Withdrawing life-sustaining treatment: Faith and Science

By Jenny Kitzinger, 25th November 2024

Update: Judgment was handed down to the parties on 11th November 2024 and is available here: https://caselaw.nationalarchives.gov.uk/ewcop/2024/68. It authorises the withdrawal of life-sustaining treatment on the basis that, due to severe and extensive brain damage. continuing treatment is not in the patient’s best interests. The daughter sought permission to appeal against this decision. The case was heard on Tuesday 26th November 2024 at 10.30am and was live-streamed and recorded. Click on this link Re: XY (by her litigation friend, the Official Solicitor). The Court of Appeal did NOT give permission to appeal. Jenny Kitzinger has written another blog about the Court of Appeal hearing: Application to appeal against judgment authorising withdrawal of life-sustaining treatment: Re XY

My interest in observing Court of Protection hearings is informed by my sociological research on Prolonged Disorders of Consciousness [PDoC] – a term used to include patients along the continuum from ‘vegetative’ to ‘minimally conscious’ states.

I’ve been researching family experiences of PDoC since 2010, shortly after my own sister, Polly Kitzinger, suffered a catastrophic brain injury. In joint research with another sister, Celia Kitzinger, we’ve been tracking patient pathways, and interviewing family members and healthcare professionals about decision-making.

We’ve also contributed to professional guidelines relating to PDoC and life-sustaining treatment (for the Royal College of Physicians and for the British Medical Association) and created online staff training, and a support resource for families.

Court hearings about treatment for PDoC patients can give powerful insights into how healthcare professionals and families navigate the intersections between law and medicine, culture and ethics.

The desperately sad hearing that I observed on 5th and 6th November 2024 concerned a woman in her fifties who suffered a cardiac arrest in early May 2024, which deprived her brain of oxygen and had left her in a PDoC. This case (COP 20002405) was heard before Mrs Justice Arbuthnot.

The woman (I’ve been asked to refer to her as ‘XY’) is at the centre of a strong family and community. Until her collapse, she worked hard in her job and relished a rich family and social life. She was a loving mother, sister, niece and friend – a person who loved life, was a great cook, and a woman of faith who regularly attended church. Since her collapse however (now 6 months ago), she has never regained consciousness and she remains in intensive care. The treating team, and all three ‘second opinion’ experts who looked at her case agreed that she was in the lowest level of Prolonged Disorder of Consciousness (what used to be called a ‘vegetative state’) and that there is no prospect of any significant improvement. Her clinical team had already decided that antibiotics or interventions such as a tracheostomy were not clinically appropriate and these treatments were not on offer.

The Trust responsible for her care (King’s College Hospital NHS Foundation Trust) was seeking a declaration that XY lacks capacity to make her own decisions about medical treatment – something not in dispute – and also that it is no longer in her best interests to continue with clinically-assisted nutrition and hydration [CANH] and assisted ventilation. The application was passionately opposed by XY’s family and friends.

The applicant Trust was represented by Mr Michael Mylonas KC. The patient was represented (via her litigation friend, the Official Solicitor) by Ms Sophia Roper KC. XY’s daughter was represented by Mr Parishil Patel KC.

This hearing starkly highlighted the gulf that can exist between clinicians’ and family views of a patient’s condition and it showed the ways in which family may seek to challenge expert diagnostic and prognostic assessments. It also vividly illustrates how family and friends’ approach to decision-making about life-sustaining treatment may be fundamentally in tension with the approach taken by medical professionals, including for cultural or religious reasons, and how barristers for each party attempt to address this.

I’ll first describe the medical evidence as presented on the first day of the hearing, and then describe what happened on the second day, when family members gave evidence and the lawyers presented their closing positions. I’ll end with some reflections.

Day 1: The medical evidence

The first day of the hearing focussed on evidence from three eminent medical experts with many years’ experience in intensive care, brain injury and neuro-rehabilitation. These were: Mr X (from the hospital where XY was being cared for); Professor Wade, one of the two second opinions instructed by the Trust; and Dr Bell (the additional second opinion expert instructed by XY’s daughter).

At the outset there was discussion of whether the judge had access to the medical notes – I wasn’t sure I heard right – but think there was mention of an anticipated 2000 pages of medical notes actually turning out to be 13,000 pages (which might not be unreasonable given XY has so far spent around 180 days in ICU).

Rather than go straight into this extensive medical evidence however, everyone in court was careful first to acknowledge XY as the individual at the centre of the case and make it clear that her family and friends had been, and would be, heard. Mrs Justice Arbuthnot checked at the outset how the patient should be referred to (e.g. clarifying that the name for XY used by family was actually different from the name that appeared in some medical records). Mr Michael Mylonas, barrister for the Trust, opened his introduction by describing how loved XY was, and acknowledging the large number of family and friends present in court. Mr Patel, representing the daughter, then said he’d like to introduce not only XY’s daughter but also her grandson, brother, aunt, cousin, and ex-partner as well as two friends. The judge made a point of welcoming them – throughout the hearing she also reminded clinicians giving evidence to use ‘lay terms’ and ‘plain English’ when explaining clinical findings, and seemed to do everything she could when family and friends were giving evidence to ensure they were as comfortable as they could be in the circumstances. I felt there was a clear commitment to treating XY’s family/friends with sensitivity throughout the hearing, and perhaps some hope that they might find it useful to hear the evidence presented.

The four key medical experts had provided the court with devastating and entirely consistent written testimony. The three who gave oral evidence in court explained the reasons for their clinical judgments, the tests and examinations that had been carried out, and provided further explanation prompted by cross-questioning. This included questioning around the usual issues in these cases such as how the effects of any sedation had been taken into account in assessing XY’s level of consciousness, the meaning of her behaviours, the margins of error in medical predictions and the nature of tests such as the Coma Recovery Scale – all of which were meticulously explored and unpicked during the course of the hearing.

The clinicians explained that their conclusion that XY was at the lower end of a prolonged disorder of consciousness was supported by a combination of factors, all pointing consistently towards a negative prognosis. These factors included: the nature of the initial insult to the brain; evidence from brain scans, and XY’s trajectory of change; and current presentation in terms of responses and reflexes.

Initial insult: Evidence from ambulance records showed that XY had suffered oxygen deprivation for well over an hour. There was physical evidence of this long ‘down time’ – it had damaged other organs as well as her brain. It was, said Dr A, “One of the longest cardiac arrests that I have ever encountered where there has actually been a return of spontaneous circulation” (Dr A).

Brain scans: Findings from structural and functional scans of XY’s brain carried out regularly since her injury give no hope for improvement. The last electroencephalogram [ECG] (the most recent of five) “shows no improvement” and is “profoundly abnormal”. The latest computer tomography [CT], Dr A explained “shows a deteriorating situation – with essentially shrinkage of brain; the medical term would be ‘atrophy’.” Any hopes that somehow the brain might repair or rewire itself were unjustified, given the global damage resulting from oxygen deprivation.

Trajectory since injury: The trajectory of the patient presentation over the six months since her injury was further evidence against hope for recovery. All that had happened during the first couple of months since her cardiac arrest was that her eyes had opened and she’d developed sleep-wake cycles and then there had also been a change in the characteristics of eye-opening (e.g. eye-opening to loud auditory stimuli). None of the medical witnesses thought that these changes altered XY’s prognosis. These were, the doctors explained to the court, simply characteristic of a normal evolution in this condition rather than anything to indicate improvement. The care taken with language was notable: at one point the treating clinician (Dr A), while drawing attention to the fact that such changes had also happened several months ago and there had been no changes since then, stopped himself on the verge of saying “improve” and replaced it with “evolve”: ‘Things have not continued to imp…… evolve over time’ (Dr A). The clear implication is that even if there had been a change, it would not necessarily have pointed in the direction of recovery.

 ‘Responses’/reflexes: The clinical witnesses also reported a lack of responsiveness – even to pain. The patient has a swollen and protuberant tongue and chews down on it – but although this has been distressing for staff, XY does not appear to have any pain response to this. (A special mouth guard is now used to prevent injury and regular general anaesthetic is needed to release and clean the guard). She also does not appear to respond to deliberately administered painful stimuli (such as is used in testing consciousness). The only potential marker of pain is when there is manipulation of the oral cavity and the mouth guard – when she shows increase in blood pressure and heart rate which could be explained by a “triggering of sympathetic nervous system” (Dr Bell). Movements made by XY likewise do not provide any evidence of consciousness, say doctors. In spite of the family belief that XY is now following commands at times, the tests and observations done by healthcare professionals do not support this. Family members felt that XY would move her foot to instruction, but Dr Bell said that his tests showed: “if you push the foot away, there would be backward pressure. If you pulled the foot downward, you’d get a similar backward pressure return to neutral – regardless of whether you were asking for it to be done. That is the basis on which I concluded that this was a spinally mediated reflex.” (Dr Bell)

A lot of time was spent on questions about the meaning of XY’s eyes, mouth, hand and feet movements with exchanges such as the following:

Counsel for daughter: Ms XZ (XY’s daughter) has taken videos – her mother can follow someone around the room [with her eyes] and is able to squeeze her hand…Would you consider that responsive to her environment?

Dr A: We have never been able to elicit such responses.

Counsel: But the family has reported that. Is that evidence of response to environment?

Dr A: There is a difference between what they’re reporting and what we are objectively seeing.

Counsel: Is that, in your view, evidence of XY reacting to her environment, if they’re right?

Dr A: I can’t deal in a hypothetical. We have not seen reactivity.

Counsel: Is it right to say that family, who know that person well, who have a history with that person, are able to elicit responses that doctors or nurses are not able to? That happens, doesn’t it?

Dr A: I disagree with you on that [in this case]

Counsel: So how do you explain that?

Dr A: I think what they are seeing is random eye roving.

Counsel: What about the squeezing of the hand?

Dr A: They are reflexes that are mediated by the spinal cord.

Judge: ‘Mediated’?

Dr A: The process relies on those parts of the brain that we already know have maintained function, such as the brain stem and the spinal cord. The hand movement [they describe] is independent of higher brain activity.

Counsel: They ask her to squeeze their hand, and she does it. Is that still explained by reflexes?

Dr A: I’ve not seen that response. And nobody that’s objectively examined XY has been able to elicit any such response.

Judge: When you say ‘mediated’, caused?

Dr A: Yes, caused.

One of the two second-opinion experts instructed by the applicant (Professor Wade) not only indicated that he did not think XY was responding, but said “I don’t think she has any awareness that individuals she knows are present … she doesn’t know whether a person (regardless of whether she knows them) is present or not”.

This view was supported by the third ‘second-opinion’ expert who had been instructed by XY’s daughter (Dr Bell, consultant in intensive care/anaesthesia). Although the daughter must have instructed this additional second opinion doctor in the hope that he might come up with a more optimistic view than the other experts, his findings were entirely consistent with what every other expert had found. When the Trust’s barrister asked Dr Bell “what are the prospects of XY understanding that someone is asking her to squeeze their hand and then squeezing their hand”. Dr Bell simply replied that this “would be outside all accepted medical knowledge”.

The family and friends listening in court (and the judge) could have been left in little doubt about the consensus from experts experienced in Prolonged Disorders of Consciousness in general, and about the condition of XY in particular.

Day 2: Family evidence and final positions of the parties

On the second morning, three family members (daughter, aunt and brother) testified from the witness box. The closeness of the family was very clear. XY’s daughter said: “She came to my house most days – she’s my best friend”; XY’s aunt said they’d speak on the phone almost every night: she had known XY even “before she was born” and went out with her often: “I was her basket for shopping – every time she wanted to go shopping, she’d call me”. Her brother said that his sister was like a mum to him: “the person who has always been there for me. She keeps me on the straight and narrow”.

In spite of all the evidence presented the previous day, these family members remained adamant that XY had a level of awareness unrecognised by the treating team. Her aunt, for example, said that XY had moved her mouth trying to speak to her and had held hands with the pastor when he visited. The daughter said her mother sometimes blinked or squeezed her hand on request, or lifted her feet when asked (“I’ve got videos and everything”).

Family members felt XY had already improved (her eyes open more, and she no longer needs dialysis) and “she has had a massive improvement…at first, she was lying down in coma with eyes closed doing nothing at all; now that’s not the case” (Daughter). It was clear that they would not give up on fighting for the opportunity for XY to recover: “If a person is in hospital you are meant to do every single thing, try everything possible…. I pray for her, tell her ‘don’t give up on yourself, you are a fighter, we love you, keep fighting’.” (Daughter)

They challenged the doctors’ prognostication: “only God knows” explained XY’s daughter, highlighting a story about a young boy who had defied pessimistic predictions from doctors. XY’s aunt expanded on the issue of faith from her point of view: “The doctors are scientists and religion is different. I don’t say nothing bad about them, but we see miracles work in our church. … I can’t believe what’s happened but I know we are going back to shopping in [local place] together– yes, that’s my faith” and (addressing the judge) “Give her a chance, because God is waiting to deliver her. She is a miracle girl.” (Aunt)

The idea of allowing death by ceasing life-sustaining treatment was anathema to their family culture and their faith: “She’s still here. She’s here for a purpose. It’s not for man to take someone’s life” (Daughter); “If they do what they are planning – it is like catch an animal and cut their neck while they are still alive” (Aunt). Pushed on what her mother would choose if the doctors were right, and she could not improve, the daughter replied “My mum would choose life over death. Her religion, she would never choose to die…she wouldn’t want me to give up on her. She would want us to fight for her.” (Daughter)

The final witness was a close friend of XY’s – who could not be in court but joined by video link. Her testimony focused powerfully on her friend’s unwavering commitment to her role within the family. “Her children are literally her life. I believe she would want to continue as long as possible and hold on to the hope that she can still be part of her family’s journey… Her presence, even in her current state, is a source of comfort and inspiration to her loved ones…[XY] would value any type of life that allows her to be present with her children because they are everything to her, her children and her grandchildren”. (Friend)

The clinicians listening in court, and the judge, could have been left in little doubt about the values and beliefs that informed XY’s approach to life – and what those who knew and loved her believed to be the right way forward.

In brief closing statements, the barrister for the applicant Trust re-emphasised that the expert evidence was “all of one voice” in concluding that ongoing life-sustaining treatments are of no benefit to this patient. He reiterated key medical evidence and the legal framework for the decision now to be made. He pointed out that XY had not discussed what she might have wanted in the circumstances she now found herself in and that, while her loving family had aspirations for her recovery, regrettably there was no prospect of her ever returning to them in any way that they so fondly remember her and no prospect of her gaining pleasure from their presence. “In those circumstances, the applicant asks that the court makes the declaration in the form sought.”

Counsel representing XY’s daughter went next. He did not dispute the strong medical evidence but instead reminded the court of the strong presumption in favour of life and that a best interest analysis must consider what XY herself would regard as meaningful. “Witnesses who know her”, he said, “believe that she is still present. It is too early to give up on her… Not because they don’t understand the bleakness [of her situation] but because they believe in the power of faith, the power of miracles, God – and they say that is XY, that is the essence of who she is”. They appreciate, he said, that professionals explain her behaviours, such as hand squeezing, as merely reflex – “they understand their [the doctors’] view – but they disagree”. In addition, “If XY could choose being in her current very compromised state – they all, without hesitation, are of the view that she would choose life.” He rounded off by saying “The family are not unrealistic, they are not unreasonable. There may come a time…they would say when God chooses…but it is not now”.

Counsel for the OS presented her closing statement last. She paid tribute to the woman who “was, still is, a central part of her family”. But her position was that “XY’s family fundamentally do NOT accept the full medical evidence and believe she has improved, that she knows they are there and responds to them”. Very sadly, she said, the medical evidence refutes this, and the circumstances could hardly be more stark: XY will remain in the state she is until she dies from another event such as further cardiac arrest or overwhelming infection. She will never leave critical care which is simply keeping her alive with no prospect of improvement. With immense sadness, the OS therefore supports the application. Ms Roper rounded off by addressing the feelings evident in some family statements which suggested an equivalence between what was proposed for their loved one and actively ‘killing’ her. She signalled the difference in law between allowing death by discontinuing treatment (which is lawful in England and Wales) and an intervention to bring about death (which is not lawful – although, of course, it is currently being debated in parliament). Stopping life-sustaining interventions does not, she said, mean bringing about XY’s death but means ‘ceasing medical intervention that has halted a process that started on 6th May”.

The judge said she would make her judgment on Monday 11th November 2024 – although at the time of writing I have not yet been able to see a copy of this.

Reflections

In this final section I want to reflect on (a) the features of PDoC that contribute to challenges for decision-making about life-sustaining treatment and (b) the role of the court in cases like this

The challenges of PDoC in decision-making about life-sustaining treatment

This case powerfully illustrates some of the reasons why it can be difficult to reach a consensus about a PDoC patient’s condition and future (let alone a consensus about the implications this has for life-sustaining treatment).

Prognostication after brain injury can be complex for many (but not all) patients and needs to be specific to the individual. Some seriously brain injured patients make progress, sometimes unexpectedly (and sometimes this is because previously accurate diagnosis and/or appropriate care and treatment has been lacking). Prognostication can need time; clinicians talk about giving patients a suitable period in which to ‘declare themselves’ (depending on the type of brain injury among other factors). It’s also true that patients may demonstrate more awareness with people familiar to them, so it is important to pay attention to what family and friends report.

During the course of this hearing, the clinicians were very specific about the reasons for their high level of prognostic certainty for this particular patient. The quality of care given and individualised attention to her specific diagnosis and prognosis were explained. The high level of certainty was convincing. But it was obvious that family members testifying in court did not ‘agree with’ (Counsel for daughter) or ‘accept’ (Counsel for XY via the OS) this medical evidence. Part of the resistance from family members was linked to their specific culture and faith – but it also seemed to be tied up with more general features about PDoC that are relevant to many families I’ve worked with (whatever their culture/faith). I pull out four key aspects of PDoC here

1. Background information about PDoC is absent and/or distorted:

  • Catastrophic acquired brain injuries come out of the blue, and relatives often have to process information while still in shock about someone being taken from them in the prime of life, and without the years of processing information about the condition that may happen with other types of disease (e.g. progressive neurological conditions).
  • PDoC itself is rare, therefore people do not have a general understanding about it (as they might, say, about dementia which, however imperfectly represented, is a more common experience).
  • However, they’ll have often heard stories about ‘coma’ – particularly the miracle recovery stories that are exchanged in everyday conversation and social and religious networks, as well as in the news and in films (check out this video on media representations of ‘coma’ here: https://www.youtube.com/watch?v=_hu-veDtj1w&t=55s)

2. Clinical information can conflict with family experience

  • The clinical information is highly specialised and difficult to make sense of. (The care needed to try to turn the clinical information into ‘lay language’ and ‘plain English’ was foregrounded during this hearing).
  • Patient presentation is confusing. What doctors are telling families (e.g. that the patient is unaware) may conflict with what families see. It does not fit with lived experience at the bedside (or media images of what unconsciousness looks like). I’ve explored this in depth in a previous blog: “Seeing is Believing”.

3. Not all injuries are the same

  • The brain is very different from other organs – but people may expect brain recovery to follow the same trajectory as physical recovery. In this case it was evident that the healing of XY’s kidneys gave the family hope for the healing of other areas of damage
  • Neuroplasticity allows for potential improvements in function after localised damage (e.g. from a stroke) but this cannot be extrapolated to the type of global, anoxic injury suffered by XY.
  • Deterioration may not be obvious to families (as it would be with neurogenerative conditions) even though deterioration may be inevitable (in this case, for example, brain atrophy).

