would need to be made.

DAY TWO (26th October 2021)

Getting started 

It didn’t seem to have been at the forefront of anyone’s mind that, since I had been admitted as an observer and had watched the whole of the previous day, the hearing was obviously being held in public and not in private.  

This issue now came to the fore because I had tweeted about the case, and suggested that occupational therapists might want to watch today’s hearing, since one of their number was giving evidence.  Two occupational therapists had asked to observe the hearing – and so too had Ms X’s partner.

And so on the second day of the hearing it came to light that the Remote Hearings Order (declaring that the hearing is private) had not been displaced by the judge’s re-application of Practice Direction 4C, and the issuing of a transparency order.  But as the lawyers agreed, “nobody wants to say that this hearing is private – especially as Professor Kitzinger was here all of yesterday”.  Well, quite so.  And I’d also already observed the pre-trial review, for which a transparency order should also have been prepared (and was not).

I don’t mean to single out the two judges or these particular barristers for criticism here.  I only ever receive transparency orders for about half of the hearings I observe.  This situation is so common that I have largely stopped commenting on it, and I no longer frantically email clerks and lawyers asking for the transparency order.  I believe that it is the responsibility of the court to serve their injunctions on me, and not my job to pursue them if they fail to do so.  

In any case, a ‘standard’ transparency order was hastily agreed and explained (nothing that risks identifying P, or her family, where they live etc may be reported) so that the two occupational therapists who wanted to observe could be admitted. 

On enquiry from Jake Rylatt about admitting his client’s partner to the (physical) courtroom, the judge said “it follows as night follows day that now I’ve made the hearing public, he can enter the court”.  Court staff rearranged the socially-distanced seating so that the partner could sit next to Ms X, on the grounds that they “live in the same household” – and there was some joke I didn’t quite hear in its entirely about sitting “in the naughty corner”.  

We were told the transparency order would be emailed to us. It wasn’t – and I still don’t have it.

There was then a lot of faffing while staff tried to admit the witness to the hearing.  She says she’s in the lobby but nobody’s admitting her.  Staff say there’s nobody in the lobby.  (“Teams is better, I promise you”, said the judge.). There’s a discussion about asking the witness to come into the physical courtroom (but nobody is sure where she is, or how long that will take) or about closing down CVP and transferring the hearing to Teams.  We all get sent a Teams link. “Still no joy” says Lee Parkhill, as the witness tells him she’s getting a “sorry we can’t connect you” message. And then she’s in!  

We start the hearing proper at 11.38am – and I’m protective enough of P and her family to send the other two observers a quick note summarising what I assume the transparency order says about what they can and cannot say publicly.

Witness evidence – occupational therapist

The occupational therapist who’s been parachuted in at short notice is poised and confident.  She affirms that she’ll tell the truth and nothing but the truth and ‘adopts’ the report she wrote back in June 2021 (i.e. confirms that the document before the court is the one she wrote and that it’s correct to the best of her knowledge and belief).

Lee Parkhill takes her through evidence in chief.  He asks her to look at the plan of the house where P lives and confirm that it’s accurate: she balks at confirming the details of scale and measurement but confirms that the layout is correct.

She’s asked about the entry into the home and refers to a 28cm step, which several of us (I think) type into google to confirm that this is indeed the 11-inch step referred to earlier.  There’s a detailed discussion about the length of ramp needed for a step of that height given recommendations on ramp gradients.  “It’s basic maths,” says the judge: “imagine the height of the step as the shortest side of the triangle so the longer the ramp is, the less the gradient will be, and the shorter the ramp the higher the gradient”. 

If, like me, the basic maths eludes you, there’s a wheelchair ramp length calculator online, which tells me that an 11-inch rise height with a 1:12 gradient (i.e. it rises 1 inch for every 12 inches of distance covered) will mean an 11-foot (132-inch) ramp.  I picked 1:12 as the gradient because that’s what the occupational therapist witness said was needed (“though a more acceptable ramp would be 1:15”)[2]

The problem with a 132-inch ramp, says the witness, is that the front door of the property opens on to the road, and a ramp this length would extend into the road, which would not be safe.

The occupational therapist says that rear access is also problematic due to a 16cm (6-inch) step down from the kitchen to an outside courtyard.  Carrying P in her wheelchair through the kitchen and over the step is “not advisable”. 

In our chat group, the two occupational therapists watching the hearing with me message their agreement with what the witness is saying.  One tells me it’s a very large and heavy wheelchair and to google “moulded tilt and space wheelchair” to get an impression of what it’s like. It’s huge.  “Leans back far” and “Has large turning space”, she tells me.  

The witness continued to document the problems. P’s bed (“a child’s character bed”) is too low to the floor for personal care.  (“She needs a profiling bed” messages one of the observing occupational therapists.)

The witness reports that P weighs around 28.8 kilos, which is in excess of the recommended weight limits for carers to lift (especially women).  There’s a “high risk of injury” – most likely to the person doing the lifting.  It would be preferable to “mechanise the whole of the transfer”, she says, and explains how a ceiling track hoist would work.  My fellow observers agree.

Under cross examination from Jake Rylatt (for P’s mother), the witness is critical of his client’s decision to avoid the hazards of kitchen and bathroom by washing her daughter on the sofa.  “Accessing a suitable washing facility is to do with privacy and dignity,” she said: “I would always try to ensure privacy in a room that isn’t a public room such as a lounge”. 

The judge intervened to explain to the witness his understanding that bathing P on the sofa “is not ideal”, but that it does at least circumvent the problems the witness had identified with carrying P through the kitchen, and with using the bathroom.  He asked her to “put that to one side” and focus on  “the other manoeuvres you don’t like”: the front door access, the move from wheelchair to bed and back.  “I think it’s time to confess that I’m married to an ex-nurse – an ex-nurse who worked on a geriatric ward,” he says – and then asks about whether or not P has involuntary movements which cause risks when lifting her (yes) and whether she can “assist” the lift (no). 

Somehow, despite the judge’s instruction to “put to one side” the risks associated with carrying P through the kitchen (since the plan was to wash her on the sofa). the witness brings this up again.  The wheelchair is 62cm wide.  The width of the kitchen at its narrowest point is 52cm (“what’s that in feet and inches?” asks the judge).  

So, says the witness, there’s a high risk of accidental harm to P, especially if something is cooking on the stove.  “Is my client really going to try and carry through P when the stove is on?” asks Jake Rylatt, incredulously.  “I shouldn’t think so,” said the witness. “I’m not sure culturally how they prepare their food, but I did observe a large boiling pot on the stove – chicken or something”.  

But there’s no physical risk to P of receiving personal care on the sofa or in bed?”, he asked.  “No”.

Counsel then asked whether, if the landlord were to give permission, and if the property were structurally suitable for adaptations, grant funding would be available to make those adaptations.

The judge intervenes to say that this is “theoretical”, surely, since the landlord has not given permission.  

Jake Rylatt accepts this, but pursues the matter, and establishes that – in the hypothetical scenario he’s positing –  there could be funding, and some adaptations could reasonably be made.  

Counsel for the Official Solicitor wanted to know why these questions were being asked: was it “realistic” to think any of the adaptations could be made?   

We observers were wondering the same thing. “Why are they discussing this if the private landlord will refuse these suggestions anyway?”, messaged one of the observers.  

The judge reflected ruefully that “it’s possible to achieve all kinds of things to put in the adaptations that people with disabilities need, but a landlord doesn’t get the funding to take them away at the end” – which I took as an effort to display understanding as to why the landlord had declined any adaptations

And then the court rose for lunch.

“The consternation of my colleagues”

As counsel returned to the platform after lunch (and before the judge re-entered), it was obvious to observers that there was a problem. 

The lawyers were talking about the possibility of adjourning the hearing.  

There was talk of “partial information, lurking in the background” – information, as it turned out, that Jake Rylatt had been aware of, but had not disclosed to the court until the lunch break, when he had sent a document to the judge, copying in the other lawyers.  

I think this should properly have been raised with us at the start of the day and I am extremely disappointed that it wasn’t,” said counsel for the Official Solicitor.

The lawyers’ tense exchange was interrupted by the clerk announcing the judge’s entrance. 

Jake Rylatt addressed the judge: 

Rylatt: You will see the consternation of my colleagues and it relates to the document you were sent over lunch.  I need to explain the circumstances under which this document is before the court.

Judge:   Yes, I think you do.

Rylatt:   It was handed up without agreement from the other advocates and for that I am deeply apologetic.

Judge:    Did you know about this before lunch?

Rylatt:    I did your honour.  I want to explain the circumstances.  The letter is dated yesterday. My client sought it after court yesterday and I’d discussed it with my client but had no instructions to disclose it.

Judge:    I specifically asked you if your questions were hypotheticals. You asked them as hypotheticals.

Rylatt:   I presented my questions as hypotheticals. I discussed this with my client as soon as I could in the lunch break and got permission to disclose. I had no intention to mislead the court or members of the bar. I can only hold both my hands up and say my deepest apologies.

Judge:    It’s unfortunate that you put a hypothetical case. But it wasn’t hypothetical. I specifically asked, you see, if it was a hypothetical.  This document says the landlord will allow the very things we’ve been speaking about.

It became apparent from Jake Rylatt’s account that, after court yesterday, P’s mother and her partner had gone to the estate agent responsible for arranging their house rental and asked if the landlord would reconsider his position, and permit some adaptations to be made to the house.  The estate agent had said they’d consult with the landlord and sent a letter.  Counsel for P’s mother had seen that letter by the time the hearing started today, but did not reveal it to the other advocates. It seems that he then sent it to the judge at lunchtime, without the knowledge or consent of the other advocates.   All this is, I am told, counter to the expected standard of behaviour of barristers.  I’d certainly never witnessed anything like this before over the course of observing more than 240 Court of Protection hearings.  

 “It’s put me in a difficult position, hasn’t it”, said the judge.  He then paused the hearing to release the witness, asking her to remain available since she might be called back.

As I understood it, Jake Rylatt’s suggested way forward, given this “difficult position”, was for the judge to “unsee” the letter, and to continue with the hearing, making a decision without reference to the possibility of the landlord’s agreement to (some of) the proposed adaptations.

This was not an acceptable solution for anyone else.

 “I’m confused as to where this leads us.  The whole point of Mr Rylatt asking these questions of the occupational therapist was to see if the possibility of these adaptations being done affected the best interests analysis.  So I don’t see how we can now ignore the tantalising possibility of these adaptations purportedly being done, and that this has been the case from the beginning of the hearing this morning.” (Lee Parkhill, Counsel for the local authority)

I asked what can I do about adaptations to the property and you [Lee Parkhill] said I can’t do anything. It’s a private landlord. It’s not as if it’s a public authority. So I’m faced with the property as it currently is. If on the other hand the landlord say he can do at least some of the adaptations, this makes the property so much more amenable that it supports Mr Rylatt’s case – and ignoring that possibility will make my decision a complete and utter waste of time. … How can I do my duty to P to make a decision in her best interests if I don’t look at this.  If it went to the Court of Appeal, they’d think I’d lost my marbles.  … I spend my life making decisions for those who are under 18 and those in the Court of Protection.  Strict rules of civil litigation don’t apply because I want to do right by the people who are before me.  If that’s right, it should be looked at, because it might change the best interests analysis. I’m pretty sure the Official Solicitor would say it’s better to live with your family if you can, and it’s safe.  I can’t do the mental gymnastics of seeing it and forgetting it because it’s possibly so fundamental to the case. It’s got to be explored, hasn’t it.” (Judge) 

Counsel for P via the Official Solicitor was clearly extremely frustrated with the way this information had emerged.  At times he was shaking his head in apparent disbelief at what he was hearing.  

I am exceptionally disappointed that on the second day of a 4-day hearing you are receiving information that is fundamental to the issue we have to decide. The court cannot ‘un-know’ it.  Knowing this information but not knowing the extent of it is completely inappropriate.  I am somewhat disappointed that questions were asked on a hypothetical basis when they were not hypothetical and that information was not shared with the advocates. […]. I am somewhat flabbergasted that we are in this situation.  If the funding arrangements in this case were different, we would be seriously thinking of making a costs application.” (Pravin Fernando, counsel for P)

The judge was admirably calm and even-tempered, I thought, under the circumstances. He pointed out that he (the judge) was not raising his voice. He asserted his appreciation of Mr Rylatt as an advocate in his court.  He attempted to pour water on the flames.  “None of you are advocates that would try to ambush the other.  You are all held in the highest possible regard”. 

The way forward, he said, was to get information about what adaptations it might now be possible to make to the family home, and to explore the possibility of P living at home with her mother.  “But it’s not going to be explored this afternoon, is it.  I can’t draw up a balance sheet of pros and cons, saying the cons might not be cons, I don’t know”.    

Arranging another time for the hearing is likely to be challenging. The judge thought it unlikely to be possible before February 2022. 

The judge then asked for the occupational therapist witness to return to court and he thanked her for “answering the questions in a way that I was able to understand them and in a way that the mother and her partner were able to understand them”. She looked delighted to receive this feedback and asked “Could I make a little suggestion about the height of the bed”.  The judge declined, saying “We might be looking at a lot more than the bed”, and ended the hearing.  

Final reflections

I’m still struggling to process what I have witnessed.

I’m not a lawyer and I’ve learnt a lot about legal practice in this hearing. I didn’t know about ‘fact-finding’ hearings, I didn’t know a “Blue Book” existed or what it’s for. I’d never read Re AG. And I now know more than I did about the expectations for how advocates should behave in relation to their colleagues in court.

I’m not an occupational therapist or a wheelchair user. I learnt a lot from the detailed discussion of ramps and other adaptations about the skill and care that goes into making accessible space. Thank you to the occupational therapists who joined me on the second day of the hearing, and shared their expertise with me.

At the heart of this hearing is the question of whether P can live with her mother, who loves her and wants to care for her. Attempts to elicit P’s wishes and feelings have been unsuccessful, but the social worker has said that “having observed the loving and affectionate relationship that [P] has with her family and that she has been cared for by them throughout her life, it is understood that [P] would wish to continue to stay with her family and be cared for by them“.

If we set aside – as the judge said we must, since they are unproved and disputed – the allegations against the mother as an inadequate carer, then the only barrier to reuniting mother and daughter is unsuitable housing. If P’s housing is inadequate to meet her needs arising from her disability that would seem to be a problem for the local authority to solve – if necessary by rehousing her, with her family. I understand that accessible social housing is in short supply, but there was no discussion (not a whisper!) in this hearing about what the local authority had done to look for suitable accommodation. It’s depressing to think that the local authority can take someone into care, simply because they can’t provide appropriate housing in the community for her needs.

But it seems as though, to some extent, the (undeniably) unsuitable nature of the housing provides the local authority with a convenient ‘cover’ for managing their deep distrust of Ms X as a carer for her daughter. The local authority has already indicated that in the event that the judge decides that a return home is in P’s best interests, they will revive their allegations against Ms X. She must feel as though she faces an impossible hurdle. Yes, they now admit that they took her daughter unlawfully, but that doesn’t mean they will let her return home. Yes, they’ve dropped (or at least suspended) their allegations against her as a bad mother, but that doesn’t mean her daughter can come home either. So now she’s desperately addressing the adjustments to the property, promising to accept carers in the home – and waiting, still, for a decision which is now postponed for months.

