A “Catch 22” situation for P or Hobson’s Choice?  Disagreement among professionals as to whether P has capacity and a finely balanced decision for the judge  

By Amanda Hill, 30th August 2024

“I want to get on with my life”.

At the heart of this hearing (COP 14251478 on 20th August 2024) is P, a man who looks to be in his late 60s or early 70s.  He attended remotely by video link from a psychiatric hospital and was present for most of the all-day hearing. He wants to leave the hospital but there is disagreement about whether he has capacity to make decisions about his care and residence. 

The Local Authority, London Borough of Lambeth, and P’s litigation friend the Official Solicitor (OS), argue that he does have capacity to make his own decisions about care and residence. Counsel for an NHS Trust argued that he does not. (I must admit that I’m not entirely sure which Trust was being represented in court. The Transparency Order lists King’s College Hospital NHS Trust as the Applicant. But I heard references to counsel in the hearing representing South London and Maudsley NHS Trust but them not being a ‘party’).

One issue which came to the fore in this hearing was that if P does have capacity, the options open to him in terms of care and residence were limited. Apart from the periods when he was in hospital, he had lived on the streets. If the judge were to decide that he has capacity, there was a distinct possibility that he could make the potentially ‘unwise decision’, given his physical and mental vulnerabilities, to return to the streets. As counsel for the Local Authority put it, although there are “advantages and considerable disadvantages…(it) would be his choice”. 

The part of the hearing I watched (the second day of a two-day hearing), consisted largely of cross-examination of two witnesses with different points of view. Firstly, a social worker who had recently performed a capacity assessment of P and considered that P does have capacity to make decisions about his care and residence. Secondly, a medical professional, a psychiatrist, who believed that P does not have that capacity. The different position adopted by these sets of professionals, social workers and medical clinicians, was an interesting feature of this hearing, as was the issue of P’s trust (or otherwise) in them and how that impacted their assessments.

In this blog I will set out the background to this case, followed by the different arguments put forward by the witnesses. I will consider P’s ‘voice’ and engagement with the hearing and outline the ‘Catch 22’ that P risked according to counsel for the OS. I will finally reflect on the lack of options available to P.

Underpinning the submissions by counsel were arguments about getting back to the basics of the MCA 2005 and how capacity should be determined – even if it means unwise decisions could be made. 

Background to the hearing

I became aware of this hearing through another member of the public who participates in the Open Justice Court of Protection Project’s  (OJCOP) WhatsApp observer group, Tim Sugden. He’’d attended the previous day and completed an observer feedback form, through the OJCOP website here.

There were three advocates, representing the NHS Trust, the Local Authority and P through the Official Solicitor but I wasn’t able to ask for their position statements as I didn’t catch their names. I wish that time could be taken to clearly identify counsel for public observers so that we could ask for position statements, which greatly enhance understanding of hearings. 

This was a hybrid hearing and I attended remotely, as did P and the medical witness. The judge, HHJ Beckley, and the lawyers were in the physical courtroom at First Avenue House. As is often the case with hybrid hearings, the sound was sometimes poor.  There was no opening summary for observers at the start of this hearing, which is disappointing and not in line with the recommendation from the (former) Vice President of the Court of Protection (here). So I have pieced together the background from Tim Sugden’s feedback form, and my own observation. 

P seems to have spent a lot of his life “street homeless” and from what I observed had been content with this lifestyle, as he had expressed a desire to return to it. However, since around 2022 he seems also to have spent a lot of time in hospital and his physical capabilities have diminished. He now uses a wheelchair,  and during the hearing it became apparent that he finds sitting for long periods uncomfortable. He takes medication for pain. He has indicated that he accepts he needs a certain degree of care now. 

P is currently in a psychiatric hospital – but over the past couple of years, he seems to have been in and out of hospital for physical rather than psychiatric problems.  Nonetheless, discussions had been ongoing regarding his future care and residence. The Court of Protection (COP) had become involved at some point (the Transparency Order I was sent was issued by District Judge Mullins and dated 14/5/24 so the court was certainly involved by then). 

It appears that P doesn’t understand why the COP is involved. The social worker stated during cross examination: “I couldn’t sway him from the criminal element of what the court was… he said ‘I haven’t done anything wrong’…I explained the Court was about doing the best for him”.[1]

The social worker also referred to discussions with P about moving to a care home from hospital. P has an issue with trusting medical professionals which impacted on how he felt about moving into a care home. For example, the social worker reported that P “felt that medical were out to get him… to trap him… not listen to him”. P did however say he was willing to move to a care home on a short-term basis, as a precursor to finding a longer-term solution, which could be some form of supported living. The social worker assessed that P had the capacity to make this decision when he met him in June 2024. 

P subsequently moved to a care home in July 2024. However, within four hours the move had failed as P had set fire to his bedding. He was taken to A&E at the local hospital with a wound to his hand and then detained under section 2 of the Mental Health Act that same day and admitted to an acute psychiatric unit. On 2nd August 2024 a tribunal ruled that P should not be detained in the Psychiatric unit under Section 2 and should be discharged. But P was still detained in the Psychiatric hospital until a decision could be made about his capacity to decide for himself about his care and residence (and if he lacks capacity, his best interests in that regard).  It had already been agreed that he did not have capacity to make decisions about litigation – hence the appointment of the Official Solicitor.

This hearing was held over two days, to enable the judge to make a decision about capacity and, if necessary, best interests, as well as authorization of a short- and long-term Deprivation of Liberty. 

One striking feature outlined on the feedback form completed by Tim Sugden at the previous day’s hearing was that P asserted in court that the reason he had set fire to the bedding was that it was effectively a reaction to what he had seen and how he had been treated at the care home. From the observer feedback form, I read that P had held up his hand to intervene in the hearing because “He wanted to say that the fire he had started at the nursing home had “not been intentional”, that he had only done it as he had “been stripped and locked in a room for hours”, “beaten up” and “held by the throat” by staff, and refused any access to talk to someone in charge.” In the hearing I observed, there was reference to a Section 42 safeguarding enquiry against the care home staff, which I assume was as a result of P’s allegations. 

The previous day the court had heard evidence from the Interim Team Leader from Lambeth who co-ordinated completion of the Capacity Assessment. She suggested that P did have capacity to make decisions about his care and residence. Now the court was to hear from the Social Worker who had also assessed P as having capacity and a senior Psychiatrist who had treated P in hospital. 

Does P has capacity to make decisions about his care and residence?

The social worker, (W), was cross-examined extensively by the three counsel and I will outline the main points he put across to support his assessment that P had capacity to make decisions about his care and residence.

He explained that he was a qualified DOLS (Deprivation of Liberty Safeguards) assessor and had conducted capacity assessments since 2007. He had met P for nearly three hours in June 2024 and described P as ‘receptive’ to him. He contrasted what he found to what he had expected, in terms of how P engaged with him. He’d written in his report that “P appears to engage differently with psychiatrists to social workers”. He was asked by Counsel for the OS whether in terms of “using, weighing and retaining information, are you happy that P is showing some insights…are you confident that it was proper evidence to use and weigh rather than him saying what you wanted to hear?” W replied that P did understand his care needs. For example, he was not accepting of male personal carers and would prefer females. “In my opinion he accepted that his life had moved on and he was aware of his limitations”. He accepted he was now in a wheelchair and he understood that taking drugs and consuming alcohol over a long period had impacted his health. It did seem, however, that P was more accepting of his physical limitations than his mental limitations. 

When questioned by counsel for the Trust, it was put to W that P agreeing to go into the care home one day and then setting fire to it so soon after arriving was evidence that he suffered from impulsive behaviour that was incompatible with making capacitious decisions. W replied that he felt it was down to how P was supported to make decisions. It was about “his involvement in decisions and how much he is listened to”. W implied that social workers approached P differently: “my colleagues all have different (views) ….a social worker looks at (the situation) holistically….psychiatrists view things differently and focus on mental issues.” He reiterated: “I’m not trying to put my opinions above other colleagues but social work is about helping people to understand how to make decisions …it depends on how things are explained to him”.  

Counsel for the OS asked W to reflect on why P distrusted medical professionals. “Do you think that P’s experience of being let down by professionals going back to his mother’s death, is … a factor?” W replied “I will answer that question how I want to, based on my conversation with him. I got the feeling that P is very distrustful of medical staff, I went with an open mind and I was surprised how I was received by him, we were in a small room, as a social worker we showed we could listen and could help him and I got the impression he sees the professions very differently…that’s my feeling about that, we didn’t openly discuss it.” 

W remained convinced that P had capacity and believed that how P reacted depended on how he was supported to make decisions. He asserted that although P had agreed that he should go to a care home for a short while, he was already anticipating that he might not like it. He didn’t waver from his assessment that P had capacity to make decisions about his care and residence, at least when he had assessed him in June. 

Dr A (as I will call him) was cross examined next. He is an experienced psychiatrist and was part of P’s clinician and liaison team when he was in the previous hospital. He had seen P informally when he was in hospital (during ward rounds) and formally (to assess and treat him), for a number of months before his discharge to the care home. He accepted that the team viewed “this as a complex case”.  He still firmly believed that P did not have capacity to make decisions for his residence and care, although he accepted that he “had not seen him recently”. He outlined some of the multiple diagnoses that P had, including personality disorders resulting in behavioural issues. P had sustained a brain injury in childhood and had abused substances over many years. A recent cognitive impairment was indicative of dysexecutive syndrome. However, the nub of Dr A’s evidence was that testing had indicated that P had a progressive, deteriorating condition: “We have two different tests that indicate he has a high probability of dementia”. Dr A believes that “there is an underlying condition that affects his ability to weigh up information”. He stated that P “doesn’t accept he needs help” and that his lack of ability to plan for the consequences of his actions indicated that he could not process information in a way that indicated capacity. He used the example of P being asked what he would do if he was discharged. P stated that he would get a taxi to Liverpool Street but Dr A believed it extremely unlikely that a taxi driver would take him, an indication of a lack of adequate planning. 

He questioned why P would set fire to the bedding at the care home when it would not lead him to better accommodation. This led to an interesting exchange between Dr A and counsel for the OS, which I will paraphrase. It was revealed that P had taken two lighters with him to the care home and only handed one over when he was admitted. He then used the other to set fire to the bedding. 

Counsel asked Dr A if this indicated an ability to plan actions. “…P kept the other one (lighter) in case he needed it…..does that indicate executive functioning?”. 

Dr A referred to a “frontal load deficit” and gave an example of making a cup of tea: multiple steps are involved, one could put the kettle on a cooker but forget to take it off. “I can’t say how capacitious he was to set fire to the place, but the planning component was falling apart ….in terms of planning, what was the pathway, what did he think he would get out of it?” 

Counsel for OS: Couldn’t the logic be “I set fire and therefore I will get out of the care home?

Dr A: Did he get out?

Counsel for OS: Well, yes he did……and he says he saw some things there and has made allegations.

Dr A: But he took the lighters with a plan to set fire to the place before he saw it? 

Counsel for OS: Maybe he took the lighters just in case …..and then had a distressing experience, saw people treated badly and was shut in a room for four hours. 

Counsel suggested this course of events indicated planning. Dr A believed it indicated impulsive behaviour.  

Dr A stated that he believed that P lacks insight into the challenges facing him in the immediate future, because of a choice between going into a care home or back onto the streets. Counsel for the OS suggested that maybe he would think differently if there was a different option, with more supported independent living, giving him more freedom to come and go. Dr A replied that the first question in the capacity assessment was the impairment of the brain and that is still there… “the dysexecutive syndrome is not likely to reverse”. Although still believing that P lacked capacity to make decisions about his care and residence, he accepted that multiple people had differing views on this, and he was not going to pretend that it was a straightforward case. 

The voice of P and a Catch 22 situation

Unlike many of the hearings I have observed, P was present and engaged throughout this hearing. He joined the hearing from the psychiatric unit, from a room that looked like a large cupboard but included a fridge – so I guess it was a sort of small kitchen. A member of staff helped him to use the computer, muting and unmuting the link as necessary, as well as giving him the occasional ice lolly, which he seemed to appreciate. He was sitting in a wheelchair. Throughout the hearing, HHJ Beckley took the time to engage with P and explain what was happening. Each time P replied, and actively participated in the conversations. For example, when P joined the link a little later than everyone else, the judge greeted him and explained that the court was hearing evidence from the social worker who had conducted the capacity assessment. “We will wait for him (to finish) and then I’ll listen to you. Is that OK?” P replied that it was. 

P seemed to be listening intently as the social worker gave evidence. When he had finished, it was P’s turn to address the court. The judge started the exchange by saying “P, I realise how weird it must be for you to be sitting in that room listening to people talking about you in this room”. He invited P to tell the court what he wanted to say. P firstly apologized for how he had acted when the judge had visited him in hospital. He wanted to tell him that he was very sorry for the way he had acted and that the judge had needed to leave. 

He then expressed his desire to leave the hospital: “I want to get on with my life, I’m not interested in drugs anymore, I will take my medication…I’ve been in here a while now, Your Honour…the pain I’m in now, I’m not receiving the right medication…It’s distressing for me…all I’m trying to say to you guys if you can see in your hearts to see where I’m coming from …I just want to get out.. to go somewhere where I have a carer, to help me take my medication on a more regular basis, to be as independent as possible ….I can see I need some help from carers…That’s all I’ve got to say”

The judge accepted his apologies and told P that Dr A would now be giving evidence. P replied by saying ““I look forward to it, Your Honour”.

I haven’t observed many hearings where a P has been present and participated, not least as eloquently as this P did. I noted the way he spoke to the judge, referring to him as “Your Lordship” and “Your Honour”. He certainly seemed able to express his views politely but firmly. P stated clearly in this exchange that he recognised that he needed some sort of care, but wanted to live as least a restrictive life as possible. 

However, I realise that being able to express a view is not an indicator of having capacity. Previously blogged cases concerning eloquent P’s who were determined not to have capacity include: “Articulate, Eloquent and Passionate – but does P have the Mental Capacity to Make Decisions about Four Areas of her own Life?”;  “Influencing ‘best interests’ decisions: An eloquent incapacitious P” and “Improving P’s quality of life pending a s.21A change in residence”.

In this case, as counsel for the OS submitted later in the hearing, P seemed to be in a Catch 22 situation. In the past he had said he did not need care, and that was evidence that he was in denial and did not have capacity to make decisions about his care and residence. However, now that he was saying he recognised that he did need care, the court was being asked to consider whether what he was saying should be taken at face value and that it was what he did rather than what he said which indicated capacity. For example, Dr A stated during his cross-examination that P had self-discharged from “multiple hospitals and nursing homes” which he considered showed a lack of ability to plan for the long-term. Counsel reminded Dr A that capacity is time and decision specific and that P was currently saying that he understands that he’s physically frail, that his body wouldn’t take him using drugs anymore. Was Dr A suggesting that his actions in the past are relevant to the capacity assessment now? Dr A replied that “My slight concern is that we are accepting he has capacity because he is agreeing with what we are suggesting”. He added “I don’t know how it squares up in my head…he says ‘give me my freedom and I’ll accept help’ but he is not accepting help now”. Dr A also stated, with regards to the fact that the social worker said he didn’t feel listened to that he would take that at “face value”. 

As I set out below, the judge seemed to suggest that past actions were in fact relevant to the current decision he would have to make. 

How the judge will decide

There were two aspects to closing submissions. Firstly, what the judge should consider when deciding on capacity and secondly, what options were available to P. Counsel for the OS and for the Local Authority both submitted that going back to basics was the basis. Counsel for the Local Authority stated that according to the MCA 2005 there should be an assumption of capacity and the burden was to prove that there was not capacity. There was also a principle that “capacity is not on the wisdom of the decision…P has the capacity to make an unwise decision and to suffer the consequences if things go wrong”. He argued that the bar should not be set too high to let somebody decide for himself. 

Counsel for the OS reminded the judge that there should be a functional and then a diagnostic case – is P able to weigh, use and understand the relevant information to make a decision and if not, what is the cognitive impairment that is preventing him from doing so? She implied that the social work approach was different from the medical approach in this case, that Dr A believed that as P had a progressive, deteriorating impairment he should be assessed as not having capacity, which is the opposite way round to the way outlined in case law. I heard ‘JB’ and I think that is referring to Heart of England NHS Foundation Trust v JB [2014] EWHC 342.

I was struck by something the judge said about how he would make his decision – he said “although capacity is time-specific, I can take into account the history”. I had understood that capacity was only time and decision specific, so I learned something from this statement. 

In terms of options if P were found to have capacity, they seemed to be stark. No mention was made during the hearing of any family and clearly P had no home to be discharged to. He had indicated that he wanted to be discharged to some form of supported living that enabled him to receive care but be free to come and go. However, this did not seem to be a viable option before the court at this hearing. Counsel for the OS summed it up as follows: “if you find today that P has capacity, I think you must proceed on the basis that P is free to make his own decisions. So, what is the question? The question is that there is not amazing supported accommodation so the question today is that whether he will stay where he is or go to the street, homeless.” And one can imagine that if P ended up on the streets again, he would soon find himself back in hospital. 

Putting the cart before the horse?

Witnesses were asked not to speculate during this hearing but I did find myself wondering whether the decision on capacity about care and residence would be different if P had somewhere safer to be discharged to than the streets. The judge seemed to be partly considering this during an exchange between him and counsel for the Local Authority towards the end of the hearing. As much as I could understand it, counsel for the LA was pondering about the only options being between hospital or the streets “because there is no other option”. The judge reflected on the fact that P was likely to be discharged if the Court found that he had capacity. This was because the tribunal had decided he should not be detained under section 2 of the MHA. Therefore, if the COP decided that P did have the capacity to make decisions about care and residence, it was unlikely that he would be stopped from leaving the psychiatric hospital. The judge then said that he couldn’t “assess the outcome, as that’s putting the cart before the horse”.

This again seems to be referring to a point made in the ‘JB’ case. Paragraph 7 of that judgment states: 

‘The temptation to base a judgement of a person’s capacity upon whether they seem to have made a good or bad decision, and in particular upon whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or, expressed another way, to allow the tail of welfare to wag the dog of capacity. Any tendency in this direction risks infringing the rights of that group of persons who, though vulnerable, are capable of making their own decisions. Many who suffer from mental illness are well able to make decisions about their medical treatment, and it is important not to make unjustified assumptions to the contrary.’ (Heart of England NHS Foundation Trust v JB [2014] EWHC 342)

The judge concluded the hearing by saying that it was a finely balanced decision. He was going to let the parties, including P, know the next day by email, so I don’t know what decision he came to. It is unusual for judgments to be published so I have asked for a copy of the approved order. I hope I receive that as I’m really interested in what HHJ Beckley decided. 

