Closed hearings, safeguarding concerns, and financial interests v. best interests

By Daniel Clark, 2nd October 2024

The protected party in this case, “B”,  is a thirty-year-old woman who, according to Counsel for her mother, has until recently been a “happy, well balanced, sociable person”. She enjoys spending time with her family and, until 2024, had been living with her mother at home.  

This case (COP 14116349) first came before the court in July 2023. The local authority sought an injunction guaranteeing access to B which, they say, had been frustrated by her mother (JB). This access would allow the local authority to properly assess B’s needs for care and support. 

In December 2023, the case changed direction following serious allegations that triggered a police investigation. The case was transferred from First Avenue House to the Royal Courts of Justice, for hearing before a judge of the High Court. 

On 17th January 2024, Mr Justice Keehan approved the local authority’s application for B to move from her grandmother’s home (where she had been temporarily living) to Placement 1. This is a respite placement, where B had lived before. 

Two law students blogged about this hearing here: “Two law students’ first observation of a COP hearing“

They comment that the judge “took P’s welfare into account as well as considered that P had made it clear that she was excited and happy to move”. However, they were concerned that they needed more background to the case, particularly with regards to why B was being moved. I also observed this hearing, and agreed with their comments.

In total I’ve so far observed five hearings in this case. I believe that there were three others in 2024, though these were heard in closed court. At the most recent hearing (27th September 2024) the judge authorised a move from one placement to another, and refused the mother’s application for a return home.

This case has been mostly heard before Mr Justice Keehan, who has sat remotely (via MS Teams) at the Royal Courts of Justice. On this most recent occasion (27th September 2024) the case was heard on an urgent basis before Mr Justice Peel. This was presumably because the court was still in recess, and Keehan J was on leave. 

In the hearings that I have observed, two of the legal teams have remained the same. 

Sebastian Elgueta, of Garden Court Chambers, has represented the applicant local authority, the London Borough of Lambeth. The Transparency Order previously prohibited me from identifying the local authority but, after applying to the court, Mr Justice Keehan amended the Order so that I could. You can read about that application in this blog: “Prohibitive Transparency Orders: Honest mistakes or weaponised incompetence?“

B’s mother (JB) was initially acting as a litigant in person. Following the hearing in January 2024, she has been represented by Alison Harvey, of One Pump Court. JB has some difficulty in understanding information, and has been assisted by an intermediary. There is also an expectation that the other parties make some accommodations in their communication with her (such as filing position statements at least two days in advance of a hearing). 

B’s representatives (instructed by her litigation friend, the Official Solicitor) have changed throughout the year. 

The first section of this blog addresses the concurrent closed proceedings, including issues of accidental disclosure. The second and third sections concern two hearings with two separate applications for the same outcome: moving B from Placement 1 to Placement 2. 

In writing this blog, I have been greatly assisted by the position statements that the parties have consistently sent me. 

Closed proceedings 

Closed hearings are not the same as private hearings. When a Court of Protection case is heard in private, members of the public and (usually) members of the press are excluded from observing. However, all the parties are invited (or ordered) to take part.Closed hearings are different in that, while they do often exclude members of the public and press, a party or parties (and their legal representatives) are also excluded – and may not even know that the hearing is taking place.

Closed hearings came to the attention of the Open Justice Court of Protection Project when it transpired that a blog post we’d published was “inaccurate and misleading”, because it was based only on information provided in open court.

It later emerged that decisions had been made in closed proceedings (and subsequently implemented) of which the bloggers were unaware. In that case, members of the public, the protected party’s mother, and her legal team were not informed about the closed proceedings. 

This case was different in that everybody knew about the closed proceedings, and that they related to a police investigation. Following an application by the Metropolitan Police, heard by Mr Justice Keehan on 8th May 2024, closed proceedings were commenced alongside the open proceedings. It is my understanding that several observers had joined the link for this hearing only to be very quickly removed. 

The observers were told that this was a Public Interest Immunity (PII) application. This is a mechanism by which the police can apply to not disclose certain information on the basis that it would ‘create a real risk of serious prejudice to an important public interest’. 

At an open hearing on 22nd May 2024, it became clear that a solicitor instructed by the local authority had accidentally disclosed an unredacted bundle, containing information about these closed proceedings, to JB and her representatives. I don’t know what was disclosed but the judge was clear it must not happen again, and Counsel for the local authority apologised to the court.

At a hearing on 16th July 2024, Mr Justice Keehan heard submissions in open court as to whether he should continue to hear some proceedings in closed court. In particular, he heard submissions as to whether JB should continue to be excluded but some level of disclosure could be granted to the local authority and the Official Solicitor. This was opposed by Counsel for JB but the judge approved the application, and so the closed proceedings continued.  

It’s now clear to me (given the information discussed in a hearing on the 27th September) that the closed hearings concerned an investigation into the alleged discovery of sexually inappropriate images on B’s devices. 

On 28th August 2024, I requested to observe (and was sent the link for) another hearing in this case.


The start of the hearing began on a different note to what I was expecting: it had been listed as for hearing in open court but was actually part of the closed proceedings. I was the only observer present and, after clarifying who I was, the judge permitted me to stay and observe. 

As far as I am aware, I am the only member of the public ever to have been permitted to observe a closed (rather than private) hearing. I haven’t shared the details of the hearing with anybody, and nor do I intend to. The fact that the judge allowed me to observe demonstrates his view that members of the public can be trusted to observe closed hearings without jeopardising the integrity of a case. 

In any event, as was explained in a public hearing at the end of September, the police investigation had concluded, and it had been decided that no further action was to be taken. That meant the closed proceedings were concluded, and the parties should now (according to the Guidelines) receive full disclosure.  

 The unsuitability of Placement B – “I do not find it in the best interests of [B] to move”: A hearing in May 2024

This hearing (on Wednesday 22nd May 2024) concerned an application by the local authority for B to move from Placement 1 (where she was residing) to Placement 2. This was opposed by JB, B’s mother, as well as the Official Solicitor. On this occasion (and for the first time as far as I am aware) Alison Meacher, of Gatehouse Chambers, represented B by her litigation friend, the Official Solicitor. 

On behalf of the local authority, Counsel submitted that the decision for B to move from Placement 1 will eventually need to be made. Placement 1 is a respite placement, and had only agreed for B to reside there on a temporary basis.  On the other hand, Placement 2 “is a longer-term placement for the residents there, so the staff are much more familiar with assisting residents to visit their family”.

It was further submitted that “[Placement 2] is a longer-term placement and the emphasis and focus is on developing skills…Overall, we think that [B] will fit in much better at [Placement 2]”. Furthermore, Placement 2 is actually closer to her family, which would help to facilitate further contact. 

The judge was however concerned because he had met B, and she seemed “happy and settled at [Placement 1] and has expressed no desire or wish to leave. And what concerns me at the moment is permitting the local authority to move from [Placement 1] to [Placement 2], when at a final hearing she may be moving somewhere else”. 

Counsel for JB had a number of objections to the proposed move. She had concerns (which were also shared by the Official Solicitor) that the draft care plan had “large chunks of information missing”. For example, as Counsel for the Official Solicitor highlighted, the care plan makes no mention that B “has two siblings and a mother who loves her dearly”.  Concerns about this were exacerbated by the fact that the proposed new Placement had a low CQC rating. 

Of great concern, which was again shared by the Official Solicitor, was that the move would result in B losing all of her professional contacts because Placement 2 was in a different area, covered by a different NHS Trust. In particular this would mean the loss of her speech and language therapist, who has helped B to make progress in communication.

As Counsel for the Official Solicitor put it, the loss of her professional team, particularly the speech and language therapist, “outweighs the proximity of [Placement 2].…Nothing can be done to assuage the need to entirely change [B’s] professional team”. 

While acknowledging that this is a “finely balanced application”, the Official Solicitor considered a change in speech and language therapy team to be “very counter-intuitive”, and that this means that the balance “very much falls in the favour of [the judge] refusing this application”. 

The judge did indeed accept the force of these submissions. Given what happened at the subsequent hearing, his words are worth quoting in full: 

[B is] happy [at Placement 1], she’s told me she’s happy there, she’s told other people she’s happy there. The prospect of what may be a temporary move that she would lose her speech and language therapist and other healthcare professionals whom she knows, and importantly know her, is a factor that weighs very heavily with me. The fact that the Official Solicitor is not satisfied, on the evidence currently available, that [Placement 2] is not the appropriate placement, is a very significant and very powerful factor. Along with the other factors set out…leads me, I regret to conclude, that I do not find it in the best interests of [B] to move from [Placement 1].

 “This puts all parties and this court in a difficult position”: A hearing in September 2024

This hearing (on Friday 27th September 2024) was, in effect, the same application but in a very different context. By this time, B’s mother was aware (to some extent) of what the police investigation concerned. 

A hearing had been listed for Thursday 3rd October 2024, before Mr Justice Keehan. It seems it was anticipated that, at this stage, he would consider whether it was in B’s best interests to move to a long-term placement or move back home. 

However, Placement 1 had made it clear that B would have to leave on Monday 30th September 2024. In the words of the judge (on this occasion, Mr Justice Peel), this was “apparently for financial reasons…They have been unequivocal and inflexible. I have to say that I have found their conduct disappointing, not in the best interests of [B], and short-term-ist…This puts all parties and this court in a difficult position”. 

The position statement of the local authority explains that Placement 1 had “incurred legal costs owing to disclosure obligations arising from these proceedings which it (presumably) cannot sustain”. Despite requests for an extension and explanations that further disclosure will be minimal, Placement 1 refused to change its position. 

As a result, the local authority made an urgent application to the court to ask it to authorise B’s move from Placement 1 to Placement 2 (that’s the same placement that Mr Justice Keehan previously found not to be in B’s best interests to move to). The local authority had attempted to find another placement but had not received a response from them. 

On this occasion, the Official Solicitor (this time represented by Chiara Cordone, of 39 Essex Chambers) supported the application. JB, B’s mother, opposed the application, and asked the court to authorise B’s move back home instead. 

The local authority objected to this latter proposal because it continued to have ongoing safeguarding concerns. Despite the fact that the police investigation had concluded, Counsel told the court that this “does not mean that the safeguarding concerns have gone away…There is a context to the original incidents”. 

Mr Justice Keehan had previously made an order for the Metropolitan Police to file a statement explaining the decision to take no further action, as well as disclosure of relevant documents. The deadline for this was the 13th September 2024, but the local authority still hadn’t received them (two weeks later).