It’s a devastating situation.

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


[1] We are not allowed to audio-record hearings in the Court of Protection. I have done my best to accurately quote what was said in court, both in the pre-trial hearing and in the final hearing, but I do not have shorthand and my renditions are based on notes typed as fast as I could at the time.  The quotations are therefore unlikely to be verbatim.

[2] The online calculator says: “It is always best to choose the longest ramp possible for the available space as this will provide a lesser gradient which is safer and easier to access for wheelchairs… There are regulatory guidelines surrounding permanent ramps which suggest a 1:15 gradient e.g. 15 inches of length for every inch of rise. This however is not always practical or possible for portable ramps. In this case, most only achieve a 1:6 gradient because of space restrictions”. (That would mean a ramp of 6 feet – or 72 inches – for a rise of 11inches.)

Photo by Nick Fewings on Unsplash


A life-sustaining treatment decision from Hayden J in the Court of Appeal

By Jennifer O’Neill, 18th November 2021

On 1st November 2021, I received notification from Professor Celia Kitzinger that a case I had blogged about back in July 2021 was to be before the Court of Appeal the following day. 

It was a case concerning the withdrawal of life-sustaining treatment from AH, a woman in her 50s, that had remained at the forefront of my mind since attending the hearing back in July. 

Indeed, in the days before Professor Kitzinger had contacted me, I had been thinking of the family, aware that at the conclusion of the three-day hearing in August, Mr Justice Hayden had all but determined that the protected party, AH, should have life-sustaining treatment withdrawn by the end of October 2021, although the judgment to that effect was not handed down until 3rd September 2021 (Cambridge University Hospitals NHS Foundation Trust v AH & Ors (Serious Medical Treatment) [2021] EWCOP 51).

Having witnessed a loving and dedicated family rally to their mother/sister’s cause at the previous hearings, I was not surprised to learn that they had brought an appeal against Hayden J’s order that it will not be in AH’s best interests, and not lawful, for ventilatory treatment to continue after 31st October 2021.

I was able to attend part of the hearing the following day, having requested and been granted access, by the Civil Appeals Office. (This was not one of the hearings selected for live-streaming).   It was the first time I had attended a Court of Appeal hearing, and whilst the earlier Court of Protection hearings I had attended used the Microsoft Teams application, a different video conferencing platform was used by the CoA that I was not familiar with (Cloud Video Platform).  My initial concern, therefore, was in ensuring my video and microphone were off so as not to interrupt proceedings.   Once I was satisfied that I was ‘on mute’, I was able to focus on following the proceedings.  Although I was unable to observe proceedings in their entirety (I had to leave and return in the afternoon), my familiarity with the case meant that I was able to follow what was going on.  

Background

AH – a lady in her mid-50s has been described as “the most complex COVID patient in the world…”.  

She is the mother of four adult children and is a central figure in the lives of her extended family. 

In December 2020, AH was living at home with immediate family when she contracted COVID-19.  She was admitted to hospital but later self-discharged.  However, her condition deteriorated, and she was subsequently readmitted to hospital. It was at this point that AH expressed her wishes for ‘full escalation of treatment’, as is recorded on the hospital’s electronic ReSPECT form (Recommended Summary Plan for Emergency Care and Treatment).  As one of AH’s last capacitous expressions of her wishes, the ReSPECT form would become a crucial consideration when seeking to determine AH’s best interests in relation to continuation of life-sustaining treatment.  

At some point after the form was completed in January 2021, AH was intubated and ventilated in a neurological ICU unit.  While in ICU, AH sustained a an extreme inflammatory reaction in response to COVID-19 –  a highly dangerous phenomenon known as a ‘cytokine storm’ – and as a result she developed four separate, complexconditions:

  • Cerebral encephalopathy (damage to the cognitive area of the brain)
  • Brainstem encephalopathy (damage to the regulatory area of the brain)
  • Motor neuropathy [damage to the nerves that innervate muscle]
  • Necrotising myopathy [subsequent death of muscle tissue

Doctors believe that at least 90% of AH’s motor neurones may have been affected causing a loss of muscle function below the neck and limited movement of the diaphragm that necessitated ongoing ventilatory assistance. 

Her clinical condition had been reviewed by leading experts at both home and abroad and there was broad professional consensus that there is a very limited prospect of meaningful recovery from what was described as a Minimally Conscious State plus (MCS+).  This means that AH will likely remain fully dependent upon a ventilator to breathe, but can move her face, neck, and eyes to respond to ‘yes or no’ questions and can communicate through eye movements.  Ambiguity surrounds the question of any further improvement. 

At the previous hearing, Hayden J explored whether AH’s capacity may be impeded by fatigue associated with her ongoing ICU care and whether a period of ‘rest’ from the ventilator would enable her to gather the strength to communicate more meaningfully. It was, however, concluded that it was too dangerous to remove AH from the ventilator for these purposes.

Disagreement between Family and Medics at the hearing before Hayden J

The hearing centred upon the disagreement between the family and medics as to whether ventilation remained in AH’s best interests.  The question of best interests came down to a “delicate balance between the small pleasures AH can still enjoy versus the unimaginable burden of a living for months subject to the rigours of ICU care.  Death was considered by medics to be inevitable within six to nine months and, from their perspective, the issue was whether AH would have a planned and dignified death following removal of ventilation surrounded by family, or risk succumbing to overwhelming infection unexpectedly, and without family present and die a painful death if she were to continue on the current care pathway.  I have set out a summary of their respective positions below:

The Family.  The family argue that AH contracted a novel virus, SARS-CoV-2 which is not fully understood by medical science and so medics cannot say, with absolute certainty, that there is no possibility of further improvement in AH’s condition.  

They argue that AH has already made improvements not foreseen by the medical profession. Furthermore, the family argue that AH continues to experience enjoyment in life: she smiles at family, laughs when tickled and watches and responds to her favourite TV shows,  Eastenders and Mr Bean.  They argue that doctors should “exhaust all avenues” rather than “rushing to put her on end-of-life” (AH’s sister, Day 2 of Hearing).  

They also argued that these factors may be indicative of a higher level of consciousness than previously recognised by medics.  Furthermore, they assert suicide would be contrary to AH’s deep Muslim faith. Justice Hayden, however, explained that this too was reflected in English law and that the “compelling evidence” was that AH was now dying and the question before the court was not if but when she died; namely by withdrawal of ventilation or by inevitable overwhelming infection.

The Healthcare Professionals. Treating clinicians, and the medical experts, opposed the family’s view that there was limited knowledge of AH’s condition. They viewed the initial COVID-19 infection and its treatment as distinct from the resultant complications, including severe brain injury, in relation to which there is a widely-accepted prognosis. 

They therefore consider AH to be palliative (as there was general consensus that AH would not live beyond 12 months) and see life-sustaining treatment as burdensome, invasive and as a source of distress to AH.  

After the conclusion of the three-day hearing, Hayden J visited AH.  He subsequently handed down a judgment that life-sustaining treatment was no longer in AH’s best interests and that it should be withdrawn by the 31st October 2021.

THE COURT OF APPEAL

 The case was brought before the Court of Appeal by AH’s family, who were represented (pro bono) by Edward Devereux QC.  As in the Court of Protection, Nageena Khalique QC continued to act for AH, and Katie Gollop QCcontinued to represent Cambridge University Hospitals NHS Foundation Trust.  The hearing was before Sir Andrew McFarlane, Lord Justice Moylan and Sir Nicholas Patten. 

I noted that at the start of proceedings, the Justices explained that they did not know AH’s family, however, they had a sense of their perspective and involvement from Justice Hayden’s prior comments on the case and the assured the parties that they came to the case afresh.

The Court of Appeal Justices noted that Mr Devereux’s, whose expertise lie in Family Law, brought a fresh approach to this case.  

Mr Devereux explained that AH had improved and that some of the previously heard evidence suggests that AH could become fully conscious and emerge from the current ‘minimally conscious state (MCS) plus’.    AH’s level of engagement and communication was described by him as being “striking” and he noted that it brings home the level of communication of this formidable woman”.  Mr Devereux acknowledged that Hayden J had presided over the case with compassion and empathy, yet he respectfully challenged the ruling on five points: 

  1. That Hayden J gave insufficient consideration to AH’s earlier capacitous written statement that stated she wanted a full escalation of treatment (relating to the ReSPECT form she had ‘signed’ before ICU treatment commenced back in January). 
  2. That Hayden J failed to give sufficient weight to AH’s religious and cultural values with regards to life-sustaining treatment
  3. That Hayden J failed to weigh and balance the past and present wishes of AH in relation to the withdrawal of life sustaining treatment
  4. That Hayden J failed to properly balance the respective and relevant rights under European Convention of Human Rights – particularly with relation to the requirement to conduct proceedings fairly.
  5. That the visit Hayden J made to AH after the conclusion of the hearing, and before handing down his judgment, was procedurally inappropriate, and an inappropriate evidence-gathering activity.

The first four of these points are based on the claim that in declaring AH’s best interests as he did, the Judge erred in the exercise of his discretion.  The fifth point is a claim that the judge’s visit to AH was procedurally unsound (Civil Procedure Rules Part 52 rule 21(3) (b)).

The evidence and the appeal

At the earlier 3 day hearing, there was agreement between the parties that, since AH is unable to make a decision about ventilation for herself (s. 3, Mental Capacity Act (MCA) 2005), the decision must be made for her, considering all the relevant circumstances in accordance with section 4 (MCA) 2005, i.e. taking into account her past and present wishes and feelings, the beliefs and values likely to influence her decision if she had capacity, and the other factors she’d be likely to consider if she were able to do so.    Hayden J described the case as one of the most difficult of his 35-year career.  It has been clear throughout these proceedings that AH’s family is central to her world, the source of ongoing comfort and pleasure in her life.  Never before, he said, had he been asked to make a best interests decision about withdrawal of life-sustaining treatment for a patient who could still communicate and enjoy a degree of pleasure in life.  Therefore in approaching this most difficult of dilemmas, Hayden J sought to identify the “code by which [AH] lived her life” so as to understand what decision AH would make for herself in this situation if she were able to do so.  AH is described as a fiercely independent woman who is now fully dependent upon others; an extremely private woman whose privacy is now invaded on a daily basis; and a woman who has fought throughout her life, always retaining hope despite her struggles.  

I noted that the Court of Appeal Justices acknowledged that Hayden had found this case to be “challenging” on account of AH’s awareness, recalling that he had described AH’s moments of enjoyment as “pockets of joy on a scorched landscape” of pain and suffering.  Whilst they assured the court that they “come to this case fresh”, they made it clear from the outset that they agreed with medical evidence that AH’s current neurological condition was a consequence of COVID-19 infection and not an ongoing symptom of it. In this way, they sought to explain that AH’s neurological injury was not novel in the field of medical science, but that it could be compared to other patients who are in minimally conscious states (MCS) as the result of a traumatic car accident for example. Mr Devereux contested this view, arguing that there was a “tangible difference” between the evidence of Dr D (Expert witness) and that of Dr B (a consultant neurologist and treating physician) and Dr A (Consultant in Neuroscience and Trauma Intensive Care Medicine) at the earlier three-day hearing. 

Dr D felt there may be some prospect of improvement in AH’s cortical function but not enough to return to normal and that there was a risk that improvement could coincide with the onset of the painful nerve condition ‘trigeminal neuralgia’.  Dr B foresaw that if AH were to survive for several years, one might see some movement in fingers, toes …[but] I do not believe there is any prospect of meaningful power…based on the neurophysiology…the pathology of the nerve or the muscle…she is not going to be able to”.  Dr B also admitted that there are ways in which people can control their environment with a single muscle, but this was not something he would want, adding “but that [his perspective] doesnt matter”.  Whilst Dr A also said it was unlikely AH would come off the ventilator.  He explained that the phrenic nerve that supplies the diaphragm which has a major role in the mechanics of respiration) was unlikely to regain “significant function”. Overall, there was, despite Dr B’s evidence, broad consensus that continued ventilation was not in AH’s best interests as an exhausting and relentless process in a noisy ICU ward that was not conducive to rest and recuperation.

Mr Devereux then turned to address the grounds for appeal.   In relation to each of these grounds, the Trust considered the application to be “unmeritorious… with no real prospect of success”, saying that Hayden J’s judgment is “thoughtful, detailed [and] nuanced” and that “no relevant factor was left out of account or given insufficient consideration or weight”.  Although the family members had been unrepresented at the hearing before Hayden J: 

…. the points that they seek to raise in this appeal were amply and ably made by leading counsel instructed by the Official Solicitor.  At the conclusion of the evidence, the Official Solicitor opposed the application. As a result, when exercising his discretion, the Judge had the benefit of full written and oral argument as to the factors that it is now said were not properly taken into account…” (Katie Gollop QC)

It is well established that the Court of Appeal is slow to interfere with the exercise of a judges’ discretion and will not “disturb such an order unless the court making it had erred in principle or reached a conclusion that was plainly wrong”.  (Re: AB (Termination of Pregnancy) [2019] EWCA Civ 1215, [2019] I WLR 5597 King LJ).  

1. Failure to give sufficient consideration to the ReSPECT form

He argued that insufficient weight had been given to the ReSPECT form which was an indication of AH’s wishes for “full escalation” of treatment.  This was a capacitous decision, made by AH at a time when she knew she was infected with Covid-19.  Her decision then was that she wanted all steps to be taken to preserve her life.

In his judgment, Mr Justice Hayden concludes that he is “unable to extrapolate” from the ReSPECT form that AH “would have wished to remain connected to a ventilator”.  The form was completed when AH was ‘in extremis” and it “reflects an emergency response to crisis situation” (para. 14 of the judgment). (ReSPECT stands for “Recommended Summary Plan for Emergency Care and Treatment”).

The Trust’s position, represented by Katie Gollop QC, was that the form applied only to an emergency situation and so was no longer relevant. Indeed, Ms Gollop asserted that the trust, in considering that what a patient might want in an emergency would not necessarily apply in non-emergency circumstances – and to presume otherwise could, in itself, be a violation of human rights. 

In the Trust’s view, the judge did give the ReSPECT form sufficient consideration and this ground of appeal has “no reasonable prospect of success”. 

In my view, this issue of the ReSPECT form raises some important issues.  It highlights why there must be greater emphasis on having open discussions with patients so that they can make informed decisions in advance of situations arising in which they might lack the capacity to do so.  These are often uncomfortable considerations, however, in the daunting setting of the ICU, with fear and uncertainty, it is also a difficult time to discuss the possibility of ongoing care and the risk that they may not be able to come off the ventilator at a later stage. Nonetheless, if patients’ wishes are to be facilitated at a later stage, it is important that in some way, their longer-term wishes about ongoing support are gauged so as to help the families and courts should such dilemmas occur.

2. Failure to give weight AH’s religious and cultural beliefs

Mr Devereux second ground of appeal was that Hayden had failed to take into account the information provided by the family with regards to AH’s religious and cultural beliefs and that Hayden’s judgement was not reflective of the “cumulative” and “compelling” evidence provided by the family outlining what AH would want to happen in these circumstances.  

