Treatment for Anorexia Nervosa: A brief directions hearing (with a new postscript on transparency)

By Daniel Clark, 28th October 2024

It was a first hearing for this case (COP 20003709) on 4th October 2024  and it was brief – about 25 minutes according to my notes. 

It was heard before Mr Justice Poole, who was sitting in-person at the Royal Courts of Justice. 

This was the first time I’ve seen a hearing in person. I arrived at the Royal Courts of Justice in plenty of time but it is worth stressing that when the Open Justice Court of Protection Project tells you to leave plenty of time to get through airport-style security and find the courtroom – believe them! Your belongings go through a scanner and you have to take a drink of any fluids that you have. 

I couldn’t see any obvious signs for the courtroom but I was assisted by a very helpful man at an enquiries desk, who gave me clear and precise instructions on how to find Court 39. After a pit stop at the café (conveniently in the direction I was heading) all I could do was wait outside the courtroom. 

This turned out to be an instructive experience. I didn’t know what type of case I was about to observe (I’d picked one at random). However, I deduced it must be a Serious Medical Treatment case because the waiting barristers were in ‘wigs and gowns’ compared to the less formal business attire that they usually wear for Court of Protection hearings. 

I also knew that the hearing was delayed because the one prior was overrunning – something I probably wouldn’t have known if I’d been on a video link but did know because one of the barristers was kind enough to tell me. After a long delay (over an hour after the listed start time) I got to see inside a courtroom that I have only ever seen via a video link. It was smaller than I expected but, in contrast to some reports of in-person hearings, I could hear clearly. 

Present at the hearing were two barristers. Adam Fullwood, of 39 Essex Chambers, was representing the applicant Trust – Barnet Enfield and Haringey Mental Health Trust. Fiona Paterson KC, also of 39 Essex Chambers, was representing CC via her litigation friend, the Official Solicitor. 

There was also a video link, on which was the Trust’s instructing solicitor (I didn’t catch her name) and one of CC’s treating clinicians. 

In a very helpful opening summary, counsel for the Trust explained that at the centre of this case is CC, ‘a 21-year-old woman who comes from a large Jewish family’. She has diagnoses of anorexia nervosa and (as I learnt from the Trust’s position statement) a major depressive disorder and autism. 

At the start of October, ‘there was an attempt at ligature [details redacted in line with Samaritans’ reporting guidance] […] It appears this time of year […] has been very stressful, and it may have been triggering. We’re going to look into that’. 

CC has restricted almost all nutritional intake and, as a result, ‘she is at risk of collapse’. CC has experienced numerous hospital admissions for the treatment of her anorexia, some of which included the use of restraint and force for ‘feeding’. Understandably, she has found these experiences incredibly traumatic, which is compounded by some previous traumatic experience(s) (I got the impression that everybody was trying their best to not say what this was). 

She has made it clear that she will ‘purge’ any ‘feeding’ given under restraint. 

The Trust was now seeking declarations that it is lawful, and in CC’s best interests, to not receive ‘feeding’ (or any other treatment for her anorexia) with the use of force, and that it is in her best interests too only receive the treatment (including ‘feeding’) that she consents to. 

The case came before the court as an urgent application at the end of September, and it was listed for the following week. This allowed time for the Official Solicitor to be formally instructed.          

The hearing was intended to be a full day, final, hearing. However, there were two pivotal reasons why this could not happen. 

First, CC and her parents could not be in attendance. This is because it was Rosh Hashanah, which is the Jewish New Year. As a result of their observance of this festival, they could not travel to the court and nor could they use electronic devices (so could not join via video link). CC’s parents, who want CC to make a recovery but also oppose the use of restraint, wanted to be added as parties and secure legal representation. 

Second, the Official Solicitor had not yet met with CC in order to ascertain her wishes and feelings. CC’s wishes and feelings appear to be ambiguous because sometimes she expresses views that indicate a wish for continued life. The Trust’s position statement stated that the meeting with CC needed to be in person because (according to her clinicians) she prefers face-to-face meetings and consultations.  

Both Counsel were seeking an adjournment, and the judge gave some case management directions. 

First, in light of the evidence currently before the court, he made interim declarations that CC lacked capacity to conduct litigation, and to make decisions concerning her care and treatment. 