Due to the apparent failure to comply with this order, the local authority was not in a position to establish whether or not  its safeguarding duties had been satisfied. While it was not ideal, Counsel submitted, the court should authorise the move to Placement 2. 

The judge was keen to understand exactly why the local authority did not feel B could return home, and asked why (as was being proposed by JB) she couldn’t return home “with practical measures at the house. For example, regular checks on devices, and round the clock care as well?”

The local authority opposed this suggestion because “we don’t think it’s sufficient. The index incident was one of making images – we don’t know the context of when they were made or why…We don’t know the extent of the concerns”. 

Even if the safeguarding concerns could be satisfactorily concluded, this does not mean that the local authority would de facto see a move home to be in B’s best interests. This is because of historically difficult relationships between JB and professionals, which was described as “fractious”.  If this continued, there is a risk that the placement at home could break down. 

Counsel for JB (Alison Harvey) rigorously opposed these submissions. I do not know what she and JB know about the closed hearings, though I think they had been given some information, In my opinion, this was some of the most impressive advocacy that I have ever observed. Her submissions were measured and precise. 

They did not rely solely on JB’s own position, though this was expressed clearly and articulately. As I will show, Alison Harvey frequently referred back to JB’s position, presenting it not just as JB’s position but also as representing an objective analysis of B’s best interests. 

The submissions also employed the position of the other parties (expressed or implied) to construct the argument that B should return home to her mother. This spoke to a very impressive level of preparation, and it was clear that Alison Harvey was very familiar with the papers. This was all the more important given that the judge hearing the case was doing so for the first time. 

Counsel first drew the court’s attention to a care plan from Placement 1 which read: “PLEASE NOTE – supervision is not needed while [B] spends time with her family. Supervision is not needed while [B] has phone conversations with her family”. 

This, Counsel stated, demonstrated that the local authority was happy for B to have unsupervised contact with her family, implying that they did not believe B’s mother to pose a risk of harm to her. In fact, “there is no suggestion that her mother has done her harm; the police didn’t even speak to her during their investigation”. Later in the hearing Counsel for the Local Authority agreed with this but explained that their concern was whether JB “kept her daughter safe” – an important distinction. 

Counsel for JB made the case that it was in B’s best interests to return home with 24-hour care from carers who were familiar with her. The agency who would provide this care had signalled they would be available, and this (it was submitted) would surely act to prevent any further safeguarding issues. 

Counsel told the court that “[B] lived for 29 years at home – the home is wholly purpose-built, it has a lift, you can drive a car right up”. This was a useful demonstration of JB’s level of care and dedication for her daughter. It also acted as a pertinent reminder that the last nine months represent a total fracturing of what B is accustomed to. She has not simply moved away – she has been removed from a familiar environment.   

Counsel also raised serious concerns about the way in which JB was being communicated with. In her words: 

“We are once again in the position – partly because of the urgency but not totally – where the interim ground rules have not been respected. There is a steadfast ignoring of the best way to communicate with JB and we say that that is at the root of the original concerns that the local authority had about communication, keeping appointments, etc. They have not distinguished between unwillingness and inability. Again, a live-in carer ensures that some of those timetabling difficulties can be picked up.”

Counsel for JB then directed the court’s attention to the position statement of the Official Solicitor, which was filed for the hearing in May. The position then was that the move was not in B’s best interests (in part) because she would not have continuity of healthcare. This lack of continuity was confirmed in the local authority’s position statement for the same May hearing. That hasn’t changed.   

In other words, moving B to Placement 2 would disrupt the continuity of healthcare considered essential by the Official Solicitor (and the judge) in the last hearing – so clearly a move to Placement 2 remains not in B’s best interests. Instead, Counsel submitted (again) that she should move home, which has been adapted for her needs. 

This is further supported by the fact that, while at Placement 1, B (who is usually a “happy, well balanced, sociable person”) has “deteriorated since the beginning of June”. She has been pulling out her hair, increasingly distressed, and acting aggressively towards care staff. Counsel submitted this is because she was not in a home environment, and that there was a real risk her behaviour would continue to deteriorate at Placement 2.

After hearing submissions, the judge gave an ex tempore judgment. He found that while “some of the points made on behalf of [JB] have validity”, it would be “inappropriate to authorise a return to home in circumstances where there are still lingering questions about the images on [B’s] devices”. 

He therefore authorised B’s move to Placement 2, but stressed that this was “very much for an interim, short-term, period”. The judge thought it appropriate, and the parties agreed, that the case should come back before Mr Justice Keehan on Thursday 3rd October. 

A final surprise from the Official Solicitor

It is worth repeating that the parties, particularly the local authority, felt they were at a disadvantage because the police disclosure of documents relevant to their investigation, and a statement explaining the decision to take no further action, had not happened. This is in spite of Mr Justice Keehan’s order that it must happen by the middle of September. 

In his judgment, Mr Justice Peel commented that “Disclosure by the police of further evidence was due to have been given by the 13th September which should have addressed this matter. That however has not taken place. That is highly regrettable because it would have left the parties in a clearer position today. The consequence, the local authority say, is that there is no clarity as to the concerns, and they point out that safeguarding does not rely on police investigations but on a general overview”.

Indeed, the judge expressly stated that, in his consideration of whether B should move to Placement B or move home, “the main point in my judgment is the question of safeguarding”.

Except, it transpired at the end of the hearing that, in fact, the police had complied with the order of Mr Justice Keehan. 

The order about disclosure had made accommodations for the Official Solicitor to see the materials first, who would then decide whether they should be disclosed to the other parties. 

As the judge was asking for any final comments from the barristers, Counsel for the Official Solicitor shared that the police disclosure was sent to the Official Solicitor. She (that is, the Official Solicitor) has reviewed the documents, and is now happy for them to be shared with the other parties. 

The judge was clear they must be shared prior to the hearing on 3rd October 2024. Surprisingly, he had nothing to say about the fact that (it would appear) the Official Solicitor had received the documents from the police prior to this hearing but had not yet disclosed them.

Of course, I don’t know when the disclosure was made to the Official Solicitor. Given that this was an urgent hearing, it’s possible that the Official Solicitor was planning to process the documents before the hearing at the start of October.   

However, I do find it vanishingly unlikely that during the course of this brief hearing (less than an hour), the Official Solicitor received the documents, reviewed them, and was satisfied that they could be shared with the other parties. 

It strikes me as self-evident that the hearing could have been conducted entirely differently if this disclosure had taken place just a day before. Whatever these documents say may not have changed the view of the local authority, and it may not have changed the judge’s decision. 

But we can’t know that, can we? 

Final thoughts

This case, as Mr Justice Peel put it, concerns “sensitive and emotional matters”. 

B was removed from the family home to a placement where she was initially settled. She has become increasingly distressed, all against a backdrop of a police investigation. 

The plan was for hearings in October to consider B’s best interests in relation to her long-term residence and care. These plans were put on the rocks when Placement 1 refused to accommodate her any later than Monday 30th September 2024, despite only being asked to extend the stay to the end of that week. 

Now, the court has authorised a move to a placement that it had previously declared was not in B’s best interests to move to. Of course, this is only for the short-term. However, it is highly likely that she will have to move yet again, either home or to another placement (one has been identified by the local authority). That will be her third move in about ten months. 

The behaviour of Placement A has been “unequivocal and inflexible”, and this is “apparently for financial reasons”.  Mr Justice Peel described this behaviour as “disappointing”.

I initially thought that these words didn’t quite capture the sorry nature of Placement 1’s behaviour, but Celia suggested that a judge describing your behaviour as “disappointing” is a very serious matter indeed. Far from being “light-touch”, it can be reasonably understood as a judicial reprimand. 

So, “disappointing” might not be the word I’d use. But I don’t have to rely solely on that word because I’m not a judge. 

In my view, the events at the end of September are once again an example of financial interests steering the Court of Protection ship. It appears to be only money that means the court has had to revisit a previous best interests declaration, and essentially renege on its original position in order to endorse a move to Placement 2. 

Of course, it isn’t only in the Court of Protection that this happens. 

Budgetary constraints and financial concerns mean that, every day, local authorities and NHS Trusts are limited in what they can offer a person.  Sometimes the funding for a package of care, assessed as being in a person’s best interests, is withdrawn. The person’s best interests haven’t changed; the pot of money available has changed. 

When this happens, those providing support have their hands tied. That includes judges – they cannot compel a private business to do something that it says it cannot afford.

So, when a respite placement decides to evict a person living there (as in this case), a judge can only prevent that from happening when the placement has acted unlawfully. All a judge can do (in the words of Sir James Munby P) is engage in, “rigorous probing, searching questions and persuasion”.

I imagine that, when this case returns to court, Mr Justice Keehan will do just that. 

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

Why can’t a 91-year old return home to her son? 

By Celia Kitzinger and Kim Dodd, 30th September 2024

Now with updating PostScript, 13th December 2024

We both watched this hearing (COP 20000918) on 30 September 2024 before HHJ Robertshaw in Bristol concerning a 91-year-old lady (P) who has been deprived of her liberty in hospital for several months, as a “social admission” (i.e. there’s no medical reason for her to be there). 

She had been living with her son, who was providing care – the care package provided by the Local Authority having largely broken down due to the reluctance of both P and her son to accept their intervention. 

It’s not clear to us what (or who) precipitated admission to hospital, but the Local Authority and the Official Solicitor agree that the home is unhygienic and unsafe: they referred in particular to stairs without a banister and the risk that poses to P who has visual impairments. Their position is that it’s in P’s best interests to go into a care home, at least for the short-term while they make further investigations about her property, her finances, and her capacity to make her own decisions (she has “cognitive impairment”).  They say there is reason for the court to believe on an interim basis (s. 48) that P lacks capacity to decide where to live, and they’ve identified a care home that is able and willing to take her, and they’ve included a “conveyance plan” in the bundle for the court. But P has made it clear she objects to being deprived of her liberty and wants to go home.  

It was said in the introductory summary that her son would also like her to return home, but in the course of the hearing he expressed no opposition, in principle, to a care home for his mother.  He did, however,  strongly object to the particular care home proposed because it is a long way from his home and takes about two hours to get there by public transport.  He has been visiting her around twice a week and would find it (he said) “impossible” to continue to do so under these circumstances.  Relocation to that care home  was, however, what the judge authorised – on an interim basis – after ensuring that the local authority would provide financial assistance to the son to enable him to visit his mother once a week.

It was quite a painful hearing to watch.  We have each separately reflected on the case and our reactions.