During the earlier hearings, we heard how AH enjoyed family holidays and liked to listen to relaxing jazz music which brought her a sense of ‘peace’ and calm.  As a practicing Muslim, AH also gained spiritual comfort from listening to recordings of prayers.  The family also explained that, on account of her strong faith and beliefs, she would be against any form of suicide: only Allah can take life away and the taking of one’s own life is wrong.   

There is evidence from the judgment that Hayden J full considered AH’s religious views (as presented to him by her family) but that these views did not lead him to the view that AH would have considered withdrawal of ventilation under her current circumstances (where the alternative is continued indefinite ventilation in ICU) as opposed to her values”. 

As he said in the judgment: 

 “Whilst I have identified AH’s religious and cultural views as integral to her character and personality, I am not prepared to infer that it would follow that those views would cause her to oppose withdrawal of ventilation in these circumstances. On these difficult end of life issues there are differing views within each of the major faiths, including within Islam. […]  The assumption that AH would have taken a particular theological position on her treatment plan solely because she is a Muslim, even an observant one, is not an assumption I am prepared to make. To do so risks subverting rather than protecting AH’s autonomy. I also note that there is a range of opinion, within this Muslim family, as to what is the right course to take”( para 93 judgment). 

In the Trust’s view, there is clear evidence that the judge appreciated AH’s life as a practicing and observant Muslim and that he weighed this up in exercising his discretion.  Likewise, in the Trust’s view, this grounds of appeal has no reasonable prospect of success.

3. Failure to Give Weight to AH’s Past and Present Wishes

The family argued at appeal that Hayden had failed to adequately weigh their evidence regarding AH’s past and present wishes against the medical evidence. 

The judge received and considered a great deal of evidence from AH’s family on day 2 of the final hearing before Hayden J.  

In my view, it was the evidence from youngest daughter M that was most striking.  M fiercely advocated for the mother, a moving testimony that was, at times, very difficult to listen to as it felt intrusive upon a family’s pain. M provided daily, intimate care for her mother.   M felt that some nurses were doing “the bare minimal” for her mum and were more focused upon machines than her mother – perhaps explaining AH’s distress when family were not there.   M explained that she did not see someone who was dying, rather she saw someone “nodding back [to her] … watching tv on the iPad… [someone who was] breathing” and that doctors are taking her away from us”.    She argued that doctors had told them she wouldn’t ever be able to do some of the things she was now able to now do – an argument reaffirmed by her siblings – and pleaded with Hayden J to let her have “whatever life she has [left]”.  Hayden J had vehemently denied any such criticism of the Trust, reminding the family that AH had not yet sustained a pressure sore or infection and that this was a testament to the standard of care she had received. 

The family has also described how AH would not have wanted to be in institutional care and this was something that Hayden J clearly gave deep consideration to. Doctors described the mechanical ventilation that AH was subject to as being akin forcibly running marathon each day, without rest.  AH, a lady who would never have wanted to be in residential care, was now in a form of institutional care in ICU, with little chance for rest, privacy and indeed dignity.  Medics explained that ICU treatment was so traumatic it often leaves survivors with ICU-related post-traumatic stress disorder (PTSD).   He also considered medical evidence that AH was distressed when her family were not there, perhaps implying this was because it was all too much.  He also noted that clinicians believed that as AH continues to ‘emerge’, her suffering will increase.  It was on this evidence, that the family say Hayden J focused in the hearing, rather than on their testimony that their mother would want to continue on for as long as she had left.  AH’s eldest daughter felt that her mother would “want us to do everything possible…to exhaust every possible avenue to get better”, however she later accepted that her mother was suffering.    AH’s sons and sister had also given powerful testimony. One son explained that doctors had said his mother would not make new memories, yet she recognised staff and even had a favourite nurse.  The collective family evidence portrayed AH as a fighter, a strong woman who had always faced adversity head-on in her life and who would equally fight this current form of adversity.  AH’s son said he’d asked his mum if she wanted to continue to which she responded she did.  Hayden J, however, said that the son was likely to be “last person in the world she’d tell” if she didn’t want to continue. He appeared to me to indicate that as an impartial party, he would be better placed to ask AH such a question at his visit.

In the Court of Appeal hearing, Mr Devereux pointed to a “disconnect” between Hayden J’s conclusions as to what AH would want for herself and the evidence he presents (in the judgment) for these conclusions. He said that Hayden J “ignored almost in its entirely the written evidence of the children and oral evidence as to what their mother would like”. He ran through the evidence in the witness statements and said, “when the judge comes to the conclusion as to what her wishes are there’s a disconnect from the evidential foundation and what he concludes and it’s very difficult I think – if not impossible – to see where he locates that fundamental conclusion”.  

4. Failure to properly balance the interference with AH’s ECHR rights

This ground of appeal was not much further developed in the hearing, but the key ECHR rights to which (the appellant argued) insufficient consideration has been given are AH’s Article 2 right to life, and her Article 8 right to respect for private life (which encompasses personal autonomy). 

5. Failure to conduct proceedings fairly and procedural errors in visiting AH

After the conclusion of the formal hearing and before publishing his judgment, Hayden J visited AH in hospital.  It was submitted by Counsel for the family that this meeting was an “evidence-gathering exercise” to establish what AH’s views were, and that the visit likely influenced his overall conclusions.  He further argued that it was wrong of Hayden J to privately seek to elicit the wishes of someone in AH’s position, where the ultimate question is one relating to continuation of life sustaining treatment.  The judge, said Mr Devereux, asked a leading question (“I think it may be that you want some peace”) and treated some (unexplicated) sign from AH as evidence that she wished her life to end: “The time has come to give AH the peace that I consider she both wants and is entitled to”, para. 107 of Hayden J’s judgment). Counsel for the family invited the court to conclude that it was procedurally unsound, unfair and inappropriate for the Judge to meet with AH and ask her what he did.

Further considerationwas given to Hayden J’s words that suggested that AH had indicated “she wanted peace”.  Peace, we heard, could be interpreted in various ways and so this statement lacked clarity.  Examples were given, such as that one might say “I will give you peace” as an indication that one is leaving a room, peace may be considered in its spiritual sense or it could be considered in the ultimate sense, as in death.  In the judgment, Hayden J says that “AH has also been able to derive peace from prayers from the Koran” (para. 72 of Hayden J’s judgment)

I had noted that at both the directions hearing and the conclusion of the three-day hearing that Hayden J had expressed his wishes to visit AH.  He explained that he often did this, and it allowed the protected person (P) to have an opportunity to have their voice heard.  AH’s family were equally anxious to ask that they be present at any such visit as they could communicate best with her and they wanted to ensure that Hayden J got the most out of the visit.  Upon the conclusion of evidence at the hearing, Hayden J had explained he would visit AH before giving his judgment. At that time, he also indicated to the eldest daughter – who was abroad – that she should return, perhaps indicating that in his mind a decision was already made. 

It is difficult to know how the Court of Appeal will view this stance. In explaining the manner in which the family’s legal team considered Hayden J to have erred in law, Mr Devereux cited the 1998 family law case of  Re KP (A Child) [2014] EWCA 554.  In Re KP, a 13-year-old girl had opposed a return to Malta under her father’s guardianship and the CAFCASS Officer had recommended that the judge meet with KP since the child was “feeling unheard”.  The meeting lasted over an hour and during this time, the judge asked a series of 87 questions, ultimately concluding that the child was very confused and did not object to the return to Malta on rational grounds. The Court of Appeal firmly indicated that judges should passively receive information and that if information was provided by a child, then the judge was duty bound to report that information back to all parties so that they might determine how such evidence should be interpreted.  In KP, the meeting had provided evidence which was pivotal in the judge’s evaluation of the case and was linked to causation.   The family argue that had Hayden J visit to AH was, “on the wrong side of the line” and sought to gather evidence which was not shared with all parties with adequate notice, rather than being a means of seeking to clarify her wishes.  They explained that had it been aimed at ascertaining AH’s wishes, there would have been greater planning and her family, who communicate best with her, would have been present.  

At the root of the problem it seems that there may be a lack of clarity as to why a judge would meet with P and how what P says is supposed to figure in the decision-making process.  Guidance from Mr Justice Charles in 2016 specifies that “If P wishes to meet with the Judge, it must first be determined what the purpose of such a meeting would serve and the court and the parties must be clear about that in the particular case.”  He also says that “Consideration should be given in advance to […] How should questions be drafted and posed to P to elicit P’s views, minimising leading questions?

Awaiting the judgment

Proceedings were concluded as the Court of Appeal justices left to consider their ruling on the case.  

From my perspective this has been a difficult case throughout the various hearings.  It is challenging to know what the right outcome is.  At the centre of proceedings is AH, and on all parties seek to act in her best interests.  

The case raises the issues that may lead to improvements being made:  such as through an enhanced ReSPECT form, heightened awareness of advance decisions to refuse treatment and improving guidelines for judicial visits to protected persons to ensure there are no procedural irregularities which may affect decision-making in these crucial cases. 

Jennifer O’Neill is a Lecturer in Anatomy at the University of Glasgow and visiting collaborator at European University Cyprus. 

Photo by Omar Flores on Unsplash

“Burdensome and futile” treatment and dignity compromised: Poor practice at a leading UK hospital

By Jenny Kitzinger, 17th November 2021

Court of Protection judgments can provide valuable insights into everyday care in ways that challenge poor practice and can be used to help improve person-centered care for the future. 

This is certainly true of last week’s publication of North West London Clinical Commissioning Group & GU [2021] EWCOP 59

The judgment is essential reading for everyone involved in treating patients with Prolonged Disorders of Consciousness [PDoC] or advising care providers about their legal responsibilities.

The case focuses on GU, a 70-year-old man in PDoC, cared for at the acknowledged ‘centre of excellence’, the Royal Hospital for Neuro-disability [RHN] in Putney, London. 

The RHN is one of the oldest and most respected centres in the world dedicated to looking after people with a range of neurological conditions and injuries. It has highly trained staff and impressive facilities for the initial assessment, rehabilitation and long-term care of a large cohort of severely brain injured individuals. The RHN also provides training for others and runs a series of interesting talks and conferences about PDoC. 

In this case, however, the RHN clearly failed to provide high-quality, patient centred care – and part of this Court of Protection judgment is dedicated to exploring why this happened and what lessons might be learned. 

At the heart of this case is the fact the GU was given medical treatment to keep him alive for 7 years in PDoC – although he had made it clear to family and friends in advance that this is not what he would want, and from at least four years after his injury, family members had tried to make this fact very clear to the RHN.

The judgment quotes GU’s views, as reported by family members. 

He told his sister, “if I do not have my mental facilities there is no reason for me to be here” (para. 32)

He said to his brother “ I would never forgive anyone who let me be like mum is now [with severe dementia]” (para. 30)

His ex-wife gave evidence that GU had spoken at length with her: 

we often had conversations about death, and he would always say that his greatest fear would to be in a vegetative state. He would make me promise to ‘pull the switch’…” (para.33)

Having seen these (and similar) statements about GU’s views from family and friends, the judge, Mr Justice Hayden, concluded:

GU left nobody in any doubt at all that he would not want to continue in the parlous circumstances in which he finds himself. His views have been communicated consistently, volubly and unambiguously…” (para. 29)

 “I was left in no doubt at all that he would have recoiled from his present circumstances. I emphasise that nobody, son, brother, friend, sister, wife had any ambivalence about what he would have wanted.” (para 36)

How then did it come about that, in spite of his wishes, GU was kept in this condition for so long? 

The judge was clearly very troubled by this question and had held a supplementary hearing precisely to try to understand what had happened (I wrote about that hearing here).

His conclusion was that the RHN (which had cared for GU since 2014) was guilty of “extraordinary delay” (para. 92) in addressing GU’s best interests, with the consequence that it had, for some time, subjected GU to treatment which was:

“…burdensome and futile and entirely contrary to what he would have wanted. His dignity was avoidably compromised. Even the most summary assessment of his best interests would have revealed this many years ago.” (para. 95)

This is an exceptionally long judgment (over 100 paragraphs). It covers both the initial hearing (10th June 2021) at which the judge ruled it was not in GU’s best interests to have Clinically Assisted Nutrition and Hydration continued (I wrote about that hearing here) and the supplementary hearing 15th July 2021) to allow those who had provided treatment to account for their actions (which I wrote about here). As well as addressing the specifics of GU’s clinical condition and evidence about his wishes it engages extensively with debates about human dignity in ways that will be useful for future hearings. Here, however, I want to highlight two sections concerning (a) the moral status of CANH; and (b) the “Lessons Learned” for organisations and professionals responsible for looking after patients like GU. 

Clinically Assisted Nutrition and Hydration – exploring diverse perspectives

The majority of GU’s family had concluded (long before this case reached court) that clinically-assisted nutrition and hydration was no longer in his best interests. Indeed, after the Re Y judgment back in 2018, GU’s brother (representing most of the family) had become particularly active in trying to lobby for a proper best interests review of this intervention.

However the patient’s eldest son was horrified at the thought of withdrawing CANH. He shares this reaction with many people facing similar situations for their loved ones. Our research shows that even those who eventually do support this course of action sometimes describe the idea of it as ‘barbaric’. (However, it should also be noted that follow-on research found that families report that, in the event, deaths after CANH withdrawal often seem calm and peaceful.) 

The judgment gives careful attention to the feelings expressed by GU’s eldest son, and quotes him extensively. According to this son, CANH should continue because: “When my father’s time is up, he will go, but on his own terms, not ours to decide”. For this son, access to food & water is a basic human right, a point vividly underlined when he referred to working in Africa where “you can see a child there walking for miles to get a glass of water and here, in the UK, we’d deny water to my dad?” (para. 24). 

The judgment also records that the son argued powerfully: 

“A vet would put a sick pet down quick and painless. Maybe he [my dad] did say to some people ‘If I’m ever like that, shoot me’ – but ok shoot him, don’t starve him.”

Mr Justice Hayden clearly respects this “human & visceral reaction” from GU’s son and highlights the son’s “deeply rooted & instinctive filial love”. He acknowledges that “in daily life, the consumption of food and drink frequently involves pleasure and conviviality. Not uncommonly it is an expression of love”.  The judge however states that it is:

 “a mistake to equate CANH with the consumption of food and drink in the ordinary sense… nutrition & hydration which is ‘clinically assisted’ is properly identified as ‘medical treatment’ (see: Airedale NHS Trust v Bland [1993] AC 789).” (para. 26)

Clinically-assisted nutrition & hydration can relieve symptoms or prolong or improve quality of life but:

“[CANH] may become burdensome or futile and serve only to extend life in its most vestigial sense, failing to achieve anything that might properly be identified as ‘quality of life’ for a patient in a prolonged disorder of consciousness.” (para. 26)

It can then be viewed as “protracting death” rather than extending life.

“To impose nutrition & hydration on those who would not wish to receive it…is to risk suborning autonomy and compromising human dignity.” (para. 27)

Criticisms of the hospital and lessons learned 

During the hearing the judge was at pains to make clear that ‘A’ (the patient’s eldest son) must not feel in any way responsible for the hospital’s failure to address his father’s best interests – that responsibility lay squarely with the hospital and the clinicians caring for his father. 

The judge was also perturbed by the hospital’s admission that perhaps their “ethos” made it hard to give proper consideration to a patient’s best interests in relation to CANHDuring the hearing, it also became clear that some of the problems existed at the very top of the organisation – especially in relation to addressing a patient’s best interests in the context of disagreements within families. 