4. The normal evolution of patients in PDoC can feed hope of further recovery

  • It is common for families to feel their relative is a ‘fighter’ simply through having survived the initial life-threatening incident and to believe that the patient has ‘improved’ simply as they stabilise physiologically.
  • The evolution from a ‘true coma’ to the vegetative state (which is typical of what happens early on after serious brain injury) is often interpreted by families as progress – with eyes opening and blinking being particularly emotive.
  • Finally, the person in PDoC may look relatively healthy and this can prompt optimism about the future. Indeed, I’ve had family members tell me that a patient is actually healthier than they were before. For example, if the serious brain injury is associated with the consequence of drug abuse or anorexia the person may look ‘better’ because they can no longer abuse drugs or because a normal body weight has now been achieved via CANH. This isn’t applicable to XY in this case, but I wondered whether her excellent care (in spite of difficulties such as the swollen and protuberant tongue) was giving an unrealistic impression of wellbeing.

One potential value of the hearing for the family was the thorough and skilled way these features of PDoC were addressed by the experts as they gave evidence.

The role of the court

The second element I want to reflect upon here is the role of the court in cases like this. In some ways, this hearing seemed to work really well. It was a formal and respectful forum for a thorough, open (and, of course, public) consideration of the issues. The family had the opportunity to hear from (and question) the clinicians at length about their assessment in this formal setting; and the clinicians, and judge, had the opportunity to hear from (and question) the family. Everyone contributing to this hearing showed a huge amount of care and commitment to trying to make the right decisions for this patient – and a strong sense of XY’s own values and beliefs (alongside the clinical evidence) was foregrounded in court. It may be that the court process was useful in ensuring all the high quality evidence was pulled together and also in providing assurance (to the family) that any decision reached was the responsibility of a High Court judge and that, whatever the outcome, they had fought as hard as possible for XY to have any chance of recovery and had never ‘given up’ on her.

However, I was left wondering about the pros and cons of this case coming to court at all. The clinicians looking after XY were confident that interventions such as tracheostomy and antibiotics were not clinically appropriate and not on offer. Might they not have come to the same conclusions about CANH (especially given XY’s condition six months on from her anoxic injury)? I didn’t really understand, from what was said in court, why they had not arrived at that position.

Perhaps it was because, although CANH is legally defined as “medical treatment”, for many people (clinicians as well as families) it can feel more akin to ‘basic care’. Or perhaps the stark assertion that a treatment is ‘not on offer’ feels easier to make in relation to a treatment that has not already been started – despite their equivalence in law? Or perhaps the team or the Trust (or the lawyers) took the view that it was necessary to come to court in light of some recent rulings?

A blog post by Alex Ruck Keene and Victoria Butler-Cole (“Don’t ignore the Serious Medical Treatment Guidance – but let’s be clear about what the law requires”) was prompted by a case earlier this year (GUP v EUP and UCLH NHS Foundation Trust [2024] EWCOP 3). They comment: “it is not always necessarily easy to distinguish between a dispute about clinical appropriateness (including, as a subset, futility) and a dispute about whether a treatment that is in principle appropriate is nonetheless not in the best interests of the person“. In the particular case they were examining though (which has clear factual similarities to XY) the Trust had obtained independent second opinions from two doctors and this, they suggest “is one where that dividing line has been properly tested” such that it is “likely to mean that the Trust is on much stronger ground in concluding that it does not need to go to court to get, in effect, no more than confirmation that treatment is not clinically appropriate.” That’s effectively what happened in this case too.

I wonder whether the clinical team in this case genuinely felt this was a best interests decision for XY such that they would have been willing to offer continuing life-sustaining treatment indefinitely if the court had so ruled. Or whether, on the facts of this case, the situation was such that further treatment was simply clinically inappropriate.

Postscript: The daughter sought and was refused permission to appeal this judgment. Read Jenny’s blog about it here: Application to appeal against judgment authorising withdrawal of life-sustaining treatment: Re XY

Jenny Kitzinger is co-director of the Coma & Disorders of Consciousness Research Centre, and Emeritus Professor at Cardiff University. She has developed an online training course on law and ethics around PDoC and is on X and BlueSky as @JennyKitzinger 

“It is a process that isn’t fair”: Structural injustice in the Court of Protection

By Daniel Clark, 24th November 2024

The words, “it’s a process that isn’t fair”, were uttered towards the end of the hearing on 21st November 2024 by Alison Harvey, counsel for the protected party’s mother in this case.  It’s rare to hear barristers explicitly criticise the fairness of court proceedings – and in this case, I think she is right.

The protected party, B, was taken into care in January 2024. Her mother, JB, desperately wants her to return home, but this has been opposed by the London Borough of Lambeth and by the Official Solicitor.  In the last 11 months, the court has authorised first taking B away from her family and putting her into care, and then her continued deprivation of her liberty in unsuitable placements where she is “suffering” (according to her mother) followed by a third move to another placement rather than a return home.  

This case (COP 14116349) has been heard by Mr Justice Keehan, who has been sitting remotely (via MS Teams). Counsel for the parties has remained the same throughout October and November: Sebastian Elgueta, of Garden Court Chambers, represented the applicant local authority. Alison Meacher, of Gatehouse Chambers, represented B via her litigation friend, the Official Solicitor. Alison Harvey, of One Pump Court, represented JB, B’s mother. 

I will begin, in the first section below, with a brief background to this case. Second,  I will discuss a hearing on 3rd October 2024, where the judge refused an application for B to move home. Next  in the third section, I will discuss a hearing on 31st October 2024, at which concerns about a Working Together Agreement, and contact between B and her mother, were raised.  In the fourth section, I’ll  report on a hearing on 21st November 2024 at which the judge found it was in B’s best interests to move to Placement 3 rather than move home. Finally, in the fifth section, I reflect on counsel’s explicit statement that the process “isn’t fair” to B’s mother, and I say that this can be best understood as a structural injustice. 

1. Brief background

Here’s a very brief background to what is becoming a long-running case. I have previously observed five hearings in this case and blogged about them in a single post here: Closed hearings, safeguarding concerns, and financial interests v. best interests. 

This case first came to court in 2023, when the local authority applied to the Court of Protection for an injunction that would guarantee access to the protected party (B) for the purposes of assessment – access which, they said, was being frustrated by her mother. 

In December 2023, serious allegations concerning sexually inappropriate images on B’s devices triggered a police investigation. The case was transferred from First Avenue House to the Royal Courts of Justice, for hearing before a judge of the High Court. 

In January 2024, Mr Justice Keehan approved the local authority’s application for B to move from her grandmother’s home (where she had been temporarily living) to Placement 1. 

For much of 2024, there were concurrent closed proceedings[1]. These are hearings from which the judge orders exclusion of a party and their legal representatives. This may give rise to disadvantage for the party that a judge has directed be excluded but they are perfectly lawful. In this instance, the judge excluded the protected party’s mother, from these hearings because they concerned the police investigation. 

On Wednesday 22nd May 2024, a hearing I observed in open court, Mr Justice Keehan heard an application by the local authority for B to move from Placement 1 to Placement 2. This was opposed by her mother and by the Official Solicitor, and the judge did not accept that the move was in B’s best interests.

On Friday 27th September 2024, I observed in an urgent hearing in which Mr Justice Peel (hearing this case for the first time) considered the same application. This time, however, it was brought because Placement 1 had said B would have to leave just three days later, on Monday 30th September. On this occasion, the move was only opposed by B’s mother. Peel J authorised the move to Placement 2, stressing it was “for an interim, short-term, period”. 

Since my last blog post there have been three further hearings: two in October 2024, and one in November 2024 in advance of P’s move out of Placement 2 which is projected to take place in the final week of November.

 I’ll explain what happened at the first hearing briefly, and then the second two in more detail.

2. The hearing on 3rd October 2024: A best interests decision between Placement 2 and returning home, pending a move to Placement 3

This hearing was already in Mr Justice Keehan’s list and was intended to consider B’s move from Placement 1. Notwithstanding the fact that B had already moved, Mr Justice Peel directed (and the parties agreed) that this hearing should still take place.

It transpired that the local authority had identified another placement, Placement 3, that they think would be more suitable for B (who had, by this time, moved to Placement 2). In the interim they, and the Official Solicitor, considered it to be in B’s best interests to remain at Placement 2. 

Counsel for B’s mother submitted that staff at Placement 2 “have been very kind to [her mother] – I know they’ve been anxious to support her, support [her daughter]”. However, Placement 2 is “a frightening place that is more restrictive, it is simply not in her best interests”. Another resident, who should receive 1-to-1 care, has been entering B’s room, and has been threatening toward both mother and daughter. 

Counsel for B’s mother further submitted that the court should authorise an interim move home. 

The judge however was “not persuaded…I am fortified in that conclusion by hearing today that the relationship between [B’s mother] staff and the manager is very much improved…In relation to the issue today, I endorse the placement in the interim of [B] at [Placement 2]…We will consider the issue at the hearing on the 31stOctober”.

3. The hearing on 31st October: Problems at Placement 2 – a “Working Together” agreement and concerns with contact

It was immediately clear from the opening summary, provided by Counsel for the local authority, that the situation at Placement 2 had become worse. 

As set out in the position statement filed on the mother’s behalf, her daughter’s door is – on occasion – locked to prevent access from residents who have previously attacked her and tried to attack her daughter.  The daughter is also distressed by the screaming and shouting of other residents, and she is currently washed on her bed because there is no safe alternative. Furthermore, she has been experiencing a lot of pain, with an ambulance called for her on numerous occasions. It also appears that information is not flowing freely between Placement 2 and the local authority.

It also transpired that disclosure of care notes from Placement 1 have revealed an incident in which B was found (twice) with a man whose hand was on her leg. She became distressed when asked to leave this man’s company. While the parties did not know of this at the time, it appears this incident coincided with when B’s behaviour began to deteriorate (for example, she started pulling out her hair).  

I have split my report of this hearing into three primary issues: 3.1. a Working Together agreement that contains what were described by Counsel for B’s mother as “in effect unfounded allegations” against her; 3.2 communication issues with mother; 3.3. concerns raised about contact between mother and daughter, and how this affected the mother’s application for B to move home on an interim basis. 

3.1 The Working Together Agreement 

In his submissions, Counsel for the local authority said the court was initially going to be asked to approve a Working Together agreement. It was now decided that everyone should “continue working with [B’s mother] to arrive at an agreement” without the need for a court order.

A Working Together Agreement is a document that provides assurances (given by all sides) as to how individuals and agencies will interact to best support and safeguard a person. I had only ever heard about them in the context of supporting children, though Avaia Williams has blogged about a case in which a Working Together Agreement was drawn up to express expectations of conduct. In a similar way to this case, the Agreement was between a residential placement and P’s mother. 

Both the local authority and the Official Solicitor seemed to be of the view that that this document is a positive step forward, and that it will be possible to put it into place soon.

Counsel for B’s mother disagreed. In my previous blog, I reported that Alison Harvey’s advocacy was of an impressive standard. Things were no different at this hearing. In her submissions, she stated that the Working Together Agreement is “more like a behaviour expectations document and it does include what are in effect unfounded allegations against [B’s mother], disguised as expectations”. 

Counsel drew the Court’s attention to the fact that the document states that B’s mother should not visit B while under the influence of drugs or alcohol. This seems to be based on two sources. First, there was one reference, in a meeting record contained in the bundle, to there having been a historical report of a cannabis smell at home. There was no suggestion B’s mother had anything to do with this. 

Second, a carer from Placement 1 had recorded in B’s care notes that, when she and JB were assisting B to put on a cardigan, the carer could smell alcohol on JB’s breath. Counsel’s submissions on this were brief and to the point: “Well, [B’s mother] doesn’t drink so, no, she couldn’t [smell alcohol] and [Placement 1] have not proved a reliable record keeper.”

The mother’s Counsel resolutely rejected the suggestion that the mother has done something wrong, and reminded the judge that this position was supported by the police having not interviewed JB and having decided to take No Further Action. 

3.2. Communication between other parties and the mother

A consistent issue raised throughout these proceedings has been that B’s mother has some difficulties in processing all of the information related to the case. There are therefore some interim ground rules that the other parties must follow, including submitting evidence in a timely manner so that her legal team are able to take full instructions. 

These ground rules are not being followed, and Counsel for B’s mother submitted that the late filing of evidence (which I will address in the next section) “would be unacceptable in any legal proceedings, certainly not in these proceedings with the ground rules…We are not even seeing from the Official Solicitor the respect for the spirit of the ground rules when they cannot be followed to the letter…It’s not acceptable”. 

The judge, in a brief ex tempore judgment, acknowledged these submissions. He said, “I take on board the issues raised by Ms Harvey on behalf of the mother, about her and those whom she instructs receiving information late in the day, which, as Ms Harvey puts it, compromises to a degree the mother’s ability to engage in these proceedings. That must be avoided at all possible costs”. 

It seems to me that any continued inadequacy in the communication between the parties and JB may well violate JB’s Article 6 right to a fair trial. The Court of Protection is being asked to significantly interfere with her Article 8 right to a private and family life – so on grounds of equality of access to justice, she must be provided with the support she needs to be  able to engage fully in the proceedings. This is not just down to the role of the parties – the court also has an active duty to ensure that she can fully engage.

3.3 Concerns about contact

The reference to the Official Solicitor not following the communication ground rules was made because the legal team for B’s mother were told six days before the hearing that a solicitor (acting on behalf of the Official Solicitor) had visited B and reported that B had said she did not want to see her mother. 

B’s mother’s legal team did not know until the day before the hearing that there had been another visit, where B expressed the same views, on the 9th October. If they’d known on that date (or shortly thereafter), they would have had plenty of time over the next few weeks to receive instructions. As they did not find out until six days before the hearing (which was also just before a weekend) they could not gain full instructions on this point. 

In the words of Counsel for B’s mother: “we were beyond disappointed – we were angry”. 

In her submissions to the court, Counsel for the Official Solicitor explained that the Official Solicitor’s “main concern…is that the wishes and feelings expressed to those instructed by the Official Solicitor who have visited [B] is that she doesn’t want to see [her mother] or she only wants to see [her mother] at her request”. 

I have observed every public hearing in this case since January 2024, and nothing like this had ever been suggested before. It has been a consistent theme that mother and daughter are extremely close.

Counsel for JB submitted “we do not agree with what was said in that statement. It has been taken by a solicitor when [B] is not wearing her hearing aids and not with a Speech and Language Therapist” in attendance. Furthermore, B had told a Best Interests Assessor, after meeting with the solicitor on 9th October, that she did want to go home. 

However, Counsel for the Official Solicitor told the court that the solicitor visited B again, with a Speech and Language Therapist, after the visit of the Best Interests Assessor. On this occasion, B again expressed that she did not want to see her mother except by invitation. This is also the reason B’s mother’s legal team did not find out after the visit on 9th October  – the solicitor wanted to be sure that they had understood properly. 

Counsel for B’s mother submitted that the current plan was for B to be asked weekly when she wants to see her mother. However, this type of planning wouldn’t work because B makes plans in the here and now. Instead, Counsel submitted, B should be asked in the presence of her mother whether she wants to see her.

The judge said he found this that was not “a very good idea or a workable plan…It may be that she [B’s mother] is, on occasion, present. But it must not be the case that she [B] can only be asked when her mother is present”.

Counsel for B’s mother accepted this, though pointed out that, “we are in the situation which has been raised before…B says what she thinks others want to hear. And just as there is a problem with speaking in front of her mother, there may be a problem with other people as well. It is important that her wishes and feelings are obtained where she doesn’t feel a certain answer is the desired answer. And we need to think very carefully about what she is asked and by whom”. 

During these submissions, I did recall that, during a previous hearing, it had been mentioned that B sometimes may respond to questions in ways that she thinks somebody wants her to answer. Indeed, the judge appeared to see some force in these submissions – he was nodding while they were being made.

The thrust of the submissions made on behalf of B’s mother was that B should return home while plans for Placement 3 were being finalised. Then, at another hearing, the court could decide whether it was in B’s best interests to move to Placement 3 or remain at home. 

However, the judge found that “at the moment it would appear that [B] does not want to have contact with her mother and that, for no other reason, means I cannot accede to [her mother’s] request that [B] move in the interim”. He was nevertheless clear that the local authority must “heighten its vigilance of [B’s] stay [at Placement 2]”, and the issue of contact “needs to be addressed as a matter of urgency”. 

4. Hearing on Thursday 21st November 2024: Judge rules P should move to Placement 3 (not home)

At the end of the last hearing, Mr Justice Keehan indicated that he would be content to deal with an application for a move on the papers (that is, without an in-person hearing). However, if that was not possible, he had space in his list for a hearing on 18thNovember. 

When 18th November came and went without a hearing in the daily list, I assumed that the matters had been dealt with on the papers.

I was therefore surprised when I saw this case in the daily cause list for 21st  November (I later found out the hearing was moved at the request of the local authority, though I don’t know why). As it was listed for the morning, I was able to observe and sent my request for the link to the court the evening before. 

This was dealt with expeditiously by the court staff, and a solicitor acting for the local authority also sent me the position statements filed on behalf of the local authority and (after checking with her Counsel) that of B’s mother.  As is a common theme in this case, I never received the position statement of the Official Solicitor. 

It became clear from reading the position statements that the hearing was to be about a proposed move from Placement 2 to either Placement 3 or home with her mother. The position statement on behalf of B’s mother explained that, while she wanted B to move home, she would rather B move to Placement 3 rather than remain at Placement 2. 

The position of the local authority and the Official Solicitor was that it is in B’s best interests to move to Placement 3 because this will help her to develop some independent living skills. She would have a flatmate who both parties considered to be “compatible” with B – a phrase that evoked images (in my mind) of a type of conveyer belt social care where people live together without having had the chance to decide for themselves whether they actually get on. 

Counsel for B’s mother submitted that there was no reason that B could not develop independent living skills at home. B’s mother also disputed the “compatibility” of B with the other flatmate due to (possible) differences in their respective abilities and level of independence. 

Concerns about contact remained. Counsel for B’s mother disputed that B does not want to see her mother, submitting that the questions put to her on this matter are complex and misleading. The Speech and Language Therapist is, she submitted, acting as an intermediary but this is an inappropriate role for them to take on. 

Counsel for B’s mother gave specific examples of how these questions were leading. She submitted that an attendance note filed by the Official Solicitor detailed that B was asked, “do you want to see [name]?”, and so on. However, when it came to questions about seeing her mother, the structure of questioning changed. Counsel told the court that the question became: “Remember you didn’t want to see mum? Well, is that still your view?”

Neither Counsel for the Official Solicitor nor Counsel for the local authority disputed this characterisation of the way the questions were posed. Having not seen the attendance note, I can only assume that this is an accurate report of how the questions were asked. This is yet a further example of the way in which B’s mother is being continually disadvantaged.

Counsel for B’s mother submitted that B “is being passed around like a parcel. We have seen a decline in her physical health, her mental health, how she describes herself as feeling. There’s no question – she is not the same as she was at the start of these proceedings”. 