Reflections from Celia

My first reaction was that mother and son were being separated against their wishes, and that intervention by the state to “protect” P’s safety against her wishes was a gross invasion of her right to privacy and family life.  As another judge once said, “What good is it making someone safer if it merely makes them miserable?” (Munby J §120 Local Authority X v MM & Anor (No. 1) (2007)). 

But the situation was rapidly made more complicated, with allusions to “safeguarding concerns”  (never fully specified) that seemed to extend well beyond the possibility of P falling downstairs at home. 

The son, who was in court, had applied to be joined as a party.  Counsel for P via the Official Solicitor (Hannah Haines) raised concerns about this, saying that there were documents in the bundle detailing some of the “allegations” against him “and there may be, if he were to be a party, arguments as to whether or not all of those documents ought to be disclosed to him or whether they should be redacted or withheld”.  This pointed to the possibility of a “closed material” hearing – of which there seem to be far more than was originally believed before the existence of Guidance regulating their use.  

The question of whether or not parties (and the son is not – yet – a party) should be prevented from having access to documents and information on which other parties rely is a challenging one. It’s something I’ve considered in some detail after we published misleading information about a case in which there were parallel open hearings (which we watched) and closed hearings (which we were not aware of).  In that case, P’s mother (who was a party to the case) was not informed that her daughter was being covertly medicated.  Her arguments to get her daughter home, on the basis that she would be able to persuade her daughter to take the medication she was refusing, were therefore otiose.  It felt like a huge betrayal of the whole idea of a ‘fair trial’ and of the very idea of ‘open justice’ to learn that the court had misled us (both the observers and P’s mother) in this way.  We wrote about it here: “Statement from the Open Justice Court of Protection Project concerning an inaccurate and misleading blog post” and “Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44)”).

Although there can be good reasons for closed material hearings (and closed hearings), the effect – always, I think – is an element of unfairness and inequality.  How do you defend yourself against arguments you haven’t seen or heard?  How do you advance your own position in a convincing way when there are relevant matters being kept secret from you?

The judge in this case was obviously alert to the issues.  She said, crisply,  “It wouldn’t be just or fair if the court were  asked to make a significant decision and was asked to place reliance on allegations placed before the court when [the son] was in ignorance of those allegations and unable to put his position before the court”.  Well, yes.  Exactly so. 

As it turned out, it didn’t come to that, not least because the son wasn’t arguing for his mother to return home, and because the placement was “interim” and not intended to be permanent (albeit that she’s 91 so the notion of “permanence” is somewhat precarious).  Instead, the argument at the moment turns on the physical risks of the home environment in terms of banisters and hygiene; there’s apparently no need to draw on any additional risks from the son in making an argument for P to be kept from her home: “so the issue for the court is whether it’s in her best interests to remain in hospital or to go to a care home”.  And as there was only one suitable care home available, that decision seemed inevitable under the circumstances.

There was also a proposal (not yet before the court) to appoint a Finance Deputy to assess whether she has sufficient money to ensure her house is made safe –  “if she doesn’t, then other issues concerning Son wouldn’t arise and so it wouldn’t be necessary for him to join and be given all that information” (Counsel for P).  

The son did not engage at any point with the references to allegations against him.  He seemed calm and composed.  He said: “I do not have a problem with my mother being placed in a care home except that it must be accessible …  [Placement A]  is impossible for us to get to….. it’s a million miles away – as far away as you can get and still be in [County]  – there’s no bus, and train transport is appalling and then it would require a taxi drive from the train station to [the Placement]. It would be impossible for me to afford that.”

The judge took this seriously and asked counsel to “direct me to the page numbers in the bundle where options for alternative care homes have been set out and the reasons why the Official Solicitor and the Local Authority have reached the conclusion that this care home is the most suitable”.  Other care homes had been approached but only one other offer received and that was from a care home rated by the CQC as “Requires Improvement”.   The social worker (also in court) was consulted about any outstanding possibilities. It seemed there were none.

The issue of the son visiting his mother became quite fraught.  The judge asked what support the son could expect from the Local Authority with visiting his mother at the proposed care home.  In response, counsel for the Local Authority (Rachel Baker) referred the judge to “§15 of the attendance note from the meeting with P in August” – apparently to support an implication that the mother might not wish the son to visit and/or that it was not in the best interests of the mother for her son to visit.  I don’t know exactly because I haven’t seen this document, or the use made of it in the local authority’s position statement.  Nor had P’s son – as the judge pointed out.  “You are giving me reasons that make no sense to [P’s son]” said the judge, re-asking her original question.  

Judge: “What exploration has the Local Authority had with [P’s son] regarding supporting visits by him to his mother if she was at [Placement A]?”

Counsel for Local Authority: Those explorations have not taken place.  The intention is first to get capacity assessments regarding contact. 

The son said the new placement was “unacceptable” because it was too far away. “Given my mother’s age she is very distressed that I am not visiting more often, but it’s impractical for me at the moment. I don’t know if you understand that I have cancer and am slightly limited in my activities.”

The judge asked Counsel for the LA again what support she anticipated the LA would offer to enable the son to visit his mother.  Counsel for the LA repeated that “there would first of all need to be clarity with regard to capacity to make decisions regarding contact”.  

“Please answer my question”, said the judge.  “I know you’re seeking clarity about that,  but at the moment [the son] is visiting his mother on regular basis […], so what is proposed in next 2 months if P is discharged from hospital to [Placement A].”

Counsel for the LA said she would need to take instruction on that. The judge called a 30-minute adjournment – following which Counsel for the LA reported that the LA was willing to pay for one visit per week (either by taxi, community transport or public transport) on an interim basis until the next hearing.  

Counsel for P then expressed some concern about how these visits would take place.  Visits in the hospital have been supervised (on whose authority we don’t know).  “Given P will be in a private room once she’s moved if that is the order of the court, there would need to be some urgent consideration as to how those visits would be managed”.  She also raised the point that – given the “safeguarding concerns” alluded to darkly in this hearing – “if there were restrictions in place and P didn’t agree and she wanted visits with family privately in her room, then that would require capacity assessments to be completed.”  (Presumably the same must have applied to render lawful the supervision of visits in hospital?)

The judgment seemed inevitable under the circumstances.  Everyone recognises that there’s no medical need for P to remain in hospital, where she’s been for many months.  It’s not a good environment for her: she’s in a shared bay with little privacy, and she’s vulnerable to hospital infections there.  There’s a dispute as to whether or not it’s  safe and in her best interests to return home where she would continue to be looked after by her son – but both the Local authority and the Official Solicitor say there are  sound and valid reasons why it’s not in her best interests and – given the state of her home – it’s also unsafe.  The son also did not oppose a care home. There’s only one suitable care home – and although it’s difficult for the son to visit his mother there, the Local Authority will pay for him to go once a week until the next hearing.  The judge was satisfied that it was in P’s best interests to be discharged from hospital and move to Placement A. She approved the transition plan and the making of the DOLS order.  She did not approve contact restrictions (and counsel did not pursue this). The judge will consider the son’s application to become a party at the next hearing, which will be by Teams at 11am on 9th December 2024, for two hours.

After the judge’s decisions had been communicated, counsel raised another matter: our requests for their Position Statements.  Both of the represented parties’ Position Statements contain material they don’t want made public.  For example (said counsel for P), paragraph 19a.  The judge read it silently, then asked: “What is your concern if that paragraph were disclosed?”.  Counsel for P replied that “it conveys information which, if [P’s son] was joined, there may be an application made to restrict disclosure of that information and if this is reported it will obviously make that application otiose”.  The judge told both advocates to formally file the paragraph numbers that they wanted to redact “bearing in mind that the balance is on disclosure rather than non-disclosure so please identify the relevant paras and please state WHY you want to redact them”.

So, we will probably not get to hear what the allegations are against P’s son – and he will not get to know them either, at least not in the immediate future. He may learn eventually, though, as there were suggestions of a possible future ‘fact-finding’ hearing.  

A final caution: it’s quite possible that parts of this report are wrong, because it was perfectly clear that information was being withheld from P’s son, and therefore also from us, and we’ve not been sent Position Statements yet because of counsels’ wish to redact them. We’ll ask for the approved Order in addition to the Position Statements, and if it becomes obvious that we’ve made mistakes when we receive the Position Statements (assuming we do) and the approved Order (which we probably will get as we are entitled to it by law), then we’ll make (tracked) corrections to this blog post.  But I suspect we’ll be left in the dark about what’s going on for a while yet.

Reflections from Kim

I’d sent requests to observe four different hearings that day, all of which  had been vacated or moved to an ‘on the papers’ exercise, so I had just about given up hope of finding a hearing to observe. I was glad I hadn’t given up because this two-hour hearing was fascinating and depressing in equal measure. 

The case was raw for me personally, as it seems to be following a similar trajectory to my dad’s CoP proceedings earlier this year. The conclusion of this hearing –  which is that, at least for now, a woman who probably doesn’t have very long to live is being moved (against her will and that of her son) into a care home far away from her own home and family – was difficult to hear. I hope it ends better for P than it did for my dad, who having been forced into care against his will then lost the will to live, and died last month. 

As always, this hearing left me with many more questions than answers. Compared to criminal and civil hearings, it seems to me that CoP hearings leave observers almost completely in the dark about the real backstory to the chain of events which led to the jurisdiction and powers of the CoP being invoked in the first place. 

While counsel talked about the improvement work necessary for P’s own home to be a viable alternative (adopting an overly paternalistic view that risking falling down your own stairs in your later years while living in your own home, being cared for by your loving son, is somehow much worse than being placed in institutional care), it was not clear who owned the property and to what extent the Local Authority were responsible for the maintenance / safety of her home. Much of the discussion in the hearing centred on who would pay the travel costs for P’s son to visit his mother in the care home in the ‘interim’ period (10 weeks) which suggests both P and her son lack funds. I did a back of a cigarette packet calculation on the rough cost of the hearing (assumedly at the taxpayers’ expense) and worked out that the costs of the directions hearing alone could have covered a taxi to the moon and back (and /or a gold banister for P’s stairs).  

It seemed to me that the ‘home-repairs’ were just the LA’s holding position until they could organise themselves to fully address the ‘elephant in the room’ in this case – the ‘allegations’ against the son which have triggered the need for supervised contact and a need for the LA to do further work to ascertain whether or not P has the capacity to decide who she has contact with. I found it disconcerting that P’s son was at the hearing when such a big life-change for his mother was decided upon (albeit, theoretically at least, temporary) whilst his application for joinder as a party was not yet being decided upon. Until he is joined as a party (if ever) this leaves him in the precarious position of not seeing any of the court documentation – neither the all-important bundle which is shared with all parties, nor the Position Statements which Celia and I requested and may get, at least in redacted form. This state of affairs is arguably contrary to the Rule of Law on which our constitution is based. 