The hospital was, the judge commented, “a long way behind the curve” in engaging with up-to-date legal and professional standards in this area.

In the judgment, Mr Justice Hayden was clear that the focus must always be on the patient’s wishes, values, beliefs and feelings (not the feelings of others). He said that family dissent:

 “should never stand in the way of an incapacitated patient’s best interests being properly identified…differing views [should be] considered in their totality &, where necessary, by a Judge. To do otherwise is to risk silencing the voice of the vulnerable individual at the centre of the process.” (para.4)

A unit’s ethos must not trump the law and clinical guidance. Distress from staff can be recognised but these factors “have no place at all in evaluating… best interests. Factoring these matters into the decision process is both poor practice and ethically misconceived.” (para. 100)

The judgment reiterates key points about timing and responsibility for the best interests decision-making process in relation to Clinically Assisted Nutrition and Hydration – all clearly laid out in the relevant professional guidance.

The judgment highlights the following points:

  • A proper assessment about CANH should have been carried out by the person “with overall responsibility for the patient’s care, as part of their clinical responsibility to ensure that treatment provided is in the patient’s best interests” (para. 98). This was not done.
  • It is the responsibility of clinicians (not of patients’ families) to initiate and pursue best interests discussions about CANH – this should never have been left up to the patient’s brother. The judgment makes clear that leaving family to raise the issue places them in “a highly invidious position” of having to press for the discontinuation of life-sustaining treatment for someone they love and this may mean the issue is never addressed at all (“many in E’s situation might have found themselves unable or unwilling to take this course. They should not have to do so” (para. 99).
  • The need for clinician-led regular review is underlined (just because CANH was in a patient’s best interests some years or months ago does not mean it still is) and Mr Justice Hayden highlights that best interests “requires to be kept in constant & unswerving focus” (para. 105) and not just limited to an annual event.
  • Where there is doubt or disagreement about a patient’s best interests and this cannot be resolved, treating teams and commissioners should not simply continue treatment by default because it is the ‘easiest’ option – they must refer the case to court in a timely manner. 
  • If the treating hospital is, for whatever reason, unable to bring an application to the court itself, it has a duty to “take timely & effective measures to bring the issue to the attention of the NHS commissioning body with overall responsibility for the patient” (para. 103).

This judgment includes ample evidence that GU’s physical care was “first class”- but also makes it starkly clear this is not the same as ethical, person-centred treatment.

Ways forward

The challenges the RHN faced, such as a family member or member of staff who is horrified by the thought of stopping CANH, will be familiar to anyone working in this field.

It is to be expected that some, or all, family members will at the very least be ambivalent about CANH-withdrawal, even if they are clear that their relative would not want to be kept alive in their current state. 

Similarly it is perhaps not surprising that those working in rehabilitation and care settings are often exceptionally committed to keeping hope alive for patients and may believe in the value of life under all circumstances. 

The point is that it is the patient’s beliefs and values, not those of family or staff, that should inform the best interests process – but the patient is, of course, unable to speak for themselves so it is easy for other people’s values to sometimes take precedence.  

Ways of addressing such routine challenges include:

  • strong organisational policies to ensure staff follow professional guidance and act according to the law, and know they will be supported by senior management in doing this 
  • clear lines of responsibility and communication to ensure well co-ordinated patient care, led by the responsible professionals
  • support for families which includes information about different care pathways and support to think through the patient’s likely wishes.
  • high-level staff training about decision-making, including the opportunity to tease out and reflect on their own biases, and know where to find decision-support tools to turn principles into practice
  • an organisational and MDT unswerving focus on the patient’s best interests (and willingness to refer to court where necessary). 

It is deeply disappointing that failures in best interests decision-making happened at a centre that is recognised internationally as a ‘centre of excellence’ in the field, and where, I know, there are many well informed and highly skilled staff, committed to the highest standard of care and passionate about delivering on the Mental Capacity Act 2005 and the latest professional guidelines. 

I think every centre looking after PDoC patients can learn from the mistakes made in this case. And I look forward to seeing how the Royal Hospital for Neuro-disability uses this opportunity to review and transform its organisational practices so that it can be a true ‘centre of excellence’ in all aspects of patient care in the future and help roll out best practice across England and Wales.

Additional Resources

Jenny Kitzinger is Professor of Communications Research at Cardiff School of Journalism, Media and Culture. She also co-directs (with Professor Celia Kitzinger) the Coma and Disorders of Consciousness Research Centre and runs online training for healthcare professionals about law and ethics. She tweets @JennyKitzinger

Photo by Pawel Czerwinski on Unsplash

C-section and anaesthesia: An unexpected unified decision

By Rebecca Brione, 16th November 2021

On 28th October this year, there was a first hearing of the case of a pregnant woman with schizo-affective disorder who wanted a vaginal birth (COP 13837502). The Trusts caring for her wanted to carry out a Caesarean section under general anaesthetic. The case was brought as an emergency hearing but in the end was not resolved that day, being adjourned to allow for more evidence to be heard on the woman’s capacity and to support any best interests decision. You can read Celia Kitzinger’s blog about the hearing and reflections from a first time observer.

When the hearing was re-listed, it turned out that it was going to be held in person only (albeit with witnesses able to dial in) at the Royal Courts of Justice. This obviously has the severe disadvantage of restricting observations to those who are able to be in London at short notice. In addition, the case was going to be heard by Mr Justice Holman, who had earlier this year made the much-commented-upon ruling that a pregnant agoraphobic woman could be restrained and taken to hospital against her will. It was therefore with some dread that I mounted the steps to the Royal Courts of Justice buildings for the first time. I was glad to have other observers alongside me, from the law firms Bolt Burdon and Kemp, and Irwin Mitchell, and I give my thanks to (ex)-colleagues at Birthrights for corralling strength in numbers!

In a relatively empty court room we were quite noticeable, even in our unobtrusive positions at the back. Mr Justice Holman asked right at the start whether we were members of the public and, on being told yes, said that we were “incredibly welcome”. He turned his attention almost immediately to making sure that we knew that there was a “transparency order in place” (although actually getting hold of the transparency order has been more challenging). He returned to check our understanding that we could not identify the woman at the centre of the case in any way periodically throughout the hearing.

The early minutes of the hearing were spent checking who would be present during the hearing.  Counsel for the woman at the centre of this case – via the Official Solicitor (OS) – Debra Powell QC, said that the woman, SM, predominantly referred to as “the mother” (because Mr Justice Holman felt it was “more human”) was “not feeling terribly well” and “currently does not wish to participate”. Mr Justice Holman made sure to check that she knew that she could if she did wish to, and that technology was in place should she change her mind in the course of the day. There was some back and forth about availability of witnesses. Whilst the consultant psychiatrist was ready and waiting to give evidence, it initially appeared that the consultant obstetrician would not be available until the afternoon due to clinic duties. Holman J commented that that was “terribly unfortunate” – that the case was “all really about the evidence” and could we “bend every reed to get” her there. Indeed, could it be made clear to her that “if she should say I can speak to you now for half an hour, we would instantly interpose her”. With moves underway to communicate this to the obstetrician, the hearing began.

Despite our welcome, Mr Justice Holman declined Counsel for the Trust’s (Conrad Hallin’s) suggestion to “briefly open” the case, getting straight into hearing evidence from the psychiatrist, Dr D, appearing by video-link. I am grateful for Celia Kitzinger’s blog which gave me sufficient background to feel comfortable with the facts – I might have struggled otherwise.

The Court heard first from the consultant psychiatrist, Dr D, who had treated SM on and off for a number of years. He recounted a complex history with multiple in-patient admissions and said that her “her mental state is highly fluctuant”, “especially when relapsing”. Counsel for the Official Solicitor asked about very recent evidence that SM’s mental state had deteriorated. The Court was told that SM’s mental state was “quite changeable on a day-to-day basis”, “better than in the community…but that doesn’t mean it’s not fluctuating”.  On being asked about psychotic ideas, Dr D said that “she’s not expressing ideas, but if you ask her about them they’re still there”. These included beliefs that her organs might be stolen if she had a C-section, which she had shared with other women on the ward, and the belief that “if the baby was taken from her the baby would die”. Dr D said, on questioning, that he considered these to be both “emotional statements” and “delusional beliefssaying “I do think she’s psychotic at the moment”. Counsel for the OS asked about possible trauma from SM’s previous pregnancy, with Dr D describing “a very complex pregnancy”involving intensive psychiatric care, attempted vaginal birth followed by C-section and a subsequent removal of the baby from SM – commenting this was “all potentially traumatic”.

Counsel for the OS then turned to Dr D’s views on the likely impact of mode of birth on SM. Dr D said that it was “hard to predict” the impact of mode of birth on SM’s mental state, saying “It would be the distress, I think, that would be the main factor”. He said that SM was now more accepting of a C-section for the baby’s health, and expressed that on the basis of her recent history “I think that she would struggle to tolerate monitoring [during vaginal birth] as well as the process itself”. In answering Counsel for the OS, and in response to clarificatory questions from Mr Justice Holman, Dr D said that he felt that a C-section under regional anaesthetic, “if that’s [possible] and safe” would be most beneficial for her, and noted that the idea of having contact with her baby is very important to her, understandably so”. Counsel for the OS noted that in the previous hearing, SM had asked “if she were not awake, how would she know it was her baby?”.

In the course of this evidence, it became apparent that there had been two major changes in the situation since the first hearing a week ago. Firstly, SM’s baby was now in the breech position. Secondly, as expressed by Mr Justice Holman, the Trust was now “not necessarily resistant to doing some form of spinal anaesthesia on the day if that is her express preference and she is cooperative”. 

Helpfully, the obstetrician, Dr C, had made herself available so that her evidence could be heard straight after Dr D’s. I will say upfront that whilst both witnesses were very clear, I was particularly impressed with Dr C (as was Mr Justice Holman), and her thoughtful and careful consideration of evidence, risk data and possible care plans for SM as an individual. She had provided an updated witness statement to the Court on 2nd November (which I had not seen), two days before this hearing.

Counsel for the OS first asked whether Dr C had had an opportunity to look at SM’s obstetric notes from her first birth. It emerged (via two stages of evidence-giving – a later clarification amending initial evidence given) that whilst “there had been a spontaneous rupture of membranes”, and syntocinon used to “kick-start contractions”, SM had experienced about 3.5 hours on a drip, experiencing “mild tightenings” but not “real contractions”. SM had had a family member with her at all times to manage possible agitation. She gave birth by C-section because the baby was assessed as being in an oblique position – there was “no hugely stressful situation”. Counsel asked about SM’s contention that she had previously had a Caesarean because the baby’s cord was around its neck, with Dr C commenting “that might have been the case but it was not the indication for Caesarean section”, explaining it is not uncommon. Dr C also noted that at that point SM had been discharged into community psychiatric care and “we are currently in different times”. 

Dr C outlined the particular medical and obstetric risks in play, painting a complex picture including essential hypertension, gestational diabetes, anti-coagulation medication, heavy smoking and breech presentation. She said SM was “very complex obstetrically without her mental health issues”, and whilst her physical health conditions were well-controlled, national guidelines would suggest that birth from 37 weeks could be considered. She described a multifaceted, considered position on the overall medical picture – there is “no algorithm I can put risk factors in” – but the Trust was proposing a C-section one week hence, when SM would be 38 weeks’ gestation. 

Dr C explained that “a variety of factors have been placed into that date”, including increasing levels of treatment for some of SM’s health conditions, the fact that a planned date would allow management of SM’s anti-coagulation regime which otherwise “can have an effect of the ability to offer regional anaesthesia”, and that a fairly early date would be “safest for mother and baby”. The particular date was also influenced by Dr C’s view that “it is very clear to me that to reduce agitation for this patient, it is ideal for there to be familiar faces” and that on the proposed date”  [Dr C] perform the elective Caesarean sections”. 

There was then a short exchange about capacity between Counsel and the Judge. Mr Justice Holman then said that there was a “currently a balance of evidence that SM lacks capacity” and asked about the likelihood of SM regaining capacity in the near future, thus the extent to which “one may try and wait”…and “seize the moment when she may have capacity” over, say, the next ten days. Counsel for the OS responded that there was “no evidence on which one could reasonably presume” SM would regain capacity in that timeframe and that they were “content to proceed on the basis” that SM lacked capacity. Mr Justice Holman confirmed “it’s a best interests decision then”.

Returning to evidence hearing, Dr C said that there was “no reason why the patient should not have regional anaesthesia”, and was then asked about the potential risks and benefits of vaginal versus C-section birth. Dr C noted the risk of scar rupture, “but also the risk of requiring an emergency C-section and the time frame under which we would be required to proceed”. She said that following a previous C-section, about 80% of women would have vaginal births of some form, with about 20% having Caesareans. She set out very clear percentage risks of scar rupture, differentiated by during pregnancy (0.1%), during labour (0.3-0.5%) and if labour were induced (0.8-2.4% depending on induction method). Mr Justice Holman commented it was “obviously a significant risk but of course it’s a low risk. I thought it was higher.” 

Dr C went on to confirm that the baby had been found to be breech three days ago and was unlikely to move. On this discovery, SM had said she “would not consider” attempting to manually turn the baby, and similarly Dr C would not advise it in this case. When asked by Counsel for the OS whether “if you had a patient with this constellation of risks, but no mental illness, would you be advising her to have a C-section she gave an unequivocal yes. She also confirmed that SM had (in Counsel for the OS’s words) “quickly become more accepting of the recommendation for C-section when learning the baby was breech” and “she would want to do anything to keep her baby safeThere was some discussion of what Dr C’s advice would be if the baby turned head-down for a woman with the same physical risk factors as SM, with her describing counselling for choice between recommended early induction or C-section – “no one definite way is safer” (I particularly welcomed how Dr C separated out of maternal and foetal risks). However, she then described concerns about SM’s ability to tolerate regular monitoring during labour, and needing to be in one place for a prolonged period of time. She described explaining to SM that “vaginal birth can take 12 – 16 hours…. she didn’t know that was a potential timeframe”, and that SM was often agitated and eager to leave by the end of her obstetric consultations of “not past half an hour”.

From this point on, the decision of the Court seemed to be more or less made. Mr Justice Holman asked Dr C “can I have a high degree of confidence that if there is a Caesarean next Thursday, you will be the one who performs it?”, and was told yes. Shortly after we adjourned for lunch and Counsel discussions.

On return, it was immediately obvious that the case would be finished that day. Counsel for the OS stated that “The Official Solicitor does not oppose the making of the order in the terms that have been sought” and “there is more than sufficient [evidence?] to displace the statutory presumption of capacity”. Counsel went on to say that it was “absolutely clear that whilst the baby remains in breech it is in her best interests to have a Caesarean with a spinal block if possible….that is what she, herself, wants”. Mr Justice Holman reflected that it was a “paradox that the coincidental fact that the baby has gone into breech…may have the effect that we have congruence with [SM’s] own subjective wishes, however capacitous”. The Official Solicitor still considered a C-section in SM’s best interests if the baby moved, albeit this would be a “more nuanced” call. SM had again been offered the opportunity to engage but did not wish to. 