Update: a blog outlining the judge’s decision has been published:

24th September 2024 Judgment: An update to “A Catch 22 situation for P or Hobson’s Choice?” (and how access to court documents helps transparency and open justice) by Amanda Hill

Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is on LinkedIn (here), and also on X as (@AmandaAPHill) and Bluesky (@AmandaAPHill.bsky.social)

Note: Where I’ve quoted from the hearing, this is based on my notes, as observers are not allowed to record hearings. I’ve tried to capture these as accurately as possible to the best of my ability, but I don’t touch type so they will not be 100% accurate. P was referred to by his name throughout but because of the Transparency Order in place, as is standard I cannot name him.) 

Capacity, Relaxing of Restrictions, and a Happy P!

By Hita Jadeja, 28th August 2024

I observed a hearing on 24th July 2024 (COP 13879770) before His Honour Judge Whybrow who was sitting remotely (via Cloud Video Platform [CVP]) as a nominated Court of Protection judge at the County Court and Family Court at Kingston upon Hull.

The protected party (P) in this case is a young lady in her twenties. The case has a long history dating back to 2022.  This hearing related to her capacity to engage in sexual relations, reviewing some of the restrictions in her care plan, and considering next steps in relation to commencing college.

P’s barrister (instructed via her litigation friend) was Mr Tom Hughes and the relevant Local Authority (LA) was represented by Mr Simon Batt, in-house solicitor.

Before I write about the hearing itself, I will share my experience in terms of access to the hearing, and provide some background to the case.

Joining and position statements

The hearing was listed for 11.00am and I received the link and transparency order (TO) in good time. 

There was a short delay before the hearing started. HHJ Whybrow apologised and explained that it was due to a judicial visit.  P was present alongside her support worker. Others in attendance included P’s solicitor, social worker and her litigation friend.  

The judge asked if I could switch on the camera, introduce myself, say why I was observing – adding that he knows that I don’t have to explain why I was observing. He also asked me to confirm whether I had received the TO.  I was fine with explaining why I was observing – although I was a little surprised to have been asked to do so as I’ve never before been asked.  

There was a problem though, because when joining the remote CVP hearing, I selected the ‘observer’ option. I’ve always done this, since ‘observer’ is an accurate description of my role, but selecting this option means (I now realise) that it’s not possible to switch on your camera or mike.   So, unlike when joining the MS Teams platform, I could not see the option to switch on the camera and so I started speaking until the judge said, “are you there”: I replied “yes”, and I was asked again, so it became clear that they could not hear me.  

As I was about to use the chat box, the judge asked me to switch on my camera again, I quickly typed, “I can’t” and was typing the next line to explain when he questioned, with a confused expression, “you can’t or you won’t.  Someone who I now know was Mr Batt, responded by explaining that it might be the settings and it would be better if I left and re-joined.  I typed “I will rejoin” and the judge said “okay”.

Conscious that I was holding up the hearing, I re-joined in a hurry and soon discovered that I had joined with the video option only, instead of video and audio.  I switched on my camera and began speaking, when the judge said ‘we cannot hear you’, I typed that I was observing in a public capacity, and that I was a member of the Observers’ Group with the Open Justice Court of Protection Project. I said I was interested in the area, and confirmed that I had understood the TO.  That was fine, the hearing started and I switched off my camera.

At the end of the hearing, Mr Hughes pointed out that a summary had not been provided to me (as per the recommendation issued by Mr Justice Hayden, former Vice President of the Court of Protection).  I had, however, indicated that I would like the position statements and these, he said, would provide the necessary background, although he was mindful of confidentiality.  

HHJ Whybrow asked me if I still wanted the position statements, so I switched on the camera and used the chat box to say that I did, and it would be helpful.  He informed both counsel that I had come on camera, had introduced myself and had confirmed my understanding of the TO and on that basis, he gave his permission to release the position statements.   

Mr Batt asked if I could email him my request.  As he is an in-house solicitor, I asked for his email address as it would be difficult to get, unlike Mr Hughes, who could easily be contacted via his chamber’s website.  Mr Batt sent me both the LA’s and P’s position statements.  

I’m grateful to Mr Hughes for addressing my request for the PSs and to Mr Batt for sending them.  I now have both context and an enhanced understanding of the case. I would also like to express my gratitude to HHJ Whybrow for his patience in enabling open justice.

Summary of case background

P has diagnoses of cognitive impairment and diabetes, although there is a lack of clarity surrounding her diagnosis.  A clinical psychologist has concluded that overall P’s support needs are likely as a result of development trauma and attachment difficulties due to adverse childhood experiences rather than a global learning difficulty.  

P had absconded from her previous residential placement and was found in vulnerable and dangerous situations with men she had contacted using the internet/social media.  Safeguarding concerns were raised and the court became involved in 2022. 

The court determined in the interim, in accordance with s.48 of the Mental Capacity Act 2005 (MCA), that there is reason to believe that P lacks capacity to conduct these proceedings; make decisions about her residence; make decisions about her contact with others; manage her property and affairs; access the internet/social media; engage in sexual relations; and enter into a tenancy agreement. 

Both position statements acknowledge the opinion provided in the expert report obtained, that with the right support, on the balance of probabilities, P is likely to gain capacity in all areas except for managing large sums of money. 

P has moved to a supported living placement and is well-settled.  She has the benefit of one-to-one care and support 24 hours a day, seven days a week.  She has built good relationships with the staff and other residents at the placement.  She accesses the community with her support staff.  She enjoys shopping, eating out, attending rugby matches and going to a local disco.

P now has a boyfriend who also resides at the placement.  She has been engaging in therapeutic and education work to develop her understanding of sexual relations and relationships in general – although, her litigation friend expressed concern that this work has been delayed.  It was recommended in the expert report dating back to 2022 but work began some time in 2024 – prompted by P having sexual intercourse with her boyfriend when this should not have been permitted to happen, given the interim capacity position at the time.  

Following the therapeutic work, an assessment undertaken by P’s social worker determined that P had acquired capacity to engage in sexual relations.  P was elated to hear this.

She has also enrolled on a college course which is due to start in September 2024. 

P’s wishes and feelings surrounding the restrictions in place have been ascertained by her solicitor.  P expressed that she would like to lose the waking night staff, go to the cinema with her boyfriend, and have an hour alone with him.  When attending college, she is happy for her support workers to meet her after lessons but not join her in the classrooms.  In relation to a laptop being purchased for college work, she agreed to restrictions in respect to social media/internet access. 

As P is still deemed to lack capacity in respect of contact, P’s barrister has highlighted the need for a ‘TZ style care plan’ to be prepared by the LA if the court accepts that P has gained capacity to engage in sexual relations.  There’s an explanation of a TZ care plan in this blog:   “Grave concerns”: Funding arrangements, capacity for sex, and a TZ-style care plan.

The LA, in its position statement, recognises the importance of preparing a TZ-style care plan as soon as possible. In practical terms, this will include for example, having provision for P to spend time alone with her boyfriend while also including having access to appropriate staff, who can assist her if there is an inappropriate level of risk.  Other ways of managing risk include a suggestion by her social worker that staff can walk her and her boyfriend to the cinema and be present for when they come out.  The LA will undertake necessary risk assessments and work with relevant professionals involved with P, including staff at her current placement, and representatives of the organisations that have been providing therapeutic and educational work.

The Hearing

The judge (who had also spoken to P before the hearing) confirmed that he was satisfied with the assessment undertaken by P’s social worker. P had understood, retained and was able to communicate what she had learnt about safe sex during her therapy sessions and from her social worker.  He made a declaration under s.15 MCA that P has capacity to engage in sexual relations.  There was a big smile on P’s face, to which the judge responded “I know you wanted me to say that”.

Mr Batt informed the court that the LA were working on a TZ style care plan. This then led to a discussion around graduated reductions on her current restrictions.  Whilst the ground rules were to be worked out, the LA was considering introducing an hour of unsupervised time with her boyfriend on alternate days, and if that goes well, it could move to every day, and include review periods.

The judge asked that P is provided with easy read documents so she knows what is happening and why.

Mr Batt was pleased that P is starting college soon and wished her well.  He informed the court that the LA will purchase a laptop and have suitable controls placed, as there are concerns about rushing things with regards to P’s access to the internet and social media.  

P’s barrister stressed that as P is going to college, having access to the internet/social media will be part of her world. Educational work around internet/social media and re-assessing P’s capacity in this area should be prioritised.  Furthermore, it is important that the LA have a plan available for the next hearing which can be endorsed by the court.

In terms of relaxing other restrictions, the LA agreed that P’s waking night staff could be removed.  P’s social worker clarified that the cameras at the placement are not monitored constantly so there is need for more detail around that.  P’s barrister also raised the matter of P not having access to the remote control for the television in her room requiring quick resolution.  (Currently, P has to find staff every time she wants to change channels, as it is a smart TV which gives access to social media sites.) 

For now, P’s capacity in all other areas remain as previously determined by the court.  The parties agreed that the general way forward – considering the expert report – is that, with support, P is likely to gain capacity in all areas except managing large sums of money.  

P had not yet received her college timetable so the judge suggested a review hearing towards the end of September.  A hearing has been fixed (at which capacity building and P’s progress in college will be considered) at 2pm on 26th September 2024. 

Hita Jadeja is a solicitor with a background in commercial dispute resolution and inhouse advisory work who has an interest in health and social care law, Court of Protection work and mental health law.

What to do if the Transparency Order prevents you from naming a public body

By Celia Kitzinger, 27th August 2024

It’s probably safe to assume – unless you’re told otherwise – that if a Transparency Order prevents you from naming a public body, it’s a mistake. That’s been true of the vast majority of cases we’ve encountered.

But even when it’s a mistake, if it’s in a court Order, the prohibition stands.  You can’t just go ahead and name the public body and say, “oh I assumed it was a mistake in the Order”.  If the Order says you can’t name a public body, then you can’t name the public body, and our Project won’t publish a blog post that names the public body if the Transparency Order forbids it – however unlikely it is that the judge actually intended to stop us from doing so. 

So, you’ll want to get it changed (technically, “varied”) and that means asking the judge.

The simplest way to do this is to send an email to the judge (use the email address of whoever sent the Order), pointing out that the Transparency Order prevents you from naming the public body and asking for this prohibition to be removed.  Anyone affected by the Transparency Order has the right to ask for it to be varied.  You should quote the wording of the Order and the paragraph number.

Here’s an example of a letter I wrote after receiving the Transparency Order and before the hearing was due to start.  

Usually, if the judge gets a letter like this before the hearing starts, he or she will say something to counsel along the lines of: “I have received a letter from X which points out that the Transparency Order prohibits identification of [the local authority/the Trust/the Public Guardian etc].  Unless any of you wants to make a case to me as to why that body should have its identity protected, I propose to vary the Order to remove that restriction”. 

My experience is that when this happens lawyers are quite surprised that the Order does protect the identity of a public body, and nobody seeks to argue that it should.  The judge then changes the Order.   

In this case, though,  it turned out that the hearing was then vacated – i.e. it didn’t happen.  So the judge didn’t have the opportunity to raise it with the lawyers.  

So, I sent a follow-up email pointing out that, even though this hearing wasn’t going ahead,  I was still concerned about the Transparency Order since “it will presumably apply to future hearings in this case”.  (The same Order is used over and over again, often for years, apparently without anyone ever looking at it again.)

I wasn’t wholly confident that anyone would deal with that email, so I also made a formal application for the Order to be varied (as Senior Judge Hilder advised me in a Court of Protection User Group recently) by completing the standard form (I’ve done dozens now!) called a COP 9.  (You can download the blank forms here: https://assets.publishing.service.gov.uk/media/602a3d8bd3bf7f03208c2b40/cop9-eng.pdf)

It asks for the case number and the name of the protected party (I wrote “I don’t know. The initials used by the court are VA”) and then my own name and address and contact details.  In response to “what is your role in the proceedings” I wrote “public observer”.  Asked what order I was seeking from the court, I wrote: “Variation of Transparency Order (made by DJ Hennessy on 3rd April 2024) to permit identification of local authority.”  And these were my grounds: 

I sent the form to the Manchester address from which I’d received the Transparency Order. 

Just over two weeks later, I was sent this (see below) .  All sorted!

As you can see, the Local Authority I’d been forbidden to name was Wirral Council, but I don’t think anybody intended to prevent me from naming them – and nobody has notified me of any subsequent application as per [2] in in Order above. So that’s done.

How to identify a problem with the Transparency Order

Obviously, it would be best if the court got the Order right in the first place, but when it doesn’t, it’s good to see a judge being responsive and supporting open justice like this. It was exemplary behaviour – and rather a contrast with what happened in another case I wrote about here: “Prohibition on identifying public guardian is ‘mistake not conspiracy’, says judge”. 

Judges do make mistakes, and it would support open justice in the Court of Protection if everyone who is sent a Transparency Order could rapidly identify if there’s a problem (e.g. because it prohibits identification of a public body) and if there is, raised the matter with the court.

It helps to be able to identify, quickly, what the Transparency Order prevents you from doing. 

Here’s how.

When you get a Transparency Order, it’s almost always in the ‘standard’ form, i.e. following the 2017 template which you can see, in advance, here: https://www.judiciary.uk/wp-content/uploads/2017/11/cop-transparency-template-order-for-2017-rules.pdf

The relevant paragraph is called “The subject matter of the Injunction”.  In the template it’s §6, and you could start by going straight to §6 of the actual Transparency Order you’ve been sent, but sometimes the numbering is different so if §6 doesn’t say “The subject matter of the Injunction” look at the paragraph before and after.  It’s essentially a list of the persons (and organisations) you’re not allowed to identify.

Generally, §6(i)(a) says you’re not allowed to identify the person at the centre of the case (“P”).  Then §6(i) (b) says you’re not allowed to identify any member of their family.  It’s after those two prohibitions  – as §6(i) (c) and (d) etc. that you may sometimes find a prohibition on identifying other people (e.g. a treating clinician, or the manager of a care home) and then a prohibition on identifying a public body.  And that’s the prohibition you should ask the court to vary.  This is what the one I was asking about looked like – and the problem was (6)(i)(c)

If you get a Transparently Order that has a clause in it like (6)(i)(c) – it might say “A Local Authority” (as above) or it might say the Trust or Health Board or the ICB, or th Public Guardian, or the Official Solicitor – you should ask the judge whether this is really what is intended.

Sometimes (very rarely) there’s a good reason for requiring us to keep secret the name of a public body. For example, if P is being treated for a rare condition in a small Trust which has only one hospital at which she could plausibly be treated – so identifying the Trust risks identifying P.  If that’s the case, the court can explain it to you.  But in my experience, that’s really unusual.  It’s much more likely to be a mistake.  

The Court of Protection judiciary has repeatedly stated its aspiration to transparency.  These mistakes prevent the judiciary from achieving that aspiration.  That’s why it’s so important that we all assist the court by pointing out their mistakes – and in doing so we make small but significant strides towards an open and accountable system of justice.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 560 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)

Prohibition on identifying Public Guardian is “mistake not conspiracy”, says Judge

By Celia Kitzinger and Georgina Baidoun, 21st August 2024 (Updated 9th November after receiving response from HMCTS)

On 1st February 2024 a member of the public, Georgina Baidoun, observed a hearing concerning an application by the Public Guardian to discharge an attorney.  She was sent a Transparency Order prohibiting her from identifying “the OPG” (the Office of the Public Guardian) – represented in the hearing by Mark Calway.

No such Transparency Order should ever have been made.  It was, as the judge who made it said later, “mistake, not conspiracy”. 

But this “mistake” was not fixed for four months, despite the best efforts of both Georgina Baidoun and Celia Kitzinger, the latter of whom picked this up in her role with the Open Justice Court of Protection Project.

The mistake with the Transparency Order meant that we couldn’t publish Georgina’s blog post about the hearing – because it was simply impossible to write about it if she couldn’t say that the Public Guardian was the applicant and they were seeking discharge of an attorney.

We detail what happened below.  We still don’t have an adequate explanation of how things went so badly wrong (despite delaying this blog post in the hope that HMCTS would investigate and report back, but after several chases this hasn’t happened) (See Update added at the end of this blog post, 9th November 2024).

As far as we can determine, someone – we think the judge must be the person to bear responsibility for it since it was her order –  simply made an error by including the OPG in the Transparency Order.  That error should have been fixed as soon as it was pointed out (on 1st February 2024). Instead, we were forced into a long drawn-out process involving unanswered correspondence, a formal COP 9 application, and the stress and time (for Celia) of preparing a Position Statement and then appearing as an applicant in court, seeking a variation to the judge’s order.  This delayed open justice, and it cannot possibly be a good use of the court’s time or the public’s money.

Open justice and transparency are not served by this protracted and unnecessary procedure.  Open justice delayed is open justice denied.

In the first section (“The court’s ‘mistake’”) we describe what happened in relation to the Transparency Order. The second section is Georgina’s (delayed) description of the hearing to which the Transparency Order was erroneously applied. 

The court’s “mistake”

February: The hearing and Georgina’s request to the judge to amend the Order

Immediately after the hearing (COP 14123571 on 1st February 2024, the experienced public observer, Georgina Baidoun, sent an email to the judge (via the court email) asking the judge (HHJ Sullivan) to amend the Order.  She said: “it currently says that the OPG cannot be named. This doesn’t make sense because the OPG was named in the court listing […].  The way the transparency order reads at present prevents reporting … It is an opaque enough institution without this extra hindrance”.  

In response, on 6th February, she was told her email had been sent to the Office of the Public Guardian for comment. Then, despite subsequently chasing it, she heard nothing more.

March/April: Celia’s request to the judge to amend the Order – followed by a formal COP 9 application

So, on 27th March, Celia Kitzinger wrote to the judge responsible for the Transparency Order (HHJ Sullivan) copying in the lead judge for the regional hub (HHJ Eleanor Owens) saying: “I cannot envisage any circumstances under which it would be in accordance with the principle of open justice to prevent the public from knowing that the Office of the Public Guardian (OPG) was involved as a party in the Court of Protection” and pointing out that the prohibition has the effect of banning Georgina Baidoun “from writing anything reporting on the case, and it prevents the Project from publishing a blog about it too”.  The email asked the judge to vary the TO so we could report on the case. 