What was even more surprising for me was the absence of any objection from P’s son. I suspect the poor gentleman was overwhelmed by the whole case and the proceedings themselves (though I noted he took Her Honour’s rebuke of his vaping mid hearing well). I believe, based on my experience both personally and as an observer, that litigants in person are often treated shabbily by the court system. I expected him to ask why there was to be a proposal for a financial deputy, as having cared for and lived with his mum for ten years he surely knew of his mum’s financial position and could easily answer the question of whether she was in a position to fund any necessary improvement works or not. 

Even more, I expected him to ask what allegations of safeguarding issues they were referring to. I think he was the only person in the room who didn’t understand the implications of what will be coming next in terms of proposals for restricted, if any, contact with his mother after December this year. The impact of the move, and the potential for further restrictions on the contact between mother and son, are huge. As a member of the public, I feel the need to see a much more robust argument from the LA and the OS to justify such a significant interference in P’s rights and freedoms. 

In the meantime, this hearing felt like the start of a drama about to unfold and I am hoping that I can follow the case again at the next hearing on 9th December 2024.

Postscript 13th December 2024 (by Celia Kitzinger)

The hearing of 9th December 2024 was vacated (cancelled). Sadly, this was because P had died. So the Court of Protection is no longer involved in her affairs. What Kim describes as “a drama about to unfold” is now finished. There will be no further hearings, so no “closed material” fact-finding hearing.

The other development is that (finally!) I received a Position Statement on behalf of Surrey County Counsel, redacted as approved by the judge. This assists considerably with understanding why there was more opposition to P’s return home than seemed explicable on the facts as we knew them at the time of the hearing and when we wrote the blog.

Some salient facts which address some of the concerns we raise in the blog post include the following:

  • A care package at home was attempted in Autumn 2023 but was unsuccessful because the son often turned staff away from the property and P herself also told carers to go away.
  • P has struggled with mental health issues all her life and in Autumn 2023 was concerned about the KGB spying on her and the neighbours shooting her.
  • In February 2024, P’s son was arrested on suspicion of assaulting her (and other matters in relation to her). He was bailed with conditions not to go to the property and not to contact his mother.
  • An earlier inquiry (there’s no indication by whom) concluded that financial abuse had taken place involving another family member. P’s son has not complied with the LA’s request for financial information. It’s said that he tried to remove his mother’s bank cards from the ward without her knowledge or consent and he disclosed that he has removed money from her account (which he should not have done)

This new (to us) information needs to be taken into consideration in reading the blog post above. It illustrates the value for observers in receiving Position Statements (although we were disappointed to get only the one from the LA and have heard nothing from the OS).

I feel very sad that P died in a hospital she didn’t want to be in, rather than at home with her son as she wanted. If I put her wishes centre-stage, then (still, even knowing what I now know from the Position Statement) I would have wanted her to have the opportunity to return home for her last few weeks of life. I suppose if the court had known that she would be dead in a couple of months, they might have made a different decision at this hearing: that’s what seems to have happened when Ella Lung, also in her nineties, also desperate to return home to her son, finally received a terminal diagnosis – the safeguarding concerns melted away in light of P’s wishes (and Ella had only 20 days at home with her son at the end).

Perhaps I’m simply writing with the benefit of hindsight – but as I wrote at the time, for anyone in their nineties, future plans are necessarily precarious: supporting a protected party to do as they wish – even with the identified risks attached to their preferred course of action – would seem (to me) the kindest way forward and the one which most respects a person’s right to autonomy and to family life.

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)

Kim Dodd has previously blogged for the Open Justice Court of Protection Project (“A newly addicted observer’s reflections“) under the pseudonym of “Jean Louise” as she was at the time a respondent in her dad’s CoP proceedings and subject to a Transparency Order preventing her from identifying herself as a family member of a protected party. That TO  has only just been discharged as a result of her dad’s death (the order had effect “until further order of the court OR the death of P“).  Having retired early from her own corporate career and studied for a Master’s of Law, Kim has developed her interest in law generally and particularly in the area of the law on coercive control. Kim is currently writing a book about the workings of the Court of Protection. She is on LinkedIn (here).

Can a Turkish Guardianship Order be recognised in England and Wales? 

By Daniel Clark, 29 September 2024

This case began as an urgent application to the Court of Protection in August 2023. It wasn’t until May 2024 that it came before a judge. 

In August 2023, XY (who resides in Turkey) was visiting the UK with her brother, CD. She has done this many times but, on this occasion, became unwell and was admitted to hospital. 

When in hospital, CD found it very difficult “to be taken seriously as [XY’s] representative” (in the words of his Counsel) by members of hospital staff, despite the fact that he is recognised as XY’s guardian in Turkey. He therefore made an urgent application to the Court of Protection, asking for recognition and enforcement of the Turkish Guardianship Order.

The case never went to court. The Office of the Public Guardian had to confirm that the Turkish Guardianship Order was valid and, after a 7-day admission, XY was discharged and returned to Turkey.

After an almost 9-month delay (it’s not clear to me why there was such a long delay) the application was listed for hearing before the Vice-President of the Court of Protection, Mrs Justice Theis, on 2nd May 2024. 

Despite the delay, CD expressed his wish for the application to proceed so that XY can still visit England with him regularly. At the moment, he does not feel comfortable doing so given the possibility that XY may experience the need for another hospital admission. 

The case (COP 14129463) was then transferred to Senior Judge Hilder, and it was finally listed before her on 17th July 2024. She was sitting remotely, via MS Teams, so that CD could participate in proceedings from Turkey. While XY was with her brother throughout the hearing, she was discharged as a party to proceedings in accordance with guidance in cases of this kind (which I discuss below). 

CD was represented by Victoria Butler-Cole KC of 39 Essex Chambers and  Rhys Hadden of Serjeants’ Inn Chambers,  acting pro-bono, having been instructed via the charity Advocate. Its front page explains that they ‘match members of the public who need free legal help with barristers who are willing to donate their time and expertise in deserving cases for those who are unable to obtain legal aid and cannot afford to pay.’

Cases that concern the recognition of orders made in a foreign jurisdiction are quite unusual, and I’ve only been able to find three blogs[i] on the Open Justice Court of Protection Project website that deals with the issue. All of them concern an application made by the Health Service Executive of Ireland and related to one-off decisions (whereas this was recognition of an Order). 

This case is novel for two reasons. First, the position statement states that ‘there are no reported decisions concerning the recognition and/or enforcement in this jurisdiction of foreign protective measures made in Turkey’. Second, the case is novel in that the XY was not currently in the jurisdiction of the court, and only visits England for limited periods of time. 

This therefore could have been a very difficult hearing to follow. However, my understanding was assisted by a very detailed opening summary, as well as the position statement of CD, which he was happy for the barristers to share with me. 

Transparency matters: “Doing a public service job”

As is usual for this judge, the hearing started with her asking me to confirm that I was in a private place, and that I had received (and understood) the Transparency Order. 

The judge was also alive to the fact that it may be odd for CD to find that a random member of the public was observing the hearing, particularly given that the court in Turkey is not as open as the Court of Protection.  She assured him that members of the public, ‘can watch what the court is up to. Really what they’re interested in is what I’m doing, they’re not here for some surveillance of you…They’re doing a public service job keeping an eye on the court and [the protected party’s] privacy is protected by the Transparency Order’.  

After observing the hearing and reading the position statement, it struck me that the specific details of the case could inadvertently reveal, to those who know them in the UK, the identities of XY and CD as a party to proceedings.

I have therefore taken the unusual step of giving them both random initials in this blog. There are also other identifying features that I have decided not to mention. By this I mean no disrespect; I simply wish to ensure that I make good on the judge’s assurance that the privacy of XY (and indeed that of CD) is protected. 

The situation in Turkey

When I saw the case was listed as concerning ‘Recognition and enforcement of Turkish Guardianship Order’, I was intrigued. In preparation for the hearing, I attempted to find out whatever I could about what a Turkish Guardianship Order actually is. Unfortunately, (an admittedly hurried) Google search was not as forthcoming as I would have liked, and a search of my university library also did not give me much. 

I was however able to find multiple references to guidance by Mr Justice Mostyn, published in Health Service Executive of Ireland v Florence Nightingale Hospitals Ltd. In this case, the judge was considering whether to declare that protective measures made in the High Court of the Republic of Ireland could be recognised in England. 


To assist his thinking, the judge constructed a “checklist” of 22 questions. These, in theory, could be used for all cases where a foreign court has made orders in respect of a person. They are concerned with confirming that the foreign made order will be compliant with law in the United Kingdom. It is in this judgment that Mostyn J confirms that a protected party can be discharged as a party, unless there is an overwhelming reason for them to be added as one.

It turned out that this also guided the discussion in court, though I do not go through it step-by-step in this blog. 

With that in hand, I felt like I was more ready than I initially was. 

During the hearing, it was explained that CD had helped to look after his sister for many years. In 2013 he was advised to apply to be appointed as XY’s legal guardian, pursuant to a Guardship order, and this resulted in CD making an application to the Court of Peace (the name for the civil court in Turkey). This application involved an independent medical assessment of XY, as well as several checks on CD for criminal convictions or a conflict of interest. 

In 2014, the Court of Peace made CD the legal guardian for his sister. It authorises him to make decisions about her ‘health (including medical treatment), her welfare and any financial decisions’. 

As Counsel remarked during the hearing, the powers are “a bit more like an LPA which doesn’t tell you what an attorney can or cannot do”. There are, however, some importance differences. CD is not allowed to move XY into a care home or authorise her receipt of a large sum of money – this would require the authorisation of the court. 

Furthermore, the guardianship is renewed every two years: it is not assumed that a person appointed a guardian in one year will still be suitable to act as such in two years’ time. 

Are the documents valid?

Counsel recognised CD as possessing expert knowledge, and included him in explaining various issues to the judge. This struck me as eminently sensible (after all, it is CD who lives in Turkey). I also thought that this must have been quite empowering for CD. After a bad experience last year, he was now being recognised as somebody who can assist in understanding his sister’s circumstances. 

The judge also took great pains to ensure that CD felt at ease: after all, the Court of Protection is not an adversarial court. For example, she joked that, “I’m afraid your English is much better than my Turkish, so I need some translation of your Turkish court documents”. 

The first issue that the judge dealt with was whether the Turkish documentation she had in front of her was valid. In particular, she was concerned that the person to whom an oath of translation (certifying the translations were accurate and complete) was not the same person who had translated other documents. 