Second, the judge considered when the case should be heard next. The Official Solicitor was seeking to instruct Dr Cahill but he had not yet been instructed, and it was possible it would take until November for him to file his evidence. Given the fact that the expert wasn’t yet instructed, I was a little confused as to how this could have ever been a final hearing. 

The judge would not be available in November, and so the case would need to be re-allocated to another judge. Despite making enquiries, he knew neither a date nor a judge for the final hearing. However, he was clear that he felt the case needed to be heard before an experienced Court of Protection judge – that is, not a deputy or new full-time judge. This was, he said, because of the complexity and sensitivity of the issues in the case, and not out of any disrespect for those other judges. 

Counsel for the Trust acknowledged that, now proceedings were live, the case could be listed for an urgent hearing if anything changed. 

This also meant that the judge could not give a personal commitment to meeting with CC if that’s what she wanted. However, he was “sure whichever colleague hears this case will be happy for that to be arranged”.

Third, the judge addressed the fact that the Order explicitly stated CC’s sisters could be joined as parties. Counsel for CC explained that this was “because it may be that her sisters have a different view about what should happen from that of her parents”.

The judge was concerned that “if it’s in the order, they might think I expect that” and he didn’t “want to signal that they should feel obliged to join”. Instead, the judge said they should be “told of their entitlement to being joined as a party” but that this needn’t be in the Order.

Finally, the judge asked whether CC already knew about the application. When he was assured that she did, he said this: “it might be important for her to know that the court is endorsing that she makes the decisions for now…and nothing will be done without her consent”.

Update: The next two hearings in this case were observed and blogged by Sydney White: Respecting autonomy in treating Anorexia Nervosa and “An in-person hearing on anorexia (Re CC): Observer’s rollercoaster and the role of ‘hope’)“. The judgment is published here: Barnet, Enfield and Haringey Mental Health NHS Trust v CC & Ors [2024] EWCOP 65 (T3) (31 October 2024)

Postscript re. the Transparency Order (21st November 2024)

On 7th October 2024 (the Monday after the Friday hearing), I looked over the Transparency Order again because I wanted to make sure that I hadn’t missed anything before writing this blog post. At that point, I noticed that on the face of the Order was CC’s full name and date of birth. 

When I realised this, I sent an email to one of the lawyers involved in the case, saying:

“I have read the Transparency Order, and also have a copy of it. I feel it’s important to point out that the protected party’s forename and surname, and date of birth, is on the face of the Order, though the Order is anonymised throughout [it later came to my attention this is incorrect – see below]. My understanding is that, as a general rule, Transparency Orders should be anonymous throughout. 

More specifically I am concerned that, if there are numerous people who observe the next hearing, the court office providing a copy of this form of the Transparency Order would de facto broadcast the protected party’s full name and date of birth to multiple members of the public. I wonder whether this ought to be amended in order to further safeguard CC’s Article 8 rights.”

I received a response from counsel on 9th October 2024 that said this: “I didn’t realise the TO [Transparency Order] you were given was not anonymised but I will raise this with the OS [Official Solicitor] and the court.” It was my assumption that, by the time of the next hearing, nearly two weeks later, the matter would have been resolved.

I was unable to observe that next hearing (on 22nd October 2024) but Celia Kitzinger and Sydney White did (see Sydney’s blog post about it here: Respecting autonomy in treating Anorexia Nervosa). On receipt of the Transparency Order, Celia noted that it still had not been anonymised. She also noticed (which I had missed) that the second page of the Order contained the name of two witnesses who were covered by the prohibited “Information” (the things we cannot publish). Celia immediately sent an email for the attention of Mr Justice Hayden, who was now hearing the case. She said: “I appreciate that the people who receive the TO will – in all likelihood – learn of these names anyway, and that §6 prevents us from reporting them, but it is unusual, and not recommended practice […] to name the people whose identities we cannot publish on a public document”.

Once the hearing started, the judge raised the issue in open court. He was also of the view that the Order ought to be anonymised. Despite my email earlier in the month, I understand that counsel did not display any evidence that this matter had previously been brought to their attention.   

I’m told that counsel then indicated that the names would be removed from a revised TO but as of today (21 November 2024) neither Celia nor Sydney has received a revised Transparency Order. 

It is not uncommon for members of the public to receive Transparency Orders that have not been appropriately anonymised. Sometimes (not in this case) P’s address is also not anonymised.

It is one thing to hear P’s name mentioned during a hearing. It is quite another to see it written down in a public document. In fact, a Transparency Order is rather self-defeating if it broadcasts prohibited Information. 