The Court then moved in short order onto the details of the order, and the Judgment. As observers, our understanding was much aided by Mr Justice Holman himself printing out copies of the order. The Court ruled that a Caesarean should be carried out on the proposed date, by Dr C if at all possible, using regional anaesthesia if this is what SM wishes at the time and she “is cooperative”. The lower preference options allowed for (2) C-section under general anaesthetic if SM wants “or is uncooperative with regional anaesthesia”. “Minimum necessary” sedation and restraint would be lawful (3) “If SM is uncooperative….and sedation and restraint is necessary”. The judgment is not yet available on BAILLI but will be posted here as soon as it is.

What is interesting to me as an observer was the mismatch I perceived between the focus of the narrative judgment as given in Court, and the nuance and flavour of the evidence that had been heard before. Whist the ruling’s content was not surprising given the evidence, in his dictation Mr Justice Holman emphasised scar rupture – “a low risk…However if it does occur, the potential risk to the mother or baby is severe” as a defining factor, given that (as ever in these cases) SM wished “a healthy baby undamaged by the process of birth”. Possibly for him this was the deciding factor in making the Court’s decision. However, for me it was a very one-dimensional account of the risks and benefits considered in relation to mode of birth and anaesthetic options, and I am not clear that this phrasing represented the evidence that I heard from the clinicians who did seem to be genuinely focussed on SM as an individual and their view of her best interests.

I also think that for me the case highlighted again the need to ensure that – as was the case here – the Court is informed by clear and thoughtful witness evidence. Mr Justice Holman, ahead of hearing from the consultant obstetrician, had commented that the baby “won’t come out from a breech, will it?”, implying surgery was unavoidable. These misconceptions about birth must be challenged to ensure that the Court can make fully informed decisions.

I very much hope that when the Judgment is published, it comes with a postscript to tell us a little about how SM is doing. It seemed to me that the Court did genuinely try to make a decision in her best interests – Mr Justice Holman asked Dr C to “pass on the sincere good wishes of the Judge” to SM – and whilst there was not a huge amount of exploration of her views on vaginal versus C-section birth, the evidence that was heard was fairly unanimous and did come from clinicians who seemed to have a reasonable relationship with her. However, observing in person did leave me very conscious of how intimidating the process and the formalities are, and how hard everyone involved needs to work to ensure that the Court has good quality, timely and reliable evidence before it both on women’s individual wishes and on pregnancy, birth and maternity care options to inform its decision-making.

Rebecca Brione is a PhD researcher at King’s College London in the Sowerby Philosophy and Medicine Project.  Her work aims to conceptualise harms in non-consented intervention during maternity care.  She blogs @RebeccaBrione

Photo by engin akyurt on Unsplash

Eight Litigants in Person

By Claire Martin, 12th November 2021

Litigants in person” (LiPs) is the term used for people who don’t have a lawyer to represent them in court.  They conduct legal proceedings on their own behalf.

Given the cost of lawyers and decreasing access to Legal Aid, especially since the implementation of the Government’s Legal Aid reforms in April 2013,  litigants in person are now commonplace throughout the court system. 

I have seen many cases involving LiPs, but never as many as in the hearing I attended before District Judge McIlwaine at Lincoln Family Court  (COP 13339015).  There were 8 LiPs – all members of the same family – at this final hearing.

The fact that there were so many parties, and that all but one party (the Office of the Public Guardian) were representing themselves, posed particular challenges to the judge (and to the one lawyer) in this case.  In my view, these challenges were dealt with expertly and with grace and humility.  The conduct of this hearing shows the Court of Protection at its best. 

In this blog I will provide a brief outline of what the case was about and then focus specifically on what I believe was exemplary engagement with litigants in person by the court. Another observer, Clare Fuller, has also blogged about this hearing, with a focus on the substantive issues before the court in the case (relating to Lasting Power of Attorney) here.

The case

This was a hybrid hearing – meaning that some parties were in court and some attended remotely.  It was listed for three days.  I observed the hearing via Cloud Video Platform[1] on Monday 27th September 2021 and (part of) Tuesday 28th September 2021.  Celia Kitzinger attended for all of the third day (Wednesday 29thSeptember 2021) and I have drawn on some of her notes (with attribution) in this blog. 

I had also attended the directions hearing on 6th September, so I already had some sense of the issues before the court.

The person at the centre of the case (“Mrs P”) is a 96-year-old woman with a diagnosis of Alzheimer’s disease, now advanced. She had moved to live with her daughter (BR) in February 2014.  She was not represented in this case.

The applicant was BR, who has sole Lasting Power of Attorney (ss. 9-14 Mental Capacity Act 2005) for Mrs P, both for Health and Welfare and for Property and Finances.  She was a litigant in person.  

The other litigants in person were BR’s six siblings (four brothers – AD, MD, CD and DD, two sisters – AJ and HF) and her husband. 

BR’s son (KR) was also present in court as a McKenzie Friend, and another son (AR) was present on remote link (also as a McKenzie Friend). 

The only represented party was the Office of the Public Guardian (represented by counsel, Alex Cisneros). 

Mrs P’s daughter, BR, had first made an application to the Court of Protection in October 2018 for gratuitous care costs for Mrs P (backdated to 2014 and ongoing) and for costs to adapt her property to make it more suitable for Mrs P.  There have been several hearings since then.  

The issues for the judge to consider at this final hearing were: 

  1. The amount of remuneration for gratuitous care provided by the applicant BR to Mrs P: both the care already given from 2014 until now, and in the future.  “Gratuitous care” refers to the unpaid support BR has given to care for her mother, Mrs P. This includes helping her with all activities of day-to-day living.
  2. Whether to authorise £21,649 from Mrs P’s account to extend the garage at BR’s house to create an additional bedroom for a carer to stay overnight, and to enlarge the existing bathroom area for Mrs P.
  3. Whether, retrospectively, to approve the £25,490 that BR used to purchase a car using Mrs P’s finances.
  4. Whether to make some form of order or declaration regarding the contact that Mrs P has with her family. 
  5. Whether to make some form of order or declaration regarding the contact that Mrs P has with her family. 

Issues for Litigants in Person (LiPs)

The courts have expressed a great deal of concern about managing increasing numbers of Litigants in Person.   The Equal Treatment Bench Book, November 2013 reminds judges about the issues that LiPs face:

Most litigants in person are stressed and worried, operating in an alien environment in what for them is a foreign language. They are trying to grasp concepts of law and procedure about which they may be totally ignorant.

They may well be experiencing feelings of fear, ignorance, frustration, bewilderment and disadvantage, especially if appearing against a represented party. The outcome of the case may have a profound effect and long‐term consequences upon their life.

They may have agonised over whether the case was worth the risk to their health and finances, and therefore feel passionately about their situation.

Equal Treatment Bench Book, November 2013 

The Equal Treatment Bench Book, November 2013 also provides guidance about the role of the judge when there are LiPs in court.

Role of the judge

Judges must be aware of the feelings and difficulties experienced by litigants in person and be ready and able to help them, especially if a represented party is being oppressive or aggressive.

Maintaining patience and an even‐handed approach is also important where the litigant in person is being oppressive or aggressive towards another party or its representative or towards the court or tribunal. The judge should, however, remain understanding so far as possible as to what might lie behind their behaviour.

Maintaining a balance between assisting and understanding what the litigant in person requires, while protecting their represented opponent against the problems that can be caused by the litigant in person’s lack of legal and procedural knowledge, is the key

Equal Treatment Bench Book, November 2013 

Watching District Judge McIlwaine, I saw him put this guidance into practice, and that’s what I’ll address in this blog, as follows: 

  1. Arranging preliminaries to support LiPs in court
  2. Supporting LiPs with requests for McKenzie Friends and other late applications
  3. Managing difficulties associated with LiPs heightened emotion
  4. Recognising and being sensitive to LiPs’ lack of knowledge of the law
  5. Enabling a LiP to reconsider her role as Finance LPA (and to voluntarily relinquish it)
  1. Arranging Preliminaries to Support LiPs in Court

We were due to start at 11am (on 27th September 2021) but proceedings did not get underway until nearly an hour later (at 11.53am).  This was in large part because the judge was clearly aware of the need to prepare the parties who were litigants in person for participating appropriately in the court process, and he took the time to do that. 

At the directions hearing, it had been agreed that Mrs P would not be present at the hearing today, but as it turned out, she was in court (the physical courtroom in Lincoln) with her daughter (the applicant, BR) and her son-in-law (BR’s husband, NAR, also a party). Their son, KR was also present (supporting Mrs P) and had applied to be a party and a witness (more on this later). 

Mrs P was talking almost constantly  (it was not possible to hear what she was saying, though it did not seem to be connected to what was happening in the courtroom) and it was clear that she was unable to take part in any meaningful way in the proceedings.

DJ McIlwaine asked BR why Mrs P was present.  BR said that the Local Authority was meant to be arranging care for Mrs P during the hearing but had not done so. Her grandson agreed to take her out for a walk and the judge asked the court staff to find a room that they could sit in when they came back.  Thinking ahead to the next two days of the hearing, BR  confirmed that they would not need a room for Mrs P as care could be arranged. 

The judge then ensured that everyone attending remotely could hear and see the proceedings.   

DJ McIlwaine explicitly referred to the potential difference in experience (for BR and NAR) of being physically present in court, in contrast to all other parties who were attending remotely. He noted that it would be ‘unlike your own home’. He commented on the potential feeling of insecurity in the courtroom and invited BR and her husband to give their evidence from their seats rather than the witness box.  

To CD, who was experiencing microphone issues on video-link, the judge asked if others could assist: [with humour] … have you got a teenager who could sort out your IT problems? I’ll see if the clerk can arrange a telephone line for you.”

I thought that the judge’s attention to the minutiae of the hearing was extremely helpful for all concerned. What was most clear to me, given that no evidence had been heard and no witnesses had been questioned and cross-questioned before lunch, was the meticulousness with which this judge set up the hearing. He ensured everyone’s accessibility, considered late applications and requests for additional witnesses, attended to preliminary points and did all of this in a friendly, warm and supportive manner, whilst maintaining the authority of the court. 

It brought to mind the concept of ‘dynamic administration’ in group analysis. Cynthia Rogers describes the importance of this for setting up supervision groups, using the analogy of sailing a boat: 

3. Sailing a boat might illustrate what I mean by dynamic administration. A sailor makes continuous minor adjustments, leaning out, tightening a sail, and moving the dagger board. It is not really possible to make these adjustments to order, they need to become intuitive in response to the feel of the boat, the wind and the tide. Pulling a rope in too quickly or too slowly will only make matters worse.

4. Dynamic administration is as important as rigging a boat. I am not sure anyone enjoys the time it takes to rig a boat but with sloppy rigging the boat simply doesn’t respond to the touch and fine control is lost. If you get the rigging right you should be able to sail your supervision group close to the wind or relax and goosing with sails billowing, allowing the momentum of the supervision group to carry you into fascinating territory without anyone falling overboard.


I certainly did not witness any ‘sloppy rigging’ in DJ McIlwaine’s administration of this hearing. 

2. Supporting LiPs with requests for McKenzie Friends and other late applications

The applicant’s two sons had made late applications: one (KR, in the courtroom at the start) to be added as witness, party and McKenzie Friend; another (AR – via telephone) to be added as McKenzie Friend. I hadn’t heard of this term before.

The judicial guidance for litigants in person (referred to above) contains helpful information on McKenzie Friends: 

In a climate where legal aid is virtually unobtainable and lawyers disproportionately expensive, the McKenzie friend and lay representatives make a significant contribution to access to justice. But reported cases tend to concentrate upon reasons why they should not be allowed rather than circumstances where they may be of assistance to a party and the court. The judge has to identify those situations where such support is beneficial and distinguish circumstances where it should not be allowed.

DJ McIlwaine asked each party for their view on the applications. He said the applications had been made ‘at the eleventh hour’, and that, after hearing all views, he judged that both of BR’s sons could be McKenzie Friends but neither could be added as parties to the case, or as witnesses. Counsel for the OPG had raised the issue that, if KR were to be added as a witness without a witness statement, there would be no opportunity for cross-examination preparation, which would be unfair. A concession was that, if KR could file a witness statement to the court and all parties by 4pm that day, the judge would determine if KR needed to speak at the hearing and would determine this at the time. KR did speak on day three of the hearing. 

As such, at this point, the sons, as McKenzie Friends, were classed as observers and would need to be served the Transparency Order (which all observers and parties had received). 

AJ, Mrs P’s daughter, requested a further witness to be permitted to attend court, from the Local Authority care home that Mrs P stayed in for a period in 2020. The judge asked why this was essential and AJ suggested that she would shed further light on the problems of contact between Mrs P and the rest of the family. It quickly became clear that the other family members were in significant conflict with BR and her husband. There was a suggestion that BR was preventing contact between the family and Mrs P, and that this witness would attest to that. 

DJ McIlwaine probed about the additional relevant information that this witness would provide, asked all other parties if they objected, (none did) and said: 

“Justice not only needs to be done, but needs to be seen to be done. My job is to ensure a fair hearing. I will allow parties to obtain a short narrative statement – about what the witness will state – then I will consider whether to allow it.” [Judge’s emphases]

The judge then asked for any further preliminary points. BR had some concerns about the indexing of some statements in the bundle of evidence, and it was directed that they would be checked. 

The judge had not been given the witness template (which, I learned, was the order in which witnesses were to be heard). There was lengthy discussion about both of these things and then we broke for lunch, returning at 2.20pm. 

What I observed was the judge holding his authority lightly, when possible, to foster an atmosphere where everyone can give of their best under what might be very taxing circumstances. This hearing must have been challenging for the whole family, given the divisions between the siblings, and I noted down that, had I been a member of that family, I would have felt listened to and respected by the judge. 

3. Managing difficulties associated with LiPs’ heightened emotion: “Pouring water on the flames”

There were many occasions during the hearing in which family members displayed strong emotions. The judge was adept at handling these. 

For example, at the beginning of the third day, Mrs P’s daughter said that she would accede to the request from other family members that if Mrs P were in future to “become bedridden”, she would allow them to visit her home for the purpose of being with their mother. She added that she did not want to meet with them herself.  Her sister was very upset to hear this, and started to cry.  The judge offered a break.

BR:       It’s clear you care deeply about your mother and it wouldn’t be fair to stop you coming, but I can’t allow you anymore to see me.  I can’t repair any more.  I can’t mend bridges.  And I don’t want to.

HF:       (Cries)

Judge:  (Offers HF 5-minute break – accepted)

When BR explained her plans for future contact arrangements, her brother DD said:  “I don’t trust you to keep to an arrangement like that. You’re a divisive influence”. DJ McIlwaine intervened:  “There’s not much gained by that sort of discourse in this courtroom. I would like to pour water on the flames and you are pouring petrol on the flames”. [2]

The issue of why BR wouldn’t (her siblings said) allow them to visit Mrs P at her home, or imposed stringent requirements on them in relation to visiting their mother, came up over and over again, and was often the topic of lengthy rehashing of past events.  The judge sometimes cut these off. At one point he said: 

“I can see the benefit of a full and frank discussion taking place but, I’m so sorry, I don’t want to be unsympathetic, but I need to get everyone’s evidence before the court.”