It was clear that the judge did not want this case to become long and protracted but it was also necessary for her to understand how the documents were translated. As she put it, “it’s really important that if the court is going to recognise a document from a foreign court that I have a proper understanding of what the court says.”

Rather than put proceedings on hold, she decided to ask CD some questions following an affirmation that his evidence would be truthful. He confirmed that the translation was accurate, and he could see no errors in it. The judge was happy with this, and gave a mini-judgment that “notwithstanding that I don’t have an oath of translation, I am satisfied” that the translation is accurate. 

What about best interests?

The judge had seen evidence, and was satisfied, that XY lacks the capacity (under the meaning of English law) to make decisions about her care and treatment, as a result of what the Mental Capacity Act 2005 rather crudely describes as ‘an impairment of, or a disturbance in the functioning of, the mind or brain’. 

However, the judge was concerned that, “there’s nothing here that requires the guardian to make decisions in the best interests of the subject”. 

CD offered that, in actual fact, there is provision in Turkish law that, “I must act in her best interests, and because they are in the law I accept these conditions”.

This did not, however, resolve the problem for the judge, who remarked that “I very much doubt that a harassed doctor in an overcrowded ward would have any awareness of that”. 

The issue, therefore, needed some thinking through. In the view of the judge (and I agree), it is unreasonable to expect those in England and Wales providing care for XY to familiarise themselves with Turkish law. While she did not doubt the veracity of CD’s claim that he must (and in any event would) act in XY’s best interests, she also needed to take as many steps as possible to ensure that there would not be a repeat of the previous year’s experience.

As a result, she wrote into the order that CD can only exercise the Guardianship Order in compliance with the English law principles as set out in the Mental Capacity Act 2005. In order to ensure that this would be understood, the judge explained the principles of the Act, and how best interests decisions are reached. 

Furthermore, if it was the case that the Guardianship Order was revoked in Turkey, the Order recognising its legitimacy in England and Wales would be automatically revoked. In other words, CD could only exercise powers in England and Wales that he could also exercise in Turkey.

At the conclusion of the hearing, the judge declared that the Turkish Guardianship Order could be recognised in England and Wales, and so CD can make decisions on XY’s behalf (if needed) while in the country. She was however clear that “the ultimate decider is the court”, and this does not preclude further hearings if medical teams disagree with the decisions that CD is taking. 

Final thoughts

This hearing has made me wonder whether England can learn a thing or two from Turkey.

I can’t imagine that the Turkish system is under-burdened. Despite this, there is still a 2-year renewal period of a Guardianship Order. There are also much stricter limits on the decisions that a Guardian can make (such as whether a person can move to a care home) in comparison to the decisions an LPA or Deputy can in England and Wales, as well as strict limits on what a guardian can authorise. In particular, I wonder how many abuses of the LPA system could be avoided if it was a requirement that this is reviewed.

I think it’s worth emphasising again that the barristers acting in this case did so pro-bono, which is work undertaken on a voluntarily (and unpaid) basis. Each year the judiciary publishes a pro-bono recognition list, which “recognises barristers and solicitors who gave 25 hours or more pro bono legal assistance over the last year”. Both Victoria Butler-Cole KC and Rhys Hadden feature in this list. 

I was also impressed with the judge, who took every possible step (from explaining my presence in court to the principles of the Mental Capacity Act) to ensure that CD could participate fully in the court process. 

In a recent blog about a case concerning the authorisation of an Irish court order, Celia Kitzinger notes that these type of cases often, “seem, by comparison with the usual standards in the Court of Protection, terribly cursory and not very person-centered”.

This wasn’t the case here. 

XY was present throughout, and the judge recognised this. Towards the end of the hearing, she noticed that XY appeared to have fallen asleep, and she joked that, “I’m sure [XY] isn’t the only person attending my hearings who falls asleep but it’s lovely to see it”. 

There were also numerous references to what XY enjoys to do, and these were also referenced in the position statement. For example, XY enjoys socialising, shopping, and listening to music. Despite the fact that XY was not a party, the judge and barristers ensured that this hearing did not become coldly clinical or simply concerned with a point of law.

All in all, this hearing struck me as an example of some of the best elements of the Court of Protection: rigorous, committed to the law, and never losing sight of the real people at the centre of it.

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

[i] ‘From Prison in Ireland to Care Home in England’ by Adam Tanner (14th August 2020) – https://openjusticecourtofprotection.org/2020/08/14/from-prison-in-ireland-to-care-home-in-england/

‘Irish cases in the Court of Protection’ by Jack Thorold & Chiara Cordone (11th June 2024) – https://openjusticecourtofprotection.org/2024/06/11/irish-cases-in-the-court-of-protection/

‘Another Irish Schedule 3 case: “An oddity in the Court of Protection”’ by Celia Kitzinger (11th September 2024) – https://openjusticecourtofprotection.org/2024/09/11/another-irish-schedule-3-case-an-oddity-in-the-court-of-protection/

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, 24th September 2024

I’ve now been sent the (as yet unpublished) judgment in the case of “London Borough of Lambeth v CT & North Central London ICB” (issued 21 August 2024, additions made on 4 September 2024).  This is the case I observed and blogged about last month: “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”

The hearing I described in that blog post (COP 14251478, 20th August 2024) was about the finely balanced decision HHJ Beckley had to make as to whether P, to whom I shall now refer using the pseudonym ‘Georgio’, had the capacity to make decisions about his residence and care. Both Georgio’s Litigation Friend, the Official Solicitor, and the Local Authority argued that he did. The NHS Trust disagreed. The hearing ended without a judgment.  The judge said he would let the parties know his decision the next day.

At the end of the blog, I wrote that I’d asked for a copy of the approved order and that I hoped I would receive it as I was really interested in what HHJ Beckley decided. 

I have since received the approved order (sent to me on 10th September) and on top of that, unsolicited, on 4th September I also received a copy of the judgment (not yet published) from HHJ Beckley. I’ve also been sent a copy of the position statement from P’s litigation friend, the Official Solicitor, via her representative (received 6th September, after I requested it from the Official Solicitor). These documents have been enormously valuable as they enable me to make transparent what I’ve learnt from them, which is much more than from simply observing the hearing. The position statement in particular provides more information about Georgio. They show how important it is to have court documents in making sense of what happens in court.

Most importantly, the judgment reveals that HHJ Beckley decided that Georgio did not have the capacity to make decisions about his care and residence. 

The judgment made reference to a possible appeal against that decision and the approved order included a listing for another hearing on 17th September 2024 – but this hearing did not take place, and I’m not sure whether or not an appeal has been made. In this update I will explain what I learned about Georgio from the position statement, in order to provide more context for the reasons the judge gave for his decision. I will then outline other aspects of the judgment that I found interesting, as well as confirming who the parties were and which  counsel represented them, as was clarified by both the judgment and the approved order. I will then outline the process of the judgment being issued, as I think it gives an insight into what can happen ‘behind the scenes’.

More about Georgio 

The judge referred to Georgio by his real name throughout the judgment, saying that “the use of initials can be de-personalising”. I am still bound by the Transparency Order of course, which forbids me from identifying P. But I will take a leaf out of the judge’s book and so I am using a pseudonym here (rather than initials or the generic “P”) to refer to him. The following information was provided in the position statement I received.  

In the original blog, I wrote that Georgio was “a man who looks to be in his late 60s or early 70s.” I read in the position statement that he was in fact much younger – 55 years old. He was born in London and has lived there his whole life. He suffered a head injury when he was 12 and has had epilepsy ever since. Following the death of his mother, he started drinking alcohol and using drugs, lost his business and eventually lost his home as well. The position statement makes no reference to any other family members. He now suffers from ill health, recently acutely. His physical illnesses and health problems include Chronic Obstructive Pulmonary Disease (COPD), Polysubstance and opioid dependency, epilepsy, chronic back pain, arthritis, and osteoporosis. He is partially sighted due to vitamin B12 deficiency, and has a “mixed type” cognitive impairment. The position statement reports that Georgio uses a wheelchair but is unable to use his arms to move, due to pain. He only has the use of one leg and uses that to move himself backwards in the chair. He has said that he would not use a wheelchair if he moved back onto the streets. He also says that he is in constant pain. Psychiatrically, he has suffered from Post-Traumatic Stress Disorder, has suspected antisocial personality disorder or emotionally unstable personality disorder, a history of psychotic depression and Dysexecutive Syndrome and polysubstance use, with alcohol and opiate dependence, for which he has been intermittently prescribed methadone. Learning this about Georgio laid bare in very stark terms the poor state of his health. 

The judge’s principle reasons for deciding that Georgio did not have capacity to make decisions about his residence and care 

The judgment goes into a lot of detail about the judge’s reasoning. But the key points that I took from it related to the relevant information. Everyone has to agree on what the information is that Georgio needs to be able to understand, retain and weigh, and then they have to determine if he does in fact understand, retain and weigh it, in order to determine his capacity.  In this case the judge says that one thing that hadn’t been included in the “information”, which he thinks should have been, is that Georgio has mental impairments that create care needs and affect his decision-making ability.  He then goes on to say that this in particular is something P can’t currently weigh. Paragraph 24 of the judgment spells this out:

“Ms Bicarregui (Counsel for the OS, representing Georgio) submitted that a pretty good list of the relevant information that [Georgio] needs to understand, retain, use or weigh and communicate is set out (in the) completed DOLS Form 3. I agree, but I consider it misses an important piece of relevant information, namely that [Georgio] has a number of mental impairments (which are listed in the judgment) and that those impairments lead to specific care needs and affect [Georgio’s] decision making ability in relation to physical care needs and residence.”

The relevant information that the judge doesn’t consider Georgio is able to use or weigh is set out in paragraphs 33 and 34 of the judgment. Specifically, he doesn’t consider that Georgio “is able to use or weigh the fact that he has mental impairments and that these lead to specific care needs and impact on his wider decision-making ability.” Further, he considers that Georgio’s “lack of awareness of his mental impairments means that he is unable to weigh his own impulsivity, lack of planning ability and lack of foresight when he is making decisions about his care needs. If he had such awareness, he could make further attempts to consider the likely outcome of a decision or seek the assistance of another to look at what the likely outcome might be.”

The judge also made clear the fact that capacity is time-specific and that with greater support Georgio could recover capacity and the judge feels that work “should be prioritized”. He also wants a less restrictive placement to be sought. 