I am well aware that some lawyers do not think that this is a problem – we are, after all, bound by an Order once we receive it (as Celia acknowledged in her email to Hayden J).  However, as I discovered during research over the summer, it has been the intention since at least 2017 that a Transparency Order should be anonymised: see, “A review of transparency and open justice in the Court of Protection”, particularly s2 (“Not a best interests decision: Private hearings, closed hearings, and closed hearings”) and s6 (“When P’s privacy is not protected”).

Finally, it is clear from a subsequent blog post by Sydney White that insufficient thought had been given to the wishes of the young woman at the centre of this case with regard to anonymisation, and this caused distress to her, and anxiety to the observer on the occasion of the final hearing (see: “An in-person hearing on anorexia (Re CC): Observer’s rollercoaster and the role of ‘hope’)“).

Protecting P’s privacy is an important element of the Court of Protection being able to sit in public. More care needs to be taken that mistakes such as this don’t happen. 

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.

Moving forward in Re A (Covert Medication: Closed Proceedings): A social work perspective

By Meg Niven Withers, 25th October 2024

Editorial note: This is a second blog post about the same hearing we’ve already blogged about here: A is back home and taking her medication voluntarily: The final hearing in Re A (Covert Medication: Closed Proceedings). We are also planning a future blog post reflecting on this case as whole.

As a registered social worker/ academic, I have a particular interest in Adult Safeguarding and how the Court of Protection functions to safeguard and promote the legal and human rights of people who have been assessed as lacking capacity. I also want to better understand the experiences of service users and their families subject to what can be intimidating, complex and drawn-out proceedings in a system that aims to have their best interests at heart. Becoming a volunteer observer with the OJCOP has provided me with the opportunity to learn more about both of these things and the commentary here is a brief summary of some of my reflections on this occasion.

The start of the hearing I watched (COP 13236134 before Mr Justice Poole on Monday 14 October 2024, 2pm, at Sheffield Combined Court) was delayed because the protected party, A, had wanted to speak to the judge –  and at the outset he stated that he had taken the opportunity to explain to A the presence and the role of volunteer observers. In addition, he asked A and her mother (B) to move seats so that their faces were not seen in the video feed which seemed to me to be a concrete example of applying the Transparency Order to practice, even within a courtroom setting.

 Poole J asked the LA’s advocate to summarise the case at the outset but this was brief and focused on the positive outcomes that had been achieved since the previous hearing where Poole J decided A should return home. It is only because I have been following this case through previous OJCOP blogs and commentary that I was able to gain any understanding of A and B’s past history, the COP decision making to date and how this information played out in the hearing here.

A large part of the hearing was taken up with how A was to be represented and safeguarded in legal and practical terms if and when the court order was discharged. The ensuing discussion between the advocates brought my thoughts back to the central tension that exists within the legal framework between wanting to respect a person’s Article 8 rights to privacy and a family life while at the same time safeguarding a person’s health and wellbeing where they lack capacity, but also what that might feel like from the person’s point of view. The COP here is being asked to strike a balance between wanting to put in place the least restrictive interventions as possible while at the same time leaving room for state agencies and appropriate legal frameworks to be put in place in order to have some oversight of A’s health and well being over the longer term. 

There was consensus that the way forward would be through the discharge of the existing court order and an application made for  a Community Deprivation of Liberty (DOL) authorisation because although A is now living at home, she is not free to leave the house without support and she is effectively under continuous supervision and control. This set of circumstances means that the acid test is met as detailed by the Cheshire West decision for people who lack capacity to consent to agree to their care arrangements (P v Cheshire West and Chester Council and Q v Surrey County Council, (2014 UKSC19). It is a measure of Baroness Hale’s clarity and precision in communicating a complex idea that social care practitioners are very familiar the premise that a gilded cage is still a cage, and it was intriguing to hear it cited here by the representative for A (via the Official Solicitor).  Additionally, the  DOLS Code of Practice (2005) sets out  a number of questions  that have to be satisfied in order to make sure that any decision is made in P’s best interests, one of which is imputability to the state. In other words, there should be evidence that the state is responsible in some way for the deprivation of P’s liberty.  I was therefore intrigued, given that all the participants were very well aware of the protracted and difficult history of the case, to hear counsel for the OS spending some time setting out how the case was indeed imputable to the state, and citing case law in support of his request for a DOL authorisation. It seemed to me however that there was less time given to another key question, the (re) evaluation of whether the deprivation of liberty authorisation was indeed necessary to prevent harm coming to A but more a recognition of this is how A now lives her life at home and a desire to have some kind of legally acceptable oversight in place for what happens next. 