Rather than a “rushed third transition”, Counsel submitted that B should return home to live with her mother. A transition plan could be perfected, and the court could decide whether B should remain at home or move to Placement 3 at a later hearing.

In a brief ex-tempore judgment, Mr Justice Keehan said this: “The Official Solicitor is satisfied that the discussions that have taken place with B have elicited her current wishes and feelings and, in particularly and importantly, for whatever reason, B does not wish to see her mother. On the basis of the evidence and submissions presented to me…I consider it is in B’s best interests to move to Placement 3. In any event, I do not consider it in her best interests to move home, not least because she does not wish to see her mother. Hopefully, for the benefit of B and her mother, that will change, and there will be a resumption of contact between them in due course”. 

5. Reflections on a concerning case

I have been observing this case since January 2024, which means that I have been able to trace the subtle changes in the positions of the parties.  

Throughout this year I have had a feeling, which has been growing in intensity, that B’s mother is significantly disadvantaged in this situation despite the skilled advocacy of her barrister. As her barrister put it at the end of her submissions on 21st November, “it is a process that isn’t fair at the moment despite efforts to make it so”. 

In particular, the closed proceedings in the case have disadvantaged the mother and her legal team because they were excluded from knowing what was happening during a police investigation. Now, a Working Together Agreement contains what B’s mother describes as “in effect unfounded allegations”  against her. 

The position statement filed on behalf of B’s mother for the hearing on 21st November says that this agreement, as it stands, would only prejudice carers against her. This draft, the position statement goes on to say, has further persuaded her that professionals “appear determined to think the worst of her and to present her in the worst possible light”. 

These problems are exacerbated by the fact that, despite clear instructions from her legal team concerning communication, the parties are not following these ground rules. 

This is all the more worrying that it is the case of her legal team that the breakdown in communication which triggered the original court proceedings was due to ignoring the best way to communicate rather than conscious evasion on the part of B’s mother. As Counsel for B’s mother put it in an earlier hearing: “There is a steadfast ignoring of the best way to communicate with [B’s mother] and we say that that is at the root of the original concerns that the local authority had about communication, keeping appointments, etc. They have not distinguished between unwillingness and inability.”

All of this is placing B’s mother at a significant disadvantage. I am quite confident that these disadvantages amount to a what the political theorist, Iris Marion Young, calls “structural injustice”.  

A “structural injustice” is not one in which individual actors consciously choose to cause injustice to others. Instead: “Structural injustice exists…when social processes put large groups of persons under systematic threat of domination or deprivation of the means to develop and exercise their capacities, at the same time that these processes enable others to dominate or to have a wide range of opportunities for developing and exercising capacities available to them. Structural injustice is a kind of moral wrong distinct from the wrong action of an individual agent or the repressive policies of a state. Structural injustice occurs as a consequence of many individuals and institutions acting to pursue their particular goals and interests, for the most part within the limits of accepted rules and norms” (Iris Marion Young, Responsibility for Justice, p52).

I do not doubt that the majority of those who work in the legal and social care sector want to do what is best. For the most part, they are neither malign actors nor consciously working to exclude and disadvantage. 

However, the theoretical force behind the concept of structural injustice is that we can describe certain processes (like closed proceedings) as an injustice without also making a claim that those who engage with them are bad actors. 

Rather, certain structural processes mean that certain classes of people are disadvantaged while others are not. They are acting “within the limits of accepted rules” – like closed proceedings and the creation of a Working Together Agreement that makes family members feel like they are seen as a problem. For example, the Working Together Agreement in this case says that B’s mother should not be abusive to carers without also including a comparative commitment that carers will not be abusive to her.

Just as family members excluded from hearings feel that the court suspects them of doing something wrong, so too a ‘Working Together Agreement’ to regulate contact with professionals clearly signals some perceived problem in the way they have previously conducted themselves in relation to those professionals, a problem that the agreement is designed to ‘put right’.  

Family members are structurally disadvantaged both by closed hearings and by Working Together Agreements because both are initiated by others to “manage” families who are thereby positioned as posing some kind of risk either to the justice system or to the health system, such that extra-ordinary practices need to be adopted in relation to them.

The Court of Protection needs to acknowledge this head-on if it wants to mitigate the disadvantage and injustice that family members can feel themselves to be experiencing.  

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

[1] Members of the public are ordinarily also excluded from closed hearings, though Mr Justice Keehan did permit me to observe one (at the end of August 2024). I haven’t reported on the contents of this hearing and I am not allowed to do so. But, as I also stress in my previous blog, “the fact that the judge allowed me to observe demonstrates his view that members of the public can be trusted to observe closed hearings without jeopardising the integrity of a case” – so permitting me to observe does represent a positive move for social justice.

An in-person hearing on anorexia (Re CC): Observer’s rollercoaster and the role of “hope”

By Sydney White, 21st November 2024

My experience observing the final hearing of Re CC (previous hearings blogged as: Respecting autonomy in treating anorexia nervosa and Treatment for Anorexia Nervosa: A brief directions hearing) was tumultuous in more ways than one. I’ll first describe my unusually challenging time as an in-person observer at the Royal Courts of Justice and how it translated into a greater appreciation for the importance of transparency. I’ll then discuss Mr Justice Hayden’s final decision and the role of “hope” in the case. 

In the hot seat?

On the first day, the hearing was scheduled to begin at 11:30, so I arrived at the Royal Courts of Justice at 10:30 anticipating a lengthy entry process. Luckily, there was no line and I whisked through security. I thus had upwards of an hour to take in the enormous magnificence of the Courts; the space is staggeringly beautiful. 

I wanted to be absolutely sure I was not late, so at 11:00 I made my way to the (rather less impressive) Queen’s Building where the hearing was to take place. When I found the courtroom, the family were all waiting outside, mingling with counsel. The person we now refer to as “CC” (though the case had been listed and reported under different initials at the time) was off to the side, standing alone. Trying to be as respectful as possible, I sat down a few tables away from the group and focused my attention on my laptop, though the urge to watch and listen to the family was intense. Then I heard my name loud and clear: “Sydney White”.

My head whipped around instinctively, and my heart began thundering when I realised that one of the family members had uttered my name. She had her phone open and was pointing to the screen, showing it to counsel for the Trust, Adam Fullwood. I quickly realised that she was referring to the blog post I wrote on the case, which had gone up the day before. She was concerned about anonymity, specifically about the fact that I had used the initials of the protected party from the public court listing. The family member also brought up the blog post by Daniel Clark, which mentioned that CC belonged to “a large Jewish family”. Mr Fullwood agreed to bring up the matter in court. 

Trying to stay as calm as possible on the outside, internally I was in a panic. I messaged Celia Kitzinger (the blog editor of the Open Justice Court of Protection Project),  terrified that I had broken the Transparency Order or would have to face questioning from Mr Justice Hayden in court. I debated saying something then and there, but decided to stay quiet to avoid raising conflict. Celia reassured me that we had done everything in accordance with the Transparency Order and if necessary, I must attribute responsibility for anything under dispute to her as blog editor, since she had made the final decisions about what to publish. She offered to make herself available to the court (remotely) if that seemed appropriate.  I wrote up a little speech based on her words in case Mr Justice Hayden did, in fact, ask me to say anything.

There I was, my first time ever observing a hearing in person, stomach turning and heart pounding because I thought (rather dramatically, looking back) that Mr Justice Hayden would soon be admonishing me or that one of the family members would begin shouting at me when they learned that the girl at the back of the courtroom was, in fact, “Sydney White” herself. When I wrote my name down on the attendance sheet, I felt like I was painting a giant red X on my chest.

I steeled myself and waited for the hearing to begin. Mr Fullwood raised the issue before the judge; he did not say my name but stated that blog posts had gone up which referred to the protected party by the initials orginally selected by the court. Mr Justice Hayden pondered the issue briefly, then said “The initials will be changed”. 

And that was that. I breathed a sigh of relief.

The other point of view

Underneath my fear during that 15-minute experience, there was another emotion coursing through me: guilt. I felt ashamed that I had caused this family stress and, at least in their minds, potentially exposed the difficulties of a loved one to the world. As important as it is for us to maintain open justice in the Court of Protection, I also understood how they could feel what they were feeling. I was sympathetic to their point of view.

Mr Justice Hayden put it nicely in his response to Mr Fullwood when the issue came up again at the end of the day, this time specifically about the references to CC’s Jewish family. He looked at the family and said: ”If I thought there was a chance of identification through [the blogs] I would shut it down in the blink of an eye. I think you’re being understandably anxious“. The judge also reiterated the purpose and importance of Transparency Orders, stating that “…a young person is entitled to some degree of privacy in this process. And so her Transparency Order is in place which permits all members of public to hear everything that goes on in the case but prevents them from…learning anything at all about the individual”.  Thus, Transparency Orders balance patient privacy and open justice – at least in theory (see Daniel Clark’s ‘postscript’ about the transparency order in this case: Treatment for Anorexia Nervosa: A brief directions hearing.)

People can have legitimate disagreements, of course, about whether a balance has been correctly struck.  Hayden J’s judgement (discussed below) dives into the minutiae of CC’s family and religious community. Although that level of detail seems quite exposing, those factors were key in allowing Hayden J to reach his decision because they illuminated crucial features of CC’s methods of thinking and interactions with the world. I think in cases like these, where the issues of capacity and best interests are so intricately tied to the patient’s personal characteristics, some degree of privacy may have to be sacrificed in order for a judge to present a well-reasoned case. 

In a way, this event ended on a high note: it provided an opportunity for CC to assert her autonomy and participate in the proceedings. Mr Justice Hayden wanted CC to be the one to choose the new initials to allow her, in his words, “to exercise her autonomy in as many ways as possible”. The protected party did not, ultimately choose the initials – she said she didn’t care. But it was not all for naught: in place of the initials that the court had originally used in public listings and in the Transparency Order, her mother chose “CC”.  Although we were not required to do so by the Transparency Order (because they cannot operate retrospectively), we changed our blog posts to reflect that choice.

Hope – the judge’s decision

I want to reflect on both the hearing and the published judgment (Barnet, Enfield and Haringey Mental Health NHS Trust v CC & Ors [2024] EWCOP 65 (T3)) specifically in relation to the concept of “hope”.

The first day of the hearing was dominated by evidence from doctors: Dr Matthew Cahill, an independent expert consultant psychiatrist, and ‘Dr W’ who has been treating CC for several years. The conversation quickly became what was essentially a debate about whether ketamine treatment was in CC’s best interests at this time. Dr W thought it was; Dr Cahill disagreed. 

Throughout the hours of medical evidence, a recurrent theme was the importance of the hope that CC had vested in ketamine treatment. For example:

Dr Cahill: We need to be mindful that there was very much a hope of receiving ketamine…we should be mindful of the consequences.

Hayden J: You’ve already heard me say that I recognise how much hope she had vested in ketamine, but that doesn’t mean I will be satisfied it’s in her best interests.

And on the second day, when giving evidence CC’s father said: “She needs to come out today with the same hope that she had with the ketamine”.

Mr Justice Hayden recognised this when he gave his oral judgment, stating that “Dr W’s position was essentially that she had invested so much hope in the ketamine that for her not to get her way would cause her to lose hope. And so that set up an utterly invidious dilemma. Dr Cahill thought ketamine was bound to fail, and Dr W thought ketamine was utterly integral for any way forward”.

The main factors that ultimately led to Hayden J’s decision against ketamine treatment were (1) the risks of ketamine treatment and lack of evidence regarding its use for patients with anorexia and autism spectrum disorder (ASD) and (2) Dr Cahill’s opinion that the core issue driving CC’s depression and disordered eating was her ASD. Dr Cahill firmly believed that “all other treatments would be futile” if CC’s ASD was not treated. 

And yet Mr Justice Hayden emphasised in his judgment that ketamine was not entirely out of the picture for CC. The Trust will bring the judge a plan for “robust, muscular, well-supported and properly resourced ASD therapeutic treatment …accompanying a plan to encourage CC to seize the opportunities that she has and to endeavour to cooperate by taking on and retaining as many calories per day as she can. Alongside that, Dr W and Dr Cahill are going to consider suitable medication. That regime may or may not lead to consideration of a ketamine-based therapy in the future. The therapeutic intervention contemplated may make that quite unnecessary if it succeeds. But if it doesn’t succeed, and if we do find ourselves at the end of the road, then I signal to CC that that is an option that will remain open and available in my mind”.

Thus, the judge did his best to maintain and encourage CC’s hope. CC will continue receiving treatment. Her life will go on, and it seems, paradoxically, that a key factor in reaching that decision was the judge’s recognition of the hope she had in a treatment he refused to grant her at this time. As he said in court: “I have listened to her and her family, the doctors and her nurse. I have been left with a prevailing impression of a young woman in whom the lifeforce beats strongly. Her psychiatrist has introduced and discussed with her the possibility of ketamine treatment. She has invested this with all her hopes and dreams. As the evidence has progressed, I have come to feel that she sees it as her salvation. There could not be a heavier or greater investment in it. But, to my mind, that can only signal the clearest possible will to live. Why else would she be so preoccupied with it?  Irrespective of its suitability, the risks and advantages, the extent to which she reposits hope in it seems to me to show she has hope and chooses life”.

This comment from Hayden J – and the case overall –  makes for an interesting and instructive contrast with another I watched recently, also before Hayden J and also concerned with an anorexic protected party.  In both his oral and written judgment, Hayden focuses on CC as a unique individual and explores her wishes and beliefs in detail.  He was not able to do this for  the anorexic patient in the case he heard recently under Schedule 3 of the Mental Capacity Act 2005. As I discuss in another blog post, (Cross-jurisdictional challenges and Schedule 3 in a case of anorexia: Health Service Executive of Ireland v SM [2024] EWCOP 60), Schedule 3 allows Orders from the Irish Courts to be recognised and enforced in England, but also prevents the kind of intense engagement with the individual at the heart of the case shown here. 

By comparison with the oral judgment in court, in the published judgment Hayden J seems to rein himself in. There is no mention of “lifeforce” or “salvation”. Instead, Hayden J describes CC as being “immensely enthusiastic” about ketamine (§38). The concept of hope was used in a more measured, objective way; the judge writes that “to invest so much hope in Esketamine, only for it to fail, would leave CC with no hope and no alternative plan that she could begin to contemplate. If Esketamine is to be tried, it must have the best possible opportunity to be successful” (§45). In this way, Hayden J uses hope to justify his decision regarding CC’s treatment, rather than as evidence of her “lifeforce”.

Hayden J also uses hope in a different way in the published judgment: he emphasises his own hope for CC and her family. His comments on the possibility of ketamine being used in the future are rephrased to: “[CC] must not perceive my decision as ideologically resistant to what may yet prove to be, and I hope will be, a progression in the treatment of this awful and insidious condition” (§47).  He states, “[m]y respect for her and her family is, I hope, obvious”, and acknowledges that “whilst it is not the judgment CC would have wished for, she will, I am confident, understand it… I hope she will be able to take some heart from it” (§48).  

The reasoning presented for his decision is essentially the same in the written form of the judgment as it was orally in court, but the language and tone of the published version are more restrained. 

Closing thoughts

All in all, my first time observing a Court of Protection hearing in person was tumultuous, but fruitful. I learned that being an observer can be intimidating, though mine was perhaps an extreme (and hopefully unique) case. I learned that the balance between privacy and open justice is a very fine one, and that sometimes a well-reasoned judgment demands more detail about an individual’s life than she might be comfortable with.

I also learned that the difference between what happens in the courtroom and what makes it into a published judgment can be striking. When analysing cases during my research, I will remember that although the judgments are often emotional, they can still be a subdued representation of what happened during the hearings. Observing this case has provided me with a much broader understanding of mental capacity and best interest assessments for anorexia nervosa patients. I’ve looked under the rug, so to speak, and found that the judgments I read are just one part of a much bigger picture.  

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

Note: Direction quotations are taken from contemporaneous notes and I believe them to be correct, but since we are not allowed to audio-record court hearings, they are unlikely to be 100% verbatim.

The patient with no friends or family: A challenge for best interests assessment

Jenny Kitzinger, 15th November 2024

It felt quite lonely and empty in Court 33 in the Royal Courts of Justice when I went (in person) on 14th October 2024. 

The case (COP 14234849) concerned a man in his early 60s who’d suffered a cardiac arrest in 2017, been resuscitated, and then remained in a prolonged disorder of consciousness [PDoC] ever since. He had no visitors, and at the time of the court application no family or friends had been identified and very little was known about his life before his injury, except that he had been very socially isolated.

The central issue to be determined by the court was whether or not it was in his best interests to continue clinically-assisted nutrition and hydration – although it soon became apparent there were also some more general issues at stake.

Usually, when I go in person to a hearing about PDoC there are family present – indeed, historically my reason for going along to a courtroom (as opposed to, more recently, just attending online) has been precisely to support the patient’s relatives in court. I’ve done this as an offshoot of my research in the Coma & Disorders of Consciousness Research Centre: we often have people coming to us for help when they have concerns about their relative’s care, particularly when they are frustrated by failures or delays in addressing best interests around life-sustaining treatment.

Going to this hearing made me realise that of multiple PDoC court hearings that I’ve attended, I’ve only twice before been at hearings without family or friends present. Once this was because the patient’s brother was too distressed to go (although he’d submitted a detailed statement) and asked me to go along instead; another time, the family were expecting a simple ‘directions hearing’ and were happy for me to simply report back to them – but the judge decided to make a final ruling because the evidence was already so compelling. (The man in question had already been a permanent vegetative state for over 20 years and his parents were clear that he’d not have wanted that: see Kitzinger J & Kitzinger C. (2017) Why futile and unwanted treatment continues for some PVS patients (and what to do about it) International Journal of Mental Health and Capacity Law. pp129-143.)

So, being in court this time felt very different. There was nobody who knew the patient and could try to articulate his possible views – no family members who might disagree with each other about what those might have been. There was nobody to miss or mourn him, and no sense of an individual who was part of a family or community. 

There were almost no resources for the court to work with in an effort to ensure that the protected party’s voice was heard as much as possible, no material to ensure that his wishes and values were ‘present’ in the court. Extensive efforts had been made by the clinicians involved. The Official Solicitor, who’d been able to deploy third party disclosure orders, had also tried to gather information. But it had proved impossible to find anything that might give the court insight into this patient’s wishes, values, beliefs and feelings that might be relevant to his current situation.

This lacuna not only impacted on the atmosphere and process of the hearing, it also, of course, created challenges for making a best interests decision and raised questions of principle about how to assess the patient’s best interests. It is that which makes this case so particularly interesting.

It also accounted for the presence of a journalist sitting on the press benches. The majority of court hearings about adults in PDoC do not receive media coverage. What attention they do get may be random (a journalist just happens to be in court on the day), unless the press are informed in advance that there may be something interesting about a particular case that makes it of more general public or legal interest.

The hearing

This case was heard before Mrs Justice Theis, the vice president of the Court of Protection.

The application was brought by the NHS North Central London Integrated Care Board [ICB] responsible for funding the patient’s care – represented by Claire Watson KC. The application was for the court to determine whether it was in this patient’s best interests to continue to receive clinically assisted nutrition and hydration (CANH). The court was also being invited to produce some general guidance about how to handle best interests when there is very limited evidence about a patient’s wishes, feelings, belief and values because of the absence of friends and family.