Three weeks later Celia got an acknowledgment of her request saying that the judge hoped to respond by 22ndApril 2024.  She didn’t.  

After chasing on 23rd April, Celia got a response on 25th April saying: “Please advise Professor Kitzinger that I will require a formal application to amend the order from the observer who has raised this issue”.  Celia cut and pasted the information from her original email of 24th March on to a “formal” COP 9 form and sent it back the same day. (There is no reason why it had to be the observer who made the application, since Celia (as blog editor) was affected by the order and hence was entitled to ask for a variation.)

May: A hearing to amend the Order

We expected the application to be dealt with on the papers.  But no. The judge then listed a one-hour (remote) hearing for 30th May 2024 solely to deal with the matter of the Transparency Order. 

We hoped that the Public Guardian would indicate in the interim that they did not oppose Celia’s application to name them. If they did, said the judge, the hearing could be vacated.  But neither Georgina nor (we understand) the judge heard anything from them.

So, Celia (who is not a lawyer) consulted with some busy lawyers who were willing to help her think what she needed to say, wrote her Position Statement, and chose to publish it in advance of the hearing in a blog post:  Challenging a Transparency Order prohibiting identification of the Public Guardian as a party.  

No Position Statement was received in advance of the hearing from the Public Guardian.

So, on 30th May 2024, Celia was in court (remotely) in Maidstone as the applicant in COP 14123571 before HHJ Sullivan. Georgina came too as an observer. 

Once we were both on the video-platform and before the judge appeared, a member of the court staff asked whether we were expecting anyone from the OPG and Celia said “I hope so – they’re the first respondent”.  We all waited five minutes in the hope that the PG would turn up. They didn’t. 

The judge appeared and said: “Good morning. I’m afraid we don’t have anybody from the Office of the Public Guardian. They were made aware of this hearing at the same time as yourselves, and I think, Professor Kitzinger,  you will recall the email that came out from the hub, 2nd May, saying that if they didn’t object then I’d be very happy to have a consent order so I could vacate the hearing. So, as far as I’m aware, they’re not objecting to the proposed amendment. […] I’ve looked at the proposed amendment. It seems perfectly fine to me. The reason I did want to have a hearing was I did want to hear from the OPG if they had any points they wanted to raise.  … I didn’t think there was going to be an issue, but I thought it was appropriate for them just to have 5 minutes to tell me if there was.  So I’ll make that amendment and get that through the hub today.”

She added that the protected party has since died, and made some polite and interested enquiries of us both as to how many hearings we managed to get to and our geographical scope.  

Celia was so cross by the length of time this had all taken, and the amount of work it had involved her in that she didn’t trust herself to say very much by this point.  Having imagined (reasonably enough) that there would only be a hearing because of some kind of objection or difficulty raised by the OPG, she had researched a range of possible concerns and arguments relating to them and consulted several helpful senior barristers about ways of managing what she imagined might be a complex situation.  But it had all disappeared in a puff of smoke.

Fortunately, Georgina was able to be warm and friendly and to engage with the judge. She explained her own interest in observing:  “I do appreciate it when I can watch cases involving the OPG because there are so many people now involved with Lasting Powers of Attorney in this country. Either holding them and not realising what they’re going to entail, or finding themselves acting as attorney and not really knowing what the constraints are… For me it’s the issues that get raised through the LPA or sometimes the Deputyship, which it’s very hard for a layperson to imagine.  I’ve been a Deputy myself and when I’m writing a blog it’s with the purpose of alerting people really to issues they might not otherwise think about.”  Georgina and the judge then had a conversation about some of the problems that arise with Lasting Powers of Attorney and the judge made reference to “the one that David Hodge did, the Chanel handbag, the watches”. We looked it up afterwards and it was this one: “Judge names and shames women who spent £230,000 of elderly relative’s savings on cars, designer handbags and jewellery” (it was Mulberry and Vivienne Westwood handbags). 

The judge’s only explanation for why the OPG had been included in the transparency order in the first place was: “it can be a bit pressured and perhaps that can be attributed to what’s happened with this. But in any event, I’ll get that amendment done. And I’ll look at them perhaps a bit more carefully in future, even when we’re a bit pressed.” It was, she said, “mistake not conspiracy”.

And a sting in the tail: after the hearing, the Order revising the Transparency Order was sent promptly to Celia and to the Public Guardian – who responded the very next day (31st May) to say that the Public Guardian “does not object to the order made but requires an amendment to the recitals”.  They submitted a  COP 9 formal application  (more admin, more work, more cost to the public purse).

The Office of the Public Guardian says they were not issued with the notice of hearing that took place on 30thMay and so were unable to attend.  They say furthermore that they had not made an application to be anonymised in this case, and in any event, that as far as they were aware proceedings had concluded back in April (we think this will have been when P died) and at that point there was no order to anonymise the Public Guardian.

We don’t know if these amendments to the Order were ever made. Celia has never received a revised version of the Order, so maybe not.  

We honestly don’t know how it’s possible that the Office of the Public Guardian were not issued with the notice of the hearing.  We asked HMCTS to investigate whether or not there’s any evidence that the COP sent the notice that the OPG says it didn’t receive – but we’ve not received a substantive response.  Given that the OPG didn’t respond to either of us attempting to assess their position in advance of the hearing, we are willing to consider the possibility that notice was sent to them, and ignored or mislaid.  Georgina has noticed that the OPG often say (in hearings that she’s observed) that they haven’t received documents which family members say they’ve sent.

In our view, this whole episode is a shameful waste of public money. It’s depressing that the mistake (anonymising the OPG) should have been made in the first place – but the solution should simply have been to fix it as soon as Georgina pointed it out, back in the first week of February. All those emails from both of us, the COP 9, the formal Position Statement, the hearing itself – none of those should have been necessary.  We note, further, that the judge is a Tier 2 judge (so not the most ‘junior’ of judges) and that correspondence was copied to HHJ Owens, the Lead Judge for the South East Region, who might have been expected to provide any necessary support in sorting out this problem.  It shouldn’t be necessary for members of the public to jump through all these hoops in order to support the judicial aspiration for transparency in the Court of Protection.

The hearing on 1st February 2024, by Georgina Baidoun

This is my belated account of what happened in the hearing I was banned from reporting on for so long.

The protected party had given Lasting Power of Attorney (LPA) for both ‘property and financial affairs’ and ‘health and welfare’ to Mrs A, her daughter (and, I think, also to Mrs A’s husband given the way he was mentioned later). 

The Office of the Public Guardian sought to permanently remove Mrs A’s power of attorney because they were concerned that an equity release had been arranged on P’s home and it seemed that not all of the money had been accounted for. 

There was no hint as to who had raised this issue with the OPG but I assume someone did because people with power of attorney do not normally have to report to the OPG. A good guess would be someone concerned to recuperate care costs. The power of attorney had already been temporarily suspended and someone was acting as a professional deputy pending the outcome of this hearing.

Mrs A’s position was that the equity release on P’s home had been arranged when P still had capacity and before the LPA took effect. The OPG said they had yet to see evidence of this, despite Mrs A saying that she had already sent it through her solicitor, when she had one; she was now representing herself due to cost. (This wasn’t the first time I had heard a respondent claim she had sent information to the OPG which they said they didn’t have.)

The big issue arising from this state of affairs concerned the selling of P’s house, the money from which was needed to pay debts – probably care home fees, although no details were given. Mrs A had instructed two estate agents and the house had had some viewings. The Judge made it clear that she did not have the authority to do this, given that an interim deputy was now acting for P. The Judge pointed out that even the interim deputy would not be able to sell the house without making an application to the court. Mrs A said that she had acted on the advice of her solicitor at the time and produced an email confirming this. The Judge seemed surprised by this advice but I thought it was probably sensible. The solicitor would know that there could be no contract until there was proper authority, but selling houses takes time and he or she probably thought (over optimistically no doubt) that the authority would be obtained by the time it was needed. 

At this point, there was a dramatic turn of events. I can’t remember exactly what was said but Mrs A realized for the first time that the application was not only to discharge the power of attorney for property and financial affairs but also the one for health and welfare. She was clearly very upset by this. It was indeed hard to see the logic.

The Judge suggested that the way forward would be for an order to be issued to the effect that Mrs A should respond to the issues raised by the OPG by way of a witness statement to which she should attach any receipts she had for contested expenditure and also documentary evidence of when the equity release had been agreed.

I was disconnected from the hearing at this point (there had been technical difficulties both for me and for Mrs A) but I think it was more or less over anyway. I did not try to reconnect. 

Immediately after the hearing I wrote to the court asking for the Transparency Order to be varied.  I’m dismayed that it took four months before this could be achieved.

Update: 9th November 2024

At a meeting on 17th June 2024 I made a verbal request to two senior HMCTS staff to investigate what went wrong in this case leading up to the hearing a little more than a couple of weeks before, on 30th May 2024

I followed up on 26th June with a reminder: “When we spoke I asked you to find out, if you could, whether the COP had followed the correct procedure and informed the OPG about this hearing before HHJ Sullivan. It concerned my application to vary the TO to permit identification of the PG as a party in the case.  The OPG did not turn up to the hearing and subsequently said they’d not been informed about it. I would like to know if in fact they were so informed.”

Having received no response, I wrote again on 19th August 2024.

Again I received no response.

On 21st August 2024, I published this blog post and sent a link to my two HMCTS contacts. No response.

On 29th October 2024 I chased again, in an email which was also raising a separate problem: “I also asked you to investigate (and have not heard back from you) why the Office of the Public Guardian said they had not received notice for the hearing at which I was applicant back in May (as blogged here ).  This resulted in a massive waste of everyone’s time since they did not oppose my application and if they had received notice would have said so and avoided the need for an attended hearing.“

I finally got a response on 4th November 2024, i.e. 5 months since the court hearing about which I was expressing concern.

It seems that the Public Guardian may not have responded to mails about whether they objected to our request to vary the Transparency Order because the emails concerning this matter were sent to the wrong address: “the court hadn’t updated the email details at that time so the usual OPG email address was still being used rather than the counsel’s as instructed“

As to why the Public Guardian didn’t turn up to the court hearing: “I can confirm that the OPG were served with the documentation in this matter to their usual email address, an email was sent to them at the same time it was sent to you about your application on 2nd May 2024 to notify them of the hearing on 30th May. That said as noted, an error has been made as the notification should have gone to the counsel on record instead of their usual email address which most likely led to the non attendance/no response at that time. […] Unfortunately an error is at fault in missing the update of the service email address in this matter and some process delays potentially that impacted the application you made“.

So it seems that at the root of the problem was likely an error in emailing the usual OPG address instead of counsel representing the OPG in this case.  And the cost was many months delay for transparency, and an actual attended hearing (with all the cost of that for the Court) for which I spent hours writing a Position Statement (and wasted time consulting legal friends about it).

I think the moral for me is that next time I hear nothing back I shall ask about the email address someone has used and query whether there is another or someone specific to which it should be sent.

I’m told that since July 2024 a new system has been in place which “enables us to record who acts for who on a case and shows those party links to make it clear on the digital file who is to be contacted“.

Uhm, well, that’s good. Why on earth wasn’t that in place before?

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 560 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)

Georgina Baidoun was the lay Court of Protection Deputy for her mother’s Property and Financial Affairs until her mother died in 2021. Because of the difficulties she experienced with several applications to the Court, and with the Office of the Public Guardian in connection with her annual report, she has retained an interest in these areas, including attending Court of Protection Users Group meetings. She is keen to share her experiences in the hope that she can help others who have to engage with these institutions with very little help or guidance. She is on X (@GeorgeMKeynes) and Bluesky (@georgemkeynes.bsky.social)

Note: All quotations from the hearings are based on contemporaneous notes and are as accurate as we can make them, but given that we’re not allowed to audio record proceedings are unlikely to be 100% verbatim.

Tangled webs, ‘enmeshment’, and breakdown of trust: Re A: (Covert medication: Closed Proceedings) – an implementation hearing 

By Claire Martin, 18 August 2024

This case (COP 13236134) has been in the Court of Protection since 2018. 

The protected party (A) is a 25-year-old woman, who has been living in a care home under a Court of Protection order, for five years. If all goes according to plan, she will be back at home as she wants, living with her mother, by the time you read this blog.  It’s been a long journey.

Background

She was initially removed from her mother’s care and placed in a care home on 9th  April 2019 in the hope that, away from her mother’s influence, she would agree to take hormone therapy for Primary Ovarian Insufficiency. She did not.

Then, all contact with her mother was stopped in June 2020, after the court determined  that her mother’s influence was the reason for her refusal.  But still she continued to refuse to take the medication.  

What happened next was shocking for those of us following the case. The judge (HHJ Moir) heard the case at a closed hearing  – that is, a hearing from which the judge deliberately excluded A’s mother and her legal representatives.  A’s mother was not informed that the hearing was taking place.  At that hearing, HHJ Moir authorised covert medication for A, so that she would go through puberty,   The judgment from that hearing is publicly available here: A Local Authority v A & Ors [2020] EWCOP 76).  I don’t know whether there was any public listing of this hearing – quite possibly there was not.  Certainly, public observers were not aware it was happening and the judgment was only made public (by Poole J) years later at our request. 

In April 2022, A’s mother (B), believing that A had still not received the hormone medication (the reason she had been removed from her care) and, of course, not having seen her daughter since June 2020 –  if she had done so, and seen that her daughter had gone through puberty, she would likely have raised questions about that –  applied to the Court of Protection for her daughter to return home. 

I observed a hearing for the case on two days in April 2022, before HHJ Moir, and blogged about my confusion that A had apparently been in the care home for two years yet, the hearing led me to believe, had still not received the hormone medication. 

Then, in September 2022, a three day in-person hearing was held, this time before Mr Justice Poole (a Tier 3, High Court, judge) who had taken over the case on HHJ Moir’s retirement. Daniel Cloake contacted us during the hearing to let us know what was going on – and later wrote about it: ‘“I have to tell you something which may well come as a shock”, says Court of Protection judge.’ At this hearing, Poole J revealed to A’s mother and her legal team – and to us as observers – that A had been covertly medicated for two years and had now achieved puberty.  Nobody had yet informed A, and she was continuing, daily, to refuse the medication, and then, daily, to be covertly medicated. 

This case shook our faith in open justice in the Court of Protection. We felt we had been misled by the court (as had A’s mother and her legal team) about what had been going on. We had also published an inaccurate and misleading blog post because of this, which Poole J acknowledged in his published judgment, while recognising that we published in good faith based on the information provided in court (Re A (Covert medication: Closed proceedings)) 2022 EWCOP 44) . We expressed our own concern about the effect of this on open justice and transparency in a blog post here. 

In the wake of this case, and our public reporting of it, the COP set up a sub-committee of the Court of Protection Rules Committee to review the matter of Closed Hearings and to produce some Guidelines.

Celia Kitzinger made  a submission to this group on how closed hearings are conducted and the impact on transparency and public trust in the courts. (Closed Hearings: Submission to the Rules Committee).  New guidance was  published and although the situation with regard to closed hearings has improved somewhat, we are concerned that there are still unresolved problems which are not being addressed.

Following Mr Justice Poole’s laudable decision to stop the closed hearings, members of the public observed a series of subsequent hearings in 2023 and 2024 at which attempts were made, in effect, to unpick the mess this case had by now become, by sorting out an “exit plan”, which seems not to have been contemplated at all in the original decision to covertly medicate A.  The “exit plan” from covert medication would, the judge suggested (repeatedly), involve informing A that she had achieved puberty as a result of being given the hormone medication without her knowledge, and covert medication would then stop. It was hoped (perhaps unrealistically under the circumstances) that she would voluntarily take the ‘maintenance medication’ that continues to be prescribed.  Finally, there was also the matter of authorising A’s ‘exit’ from the care home.  The main reason she was there was for covert medication. Once this ended, that justification ceased – and since both she and her mother wanted a return home, there was a strong argument for her to be discharged into the care of her mother.  Our blog post covering these issues is here: “Still no exit plan and ‘we are some way from the ideal scenario’”  

Subsequently, following a hearing we didn’t observe in January 2024, Poole J made a decision that it was in A’s best interests to return home, whether or not she voluntarily agreed to take the hormone treatment: Re: A (Covert Medication: Residence) [2024] EWCOP 19.  He also said that covert medication should cease.

The hearing was in response to B’s renewed application for her daughter to return home – supported neither by the local authority (which instead suggested a change of residence for A from the care home to independent supported living, although without a concrete proposal in hand) nor by the Trust nor by the Official Solicitor.  In the judge’s view, although it might be possible for medication to continue to be administered covertly whilst A remained in the care home, or in independent supported living, she might discover that she’s being covertly medicated at any point.  The plan, he said, “is fraught with risk …  I doubt that it is sustainable for years ahead” (§ 52 : Re A (Covert Medication: Residence) [2024] EWCOP 19). He also found her mother’s proposals to encourage A to take medication voluntarily to be “unrealistic” (§ 53).  The full judgment is worth reading for its careful and unflinching analysis of the issues in this case. Here are some key extracts: 

§58.  … it is a significant infringement of A’s human rights to medicate her against her wishes and without her knowledge. Presently, the provision of covert medication requires her to be deprived of her liberty, to live away from home, and for her contact with her mother to be regulated. Whilst she would no longer be deprived of her liberty if she were to return home and contact with her mother would no longer be regulated in the same way, continued covert medication in the community would still be a significant infringement of her autonomy and Art 8 rights. Hormone treatment is good for A’s health, but it comes at a heavy price in terms of infringements with A’s human rights.

§59. I have to consider the length of time over which these very serious interferences with A’s human rights may continue. Dr X’s evidence is that it is in A’s medical best interests to continue to receive hormone treatment for the rest of her life. Therefore, I have to contemplate the possibility of A being deprived of her liberty, covertly medicated, and separated from her mother whether in a care home or in SIL [Supported Independent Living], for the rest of her life. In nearly five years since A was removed from her mother’s home no-one has persuaded her to take HRT voluntarily. Even now, it is proposed that further strategies are deployed to try to persuade her. Whilst it is understandable that attempts should continue, in my judgement the time has come to acknowledge that such attempts are unlikely to succeed. A has been remarkably consistent and tenacious in refusing HRT. Nothing that has been attempted – removing her from home, suspending all contact with her mother, providing information and education, building her trust in her carers – has made any difference. It is more in hope than expectation that new strategies are now suggested…

§66. I have not been provided with any plan for the transition of residence, the ending of covert medication, or the imparting of information to A about covert medication….