Other interesting aspects of the judgment 

Reading the judgment, although much of it is standard legal explanation, I felt that HHJ Beckley made quite an effort to take Georgio as a person into consideration. From the start, at paragraph 2, some of the contents seem to be specifically aimed at Georgio. This started with the judge stating that he would refer to ‘Georgio’ by name. In paragraph 3 the judge confirmed that he wanted to issue a judgment as soon as possible because it would be “unfair to [Georgio] to have to wait longer for his decision”. 

Paragraph 12 outlines the judge’s decision and he reveals it using plain and simple language, and acknowledging how Georgio is likely to feel about the decision: “For the particular benefit of [Georgio], I give my decision now so that he doesn’t have to wade through the remainder of this document. I acknowledge that it will be both disappointing and irritating to him, but I conclude that [Georgio] lacks capacity to make decisions about residence and care and will make a section 15 declaration to that effect. I will explain why.”

The rest of the judgment follows a more typical format, explaining the legal basis for the decision, including “Formulation of the matter”, “The relevant information”, “Using or weighing the relevant information”, “Relevant information that I don’t consider [Georgio] is able to use or weigh”, and “Next steps”. There was a specific discussion about “The fire setting” (Georgio had set fire to a previous placement).

I find that grasping the importance of the ‘relevant information’ when making capacity assessments and decisions is a concept that is hard to understand for lay people such as myself. Despite the judge’s best efforts to make the judgment accessible to Georgio, I imagine that his legal team will have to work hard to try and explain it to him. 

Information to supplement the original blog

During the initial hearing, I couldn’t identify who counsel were ,but the judgment and approved order clarifies that. Tony Harrop-Griffiths was counsel acting on behalf of the applicant, the London Borough of Lambeth.  Anna Bicarregui was counsel acting on behalf of Georgio, instructed by the Official Solicitor and Mungo Wenban-Smith was acting for the South London and Maudsley NHS Foundation Trust (a non-party). 

The documents also clarified the situation with regards to who the parties were and were not. The Transparency Order I had been sent was issued on 14th May 2024 and listed King’s College Hospital NHS Foundation Trust as the applicant and ‘Georgio’ as the respondent. But the judgment listed the parties as London Borough of Lambeth (applicant),  Georgio as 1st respondent and North Central London ICB as 2nd respondent. Paragraphs 7 and 8 of the judgment shed light on the situation: 

§7: “The proceedings commenced due to a disagreement between Kings College Hospital NHS Trust (“Kings”) and the London Borough of Lambeth (“Lambeth”) as to whether [Georgio] had capacity to decide where he should be discharged from hospital. Kings were removed as a party after [Georgio] was discharged to XX care home.”

§8. “The South London and Maudsley NHS Trust (“SLAM”) have never been a party to proceedings, but capacity assessments were provided by SLAM psychiatrists. SLAM was represented at the hearing and I allowed (with the agreement of the parties) SLAM to question witnesses and make submissions.”

The approved order clarified that the attendance of North Central London ICB had been “excused by order of the Court” which was why there was no legal representation for them. 

Once again, having access to the court documents greatly enhanced my understanding of the hearing and shows the value of them being made available to observers and helping proceedings to be transparent. This was also illustrated by the judgment making clear how the final document came to be issued. 

The process of the judgment being finalised and issued                  

The judgment makes clear the process by which it was finalized. The judge emailed his decision to the parties the day after the hearing of 20th August 2024, as he said he would. When the judgment was emailed to the parties, the judge asked the parties to let him know if there was “anything that doesn’t make sense or needs greater explanation”. Following that, the Applicant and Official Solicitor filed a joint ‘request for further detail following the note or judgment”. Subsequently, the judgment included additional information which was distinguished from the original judgment by the use of italics. The additions were made on 4th September 2024 (as noted on the judgment) and the revised judgment was then sent to the parties. I received a copy on 4th September, the same day. With this process highlighted in the final judgment, I was able to follow what was in the original judgment and what had been added as a result of the further information which had been requested by the legal teams. This gave added insight into what can happen in finalizing judgments. I haven’t seen anything like this before, as usually I only see published judgments on Bailli. This is the first time I have received an unpublished judgment. I hope that the judgment is published eventually, so that everyone can see the process of decision making in action. 

This hearing has opened my eyes even further as to the difficult decisions that the Court of Protection faces. I feel that HHJ Beckley placed Georgio at the forefront of the case, something that was possibly helped by the fact that Georgio was fully present and engaged in this hearing. The dearth of suitable supported care placements, as well as the basic principles of capacity, including the possibility of making unwise decisions, were also highlighted. 

I will keep an eye on the listings for any future hearings in this case.

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)

Another Irish Schedule 3 case: “An oddity in the Court of Protection”

By Celia Kitzinger, 11th September 2024

She’s an Irish citizen in her early twenties, with schizophrenia and a “mild intellectual disability”, currently detained in an acute unit at an Irish psychiatric hospital under an order of the Irish Court.  It’s not an appropriate placement for her.  

Everyone agrees she needs a homely environment where she can practice and improve her living skills, but there’s nowhere in Ireland that can provide this with the level of security that’s also needed (she’s absconded from previous placements and been sexually exploited).

The President of the Irish High Court, Mr Justice Barniville, has made an order for her to move from Ireland, where she is ‘habitually resident’, to a placement in England that’s been identified as suitable.

The relevant legal framework is Section 63 and Schedule 3 of the Mental Capacity Act 2005 which give effect to the central provisions of the 2000 Hague Convention on the International Protection of Adults as a matter of English law.  

Two lawyers have written an ‘explainer’ blog which outlines the relevant law here: “Irish cases in the Court of Protection”; and we’ve also published a blog post reporting on another Irish Schedule 3 case we observed: “From Prison in Ireland to Care Home in England” a few years ago.

In cases like these, there is no requirement to provide capacity evidence – although  it was in fact made clear in this hearing that the evidence before the Irish High Court was that the young woman is a person who ‘as a result of impairment or insufficiency of [her] personal faculties, cannot protect [her] interests’  – which is how Schedule 3 defines what we’re used to thinking of in terms of s.2(1) Mental Capacity Act 2005 as someone who lacks capacity to make particular decisions due to an impairment of the mind or brain.  

Additionally, the Court of Protection is not free to conduct its own best interests assessment.  This is not a hearing about best interests.

Instead of making assessment of either capacity or best interests in the usual way, the court is restricted to checking that procedural requirements and basic rights have been complied with by the Irish (or other foreign) court. The ability of the Court of Protection to refuse to recognise and declare enforceable foreign protective measures is very limited.

These cases are ‘an oddity in the Court of Protection’ and require “a very significant gear shift” for the Court. This was apparent in the hearing I attended.

The hearing

The case (COP 20001355) was heard before Mrs Justice Theis  on 12th August 2024, sitting in the Royal Courts of Justice.  The judge and the lawyers were robed – i.e. wore their gowns and wigs.  The hearing lasted only 40 minutes and I got the impression that it would have been dealt with more quickly if I’d not been observing, since some of the explanation of the case and the relevant law seemed to be provided for my benefit as an observer. 

I was given a clear and helpful summary of the case by Henry Setwright KC, who (with Lucy Logan Green – both of 4PB Family Law Barristers) was representing the Health Service Executive (HSE) of Ireland in this case.  

I’ve watched this barrister before in similar hearings: he’s been described as “a go-to silk on international cases”.  He’s methodical, articulate and unhurried in his submissions, and lays out the law with admirable clarity – and I’m also grateful for the HSE’s Position Statement, which I have used to check the accuracy of this post. Having introduced the case with some care, he said: “That is a general outline of the process as is well-understood by My Lady, but it doesn’t happen so often that members of the public might understand”. 

The gist of the introductory material was an explanation of the role of the Health Service Executive of Ireland and assurances that the Irish legal framework “contains safeguards and deference to human rights which we say is really the equal of this jurisdiction and ensures – and did so in this case – that P is properly and fully represented and their voice is fully heard”.  This latter comment was significant because there was nobody to represent P in this hearing.

According to Henry Setwright KC, Schedule 3 allows the English court to recognise the Irish court’s order for compulsory detention “on strict conditions”.  Those conditions “have become synthesised to a high degree of sophistication in a checklist by Mr Justice Mostyn, which is made available to Irish judges and which they do consider, and that contains the points which English judges have been concerned to ensure are properly made up”.  This checklist is appended to a judgment which can be found here: Re SV [2022] EWCOP 52. 

The judge in this case went through the checklist and identified compliance of each point (e.g. P was an adult, P has an impairment in her mental faculties and cannot protect her own interests, P had a proper opportunity to be heard in Ireland, P would be at risk without protective measures in place, and so on).  If there is compliance with the checklist then, in effect, that’s all that’s needed or (I think) permissible under Schedule 3, and the Court of Protection should normally go ahead and implement the Order.  

Once the Order is implemented, the Irish court will continue to “maintain a very close continuing watch” on P, and the English Order lasts for as long as the Irish Order lasts.  Counsel added that “when P is based in England there is no charge on the NHS for English tax-payers.  The Irish pay.”

In her judgment, Theis J gave a little more background: “P has had a history of mental health difficulties, having moved between her parents’ home, various residential placements, and supported living.  She’s engaged in risk-taking behaviour and substance misuse.  She has been exposed to chaotic childhood experiences….”  The judge then went through the “Mostyn checklist”, in the course of which she relayed P’s own views about moving to a care home in England: “she’s understandably anxious but is keen to know more and interested to ask questions about when she will move and times of flights.  She has had  a very proper and effective opportunity to be heard before the High Court of Ireland, so there is no necessity for this court to consider whether she should be joined or heard in this court”.    The judge made the order as drafted. And that was that.

Reflections

It’s an odd experience to watch these hearings – I think this was the third I’ve observed.  They seem, by comparison with the usual standards in the Court of Protection, terribly cursory and not very person-centered.  I understand the reasoning that this is because the more usual process (or the Irish version of it) has already been done in the Irish court and this is simply about getting arrangements authorised cross-nationally.  On that basis, it would be terribly wasteful of everyone’s time, and create unacceptable delay, to go through the whole process all over again in a second (English rather than Irish) court – hence a relatively straightforward checklist rather than a full hearing. And the English court can decline, and has done previously, if the checklist isn’t complied with (as described here: “Irish cases in the Court of Protection”). But from the point of view of observers, it does require us to trust that the Irish hearing (which of course we haven’t seen) was just and fair.  I have no reason to think that it wasn’t – in this case or any other – but the whole point about the Open Justice Court of Protection Project, of course, is that we don’t take the justice system (any justice system) on trust alone: that’s why we’re observing.  So, these are frustrating hearings to observe from that perspective: they’re at one remove from where the actual decisions about what’s best for P – the decisions we really want to observe – are being made.