The other parties were the Royal Hospital for Neuro-Disability (where the patient resides) – represented by Ms Katie Scott, KC and the protected party, known as ‘XR’, represented (via his litigation friend, the Official Solicitor) by Mr Michael Horne KC.

The patient had suffered a severe hypoxic ischaemic brain injury in 2017 (then in his 50s) and had been an inpatient at the Royal Hospital for Neuro-Disability (“the RHN”) since Spring 2018. 

The treating team and second opinion experts agree that he is in a prolonged disorder of consciousness [PDoC], with no prospect of any recovery, and at the lowest end of the spectrum (what historically would have been labelled a Permanent Vegetative State). His treating clinician, Dr A, felt that in the absence of knowledge about XR’s wishes, the decision about clinically-assisted nutrition and hydration was ‘finely balanced’.

Two second-opinion experts gave oral evidence in court: Professor Wade, Consultant in Neurological Rehabilitation and Dr Hanrahan, Consultant in Neuro-rehabilitation. Both took the position that it was clearly not in XR’s best interests to continue with CANH. 

Professor Wade testified first – and he was cross questioned about how he’d made his diagnosis, and in particular why he thought it was possible that, even in his highly compromised state, XR might experience some form of pain (‘in the moment’, without the ability to anticipate, explain or remember it). He was also asked in what way XR’s condition or treatment might be considered ‘burdensome’ if he, in fact, could not experience that burden, and asked about XR’s day-to-day life and his future. It was clear that XR’s future was one of inevitable deterioration, but he was clinically stable. If life-sustaining treatment continues, he might die soon anyway from a one-off incident, or alternatively he might live on for another 10, or even 20 years.

Dr Hanrahan gave evidence next. His testimony and cross-questioning covered a similar range of issues. Generally, this presented a very consistent view of XR’s diagnosis and prognosis but it was clear that Dr Hanrahan had a different view on the potential for pain – judging it inconceivable that any pain could be experienced given the severity of the brain damage. He agreed with Professor Wade, though, that it was right to provide treatment ‘as if’ pain might be experienced.

There were other questions to both experts, including some that sounded rather critical from the Official Solicitor, asking Professor Wade about why he thought it was a straightforward best interests decision to discontinue CANH for this patient and on what basis he had speculated about what XR’s wishes might have been. Counsel for the Official Solicitor, Mr Horne, drew attention to, and problematised, inferences about what XR might want by reference to survey data about what ‘most people’ would want in this situation. He also challenged a postulation that a man who lived in such an isolated way probably valued his privacy and would have found his current situation of total dependence in a hospital anathema to the way he lived his life. Mr Horne pointed out that further rigorous investigation that the Official Solicitor had been able to do (e.g. using powers to get information disclosed from other organisations with which XR had had contact during his lifetime) had revealed more information than others had been able to obtain, and that one could not assume that how someone lived was necessarily though choice.

The closing statements from all three parties concluded that it was not in XR’s best interests for CANH to be continued. 

Each closing statement also argued for more judicial guidance for cases such as XR’s, with the Official Solicitor concluding that, without the appointment of the Official Solicitor and bringing these cases to court, clinicians risk making unjustifiable inferences and also: “marking their own homework and being judges in their own courts”. It was not clear to me from the hearing what general principles were being drawn from this case and how that might inform judicial guidance about cases ‘like XR’ in future, and I didn’t feel I’d heard the evidence around that unpacked in court (although there was much more information in the Position Statements which I received later, after they’d been redacted). 

The judgment

The judgment has now been handed down. It’s available here: NHS North Central London Integrated Care Board v Royal Hospital for Neuro-Disability & Anor [2024] EWCOP 66 (T3) (14 November 2024)

Is CANH in XR’s best interests?

A far as the key question about CANH is concerned, the judgment is straightforward. Mrs Justice Theis rules that it is not in XR’s best interests to continue to be given CANH.

Delays – again!

The judge is highly critical of delays in considering this patient’s best interests. She quotes the Official Solicitor’s statement that “even in a specialist facility such as the RHN”, XR remained “drifting in a vacuum of ineffective best interests decision making for a number of years.” Such delays, the judgment emphasises, are ‘wholly unacceptable and contrary to the patient’s best interests”. The judgment also spells out an important message for Integrated Care Boards. Annual reviews of the care the ICB commissions:

 “.. should include active consideration by the ICB at each review to be vigilant that the care package includes an effective system being in place for best interest decisions to be made in these difficult cases so that drift and delay is avoided. The ICB should not just be a bystander at these reviews.” 

The issue of CANH being given by default without any best interests assessment is a depressingly familiar point. Judges have been criticising this in case after case for many years now, and it’s something I’ve written about in several articles (e.g. Kitzinger, J & Kitzinger, C (2016) Causes and Consequences of Delays in Treatment-Withdrawal from PVS Patients: A Case Study of Cumbria NHS Clinical Commissioning Group v Miss S and Ors [2016] EWCOP 32, Journal of Medical Ethics, 43:459-468.)

Ironically, in some ways the recent cases exposing delays in relation to patients at the RHN may be partly because this hospital has made efforts to get systems in place, and review patients’ best interests – following major criticism of how another patient, ‘GU’, was treated by the RHN in a judgment published in 2021 (North West London Clinical Commissioning Group v GU [2021] EWCOP 59.) 

While the RHN undoubtedly has more work to do, I am very concerned that some centres with a large number of PDoC patients never seem to have any cases come to court. This leads me to suspect that these centres may not be carrying out best interests reviews of CANH at all, as it seems unlikely that all of their patients have clear-cut best interests, where there is no dispute about CANH or where the decision is never finely balanced.

General guidance? 

The judge declined to produce the general guidance requested in the application from the ICB. But it was interesting to see though that a lot seems to have happened by way of evidence-gathering, reflection and discussion around the general points since the hearing. Not least, some parties may have changed their positions or arguments, with consultation happening with those involved in producing professional guidelines about PDoC for the Royal College of Physicians and the RHN position moving away from requesting judicial guidance in these cases.

The Official Solicitor, however, had reportedly remained of the opinion that a discrete sub-category of cases where CANH discontinuation is being considered should come to court. 

Later, in §84 of the judgement, it is stated that if judicial guidance requires cases ‘such as XR’ to be brought to court the Official Solicitor submits that this will facilitate “a reduction in the pool of patients who are unlawfully receiving continued longstanding life-sustaining treatment by default because of an absence of family or friends to consult”.

It is not obvious how implementation of the suggestion in para 80 could result in facilitating such a reduction in treatment by default for these patients as outlined in para 84. It seems more likely to exacerbate the problem by creating a new barrier (the need for court application) to withdrawal of treatment from Ps without family and friends.

Clearly, a “reduction in the pool of patients who are unlawfully receiving continued longstanding life-sustaining treatment by default because of an absence of family or friends to consult” could only be achieved if the category of cases which “must” be brought to court were composed not only of those cases where there is a consensus within the treating clinical team that it is in Ps best interests not to continue life-sustaining treatment (as suggested in para 80), but also those cases in which the treating clinical team have adopted the position that (since family and friends are not available to argue a contrary position), treatment should simply continue indefinitely. 

The reality on the ground is that clinically stable PDoC patients are routinely given CANH and other treatments by default, often for decades. Our research shows that withdrawal of treatment that is not in a patient’s best interests often comes about only with the intervention of family members to advocate for the patient, and that without families to raise concerns about ongoing treatment, it is likely to continue by default. (Withdrawing artificial nutrition and hydration from minimally conscious and vegetative patients: family perspectives).

There is a great deal more in the judgment to analyse, including reflections on how Independent Mental Capacity Advocates might investigate when patients are unable to communicate values, wishes, feelings and beliefs themselves and have no family or friends. Finally, this judgment could also usefully be analysed in relation to the question of when treatments are ‘on offer’ or not, and when a decision is a ‘best interests’ decision at all – a matter that does not seem to have risen to the surface of the arguments made in this case. 

Jenny Kitzinger is co-director of the Coma & Disorders of Consciousness Research Centre, and Emeritus Professor at Cardiff University. She has developed an online training course on law and ethics around PDoC and is on X and BlueSky as @JennyKitzinger 

Declaration of conflict of interests: Jenny Kitzinger has recently been on a work placement at the Royal Hospital for Neuro-disability but had no involvement in this case and did not observe or write about the hearing as part of her placement activity.

A review of transparency and open justice in the Court of Protection

By Daniel Clark, 13th November 2024

Headlines in 2016 described the Court of Protection as a “most sinister” and “most secret” court. It ‘left a 94-year-old without savings or dignity’. 

Looking back from the perspective of 2024 at the early years of the Court of Protection (since its modern incarnation in 2007), it is clear that it’s come a long way in its approach to open justice. 

In a series of decisions made in 2014-2017 by Sir James Munby, the-then President, the Court of Protection became much more open and transparent. 

It is now common practice for cases to be heard in public (subject to a Transparency Order). Where a judgment is not published (which is still usually the case) members of the public or journalists who have observed the hearings are still able to report on it.

These reports can usually identify public bodies involved in the case, as well as the judge, the lawyers and the expert witnesses. Sometimes (though not often) we can also identify the protected party (P) and/or their families.

However, the judicial aspiration for transparency is not always met. Even when it is, it is not always clear what authorities the judges and lawyers are appealing to. 

This research project

The Open Justice Court of Protection Project wanted to understand what guides judges’ decision-making about issues relating to transparency and open justice. What rules, Practice Directions, and case law is there? When can we be legitimately excluded from hearings (or part of them)? How can we be confident that we should be able to name a public body, and how can we make that argument if we meet resistance? 

What is the decision-making process if the protected party, or their family, want to be named in reports of hearings?  And from an equally important perspective – how does the Court protect the privacy of the protected party (and their family) and what can we do when it fails?

A requirement of my PhD funder, the White Rose College of the Arts and Humanities (WRoCAH), is that I undertake a Researcher Employability Project (REP). This is separate from the PhD itself, and the idea is that I complete a research project with an external (non-university affiliated) organisation.  

The stars, one could say, aligned. WRoCAH approved my placement with the Open Justice Court of Protection Project (22 days for 2 days a week) and I started working on this project from July 2024. A requirement of a REP is that there is some form of tangible output. One of these outputs is this blog. (Another blog, about access to physical courtrooms, is forthcoming.)

This blog will be divided into 6 parts. In section (1), I give a brief history of transparency (or not) in the Court of Protection. In section (2), I address the fact that, unlike many other decisions the Court makes, the decision to make a hearing public or private, or to name a public body, is not a best interests decision. It is a decision reached by weighing Article 8 and Article 10 rights – a balance that is thrown hugely off kilter in closed proceedings.  Three pivotal issues relating to transparency and open justice are then highlighted: in part (3) identifying public bodies; in (4) identifying P, and in (5) identifying P’s family.  Finally, I will discuss in section (6) how P’s right to privacy is sometimes breached not by public observers, but by the court.  I end with some “Final Reflections’.

1. A (brief) history of transparency

It’s fair to say that the Court of Protection used to have, and for some still does have, a bad reputation on the transparency front.

Concern about ‘a forced caesarean birth’ and the imprisonment of Wanda Maddocks (who removed her dad from a care home against court orders) paved the way for the Daily Mail to campaign to open up the Court of Protection. 

In November 2015, the Daily Mail declared ‘victory’: the Court of Protection would ‘throw open their doors at last’ in a six-month transparency trial, starting in January 2016.

For its part, the Court had been concerned with ‘a need for greater transparency’ for some time. In January 2014, Sir James Munby (the then-President of the Family Division) had signalled that he wanted to take ‘an incremental approach’ to transparency.

First, he wanted to see more judgments being published[i]. Then, he would issue more formal Practice Directions (which guide how practice should be undertaken in the Court of Protection), and then there would be a change to Rules. 

A roundtable held in 2014, at the University of Cardiff, was influential in guiding the implementation of this Pilot. Mr Justice Charles, in a judgment handed down in a case usually referred to as “Re C”, set out detailed expectations for the Transparency Pilot. This began in 2016.

The intention was for feedback to be gathered on the experience of holding hearings in public but, according to the Court of Protection handbook, no such exercise ever took place. Instead, the Pilot was repeatedly extended until public access was incorporated into standard practice when new Practice Directions took effect on 1st December 2017. From then, transparency and open justice was the order of the day.

The doors of the Court were open but the public and the press weren’t frequently coming through them. In fact, it’s still quite rare now to see members of the press in hearings. The Daily Mail may have campaigned for greater access to the court but they don’t make much use of that today. 

Then, in 2020, the COVID-19 pandemic happened. The work of the court did not stop – in fact there was an increase in applications during this time.  Mr Justice Hayden, by then the Vice-President of the Court of Protection, issued Guidance on 31st March 2020 making explicitly clear that the court could sit remotely, and how that could work.  Reading this document is a disconcerting experience. The world being described, one of lockdowns and restrictions on free movement, is both like something from a history book and something that happened yesterday.  The judge was clear that the move to remote hearings does not mean that the public should be excluded from hearings. In his words: ‘Transparency is central to the philosophy of the Court of Protection. Whilst it will be difficult to ensure that a Skype hearing is as accessible to the public as an ‘Open Court’, this does not mean that transparency can become a casualty of our present public health emergency’. 

Celia Kitzinger attended the first entirely remote Court of Protection hearing (on Tuesday 17th March 2020). She was supporting Jill Stansfield, who at the time had to be identified under a pseudonym (“Sarah”). Her father, who can now be identified as Brendan Atcheson, was the protected party.  Mr Justice MacDonald reported that the feedback from this hearing was ‘universally positive’. It would appear, however, that he didn’t think to ask Jill or Celia what they thought. In the words of Jill (writing then as “Sarah”): “It felt like a second-best option. It didn’t feel professional. It didn’t feel like justice.  It felt like a stop gap to ensure a box was ticked – rather than a serious and engaged attempt to make decisions about my Dad“.

To his credit, MacDonald J revised his initial report, adding that ‘it is important to note, however, that feedback provided by a lay party in the proceedings provides a significant counterweight to the foregoing positive assessments, and points up important matters to which those conducting remote hearings, and those participating in remote hearings should pay careful regard’. 

With remote hearings becoming the norm, Celia Kitzinger and Gill Loomes-Quinn co-founded the Open Justice Court of Protection Project on 15th June 2020. The Project sought to support the judicial aspiration for open justice, alerting lawyers, judges, and HMCTS to barriers to transparency (such as inadequate case listings). It also shines a light on the work of the court, by encouraging members of the public to observe hearings and blog about what they see. 

2. Not a best interests decision: Private hearings, closed hearings, and public hearings

Three rights are engaged in considering whether a hearing should be public or private: Article 6, Article 8, and Article 10 of the European Convention of Human Rights. No right takes automatic precedence over the other and, indeed, many complement each other. 

Article 6 concerns the right to a fair trial. As with the other Convention rights, it is a qualified right. The relevant parts read as follows: ‘[…] everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice’.

I have only found one instance when the Court of Protection has sat in private ‘in the interests of […] national security’. This was when the court considered (and ultimately approved) an application to allow further testing of Sergei and Yulia Skripal, who were exposed to a Russian nerve agent. 

Private hearings

Private hearings are heard from a default position that members of the public and press are excluded, though in fact they can be admitted at the judge’s discretion. Ordinarily there is a total reporting ban, but an observer can apply afterwards for permission to report on particular issues. 

Practice Direction 4C (Transparency) sets out the exact reasons why a judge may decide to sit in private. These are strictly limited reasons, as follows: 

(a) the need to protect P or other people involved in proceedings; 

(b) the nature of the evidence; 

(c) whether earlier hearings have been in private; 

(d) whether the court location has the facilities to allow general public access; 

(e) whether there is a risk of disruption if the general public have access; 

(f) whether, if there is good reason to deny access to the general public, there is also good reason to deny access to ‘duly accredited representatives of news gathering and reporting organisations’. 

I think some of these reasons lack a certain reflexivity. For example (c) could well create justification for later hearings to be heard in private simply because somebody, at an earlier stage in the case, had failed to draw up a Transparency Order. In that situation, a case would become private by default, and not because of an express order from a judge (for two examples, see: “A private hearing before DJ Glassbrook” and “Can the court require certain information to be reported and specific words to be used as a condition of publication about proceedings?”) 

Nevertheless, this is a useful list for understanding when a judge might be minded to make a hearing private. Until recently, however, there was no such (public) guidance for closed proceedings.

Closed hearings

Unlike private hearings, which all parties are expected to attend, closed hearings are held when a judicial order excludes a specific party (and they may not even know that the hearing is happening). These tend to be heard without the press or public present[ii]. 

In cases such as these, other hearings may continue with the participation of the otherwise excluded parties but they do not know what is happening in these closed hearings or even that they are taking place – as happened in the proceedings recorded as Re A (Covert Medication: Closed Proceedings). In that case, “A” was removed from the care of her mother and placed in a care home. Here she was supposed to be receiving medication that would commence a delayed puberty. “A” was reported to be refusing to take her medication, and it appeared both to her mother and to public observers that she wasn’t receiving it. Until, that is, Mr Justice Poole disclosed that, in parallel closed proceedings, HHJ Moir (by now retired) had authorised the use of covert medication. This was done without the knowledge of “A”’s mother or her legal team. 

The court can also authorise the use of closed materials: when a specific party will not have certain materials shared with them (see, for example ‘A ‘closed hearing’ to end a ‘closed material’ case’). The first reported time that the Court of Protection considered withholding materials was in RC v CC & A Local Authority [2013] EWHC 1424 (COP). In this case, a birth mother (RC) wanted to reintroduce indirect contact with her adopted daughter (CC), who was 20 at the time of the application. HHJ Cardinal considered whether documents disclosed to RC should be redacted or unredacted (where the latter would reveal CC’s whereabouts).  While the judge did not consider that RC would “act improperly in abusing such information [say in an attempt to trace her]” (§33), he nevertheless decided it was strictly necessary to withhold disclosure – and also limited disclosure of some evidence to the birth mother’s Counsel alone.

In February 2023, after the Open Justice Court of Protection Project raised serious concerns about closed hearings and their impact on transparency in relation to the Re A case, the then Vice-President of the Court of Protection, Mr Justice Hayden, issued guidance on closed hearings. This makes it clear that the starting point must always be that all parties can participate fully but this can be diverged from when it is necessary to secure P’s Convention rights or there are ‘compelling reasons for non-disclosure’ (such as the wider public interest). The decision to hold closed hearings is a case management, not best interests, decision. 

I have not found many judgments that relate to closed proceedings or closed materials. There are, however, two things to point out. First, the Open Justice Court of Protection Project blog index has many examples of closed material and closed hearing proceedings[iii]. Second, it would appear, these proceedings only disadvantage family members. I have found no recorded instance of a public body being the excluded party. 

Public hearings and the Transparency Order

Article 8 and Article 10 are the rights that should be balanced when formulating Transparency Orders but, as Celia Kitzinger points out, we know they are actually being drawn up as boilerplate documents rather than as a result of anxious consideration. Regardless of this, these are the rights that are engaged (even if a judge doesn’t properly acknowledge this). 

Article 8 rights concern the right to respect for private and family life. Again, this is a qualified right. As the Convention puts it, there will be no interference by a public authority in the exercise of this right ‘except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others‘.

Article 10 rights are the right to freedom of expression, which includes the freedom to hold opinions, and to receive and impart such opinions or information without any interference by public authority. This is also a qualified right. In the words of the Convention, ‘the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary‘.