§70.  A return home to the care of her mother, will expose A to a substantial risk of harm flowing from the nature of the relationship between her and B. This enmeshed relationship previously resulted in A being deprived of medical attention and treatment that she required, reasonable medical advice regarding A being rejected, and significant social isolation. Under B’s care A was under-developed physically and mentally, and was ill-prepared for independent or even semi-independent living. There is nothing in the evidence I have seen or heard to lead me to believe that there will be a marked difference in B’s approach to her relationship with A were A to return home. B may have learned to say some things that she knows she ought to say to portray a more positive future for A at home, but I have no sense that she has any real desire to change. She gave no impression that she thinks she has ever done anything wrong.

§72. I have focused on the negative aspects of A and B’s enmeshed relationship but there are some positive aspects. There is a bond of love between them. A strongly wishes to live with B…..

§80. The relationship between A and B is deeply troubling and has caused significant harm to A, but her relationship with B and with her grandmother is the family life that A knows and to which she strongly wants to return. Some measures can be taken, in A’s best interests, to try to protect her from the most harmful aspects of her relationship with B, but it must be accepted that returning A home will remove a layer of protection that she has benefited from within the placement. However, if A’s enmeshed relationship with B prevents it being in her best interests now to reside at home, it is unlikely that it will ever be in her best interests to reside at home. It is difficult to see how their relationship will change. Hence, if A does not return home now, she may very well be accommodated away from home, separated from her mother, against her strong wishes, for the foreseeable future. The influence B has over A has apparently survived all attempts to dismantle it over the past few years. It is entrenched and cannot be wished away. Realistically, it is too late now to try to undo all the harmful effects of the relationship. The best that can be done is to try to mitigate them in the future.

Having made this decision, Poole J gave directions to the parties to provide evidence to the court as to the planning for A’s return home, the cessation of covert medication, and the provision of information to her

The judge fixed a one-day hearing for 18th April 2024 at which the detailed arrangements were to be determined, but everything then stalled because the judgment was appealed by the Trust and the Official Solicitor. 

It was heard in the Court of Appeal on 30th April 2024 and Poole J’s judgment was upheld.  You can watch the Court of Appeal case on YouTube here: Re: A (By Her Litigation Friend, The Official Solicitor) and the judgment is here: Re A (Covert Medication: Residence) [2024] EWCA Civ 572  Lord Peter Jackson, who wrote the Court of Appeal  judgment says that Poole J:.

“…  grasped the essence of this complex and concerning case and he appreciated that A’s situation cried out for a definitive decision. Wherever she lives she will suffer harm and gain some benefit, and a move home in the face of deep professional scepticism could only take place with a firm judicial lead. The judge might have followed the professional advice, but he explained why he did not. He might have approved a trial at home (though it seems in some respects the worst of all worlds) but he did not do that either. Instead, he reached his own conclusion, based on his considered assessment of A’s best interests, supported by coherent reasoning. For what it is worth, I find his analysis strongly persuasive.” (§110)

The hearing I am reporting on for this blog followed the Court of Appeal ruling that upheld Poole J’s decision. 

The hearing on 24th June 2024

The hearing on Monday June 24th 2024 was an ‘implementation hearing’ – for the court to decide how the court orders (upheld by the Court of Appeal) should be put into effect.

I observed it, along with a clinical psychology trainee, in-person in Middlesbrough.  I have  blogged about the observation experience separately because this was only the second hearing I have observed in person and the process was exemplary in terms of public access and transparency.

In this post I will outline the issues before the court at this hearing, describe in some detail Poole J’s directions and the micromanagement into which he was being invited to engage by the parties.  I’ll outline how the court handled differing positions from the parties on what to tell A about the ‘truth’ of what has happened. I will end with some reflections on the case. 

Issues Before the Court 

After a helpful brief summary from Katie Gollop KC (counsel for the Local Authority – LA) -as requested by Poole J who noted that there were ‘two observers in court and one online’ – counsel for the LA  outlined the ‘outstanding issues’ for the court[1]: 

  • Disclosure – “if she asks why, what should she be told?” [i.e. if A asks why she has been covertly medicated, what should she be told?] 
  • Timing of the return to her mother’s care – “how close to the provision of information [should this happen]? Should the provision of information be in stages (A has a short attention span) or should it be in one go?”
  • A’s access to the consultant treating endocrinologist – “A’s mother continues to object to being in the same room because of trauma around the Irish accent.”
  • Community access – “[this] is chicken and egg – the LA haven’t been able to recruit carers without a start date. A potential care provider has been identified, they want to do their own assessment, they are willing to come forward without a start date. It is a matter for you My Lord about how much oversight – how often she’s offered a trip and what to do”
  • Access to WiFi – “A spends a lot of time on her tablet – the placement says she spends most of waking hours watching videos on YouTube, not emailing or accessing social media, but watching YouTube channels. If she goes home tomorrow there is no WiFi at home, so there is an issue there as to that being sorted out.”

The parties seemed to be asking for extremely detailed directions from the judge about how to execute the ‘exit plan’.

The morning part of the hearing: “I am not going to descend into that kind of detail”  Poole J

The judge described his expectations for how the court orders should be implemented:

“[The] principles: all these arrangements are designed to put into effect the decision of the court earlier this year. [They] must be in A’s best interests and it is in her best interests to serve her autonomy and to protect her from the risk of harm that flows from returning home. There is no perfect solution in this case and whichever way one turns there is a balance of benefits and harms. The risk of harm upon returning home needs to be mitigated and arises from the enmeshed relationship with her mother, and from the risk she will not continue to take HRT. […] I shan’t reiterate all the considerations from the judgment earlier this year. Also, the risks to her from causing distress to A, sudden changes she doesn’t understand. In relation to the first issue of disclosure, I have already decided that she should be given truthful information about what has happened during the course of this case. She will be told that the decisions to remove her from her mother’s care and to start covert medication were decisions of the COURT, not decisions of her mother or health care professionals, but of the court, and it won’t be helpful to provide her with all the judgments, but it might be helpful to have a letter from me to A, and a separate letter to her grandmother, or in similar terms to Whoever it May concern, set out in short form, about decisions made. 

That she was unaware of covert medication, and the fact that these decisions were decisions of the court and why they were made. They will include the recordings that were made by Judge Moir that […] her mother had not encouraged, and in fact had actively discouraged, A from taking HRT and that this is a matter that her mother now regrets. This also gives the court an opportunity in the letter to emphasise the benefits NOW of taking HRT and to emphasise that the court from a certain point does not permit any further covert medication, to reassure her that that is stopped. 

I have seen the planning documents about disclosure of information and careful thought through language and images which I think is excellent. As a point of fact, I don’t mind a picture of me, but not as the judge who decided covert medication, but as a matter of fact it was a different judge. I hope I’m not being defensive. It is a matter of fact. 

It seems to me unnecessary for information to be given at a neutral venue. I see no reason why it can’t be given at a place where A has lived now for a number of years. I don’t see any added benefit to moving to another venue. It should happen in a natural way. Bearing in mind A and her impairments, it seems perfectly sensible to break down the information in stages, I suggest by the LA, so that in a short .. matter of days only …. Day 1, ‘the judge made decision that she should return home, BUT there should be further discussion before the moves takes place’; day 2 have the discussion with the LA as to the history of the court’s decisions and the administering of covert medication, and from that point there shall be NO FURTHER covert medication, and she shall be told this. It’s important that she is enabled to trust that covert medication has then ceased. Given the evidence … rapidity about stopping HRT … [it] might be best to have conversation after her meds that day. Day 3: any questions, day 4: transfer home. 

[Regarding] provision of information, I agree with the LA plan. The main individuals will give this information to A and then her mother will be able to speak to A, given that A is going to return home to her mother’s care, and clearly there is not going to be monitoring of every conversation they have, so it seems to me better that they have that conversation in private. Her mother has assured me she is going to encourage A to take the HRT, and I take that on trust. The fact is that she will be living at home.

The Day 1 conversation is ONLY about residence and […] her mother needs to be involved in that. It might be better on that occasion for her mother to be with others. I accept that this is a managed process. The provision of covert medication cannot be undermined. I envisage that with some arrangements that have to made – community care, WiFi – the sequence of events will begin within a fortnight, if not tomorrow. 

So far as Dr N (endocrinologist) is concerned – the ‘phobia’ [about Irish accents] that A has, cannot come from A’s own experiences. It must have come from her mother who has that phobia. The fact is that A has … doesn’t want to have dealings with Dr N. We have to work around that. It seems sensible that a GP … can oversee the administration of  HRT… if that’s what she chooses to do. [They] will still need consultant guidance and reviews from time to time, bone density scans etc. At some point a consultant will have to be identified. It’s best just to accept that it’s not in her best interests to force Dr N … I accept there’s a limited number of specialists available.

The community access plan – A does not now access the community with any great frequency. It might be best to accept …. once a week, rather than three times a week. It’s a matter for her and her carers – she needs to exercise her autonomy as best she can. The tablet issue – if there’s no objection from her mother to having WiFi in the home, that can be arranged. Her mother will have to help A balance her time with the use of devices and other activities. 

The grandmother: it seems to me that after A has been told about covert medication and that it is stopped and encouraged to choose to take it herself, it’s a good time for her grandmother to also be told what has happened. Her grandmother might be a good source of support to encourage A to take it.                                                                                                                  [Poole J: judge’s emphases] 

I thought Poole J was very clear in his directions for the exit plan. 

There was discussion about the fact that it is, now, going to be A’s choice whether she takes the HRT. Although it is more protective of her long-term health for her to continue to take the medication, the risks to her health (of not taking the maintenance HRT) are said to be less than had she not gone through puberty at all. There is further information on Primary Ovarian Insufficiency treatment  here. 

On balance, Poole J has decided that A’s best interests are not served by achieving treatment covertly, which would require her to live apart from her mother – a situation that, over the past five years, has caused A significant distress, and continues to do so, to the extent (it was said) that she rarely leaves, or engages in anything within, the care home. 

This is clearly not what was anticipated when HHJ Moir made her judgment in 2019. The situation that the court and the system around A had embroiled themselves in, and which Poole J was attempting to disentangle them from, reminded me of the quote from Munby J, in 2007, in this case (§120): “What good is it making someone safer if it merely makes them miserable?”

Joseph O’Brien (council for the NHS Trust) made – I thought, given the history of the case – a curious request regarding the judge’s letter to A: 

“The Trust is concerned about building up trust with A. We would encourage you to encourage A to trust the doctors. We would implore that the letter sets out she should listen to the doctors.

J: She may not listen to me, but I will draft letters and I am able to take on board suggestions.” 

Commentary on the morning: Trust and Attachment

A has spent the past five years, removed from her mother’s care (where she has consistently stated she wants to be), and has not been persuaded to trust doctors. She is now going to be told that doctors – authorised by the court – have been prescribing and secretly crushing up tablets in her sandwiches. And at the same time the judge is being asked to tell A to trust the doctors. It might be objectively true that continuing to take the HRT will be helpful for A. It is also objectively true that ‘doctors’ (in the form of the proxy care home) have been deceiving A for many years. A is offered the HRT every day – and every day she refuses – and as far she is aware, her decision has been respected. This adds another, daily, layer of deception. Now she is going to learn that she has been deceived, not only about taking HRT medication, but also that she has been led to believe that her decisions have been respected, when they have not. 

The original Local Authority plan in 2019, outlined by HHJ Moir in her judgment, states: 

§13. Within the plan, the local authority sets out at E12: “The primary reason for A’s proposed move to residential care is to address concerns related to her health and wellbeing. A is likely to need a period of sensitive, tailored emotional support to enable her to come to terms with a move to residential care as she is opposed to this plan currently. The move may be experienced as traumatic and distressing. A referral to health agencies who can provide psychological support will be considered as needed. A has significant health needs associated with epilepsy and primary-ovarian failure. She has been resistant to treatment plans, particularly in relation to the latter diagnosis. The aim of the plan is to provide a supportive, engaging environment where A’s understanding of the benefits of treatment and her compliance can be promoted more effectively.”

In 2022, when the case came before Poole J, the judgment stated: 

§20.The evidence demonstrates that A is clearly benefiting from her residence at Placement A, both as a result of the support and care she is receiving, and the medication administered to her. She is enjoying benefits for her physical and mental health. Dr X reports that her socialisation and behaviour have improved “gratifyingly”. [Dr X is an endocrinologist expert witness]. 

I would be interested to know the nature of the ‘sensitive, tailored emotional support’ that was offered to A. It isn’t detailed in the evidence (that I can find) in subsequent documents (to the 2019 judgment) about the case, and by 2024 any improvement in ‘behaviour and socialisation’ seemed to have faltered. 

Attachment, separation and loss were the focus of Bowlby’s studies in the 20th century on the vital importance of human relationships for psychological health. He defined attachment as a “lasting psychological connectedness between human beings.” There is a huge body of research about attachment (and of course scholarly criticism too). This is a good primer, if you are interested. Having observed three of the hearings for A’s case, having the benefit of some of the parties’ Position Statements and reading the judgments in this case, I am persuaded that neither the strength of A’s attachment to her mother, nor the potential damage from suddenly removing A from that relationship, have been appreciated by the court until this year. 

A paper on security and separation, by Stroebe, a well-respected loss and bereavement researcher, states – referring to attachment theory: 

“A basic fascination about the theory—one which also made it remarkable when first published—lies in the fact that it can explain health difficulties which are not originally caused by physical or medical conditions: simply being harshly separated from (or bereaved of) a close person can cause mental and physical health problems (even—though rarely—mortality from a broken heart).”

The Court of Appeal judgment includes a transcript (§33) of a conversation (this year, five years after she moved to the care home) between A and her solicitor (which vividly conveys A’s feelings for her mother and level of trust she has in doctors): 

“Sol. How many times are you having contact with mum?

A. Twice a week. (sobbing) I want more time.

Sol. Do you think your mum is encouraging you to take your

medication?

A. It’s my choice and she knows it so she doesn’t push it. I trust

my mother.

Sol. You say you trust your mother. She is working with the court

and she wants you to take it because she knows it’s safe and

you need it.

A. She won’t force me because it’s my body.

Sol. If you trust your mother why won’t you trust her and take the

medication.

A. I don’t know, I guess I’m just nuts, aren’t I?

Sol. I don’t think you trust your mother.

A. Hey hey HEY I do trust my mother, don’t say I don’t trust my

mother.

Sol. If you trust her you should trust that she wants the best for you.

A. No matter what, I will never believe or trust any of you.
Sol. We have sought you an independent expert to clarify your

diagnosis, but will you engage with them.

A. No because I will never trust one of you. Let me go home and

I will choose one myself out the phonebook when I am home

not someone connected to you.
A. (Sobbing) I’m in hell. It’s not that hard to see anyone working

with you. I know you will have paid [them] off to say what

you want.

Sol. This is not the case A. We are all working together to try and

find a conclusion to this.

A. Yeah, rubbing your hands together taking all the money.

A. I want someone I can trust.

Sol. If they give you the same diagnosis will you trust them then?

A. I don’t know do I, as long as [they’re] not connected to you.

Sol. So a Dr not connected to Dr X giving you the diagnosis

wouldn’t help?

A. No, I will only listen to someone I find myself from the phone

book when I am at home.

Sol. Ok, I will let the Judge know that.

A. I have had enough, shut up.

Sol. Is there anything else you would like to tell the court.

A. Just fucking cork it.

Sol. Ok [A] – as you know the hearing is at the end of this month

and I will let you know the outcome. Bye.

A. Just fuck off.”

My one comment on the tenor of that conversation is that I think the solicitor is rather provocative (“I don’t think you trust your mother”). If the aim was to develop trust in ‘the system’ around A, that approach is unlikely to be successful. 

Given this current stalemate, it also seems unlikely to me that A will respond to a letter from the judge saying ‘trust the doctors’ by simply acceding to this entreaty. Will she even believe that the covert medication is stopped, and that it is, really, her decision whether to continue HRT? I think there could be a risk that she doesn’t, given that she has been led to believe it has been her decision each day for the past five years, has believed she is making that choice, and will learn that she has been wrong in that belief. Might she think that somehow, some way, the medication is still being secreted into something else she is eating or drinking?  Part of me wonders why the court didn’t simply authorise covert medication –  arguably, appearing to give a choice has the potential for later reducing trust, compared to never having had a choice at all. Learning what has happened could cement (rather than diminish) her lack of trust in the health and care system. I am not suggesting that she should not be told, but that the system has potentially created future risk, which could possibly have been foreseen and better managed with some credible work on ‘exit plans’ far earlier in the process.

During the lunch break the parties worked on the draft order to bring to the court in the afternoon session. When the court reconvened, it became clear that the parties’ positions were still some distance apart. 

The afternoon part of the hearing: What is the the ‘truth’? 

Michael O’Brien (counsel for ‘B’) started by taking the judge through the implementation order, which included telling A about what had happened.  But he pointed to “a matter of contention” between the mother and other parties as to the truth about what, in fact had happened. The order stated that A should be told that HHJ Moir said that her mother “discouraged” her from taking HRT and now regrets that. But Michael O’Brien wanted the order to be amended to say that HHJ Moir found that her mother “did not encourage” A to take HRT and her mother now regrets that.  Poole J was firm:”But you just said that it should be what the court found. HHJ Moir found that it was active discouragement. That is what was found. […] Please don’t meddle with the words. You cannot pick and choose the words. That was the finding of the court. I am not sure why we are having this debate.” [judge’s emphasis]

A ‘fact’ found in a Court of Protection case cannot be altered and must be treated as a ‘fact’ in subsequent hearings and court orders (unless the Court of Appeal or Supreme Court overturn it) – regardless of the views of those who might think those ‘facts’ are incorrect. 

This particular tension was about whether A’s mother actively discouraged A, rather than simply failed to encourage her, to take the HRT medication. HHJ Moir (the original judge in this case) had found, as fact, ‘active discouragement’. 