Certainly, on the face of it, A’ s return home has been a positive one with some aspects of the community access and support plan drawn up by the Local Authority now in place, albeit that other significant elements – such as finding carers that are acceptable to A and B – are still to be resolved. I did wonder if the implications of the decisions being made were apparent to A and B. The LA’s advocate observed that both were smiling when she commented that things were going well for them at home, but the reality is that they are likely to experience ongoing and significant state intervention with potentially daily visits from carers, fortnightly visits from health and social care practitioners, medical and hospital appointments etc. While living at home with her mother has been what A has been asking for all along, and the court has determined that it is in her best interests to do so, it may not feel like the least intrusive option given the level of scrutiny and stress they will be exposed to – a point alluded to by counsel for B when he requested that any visits should take place away from the home, explaining that B has OCD and is compelled to clean the house after any visit.  A and B haven’t always been aware of the decisions being made or accepting of the reasons why they were made and now they are being asked to place their trust in agencies and professionals and to work with them to achieve care plan outcomes.

Equally I was a little surprised therefore to hear that the DOL authorisation should be reviewed in 12  months’ time, in effect at the end of the authorisation period, given the concerns voiced on the implementation of the care plan and  who would act as A’s representative during this time. An authorisation can be reviewed at any point if there is a change in circumstances, but again I am unsure if A and B know that the LA can bring the case back to court at any time from what was said in court, other than a comment from the judge to say “that it all depends on what happens this year”.  It is likely that B will not be entitled to any further legal representation or Legal Aid after the hearing is concluded and there was uncertainty who would represent A going forward. Even when a Rule 1.2 representative is identified to speak on A’s behalf, there is the issue of continuity for A and B and how are they going to be supported to make play their part in what remains complex, and what are likely to be fraught decision making processes. My sense is that careful, sustained relationship building between professionals and with A and B is what is needed here to help them so far as possible to understand not just the authorisation but also how it affects them and to be able to meaningfully exercise their rights going forward. The risk otherwise is that mistrust of professionals endures, positions remain entrenched and the case is returned to the Court of Protection once again.

Finally, I also noted that the representative for B called her either mum or mother for the most part whereas the representatives for the LA and the OS called her Mrs X which seemed to me to be to a more respectful, less reductive, acknowledgement of B as a person. Both Poole J and the counsel for P (via the OS) took the time to thank and commend A and B on being in court but at the end, it was noticeable just how quickly both left the courtroom and without them speaking to or being acknowledged in turn by their legal representatives. 

 Research in 2017 by  Lucy Series and colleagues at Cardiff  University on The Participation of P in Welfare Cases in the Court of Protection has highlighted the challenge of promoting  a human rights model of participation based around the idea that P has a fundamental right to participate in proceedings that will have serious consequences on their lives.  My observation here is that the judge and lawyers were paying close attention how they could best represent and support A’s legal rights but it nevertheless remains extremely difficult for P to challenge professional decisions made within the welfare incapacity jurisdiction, with systems and processes that continue to exclude rather than include P.

Meg Niven Withers is a Senior Lecturer in Social Work in the School of Health and Social Wellbeing at the University of the West of England. She can be contacted at meg.nivenwithers@uwe.ac.uk

Tony Hickmott: Not the happy ending everyone had hoped for

By Amanda Hill and Lucy Series, 24th October 2024

Hopes were high back in 2022. Tony Hickmott[1] who had spent 21 years in a secure Assessment and Treatment Unit (ATU), was finally moving back to his home town of Brighton, close to his parents, Pam and Roy. This was seen as a new beginning for Tony, who has autism and learning disabilities. Unfortunately, things have not worked out as hoped. 

This is a blog in two parts.  In the first part, Amanda Hill, a PhD student at Cardiff University researching the Court of Protection, reports on the most recent hearing in this long-running case. She also considers the ongoing role of the Court of Protection in a person’s life, the role of Tony’s parents and the media, and reflects on what being “at home” means. In the second part, Lucy Series, Associate Professor at the University of Bristol, researching mental capacity, social care and deprivation of liberty safeguards, reflects on Amanda’s report of the hearing and provides her own commentary on the case.