When the court has decided that a case should be heard in public, a Transparency Order restricts information that can be communicated about the case. The ‘standard’ form of the Transparency Order is here: https://www.judiciary.uk/wp-content/uploads/2017/11/cop-transparency-template-order-for-2017-rules.pdf. This is a legal Injunction, breach of which may be contempt of court, resulting in a fine, having your assets seized or being sent to prison. 

The Information that you cannot communicate (listed in §6 of the standard form of the Order) has the overriding objective of protecting P’s (Article 8) privacy. However, it is worth noting that it only protects P’s privacy in relation to the court case. It would not prevent somebody from writing, in detail, about P’s life. They just couldn’t mention the fact that the person is or has been a protected party. The Information usually includes anything ‘that identifies or is likely to identify’: 

  • P as the subject of proceedings
  • Members of P’s family
  • Where any of these people live or are cared for, or their contact details.

The category of P’s family is usually undefined and, therefore, very broad. This means that certain members of P’s family may be prohibited from talking about the fact that their (for example) cousin was involved in a court case. What is the likelihood that they would know an injunction prevents them talking about the court case? And is this really just? 

Sometimes, a public body is also included in this list of prohibited ‘Information’ (I will discuss this in the next section). Other times, treating clinicians and care companies are included. Save for exceptional circumstances, the rule is that expert witnesses should not be included in this Information. 

When a person is alleged to be in contempt of court, and committal proceedings are commenced, the general rule is that the person alleged to be in contempt (the alleged contemnor) is publicly identified. Court of Protection Rule 21.8(5) states that the court can decline to identify a party “if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness”. 

This does not extend to protecting the interests of a party other than those of the alleged contemnor (e.g. the protected party at the centre of proceedings). Since the alleged contemnor is often a family member of P and not infrequently shares their surname, there are ongoing concerns that naming alleged contemnors in Court of Protection proceedings risks identification of the protected party – a concern which may in fact have been at the heart of the contempt of court proceedings in the first place. 

It is worth noting that there are some anomalies and inconsistencies between the COP rule and the Lord Chief Justice’s Updated Practice Direction: Committal for Contempt of Court – Open Court (March 2015)(see the analysis in Esper v NHS NW London ICB (Appeal: Anonymity in Committal Proceedings).

It is within the court’s power to restrict the publication of any information relating to a case. However, as Mrs Justice Roberts put it in Re BU, “the court cannot and should not make reporting restriction orders which are retrospective in their effect” (§109). 

That being said, the standard Order has effect “until further order of the court”. This means that family members have to apply to the court if they want to speak openly about their family’s involvement in a court case, even after P has died. I struggle to see how an open-ended order is compatible with Article 10 rights. The Supreme Court is expected to express a view on this when it hands down judgment in Abassi and Hasstrup. These are two cases, joined together on appeal, that pose the same question: was the Court of Appeal right to discharge all reporting restrictions concerning the withdrawal of life-sustaining treatment from two children?

Every so often, members of the public have received a Transparency Order that includes P’s full name either on the face of the Order or in the file name. Sometimes, the prohibited Information (such as the care home at which P resides) is not anonymised in the Order. This is a flagrant breach of P’s privacy. Nevertheless, some lawyers don’t see the problem with this: when we raise it with them, they tell us that there isn’t a problem because we are bound by the Order anyway.

However, it has been clear from my research that, from at least 2017, it was the intention that Transparency Orders would be anonymised. Mr Justice Charles (the then Vice-President of the Court of Protection) published an amended version of the original Transparency Order. There is no ambiguity: the face of the Order should include ‘the initials chosen to identify P’ and the parties should appear ‘in appropriately anonymised form’. The rationale is emphasised in the Court of Protection handbook, which states: 

‘The Transparency Order is a public document and therefore P’s full name should no longer appear in full in it. Likewise, the names of the parties should be ‘appropriately anonymised’; although as with judgments public bodies should normally be named in full. except where naming the public body could give rise to ‘jigsaw identification’ of P’ (§14.26).

It’s this issue of jigsaw identification that I will now consider. 

3. Identifying public bodies

Local authorities, NHS Trusts, and Integrated Care Boards are all public bodies. They are all funded by taxpayer money, and the taxpayer has a right to know how that money is being spent. As Mr Justice Keehan put it, in Herefordshire Council v AB (a Family Court case), ‘the public have a real and legitimate interest in knowing what public bodies do, or, as in these cases, do not do in their name and on their behalf’ (§50, my emphasis).

On very rare occasions (such as in the Re A case discussed in the previous section), a public body is not identified because of a risk of jigsaw identification. In A Local Authority v The Mother & Ors (another Family Court case), Mr Justice Hayden explained the meaning of jigsaw identification like this: ‘The potential for jigsaw identification, by which is meant diverse pieces of information in the public domain, which when placed together reveal the identity of an individual, can sometimes be too loosely asserted and the risk overstated. As was discussed in exchanges with counsel, jigsaws come with varying complexities. A 500-piece puzzle of Schloss Neuschwanstein is a very different proposition to a 12-piece puzzle of Peppa Pig. By this I mean that whilst some information in the public domain may be pieced together by those determined to do so, the risk may be relatively remote. The remoteness of the risk would require to be factored in to the balancing exercise when considering the importance of the Article 10 rights’ (§18).

It is now generally the case that the Court of Protection permits the identification of public bodies. In fact, it is such common practice that judges don’t really comment on it unless they are making a decision the other way; that is, that they are choosing not to name a public body. 

At the time of writing, the most recent example of this is A Local Authority v ZX. The issues that the case concerned were ‘extremely disturbing’ (in the words of HHJ Burrows), and the judge was concerned that identification of the local authority would pose a significant risk of jigsaw identification. Indeed, the facts of the case (as set out in the judgment) are so singular that I can see how the judge reached that conclusion. HHJ Burrows was however keen to publish a judgment so that the public could still scrutinise ‘the judicial process and the conduct of the parties and others involved in litigation’ (a quote from Jack Beatson’s ‘The Rule of Law and the Separation of Powers’).

Concerns about jigsaw identification and the nature of the facts of the case persisted after the judgment was handed down. An appeal against the judge’s decision that ZX lacks capacity to engage in sexual relations was heard in public on 13th November 2024, but not (as is common practice) live-streamed, although we know at least one member of the public attended in person, and two attended via remote link.  

Sometimes public bodies do make arguments about a risk of jigsaw identification which are ‘too loosely asserted and the risk overstated’. On those occasions, members of the public have made applications to vary Transparency Orders (a right anybody affected by the Order has). The Open Justice Court of Protection Project’s blog index has many such examples[iv].

G v E & Anor (a case from 2010) is an important source for formulating basic arguments about the identification of public bodies. In this case, Mr Justice Jonathan Baker (as he then was) found that Manchester City Council had infringed P’s Article 5 (right to liberty) and Article 8 (right to private and family life) rights. The Council did not want to be identified in his public judgment; the judge found against them.  He identified three salient factors: the size of the local authority can reduce the risk of identifying P; taxpayers need to know what is happening so that a local authority can be held accountable; and publicity can shine light on the issues that local authorities are facing in the implementation of their obligations (§16).

4. Identifying P

Unlike many other decisions the Court of Protection makes, the decision as to whether to name a protected party (or allow others to do so) is not a best interests decision. It is instead the weighing of Article 8 and Article 10 rights. 

There is, in effect, a blanket ban on naming P. This is a default position that assumes, given the private nature of the matters before the court, that P would want to be anonymous and also that it is in their best interests to be anonymous.  If someone wants to name P, or P wants to name her-or-himself, there is lots of protracted and anxious consideration of the matter. 

In my research, I have identified twenty-one protected parties in the Court of Protection whose names have been published (in judgments) since 2009. These people represent a very small percentage of those who are actually “Ps”. One of the first was Steven Neary, who Mr Justice Peter Jackson (as he then was) found had been unlawfully deprived of his liberty by the London Borough of Hillingdon (§32).

On very rare occasions, some protected parties are named in published judgments without an explanation of why, and against the wishes of their family. This happened in a case concerning the withdrawal of clinically assisted nutrition and hydration (out of respect for the family’s wishes, who did not want P to be named, the hyperlink is to an open access paper which discusses the case but does not name P).  

After the death of her father, “Sarah” (whose father was the protected party at the centre of the first remote proceedings of the pandemic), engaged in a lengthy but ultimately successful application to vary the Transparency Order. Her father can now be identified as Brendan Atcheson, and “Sarah” can now be identified as Jill Stansfield. Of course, Jill Stansfield is not the only person who has successfully applied to vary the Transparency Order. In essence, the arguments that families employ are that, since P has dead, she or he no longer has a right to privacy. 

In another unusual case, the Court of Protection had treated Aamir Mazhar as a protected party. He was removed from his home after an out-of-hours application to the Court of Protection, and a Transparency Order prohibited his identification. However, it was subsequently found that he “has the capacity to make decisions about his life, including about his care and treatment” (§3). Aamir Mazhar chose to identify himself during (Court of Appeal) proceedings. 

I stress, yet again, that these are unusual circumstances. Quite often, a judge will not vary a Transparency Order so that P can be identified even when P would like to be identified. 

I’ve found four general overlapping categories of applications to name P in public: P has died; P wants (or would have wanted) to identify her-or-himself; the press wants to name P; P’s friends or family want to identify P. In my view, it is these last two categories that are the most common.    The case of Manuela Sykes combines the two. Manuela Sykes was a former politician who was described in the judgment of DJ Eldergill as having, ‘played a part in many of the moral, political and ideological battles of the twentieth century’. She was a trade unionist, an advocate for the homeless, ‘and a campaigner for people with dementia, from which condition she now suffers herself’. At the time of the hearing (in 2011), she was living in a care home and objecting to her deprivation of liberty. She wanted to move back to her own home (which the judge authorised, albeit for a trial period that ended with her return to a care home).

The press wanted to name Manuela Sykes as the party to proceedings, and some of her close friends agreed they should be able to. As a result, the judge had to grapple with whether Manuela Sykes’s Article 8 right to a private and family life took precedence over the Article 10 rights of the press, and her family and friends. After a weighing exercise (which you can find in the published judgment), the judge found that there was ‘a clear public benefit’ in the publication of her name. This was supported by the fact that Manuela Sykes had been a life-long campaigner, and had been open about her diagnosis with dementia. 

Sometimes, P’s family want to be able to identify P because there will be benefits to other Ps and other families involved in Court of Protection proceedings. Other times, there may be a tangible benefit to P. Jordan Tooke and William Verden were two young men who were in need of a kidney transplant. In both cases, their family applied to the court to vary reporting restrictions so that they could be identified. In being able to use their name and pictures, the families felt that this would increase the chance of finding an altruistic kidney donor. 

Sometimes, reporting that precedes a Court case essentially means that “the horse has already bolted”. A Transparency Order prohibiting the identification of P would achieve very little.  Andy Casey was a healthy young man who was assaulted in a pub garden. Testing confirmed that his brain stem had died (meaning he was legally dead) but his family did not accept this. The NHS Trust made an application to the Family Court for declarations that he was dead, and it was lawful for organ support to be withdrawn.  Andy Casey’s family wanted his name to be known, and media reporting of the case prior to a judge making a Transparency Order meant that making one at the time of the hearing would have been entirely pointless.  Though not heard in the Court of Protection (the Official Solicitor declined to act as Andy Casey was dead, and therefore did not have “best interests” in the legal sense of the term), the principles of transparency still apply. As Celia Kitzinger and Brian Farmer noted in a blog about the case, ‘there may be lessons here for families who want to speak out’. 

Of course, not every application to be able to name a protected party is approved. In LF v A NHS Trust & Ors, Mr Justice Hayden considered an application by G’s father (LF) for the discharge of all reporting restrictions. LF said that this was so the family could start a GoFundMe page to raise funds for a new vehicle. On that occasion, the judge did not grant the application. While accepting that he was restricting LF’s Article 10 rights, he considered this to be ‘a proportionate and necessary intervention’ to prevent any attempt at disrupting P’s move from hospital to a care home.  We blogged about this case a year later, when the court considered allegations that P’s family had tampered with her medical equipment. 

When a judge authorises the identification of a protected party, it naturally follows that their family will also be identifiable. After all, the “jigsaw” becomes a lot smaller when you know a name. 

5. Identifying P’s family

In Southend-On-Sea Borough Council v Meyers (a case heard under the inherent jurisdiction of the High Court), Mr Justice Hayden allowed the identification of Mr Douglas Meyers. However, Mr Meyers was keen to protect the privacy of his son, KF. The judge prohibited his identification. 

What of families who do not want to be able to name P but do want to be able to identify themselves? This is the position of “Anna”, whose mother (who is still alive) was a “P” in a now concluded court case. You can read about it here: “‘Deprived of her liberty’: My experience of the court procedure for my mum”. “Anna” does not want to have to use a pseudonym but a Transparency Order prevents her from writing in her real name. She has written a blog about this situation. It is worth reading it in full but I have picked out a few paragraphs that succinctly explain the problem:

‘As part of the case, we had to confirm that we would comply with the Transparency Order (TO) issued as part of the process. This was a standard TO, typical of the one used in most COP cases (as explained here: Transparency Orders: Reflections of a Public Observer ).  I didn’t hesitate to agree. As far as I was concerned, I could see the purpose of it, protecting mum’s privacy. 

I didn’t foresee how much of a burden it would become, as I have wanted to share our story in order to raise awareness of the process, and so that other families can benefit from our experience. […] Now I find myself living in a parallel universe. In order to write and talk about the case, I had to create a pseudonym “Anna Jones Brown”. But, with my real identity, I’m not allowed to talk about it, or refer my friends and family to Anna’s activities, such as the blogs I have written or the Podcasts that [my sister] and I recorded with Clare Fuller (https://speakforme.co.uk/podcast  N° 55, 56 and 57). 

If you have read my blog or listened to the Podcasts, you know more about our experience than my family and friends do.’

It is not just “Anna” who wants to be able to identify herself, and the Project has blogs about other cases in which a family member has asked to be able to identify themselves (see, for example: “She wants to tell her Court of Protection story but will the court allow her?”)

This research project therefore incorporated what, if anything, case law has to say about family members who want to identify themselves but not P. I have only been able to find one such case. In what was a complete surprise to me, it was actually a judgment handed down prior to the Transparency Pilot. The case, Re M, concerned allegations that E, a mother, had imposed a factitious disorder on her son, M. Among other issues, the court was asked to consider an order that would prohibit M’s parents (E and A) from discussing the case with anybody other than their legal representatives.

Mr Justice Baker declined to make such an order. He said: ‘It is certainly none of my business what E or A do with the rest of their lives and I do not discourage them from publishing their experiences or views on the many issues that have arisen in this case’ (§43).  This came with a catch, however. The judge prohibited the identification of the local authority, social workers, and any others associated with ‘the events of this case’. This was because ‘there is a significant risk that M could be identified because of the highly unusual facts of this case’. So, M’s parents could identify themselves but not M, his address, or the local authority. 

This is by no means perfect.  However, it is proof that it can happen. Judges can permit families to identify themselves while, at the same time, keeping P’s identity secret. Hopefully, this logic will be accepted so that “Anna”, and many others like her, can finally step from out of the veil of anonymity.  

6. When P’s privacy is not protected

The steps towards greater openness and accountability in the Court of Protection are to be applauded. However, the court’s actions can (on occasion) infringe P’s Article 8 rights. 

For example, P’s name (and even P’s address) has sometimes been posted in the public lists. When the Open Justice Court of Protection Project sees this, one of its core team contacts the court to alert them. As the lists are posted in the late afternoon/evening, the court office is usually closed by the time somebody sees the email. By that time, P’s name has been on a publicly accessible website (CourtServe) for quite some time. 

As I discussed in the second section of this blog, Transparency Orders should not name the people whose identity is protected by the injunction. However, it is not uncommon for members of the public to receive a Transparency Order with P’s name on the face of the Order or in the filename. Recently, I received a Transparency Order that included not only P’s name but also P’s date of birth on the face of the order. 

Several members of the public have received a “record of information” – essentially, a full list of the exact information that the Transparency Order prohibits us from identifying and which we might otherwise not have any access to (such as P’s address and telephone number and the home contact details of P’s family). 

This seems difficult to square with the Court’s commitment to protecting P’s privacy. It is one thing to hear the name of a care home mentioned briefly during a hearing. It is quite another to be given a document that tells you exactly where that care home is and how to contact it. This may arise from confusion between a Transparency Order and a Reporting Restrictions Order but in “Re C” (referred to in section 1), Mr Justice Charles was clear that a Transparency Order (in the standard form) does not contain a schedule identifying those who cannot be identified (§195(i)).

It is also becoming quite clear that not all judges are giving anxious consideration to whether a case should be heard in public or in private.   In pursuit of the appearance of open justice, it seems that some judges are automatically making hearings public (by authorising a Transparency Order) without any consideration of what would actually happen if a member of the public turned up to observe. 

As Eleanor Tallon has detailed, when she asked to observe a hearing listed as a “Public hearing with reporting restrictions”, she was sent a link but on joining, she learnt that P was distressed at the thought of a member of the public being present. The judge therefore decided at that point to hear the case in private – which was a perfectly legitimate decision (though Eleanor goes on to say that the judge may have misapplied the Civil Procedure Rules). However, the case number indicates that this is a long running case and clearly nobody had thought to discuss with P the possibility of a member of the public being present until one of us turned up.  Not discussing the possibility of an observer being present is, in my view, potentially harmful to P, as well as disrespectful. According to the Court of Protection’s own rules, there is a general expectation that P will be told about proceedings that concern them. Surely part of that discussion should include the possibility of a member of the public being there. 

This is a concern that is also acknowledged in the Court of Protection handbook. Its authors write: ‘The [Open Justice Court of Protection] Project team and the observers who have sat in on hearings have asked searching and important questions about the practices and processes of the court. However, it is also legitimate to identify that facilitating that access has come at some cost in terms of the (scarce) resources of the court. It is also legitimate to identify that there are some situations in which insufficient focus has been paid to the impact upon P of (in effect) broadcasting – or at least, narrowcasting – a hearing‘ (§14.4, my emphasis). While this shouldn’t be taken as an appeal for more hearings to be made private, it is an issue that the Court needs to seriously grapple with. 

There are some judges who have tried hard to strike the balance between privacy and open justice. For example, Mr Justice Poole recently informed “A” and her mother why members of the public were observing, and advised them to move two seats along. This gave them more privacy from observers, as they were now out of camera-shot, while also facilitating open justice. 

One way for the Court to strike a balance between P’s privacy and its commitment to open justice (which are not always mutually exclusive) is – as both Poole J and Hayden J have done on several occasions –  to hear an application for a private hearing in public court. That way, the public can make submissions themselves (such as suggesting other ways to safeguard P’s privacy that P may find acceptable). It would also be a clear signal that there’s no conspiracy in the decision to hear a particular case in private. Instead, it’s a result of the proper balancing of Article 8 and Article 10 rights.

Final reflections 

The Court of Protection has come a long way since the damning headlines of 2016. Indeed, the general commitment to open and transparent justice is one that should be recognised and applauded. There are certainly lessons here that the Family Court should take careful note of.