Poole J referred to the original judgment (18th June 2019) and clarified that HHJ Moir had judged:

§88 “Sadly, I find that B has been so obsessed with her own wishes, views, and fears that she is being blinded to the obvious and risk-free advantages to her daughter of encouraging her to undergo the treatment and has, instead, failed to encourage her daughter to engage with the treatment or has actively dissuaded her daughter from doing so. Thus, the prospect that B will in the future support her daughter and positively encourage her to engage with the treatment must be extremely limited. Sadly, it is difficult to reach any conclusion other than B would prefer A not to “grow up” for want of a better description, that she would prefer A to remain the same, dependent upon her mother, and isolated within her mother’s sphere without any outside influence or interference.”

The judge also addressed the suggestion that his letter would be the sole information imparted to A: “and I‘ve said my letter may assist but it’s not a substitute for the information”. [judge’s emphasis] 

I made a note to myself during this part of the hearing to the effect that counsel for B appeared mightily fed up with the LA and NHS – this impression was based on his exasperated tone of voice and overall demeanour. (I imagine that feeling, if I am correct, was reciprocated). Somehow the parties in this case have become so dug into their trenches that it seems almost impossible to come up for air. There is very little trust between them, it seems. 

This exchange illustrates the situation.  Counsel for B is explaining that, whilst on the one hand, the mother was being charged with a caring responsibility for A, the LA was declining to provide her with information about their plans for taking A out into the community:

Counsel for B:  As far as community access is concerned, with LA Support Workers. There is an issue here. To date we have been unable to get anything from the LA about what would happen when support workers take A out into community. At the advocates meeting [we were] told that’s not a matter for [A’s mother] to know. That it’s a matter between A and the support workers. Well, [A’s mother] does need to know, she needs to support A to go out, so she needs to know what A is going to be doing when she goes out. The difficulty here is that there is, as My Lord is well aware, there is every attempt [….] every attempt she has tried to engage, she has been rebuffed.  So, it is clear from the first day that she is supposed to go out with support workers. A’s mother wants to do that. As far as [her mother] is concerned, what is important is that she knows what is going on so she can encourage her to go out. [She] agrees that there should be a session every week to go out, [she’s] content to encourage more than that. She can’t find out what is planned, [there is] no clear plan from LA. There is reason to be sceptical…

The LA position (as presented by Michael O’Brien, the mother’s counsel) was that going out and about was a matter for A and her carers, and nothing to do with A’s mother. I thought this seemed unrealistic – especially given that (it was said) A has not been ‘out in the community’ for the five years she has resided at the care home. I also wondered whether A wants to go out with support workers. The conversation transcript with her solicitor (above) makes me think she’d rather have nothing to do with anyone from the state system at all! There might be lots of contributory reasons for this – including what the court is describing as an ‘enmeshed’ relationship with her mother – but the reality of A’s sense of the world and her relationships is what it is. 

As Poole J previously stated “[t]here is no perfect solution in this case and whichever way one turns there is a balance of benefits and harms.”

Nevertheless, the judge  instructed “I said that it should be for A and the support workers, precisely to enhance A’s autonomy. In the context of the sometimes-harmful relationship which crushes A’s autonomy. However, the support workers should communicate with her mother about plans for outings so she knows what’s happening.” 

Counsel for B said “I am grateful. That is very clear.” He went on to say (later) “The reason I am being so pedantic is because I know that with the LA, unless it’s clear, the LA will ask for more and this will cause negativity”. 

Poole J: “… the whole discussion rather speaks to a breakdown of trust”. 

It did indeed appear that way. 

Counsel for the mother was painting a picture of a Local Authority taking every possible opportunity to shut A’s mother out of her life – under the guise of enabling A’s ‘autonomy’. Counsel for the LA did not comment further, though had clearly stated at the start that they did not trust A’s mother to be as good as her word.

There was a final discussion about the draft order, agreements between the parties and the level of input from Poole J into this process. It was interesting to observe the parties and the judge involved in something of a dance about who was to take most responsibility:

Counsel for the LA: […] the LA plans are best interests informed documents, [A’s mother] has been very frequently consulted, but in the end …. unless your lordship wants to be the arbiter…. 

Judge: You can tell I don’t, but I will see the final order.

Poole J asked for a review hearing to be listed for October 2024. The LA had ‘pencilled in’ a review hearing for December 2024, explaining: “[The] only problem is [it’s] going to take time to commission Support Workers”. I was a bit confused by this, because A’s return home was planned for the next week or so, at which point (I thought) the Care Plan was meant to be implemented. 

Nevertheless, Poole J suggested: “Let’s be optimistic […] in time for a hearing in October,  December is too far off.”

Final Reflections

My overwhelming feeling at the end of this hearing was one of sadness. I fully understand why the NHS Trust and the LA, both charged with a duty of care for looking after A, took the action that they did, back in 2018, of applying to the Court of Protection to establish whether A had capacity to decide her medical care, and if not to determine her best interests. 

As the Court of Appeal said: 

“§10. It was by that stage established that A has the following life-long conditions: Mild Learning Disability (IQ 65); Autistic Spectrum Disorder (‘ASD’) – Asperger’s Syndrome; Epilepsy; Primary Ovarian Insufficiency (‘POI’); and Vitamin D deficiency. Taken together, these conditions render A an extremely vulnerable person, physically, psychologically and socially.”

§15. Judge Moir’s reasonable prediction that B’s negative influence on A would diminish with separation and time has sadly been disconfirmed by the events of the last five years.”

I wonder how HHJ Moir came to that ‘reasonable prediction’? I have read the judgments and although A was seen by an Educational Psychologist and a Consultant Psychiatrist, I didn’t read (in the judgments) any evidence presented about clinical approaches to ‘enmeshed’ relationships and how, carefully, to address problems arising from them. A focus on the HRT issue seems to have completely outweighed everything else, including any psychological understanding of the impact of sudden separation and limited contact with the key person in her life. 

The psychological concept of ‘enmeshment’ originated in structural family therapy theory. This website asks: What is enmeshment trauma? and provides this answer: “Family enmeshment occurs when a family lacks clearly defined roles and boundaries. Salvador Minuchin first described the concept in his structural family therapy theory, which emphasizes the role of family relationships in an individual’s ability to function. According to Minuchin, enmeshed family members struggle to define themselves outside the family. They have high levels of communication and little physical and emotional distance.”

In an article (2004) called ‘Family Systems Theory, Attachment Theory, and Culture’, the authors take a cross-cultural approach:  “Family systems theory and attachment theory have important similarities and complementarities. Here we consider two areas in which the theories converge: (a) in family system theorists’ description of an overly close, or “enmeshed,” mother-child dyad, which attachment theorists conceptualize as the interaction of children’s ambivalent attachment and mothers’ preoccupied attachment …..We also review cross-cultural research, which leads us to conclude that the dynamics described in both theories reflect, in part, Western ways of thinking and Western patterns of relatedness. Evidence from Japan suggests that extremely close ties between mother and child are perceived as adaptive, and are more common, and that children experience less adverse effects from such relationships than do children in the West”.

It might be accurate to describe A and B’s relationship as ‘enmeshed’ for our culture, though a psychological diagnosis such as this is not helpful without a full exploration and understanding of the reasons for, and the likely success or impact of, any actions subsequently taken to try to undo the ‘enmeshment’. 

A has spent five years separated from her primary ‘attachment figure’ and the information I have read would suggest that she had, previously, developed very few other relationships, excepting her grandmother and a friend she describes as the daughter of her mother’s friend. Reading the Court of Appeal judgment, it is hard not to form the view that A seems to be more psychologically disturbed now and is consistently expressing distress at the lack of contact with her mother. The one thing that has been achieved has been (covert) HRT to induce puberty. 

Throughout the hearing, A’s mother was looking down at and fiddling with her hands  quite a lot. She looked very nervous. She was on her own at first, sitting in the dock until Poole J entered the court and said to her: “You are sitting in the dock! Is there somewhere else you can sit?” She was sitting at the back behind counsel and their solicitors, behind a glass panel, all on her own. She laughed nervously and moved to sit next to people I think were solicitors at the side of the court. 

She did not visibly respond when people mentioned her ‘enmeshed’ relationship with A, or the risk of ‘harm’ to A from her maternal relationship. It must have been hard to listen to. I kept thinking – perhaps it is a relationship that has meant that A is unable to separate emotionally from her mother – that might not be the ‘best’ thing for her (or anyone, especially in our culture), but there are many relationships that mirror this co-dependence. Telling A that it is ‘rational’ to take the medication, go out with support workers, or (as counsel for the NHS Trust suggested) for the judge to tell her, in his letter, that she must ‘trust the doctors’, is simply not going to work for a person who has spent most of her life living in a bubble with her mother. 

The past five years of forced separation have not affected her willingness to ‘enhance her autonomy’, go out with support workers, or indeed, voluntarily take the prescribed medication. It seems to me to be unrealistic and reveals a lack of psychological understanding to expect A to achieve autonomy at home, when the system itself has completely failed to make any headway in this respect when she has been away from home – for a five-year period. It is almost as if she is being expected to develop MORE autonomy at home than she has done at the care home, and A’s mother is being expected to create a willingness in A (to be autonomous), that her mother – probably for her own personal, historical reasons – does not want to happen. No one (it seems) at the care home or in the wider system of support for A has managed to do this. 

Is the system setting up yet another situation that is likely to be unattainable? 

We are all of us formed and influenced by our upbringing, main caregivers and culture. Jehovah’s Witness children, as a result of their upbringing, grow up with a belief that receiving blood products is wrong, and we all form beliefs and views that lead us to act in ways that others might deem unwise and against our ‘best interests’. And as long as our capacity is not in question, we are allowed to make these decisions. 

I do not have direct first hand knowledge of whether A lacks capacity for the decisions before the court. Given that the witnesses at the first hearings had differing views about A’s capacity for medical and care decisions, this could be considered a ‘close to borderline capacity’ case, although the court has since found, after very careful scrutiny, that she lacks that capacity. In hearings we’ve watched as part of the OJCOP Project we’ve often heard judges say that the closer someone is to retaining capacity for a decision, the less likely they feel they should make a decision that runs counter to what the person says she wants. In this case, a decision was made counter to her wishes – principally due to the (understandable) medical concern that A was pre-pubertal and the significant health risks that carries for an adult woman. 

I think my feeling of sadness about the case comes from stepping back and looking at what the outcomes of the early closed hearings before HHJ Moir have achieved.  They have brought about a positive outcome (A has achieved puberty) but  also created harm, for the people involved:  A’s distrust of doctors and carers has been massively reinforced; staff have been ‘enmeshed’ in lies and deceptions; lawyers are frustrated with the situation and apparently with each other; parties are asking the judge to micromanage a case they feel is out of control following a judicial decision they don’t like and tried to appeal. Relationships are strained).

If judges are going to interfere with people’s lives – separate them from the people they love, order them to be given secret medications they have refused – they need to be sure that the positive outcomes outweigh the negative ones.  Hand on heart, can we say that of this case?  

I hope that A and her mother can re-establish a life together, and that A can develop a sense of what she wants over time and be compassionately supported to live her life happily – even if it’s not in a way that other people think is ‘normal’. 

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

Appendix 

Previous blog posts about and published judgments from this case 

In reverse chronological order – start with the blog at the bottom to read ‘from the beginning’

The published judgments are:

[1] All quotes are as accurate as possible – we are not allowed to record hearings, so this report is based on typing as quickly as possible to capture what is said in the course of the hearing.

Directions Hearing for a Life Sustaining Treatment Case

By Hita Jadeja, 14th August 2024

On 31 July 2024 I observed a hearing (COP 20000664) before Mrs Justice Theis sitting at the Royal Courts of Justice.  

An NHS Trust (‘the Trust’) has made an application concerning life-sustaining treatment for a middle-aged lady and this was a ‘directions’ hearing. Essentially directions hearings are held to prepare the case for the final hearing; for example, identifying and agreeing on what documents are required, setting a timetable of when the documents should be filed and served, fixing a final hearing date, and narrowing any issues to try to ensure an effective final hearing.  

According to the transparency order: “The overall issues in this case relate to whether HF lacks capacity to conduct these proceedings and to make decisions about medical treatment, including life-sustaining medical treatment, and (if she lacks capacity) whether it is in her best interests to continue to receive life-sustaining treatment or move to a palliative care plan.”

I will first describe issues relevant to open justice and transparency (access and position statements) and then I will summarise what happened in the hearing.

Transparency Matters

Access

I had emailed my request to observe the evening before the hearing.  At 8.40am I had an email from a Listing Officer (High Court Family Division) to say that my request has been forwarded to the Judge’s clerk and associate team who would be able to provide me with a hearing link, and that I should let her know if there are any problems.  This was helpful as it provided some certainty both in terms knowing that my request has been read/dealt with and planning my day.

At 10.22am I replied to her email asking whether the hearing was still going ahead as I had not yet received the link.  I had a prompt reply at 10.26am, apologising and informing me she has spoken to the associate team leader and if I do not receive the link in a few minutes to let her know.  At 10.37am I emailed, “Apologies but I am still awaiting the link.” I appreciate that court staff are busy and I was not sure at this stage whether it was a delayed hearing (in which case of course I would not be chasing) or there was some technical problem.  I got the link at 10.47am from the Court Associate and I sent an email to the Listing Officer thanking her for her help. 

When I joined the link, and saw the barristers approaching the front row of the courtroom, I recognised the person who turned out to be the family’s barrister, Mr David Lawson, and also the person who turned out to be P’s barrister (instructed via her litigation friend the Official Solicitor) Ms Sophia Roper KC.  I had seen them in other hearings. They were later introduced as such by the applicant Trust’s barrister, Mr Jake Rylatt, who I did not recognise.  As barristers do not mention their own name in the introductions for the judge, I only worked out who he was towards the end of the hearing when I heard the judge use his name a few times and did a quick google search.  The barristers in the case were all from Serjeants’ Inn chambers.

The hearing started at around 11.05am.  Mrs Justice Theis confirmed that there was a transparency order in place and asked Mr Rylatt to briefly explain the reporting restrictions.  She also mentioned that a copy can be requested from the court office.  I made a request to the Court Associate during a short recess and received it then. The judge had also asked Mr Rylatt to provide a case summary before proceeding with the hearing.

I am grateful to Mrs Justice Theis and to the court staff for their time in facilitating open justice.

Position Statements

After explaining the TO, Mr Rylatt mentioned that there were members of the press who were media accredited reporters and have requested position statements, the judge gave permission to release these.  As I’m not an accredited reporter, and not entitled to position statements in the same way, I took the opportunity during a short recess to request the PSs from Mr Lawson and Ms Roper KC (and when I later worked out who the Trust’s barrister was, I requested the same).  I was not expecting any responses at this stage, since I was very aware that they were sorting out directions for the draft order in the case.  After the recess, Mr Rylatt informed the judge that the lawyers were intending to further anonymise the position statements and the judge confirmed that the court office will revise the TO to reflect that.  To date I have not received any PSs.  

The Hearing

The lady at the centre of the case (P) suffered a cardiac arrest in early July or June 2024 (I did not catch that clearly).  She has been diagnosed with severe global brain injury and is currently receiving life sustaining treatment at the Trust’s intensive care unit. Pressure sores have also been identified as a concern in the case.

The treating clinicians do not see any prospect of neurological recovery. A best interests meeting was held with P’s family to consider withdrawing the current treatment.  The family disagreed with that proposal so the Trust made the application to seek a declaration on whether it is in her best interests to continue with life sustaining treatment or move to a palliative care plan.  During the hearing It was agreed that P lacks capacity to conduct the proceedings, thus establishing the Court of Protection’s jurisdiction.  

For the family one of the main concerns is the speed and pace with which clinical positions have been taken and whether this may have coloured views on improvement over the first month or so after injury.  Ms Roper for P (via her litigation friend the Official Solicitor [OS]) stated that the Official Solicitor’s view was that it would be helpful to obtain further medical evidence from experts.

The Trust has stipulated that medical evidence will be provided by three doctors one of whom is not contracted with the Trust.  In relation to obtaining expert reports, the Trust did not seek to dictate who should be instructed in terms of speciality (e.g. neurologist, neuro intensivist or a neuro rehabilitation consultant) and was happy for the OS to take a view.  The distinction drawn was that a neurologist can provide a diagnosis on the condition whereas an intensivist will be more concerned with critical care and organ support.

Mr Lawson, on behalf of the family, indicated the desirability of obtaining two expert reports to include one from a neurologist who can provide an opinion on the potential of likely neurological recovery, as this underpins their case. He requested further provisions to be included in the draft order that allow for further scanning, assessments for level of pain and level of awareness, and to obtain second opinions if appropriate.  There were no objections to this.

In relation to instructing the experts, Ms Roper informed the court that a neuro intensivist has been identified, but it has proved difficult to identify a neurologist of sufficient quality who is available.  Although endeavours will be made to identify one, they may have to instruct a neuro rehabilitation consultant.  Mrs Justice Theis indicated that potential experts should be informed that remote attendance is fine, in the hope that this will increase the pool of available neurologists.

The judge also approved a third-party disclosure order for medical records to be released to P’s son.  Mrs Justice Theis asked the Trust to include in their updated position statement the burden of prolonging treatment, the pressure sores, levels of pain, and – in the event that a palliative care plan is approved – a list of discharge steps if it is found to be in P’s best interests to move out from critical care.

A timetable was agreed for when the medical evidence, expert reports, finalised position statements and other evidence the parties seek to rely on should be filed and served.  Mrs Justice Theis suggested a short hearing on 14 August 2024 to take stock and to ensure continuity in terms of case management.  

The parties have agreed to have a round table meeting on 2nd September 2024 – as by then both parties will have all the evidence in front of them – in preparation for a final hearing on 4th – 6th September before Mr Justice Cusworth.  At the roundtable meeting, they will try and reach an agreement as to the way forward.  It is hoped that there can be a resolution and the court will be notified by 3rd September if a hearing is required – or perhaps whether it is required but not the three-day hearing time estimate that has been allocated.

The judge praised the efficiency and collaborative approach of the legal team and acknowledged the difficult situation for P’s family.  

Hita Jadeja is a solicitor with a background in commercial dispute resolution and inhouse advisory work who has an interest in health and social care law, Court of Protection work and mental health law.