First, some background. In 2013, after a number of years of being held in a psychiatric hospital, Tony stopped meeting the criteria to be there. But he could not be discharged from hospital because a suitable placement could not be found for him. The Court of Protection became involved after an application by Pam and Roy (represented by Dr Oliver Lewis of Doughty Street Chambers) in June 2019. After a number of Court of Protection hearings, the judge ruled that Tony should be discharged from hospital. He returned to his home town of Brighton on 31st October 2022, to live in a specially renovated house with care from a bought-in provider.  The parents’ lawyer, Oliver Lewis, celebrated the court decision as creating “the possibility of equal justice, equal opportunity and equal dignity for Tony Hickmott:  Tony Hickmott goes home.

Jayne McCubbin of BBC News, also wrote about Tony’s discharge from hospital in this article: Tony Hickmott: Autistic man to be released after 21 years in hospital. She described his parents’ high hopes for Tony’s new living arrangements at that time: “They are looking forward to seeing their son living freely again – with support – in a bungalow close to where they live. “I can’t wait for him to make us a cup of tea,” Pam added. “He wants to go to the pub with me,” said Roy. “I’ll have a pint and he’ll have a half and he says he’ll have a cheese roll. That’s what he wants, a cheese roll. I can’t wait. It’ll be heaven.“

The Hearing of 20th September 2024, by Amanda Hill

I joined this hearing (COP 13471388 before Senior Judge Hilder) at First Avenue House by MS Teams. Oliver Lewis was again counsel for Tony’s parents Pam and Roy. Unfortunately, due to the hybrid nature of the hearing, the sound was not very good overall and I missed the names of the other legal representatives.

Counsel for Tony’s parents set out the current situation. In short, it seems that despite hopes of an active life for Tony, including activities such as going to the pub, his life is severely restricted: Tony has been discharged from hospital “and thank goodness for that” but not a lot else has been achieved. The care plan is quite old and Tony has been “barricaded” into the bedroom, the kitchen is bare and awaiting renovation, the home has been stripped back and, all in all, is similar to a seclusion room. Pam and Roy have not been able to take Tony out for several months and they do not understand why they have been prohibited from doing so. The reality is very different from the hopes of Tony’s parents when he was discharged from hospital. Counsel for Tony’s parents described Tony’s living arrangements as being like“an institution in the community”.

Counsel for Tony’s parents described Tony’s care too.  He said that Tony is being looked after by an unregulated care provider. This has implications for Tony in that staff can’t provide personal care to him, including brushing his teeth. They can prompt Tony, but they can’t do it for him. This is leading to dental problems. Clipping his nails is also not happening. Counsel for Tony’s parents said these were the consequences of non-registration and that as a result “his personal care needs are chronically not being met”. 

There was quite some debate about the role of the Court of Protection and who should continue to be parties. Tony’s parents want the Court of Protection still to be involved – to provide independent oversight into what is happening “on the ground”.  NHS Sussex ICB argued that “proceedings should come to an end, as they have ceased to be useful” and they wanted to be discharged as a party. Senior Judge Hilder decided that the COP did still have a role. Although counsel for Tony’s parents suggested another hearing in 6 months, the judge ordered a hearing in a year’s time. This will be the annual review to look at whether the Deprivation of Liberty should continue to be authorised.

The new applicant will be the local authority, Brighton and Hove City Council,  with NHS Sussex ICB  as 1st respondents, Tony’s parents as 2nd and 3rd respondents and the Official Solicitor (representing Tony) as the 4th respondent. Sussex Partnership NHS Foundation Trust and NHS England were discharged as parties. A future hearing date was set for 2pm for 2 hours on 19th September 2025. 

Counsel for the local authority mentioned that the CQC (Care Quality Commission) had confirmed that Tony’s case “is next in the queue”. The judge replied that being next in the queue “does not mean next to be dealt with because something more urgent could come up”. These comments were in response to the unregulated care Tony is receiving. Round Table Meetings must be held to assess ongoing progress. The judge stated that although the court remains there if needed to be called on, “I hope this window allows a breathing space and that matters can be dealt with….it is not the end of the work”. She also authorized Tony’s Deprivation of Liberty but said that if things become more restrictive there would have to be a return to the court earlier than the listed date. 