I have no doubt that these moves to greater transparency have been assisted by the work of the Open Justice Court of Protection Project. The work of the Project in educating and informing about the role of the Court, as well as alerting HMCTS to barriers to transparency, has greatly improved matters in this area. 

In fact, it’s because it’s clearer how to obtain video links for Court hearings that more members of the public have observed hearings. In turn, this has created a need for judges and lawyers to further consider how to make hearings transparent in practice (rather than only theoretically so) such as ensuring that observers can actually see and hear the courtroom during hybrid hearings. Despite time pressures and resource constraints, HMCTS staff, lawyers, and the judiciary have worked hard to try to make sure that justice is being seen to be done. At the risk of stating the obvious, it would not be possible for the public to know about the work of the Court of Protection without their efforts.  

Things are by no means perfect but it’s a vast improvement since 2020, let alone 2016. 

This blog is a result of research conducted as part of a Researcher Employability Project (REP), which is funded by the White Rose College of the Arts & Humanities (WRoCAH). Notwithstanding this funding, which only Daniel is in receipt of, the Open Justice Court of Protection Project retains editorial control over this blog. Furthermore, the views expressed in this blog are those of Daniel, and not those of WRoCAH. Further information about the REP can be requested by sending an email to openjustice@yahoo.com. 

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

[i] It is worth noting that the number of judgments published in the Family Court far outweigh the number of judgments published in the Court of Protection. This may be because cases in the Court of Protection more often conclude in agreement with no decision or judgment necessary, but experience invites me to believe that this isn’t the full story. I have observed a number of (sometimes contested) hearings, including before Tier 3 judges, where a “final judgment” was handed down but where no subsequent judgment was published.

[ii] As far as I know, I am the only member of the public who has been permitted to observe a closed hearing. I wrote about this fact, though not what actually happened, in this blog: “Closed hearings, safeguarding concerns, and financial interests v. best interests”.

[iii] For example
“A ‘closed materials’ hearing on forced marriage” by Celia Kitzinger 
“Emergency placement order in a closed hearing” by Celia Kitzinger
“Closed hearings, safeguarding concerns, and financial interests v. best interests” by Daniel Clark 

[iv] For example
“What to do if the Transparency Order prevents you from naming a public body” by Celia Kitzinger
“Prohibition on identifying Public Guardian is “mistake not conspiracy”, says Judge” by Celia Kitzinger and Georgina Baidoun
“Prohibitive Transparency Orders: Honest mistakes or weaponised incompetence?” by Daniel Clark
“Centenarian challenges deprivation of liberty – and judge manages transparency failings efficiently” by Celia Kitzinger
“My experience at Weymouth Combined Court: listing, access, and transparency” by Peter C Bell
“Judge approves P’s conveyance (against his wishes) to a care home – and tells lawyers to “just stop!” routinely anonymising public bodies in draft Transparency Orders” by Daniel Clark

Respecting autonomy in treating Anorexia Nervosa

By Sydney White, 29th October 2024

I knew I wanted to research the Court of Protection’s approach to patients with anorexia when I read A Mental Health Trust v BG [2022] EWCOP 26. The truly harrowing facts of that case (also reported by a blogger, here: Anorexia and refusing nutrition: An observer’s perspective on A Mental Health Trust v BG) showed me just how high the stakes are for Court of Protection judges, and how soul-wrenching cases on anorexia can be. 

I recently began my MPhil in Medical Law, studying the relationship between life, autonomy, and the COP’s application of the best interests test to withdrawal of treatment from anorexia patients. That’s why I was drawn to observe Re CC when I saw it listed on the Open Justice Court of Protection Project website, knowing it was about anorexia because Daniel Clark had previously observed it (and blogged about it here: Treatment for Anorexia Nervosa: A brief directions hearing).  It was an opportunity to see what I’m studying in practice, rather than through written judgments. 

The case (COP 20003709 on 22nd October 2024) was heard by a different judge from previously: it was Hayden J this time. It concerns CC, a 21-year-old woman with diagnoses of anorexia nervosa, depression, and autism. The Trust seeks a declaration that treatment requiring the use of force or restraint is no longer in her best interests, and that she should not be treated against her wishes.  This is also the position of CC’s parents and the Official Solicitor on behalf of CC.

This was my first time observing a hearing, and I observed it remotely. It was an in-person hearing in the Royal Courts of Justice, which I attended virtually via MS Teams. I was impressed with how easy it was to gain access – the link came through about 15 minutes after I sent my original public observer request. I was less impressed by the quality of the virtual hearing. Poor sound quality seems to be a reality of watching in-person hearings remotely – one of the give-and-takes for open justice. 

Counsel for the Trust (Adam Fullwood) began the hearing by drawing attention to the online observers and their potential impact on transparency. Mr Justice Hayden seemed to interpret this as a request for us all to turn our mics and cameras on and state who we were (though Fullwood did not put it in those terms). This was very quickly dismissed by the judge; he said he was fully aware that this was a “sensitive and difficult case”.

Fullwood then made the Trust’s submission: further evidence in the form of a report from a medical expert was required for the court to determine CC’s capacity to make her own medical decisions. This submission was ultimately successful, despite the judge’s concern about the delay this occasions. The expert (Dr Cahill) will meet with CC next week and the next hearing is listed for a day and a half on 30th and 31st October 2024.

Proceedings and Autonomy

‘Autonomy’ is a word that comes up often in this area. Judges and patients implicitly define it as the ability to dictate the path of one’s life. In these sorts of cases, it most often refers to the freedom of the patient to decide for herself whether feeding and other treatment for anorexia nervosa should continue and, sadly, how her life should end.

In this hearing, I found it intriguing how CC’s counsel (via the Official Solicitor, Fiona Paterson KC) used the term ‘autonomy’ in relation to the proceedings. Paterson stated that CC “is at the centre of the proceedings which are here to promote her autonomy” and that the “proceedings themselves” exist “for CC to assert her autonomy”. 

It is an important but often overlooked point that long, confusing judicial proceedings can be an added agony for patients and families who are already going through desperately sad times. CC’s ability to directly observe and take part in the hearing was, as Ms Paterson rightly pointed out, of great importance in preserving her autonomy. Ms Paterson stressed the significance of “the very fact we are here today with [CC] sitting beside me”. CC did, indeed, sit right next to Ms Paterson for the duration of the hearing, her elbow propped on the desk and her head resting on her hand, with her parents sitting on the bench in front of her. 

Ms Paterson and CC spoke with each other repeatedly – Ms Paterson seemed to be explaining things to CC, asking her questions, consulting her and genuinely engaging with her. Ms Paterson’s body language was also indicative of a true connection—often bending down and leaning in to CC to listen intently. She stressed how important it was that “at the very least CC leaves court with a greater understanding” of Hayden J’s decision and the proceedings to come.

Similarly, Hayden J had a private ‘judicial visit’ with CC for about 45 minutes. Such visits are key to recognising and supporting patients’ autonomy. Reports from psychiatrists and family members can only do so much; hearing about a patient’s experiences from them, face-to-face, permits and encourages patients to participate in the proceedings, as required by s.4(4) of the Mental Capacity Act 2005. Hayden J, himself, has stated that private judicial visits can be “driven by respect for P’s dignity” and “a signal of respect” to family members (Official Judicial Visits to (Guidance) [2022] EWCOP 5 (10 February 2022).

Given its incredible difficulty (and often lengthiness), it’s encouraging to see the court making efforts to ensure that patients understand and engage with the judicial process to the greatest extent possible. Exercising autonomy by shaping the trajectory of one’s life depends on understanding all the factors at play. So, even though autonomy is so often (and rightly) used in reference to the experiences of anorexia patients in hospitals and clinics, it’s also important not to lose sight of patients’ experiences in the courtroom. 

A ‘Human’ Process for All

As a researcher, it’s easy to get into a rhythm of reading judgment after judgment, a pattern that results in viewing patients and their families as words on a page. The events are summed up into 10 pages of factual background, objective medical evidence, and solemn discussion. Viewing this hearing as a public observer flipped that process on its head. 

Watching the hearing was striking because of the sense of amicability and co-operation between all parties. The atmosphere was inquisitorial rather than adversarial – everyone was clearly determined to work together to reach the conclusion that was best for CC. Indeed, there were moments of chuckling and teasing by Hayden J, like when he remarked to CC’s father that it “must be a common occurrence in your house of… girls; you don’t have a chance to finish a sentence” (CC had been interrupting her father and filling in pauses while he gave his statement.)

The time in the courtroom was not (all) spent wiping tears or sitting in grave silence. The parties shared smiles, laughing at Hayden J’s comment on his (private) “wide-ranging discussion” with CC, which included everything “from ketamine treatment to Balenciaga trainers”.

This is not to say that counsel or Hayden J were not taking the matter very seriously. The judge took very seriously CC’s request to be treated with ketamine, even looking at a report obtained by CC’s father which had not been filed in the proceedings And Hayden J did not beat around the bush, stating to counsel for the Trust (who referred to the current treatment plan as “suboptimal”) that “you can use whatever euphemism you want, but we are still discussing death”. 

The amicability was striking to me because it humanised CC. Listening to her speak and hearing the laughter of the judge and her parents reinforced the fact that the cases I study concern real people who possess quirks and individuality. For example, Hayden J remarked that in his conversation with CC he learned that she was “an avid reader” when young, particularly enjoying psychological thrillers. He recommended that CC read his judgment in Re WA ( Avon and Wiltshire Mental Health Partnership v WA & Anor [2020] EWCOP 37 (16 July 2020) (also blogged here: Hunger Striking for his Identity: Autonomy, Capacity, and Justice), stating that she“may find something in WA that helps her understand the process of the court” and that “whilst it is a totally different case there are some striking parallels”. I was impressed by how, in making this recommendation, Hayden J showed legitimate respect for CC and her individuality. 

There has been no final decision on whether CC has the capacity to make treatment decisions for herself. But by interacting with CC in this way the judge made it very clear to CC (and all watching) that she is and will always be a person, not a combination of various medical diagnoses and trauma. 

This was a reminder that I needed. In my dissertation, I will argue for the protection of the autonomy and dignity of patients with anorexia nervosa. Ironically, as I undertake that research, I must remember that they are more than subjects of compulsory feeding. They are people who laugh and read and wear designer trainers to get through difficult times.

Editor’s update: Sydney also attended (in person) the final hearing in this case and blogged about it here (click on blog title): “An in-person hearing on anorexia (Re CC): Observer’s rollercoaster and the role of ‘hope‘”.

Sydney White is currently undertaking her MPhil (Master of Philosophy) in Medical Law at the University of Oxford, having recently graduated from Oxford’s undergraduate law program. Her dissertation will focus on the relationship between life, autonomy, and the Court of Protection’s approach to cases concerning force-feeding of patients with anorexia nervosa. Her fascination with Medical Law brought her to the Open Justice Court of Protection Project. She can be found on LinkedIn at www.linkedin.com/in/sydney-e-white, on Twitter/X @sydwhiteCOP and on Bluesky@sydneywhite

Cross-jurisdictional challenges and Schedule 3 in a case of anorexia: Health Service Executive of Ireland v SM [2024] EWCOP 60

By Sydney White, 11th November 2024

This case (COP 13398706) concerns a young woman (SM) with a diagnosis of anorexia nervosa and a history of depressive episodes. 

She’s “habitually resident” in Ireland but has for some time been receiving treatment at Ellern Mede, a specialist eating disorder provider in England. Hayden J has heard this case before and issued an earlier judgment: Health Service Executive of Ireland v Ellern Mede Moorgate [2020] EWCOP 12.   

SM has remained in England since the 2020 judgment, with regular authorisation of her continued deprivation of liberty – of which this is the most recent. There is also a published judgment arising out of this hearing: Health Service Executive of Ireland v SM [2024] EWCOP 60 (T3).

At the hearing I observed on 24th October 2024, the applicant, the Health Service Executive of Ireland (HSE), was represented by Henry Setright KC and Steve Broach KC (although the latter was not in court). The Irish High Court, finding that SM continues to lack capacity to make decisions regarding her treatment, had made an Order on 14th October 2024 that she should continue to be treated by Ellern Mede in England.  Henry Setright KC brought that Order — a “protective measure” under the Hague Convention — to the Court of Protection under Schedule 3 of the Mental Capacity Act 2005, which gives effect to the Hague Convention on the International Protection of Adults 2000, so that the Order could be recognised and enforced in England. (The mechanics of Schedule 3 are explained in greater detail in Hayden J’s recent judgment – §§13-23, Health Service Executive of Ireland v SM [2024] EWCOP 60 (T3)) – and also in Open Justice Court of Protection Project blog posts (e.g. Irish cases in the Court of Protection and Another Irish Schedule 3 case: “An oddity in the Court of Protection”).  

Hayden J was obviously somewhat uncomfortable with what he was being required to do.  He found it “disturbing” (he said) that he’s “been making orders depriving [SM] of her liberty continuously since 2019, from late adolescence into young adulthood”.  It seems he would have liked more information about SM before continuing to make another such order, but there is a limited jurisdictional basis on which an English judge can revisit the findings of the Irish Court. 

The hearing took about two hours, and Mr Justice Hayden did decide again to recognise and enforce the Irish Order – on the basis that he would receive from the HSE by 21st November 2024, a report describing SM’s current life, presentation and day-to-day routine, and a report from a psychiatrist evaluating SM’s capacity to make decisions regarding her treatment, including a reasoned analysis justifying the maker’s conclusions “to include inter alia consideration of the test pursuant to s.1 of the Mental Capacity Act 2005, and whether the presumption in English law of [SM] being capacitous has been displaced” (Recital K: Approved Order of the court, 25th October 2024).   The judge said in court that he was “not anticipating an extensive report, but I think given the length of time she’s been under the restrictive regime of my Order, I would like to be reassured on these points – respecting my obligations under s.5 and acknowledging the force of comity in this area”.  

Furthermore, Hayden J’s Order recognising the protective measures of the Irish High Court “shall apply to further orders made in Ireland to the extent that they extend the duration of the protective measures contained in the said Order of 14 October 2024, without need for further application to the Court of Protection”.  This may be a response to Henry Setright’s report that “SM’s anxiety and condition deteriorate proximate to hearings… hearings cause a deterioration”.  

Cross- jurisdictional approaches in the courtroom

As is typical of Schedule 3 cases, SM was not a party to the case, so all exchanges in court were between the HSE’s representative (Mr Setright) and the judge. It can definitely be said that the Order from the Irish court was not “rubber-stamped” – as some have feared might be the case.

Mr Setright’s composure and strong arguments were impressive, especially during Hayden J’s scrutiny of the Irish court’s approach to establishing patients’ capacity – a scrutiny he pursued with some rigour while saying, “Please don’t think in investigating it in this way I intend any disrespect to the Irish High Court judges…. I have the greatest respect for… their experience in this sphere”.[1]

Hayden J drew attention to the fact that the Irish order emanated from the inherent jurisdiction of the High Court:

Judge:  In Ireland it’s the inherent jurisdiction. That wouldn’t be the case here, by virtue of the MCA.

Setright:  Developments in Ireland tend to replicate, or are similar to (I shouldn’t suggest imitation) the provisions of the Mental Capacity Act….

Judge:  I know the great interest Irish judges take in the MCA, as many judges throughout Europe do, and I mean no discourtesy to other judges that, flexible though the inherent jurisdiction is, the discipline of the MCA is not there.  It’s a slightly amorphous concept, the inherent jurisdiction. And one of my concerns is that it’s paternalistic in its complexion. And I found myself wondering whether there was an element of paternalism here, at least sufficient for me to investigate.

Later, there was this exchange:

Judge:  The whole of the inherent jurisdiction has coursing through it a paternalistic element.

Setright: That is the English inherent jurisdiction

Judge: I see it in the Irish inherent jurisdiction as well, and why would it be otherwise.  It is there in parens patriaalmost by definition.

Setright: The HSE would encourage Your Lordship not instinctively to elide the Irish and English inherent jurisdictions.

Judge: I’m not “instinctively” doing it.

Setright: Forensically, then.

Judge:  But when I read the Irish inherent jurisdiction judgments, they remind me of the English inherent jurisdiction for which we are criticized and I think rightly so.

Setright: The English team here is concerned to bring home to our Irish counterparts that paternalism in that way is simply not a feature of the Irish jurisdiction.

Hayden J takes a somewhat different approach in the published judgment: “Evaluating capacity ‘through the lens of the inherent jurisdiction’ appears to be a very different exercise from that required by the MCA in this jurisdiction. I emphasise ‘appears’ because the jurisprudence regulating the application of the inherent jurisdiction in the Irish Court may serve, as I strongly suspect it does, to deliver a similar approach to our own.” (§29)

It is “human instinct”, said the judge, “to want to keep a talented young person at the centre of the process alive, nourished and hydrated – there’s a human instinct to want to feed”, but against this “autonomy is vigilantly to be guarded”.  He raised, in particular, a concern with the possibility that SM’s apparent acquiescence to treatment is “learned helplessness” (a term used about SM by a consultant psychiatrist, see §25 and §26 of the published judgment). 

The judge did not seem convinced that the Irish courts had done all that was necessary—or all that should be done—to displace the presumption that SM has litigation capacity and subject matter capacity. He stated that:

“It’s obvious that the Irish court evaluated capacity on the balance of probabilities test. That’s old habit. We in this jurisdiction start with the presumption of capacity and have to displace that on the balance of probabilities. Those two tests are sometimes conflated in this jurisdiction, but this case reveals a clear difference of approach, I think”

This comment emphasises the importance (for Hayden J) of the presumption of capacity enshrined in the Mental Capacity Act 2005, which, for the English courts, can be displaced only by a careful application of the test in ss. 2 and 3. In his written judgment, Mr Justice Hayden states “this fundamental safeguard is the gateway to the jurisdiction of the MCA”.  

“The question”, said Hayden J in court, “is whether there’s any difference evidentially between what’s needed to displace the presumption of capacity [the English approach] and what’s needed to establish incapacity on the balance of probabilities [the Irish approach]”.

It was perhaps unsurprising, therefore, that Mr Justice Hayden heavily scrutinized the decision of the Irish courts. He said that he has “not heard any analysis of how they came to [their] conclusion” on SM’s lack of capacity, and brought up some evidence that suggested (to Hayden J) that SM may in fact have capacity. This point made it into the published judgment: “SM’s recognition of the benefit of treatment at Ellern Mede and her careful navigation of the issue of consent also show indications of, at very least, some degree of capacity…in this sphere”(§27).

Although Mr Setright emphasised the importance of a cooperative relationship between the two jurisdictions, Mr Justice Hayden held that “however cooperative it may be, I want to see what [their decision] is rooted in”. These comments reflect the tension that arises in Schedule 3 cases, when the Court of Protection cannot conduct its own assessments but must rely on those of the Irish courts. 

And even if Hayden J were to find a difference between Irish and English approaches to capacity in this case, the court would nonetheless be bound to accept the Irish finding of fact on capacity unless (for example – as Mr Setright pointed out) it would be “manifestly contrary to public policy to proceed…”.  He said: “It doesn’t follow, as night follows day, that a different approach would result in a public policy consideration: it may do. It may not”.  Nonetheless, he was keen to “allay the court’s concern” and to reassure the judge that the capacity decisions from the Irish court were “sufficiently in keeping with the English model as not to involve a public policy exception”. This argument appears in Hayden J’s judgment at §36.