Marking one’s own homework: A “fair-minded observer’s” view of a recusal refusal

by Daniel Clark, 13th August 2024

What can a party do if they feel that, during the course of a hearing, they were “silenced and bullied and berated” by the judge? What happens if a litigant in person thinks that the judge is taking advantage of her lack of representation and “colluding” with the local authority? 

These are the concerns held by N, who is the daughter of a protected party (JS) at the centre of long-running Court of Protection proceedings.

What N did was to make an application for the judge hearing the case to recuse himself, i.e. that he step down as a judge in the case and that another judge take his place. 

I observed the hearing (COP 13631757) before DJ Moss on Tuesday 23rd July 2024. He was sitting (remotely, via MS Teams) at Manchester Civil Justice Centre. N, the applicant, represented herself, and was joined by two of her brothers.  The respondent, Salford City Council, was represented by Robert Darbyshire, of Nine St John Street.

When considering whether a judge should recuse themselves on grounds of apparent bias, the test is whether‘a fair minded and informed observer [would] conclude that there was a real possibility, or a real danger’ of bias (my emphasis)

I am writing this blog from the perspective of a fair-minded observer – though I am conscious that the information available to me about what happened in the previous hearing is limited: I didn’t observe it and don’t have access to the bundle.

I will (1) briefly summarise the history of this case up to the date of this hearing; (2) overview  the law on recusal applications; (3) give my own assessment of what happened in this hearing; before (4) turning to some broader issues

1. History of the case so far

This case has a history that stretches back to 2021. JS is the protected party, though very little was said about her during this hearing. She has four children from a first marriage (N and three brothers, two of whom were present at the hearing); and two (adult) children from a second marriage, who were not present in court.

In the words of the judge, “the relationship between the two sets of siblings has broken down”. JS now lives with the children from her second marriage. I

n 2021, applications were brought concerning JS’s property and affairs, the result of which was that a panel deputy was appointed. 

In November 2023, N filed an application with the court that amounted to a personal welfare application. It was described by the judge as not altogether clear what N was asking the court for help with –  beyond help “to act in her mother’s best interests”.  

There were allegations of negligence and bullying, as well as an allegation that social services had made decisions that deprived JS of her rights (I’m not sure which ones). It also became clear that N and her brothers alleged that access to their mother was being restricted by one or both of the siblings from the second marriage with whom JS lived. 

On 23rd April 2024, the case was listed before DJ Moss for one hour. He had heard the case in 2021, and (one would assume) was familiar with the family dynamics. 

N and her brothers allege it was at this hearing (which I did not observe) that that DJ Moss demonstrated a bias against them, which means he should recuse himself from hearing the rest of the case. 

Her application was submitted at the beginning of May 2024, and the next hearing in the  case was  already listed for 7th June. This next hearing was then adjourned – at N’s request as she was dealing with “exceptional personal circumstances” – to 23rd July 2024.  The knock-on effect of this  was that the already-listed hearing about JS’s health and welfare had to be adjourned until September, since  DJ Moss had to hear the recusal application first.

2. Recusal applications: When should a judge recuse himself?

Recusal applications are made when a party believes that a judge is biased against them. But what does bias look like, and how can that be decided? 

It should go without saying that judges with a financial interest in a case are automatically disqualified from hearing it. If they have had some involvement with the parties in the past, they may (depending on the circumstances) be disqualified. 

In Mengiste & Anor v Endowment Fund for the Rehabilitation of Tigray, Lady Justice Arden remarked: ‘A judge may recuse himself when a party applies to him to do so. A judge must step down in circumstances where there appears to be bias, or, as it is put, “apparent bias”.  Judicial recusal is not then a matter of discretion’(§2).  LJ Arden also identified the test for determining apparent bias, which is ‘if a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased, [then] the judge must recuse himself’ (§4). 

The character of the fair-minded observer is not simply determined by somebody who thinks they are fair-minded. In Lawal v Northern Spirit Ltd, the House of Lords commented that the fair-minded observer would be ‘sufficiently well informed’, and not uncritical. They will not be complacent but will also not be ‘unduly sensitive or suspicious’ (§22). Instead, they will take ‘a balanced approach’ (§14). 

How exactly a fair minded and informed observer might think is open to some judicial interpretation. 

In 2020, Mrs Justice Steyn was asked to recuse herself because of her professional relationship with one of the barristers (she had previously been a member of the same chambers) and because she was the subject of a complaint made by the claimant’s mother.  On this occasion the judge declined to recuse herself. She considered that a fair-minded and informed observer would know that judges are often appointed from the Bar, and it is therefore inevitable that a judge will encounter a member of their previous chambers at some point making submissions before them. While I understand the argument raised, it is easy to see why a litigant may have perceived the judge to be biased. 

Of course, it is not easy to see the merit in every recusal application. 

Andrew Griffiths – the former MP who was found by a Family Court judge to have abused and raped Kate Griffiths, his then wife – asked Mrs Justice Arbuthnot to recuse herself from hearing the case. This was on the grounds that Griffiths knew Arbuthnot J’s husband well, and that her husband may have expressed a view on the ‘sexting scandal’ that saw Griffiths’ resignation. In response, Arbuthnot J said that she never met Andrew Griffiths, that her husband had to search for him on Wikipedia, and that the objection to her being the judge was ‘tenuous’. The appeal was rejected because she did not think that an informed person, who knew all of the facts, would conclude that there was a real possibility that she was biased. 

It is my view that the blogs published by the Open Justice Court of Protection Project are a good demonstration of how this fair-minded observer might think. They sometimes praise the practice of the Court of Protection, and at other times they are critical of it. I don’t think that anybody could describe these blogs as ‘unduly sensitive or suspicious’ – though there is often limited information available to us, particularly because we rarely have sight of court documents (and sometimes are not sent position statements despite our requests).  It’s hard to be informed when information is withheld from us.

Sometimes, the Court of Protection makes it impossible for us to be fair-minded or informed observers no matter how hard we try.  For example, Claire Martin and Nell Robson have blogged about a case concerning a caesarean section for a woman who did not always believe she was pregnant. They had read about the previous hearing, and were keen to see the evidence being tested.  However, what was originally planned for a full day hearing became a 14-minute hearing. In the blog, they express concern that ‘this hearing proceeded as if the legal system had no idea that members of the public might feel concerned about a court-authorised caesarean or might be critical of this decision’.

3. The recusal hearing 

3.1 The ‘neutral’ position of Salford City Council

At the start of the hearing, it was revealed that N had not actually received the position statement from the local authority, Salford City Council. The judge explained that the local authority “is taking a neutral position. He essentially says that it’s a matter between you and the court”. As Counsel for the local authority put it, “we have no dog in this fight”.

While this is doubtless not the first time this has happened, it was the first time that I’d observed a hearing where one party had not seen the position statement of another party. 

N declined the offer to see the position statement and, while the judge did “go through it briefly” (his words), this struck me as wholly inadequate. It is surely in the interests of justice that a party is provided with another party’s position statement. Rather than asking if N wanted to see it, which may lead to a litigant-in-person feeling that they are delaying the court process, the judge should simply have paused the hearing so that N could read it. 

This is not beyond the realms of possibility. In a separate hearing that I observed recently, the judge adjourned the hearing briegly to allow a litigant in person sufficient time to read the Transparency Order (which she hadn’t seen before). That happened in a hearing listed for one hour. The case that this blog concerns was listed for two hours, leaving ample time to allow N to read the position statement. 

Once the hearing was concluded I asked for, and received, a copy of the local authority’s position statement. This means that, in writing this blog, I know more about the local authority’s formal position than N did at the start of the hearing. 

During the hearing, the judge explained that the position statement sets out a brief case history, and the case law on recusal (which I have drawn on in the previous section). Finally, it said that the local authority has “no view about this application because it has nothing to gain or nothing to lose” if the judge recuses himself. The local authority notes that there are very few judges who hear Court of Protection cases in Manchester, and “does not want to engage in what it describes as ‘forum shopping’”.

The judge later clarified, at N’s request for clarification, what ‘forum shopping’ means: “you can’t pick and choose judges, and if you don’t like one you can’t really object and say you’d sooner someone else”. 

At the conclusion of the judge’s summary, N noted that “it appears to me that the statement doesn’t appear to be neutral”. I agree with her. To me, the use of the phrase “forum shopping” is the very opposite of neutral. It is laced with bias because it implies N’s recusal application is based not on its own merit but on the fact that she is looking for a judge who might be more likely to agree with her. 

Reflecting on the hearing afterwards, I wonder whether N might have been able to explain more clearly why the statement didn’t seem neutral if she’d  the opportunity to read it herself.  The court must do all it can to ensure litigants in person have an equal access to justice, as discussed in the Equal Treatment Bench Book. Asking “do you want to see it” places a burden on a litigant in person. The judge should have acknowledged that it was unacceptable for a litigant in person not to have received the document and made time for her to read it.

3.2 “Silenced and bullied and berated”

The recusal application rested on a claim of bias at the last hearing. Prior to the previous hearing, it was explained that N had filed a bundle which contained information she felt was supportive of her application. She alleged that, at the hearing, she asked whether this bundle had been read by the judge, “and I was very much shouted at and berated for asking that question”. 

N also returned to this later in the hearing, describing to the judge how she had “felt very silenced and bullied and berated for asking. You could have explained to all parties why you were refusing to look at the evidence in the bundle. That wasn’t explained –  and dismissed. I was berated and I was accused of interrogation”.  Her brother, J, also described being “spoken to like that. You accused me of interrogating you also”. 

These feelings of bias were compounded by the fact that, as the judge put it in his summary of her application, N claims that the judge “continually spoke over her sentences, and …  did so to all of the persons who supported her”. 

She further alleges that the judge did not speak over the local authority’s representative, resulting in a perception that the judge “orchestrated the hearing with biased intent”, in favour of the local authority.  

Indeed, the application itself went so far as to claim that the judge “took advantage of [N’s] lack of representation”, and “colluded” with the local authority by, in effect, replacing it as the applicant in the proceedings. This essentially makes the local authority the agenda-setter. 

With a glimmer of irony, there were moments during this hearing where the judge did appear to speak over N. However, this may well be as a result of technological issues. I know from experience how difficult it can be to ensure that nobody talks over anybody during an online meeting. There is also sometimes a delay in transmission which makes overlapping speech sometimes inevitable.  But, of course being interrupted is something that litigants in person are very alert to.

It may also be the case that judges are accustomed to being addressed by barristers and solicitors who are trained in how to address a court, and also have lots of experience doing so. Where a barrister might stop, a litigant in person might continue. Where a barrister might sit with a judge’s silence, a litigant in person might see the silence as an invitation to continue talking. Where a barrister knows whose turn it is to speak next, a litigant in person often doesn’t. 

Of course, speaking over someone and interrupting them can also be an indication and effect of judicial bias, as N alleges in this case. 

After a brief pause for consideration, the judge delivered an ex tempore judgment. “hHowever strongly those criticisms [of the judge] are felt”, he did not think that a “fair minded observer” would perceive a possibility of bias. In fact, he found that the hearing in April allowed him to ascertain what the application was about, and to recommend that N seek legal advice.  Furthermore, while he did  (he said) allow N to speak at length, he was also confined by the fact that the hearing was listed for an hour, and had to ensure he had enough information to give further directions. I think the implication was that he may have spoken over N,  but this was in order to ensure the hearing could conclude at a satisfactory time. 

N’s application that the judge recuse himself was therefore dismissed. 

4. Comments from a ‘fair-minded observer’ 

I am not in a position to offer any commentary on the substance of the judge’s decision. I did not observe the hearing where this behaviour was alleged to have taken place, and nor do I have any knowledge of the hearings prior to this. 

I did however feel as though I was watching a hearing ‘through the looking glass’ – a world both recognisable and yet turned inside-out –  when I realised that the judge who was alleged to have engaged in bad behaviour was considering the application to recuse himself.

I have since learnt that it’s quite common for a judge to hear an application to recuse her or himself. For example, in Re C (A Child), Mrs Justice Judd was overheard (on a video link), describing a mother as “trying ‘every trick in the book’ in order to avoid answering difficult questions”. Judd J refused an application to recuse herself. The Court of Appeal found that, in actual fact, there were grounds for recusal, and the case was remitted back to the Family Division for another judge to hear.

This case goes to show that there is a process for appeal if a party feels that they have been treated unfairly during the recusal application. However, I can well imagine that this process would become costly, and I wonder how many litigants in person would actually take up the opportunity to appeal. 

This case also demonstrates that it’s not just in the Court of Protection where judges decide their own recusal applications. As those familiar with the Post Office Scandal will be aware, the Post Office had (in 2019) made an application for Mr Justice Fraser to recuse himself as the managing judge. On that occasion, the judge not only refused the application but also noted that the delay in bringing the application was such that it constituted ‘an unequivocal waiver of any right the Post Office might have had to ask me to abandon the Horizon Issues trial and recuse myself’.

I should be absolutely clear that I am making no allegation of wrongdoing against DJ Moss for taking the course of action that he did in hearing his own recusal application.

Nevertheless, the process of a judge who is alleged to be biased considering an application to recuse himself strikes me as rather like marking one’s own homework. Bias can be overt, but it can also hide in the recesses of the mind. If a judge is biased but not aware of that bias, how can he be expected to make a decision about it?

Let’s look at this another way. I have been doing some teaching of university undergraduates for the last year. If a student made a complaint about my conduct, would it be acceptable for me to deal with that complaint? Of course not. This hypothetical student could reasonably claim that I would be unable to consider my own behaviour fairly. 

How, then, can it be acceptable for a judge to consider a recusal application about himself? This seems completely contrary to the spirit of fairness. 

Some people may reply that the shortage of Court of Protection judges means that there is no other choice. This may even sound like a compelling and fair response to many other people.  That being said, I suspect it only sounds like a reasonable response when you’re not the one who thinks a judge is biased against you. 

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

Judicial support for open justice in a case concerning a Deputy for property and affairs

By Georgina Baidoun and Claire Martin, 8th August 2024

We observed the 12noon hearing on 5th August 2024 (COP 14178318) before DJ Buss in Nottingham. 

The hearing was listed in CourtServe (see screenshot below) with the descriptor: “Should a deputy be appointed for ‘P’ in relation to her property and affairs?” and it was a “Public Hearing – With Reporting Restrictions” lasting for one hour by CVP (cloud video platform).

We’re going to address two main issues in this blog: (1) “Transparency matters” (by Claire Martin) and (2) “Appointing daughter as deputy” (by Georgina Baidoun).  In a final “Reflections” section, Claire Martin explains why transparency and open justice are so important for hearings like this, because it helps us all to understand the process involved if we want to be appointed as a deputy to manage someone’s finances after they’ve lost capacity to do so themselves – and might inspire more of us to appoint a trusted person with Lasting Power of Attorney instead, while we still have capacity to do so.

1. Transparency matters – by Claire Martin

Access to the hearing was as helpful as could be.  

I emailed the court the evening before the hearing, requesting the link and the Transparency Order. Both were received before 10am the following morning, and in the hearing itself DJ Buss said that he’d asked for the Transparency Order to be sent to all public observers. 

This was one of the most helpful hearings I have observed from the point of view of open justice. It felt quite clear – both from the court clerk and from the judge – that public observers were welcome and transparency mattered to the court.

When I joined the CVP link I was, as is usual, met with the automated voiceover ‘waiting for the conference host to join’. I had logged in early to avoid any glitches in joining. I could see that Georgina was on the link too, once I was connected 

The clerk asked us both whether we could see and hear her. I unmuted myself and confirmed that I could. We couldn’t hear Georgina. I had an inkling that she could hear and see but might have joined the platform by clicking the ‘observer’ button (understandably – we are observers after all!). However, I have learnt myself in a previous hearing, when I did that, that you can see and hear the court but you cannot unmute yourself or turn your camera on. Instead, you have to click to join with ‘audio+video’. There are no instructions that tell you this though! And I realised that the court clerk didn’t seem to know this either. I unmuted again and explained to the clerk that this might be what had happened. Georgina then wrote into the chat function that she could hear and see. A third observer (Maggie Bruce-Konuah) was struggling to join – the clerk made some suggestions which I relayed to Maggie via WhatsApp, and then her name appeared on screen, though she could still not hear or see. After some further direction from the clerk Maggie was able to see and hear the hearing. 

I was very grateful to the clerk for taking time to ensure we were all able to access to the hearing properly, without pressure or sense of irritation. She took responsibility for the court-side of access and ensured that the practicalities of using the platform (as far as she knew them) were explained when access was tricky.

When DJ Buss entered the attitude was the same. He spent a few minutes addressing the issue that the third observer was having in connecting and established (via the chat function) that she could see and hear the court. The judge asked me directly if I could see and hear, so I unmuted myself to confirm that I could. 

DJ Buss then checked that we as observers had received the Transparency Order and I confirmed verbally that I had received it. He stated that he always asks for Transparency Orders to be sent to observers. This was very welcome – it is often difficult to know who to ask for Transparency Orders when they are not automatically sent to us. It never seems to be in anyone’s job description!

After these administrative issues were addressed the substantive part of the hearing got underway.  

2. Appointing daughter as deputy: The hearing – by Georgina Baidoun

The judge opened the hearing by saying that the applicant (A) was asking for the court to appoint her as deputy for her mother’s property and financial affairs. There had been a few court orders since the application was first made and he asked A to provide a summary for the benefit of the observers.

A said that she first submitted her application in October 2023 when her mother was still living at home. Very soon afterwards, she had moved permanently into a care home. The care home had successfully applied for a DOLS (Deprivation of Liberty Safeguards) order through the local authority and, as part of this process she had been appointed to be her mother’s ‘representative’: this is likely to be a Relevant Person’s Representative https://mental-capacity.co.uk/relevant-persons-representative-rpr/.

The problems with the application appeared to stem from two issues. The first was that P’s only other close relative, her son, had himself initially lacked mental capacity to sign the appropriate form supporting his sister’s application; this was now rectified, and A had uploaded the form to the court’s on-line application system in March 2024. The second was whether P had been able to participate in and approve the application.

P had been diagnosed with Alzheimer’s disease and, according to A, had deteriorated rapidly in the last 12 months. She was not aware that she was no longer making her own decisions about either her finances or where she was living. When it was first noticed that her mental capacity was declining, there had been an attempt to get her to sign a Lasting Power of Attorney (LPA) but it was too late.