One of BR’s brothers (CD) felt that one of his own visits had gone well, and wanted to know whether – and if so why – BR had found it problematic.  The exchange – technically, he was cross-questioning BR at this point – went like this:


CD:      I visited Mam in her annex for two days, basically a few hours every day, and for me it was fine.  We went out to the hairdressers, and to a hotel for a cup of tea, and for me it worked fine.  I want to ask [BR]: did you have a problem with it?  I don’t think that it interfered with your day.

BR:      I was wary.  I thought you would report back.  I feel some people are coming to see what’s going on and say “she hasn’t got this” or “there’s a step there”. I know she’s not in an ideal location. There are plenty of trip hazards.  But I walk around with her from room to room.  The feeling I get is that if there was a shoe on the floor you might say, “[BR] left shoes on the floor.  

(CD is displaying incredulity – shaking his head, furrowed brow as she talks, indicating that ‘reporting back’ is far from his motive in visiting his Mam)

BR:    You’ve signed your name to some horrible things  You put your name to that joint statement.  There’s more hate in that statement than I knew existed.

Judge: So, I can see that this process means that you are communicating in a way that perhaps you’ve not been able to.  But I think [BR] you’ve answered the question.  Your issue was that he might report back.  You had no problem with the actual visit.

CD:     I am taken aback by her reaction.

DD:     She’s paranoid.

JudgeCan I ask you not to interject. That is not helpful.

DD:      Sorry.

Judge(to BR) Do you believe she enjoyed the visit?

BR:     I believe she would have enjoyed it very much.  When I take her out to the garden centre, or shopping, I believe she’s happy.

JudgeIf I had the luxury of two or three weeks for this hearing I would give it to you,   but I don’t (followed by something like “So please try to ask specific questions and please try to answer them”)

CD: You have a perception that people would just turn up to visit.  Appear in your garden.  Arrive on your doorstep unannounced.

Judge:  What is your question?

CD:     Do you think people want to turn up willy-nilly out of the blue and visit Mam?[2]


This vividly illustrates some of the challenges faced by the judge.  In these few minutes of ‘cross-questioning’ he assists the process by:

  • Intervening at the point at which BR becomes emotional and accuses her brother of having said “horrible things” and shown “hate”, to calm things down and to reformulate the answer to the question (“did you have a problem with it?”). The answer was “no problem with the actual visit
  • When DD speaks out of turn and insults BR (“she’s paranoid”), the judge rebukes him – gently but firmly.
  • The judge asks a question of his own which is directly pertinent to the question of Mrs P’s best interests (“Do you believe she enjoyed the visit?”)
  • The judge acknowledges the importance for the family of sharing their experience and exchanging views but reorients them to the need – given time constraints – of asking direct questions and answering them.

When CD nonetheless makes what sounds like an accusation rather than a question (it’s a declarative sentence – “You have a perception…” – the judge asks him to rephrase it as a question (and he does).

An exchange of mutual grievances between BR and her sister, AJ, was delicately handled by the judge: 

Judge:   [following ongoing questioning from AJ about BR’s position in relation to  allowing family visits to Mrs P, where BR had confirmed that she would object to any family visits in the proposed new annex]: Could I assist? BR stands by her statements.

AJ: There’s a discrepancy between the answer and the spreadsheets.

BR: I can confirm [getting very upset and angry, airing grievances about family relationships and events]

Judge [intervenes, asking AJ}: What is your question? 

AJ: [started to discuss the Power of Attorney and being an alternative PoA herself and taking care of their mother, and BR not agreeing to this]…..

Judge: What’s your question? 

AJ: Why didn’t she accept that offer [and continued to describe the situation in some detail].

Judge: I am trying to take the energy out of the dynamic here – hopefully some of those more skilled will comment on whether that’s been achieved. [addressing BR] Why did you not accept that offer? 

[BR then went into a lengthy description of exchanges between herself and AJ; AJ started to intervene]

Judge: Excuse me! I appreciate emotions run high [brought the focus back to the question and evidence, referring to an email between the sisters]. 

And later: 

BR:       Why does AJ  [uses full name] feel the necessity to concentrate on my life and feel she has the right to make decisions about my life.

Judge:  That is not a helpful question.  I appreciate there’s a family dynamic and it’s tragic to see it played out

As illustrated above, these LiPs were often making statements rather than asking questions of the people they were supposed to be cross-examining, and the judge repeatedly asked “What is your question”.  Even sentences with an interrogative format (like “why does XX feel she has the right to make decisions about my life?”) are not actually questions but accusations! 

This issue has been documented in the Equal Treatment Bench Book, November 2013:

52. Often litigants in person phrase questions wrongly and some find it hard not to make a statement when they should be cross‐examining. Explain the difference between evidence and submissions, and help them put across a point in question form.

There were many examples of the judge needing to intervene when the LIP was making a statement, rather than asking a question. He did this in several different ways: 

  • A LIP cross-examining a witness and beginning to make evidential statements, rather than asking a question. The judge assists in the framing of a question.  

Judge: Do you have a question? [at other times: What is your question?]

LiP: I do [proceeded to express a view about a report that was wrong in their opinion]

Judge: [intervening] Perhaps I can paraphrase what I think the question is….. [framed the statement as a question for the LiP]

… and later, intervening when a LiP had spent a long time speaking to a witness:

Judge: The question – perhaps we can put it like this: are you satisfied that all sums withdrawn by [BR and NAR] have been accounted for?

  • The judge assists a LIP in summarising their thoughts:

Judge: You’re concerned about a scant understanding of the case?

LIP: Yes.

and also:

Judge: What you’re saying is – what is the relevance of the purchase of the car that precedes the capacity assessment? 

What struck me, repeatedly, throughout the hearing, was the constant balancing act that must have been going through the judge’s mind. He (relentlessly) needed to pay attention to the content of questioning (Was it a question? Was it relevant to the application?), to the feelings and reactions of the LiPs, to gaps in knowledge, to sensitively corralling any derailing of the judicial process and to ensuring that the evidence considered was in the service of reaching a conclusion in the time available to the court.

4. Recognising and being sensitive to LiPs’ lack of knowledge of the law

On “Intellectual range”, judges are advised as follows:

24. Litigants in person come from a variety of social and educational backgrounds. Some may have difficulty with reading, writing and spelling. Judges should:

a. be sensitive to literacy problems and be prepared where possible to offer short adjournments to allow a litigant more time to read or to ask anyone accompanying the litigant to help them to read and understand documents;

b. exercise and be seen to exercise considerable patience when litigants in person demonstrate their scant knowledge of law and procedure;

c. not interrupt, engage in dialogue, indicate a preliminary view or cut short an argument in the same way that they might with a qualified lawyer.

DJ McIlwaine described what “submissions” are:

We now move on to ‘submissions’, which means that everyone tells me in essence why their case should be preferred and why other parties’ case is not preferred.”

Judge to CD, when he apologises for not being able to “follow all the paperwork”: “I do appreciate it must be very difficult as litigants in person to manage all the paperwork at home.”

When the issue of the respective roles of lasting power of attorney and court appointed deputies was being discussed, both the judge and counsel stepped in to help the applicant understand aspects of law that were unfamiliar to her: 

Alex Cisneros (to the OPG representative): Is it right that you don’t ask attorneys to send regular accounts – do you ask deputies and if yes, how often? 

Mr H: Yes, I am not sure of the regularity.

Judge (offering explanation): With a deputy the court sets a bond so that, if there are problems, insurers step in. [Clarified with Mr H that there is no bond with an LPA, and further offered explanation to the applicant about deputies and bonds] 

After that exchange I have in my notes ‘V v kind and facilitative approach from both’. It wasn’t just what the judge and counsel had said (which was in the service of extending the applicant’s knowledge), it was the way they had said it (with a kind and patient tone of voice, though not patronising at all). 

A further exchange, between the applicant and counsel, exemplified ‘considerable patience’. It was regarding what, exactly, the applicant was claiming for gratuitous care:

Alex Cisneros: I am trying to work out how much you’re claiming for and why. … This is perhaps for submissions, the applicant can come up with days she’s claiming for. 

Judge: It’s the applicant’s application – the applicant bears the burden of proof. [He then asked the applicant for a spreadsheet by the following morning to be provided to parties and the court]. 

BR (applicant); I would like to get some sleep tonight.

Judge: Could your husband do those figures? The alternative is … an actual figure can be inserted when we have the information and I can agree it or not. Counsel? 

Alex Cisneros: Yes – it’s not a problem. I am trying to be fair to the applicant – normally I’d be saying the case is not proven. It’s because the applicant is a litigant in person. 

During the last day, in relation to issues of contact between the wider family and Mrs P, Alex Cisneros noted that the court had ‘no authority to enforce the contact arrangements’ that the family were asking for. He said that the court could not force the applicant to open up her home to the others if she did not want to. However, some agreement between the family seemed possible. Counsel therefore offered to assist the court by drawing up an agreement about how contact could work e.g. Skype one at a time; Face to Face contact arrangements, and what would happen if Mrs P’s health deteriorates. He said that the OPG did not take a view on the issue of contact but offered to draw up a contact document for the family so that everyone was clear what they were agreeing to. 

DJ McIlwaine said that this was a “remarkable offer” and “I’m extremely grateful to you”. These examples illustrate the efforts that counsel and the judge made to facilitate LiPs’ involvement in the legal proceedings, despite their lack of experience and knowledge, to secure a truly best interests outcome for Mrs P (and, I think, for the whole family – as far as was possible). 

5. Enabling a LiP to reconsider her role as Finance LPA (and to voluntarily relinquish it)

DJ McIlwaine skilfully discussed the issues of concern about BR’s management of Mrs P’s finances and the proposed building works to her home (she was proposing a change of use of a garage to make space for carers to stay over, easier visiting for others, and a bathroom). 

The judge (on the second day) asked about quotes for the building works, whether those quotes had been updated, whether BR had undertaken (at the request of the Official Solicitor) an estimated valuation of her home pre- and post-building works (“No”) and whether BR ‘resisted’ being removed from her LPA status for Mrs P’s finance attorney (“I do – I don’t understand what I’ve done wrong”). The judge referred to a large sum of money (around £300k) in one bank account – against the advice of a financial advisor to spread assets. BR explained that she had been unable to touch that money because it was in a foreign country (where Mrs P lived prior to coming to the UK to live with BR) and she did not have authority to move it, though she has now written to the bank in that country to inform them that Mrs P lacks capacity for financial decisions. 

Judge: A theme is lack of trust. One way to remove that is to allow a professional deputy to manage your mother’s finances – you can walk away.

BR:       Who pays me? On a day-to-day basis how would it be managed? There’s a cost that goes out.

Judge:  Have you investigated what a professional deputy does?

BR:       No … [then mentioned the internet]

Judge:  I’m not trying to trick you. Would it be helpful to you that financial decisions are made by a professional? 

BR:       Yes

Judge: Would it be helpful to have the gratuitous care paid by a professional?

BR:       [uncertain] ….. Yes

Judge: Would that reduce the strain on you?

BR:       Are you saying remove the power of attorney?

Judge: Parties might agree that the time has come for a professional deputy – I float it – I’ve not decided yet. You want to continue to manage your mother’s affairs?

BR:       Yes

Judge: But you’ll accept financial advice?

BR:       Yes.

This exchange was interesting to me – what I observed was DJ McIlwaine carefully and systematically assisting BR to think through her role as LPA, the exigencies of that role, the impact on her time and risk of being thought to be managing it poorly. At this point, BR remained of the view that she wished to retain her finance LPA status. I did think that she sounded a little less certain than the day before, however, and wondered whether the fact that the judge said that she could ‘walk away’ from these responsibilities might have felt tempting for her, at this stage in proceedings. The exchange was gently executed, and although it was clear to BR that the judge could decide to revoke the LPA, I thought that the conversation was genuinely aimed at assisting BR to think through her position in relation to this role. I did wonder whether the judge had done some training in Motivational Interviewing which is an approach to help people consider change in their position or behaviour. It is “designed to empower people to change by drawing out their own meaning, importance and capacity for change” (Miller, W.R.  & Rollnick, S. (2013) Motivational Interviewing: Helping people to change (3rd Edition). Guilford Press).

On day three, the final day of the hearing, DJ McIlwaine said to BR that it was entirely up to her whether she wanted to rescind the LPA.  He wasn’t putting any pressure on her.  Before final submissions, the judge said:  “If you want to rescind the LPA you can do it at any point today”.  This, of course, is different to having an LPA revoked (which means removed from the attorney by law).

At 17.08 on the final day, BR said she relinquished the LPA for Finance for Mrs P. 

The judgment for this hearing will be published and we will attach the link to it when it is available. 

Guidance for Litigants in Person

There is guidance available for LiPs.  

Advice Now’s (2020) A survival guide to going to court when the other side has a lawyer and you don’t” covers:

•Lawyers and what their role is, including what they can and cannot do.

•When and how to report a concern about a lawyer to their regulator.

•The skills you need to represent yourself so that you can keep calm, focus on the practicalities and come out the other end

The overview of this report in 2013 entitled “The Judicial Working Group on Litigants in Person: Report”, published by the Judiciary of England and Wales, states: 

“2.1 In November 2011, the Civil Justice Council produced its helpful and informative report ‘Access to Justice for Litigants in Person’2. The Council’s report rightly emphasises that the judiciary has an important part to play in meeting one of the principal challenges posed by the Legal Aid reforms, namely a substantial increase in the number of litigants in person and the types of proceedings in which they appear. This report is focused on equipping the judiciary to fulfil that role.”

This report is not primarily aimed at LiPs but does set the scene and might be helpful for LiPs who are interested in knowing what is expected of the judiciary in hearings involving LiPS. It sets out recommended measures to assist LiPs, including the role of McKenzie Friends as supporters. 

Jess Mant (2018) in “Doing it yourself: Litigants in person in the post-LASPO family court”, in an online magazine called The Justice Gap, comments: 

“Despite more than 80% of cases now involving LIPs, there has been no further investment in reforming the court process to adapt to this new reality.”

This comment paints the environment in which LiPs will find themselves in a light that suggests they might struggle to navigate what might feel like a hostile and unintelligible system and to know how to prepare their evidence and skill in cross-examination. For people for whom there are no funds for representation, nor the ability to navigate this system, this could present insurmountable obstacles (Mant mentions that in her project there were “many interviewees [who] were unable to do this as a result of a range of different pre-existing issues like communicative problems, anxiety or learning difficulties.”)

Final Comments

At points throughout the hearing, DJ McIlwaine expressed sympathy for the predicament the whole family was in – bitterness and resentment, accusations of ‘aggressive’ behaviour and the prevention of Mrs P seeing (some of) her children. The judge said that ‘there are dynamics in the family that do not need to be aired in the courtroom’. It was, at times, very hard for the judge to prevent this, and hard to listen to, though I thought the judge did a very calm and professional job of redirecting people when questioning strayed off-track. 

My sense, for this family, was that they had not had the opportunity to have a conversation with one another about their various grievances – and they seemed to have an appetite to do so, or at least to air them and have them heard. The court setting is not able to facilitate this in the way they might have needed emotionally, yet I thought DJ McIlwaine offered a textbook illustration of how to, sensitively yet determinedly, conduct a hearing with LIPs – quite a feat with so many LIPs to boot! 

I very much hope that this family can find a way to be with their mother in the last years of her life, without being in conflict with one another. I suspect that the outcome of this hearing will assist enormously with this possibility, setting out clearly who is in charge of Mrs P’s finances, what is paid for out of those finances and – most crucially – drawing up a contact agreement to enable everyone to spend time with Mrs P. 