Those interested in learning more about these cases might like to read the article by Alex Ruck Keene KC (Hon) and Chiara Cordone (“Distributed rights protection”) published in the International Journal of Law and Psychiatry, which engages with some of the challenges and opportunities they present.

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)

Bromley is outsourcing property and affairs deputyships: Is it lawful?

By Georgina Baidoun, 6th September 2024

At 2pm on 2nd August 2024 I watched a hearing before HHJ Hilder, the Senior Judge of the Court of Protection.  Here’s how it was listed: COP 140287761, BJ v London Borough of Bromley “To consider property and affairs deputyship – discharge functions through contractual arrangement”.

Noting that this was an attended (i.e. in person) hearing, I emailed the previous evening asking for a video link if it was possible to provide one. I received a link and attached transparency order (normal practice in my experience when observing hearings at First Avenue House) at 12.20pm, in plenty of time to get myself prepared. When I entered into the court room, I was happy to see that things were set up in such a way that I could clearly see the judge and the two lawyers who were in attendance. The sound too was very good, except that one of the lawyers did tend to lean back from his microphone; I imagine that the intimacy of only three people being in such close proximity made the microphone seem redundant. In fact, at some point in the hearing, the judge had to chastise the participants for beginning to turn it into something more resembling a conversation!
I am afraid I didn’t hear the names of the two lawyers, one representing the Local Authority and one representing the Office of the Public Guardian

The hearing

I have always found HHJ Hilder very supportive of open justice. She started by checking that I had received and agreed to the transparency order and then gave a brief summary of the case so far. 
As was clear from the transparency order, the case had not started off as a property and affairs application but was originally listed as “Varying or terminating an urgent or standard authorisation under the Deprivation of Liberty Safeguards”. I guessed that the property and affairs matter had arisen during the course of that application as this was the second time I had encountered such a change of direction and was aware that, when a case changes direction, it keeps the same COP number throughout.
HHJ Hilder confirmed that, during a challenge relating to deprivation of liberty, issues had arisen as to how the Local Authority handled deputy appointments, particularly the contractual arrangements it had made with a commercial provider. She said that it was well established that deputy functions should not be delegated and that the only body that could give directions in such matters was the court. The fundamental principles of  “empower and protect” that underpinned the Mental Capacity Act 2005 were essential here.

The Public Guardian had, of course, not been part of the deprivation of liberty application but had now been joined as a party by the court in order to represent P, who must have previously been judged to lack mental capacity to deal with such matters. However, the case had now been widened to include all those Ps for whom the LA had been given authority by the court to act as deputy. It seemed that the documents the judge had in front of her were confusing as to number and details. She said 46 cases had now been joined to these proceedings but that 5 deputyship orders were missing and some repeated. Considerable corrections would be needed before the next hearing.

The judge then asked what the Public Guardian’s position was, hoping it was not neutral. The Public Guardian representative replied that it was indeed neutral and as they were not aware of any irregularities. The judge said this was missing the point, as the concern was whether the scheme was even lawful. She was “pretty convinced” it wasn’t. The upshot was that the Public Guardian representative then agreed that he would take a position. (I thought it was interesting that he didn’t need to take instruction before making such a major change of direction.) The judge then said she would record this (leaving no room for afterthought!).

The rest of the hearing was taken up by arrangements necessary for the next and, the judge hoped, final hearing. This was a little hard to follow because it was about the paperwork in front of the court to which, of course, I had no access. However, it seemed that there was as yet no information available as to the nature of the contract between the LA and the company to which they had outsourced the deputyship work. The judge said that she needed to see a copy of a signed and dated contract. An important part of her concern was that of accountability. There was a guarantee bond in place (an insurance required for all deputyships) but it wasn’t clear whether it applied to the LA or the company. 

For the next, and hopefully final, hearing the judge wanted:

  • A narrative of when and how the contract had come into effect
  • A narrative of how the private company was involved in these arrangements i.e. the terms of engagement and other documents such as any ‘code of expectations’ applying to the implementation of these arrangements
  • A narrative explaining the route of accountability with details of the insurance bond and how it would apply.

There was then detailed discussion of timetabling, during which another issue arose. The Public Guardian representative said that he would want to give a narrative of his own as to how the current contractual arrangements were experienced by P. The judge agreed to this suggesting that one thing that might be explored was whether P ever saw anyone. (A deputyship normally requires that P should be visited at least once a year and this  goes into the annual report.) The LA representative seemed unhappy about this as it raised issues beyond the contractual. 

The judge suggested the parties should have a round table meeting before the next hearing so that dates could be changed if the issues became wider. The date for the next and, still hopefully, last hearing was fixed for Monday 25 November. I hope I shall be able to observe it.

After the hearing I made some interesting discoveries with some internet searches which I’ve added below as an “Afterword”.

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

Afterword

Internet searches produced the following.

Press statement

Liberata Awarded Exchequer Services Contract by London Borough of Bromley Worth Up To £120 Million

Bromley Council has announced its intention to award its Exchequer Services Contract to Liberata. The new contract will see Liberata continue to deliver a range of services including Revenues & Benefits, Customer Services, Administrative Social Care Services, Financial Transaction services, HR, Payroll and Pensions services on behalf of the Council. The initial contract is for eight years starting in April 2020, with the option to extend it for a further four years, and is potentially worth up to £120 million.

Councillor Graham Arthur, Portfolio Holder for Resources at Bromley Council, said: “The new contract helps deliver financial savings to the Council with real service improvements through the greater use of technology. We welcome the innovation planned and future working in partnership with Liberata which provides ultimate benefits to our residents and council tax payers.”

Bromley Council has commissioned Liberata to deliver the following services:

The collection of Council Tax and Business Rates

The administration of Housing Benefit (including overpayments ) and Council Tax Support

Assessments and awards for discretionary housing payments

Multi-channel Customer Services supporting  all Revenues, Benefits and Corporate Services

Payroll and  Pensions Services for the Council and its schools

IT services – administration of the Council’s Revenues, Benefits and Payroll systems.

Accounts Payable and Sundry Debtors administration (including temporary accommodation charges, adult social care charges and trade waste)

Financial Assessments for residents in receipt of adult social care

Appointeeship and Deputyship administration and payments

Cashiering services

Bromley Adult Services Procedures, Practice Guidance and Tools – extracts

https://www.proceduresonline.com/bromley/adults/chapters/default_chapters/p_deputyship.html

A Deputy has a legal requirement to act on matters they have been given the authority to act upon unless the Court of Protection has given them permission to delegate this to someone else, or where there are 2 Deputies able to make the decision and authorised to do so severally (independently of each other).

Remember: An application for the Local Authority to act should be the last resort after all other options have been ruled out.

Note: An application can also only be made if an individual is in receipt of commissioned services or a direct payment from Bromley Council with an authorised person acting on their behalf.

For queries regarding the Bromley Property and Affairs Deputyship Application process you can contact your line manager.

For queries on specific applications you can contact Chris Loft from the Appointee and Deputyship Team (A&D Team) within Liberata: Christopher.Loft@liberata.com, or the general A&D team inbox: bromleyAD@liberata.com.

Liberata will monitor the outcome of the application and will inform the social worker once known.

(I believe Christopher Loft is a Court and Tribunal Officer, in Colne, Lancashire)

Balancing open justice and P’s right to privacy: A protected party says NO to a public observer “and her voice shall be heard”

By Eleanor Tallon, 3rd September 2024

Editorial Note: The judgment (making this hearing private) has now been published: Stockport MBC v NN & Anor [2024] EWCOP 51 (T1)

I was not able to observe this hearing because the protected party, N, said she did not want an observer as “she doesn’t know who they are or what their ethics and values are”, and the judge ruled that a public hearing was not in N’s best interests.

The case (COP 1030276T) was listed as a public hearing (see screenshot below). I gained access via the link sent by court staff at precisely 10am on 22 August 2024.

My observation was limited to hearing submissions about restricting public access to the hearing and an ex-tempore (oral) judgment. The judge’s decision was based on a report of N’s distress at having an observer attend, and the fact that the Official Solicitor acting on behalf of N, did not agree to my attendance. I was asked my position on the matter, before the judge ruled that it was not in N’s best interests to continue the hearing in public, so it became a private hearing, and I had to leave.

This blog will go through the judgment (on public access to the hearing), with a reflection on the challenges of balancing P’s privacy with the values of open justice. I will also discuss the court rules in relation to public and private hearings, which differ between the Civil Courts and the Court of Protection. It seems that even judges can sometimes misapply the rules. Finally, I will consider why advance planning is important when deciding whether proceedings should be made private – not only for the benefit of the protected party, but also to avoid a false impression of transparency being given to the public.

The hearing

I requested access to the hearing by email at 7.52pm on 21st August 2024. I then followed this up with a further request marked ‘urgent’ at 9.08am on 22nd August, as I hadn’t received the link or a transparency order. By 10.00am I still hadn’t received anything, so I telephoned the court, but while waiting for the phone to be answered, I saw the link to the hearing pop up in my emails. I quickly gained access to find 12 attendees waiting for DJ Matharu to join, including the following:

  • Barrister Varsha Jagadesham (who I later learnt was counsel for N via the Official Solicitor)
  • Barrister Mungo Wenban-Smith (who I learnt was acting for the first and second respondents, and I assumed from the email addresses that the respondents were the local authority and the ICB, and this was later confirmed)
  • Legal professionals from Hampsons and Bindmans (presumably the instructing solicitors)
  • Various professionals from the local authority, one from health and one from a care home organisation

The protected party, N, was not present, and I was the only member of the public attending.

At 10.10am, DJ Matharu came on screen. She explained that she had just spent some time communicating with Ms Jagadesham (counsel for N) about an observer wanting to join. She elaborated: “I have had conduct of this case for a number of years, through which N has been actively involved in her own case. It was important for counsel to inform her that an observer request had been received. Ms Jagadesham you have informed N, what is your view?” Before counsel responded, the judge emphasised that the starting point was that this was a public hearing. 

Counsel for N replied: “I have spoken to N and she said no, she does not want a public observer attending as she doesn’t know who they are or what their ethics and values are. There is the potential for distress and the Official Solicitor does not consent to an observer. This is an unusual position. The Official Solicitor is concerned that public attendance would not be in N’s best interests, given it could cause real distress. N is already fairly heightened. The social worker assisted her to speak with me and she needed support to calm her down. It took a few attempts to close the call. Given that N would be very unhappy with a public observer, and she’s already upset that the court has been invited to conclude the matter today, having a public observer could be more upsetting. We are not opposed but the Official Solicitor does not consent, and it must be considered whether it would be in her best interests under section 4 of the Mental Capacity Act.“

The judge then turned to Mungo Wenban-Smith (counsel for the respondents), pointing out that he had been involved in the case long-term and she asked what his position was. He said:  We wouldn’t oppose an application to exclude observers, and listening to the submissions on behalf of N, distress is likely. I refer to your consideration, but we wouldn’t oppose a private hearing, should this support a smooth hearing and N’s best interests.