For a time, A had worked alongside her mother to manage her affairs but that also became impossible. She wondered, in hindsight, whether it had been a mistake, because it served to cover up her mother’s lack of capacity. The judge reassured her about this and said her actions were in line with the requirements of the Mental Capacity Act 2005. The court encouraged that kind of support and not taking choices away from P if he/she only needed a little support and help. He asked if this had stopped working and A said it had.

The judge noted that the documents showed that P was aware of the application but didn’t agree with it. A said she and  P’s social worker had tried to persuade her mother of the need for an LPA but her mother had been convinced that she still had capacity to manage her own affairs. (I presume that A was saying here that, since her mother had already denied the need for an LPA, the same reasoning was being applied to the application for a deputyship.) A then said that, if her mother had the mental capacity to understand the consequences of her actions, i.e. that her daughter was having to appear in court, she would be very upset. (This made me think of when I was in a similar situation; my mother would have hated to have her affairs played out in public if she had realized the consequences of her refusal to draw up an LPA.)

There was one further complication that the judge wanted to address. A lived out of the country and he wanted to know what effect that would have on how she managed P’s affairs. A replied that she sees her mother regularly and that, once she had the court order, there would be no problem managing P’s finances on-line. It had been harder without the court order and things had already had to be done on the understanding that the order would come through.

At this point, the judge reassured A that he did not mean to subject her to an interrogation, but he had one remaining problem which was that the form that A’s brother had signed did not appear in the documents he had received. A was able to give him the reference number but the judge said it would be more expeditious if she simply sent him a copy of the form, which she agreed to do immediately after the hearing finished. The judge said he was “not at all surprised” that the document had not found its way into the court files! (The on-line application system is relatively new and I wonder if this is one of its teething problems.)

Interesting to me was that the judge next mentioned the documents he did have, including the COP3 which is assessment of capacity, which had been signed by a ‘social care professional’ and was seen as acceptable, particularly since P’s long-term GP had been notified of the application and approved it. In my experience, despite my mother’s social care team conducting a capacity assessment upon which they relied to remove her from her own home to a care home, they would not sign the COP3. Neither would her GP; I had to get the consultant who had seen her some time previously to do it, adding an extra month to the time it took to get my court order.

This reminded me of recent discussions in the Court of Protection Users’ Group meetings which I attend. In response to a question as to who should sign COP3, Senior Judge HHJ Hilder said “that the review of the COP3 by the Rules Committee which led to the current form of the COP3 specifically considered this question and determined that an exhaustive list was not possible, not least because the landscape of roles in this area is constantly changing. The appropriateness of an assessor depends on both the expertise/experience of the assessor and the circumstances of the incapacitated person. The decision maker needs to be satisfied that the assessor is appropriately qualified in the circumstances required.”

Finally, the judge asked A if she understood all the undertakings she was making in becoming a deputy. He concentrated particularly on the security bond that a deputy is required to pay for (from P’s money) to insure P’s money against loss from misapplication. A was not aware of this but the judge assured her that, given that P’s assets were small, the sum would not be significant. He told her that there were approved bond providers from which she could choose, although I know, again from the Users’ Group, that there is currently only one provider. It was the same situation when I became a deputy, although it was a different provider who has recently given up. Since the provider often seems to be in a monopoly position, you would imagine that they would be pleased to get the business, but that seems not to be the case.

These details having been covered, the judge said he would make the order to appoint A as Court of Protection deputy for P’s property and financial affairs as soon as he had received the form that she had ready to email to him. He reminded her that she would be responsible to the Office of the Public Guardian for her conduct as deputy and that she should turn to them if she needed any advice.

3. Reflections: The importance of transparency in this case – by Claire Martin 

The raison d’être of the Open Justice Court of Protection Project is to promote understanding of, and access to, the Court of Protection. We cannot do that without public observers being willing to observe and without court staff, lawyers and judges enabling our access to hearings. 

This includes supporting the protected party and family members (if they’re in court) and litigants in person to appreciate the role of observers.  This was done well in this case. 

At the start of the hearing DJ Buss explained the presence of observers to A (the applicant), daughter of the protected party and a litigant in person:

Judge: [Applicant] as you can see we have people who want to observe today. Most Court of Protection cases are heard in public. There are some limitations as to what can be reported, set out in the Transparency Order, I suspect you will have seen this amongst the papers – and there are observers today I have in court. 

This was a very pragmatic and straightforward introduction to having observers in court. It was presented as a normal and important part of the ecosystem of the justice system. 

And then, at the end of the hearing, A and DJ Buss had this short exchange: 

A: Thank you for your time and thank you to the observers. 

Judge: I suspect they are from the Transparency Project [I corrected on the chat that we were from the OJCOP Project]. We as judges are keen to ensure justice is seen to be done – it’s well worth looking at the stuff they do online. It’s very interesting to read. 

A: Thanks. I will have a look. 

DJ Buss achieved open justice in a very understated yet clear manner. Open justice matters. It means that members of the public – including people with relatives with dementia, people concerned about getting their affairs in order in case they get dementia in the future (and those who may already have a diagnosis) – can see how these issues are dealt with by the court.   The third public observer who observed this hearing, Maggie Bruce-Konuah, has a particular interest in how people with dementia are treated. She reflected on what she witnessed:

“Today’s hearing was a revelation in terms of the judge’s empathy and how he explained himself. I made a lot of notes during the hearing so it’s given me much to reflect on. I was very touched by the Judge’s empathy and I was very moved by how he behaved towards the woman who was seeking deputyship. I did shed a tear as it wasn’t an expectation that the judge would behave in that way.”

For Maggie, then, observing court proceedings was a positive experience that reassured her about the approach taken by a Court of Protection judge – especially his “empathy”.  That’s important to know for anyone who might in future be involved in court hearings.  

The value of being able to watch and report on these proceedings is also that it exposes some of what is involved when an application is made to become a Deputy. Many people find themselves in this situation – similarly to A in this case – where it is too late for their relative to make a Lasting Power of Attorney (because a person must retain mental capacity to make a LPA). Reading about A and the lengthy process she has been through might be of help to others to know – in advance – what to expect. 

A had applied to the Court of Protection for Property & Finance deputyship in October 2023. She explained that she was asked in February 2024 to notify her brother (who signed the papers in March 2024). She has also needed to notify her mother’s social worker and GP – and it seemed, from what DJ Buss said, that it was important that they both supported the application:

Judge: In terms of people notified of this application, you have notified the social worker who did the capacity assessment, you’ve notified Dr X [GP]…

[later]

Judge: As far as the COP is concerned one of the things I have to be mindful of is there are plenty of situations where people have the capacity to make decisions with a little bit of support. If that is the case the court would hope they can have that support. Taking that away can happen in some circumstances, but … would it be fair to say you have done that?

A: Yes the deterioration in Mum’s cognitive function and memory is so different from 12-24 months ago, she struggles to recognise where she is, financial processes… she struggles with processing complex decision making, A lot of things we’ve been doing around her best interests and that’s part of the DOLs order, more of a framework around decision-making is taking place – not her finances though, obviously.

Judge: What really I think is important is that care is taken when giving consideration for making this type of order. Although it’s what I am sure seems like a lengthy process from your point of view, and a frustrating one, when you are clearly trying to do the best for your mum. I hope you can see the court needs to take care of doing things properly. 

The judge is right, of course. Wouldn’t it be so much better if we all made Lasting Powers of Attorney before we ‘needed’ to? We can choose who to appoint as our attorney(s) when we have time and the mental capacity to do so, and we can clearly record our wishes as part of that process. This case shows what might happen if we don’t make an LPA, and family members then need to go through this long and torturous process. (This is through no fault of the judge, or court system: as DJ Buss said, the court must satisfy itself that the person is able and in the best position to manage their relative’s affairs). 

In the hearing, A expressed this most eloquently, after DJ Buss asked her whether she could understand the court’s need for caution:

A: Absolutely – with the social worker we have talked about the benefits of an LPA as opposed to going through this complicated process. Mum’s belief is that she is managing her finances. It’s hard for her to read through information and understand what decision-making is being asked of her. That level of reasoning is not possible for her. If she was here I think she would be very upset that this is what would be needed to happen. 

Anything could happen to any of us at any time: we don’t need to wait for a diagnosis or until age makes us think of our mortality.  As A explained, sadly, it became too late for her mum to make an LPA, and she is now faced with a court deputyship process at a time when she has so much else to do to support her mum. 

Georgina Baidoun was the lay Court of Protection Deputy for her mother’s Property and Financial Affairs until her mother died in 2021. Because of the difficulties she experienced with several applications to the Court, and with the Office of the Public Guardian in connection with her annual report, she has retained an interest in these areas, including attending Court of Protection Users Group meetings. She is keen to share her experiences in the hope that she can help others who have to engage with these institutions with very little help or guidance. She tweets as @GeorgeMKeynes

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

She wants to tell her Court of Protection story but will the court allow her? 

By Amanda Hill, 6th August 2024

This is a blog about an application to change (“vary”) a Transparency Order, the order restricting what can be reported from a Court of Protection hearing.

Unlike many other blog posts about applications to change Transparency Orders, the application this time isn’t from a member of the Open Justice Court of Protection Project (OJCOPP) team.  

It’s from a family member of the protected party (P) who wants to be able to tell people – especially people going through it – about her experience of Court of Protection proceedings, both as a family member and as a litigant in person.  

The substantive proceedings are virtually over, and she’s content with the outcome for P. 

But she’s found the whole process incredibly stressful, and she wants to be able to offer support to other people in a similar situation from the perspective of someone who knows what it’s like from the inside.  

The application is not proving straightforward.  At the hearing I observed (COP 14106873, on 27th June 2024 before District Judge Bridger), the judge postponed making a decision.  It will come back to court in a few weeks’ time – and Celia Kitzinger (who also attended the hearing I’m reporting on) will act as an “Intervenor” , as she did in another case reported here: When families want to tell their story: Discharging a transparency order.  An intervenor is someone who is not a party to a case but a person who may be affected by its outcome and the judge therefore grants them permission to join ongoing proceedings. 

There are many families who want to speak out about their experience of the court but are prohibited from doing so by a court order (e.g. Gagged – in whose best interests?).  It’s an important issue for open justice. 

Background to this hearing

It’s a common story I’ve heard many times before in Court of Protection proceedings.  You’re a close family member of a young person with a learning disability. You have loved, cared for and supported her since her birth. You have watched her growing up. She turns 18 and in the eyes of the law becomes an adult. You carry on supporting her as she moves towards independence and into supported living. Then there’s a dispute about where she lives, and suddenly the state intervenes. The Court of Protection becomes involved, she becomes a “protected party” and a judge becomes responsible for making certain decisions about her.  Not you.  You have to learn about the Court of Protection and navigate your way around the legal processes. 

You find it incredibly difficult but you want some good to come from your experience. You want to share your story with other families, so that they feel less alone, and so that they can learn from what you went through. But you can’t, because as part of the Court of Protection’s processes, and in order to protect the privacy of the person at the centre of the case –  the “protected party” (P), you are subject to a Transparency Order that means you will be in contempt of court if you even reveal that you are the relative of a P in the Court of Protection. You almost certainly didn’t understand this at the beginning of the proceedings when there was a barrage of legal documentation.  Now you want the transparency order to be changed so that you can speak out in your own name about your experience.  And it is a Court of Protection judge who will make that decision.

I don’t know all the details about this particular case.  I’ve only observed one hearing and although it was listed as being “A review hearing re P’s placement, and contact”, the parties had all agreed on those outcomes (which was good news) so the application to vary the transparency order was the main remaining issue.

I will now focus on three points.  First, “Transparency orders and how they impact families”, to set out the context for this case.  Second, “Recurrent mistakes in Transparency Orders”, which describes two errors made in this case – both of which are common in my experience.  Finally,  “Speaking out” which addresses what actually happened in the hearing in relation to the application to vary the transparency order – the central issue of concern to any family member who wants to be able to talk about and report on their experience of the court.  

Transparency orders and how they impact families

Families involved in Court of Protection cases are routinely subject to transparency orders (a form of injunction) which mean that they aren’t allowed to tell anyone about the court proceedings.  The OJCOPP has reported on a few cases where families gained court permission to name themselves and ‘P’, the protected party – e.g. Laura Wareham (The point is this – she is scared and vulnerable’: Judge about Laura Wareham)  and William Verden (After the kidney transplant: The view from “Team William”) – but those are the exceptions, not the rule.

The order served on families (and everyone else involved in the court proceedings, and all observers) is based on the “standard” transparency order template which is here: https://www.judiciary.uk/wp-content/uploads/2017/11/cop-transparency-template-order-for-2017-rules.pdf

Paragraph 6 of the standard template outlines the subject matter (the “material and information”) covered by the transparency order which is: 

So typically the injunction means, as outlined in (i) above, that P can’t be identified as a protected party (“P”) in the Court and so (in order to protect P’s identity) neither can P’s family members, or any other parties as specified in ( c ) or any other person specified in (d) (this often lists people who’ve been in court to give evidence, e.g. a manager of a care home, or a social worker, or  clinicians treating P in a hospital). Part (ii) of § 6 is intended to ensure that where P and the other specified people live can’t be identified. 

Occasionally transparency orders have a specific end-date or an ending specified with reference to a particular event (e.g.  P’s death or the birth of P’s baby). But often the order states that restrictions remain in place “until further order of the court” (§8). This means that an order is in place indefinitely and a family member has to make an application if they want the order discharged (or varied). 

What happens if a family member disobeys the order? It can have very serious consequences. It is clearly stated on the face of the transparency order: 

If anybody breaches this injunction, they could face “committal hearings”: the judge could them to prison.  This does sometimes happen and OJCOPP blogs have covered this type of hearing. Here are two examples: 

  • DB was parking his car near EB’s previous placement with Court of Protection documents visible through its windows, so he was identifying P to anyone who looked through into his car – and understood what they were looking at – as a P in the Court of Protection.  (“Committal hearing: Struck out and dismissed for procedural defects”)

For more than a decade, though, it’s been recognised that it may not always be appropriate to prohibit families from speaking out about their experience in the Court of Protection: “for example, where family members wish to discuss their experiences in public, identifying themselves and making use of the judgment” (§11). (“Transparency in the Court of Protection, Sir James Mumby, then-President of the Court of Protection).

Although there have been some cases where transparency orders have been varied or discharged to allow P to be named while they are still alive (like William Verden and Laura Wareham), it’s usually easier to get transparency orders discharged after P has died, as once somebody has died, they no longer have Article 8 rights to privacy. 

After her father died, Carolyn Stephens wanted to tell her story publicly, to warn people about the potential for “dangerous abuse” of Lasting Power of Attorney legislation.  Based on what happened to her father, she believes there should be more safeguards to protect vulnerable people.  She was able to tell her story, under her own name, in the Daily Mail after the judge approved her application  to discharge the TO (see  “When families want to tell their story: Discharging a transparency order”). The judgment sets out the reasons why the judge discharged the transparency order:  In the Matter of VS (deceased) [2024] EWCOP 6

The situation at this hearing I observed is different from Carolyn Stephens’ case because P is very much alive – and so still has privacy rights that need to be protected by the court. The challenge facing the court is to balance P’s Article 8 right to privacy with her family member’s Article 10 right to freedom of speech and the public’s right to hear about her experience.

Recurrent mistakes in Transparency Orders

There are often mistakes in transparency orders, even after they’ve been approved by judges and “sealed” (stamped with an official mark to indicated that they’ve been issued by the court).  (Check out “Anxious scrutiny or boilerplate?”).

The TO in this hearing had two mistakes: (a) it prohibited identification of a public body and (b) it included private information in the (public) transparency order. 

(a) Prohibiting identification of  public bodies

Generally, there is no reason why the identity of a public body should not be revealed – either in judgments or in public reporting. According to the court’s own Practice Direction: 

“The aim should be to protect P rather than to confer anonymity on other individuals or organisations. However, the order may include restrictions on identifying or approaching specified family members, carers, doctors or organisations or other persons as the court directs in cases where the absence of such restriction is likely to prejudice their ability to care for P, or where identification of such persons might lead to identification of P and defeat the purpose of the order.” (s 27 of Practice Direction 4A Hearings (Including Reporting Restrictions)

As one blogger, Daniel Clark, says: “It’s important that we can talk about the involvement of public bodies in Court of Protection cases. After all, they’re funded by taxpayers and therefore accountable to the public. If they act in secret, their actions cannot properly be said to be open to scrutiny” (“Prohibitive transparency orders“)

But it keeps happening.   The Project has posted a lot of blogs about this recurrent problem (e.g.  “Getting it right first time around”: How members of the public contribute to the judicial “learning experience” about transparency orders;  Challenging a Transparency Order prohibiting identification of the Public Guardian as a party;  Bournemouth, Christchurch and Poole Council named as “secret” body in restraint case;  Varying reporting restrictions to name Kent County Council in “shocking” delay case).

When I was sent the transparency order (TO) for this case (made by a different judge about a year earlier), I immediately noticed the wording in §6(i)(c): 

Paragraph 6(i)(c) states that no material can be published that identifies or is likely to identify the local authority in this case. This reporting restriction should not be made without very good reason (e.g. because the case is so unusual that knowing the name of the local authority would risk people becoming able to identify P).  

Prior the start of the hearing, Celia Kitzinger had sent a letter asking for this restriction to be removed from the TO.  The judge came to this request fairly early on in the hearing. He asked Zoë Whittington (Counsel for the Local Authority (LA), Wokingham Borough Council, the applicant in this case) if there was any objection to removing the clause prohibiting the naming of the LA.  Zoë Whittington stated that it wasn’t the intention to anonymise the LA. The judge then said “It’s in the current transparency order”. She seemed surprised and took a short time to check. She then told the judge that he was correct and restated “I don’t think that was necessarily the intention”. The judge then asked “Are we agreed that the LA not being named can be agreed” and Zoë Whittington agreed that it could (and nobody else objected). The clause prohibiting the local authority, had seemingly been included in error and not been picked up for nearly a year.

It’s unfortunate that this error had been made and left uncorrected for almost a year.  It’s also unfortunate court time needed to be used to fix this error, and that the court relied on a member of the public to pick up the error in its own legal document. 