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

[1] Just a note on gaining access to the hearing. Since I knew when the final hearing was going to be, I was able to email the court in advance requesting access. The court staff were extremely helpful in arranging access, asking me to attend 10 minutes prior to the start to iron out any connection problems.  Because I’d had trouble using the Cloud Video Platform at the directions hearing, they also sent me written guidance on how to use that remote platform (a link to which is now on the home page of the Open Justice Court of Protection website here – see point 4 under “How to access a hearing”).  When I logged on for this final hearing, the court clerk checked (by email) that I could see and hear, and asked me to ‘be a guinea pig’ and test the acoustics and visuals in the courtroom with him, since this was a hybrid hearing, to ensure others would be able to see and hear when they joined. Joining hearings can be very stressful as an observer (and I am guessing as a remote LiP) and I appreciated this dry run. 

[2] This example is taken from Celia Kitzinger’s notes.

Photo by Thyla Jane on Unsplash

Does P have capacity to consent to sale of a house and move to residential care?

By Celia Kitzinger, 11th November 2021

I have concerns over a whole host of things in this hearing – including whether this court has jurisdiction[1]”, said the judge within just a few minutes of the opening of this hearing (COP 13841478 MF before DJ Geddes).

It was the second hearing I’d observed before this judge on a single day (5th November 2021). I wrote a blog about the other one here.

The issue of immediate concern in this hearing was that the house P has been living in for 40 years has been sold at auction, with completion on  18th November 2021.

The local authority (represented by Sophie Allan of Kings Chambers) had made an application on Tuesday – it was now Friday – to convey P to residential care.

P is not represented in this hearing. (Her sister is in court but I think I understood that she is not a party to the proceedings.).

The judge’s reference to a “whole host” of concerns was in response to the information that “P has expressed the consistent belief that sale of the property is not something she consented to and she considers it unfair and illegal”.

She may be right about that – and therefore not delusional, and properly distressed by a process that has not been sensitive to her needs”, said the judge.

What documents have been sought from family members to take advice as to whether this property has been sold properly?” she asked.

The family saw the house sale as a private matter between siblings,” said counsel.  “It is only latterly that they saw it touched upon their duties to P as a vulnerable person.”

P’s sister’s account

The judge then asked P’s sister to explain “who owns the property, and who had to sign something to agree to the sale, and how much you get out of it”. 

P’s sister said:  “After Mum died, the house was put into probate.  Andrew [brother – all names are pseudonyms] is probably in a better position to explain because he was dealing with technical aspects of it, but her will stated that the estate should be split four ways between the four of us. The majority of the state is made up of the house. It had to be sold.  P signed the beneficiary form back in January to begin the process.  I realise now that P may not have understood the implications of that.”

Questioned further by the judge she explained that her brother and sister were executors and that she had not seen the will herself.  She reported that they had employed a solicitor and taken legal advice.

This was all “news” to the judge  – and also, apparently, to counsel for the local authority and to the social worker, all of whom had believed that the property was owned by P (jointly with her three siblings) “which it clearly wasn’t and never has been”. 

The judge was thinking on her feet as the facts unfolded.  “Some people know much more about this situation than I do – Andrew, and the solicitors instructed by him, and [other sister] who is joint executor of the estate. They surely must be invited – if not directed – to promptly provide information.  I will ask them to explain how we got here and what steps were taken to ensure that P had capacity to consent to the sale and what steps were taken in her best interests”. 

Recognising the need for P to be represented, the judge wondered aloud about getting the Official Solicitor on board, but that was apparently unlikely to be possible within the timescale for completion of the sale.  There’s “no time” to find a deputy either.

The key to cutting through this is Andrew”, said the judge.  “If the sale doesn’t go through you could end up having to pay damages to the purchasers.  It’s all very well to say your solicitors would be liable for that, but who wants to sue their solicitors? Not me!  Did you have to sign anything else after those beneficiary forms?  (No). Anything about the date of completion and vacant possession?  Was P asked to sign to say that she’d vacate the property?”.

I’m unwilling to put myself on the line”, said P’s sister.  “Andrew was until recently living in the house. He’s recently moved out. But my understanding is, no.”

Concerned with the question of whether or not P has capacity to make decisions about selling her property and moving elsewhere, the judge asked P’s sister for her opinion on this.

P’s issues are so far undiagnosed, but the issues she’s been suffering from pre-date the death of our mother.  She’s been having delusions and she has an imaginary family, which she experiences every day.  She believes that all the financial issues will be resolved by celestial events.  She has no idea how to run her own life.  When Andrew moved out he left her with a credit card and she doesn’t even know how to use that to buy food, and when he visited a week later she said she was hungry and hadn’t been using the card.

Capacity

The judge eventually made a brief interim decision that there was “sufficient evidence to get over the threshold for an interim declaration, notwithstanding the holes in the evidence”.  She was not assisted by the fact that the only diagnoses for P are historical diagnoses of depression and agoraphobia.  She had, however, been sent a COP24 and a capacity assessment from the local authority which evidenced delusional beliefs (along the lines described by P’s sister) which seem to have significantly interfered with P’s ability to understand, retain and weigh information.

Reading through the documentation, the judge reported that P “simply couldn’t answer” questions about her finances.  “She said ‘I don’t know’, cried, hugged herself, reported seeing Mama and Papa in the room, and said, ‘we are all ascending to another planet and we must be prepared’”.  She said she was receiving regular psychic communications from her parents in the afterlife.  She volunteered that her mother had made a second will, from the afterlife, and therefore the house sale was unlawful and said it was Satan’s law and probate is illegal and everyone owns their own homes.” On that basis, the judge saw reasonable grounds to believe that P doesn’t understand issues relating to the sale of the property or to decisions about where she should live.

The next hearing is at 10.00am on Friday 12th November 2021.

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


[1] We are not allowed to audio-record Court of Protection hearings.  Direct quotations as accurate as I can make them, but are unlikely to be verbatim.

Photo by Kelly Sikkema on Unsplash

Navigating a family feud on P’s death-bed

By Celia Kitzinger, 9th November 2021

She’s in her eighties, with significant cognitive decline,  and delirium secondary to numerous infections and “in all likelihood in the last weeks of her life,” said the judge.  She lacks capacity to make her own decisions about who she has contact with.

One of her daughters, Ann[1], and Ann’s daughter (P’s granddaughter), Bea, want to visit her one last time,  to say goodbye.  

But Colin says no. 

Colin is the son she lives with, who she’s appointed with Lasting Power of Attorney for Health and Welfare, “entrusting to him decisions about her welfare”, as the judge put it.  

He’s banned them from visiting because there’s a long-standing family feud, the details of which were not rehearsed in court, but it was clear that, for the last two years, family division has been deep and painful.  

The social worker (a witness) said the “conflict” in the family was such that “on several occasions the police have been called”.  The judge said it was “obvious that family relationships have been very fractured, with a lot of hostility, and a lot of blame on both sides”. 

The applicant local authority (represented by Holly Littlewood, Spire Barristers) has applied for a declaration that P lacks capacity to make her own decisions about contact with family members, and that it is in P’s best interests for her to have contact with Ann and Bea for one last visit, the details of which were laid out in a contact plan.  

The proposal is for a two-hour visit, between 9.30 and 11.30 the following Tuesday, supervised by two social workers.  Colin and his wife would be asked to leave the property while it took place.

The Accredited Legal Representative ([ALR] represented by Michael Kennedy, Switalskis) supports the visit as as being in P’s best interests.  The ALR acknowledges the excellent quality of care provided by Colin and his wife, and believes that “it could be accommodated that he remains in the property and it shouldn’t cause a problem”.  

The other four parties are family members, all litigants in person:  

  • Colin 
  • Dan (another of P’s son, who largely supports Colin’s position)
  • Ann (P’s daughter who wants to visit P) and
  • Bea (P’s granddaughter who wants to visit P) 

There were also some social workers in court.

This was a Final Hearing, held remotely (via MS Teams) on 5th November 2021, before District Judge Geddes sitting in Leeds Combined Court.  

The hearing

At the beginning of the hearing, it was announced that Colin has made (what the ALR later referred to as)  “a helpful concession” and now accepts that some contact should take place between P and Bea and Ann – but he does not agree with the contact plan that the social workers have drawn up.  It had also become apparent that other family members now also want to visit, including P’s eldest daughter and her husband, and another son (who are not parties) and Bea’s children (two pre-teens and a teenager).

The judge asked whether pre-hearing discussions could perhaps have resolved the situation given the change in Colin’s position, but counsel for the local authority reported that it had not been possible to reach him, and the local authority had believed that “such a discussion would not be fruitful”.  (I think the ALR said that an attempt at formal mediation had been made and had failed.) 

The fundamental issue today (said the judge) was whether Colin and his wife would be required to leave the home that they share with P to enable the visit to take place.  The social work team “strongly believe” that Colin and Carol shouldn’t be in the house when Bea and Ann visit P  “to avoid any chance that the visit is married by the bad feeling that exists, for whatever reasons, good or bad, on all sides”.   

This, then, was the challenge before the judge.  Should she authorise a visit with Colin in the house (with the risk of conflict occurring), or should she require him to leave for the duration of the visit.  

Colin (P’s son and LPA)

Colin was very clear that his own position was that he should not leave the property.

I’ve cared for my Mum over the past 18 months and I don’t pose any threat towards anybody who comes to the house.  I can give my word to the court on that.  I will be there if I’m needed for my Mum’s medication and if my Mum gets uncomfortable.  There are lots of personal belongings of my own and my wifes in this house and there’s mistrust between us all.  For both reasons I would like to be in the house in another room and I hope that wish would be granted.  You have my solemn word that there will be no reaction from me.[2]” (Colin)

The judge asked Colin: “Help me with the layout of the house”.  

It became clear that the house is quite small.  P has a bed in the living room downstairs, and there is only the kitchen and the hallway (and I think a toilet) on the ground floor, so Colin and Carol would need to be upstairs during the visit.  “I could be up there and out of the way altogether”, said Colin.  “I would be there if needed, and not a mile away.”

The judge asked “how would you judge if you were needed?”.  Colin said that he used a “close range camera” to monitor his mother when he leaves the house for short periods: “I can log in on my phone and get readings as to how comfortable she is”.  

The use of the camera in this way clearly raised alarm bells for the judge, although she handled the matter calmly and tactfully.

She first pointed out that “the proposal is that you don’t supervise this visit, and it’s supervised by two professional members of the social work team.  I would have to put my trust in the professionalism of that team”.  

Colin readily agreed that “if the professionals were to call me, that’s the only time I would appear”.  

The judge then referred to the “right of your mum to a private and family life”, suggesting that “one of the elements of that might be to give some privacy during the visit”. 

Colin agreed that the camera can be turned off, but was obviously concerned about what other family members might do in the house in his absence.  He said he wanted them to stay in the room with his Mum (“and the toilet if they need it”) but “not prowl around the house”.  

The judge asked him if the camera could be moved to another location, and suggested setting it up on the stairs instead since “nobody would have reason to go up there”. 

The judge asked about the size of the room and whether there should be restrictions on the number of people who should be present at any one time “so as not to overwhelm Mum”.  Colin described it as a small room that “can feel a bit crowded” with 5 people and added: “For covid reasons as well, I would ask that that PPE [Personal Protective Equipment] would be worn.  These people have not been in my mum’s life for nearly two years now.”  This had apparently not been covered in the contact plan in relation to family members and the judge seemed to accept that it should be (and that masks and gloves would be appropriate).

The judge then asked what Colin’s view was about other family members visiting in addition to Ann and Bea – the only two family members whose visit had been initially proposed.   

Colin expressed some concern about visits from Bea’s young children: “they’ve always seen their grandma relatively well, and have been jumping around and carrying on around her and I think the change in her would massively affect them”.  He also rehearsed some grievances against Bea, saying that “I’ve never stopped these children coming.  It was Bea herself who stopped the children coming. Because I wouldn’t let her in, she stopped the children coming altogether, to the extent my mum had to walk to the gate to see them”.  

Likewise, he said, with a touch of bitterness, his older sister and her husband “have never pursued any contact”.  Pushed by the judge as to whether he would facilitate a visit for them “if there was a genuine wish”, he acceded to the authority of the court: “If the court wants them to see their Mum, yes.  I just want this over and done with.  Whatever you decide, Ma’am, I will follow.  Just not too many people at one time please.”

Dan (P’s son)

Colin’s brother Dan was broadly in support of Colin’s (revised) position.  “I have had a discussion with Colin this morning and this is the only way this can be resolved quickly”.  He was concerned, though, that their mother would feel distressed by the visitors because “she said she didn’t want any contact with Ann and Bea”.  He felt that she would “not trust Colin any more for not following her wishes” if he allowed Ann and Bea to visit.  He acknowledged that she is now largely unable to express her wishes and was anxious that she might feel distress at being visited by two family members she doesn’t want to see, and worried that she might not be able to show that distress.

The judge said it would be necessary to “rely on the professionalism of the social workers to pick up any distress” and checked with Colin that P does have ways of indicating distress.  He explained that she has facial expressions and eye movements that would clearly indicate to professionals that she was unhappy and finding the visit too much.

There’s been some difficulty in ascertaining what P’s wishes would actually be, and some differences of views”, said the judge.  “It’s very helpful that Colin has agreed that there should be a visit”. 

It’s a one-off arrangement, just to say goodbye”, responded Colin.  “She does have a right to privacy in her own home. She’s coming to the end of her life. Just let nature take its course and don’t subject her to any more stress.

Ann (P’s daughter)

The judge asked Ann whether she had read the contact plan and was in agreement with it.  

She said she had, but added that CCTV was “a breach of her privacy and dignity”.

I think Colin agreed with me that the camera should not be on during family visits”, said the judge.  “It’s not necessary.  There will be professionals present to supervise.  The purpose of the camera is to safeguard P on the short occasions when she’s left alone, not to supervise her contact with others”. 

She also checked that Ann was happy to wear a mask during the visit (she was).

Bea (P’s granddaughter)

Bea, was also in agreement with the contact plan, and willing to wear a mask and gloves “obviously, for the protection of my grandma”.  

She asked the judge to consider approving visits from other family members, including in particular her teenage daughter “who does miss her grandma very much”.   She had not yet decided whether or not it would be appropriate to take the younger ones (“I need to think about how this would affect them emotionally.”) 

The judge said that there was, as Colin had pointed out, “potential for distress for those children” and that “obviously it’s not for him [Colin] to decide how you bring up your children”.  The judge did however “have some concerns about how crowded this visit might be for your Nana.  I want this to be a peaceful and enjoyable experience for her”. 

The ALR

The ALR reaffirmed the belief that the visit could work with Colin and his wife remaining in the property – as long as he stayed upstairs and removed the camera from his mother’s room.  The ALR also said they did not think it “helpful” for P to have visits from very young children and suggested that Bea’s teenage daughter should be the “cut-off point”.

Social Worker

The social worker restated the view that Colin should leave the property “because of the unpredictability of the situation and how hostile it’s been in the past”.  She reminded the judge that “police have been called a few times when the family have come into contact with each other”.