The role of the Court of Protection

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

The judge seemed to accept in the hearing that the court will continue to be involved on an ongoing basis. She said “…you are right that the main purpose was achieved. Tony is now living in the community. The court will probably be involved in the rest of Tony’s life for the Deprivation of Liberty authorization. So, the dispute between the parties is about the nature of that involvement”. She also referred to the funding responsibilities of the ICB and the local authority, so I think that there was an element of disagreement over who would fund on an ongoing basis. 

The discussions about the ongoing role of the Court of Protection had implications for the parties involved, as I have referred to above. The judge, in considering future arrangements, said “I’m concerned about level of representation of Tony” and mentioned that there could be a “new advocate who has not seen anyone” and a risk that “the court loses continuity”. It seemed to me that the judge wanted to ensure that Tony continued to be represented, that there was some sort of continuity but also that the previous hearings were terminated. This resulted in the change of parties and who was the applicant etc. The COP case number will, however, remain the same.  

The judge’s acknowledgment of an ongoing role of the court in Tony’s life should not be interpreted as meaning that the court will become Tony’s guardian. That is not the role for the court, as clearly stated in the appeal in Re A (widely known as the “covert medication: closed proceedings” case)  [2024] EWCA Civ 572:

“……the Court of Protection exists to make decisions about whether a particular decision or action is in the best interests of the individual. It is not a supervisory court, as confirmed by Baroness Hale, giving the judgment of the Supreme Court in N v ACCG [2017] UKSC 22, [2017] AC 549………the Court of Protection does not become the guardian of an adult who lacks capacity………The Court of Protection has become a fixture in A and B’s lives. If that is necessary because the court is for good reason unable to bring its involvement to an end, so be it, but it should not be mistaken for normality.” (§90)

One important distinction from the “covert medication:closed proceedings” case is that here, it is Tony’s parents who want the Court of Protection involvement to continue, not the public bodies. 

The role of Tony’s parents, Pam and Roy

Tony’s parents made this application before the court because they have concerns about Tony’s care and living conditions. I have seen cases where that can lead to friction between those providing care and family members. This has resulted in a breakdown in relationships between carers and the family, leading to a placement being terminated, for example in this case that I wrote about: Crisis point – is hospital a viable option for P? In that hearing, which exposed tensions between P’s mum and previous carers, leading to a new placement needing to be found for P, the judge said: “I stress to the court that the (new) placement needs to work. If it is put to me that the relationship is deteriorating, I will put measures in place to ensure that the placement is retained”. 

There is no suggestion here that Tony’s residential arrangements are threatened. But counsel for the parents submitted that Pam and Roy were being blamed for the difficulty in recruiting a manager for Tony’s house. He stated “for the record” that the parents were not involved in the first round of recruitment and that they didn’t know how they could be seen to be influencing recruitment. He suggested that blaming the parents was creating a culture of lack of transparency and trust. To me, this highlights how difficult it can be for positive relationships between families and care providers to be maintained, where families have concerns about the care of their family members. 

Pam and Roy expected that they would be able to spend more time with Tony after his discharge from hospital and so I found this comment from Oliver Lewis in the hearing particularly striking and sad: “They say they just want to be Tony’s parents and have been robbed of that for many years…they now only see him through the window once a week…and want to hand over to carers that they have confidence in.” As Pam and Roy are both now in their early 80s, I’m sure this situation weighs heavily on their minds. 

An institution in the community?

This term that Counsel for the parents used really struck me and it reminded me of some work done by Dr Lucy Series, Associate Professor in Social Care Law and Policy at the University of Bristol. She wrote Deprivation of Liberty in the Shadows of the Institution. In that book she writes about the shift in the 20th Century from large institutions into community living, including to “family homes” and reflects on the meaning of “home” and “institution”. In Tony’s house, I don’t know why the kitchen seems to be unuseable, which doesn’t seem typical of a home. The fact that Tony’s parents can’t take him out as they had wished also mean heavier restrictions than expected by his parents when he was discharged from hospital. The description of Tony’s living arrangements that I heard about in the hearing did not seem much like a “family home” to me.