The judge then addressed me: We have an observer, Ms Tallon. We have discussed the paramount considerations: what do you say? I wanted to say that I was observing as a volunteer with the Open Justice Court of Protection Project, and that my ethics and values are aligned with the focus of the Project – to ensure people are being treated fairly by the court. However, I wasn’t expecting this to happen, and I had not anticipated the need to champion open justice under such circumstances. I also didn’t want to distress N or delay the hearing further and I was acutely aware of the discomfort I would have felt, if the judge had allowed me to observe against N’s wishes. I responded: “Good morning judge. I don’t wish to cause any distress, and, on that basis, I am happy not to observe the hearing“.

The judge then continued: “I have to give a judgment as to the rules and I will be brief because I’m conscious of the agitation of N if there is delay. The case is concerning N, and it’s been before me many times, supporting judicial continuity. A public observer request was made late last night. This is a public hearing and it’s important to notify the legal teams of such requests. This is in the knowledge of N being actively involved in the case with regular and frequent participation. Counsel for N and the Official Solicitor feel that distress will be heightened. She does not want an observer in this case, and this would displace the presumption of a public hearing.  I need to take the court rules into account, and I must have regard to N’s best interests. Her best interests would not be served by an observer attending the hearing. N is a private lady, she’s treated with dignity, and her voice shall be heard and is often heard. There are finely balanced outcomes. N was going to participate, but this caused her anxiety. Ms Tallon has been gracious. Having heard that, she is willing to withdraw. Yet I have to give my judgment. The facts are that the court welcomes observers, but on the facts of this case, it is not in N’s best interests. The Civil Court rules are imported into the MCA and the hearing must be public unless one or more of matters at CPR 39.2 paragraph (3) apply. At subsection (c) it involves confidential information and personal matters, and at subsection (d) it would not be in the best interests of the protected party, if anyone was to observe. The observer is not opposed. Do you have anything to add Ms Tallon?“

I responded: “No, thank you, judge. I will remove myself from the link now“.

I left the hearing at 10:24.

Balancing the right to freedom of information (Article 10) and the right to privacy (Article 8)

As an Independent Social Worker, I am regularly instructed to provide expert opinions on mental capacity and best interests. My approach to this always centres around enabling decision-making capacity, and failing that, supporting the person’s participation in decision-making and aligning decisions with their wishes and feelings as far as possible. Yet there are times when there are competing values. Often this is in the context of protecting a person from risks of harm versus protecting their autonomy, but here the situation was different. 

The balance was between, on the one hand, the ECHR Article 10 right to freedom of information and the value of open justice (which also offers a further level of quality assurance that the courts are operating fairly) and, on the other, N’s ECHR Article 8 right to privacy, and her sense of dignity and participation in the proceedings. It was a natural response to willingly concede to the hearing being made private, as it went against the grain for me to be the very reason N did not participate in her own hearing, regardless of how well intentioned my reasons were for wanting to observe.

A similar case before Hayden J

Having the discussed the course of events with Celia Kitzinger, co-director of the Open Justice Court of Protection Project, she drew my attention to a previous blog, which reports a hearing before Hayden J,  in which the protected party ‘Ms P’ “strongly objects to members of the public being present” (“Privacy, capacity and the judge’s communication skills”). That case was different, in that counsel (including Ms P’s counsel), were content for the hearing to be in public, and  Mr Justice Hayden refused Ms P’s request for the hearing to be held in private. He explained the Transparency Order to her, and said that her name and identity could not be revealed, and highlighted the importance of open justice. The judge said: “Like many cases that come to the Court of Protection, the applicant Trust is asking the court to declare legal a course of treatment that is highly invasive concerning an adult whose capacity is in issue.  This sort of case is of human importance in a mature, civilized, democratic society and it manifestly engages issues of civil liberties.  In society at the present time, every day, a whole gamut of civil liberty issues are raised and I cannot think of any period when it’s been more important for the court to be vigilant to maintain civil liberties.”  (Mr Justice Hayden, as reported in the blog post)

Although Hayden J communicated sensitively and reassured Ms P in an exemplary manner (and she did in fact participate fully in the hearing), the public observers still felt a tangible level of unease and guilt whilst attending a hearing against the wishes of the protected party where the person felt her private affairs were laid bare.

I reflected on what I experienced in the small part of N’s hearing I attended, and I completely empathise with N. On a personal note, if I was subject to decisions being made about my life by professionals within a court arena, it would fill me with an intense feeling of anxiety and powerlessness, which would only be increased by having unknown public observers watching from a virtual gallery. 

Yet, from a professional perspective, I’m also mindful that there can be errors made, closed cultures and a (sometimes devastating) misapplication of the MCA within all professional domains. 

The Court of Protection is the responsible body for setting the legal precedent and providing rulings which direct wider practice under the MCA. Open justice is therefore vital to safeguarding the rights of individuals, exposing abuse of power, and allowing for public scrutiny over decisions made.

Court rules and practice directions

I was puzzled by the judge’s use of the Civil Procedure Rules (CPR 39.2) in the Court of Protection. This perplexity was based on my understanding that the Court of Protection Rules and Practice Directions would apply.

With Celia’s help, I researched this (thank you Legal Twitter/X), and it was confirmed by lawyers that the Court of Protection Rules 2017 are the primary procedural rules of the Court of Protection. 

The Civil Procedure Rules are incorporated into the Court of Protection to fill in any ‘gaps’ in the COP rules, as necessary (see Rule 2.5 of the Court of Protection Rules, copied below).

So, it seems that the Civil Procedure Rules can be applied in the Court of Protection but only in situations where the Court of Protection Rules don’t provide for the issue.

But the Court of Protection Rules do cover decisions about making hearings public or private (at part 4.3).  

This is what  Practice Direction 4C says:

2.1. The court will ordinarily (and so without any application being made)—

(a) make an order under rule 4.3(1)(a) that any attended hearing shall be in public; 

and

(b) in the same order, impose restrictions under rule 4.3(2) in relation to the publication of information about the proceedings.

2.5. (1) In deciding whether there is good reason not to make an order pursuant to 

paragraph 2.1 and whether to make an order pursuant to paragraph 2.4 instead, the court 

will have regard in particular to—

(a) the need to protect P or another person involved in the proceedings;

(b) the nature of the evidence in the proceedings;

(c) whether earlier hearings in the proceedings have taken place in private; 

(d) whether the court location where the hearing will be held has facilities 

appropriate to allowing general public access to the hearing, and whether it would be 

practicable or proportionate to move to another location or hearing room;

(e) whether there is any risk of disruption to the hearing if there is general public 

access to it;

(f) whether, if there is good reason for not allowing general public access, there also 

exists good reason to deny access to duly accredited representatives of news 

gathering and reporting organisations.

It appears that the judge made an error in applying the Civil Procedure Rules where the Court of Protection Rules should have been applied instead.  

It’s quite possible that the outcome would have been the same regardless of which set of rules were applied, but the court should, nonetheless, be clear and accurate about the basis on which decisions are made.  

Of course, not all judges are Court of Protection specialists, and I imagine that it isn’t easy to move between different courts, with a myriad of applicable laws, rules and regulations depending on the type of case. 

This apparent legal error also points to the value of having an observer in court who can detect a potential misapplication of the law, research the matter with guidance from experts, and report on it, thereby (hopefully) improving the justice system. 

It is also a credit to open justice that there are lawyers who are supportive and instrumental in helping public observers and bloggers to understand the law and who are willing to contribute directly in a very pragmatic way, to enhance public knowledge and advance the judicial aspiration for transparency. 

Further reflections

I admired that DJ Matharu held N’s privacy and dignity in high regard, and she was clearly committed to N’s participation. 

Yet with reflection on the court rules, it may have been less stressful for N if the court had thought ahead and made the hearing private in advance, rather than this being triggered at the point of an observer request being received – particularly as observer requests can usually only be made after about 5pm on the evening before the hearing at the earliest (please see this blog post which explains why: Why members of the public don’t ask earlier to observe hearings (and what to do about it)).

Given that N had been such an active participant in the hearings over some years, discussions about whether or not there should be public observers and the principle of open justice as it applied to this case could have been held much earlier in the proceedings. Then if N objected to observers, her counsel could have prepared a formal application to make the hearing private. It felt to me that this hearing was, under the circumstances, inappropriately designated as public. Forward planning would have also allowed for clarity as to which rules to apply and made for a ‘smoother’ hearing for all concerned.    

In PBM v TGT & Anor [2019] EWCOP 6,  Francis J made the hearing private because “(f)rom the outset, PBM expressed considerable concern about the possibility of members of the public being present at this hearing”’ – so it seems that in that case, someone raised the matter of public observers with the protected party early on (“from the outset”), meaning that the hearing was listed as private and the situation that arose in this case was avoided entirely. The Court of Protection Handbook also remarks that “there are some situations in which insufficient focus has been paid to the impact upon P of (in effect) broadcasting – or at least, narrowcasting – a hearing” (my emphasis). It seems in this case that ‘insufficient focus’ was given until I asked to observe, which really was too late.* 

To conclude, when a judge makes a decision to change the status of a hearing from public to private, there has to be a significant rationale and a careful balancing exercise between ECHR article 8 (right to privacy) and article 10 (freedom of expression). It is not solely a ‘best interests’ decision, as seems to have been implied in the course of this hearing. Ultimately, I believe in this case the right decision was made based on N’s strongly expressed wishes – but advance planning and preparation could have avoided the distress to N, the discomfort I felt having been admitted to a hearing that N didn’t want me to observe, and the hasty misapplication of court rules to the matter. Finally, whether or not a final judgment was made to authorise a deprivation of N’s liberty, I hope that N can find some peace with the outcome, and that her voice continues to be heard.

Eleanor Tallon is an Independent Social Worker, Expert Witness and Best Interests Assessor. Eleanor can be contacted via email eleanor@mcaprofessional.co.uk or through her website mcaprofessional.co.uk and found on LinkedIn or X(Twitter) @Eleanor_Tallon

* I am grateful to Daniel Clark for drawing my attention to this case law and to the Handbook commentary.

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)