The judge asked her:  “What do you think about- Forget the children’s best interests, though it’s hard for me as a judge who also does work with children to ignore that, but I am going to ignore it.  What value or purpose would it have for P if the young children were to visit?”

It does sound like P loved these grandchildren very much”, said the social worker.  “She used to go to the end of the drive to wave them off to school every morning.  They were an important part of P’s life.  But would P want them to see her as she is now? It’s hard to say.  I think it’s Bea’s decision.”

The difficulty, as the judge pointed out, is that “Bea hasn’t seen her Nana for quite some time, so may herself be underestimating the impact of seeing her in her terminal illness.  I wonder if there could be someone on hand to care for the children if they wanted to go out.  For a teenager it’s a different thing, but they’re still vulnerable at that age aren’t they.  But there we are.  I think we’re possibly digressing!”

Local authority

On behalf of the local authority, and by way of closing submissions, Holly Littlewood said:

You’ve heard all the evidence but – just to emphasise –  the local authority’s position is that it’s in P’s best interests for Colin and [his wife] to leave the property for this one-off visit for the rest of the family to say their goodbyes.  In the past the police have had to be called when members of the family have run into each other.  In order to completely eradicate that risk, it’s in P’s best interests to leave the property.  The alternative is for Colin to be in a room upstairs for the duration of the two-hour visit, but it’s hard to see what the benefit would be.  He wouldn’t be supervising the contact, or observing his mother.  It would be just as easy for the social workers to contact him (if needed) if he were just a few streets away.  So, our position is that it’s in P’s best interests for them to leave the property.”  (Colin is visible on screen shaking his head as she speaks)

She added, with respect to visits from other family members, that there’s “nothing evidentially to say it wouldn’t be in P’s best interests to have visits from her wider family at this time”.

Judgment

The judge then said she was in receipt of everything she needed to make a decision and delivered an ex tempore judgment.  The judgment (as close as I could capture it) was as follows.

It is common ground that P does not have capacity to make a decision about who she should have contact with, and the jurisdiction of the Court of Protection is therefore engaged.

The decision before the court is whether it is in P’s best interests (s. 4 Mental Capacity Act 2005) to permit a visit between family members and P on one occasion for a two-hour period as set out in the care plan.  Contact would be from 9.30am to 11.30am (scheduled to coincide with a period when P is not expected to require direct care interventions or medication), and it would be facilitated and supervised by social workers already involved in P’s case, who have provided witness evidence in this case.

It is a condition of the visit that if P becomes distressed, visitors will respect the instructions of the social workers to leave, and the visit will not continue.  

The local authority is open to family members other than Ann and Bea taking the opportunity to say their goodbyes – importantly Bea’s children who were very important to P in the past.  This is left to the exercise of parental discretion of the mother.

Any adult who wishes to attend for this visit must first have had a discussion with a social worker about what’s expected.  There must not be a crowd at P’s door and the social workers managing a great number of family members.  It’s got to be a visit that is peaceful and where the focus throughout is on P’s needs, and that may mean that numbers need to be limited.  I don’t want the presence of other family members to interfere with Ann and Bea having the time with P they wish to have. 

An issue that might have been contentious but is now agreed is that Colin will disconnect the camera that he uses to check on her when P is alone for short occasions.  It is way too tempting, whether he’s upstairs or out, to check in on his mother, and to do so would interfere with the privacy of P and other family members.  The camera will not be switched on, and will be removed for the duration of the visit.

I want to give credit to Colin for changing his position on visits over the course of this week.  P has numerous children and grandchildren. It’s a large family with P in the past having been at the centre and it’s very sad that family relationships have become so fractured.  I’ve developed a picture of P as someone who has enjoyed having a big family, and I take that into account as a value she’s held previously.  She’s been extremely involved with grandchildren and great grandchildren.  There are disputes about the nature of those relationships but everything I’ve read, even in the context of family hostility, tells me that it is in her best interests that those family members who love her and hold her in high regard be given the opportunity to say their farewells in person.  I accept the evidence of the local authority that she is more likely than not to gain comfort and value from a face-to-face visit.  The touch of a hand can’t be replicated over video.

There has been hostility between family members over the last couple of years and the local authority proposes that Colin and his wife should leave the property to avoid any risk of family members coming into contact with each other.  

I found Colin very genuine and his role as P’s Health and Welfare Attorney is very important, but I have decided that he and [his wife] ought to vacate the house for the short period of the visit.  Having read about the conflicts in the past, it’s obvious that for everybody this is a highly emotive and stressful thing to happen.  Family relationships have been very fractured, there’s been a lot of hostility. The police have been called in the past and there been a lot of blame on both sides.  While I hope that those relationships can be repaired in the future, I don’t think that’s going to happen between now and Tuesday.  It would be an added layer of stress on everyone – for  Colin to be hearing people coming in and out, for other family members worrying that this visit in the most private of moments is being overheard.  I hesitated before adding this additional burden to Colin and [his wife], but have decided that they should leave for the two-hour period.

That is my decision.

 Reflections

This was potentially quite a challenging hearing for the judge, with four litigants in person from a feuding family, for whom mediation attempts outside of court had failed.  

In fact, though, all family members were calm, controlled and courteous in court, and Colin had already made significant moves towards accommodating others’ wishes to visit P.  Although the judgment was not as he would have wished (in that he will have to leave the house for the visit to take place), he did say “thank you” to the judge at the end of the hearing.  

As an observer, I experienced the judge as sensitive to the needs of this family in conflict, while being clearly focussed on devising a practical way forward.  

She did not engage with any family comments about the history of, or reasons for, their ongoing conflict.  She didn’t enquire, for example, about why there was “mistrust” or “bad feelings” between family members, or express a view about them, other than to hope that their differences might be resolved in the future.  She didn’t challenge Colin’s perception that there was a risk that family members would “prowl around the house” looking at his personal belongings.  She didn’t enquire as to why Bea had allegedly not allowed P to see the grandchildren, except as they passed the garden gate.  With the exception of the small “digression” relating to the best interests of these grandchildren, the judge focussed exclusively on what was in P’s best interests, without becoming embroiled in the family dynamic.  This involved some very practical concerns: the timing of the visit, the layout of the house, management of the camera, and where Colin and his wife should be during the visit.

The hearing was listed for two and a half hours – and the judge had another hearing listed for the afternoon.  Despite what I know about the busy court lists and over-worked judges,  there was no sense of rush or impatience in this case, no suggestion of “hurrying” anyone along.  The judge was calm, confident, and did some “thinking aloud”, which helped everyone in court to understand how she was moving towards making her decisions.

Despite this generally positive experience, though, nobody could possibly want to find themselves in court, with a judge having to decide on whether, and how, and when and under what circumstances family members can visit a much-loved mother (grandmother, or sister) who is dying.  

And, of course, it’s hard for the judge to figure out what P wants, or would have wanted, in this situation. She’s no longer able to express her own wishes.

Many people hope for a deathbed scene with their loved ones beside them, holding hands, sharing stories, reminiscing about the good times.  Where there have been difficult relationships, both the visitor and the dying person can ask for, and receive, forgiveness.   Missing the chance to apologise for past hurts, to let go of lingering resentments, to say “goodbye” and “I love you” is a common fear. The family vigil at the bedside often symbolises a good death

And, yes,  there are death-bed reconciliations and powerful reconnections between estranged family members.

But for some people dying alone holds no fear, and compulsory visits, when we’re helpless to prevent them,  from people we may not like, people we believe have harmed us and are still angry with, may not be what we want for ourselves.  We may not want these people near us when we feel vulnerable and helpless.  When facing our own fears about death, other people’s wish for absolution may not be our top priority.  

When we have the capacity to decide for ourselves who we want to visit us, we can make our own choices. 

When, like P in this case, we no longer have the mental capacity to make those decisions (indeed, may not even be aware of who is in the room with us), then those decisions are made for us by others. Perhaps for some of us, what we’re not aware of can’t hurt us – so there’s no problem with this. For others, though, it matters that the end of our lives is in accordance with the values we’ve lived by earlier in our lives – even if we’re no longer aware of ourselves and what is happening around us. That’s why some people write “advance statements”, spelling out what matters to us – to have only vegetarian or vegan food, to have only certain kinds of music played in our room, to attend particular religious services (or none).

As with other elements of planning ahead in preparation for a time when we can no longer make our own choices, we can write down our views about visitors we would (or wouldn’t) like on our deathbeds in an “advance statement”.  This can sit alongside all the other information about what is important to us when we can no longer decide for ourselves. For more information about advance statements, see the Compassion in Dying website.

Of course, some of us will die unexpectedly without time to summon those people, and – as we all know from the pandemic – it’s not always possible to have the people we want around us when we want them.  But planning ahead can still be useful to inform those who may find themselves making decisions for us in the future. It could have helped in this case.

Not everyone has strong views about who visits them on their deathbed – but some of us do. We can prepare a statement in advance saying that if we can’t make decisions at the time, then “I’d like all my family and friends around me when I’m dying” or “Dying feels private and personal, and I’d like only my partner to be there”.  We can say, “Please don’t encourage X or Y to visit” or “I would really like Z to come back from Australia to be with me if she can – but if she doesn’t make it in time, she shouldn’t feel guilty or bad about that”.

There’s also a space on the form to tell the person you appoint with Lasting Power of Attorney what you would like them to do.  In this case, P could have written that she definitely did want Ann and Bea and the grandchildren to visit her and that Colin shouldn’t prevent them from doing so. Or that she definitely didn’t want them to visit. Or that she trusted Colin to make the right decision and that if anyone doubted his decision they should know the great trust she had in him.

None of this obviates the need for best interests decision-making on P’s behalf, but it provides guidance (from P herself) as to how to make that decision, and that has to weigh heavily in the balance, whether the decision-maker is a health or social care professional, a family member, an attorney or (if it comes to that) a judge.

As with so many Court of Protection hearings, I come away thinking how much pain could be avoided if only we all planned ahead for possible future loss of capacity.

Celia Kitzinger is is co-director of the Open Justice Court of Protection Project and tweets @KitzingerCelia

[1] All names are pseudonyms.  I understand from what was said in court that there is a transparency order forbidding identification of P and her family members in the usual terms, but I have not been sent it.


[2] We are not permitted to audio-record court hearings, so all quotations are as accurate as they can be but are captured by typing as fast as possible while the hearing is in progress (and without shorthand) so they are unlikely to be verbatim.


The image is a pen and ink drawing by Rembrandt (almost certainly of his wife, Saskia) from the British Museum Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International (CC BY-NC-SA 4.0) license.

Last-minute vacated hearings in the Court of Protection

By David York, 8th November 2021

For many public observers in the Court of Protection, it will be a familiar experience to request access to a hearing, only to get an email response saying that the hearing has been vacated or adjourned.  

This leaves members of the public wondering what actually happened to that case –  and, most importantly, what happened to the person it relates to.

Sometimes a hearing is adjourned (moved to a later date). This might be because the Official Solicitor has not had time to get legal aid or receive instructions in time for the first hearing. 

The difference between “vacated” and “adjourned” usually relates to the stage at which the court agrees that the hearing should take place at a later point. A hearing is “vacated” typically where a request is made in advance that the hearing should be taken out of the list and a later date given. A hearing is usually “adjourned” where issues appear either in pre-hearing discussions or at the hearing itself where it becomes apparent that no substantive issues can be resolved and the judge agrees that the hearing will need to be adjourned to be dealt with on a later date. 

Hearings disappearing out of judges’ lists are not unusual. In an ideal world this would happen at very least a week before the hearing is due to take place, but there certainly are occasions where it might only be the day before the hearing or on the day of the hearing itself that it is removed from the list. Where this has happened, it is usually because an order has been agreed between the parties outside of court which has then been approved by the judge on the papers.

This applies most frequently to what are called “directions hearings”. These are hearings where the court is not being asked to make any substantive or final decisions on the case but is instead directing what needs to happen in the case (such as what evidence is required). Sometimes those hearings cannot be effective due to the fact that something may have happened that has blown any existing timetable off-course. Wherever this has happened the parties will have been able to agree what should happen next. It is an essential step in the process that whoever is representing P also agrees to those steps and ensures that whatever is being agreed is in their best interests. 

Often the genesis of an application to vacate a hearing can go back days or weeks. Between hearings there will have been various forms of evidence exchanged between the parties consisting of witness statements, reports, assessments, all of which contribute towards the developing picture of the case. Sometimes the evidence that is expected can be late; sometimes it can be that it gives rise to further questions that will take some time to answer. It may be that there has been a material change in the facts of the case, or a substantial change in P’s circumstances, which can be as simple as them moving to another address or potentially new evidence appearing in respect of their mental capacity. 

Alternatively, it can be that with a review of all of the evidence the parties can agree between themselves what should happen next or that the case should be concluded. It can sometimes take days for the terms of an order to be agreed between the parties as it goes through many different incarnations until it reaches a state that everyone agrees to. At that stage it is lodged with the court with an application requesting that the order be approved by the judge and the hearing be vacated.

So why the desire to avoid a hearing?

Court time is finite. The judiciary are under ever-increasing pressure. They are dealing with enormous workloads. It has not been unusual for me to see judiciary sacrificing their lunch breaks to make sure a case can be heard promptly. For the judiciary, any case that can be agreed as not requiring a hearing can potentially make space for another matter which does. In addition to this, the costs of attending a hearing can be expensive and so wherever possible the legal representatives try to ensure that the matters that do progress to a hearing are the ones where attendance before the judge is required. Those are cases where the parties cannot agree on what should happen next or where the issues are such that the judge would want to hear from everyone.

It is of course always up to a judge to make the final decision in respect of whether a hearing takes place or not and whether an order is approved. The  judge always has at the forefront of their mind the best interests of P, the subject of the proceedings. There are occasions where the judge has concerns about the nature of the order sought and wishes to hear from the parties so that some explanation can be provided. In one recent case the judge was concerned that the parties were agreeing to P remaining in a placement that they were unhappy with for potentially up to twelve months. Whilst the judge ultimately approved the order, she wanted to hear what the reasons were for the order so that she could properly understand the basis for it. 

The fact that the parties themselves have agreed the order does not ever mean that the judge will always approve it. There have been times where a judge has refused to approve an agreed order, has called the case in to court,  and then following a hearing the order that is actually made is markedly different to the one that was submitted. For example, in one case the judge was concerned that the evidence that was due to be filed did not go far enough and directed the local authority to provide substantially more detail than had been agreed between the parties. 

If the judge is satisfied with the order, it will be approved and the hearing is taken out of the list. 

There is no absolute rule as to the cut-off point for making a request to vacate a hearing, it very much depends on the judge in question. Some judges are abundantly clear that they will not consider any such request if it is made within five days of the hearing. Others may consider it on the morning of the hearing. It very much depends on the judge, the facts of the case, and what is being asked for.

Applying to vacate hearings at the last minute is the last thing the parties (or the judge) ever want to see happen. The effect is always a great deal of uncertainty involving many emails between the parties and the court asking if the order has been seen by the judge. Also, if approved it can result in a gap in the list of the judge which is unlikely to be filled. But where it has happened, it is because the judge agrees that there is no need for the hearing to take place.

David York is an Apprentice Chartered Legal Executive in Public Law and Human Rights at Irwin Mitchell LLP who tweets @PhaloniaYork 

Photo by Jr Korpa on Unsplash

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