Media coverage

This case has been extensively covered in the media and I wondered whether there would be journalists observing this hearing, for example Jayne McCubbin from BBC News. However, when I joined the MS Teams link before the hearing, Kim Dodd and another person I know from the Open Justice Court of Protection Project’s WhatsApp Observers’ Group were the only other people on the link. I couldn’t see all of the people in the courtroom though because of the camera angle. However, part way through the hearing Jayne McCubbin did join the hearing via the MS Teams link. I found out later that Jayne had applied for the link like the rest of us, but unlike us, she had not been admitted to the hearing at the start. This meant that she could not write an update, having missed a great deal of the hearing. Tony’s parents obviously welcome media attention, to keep raising awareness about Tony’s situation, so this was unfortunate, to say the least. 

Conclusion

The voice of the person at the heart of this hearing, Tony, was absent. However, from what I heard, there is still a long way to go before Tony can really be described as being “at home”, enjoying the freedoms that it was hoped would be achieved with his discharge from hospital. I hope for him, and for his parents, that things improve over the next year and that the hearing planned for September 2025 will show that efforts being made have borne fruit. 

2. Commentary on this case, by Lucy Series

Amanda and the Open Justice Court of Protection team kindly invited me to comment on this case. I am an Associate Professor at the University of Bristol, and my research is on mental capacity, social care and deprivation of liberty safeguards. I had been following Tony Hickmott’s case in the media and in published judgments, but I did not observe the hearing that Amanda describes here, so I am just basing this comment on her blog post.

Reading this made me feel very sad. Tony’s case was one of the more extreme examples of people with learning disabilities and autism who end up detained in psychiatric hospital settings known as an ‘assessment and treatment units’. Whereas most mental health patients who are ‘sectioned’ under the Mental Health Act 1983 are discharged within a few weeks or months, more than half of all patients with learning disabilities who are admitted to these settings remain there longer than two years, a third for over five years, and over 300 for more than a decade (NHS Digital). Tony was reportedly in hospital for over 21 years (BBC News, 2022). It is largely thanks to the persistence of his parents, the inventive strategy of his legal team and a judge who really cared about the situation, that he got out at all.

It is therefore really sad to hear that Tony is experiencing such restrictive care in the community. Social care can be really restrictive – I call this social care detention in my book. This can happen for a number of reasons. Sometimes it is because it is cheaper to put people in congregate settings, so that care providers can deliver economies of scale through routinising and standardizing care; ‘personalisation’ and privacy are traded off for pounds saved. But that doesn’t seem to be what is happening here. It sounds as if Tony is being supported in what seems to be – legally speaking – his own home. Only it doesn’t sound much like the kind of place most of us would call home. A home is a place where we have a degree of privacy, freedom to move around within our homes, and we get to make our homes by interacting with the material surroundings. Our homes also allow us to connect with others, offering hospitality to our loved ones. A name on a tenancy doesn’t make it truly one’s own home; it is the rights and freedoms one enjoys within it that matters. 

There are some strange, but sadly not unusual, features of this case from a legal and regulatory perspective. Firstly, Tony’s care is being provided by an unregulated provider, and because of this they say that they can only prompt his personal care and not directly support him with it. From a regulatory perspective this is odd – the regulations which specify what activities must be ‘regulated’ explicitly include ‘the prompting, together with supervision, of a person’ within their definition of personal care.  In other words, if the description here is correct, they are already providing an activity that CQC is supposed to regulate. It sounds as if the provider is trying to get registration sorted, so this isn’t a criticism of them. But it is worrying that the council has had to rely on an unregulated provider at all – especially since the care they are providing certainly sounds extremely restrictive. (It would be bizarre, when we think about it, if unregulated providers were allowed to detain people in their own homes, but not cut their toenails…).

The other feature of this case that may become important is that there is some debate about the Court of Protection’s role. Tony’s parents want the court involved, perhaps because they trust the Court after its ability to help pave the way for Tony to leave the hospital.  Tony’s family are worried about the level of restrictions their son is still subject to, they are sad and disappointed that their contact with him is so restricted.  Because Tony is deprived of his liberty in the community in a ‘domestic’ setting the only way to authorise that and give him safeguards is through the Court of Protection. For the public bodies, this is potentially quite a costly exercise, especially if – as here – there are underlying welfare issues and disagreements that the family are asking the Court of Protection to look into. 