It’s clear that Celia Kitzinger – who frequently raises this problem with the court – is pretty exasperated by this recurrent mistake.  After the hearing she tweeted this:

As always when members of OJCOPP points out this error, other members of the public react to it by expressing the view that this is evidence of a cover-up – that the court is keeping things secret to cover up illegal or immoral activities (as the responses to this tweet illustrate).  This mistake has very negative consequences for the reputation of the court. There is often an assumption that it’s conspiracy rather than cock-up and OJCOPP has to work hard to counter this impression.

(b) Including private information in the (public) transparency order

The purpose of transparency orders for observers like me is so that we know what we are allowed to publish. 

Although the names of individuals and where they live might be revealed to the public during the course of a hearing, the transparency order almost always makes it clear that this information is covered by the injunction and should not be reported. Such information is not supposed to be included in the order itself. 

In 2017, Mr Justice Charles (the then Vice President of the Court of Protection) published a note about the Transparency Pilot (triggered by a judgment he’d just handed down). He updated the standard TO and it’s clear that TOs should be in an anonymised form. 

Here is a screenshot of the standard TO attached to his note: 

It clearly states that P should be identified by initials. 

This second screen shot of the standard TO attached to Mr Justice Charles’ note shows that parties should be anonymised: 

Including P’s address as part of the TO doesn’t seem to be compatible with the spirit of this standard TO. In addition, Practice Direction 4C states (at s2.3) that, “An order pursuant to paragraph 2.1 will ordinarily be in the terms of the standard order approved by the President of the Court of Protection and published on the judicial website” i.e. it should be anonymous.  

Finally, s14.26 of the CoP Handbook (which I understand is guidance rather than binding like a Practice Direction) notes that “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 be named in full.”  It seems to be a fair inference, therefore, that a TO should not include P’s address. 

In practice, it’s not unusual for observers to be given confidential material when we’re sent the order. Sometimes P’s name is in the body or on the face of the order. Sometimes it’s in the file name. I once observed a hearing where the transparency order prohibited reporting that the other parties were the parents of P and their identification, but a ‘confidential’ annex named them. 

The transparency order that I was sent for this hearing contained P’s full address. It looked like this, (I’ve blocked out the identifying details): 

This had the effect of  breaching her privacy, the very thing that the court is supposed to be protecting. 

Once again it was Celia Kitzinger who identified the problem, alerted the judge to it, and asked for the order to be amended.  The transparency order dates from July 2023 – so that’s nearly a full year that anyone who has been issued with the transparency order has been provided with a printed or electronic document with full details about where P lives. 

The court seemed surprised and shocked by the address being included in the transparency order. Although the judge remarked that not many people would have seen the TO (I got the impression there had not previously been observers in this case), he accepted that P’s address  “shouldn’t have gone in” and that the TO should be varied to remove it. 

Speaking out 

Despite the technical failings of the TO in this case, it does correctly and competently do what it is designed to do –  which is to prevent P’s family members from being publicly identified as the relatives of a P.  And this means that it prevents them from telling the story of their Court of Protection experience in their own name. 

Paragraph 6 defines the “Information” that the injunction is about. That information is the identity of the person at the centre of the case ((6)(i)(a)) and her family members ((6)(i)(b) and the LA, and any information about where they live.  Then paragraph 7 of the transparency order, says that  the information listed in §6 “cannot be published or communicated by any means orally or in writing, electronically, and persons bounds cannot cause, enable, assist or encourage the publication or communication of it or any part of it”. 

The effect is that no family member of P can tell anyone that they have a relative who is a protected party in the COP – not in conversation with them, not in writing,  not via social media or in any other way.  

The use of the word “family” in this part of the TO is not a “mistake” because it is exactly as used in the ‘standard’ template provided in the Practice Direction.  But it can and does cause problems.   Who exactly is covered by “family”,  and how far that stretches, has been raised recently  in the case involving Carolyn Stephens mentioned earlier in this blog. In that case there was a dispute about whether or not one of the parties (the daughter of the companion P met late in life) was or was not “family”.  According to Celia Kitzinger “the transparency order was poorly drafted in not listing the specific members of the “family” whose identity it was intended to protect.  This should be remedied in future orders, especially in situations in which unmarried partners, step-families and “blended families” are involved.”  However, this issue was not resolved by the judgment. Senior Judge Hilder wrote (§23): “I consider that it is not necessary for me today to make any finding as to whether Dr Sorensen falls within a legal definition of “family”.   I can see many circumstnces in which this might become an issue. “Family” is a wide ranging term –  is it restricted to the close family of P – parents and siblings? What about cousins? Or grandparents? Step-children? Civil partners?  Is there actually a legal definition of what the term ‘family’ used in the TO means? I haven’t been able to find one.  

The focus of this hearing (given that the issue of residence and contact had been agreed by the parties) was one family member’s application to vary the TO – on which it turned out there was a disagreement.

The problem was that the judge had only received the documentation from the Local Authority and the Official Solicitor (P’s litigation friend, represented by Rachel Sullivan ) in the hour before the hearing. And because he had been in another hearing, he hadn’t had time to read them properly. Neither had P’s two family members who are parties in the case. (Nor, of course,  had Celia since she hadn’t yet been appointed as an Intervenor.) The documents the judge hadn’t had time to read included the position statements, which outlined the parties’ positions on matters to be discussed in the hearing, including most especially the matter of varying the Transparency Order.

It is obviously of vital importance that the judge and all the parties have had enough time to read and assimilate the information before the hearing. The judge made it clear that more time was needed and that he was going to adjourn the matter for another hearing.  He said he would approve the draft final order concerning residence and care (bringing to an end the substantive issue the case was concerned with). He also appointed Celia Kitzinger, at her request, as an intervenor in the case.

There was a very interesting exchange before the hearing was adjourned. The judge had alluded earlier in the hearing to something he wanted to raise (“One other thing that slightly bothers me”) and he returned to it now. Addressing the party who wanted to be able to speak publicly about her role as a family member of P in the COP,  he said he wanted to flag up his concern that P was “quite a vulnerable young lady (because of her learning disability) and the court will want to protect her privacy”. He was concerned that allowing a family member of P to identify herself as such would increase the risk of P’s identity and where she lives being known, and that she would be exposed to “undesirable” characters.  “Somebody could track her down” and “it makes her vulnerable”. The judge summarised: “Those are my concerns…..to keep her away from undesirable people, she’s open to suggestion…”. 

He asked the applicant (the family member applying for variation to the transparency order) if she wanted to say anything at that point. She replied that she accepted the judge’s concerns but that P was always with a member of staff or with family and “is never left on her own”. 

The judge was highlighting this concern so that the parties knew his preliminary thoughts and could address those concerns in their position statements to be submitted in advance of the next hearing , which is likely to be in September.

I hope to observe that next hearing so that I can find out what the judge’s decision will be. 

Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is on X as @AmandaAPHill and she is on LinkedIn here

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My first in-person observation at the Royal Courts of Justice

By Amanda Hill, 31st July 2024

“The Royal Courts of Justice (London’s High Court) is an enchanting building on London’s Fleet Street.” So says the Royal Courts of Justice (RCJ) website, promoting public tours of the Grade 1 listed building, the centre for many of the most important court hearings in the United Kingdom.

I have observed two dozen or so Court of Protection hearings, but mostly in the regional courts, and always remotely. When I realised that I would have some time to spare while passing through London on the morning of 12th July 2024, I hoped that I would be able to observe an in person hearing at the RCJ.  

This blog is about that incredible experience – and I hope it encourages readers to go there in person. 

The first step of my journey was finding a suitable hearing. RCJ COP hearings that are open to the public are only published the evening before and it was pot luck whether or not I would find something appropriate. I knew to look at the Open Justice Court of Protection Project (OJCOPP) Featured Hearings, usually RCJ hearings, which are highlighted so as to enable anyone wanting to observe to send a request for the link (for remote hearings) or plan to attend in person. My luck was in!  The evening before my trip, I saw this on the OJCOPP website:  

And I recognised the name of the judge!  Victoria (Tor) Butler-Cole KC is a barrister who also sits as a part time judge. She’s also one of the lawyers on the Advisory Group of the OJCOPP. I’ve seen her as Counsel in remote hearings but I was very excited about the possibility of seeing her in action as a judge, in person. 

The listings for the Royal Courts of Justice (unlike the regional court listings) don’t say what the hearings are about.  They also don’t say how long the hearings are due to last for and I only had until 12.30 before I would have to leave.  I was worried that I wouldn’t be able to leave the hearing if it was still in progress. But I learnt that observers often leave during hearings, especially if the hearing is long. This is the same for remote hearings, when observers can log on and log off at intervals. 

I also wasn’t sure what time to arrive at the court for the 10.30am start time. This message accompanies the RCJ listings for in person hearings on the OJCOPP X (Twitter) site: “To observe in person, go along to the court, leaving enough time to get through airport style security”.  I’ve often wondered what this means in practice but I decided to play it safe and get there early. The RCJ opens at 9.30am so I aimed to get there as soon as possible after that. I travelled by tube and got to Holborn underground station about 9.30am and walked down Kingsway, towards the Strand. 

It was a bright, sunny day and I enjoyed being in this part of historic London, especially as I had worked near here many moons ago. All around there were signposts reflecting the legal heritage of the area, such as to Lincoln’s Inn and The Temple. I reached the semi-circle Aldwych at the end of Kingsway and saw Bush House in front of me, the famous old building which was previously the headquarters of the BBC World Service. Following the signs to the RCJ, I turned left and carried on walking to the court. It had taken me about 10 minutes and I arrived at 9.40am. 

My heart sank when I arrived. In front of the main entrance, and stretching away from me, was a long queue of people. I was very relieved that the hearing I wanted to observe started at 10.30 and not 10am. I joined the back of the queue and took in what was going on around me. (Celia Kitzinger, who has more experience of observing in the Royal Courts of Justice, tells me there are often short to medium queues but she’s never experienced anything like what I experienced today.)

Next to the entrance on both sides were various groups of people protesting. It seems it was a busy day for hearings at the RCJ and I later learned that a couple of high-profile cases had attracted people to the court, to observe, report, participate in or protest against (see photos below).

There seemed to be lots of different kinds of people in the queue: they could have been lawyers, journalists, family members and observers. I guessed that the smartly dressed people were the lawyers and a few of them were looking concerned about time. Lots of people were standing around the entrance too, and I saw a few people pulling boxes of documents on wheely trollies. 

I moved slowly forwards and took in the magnificent grey stone facade of the building. It looked like a gothic cathedral. As I approached the entrance, I saw that there were steps and I wondered about accessibility for wheelchair users. I got to the front and was surprised to see this sign (in photo below).

The general public, like me, are admitted – and were being admitted despite the sign. I found the sign misleading and potentially off-putting for people who didn’t know otherwise. 

I reached security at about 9.55am and was through in a few short minutes. I had to place my rucksack on a moving conveyor belt (the “airport style” security) and I was “scanned” by a security guard in a very unthreatening way. I took the opportunity to ask him about access for wheelchair users and he said there were two side entrances they could use. I hadn’t seen any signs for these outside though. In terms of accessibility, there were also doors which opened automatically, toilets marked “disabled” and lifts to other floors. There were quite a few steps though and I didn’t see any wheelchair users during my visit. I also asked whether I would have been able to bring my airplane cabin sized luggage in and he said yes, as long as it could go through the X-ray machine. I did see a lot of lawyers’ bags, which were fairly big, going through. My rucksack went through without stopping. 

Once through security, I took a moment to survey the scene in front of me. I wanted to take photos but signs at security had made it clear that photos were not allowed. I looked up and saw the most amazing vast vaulted ceiling, many feet above me. I was standing in a large hall, the Great Hall, with people milling and rushing around, various signs with gothic style writing peppering the numerous corridors leading off from the main space. Impressive stone columns broke up the vast floor space; metal, triangular chandeliers hung from the ceiling, and classic stained-glass windows filtered light into the hall. The inside was even more impressive than the outside. My powers of description don’t do it justice. You can see some images of it here: https://theroyalcourtsofjustice.com/gallery/

A lot of people had made their way in before me and it was very busy. I started heading off in one direction before realising that I didn’t have a clue where Court 44 was and I couldn’t see any signs for it. I spotted an enquiry desk in the middle of the hall fairly close to security and went to ask where I could find the court. A man flicked through various A4 sized papers, eventually coming across the hearing I wanted to observe. He ticked the paper, and told me that, yes, I could observe it. Not all hearings at the RCJ are open to the public so he was doing his job in checking, but I knew from the list the night before that the one I wanted to observe was “in open court”, so I was going to go in anyway. He told me Court 44 was in the Queen’s Building and he gave me a map.

He also told me that Court 44 was on the 1st floor and that I should get the lift up to it. I headed off in the direction he pointed at, trying to make sense of the map. As I moved towards the far end of the hall, I spotted a fully gowned and wigged barrister striding off, his gown billowing behind him. This vision increased the feeling I had that I was in a hallowed building. 

The Queen’s Building was much more modern, built in 1968. I suddenly thought that maybe I should take a “comfort break” before heading to the courtroom. I followed the signs which led through the Queen’s Building and to another linked building. To my right, behind a glass wall, I could see individual tables of legal teams waiting for their hearings to begin, heads bowed together as they discussed their cases. On my return to the Queen’s Building, I took the lift to the 1stFloor. As the lift rose, I was conscious of time ticking on and I was feeling quite nervous. I still didn’t know what I would do when I reached the courtroom and it was now 10.15. I remember thinking how imposing and intimidating it would be for a family member or ‘P’ attending a hearing. 

Coming out of the lift, I could see a wall in front of me, dotted with doors with various numbers on. Straight away to my right I spotted one table that was occupied, outside Court 44, and I recognized the lawyer sitting there, talking to a smartly dressed lady who I guessed was a solicitor. It was Ian Brownhill, and I recognized him because I have observed various hearings he has been involved in. He is another member of the OJCOPP Advisory Group and has also written blogs for the OJCOPP, including this one: When P stops eating and drinking. I felt as though I was meeting a COP legal celebrity and I was delighted that I would get to see him act in person. Plucking up courage, as I was conscious that they would be preparing for the hearing, I went up to him and introduced myself as a member of the OJCOPP observer’s group. I told him that I wanted to observe the hearing and that as it was my first time observing in person, I didn’t quite know what to do.  He amiably told me that it would start at 10.30, when the door would open and I could go in. In the meantime, I should wait. 

I sat down at a nearby table. There were no other hearings on the first floor at that time and it was very quiet, in stark contrast to the noisy Grand Hall. I looked around and I noticed that there wasn’t a listing on the board before Court 44. But I did see a sign that said “Private No Admittance” and “No entry to the public save for accredited press/media representatives”. I was puzzled by this as I knew that I was allowed to observe. As time passed, a couple of other people arrived and stopped at the table where Ian Brownhill sat. I could tell that they were discussing the case (I heard the words ‘declarations to be made’). I didn’t particularly listen in, mainly because I was busy making notes for this blog, and trying to remember everything, especially as I couldn’t take photos. 

Around 10.25 the door was opened by the court usher and I followed the legal people in. The room was not that large, I’m guessing about 40m2. At the far end, on a raised area, was the judge’s chair behind a wooden wall that separated the floor of the court room. High on the wall to the top right was a large TV screen, set up for remote participants, including any remote observers. It was interesting to see how remote parties or observers appear from the point of view of those in the court room. This was obviously a hybrid hearing and a microphone was moved in front of Counsel during the hearing. In front of the judge’s area, after a space for the usher’s seat, were about 8 rows of green cushioned benches, each about 10 metres long. Ian Brownhill suggested that I sit in one of the last two rows and I made my way to the middle so that I could see the judge clearly. I was the only observer. The people on the remote link turned out to be treating clinicians. 

Two other barristers had entered the court room and were sitting in the front row. I later learned that they were Bridget Dolan KC (for the applicant) and Brett Davies (for the Local Authority). Ian Brownhill was acting for the Official Solicitor, representing the protected party ‘P’ in this case. Bridget Dolan and Ian Brownhill had their instructing solicitors (I assumed) sitting behind them. Nobody was wearing wigs and gowns. Before I sat down, I asked Ian Brownhill if I could have a copy of the Transparency Order and the position statements. He passed this request to Bridget Dolan, who came over to me and gave me a copy of the Transparency Order and her position statement, from her lever arch file. We had a short discussion about open justice and I asked why there were the signs outside the court stating that the public can’t be admitted. She told me that the court rooms were multi-purpose rooms, and were also used for Family Court hearings that were generally held in private. She told me that if she remembers, she turns the signs over when there are COP hearings here as public observers are very welcome. She said “The COP is always open”.  (This isn’t strictly true as sometimes hearings are in private and  judges don’t admit observers. There have also been closed hearings that even family members of the protected party don’t know about.   I knew the statement was made in good faith, though.) I appreciated her taking the time out from her preparation to speak to me.

I took out my laptop, ready to take notes, having checked beforehand that it was allowed. I could also have my flask of water, although no other food or drink was allowed (except cough sweets!). At just after 10.35, the judge entered and we all briefly stood up. After everybody had sat down, Ian Brownhill introduced everybody and mentioned that there was an observer present. Tor Butler-Cole looked up at me and gave me a faint smile to acknowledge me, which I appreciated. 

The hearing started and a summary was provided for my benefit. Cases were presented and evidence provided by the clinicians as witnesses. At 12.30 the hearing adjourned for 30 minutes to allow the legal teams to discuss some important issues. It was a perfect moment for me to leave. Bridget Dolan came up to me just before I left, to ask me if I had managed to understand the hearing as it was covering some quite technical points. I explained that I had followed quite a bit of it and it had been a really interesting experience. The judgment was subsequently published on Bailii here and I was glad that I could find out what happened after I left the hearing. Like many COP cases, the subject matter of the hearing was difficult to listen to and it brings home the important matters that COP hearings consider and how decisions impact individual people. 

As I left the courtroom, the teams were around the table in the corridor again, heads bent down, discussing the case and aiming to go back into court with an agreed position.  I headed back out through the Great Hall, reflecting on my experience. 

As an observer, it had been very positive and I had been made to feel very welcome. I would highly recommend visiting the RCJ to observe a hearing as it felt very different to remote RCJ hearings I have observed. I’m sure that lawyers who have frequent hearings at the RCJ probably feel quite blasé about the surroundings but I had been very impressed, both by the building and the process of observing. Although I’m sure that future occasions won’t be quite as memorable as the first time I visited this magnificant building, I hope to be back many times in the future. 

Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is on X as @AmandaAPHill and on LinkedIn here