I was fascinated to observe the judge’s dissatisfaction with not being able to communicate with SM directly, and his determination to ensure that her lack of capacity had been properly established. 

At the same time, in his written judgment, Mr Justice Hayden quoted what he himself had said in the previous judgment in this case, where he held that the “striking benefit” of the Schedule 3 regime is that “it provides clarity of responsibility. There is a clear, unbroken chain of command from patient to court. It also provides an avoidance of ‘jurisdictionalconfusion’. which ought always to be regarded as inherently dangerous” (§23). In a way, therefore, the ‘clash’ of jurisdictions is to be welcomed because it makes the jurisdiction under which the case ultimately falls abundantly clear. 

Schedule 3 and Anorexia Nervosa Cases

The tensions that arise in Schedule 3 judgments seem to be exacerbated in cases concerning patients with anorexia nervosa. Treatment of anorexia often involves extreme intrusion into bodily integrity, including long periods of compulsory feeding under restraint. Mr Justice Hayden stated that this area is “so often incredibly delicately balanced and the one area of the Court of Protection in which I hear the most conflicting evidence”. Anorexia patients are often ‘on the cusp’ of having capacity and the decision depends on a plethora of medical and non-medical evidence. The Court of Protection’s lack of access to this evidence due to the operation of Schedule 3 was frustrating, both for Mr Justice Hayden and for me as an observer. 

Considering the delicate balance in this area, the reports that Mr Justice Hayden requested regarding SM’s day-to-day circumstances are to be welcomed. I see them as essentially a caveat to his enforcement of the Order; the Order is recognised on the basis that Hayden J will receive evidence which satisfies him that SM does lack capacity to decide her own treatment. Indeed, in his written judgment, the judge held that he was obliged to do so under the Human Rights Act 1998. It is encouraging to see Court of Protection judges recognising, as Mr Justice Hayden did, that “autonomy is vigilantly to be guarded” when applying Schedule 3 of the Mental Capacity Act. 

Sydney White is currently undertaking her MPhil (Master of Philosophy) in Medical Law at the University of Oxford, having recently graduated from Oxford’s undergraduate law program. Her dissertation will focus on the Court of Protection’s approach to best interests assessments for patients with anorexia nervosa under the Mental Capacity Act 2005. Her fascination with Medical Law brought her to the Open Justice Court of Protection Project.  She has previously published this blog post: Respecting autonomy in treating Anorexia Nervosa.  She can be found on LinkedIn at www.linkedin.com/in/sydney-e-white, on Twitter/X @sydwhiteCOP and on Bluesky@sydneywhite

[1] Direct quotations were checked with Celia Kitzinger, who also observed this hearing, and we believe them to be correct, based on our contemporaneous notes.  Since we are not allowed to audio-record court hearings, however, they are unlikely to be 100% verbatim.

Detention in hospital, capacity and treatment: Silent contributions from P in court

By Celia Kitzinger, 7th November 2024

The protected party (P) is in his twenties with an acquired brain injury and a spinal injury that’s caused paraplegia. He also has a long history of illegal substance abuse and is diagnosed as suffering from Post-Traumatic Stress Disorder, maladaptive coping strategies and likely an “executive functioning deficit”.  

He’s been receiving inpatient hospital treatment for about the last two weeks for lower right leg cellulitis and osteomyelitis on his sacrum but will soon be medically fit for discharge.  He objects to being in hospital and wants to leave as soon as possible. 

The case (COP 14244533) came before HHJ Burrows on 29th October 2024, sitting remotely in Preston.  It was listed in Courtel/CourtServe as concerning: “Whether P lacks capacity regarding residence, care and treatment. Discharge from Hospital. Deprivation of Liberty”.

The protected party was in court throughout, visible on screen seated close to the computer and listening intently to the proceedings.  But P didn’t get to speak to the court: there was no indication that he expected to be able to do so, or was unhappy about not being invited to do so.  His microphone was switched off.  Sometimes he appeared to be asking questions of the person seated beside him (part of his legal team, I think), triggered by particular observations from counsel or the judge.  Sometimes he didn’t wait for a response from that person, so I figured he was expressing an opinion about what he heard, rather than asking a question.  Occasionally he twisted around to speak to his mother, seated some distance behind him, next to an older man (maybe also a relative?) who was never introduced.  

His legal representative via the Official Solicitor (Ben McCormack) mentioned at one point in his submissions that  “P is listening very carefully”. I saw that too.  I also saw that P, via his gestures, facial expressions and mouthed responses was keeping up a running commentary on what was happening in court (as I’ll describe below).

The issues before the court

Basically, the problem is that the “urgent authorisation” depriving P of his liberty expires tomorrow (having already been extended once) but the parties are of the view that he can’t be discharged until there is somewhere for him to live and receive care and treatment – and at the moment there isn’t anywhere.  

The care home P formerly resided in has declined to readmit him, after experiencing a range of difficulties in managing his care including illegal substance abuse (visitors are believed to be supplying him with street drugs)  and treatment non-compliance.  

The applicant ICB (represented in court by Aisling Campbell) is asking the court to rule that there is “reason to believe” that P lacks capacity to make his own decisions about care, residence and treatment, and that it’s currently in his best interests to reside in and receive treatment at the hospital.

The local authority (represented by Roger Hillman) also expressed concern about the expiry of the urgent authorisation  and the need for court authorisation of a DOLS in P’s best interests.

The judge said it clearly wasn’t in P’s best interests to be in hospital – and that it wasn’t in the hospital’s interests to have him there either.  He referred to the position statement from the Trust (not currently a party to proceedings) which he paraphrased as saying that “hospitals are not good places to be, they’re full of infections and he shouldn’t be in a place where he’s at risk of becoming ill”.  He added that – although the Trust had not made this point – P was also “occupying a bed that others may benefit from more than P currently is”.  

The  Trust raised the issue of capacity – because “if P has capacity there is no option to compel him to remain”.  The Trust representative, Ed Pollard, said that “clinicians have assessed P as having capacity for care and treatment decisions” so if they are expected to detain P in hospital against his wishes, as the applicant asks (apparently on the basis of a medical report from a doctor who assessed P in the community before the hospital admission), then they would welcome interim s.48 declarations “to provide the clinical team with reassurance that they’re operating under an appropriate legal framework”.  P is not allowed to leave the hospital grounds and is subject to continuous supervision, “and the longer these restrictions go on, the higher his frustration is predicted to become”.  

Counsel for P said that the question for the court (predicated on an interim declaration that P lacks the relevant capacity) is “whether it is in P’s best interests to reside and receive care at the hospital” – which is, as the judge retorted, “the only place where he can reside and receive care”.  Counsel pushed for an urgent timeframe for the public bodies to come up with a workable alternative and asked for “on a weekly basis, a detailed spreadsheet of all the work being done for P to find a place where he could live”.

The judge was somewhat resistant to organising a next hearing very soon.  He said it was “a difficult case, but I’m not quite sure what the purpose of the court is at the moment apart from devising timetables and authorising DOLS and not making any difference to what is happening to P on the ground. […] I’m concerned that these hearings cost a lot of money – all these people on the blankety blank screen in front of me are doing a good job, but this is also taking them away from their job […]. I’m concerned to make sure he isn’t just filed away and left until something crops up, but what concerns me is having hearings that are pointless: what’s a reasonable timescale?”.   

Judgment

The judge approved the Order in the end  “with the big proviso that P needs to leave the hospital as soon as possible.” He was “acutely mindful that these are interim declarations and  there is in fact to some extent a dispute about the assessment of his lack of capacity… and at the next hearing, the whole issue of capacity will have to be revisited”.  So, on the basis that there “reason to believe” that P lacks the requisite capacity,  P will continue to be deprived of his liberty in hospital (although there’s no medical need for him to be there) until the next hearing, likely to be mid-November.

Silent contributions from P

When P is invited to speak to the judge in open court, we normally report as accurately as we can what they say.  In this case, I am limited to reporting on his silent contributions – but I think they do not leave any doubt about his wishes and feelings on the matters under discussion. They also show that he almost certainly disagrees with the position taken by his court-appointed litigation friend – in that he indicates his own view is that he has the requisite capacity that counsel asks the judge to declare (for now) that he lacks.  

Here are my observations of P’s silent (or inaudible) contributions.

  • The ICB  is leading on discharge planning: they’re looking for single occupancy accommodation but will “need to source a property and then start a recruitment drive”. (P nods vigorously.) Until then,  one possibility is that P lives with a family member or in Air B&B.  “With live-in carers?” asks the judge.  (“No!” P mouths at the screen).
  • Counsel for the ICB refers to “the strength of his feelings about the restrictions”.  (Vigorous nodding from P).  She said that the Mental Health Trust had found “no acute mental illness” (nods from P) but that concerns had been raised in relation to capacity for contact (P wrinkles his brow in apparent puzzlement and shakes his head). There is also an assessment finding that he lacks capacity for treatment decisions (P’s eyebrows shoot up,  and he shakes his head slowly from side to side in apparent disbelief).
  • The draft order before the judge declares that P lacks capacity in relation to residence, care and treatment and the ICB submits that “the court can properly make s.48 interim declarations that P lacks capacity to make decisions about care and treatment”.  (P shakes his head.) 
  •  The ICB raises the matter of an assessment of P’s capacity to manage his finances.  (P looks shocked – his mouth open in a display of horrified disbelief that his capacity in this domain should be questioned). She adds that it will take “a month to assess his capacity”.   (P opens his eyes very wide and jerks his head backwards – the sort of non-verbal communication that says something like “this is unbelievable!!”)
  • The judge says, towards the end of the hearing: “I’ve decided it’s intolerable for P to remain in hospital with no obvious endpoint. There really has to be something in the meantime that can accommodate him.  I appreciate there are risks with him being outside a hospital setting, but there are risks to him being in a hospital setting too.” (P clearly mouths the word “Thank you!” at the screen).

Reflections

This is only one of many hearings I’ve watched where someone is occupying a hospital bed when there’s no medical need for them to be in hospital – simply because there’s nowhere else for them to go (most recently “A protracted hospital stay: A next hearing in the ‘renal failure’ case).  The BBC reported last year that across England around 60% of patients classed as fit to leave remain in hospital at the end of an average day, with the biggest obstacle being a lack of beds in other settings, such as care homes and community hospitals.

There is nothing the Court of Protection, or any of the lawyers, can do in this situation.  If there’s no placement option on the table, the judge can’t compel anyone to provide one.  As HHJ Burrows said: “the problem is he’s fit for discharge but he can’t be discharged because that means having a package of care in place […] there’s no point dragging the ICB to court when they haven’t found anywhere, or when they have found a provider but still need to source the package of care. There’s no point having a hearing so I can just shout at the ICB for no reason”.

I hope to be able to report on progress at the next hearing. 

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 580 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)

 

How much court ‘oversight’ should there be in long-running COP cases? 

By Claire Martin, 6th November 2024

UPDATE: An application to name the local authority (originally prevented by the terms of the Transparency Order) was successful. The local authority is Royal Borough of Windsor and Maidenhead .

This hearing (COP 11868452), before HHJ Tolson, on 23rd September 2024, at Reading County Court, was listed as  a two-hour ‘fact-finding’ hearing (to establish disputed ‘facts’ about the actions of the parties).  It turned out to last only thirty-five minutes and was the final hearing in the case. 

I think the planned fact-finding hearing was to establish whether P’s cousin, who I will call C, was coercively controlling of P and whether restricting or banning contact was in P’s best interests.  It was no longer needed as some facts have now been established in relation to criminal proceedings against C. C pleaded guilty in separate, criminal, court proceedings, to defrauding P of over £30,000 (and the police believe that the final sum is likely to be much higher). He awaits sentencing in November 2024. P has also been working, unpaid, for C in his business for many years, and has sustained injuries and harm (including dehydration and a work-related fracture) whilst working for him. 

P was represented by Dr Oliver Lewis (via P’s Litigation Friend – I am not sure if this was an ALR – Accredited Legal Representative but it was stated that the Litigation Friend was not the Official Solicitor) and the Local Authority was represented by Michael Paget. I have not named the Local Authority in this blog post because I think I am forbidden (by the Transparency Order) from doing so.  I have addressed this matter at the end of the blog post – see the section below called “Transparency Matters”.

I am going to record what I know of what has happened so far in this long-running case, then describe the process by which HHJ Tolson came to a very quick judgment. I will end by discussing the role of the Court if Protection in ‘oversight’ of people’s care and then mention transparency matters.  

What has happened so far? 

There have been several hearings in this case already, but no opening summary of the case was provided in court and proceedings moved at pace, so it was quite difficult to follow what was happening. This is contrary to Mr Justice Hayden’s (former vice-president of the Court of Protection) guidance which states: “a small practical suggestion to improve access to the business of the Court when press or other members of the public join a virtual hearing. Whilst the judge and the lawyers will have read the papers and be able to move quickly to engage with the identified issues, those who are present as observers will often find it initially difficult fully to grasp what the case is about. I think it would be helpful, for a variety of reasons, if the applicant’s advocate began the case with a short opening helping to place the identified issues in some context.”

This guidance is reflected in a recent Open Justice Court of Protection Project blog, “Top Tips for Judges”, which includes this as “Tip 14”: “Ensure that the hearing starts with an “opening summary”, detailing the basic facts of the case and the issues before the court.  This would also be in line with the advice of the former Vice-President, Mr Justice Hayden (“The Court of Protection and transparency”). Some judges prefer to do this themselves; others ask counsel for the Applicant to do so.”

Unfortunately, due to lack of an opening summary I don’t know what is said to be P’s “impairment of, or a disturbance in the functioning of, the mind or brain” (S2 (i) MCA 2005) such  that he is unable to make decisions about his care, contact and finances (the three areas of capacity I think were the subject of best interest decisions for the court in this case). I also don’t know where P is currently living. 

What I do know is as follows: 

  • P is a man who has only one relative, his cousin, C – who has now pleaded guilty to defrauding him
  • At the time of the hearing, P didn’t know why his contact with C had been stopped – so he did not know that C had defrauded him of a significant amount of money, only (Oliver Lewis said) that C had ‘done something wrong’. 
  • In between hearings for P, C’s criminal case has been heard, and he has pleaded guilty to the charges of fraud, meaning that the fact-finding planned for the hearing was not necessary. 
  • The dispute between parties at this hearing was about whether this should be a final hearing or whether the court should retain some oversight of P’s future contact arrangements with C:
    • The Local Authority submitted that they were ‘seeking to conclude proceedings today’
    • Counsel for P submitted that ‘the court needs to take time to ascertain what is in P’s best interests (in relation to contact with C)’. 

A Quick Judicial Decision

The hearing was quickly into submissions – once it had been established that facts in relation to C’s treatment (in particular coercive control) of P were not necessary. 

Counsel for P submitted that the benefit of continuing the litigation would be “…that P would have a Litigation Friend, in the name of Miss XX, and who he trusts, and she can inform court about what his wishes and feelings are. This may be a dynamic situation, but there is a defined piece of work about information gathering from P and [C], because we are IN PROCEEDINGS – it is inappropriate to direct them to go away and do this themselves, then a future final hearing could be vacated by consent at that stage.” [counsel’s emphasis]

The Local Authority was proposing, in their counsel’s words, that  ‘the Local Authority can go off and explore that, without the supervision of the court’. 

I was interested in how the court would go about making this decision about how much ‘supervision’ the Court of Protection has over P’s life and the relevance of ongoing, ‘dynamic’ decisions. In this case, the Local Authority was very keen to end the court proceedings before P knew about the extent of his cousin’s abuse of their relationship.  This would be, then, without the court knowing the impact this information about his cousin’s abuse would have on P, and the nature of ongoing contact between them. In my experience of observing Court of Protection hearings (around 60 since 2020) this seemed precipitous. I have generally observed judges ensuring that the court is furnished with a clear contact plan and that it is in place and working (when contact with an abusive relative is proven) before proceedings are ended. 

At this hearing there was no discussion of P’s wishes and feelings in relation to C, save for his counsel mentioning that ‘all we know about P’s wishes and feelings is that he’s OK with supervised contact’. This, of course, is before he knows about the fraud. 

On the day of the hearing, the Local Authority was reported (by Oliver Lewis, acting for P) to have changed the details on the supervised contact plan (from monthly to weekly) without explanation. “In my submission, the court should look at a well thought through options appraisal. […] the Local Authority needs to discuss plans with [C], then… he may say ‘I don’t want contact’.  So, it would raise P’s expectations [to have a weekly contact plan put in place]. So further work needs to go on. The court needs to take the time to ascertain what is in P’s best interests – whether monthly or weekly – but further work needs to go on. This hearing can’t be a final hearing, it can be a fact-finding hearing. It can find facts and do more work around what is in P’s best interests with regards to contact.” (Counsel for P)

After counsel for both parties had made their opening statements the judge intimated his intent straight away: “Yes hmmm, I’m not sure about that Mr Lewis …. these hearings continuing after today.  I am not sure what purpose that would be. Circumstances could change over time …. I can’t see the merit in justifying the proceedings, at significant expensive as they are, continuing in those circumstances.” 

It felt to me very much that counsel for the Local Authority wanted to hurry the judge and the proceedings to an end: “There’s going to be a decision to say no unsupervised contact with the caveat. It doesn’t warrant the supervision of the court”. But counsel for P pointed out the risks of curtailing the court proceedings: “Your Honour they’re not agreed [the contact arrangements] because it says [outlined what draft order said about contact] …. There aren’t any supervised contact arrangements RIGHT NOW, so in any event, even if there are, he {P} should be prohibited [from directly contacting his cousin] because the arrangements should be organised by someone other than P. In no circumstances should P be allowed to contact [C] directly. [Counsel for P, his emphasis] 

In response to this submission, the judge simply directed amendments to the draft order to reflect that others should arrange supervised contact for P with C. 

HHJ Tolson then gave what he described as his ‘short judgment’ (which I reproduce here, as far as my contemporaneous typed notes could capture his speech, so there are likely to be gaps and possible inaccuracies): 

“I think these proceedings should come to an end today. They are very longstanding and at considerable public expense. We have sought to engage the cause of the problem (P’s cousin) over a long time and have failed. This has demonstrated that a relationship between P and [C] is manifestly not in his best interests, save potentially in one limited respect. That the two men have been close is obvious from the papers, but what has happened is that charges of fraud brought by the CPS have been subject of pleas of guilty by him. He has defrauded P at least by £33,000 and the police view is [likely] more than that. Other concerns …. Did it involve a form of modern slavery? P was working unpaid in [C’s] [nature of business] business? Was the state of P’s unhygienic cluttered accommodation down to [C’s] actions? Were the conditions under which P worked for  [C]  such that he was injured out of [C’s] negligence? All of the above arguably demonstrated that the relationship could only be styled as one of coercive and controlling behaviour, so extensive as to characterise the entire relationship. The Local Authority and P’s Litigation Friend now agree that the court should issue an injunction against [C], preventing all contact save one limited respect. What they do not agree on is whether proceedings should end today or whether further work should be done to better define circumstances under which P may spend time with [C] in future. That the injunction should be issued is in my view clear. It is equally clear is there should be a declaration that it is in P’s best interests that he should not have any unsupervised contact with [C]. But as I have said in the past the two men have been close. P lacks capacity, but that does not mean his wishes and feelings are not significant. Suppose it is the case that in future he wishes to spend time with [C] and that [C] is a) at liberty and b) wishes to spend time with P, then [this can be arranged]. My difficulty with continuing proceedings is that it will vary over time … [P’s cousin is] due to be sentenced in November … will he be in prison? ….{missed} [there are] questions not answerable at this and future hearings. The right way to go is to give the Local Authority [permission] to organise supervised contact if it feels it is right to do so, and is (a) in line with P’s wishes, and (b) if [C] consents. Exceptions should say [amendment to the court order such that the Local Authority must organise the contact]. This is a fact-finding hearing, there is no need to make fixed decisions … Findings should record the convictions of fraud, the Local Authority does not pursue any other findings. I do think proceedings should conclude today.  Right, that concludes the judgment.”

And that was that – a thirty-five-minute hearing. 

Court of Protection ‘oversight’ or ‘micromanagement’? 

This hearing led me to wonder whether there is any guidance about how much supervision or oversight is the ‘right’ amount? When should public bodies, in this Local Authority’s words, ‘go off and explore …. without the supervision of the court’?  The court can’t oversee ALL best interest decisions. Which ones should it oversee? Which ones does it oversee and what is that based on? 

In a recent Court of Appeal judgment (upholding the judgment of Mr Justice Poole in the Re: Covert Medication: Residence case) Lord Peter Jackson (who wrote the judgment with which the other two judges agreed) addressed the fact that the Court of Protection is not a ‘supervisory’ court: 

… the Court of Protection exists to make decisions about whether a particular decision or action is in the best interests of the individual. It is not a supervisory court, as confirmed by Baroness Hale, giving the judgment of the Supreme Court in N v ACCG [2017] UKSC 22, [2017] AC 549 at [24], in a passage referred to by the judge: “…the jurisdiction of the Court of Protection (and for that matter the inherent jurisdiction of the High Court relating to people who lack capacity) is limited to decisions that a person is unable to take for himself. It is not to be equated with the jurisdiction of family courts under the Children Act 1989, to take children away from their families and place them in the care of a local authority, which then acquires parental responsibility for, and numerous statutory duties towards, those children. There is no such thing as a care order in respect of a person of 18 or over. Nor is the jurisdiction to be equated with the wardship jurisdiction of the High Court. Both may have their historical roots in the ancient powers of the Crown as parens patriae over people who were then termed infants, idiots and the insane. But the Court of Protection does not become the guardian of an adult who lacks capacity, and the adult does not become the ward of the court.”

§90 in Re A(Covert Medication: Residence) [2024] EWCA Civ 572

HHJ Tolson, in this case, did think the court had discharged its duty to ‘make decisions about whether a particular decision or action is in the best interests of the individual’. The best interests decision, for P, was that supervised contact could be arranged with C (if both P and C agreed), and that others must make the arrangements. He referenced, a few times, how long and costly the court case had become. 

So, why continue to have ‘supervisory’ oversight, when a decision had been made, and public bodies enact best interests decisions for people day in, day out, without the Court of Protection’s involvement? 

I don’t know the answer to that question. All I know is that I have observed other cases in the Court of Protection where lengthier monitoring, supervision, oversight or what I have heard some public bodies call ‘micromanagement’ (see this blog) happens routinely. Why not this one? 

The case referenced in the Court of Appeal judgment above (and we have blogged about many times) has been in the Court of Protection since 2018. At a recent hearing (see blogs here and here) it was ordered that the case must come back before the court in another twelve months, when the Deprivation of Liberty authorisation is due for review. So that will be eight years in proceedings. Whilst this could be ‘on the papers’ rather than in a court hearing (as long as there have been no changes or difficulties) the Court of Protection retains oversight. 

The decision for P in this case, though, wasn’t about Deprivation of Liberty (although I suspect he was deprived of his liberty as he would be unlikely to be deemed capacitous to decide where to live, go out etc., given the description of his level of exploitation from C). So, I am guessing that a Deprivation of Liberty authorisation did also apply to this case.

Eleanor Tallon, addresses ‘micromanagement’ in this blog about the Court of Protection streamlined process (known as Re: X) which is ‘designed for non-contentious cases which allow for judicial review without an oral hearing (or ‘on the papers’): 

“To some, it could be seen that the court is tasked with micro-management of a care plan, and there may be some debate as to whether this is best use of court time, as it should be the responsibility of the provider and the commissioning body to ensure that the care plan meets the legal and statutory requirements around care standards and human rights.

But in practice, support plans may fall short of this, and often it is these types of cases that come to the attention of the court for further scrutiny.”

The blog continues: 

“I was reassured that the Judge in Cassie’s case was intent upon seeking specific evidence to address the discrepancies between the care planning and the actual implementation. In effect, it was highlighted that a support plan may sound wonderful, but the real question is whether the plan is being carried out effectively.

The proof is in the pudding.”

In this case, though, as Oliver Lewis submitted, “[t]here aren’t any supervised contact arrangements RIGHT NOW”. So, the court wasn’t authorising a plan that had been formulated. And indeed, it did not know whether P, or indeed his cousin, C, wanted to have continued contact with each other. The ingredients for the pudding hadn’t yet been selected. 

Another long-running case is that of Tony Hickmott, who was detained in a psychiatric hospital for many years. His parents made an application to the Court of Protection in 2019 and the judge ruled that Tony must be discharged from hospital. He has been living in a renovated house with care since October 2022. However, this is not going as well as hoped and recently the case has come before the court again (blogged here). One issue is the role of the court and whether ongoing involvement is warranted. In the blog, Amanda Hill writes: 

“I found the discussion around the role of the Court of Protection interesting. Initially the court had been involved to order Tony’s discharge from hospital. Now the parents want the court to stay involved to ensure that Tony is receiving appropriate care. Although counsel for the parents [also Oliver Lewis]stated that the court’s role isn’t to “micromanage”, it seemed to me that without the Court’s continuing involvement, Tony’s parents fear that there is no mechanism for ensuring improvements are made to Tony’s care and that he receives good ongoing care. 

The judge seemed to accept in the hearing that the court will continue to be involved on an ongoing basis. She said “…you are right that the main purpose was achieved. Tony is now living in the community. The court will probably be involved in the rest of Tony’s life for the Deprivation of Liberty authorization. So, the dispute between the parties is about the nature of that involvement”.” 

One difference between Tony Hickmott and P in this case, of course, is that Tony has loving parents who advocate strongly for the court’s assistance in ensuring his care is good enough. P in this case has no other relative, other than his exploitative cousin, C. Could it be that when faced with relatives who are desperately trying to secure adequate care for their relatives, judges are more likely to agree to the court’s ongoing involvement? I don’t know – and I can’t find guidance on what criteria apply to oversight of the implementation of court orders. Is there any? 

In this case, the judge’s decision felt cursory and without a full explanation of why the contact plans for P shouldn’t be scrutinised by the court. 

As well as cost, court hearings are often unsettling for P, and/or their relatives and many people do not want them to continue. In the case of Re: A, that is certainly the situation for A and her mother who experience the court, and services involved on behalf of the state, as intrusive and unwelcome. Although the substantive hearings for that case are at an end, the possible developments in A’s case are also dynamic and, as HHJ Tolson warned in this hearing ‘[c]ircumstances could change over time’, so they could for A. I feel uncertain about why, in this case, the potential for change over time weighs less heavily in favour of the COP remaining involved, than for A in her case. 

From what I heard in this hearing, P is a very vulnerable man, who has lived under the coercive control of his cousin for many years, seemingly believing he is working for him, yet in reality having been subject to what seems to be a form of modern slavery. He was not paid for his labour. He also suffered physical harm as a result of that labour. If P is under a Deprivation of Liberty authorisation he will have an RPR (Relevant Person’s Representative). He has no one, other than statutory services, to look out for him. 

Transparency Matters

The hearing was listed like this:

It correctly lists it as a public hearing, which is as it should be, and tells us it is ‘hybrid’, meaning some of the parties are in the physical courtroom and others attending via a remote link. 

The court clerk had helpfully sent the Transparency Order about two and half hours before the start of the hearing (and told me I would receive the link from the court directly). I received the link for the hearing ten minutes before it was due to start, so I was starting to get anxious I wouldn’t receive it. 

The importance of receiving the Transparency Order well before the hearing is that it enables us to check the subject matter of the injunction – what we can and cannot report. Sometimes public bodies are included in the injunction and (although  there are sometimes very good reasons to anonymise public bodies – for example if it might put P at risk or make their identification inevitable) the default position is that public bodies should always be named in public hearings. They are accountable to us, the public, paid for by our taxes. 

On this occasion there did appear to be an injunction against naming the public bodies involved in the case. This is what it said:

The subject matter of the Injunction

6. The material and information (the Information) covered by this Injunction is:

(i) any material or information that identifies or is likely to identify that:

[…]

(d) any professional or organisation that is involved with the planning,

arranging, commissioning, reviewing, regulating and/or monitoring PC’s

care

I took the opportunity to email the staff member back asking her to raise the TO with the judge:

Dear XX 

Please could this be brought to the attention of HHJ Tolson. Thank you.

Dear HHJ Tolson

I am a public observer and core team member of the Open Justice Court of Protection project. I am hoping to observe a hearing before you this afternoon. 

I would like to clarify the TO for the case COP 11868452. 

It is 6(i)(d) that I wish to clarify. I read this as meaning that I CAN name a provider public body (such as a Local Authority or an NHS Trust) in any reporting about the public hearing. 

If I have misunderstood the wording of the TO and the “professional(s) and organisation(s)” included in “planning, arranging, commissioning, reviewing, regulating and/or monitoring” P’s care are indeed public bodies involved in the provision and delivery of care, I would like to request a variation of the TO to enable me to name any public body that is involved in the case. I understand that there must be careful consideration and balancing of Article 8 and Article 10 rights in a decision such as this. It is unusual for us to be required to conceal the identity of public bodies – paid for by our taxes and publicly accountable for their actions.  

Many thanks for your consideration of this matter and thank you for your support of open justice.

Yours Sincerely

Dr Claire Martin

Public Observer and Core Team Member of Open Justice Court of Protection

HHJ Tolson didn’t refer to my query in the hearing (which judges often do, because the query relates directly to the transparency of the case, and it is far more efficient than needing to address the issue after a hearing has ended).

I didn’t receive a reply, so I sent a formal application via a COP9 form on 20th October 2024 requesting that the Transparency Order is varied to enable the naming of the public bodies involved in P’s care. This is what I said: 

Update: On 15th November 2024 I received an email from the court attaching an amended Transparency Order. It was the previous Order, amended in red. Here’s the front page.

And paragraph 6 had been amended as I requested. Here’s how it looks now.

Success! Ir would be even better if the court could get it right first time in future.

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

A protracted hospital stay: A next hearing in the ‘renal failure’ case

By Celia Kitzinger, 3rd November 2024

At the end of October 2024, a man in his forties with Down Syndrome and learning disabilities, was removed from his home and transferred to hospital against his own and his father’s wishes.  

The ‘extraction and conveyance’  (as it had been referred to in the earlier hearing, reported here) went better than expected.  No physical restraint was required. 

The hospital assessed him, diagnosed Stage 5 kidney disease (which means he needs dialysis to stay alive) and inserted a tunnelled line. The subsequent dialysis sessions have gone well – and perhaps surprisingly – his father, who has never left his side, has encouraged and supported him to have this treatment while he’s been in hospital.  

Now the case is back in court for the next decisions that need to be taken.

The Honourable Ms Justice Sonia Harris

The judge who authorised P’s transfer to hospital is a new High Court judge, Ms Justice Harris, who only took up the appointment a month ago: there’s a photo of her (and some information about her) on the ‘new appointments’ website.  She’s a family law specialist and was formerly a law professor at the University of Birmingham: she’s published books on family law, the future of legal education and the law profession, and aboriginal child welfare in Australia and Canada.

A few weeks ago (at the 18th October hearing), she made a difficult, but ruthlessly logical, decision not to authorise the immediate forcible removal of this vulnerable man to hospital until one more attempt had been made to support his father to bring him in voluntarily. That attempt was made the day before the earliest day that the forcible removal could be done (so didn’t delay his admission or treatment) – so although it didn’t work out, and it was necessary to implement the Trust’s plan (which she authorised on 21st October),  involving a special ambulance and the police the following day, at least everything was done that could have been done to secure the father’s cooperation before moving to coercive measures. Other than creating some anxiety and uncertainty for Trust staff about the possibility of P and his father turning up at the hospital earlier than expected, it’s hard to see any negatives to this. It was a good decision.  

I was immediately struck by the judge’s supportive and facilitative approach to transparency.  She told the three observers that we were “very welcome”, checked that we had the Transparency Order, and authorised sharing of the parties’ Position Statements, which her clerk then sent out to all three of us.  

She’s obviously a desperately-needed appointment: when trying to find a date for a next hearing in this case, it turned out she had no availability for a one-day hearing before February 2025.  It seems quite likely that when this case comes back to court, it will be heard by a different judge.

What are the issues before the court?

The problem now is that P is medically fit for discharge (subject to recovery from a recently acquired respiratory infection which is expected to clear up after the weekend) – but he’s going to continue to need dialysis three times a week for the rest of his life.

If he returns home, it’s very unlikely that his father will voluntarily bring him to hospital, or to a clinic, for dialysis ever again.  That’s because the father’s view is that there is nothing wrong with his son.  The doctors, he says, are fabricating his son’s  illness –in fact they want to kill him. He believes that professionals are not safe to be left with his son, and he stays by his son’s side at all times.

So, rather than let P return home (which is what he wants and his father wants),  the local authority is looking for a supported living facility for him.  The judge was being asked to authorise P’s deprivation of liberty in hospital until a suitable placement was found – which was envisaged to be 3-4 weeks, given that a potential placement had been identified and he was being assessed for it that very afternoon, as the court was sitting.  A deadline of 22nd November was mentioned as a plausible date for a next hearing to authorise P’s discharge to this placement, on the assumption that they would accept him.

What happened at the hearing?

The hearing lasted a little under an hour and the (represented) parties seemed to be in agreement on the way forward.  

There was some concern that P’s father, who has been joined as second respondent to the case, and does not have legal representation, was not in court.

On behalf of the applicant Trust (the Royal Free London NHS Foundation Trust), Victoria Butler Cole KC reported that there had been “strenuous efforts to persuade P’s father to join the hearing” and there were “people on the ground with a laptop able to facilitate his attendance” from the hospital, but he’d made it very clear that he would not attend.  He doesn’t believe that there are real court proceedings – he thinks the court orders are “fake”. The Trust is asking the judge to authorise P’s continued deprivation of liberty in hospital, after he is fit for discharge.  This is because they accept the local authority’s conclusion (not yet, as the Official Solicitor pointed out, endorsed by the judge) that P should not return home but should move to a supported living placement as soon as practicable. In addition to the DOLS-authorisation, the local authority (said the Trust, who supported this) was asking the court to make orders against the father to allow them to assess P when the father is not around (essential for a capacity assessment relating to contact between P and his father, for example).  Counsel for the Trust  reported the advocates’ agreement that there should be no penal notice attached to these orders since it’s not clear whether P’s father is capable of understanding the injunction, it’s unlikely that a penal notice would have a material impact on his compliance, and “no one can envisage a situation where seeking to commit him for contempt of court could be the way forward”.  

On behalf of P via the Official Solicitor, Sophia Roper KC reported that although the OS had given anxious consideration to P returning home in the short-term (while a supported living placement is sourced), the view was that this is not likely to be successful – which I took to mean that P would miss his dialysis appointments, with the result that the distressing ‘extraction and conveyance’ plan would have to be repeated “and is likely to lead to a greater degree of upset and trauma in the long run”.   

On behalf of the Local Authority (the London Borough of Barnet), Katie Scott said that of the options available to the court, “remaining in hospital, though not very palatable, is better than returning home”.  She ran through some of the (unsuccessful) efforts that had been made to support P’s father to understand and believe that his son is ill and that the hospital treatment will help him, and said, “it’s almost impossible for [P’s father] to comply with a court order that he doesn’t accept is real when he also believes that the hospital is trying to kill his son”.

Bad news

At 14:32, Katie Scott faltered in her submissions and then reported the contents of an email that had just appeared on her screen.  “I’ve just been notified’, she said, “that the care providers who have gone in to see P today are not going to offer him a place. That’s very disappointing. It would have been perfect for him.”

Suddenly it didn’t look at all likely that P would be discharged on 22nd November after all. There was no backup plan – no ‘second choice’ placement possibility standing by.  Everything was (in the judge’s words) “in undefined free fall”. 

Counsel for the Trust said that they were not going to discharge P if there was nowhere for him to go, but they’d already been “nervous” about keeping him in hospital three or four weeks after he was fit for discharge and now it looked as though a much longer time would be needed.  

The Official Solicitor said she was “very unhappy at the idea that the timing will slip” and urged the local authority to take action (for example by “commissioning an independent social worker to do a desk top search”), making some rather sharp observations about the local authority’s failure to comply with a previous court order and the inadequacy of “pressures of other work” as a legitimate explanation for any future failure to comply: “The LA said they would make their ‘best efforts to comply’ with the order but last time they did not in fact comply and the OS is not making a fuss about it because we are all trying to find a productive way forward, but there will be a limit”.  She also dropped in a concern about “the stage to which P had to get to before this was eventually brought to court” – which I took to be a complaint about the local authority’s repeated attempts over some time (during which P’s health deteriorated) to support the father to get P to hospital for assessment and treatment before the Trust eventually brought the case to court.  Despite the ‘inquisitorial’ (rather that adversarial) approach of the court, there is clearly some friction between the Official Solicitor and the Local Authority in this case.  

It’s not clear now when the next hearing will be, or who will hear the case:  the judge was over-committed already, she’ll investigate other judges’ availability (although 2nd December was mentioned as a possibility if a five-day-case she’s hearing in Birmingham doesn’t require the full five days).  The judge is “maintaining hope that [P’s father] will attend”. 

The hearing ended rather sadly, with the judge saying: “I’m very pleased P is tolerating the treatment and that his health is stable, but obviously there are significant concerns about where we go next”. 

Reflections

Unfortunately, it looks as though P (and his father, who will not voluntarily leave his son’s side) will be living in the hospital for many more weeks until a suitable placement is found for P.  

There’s also likely to be a problem with care and residence arrangements once a placement is found. The father wants P to return home and will undoubtedly oppose his removal to a supported living placement.  The point was made that he’ll want to simply move in with P in his new home, which is why capacity and best interest decisions around “contact” need to be determined.   The projected contact restrictions will be distressing to both father and son. 

In the words of Victoria Butler-Cole KC, “it’s far from obvious what the right answer is in this case, and there are going to have to be some very difficult best interests decisions“.

From what I’ve seen of this case so far, I am optimistic that this judge (if she keeps the case) and these highly experienced, skilled and compassionate advocates, are in a position to arrive (eventually) at a solution that will cause the least harm and most benefit possible to P and his father – although how they will do that remains to be seen.

Postscript: More than a year later, other attempted solutions having failed, the judge authorised P’s residence in supported living, with contact restrictions in place. You can read a blog about another hearing here: Renal Failure Case Returns: Dialysis problems and Barnet’s non-compliance with a court order and then the judgment published in early January 2026 here: Royal Free NHS Foundation Trust v EF & Ors [2025] EWCOP 52 (T3) (19 December 2025)

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 580 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)