One of the challenges is that the Court of Protection has no power to resolve any underlying issues around the care plan. It cannot make CQC register the care provider any quicker. It cannot fix Tony’s kitchen. It cannot change who provides care, or how much the public bodies spend on it. The Court of Protection’s role is – as Lady Hale put it in N v ACCG (2017) – to ‘stand in the shoes of the person who is unable to make the decision… and makes the decision for him’. In other words, just in the same way that other people who rely on the NHS and/or local authorities to provide care and support cannot demand that particular kinds of support are provided, neither can Tony nor anyone (including the Court of Protection) acting on behalf of Tony. This is because the Court of Protection is what is known as a ‘private law’ court, it is not supposed to be there to judicially review the decisions of public bodies.

The Court of Protection is not the only court to be asked to authorise poor quality or even truly grim care plans. Family Court judges are increasingly outspoken about these issues in cases involving children in care. Sir James Munby, retired President of the Family Court and the Court of Protection, recently wrote about this in the Guardian. But although it’s great to see the judges speaking up for people, where does this lead in the end? Nothing can solve the problems the judges are seeing in their courts without the government properly funding social care. 

That all being said… Tony’s care plan seem to be involve things that go well beyond ‘ordinary’ care provision based on the person’s consent. His carers appear (from the blog post) to be restricting Tony’s freedom to come and go from his own home, to move around his own home, and to see his family. These are things the Court of Protection could reasonably want to consider, because they are interferences with the ordinary rights and freedoms that adults expect to enjoy, and they go to the question of whether the deprivation of liberty is necessary and proportionate.  The Court of Protection can also play a powerful role in many cases in cutting through difficult relationships between public bodies and the person’s family, and forcing public bodies to justify and evidence any restrictions imposed on family relationships. To put it bluntly: most people would expect to be able to see their family within their own homes without interference, so the case to justify these significant restrictions on rights to home, family and private life, needs to be made. 

I also wonder about this whole ‘standing in the shoes of the person’ business, which seems to hamper everybody’s ability to challenge a poor care plan. If the person had capacity, there are steps they could potentially take to address it. In theory, if there were potential alternative care providers, one could request a direct payment to pay them, or employ personal assistants directly, or ask an independent care manager to provide this. All the levers and pulleys of personalisation are, in theory, available to the court, ‘standing in the person’s shoes’. The person could also make a complaint, escalating that to the Ombudsman if necessary. They could, technically at least, bring a judicial review if it was felt the care plan did not discharge the statutory duties required of the public bodies concerned. I wonder how often the Court of Protection considers these steps, or at least instructing others (e.g. the person’s legal team) to consider these steps on the person’s behalf?

The reality though, is that in a situation where even the NHS and councils – with all their purchasing power – are having to rely on unregulated care providers, it is likely that coming up with alternative care plans would be a challenge.  The Court of Protection might be standing in a person’s uncomfortable shoes, but it seems it cannot change them. 

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

Lucy Series is an Associate Professor in the School for Policy Studies at the University of Bristol. She researches and teaches mental capacity, disability rights and adult social care law and policy. She blogs at The Small Places. You can read her book – Deprivation of Liberty in the Shadows of the Institution – free of charge here or on Kindle. She is on Bluesky here: @thesmallplaces.bsky.social

[1] It is very unusual for a ‘P’ (a Protected Party) in a Court of Protection hearing, or their family, to be named publicly.  Usually there is a Transparency Order (also known as an injunction), in place which means that P can’t be identified as a protected party (“P”) in the Court and so (in order to protect P’s identity) neither can P’s family members, nor (often) people who’ve been in court to give evidence, e.g. a manager of a care home, or a social worker, or clinicians treating P in a hospital). There are usually restrictions preventing references to where P lives as well. It’s different in this case because Tony and Pam had already been named in the media before the case began. In May 2019, Pam and Roy had felt so desperate about Tony’s situation that they decided to go to the media and this article in The  Mail in Sunday was published: “Vulnerable man locked in solitary confinement for 10 YEARS: Horrifying case revealed in new report as Health Secretary is finally stung into action, naming the family because at that point, Tony wasn’t a P (Protected Party) in a Court of Protection hearing and was not covered by a Transparency Order. Once Tony became a P in June 2019, neither he nor his family could be named in connection with the case.  In October 2021, BBC News and Sky News applied to be able to name Tony, his parents and where he lives. Senior Judge Hilder granted the application, saying “Mr Hickmott’s parents want to raise awareness of their son’s situation” and “It’s their story too.” Her reasons are set out in the judgment: https://www.bailii.org/ew/cases/EWCOP/2021/63.html

A is back home and taking her medication voluntarily: The final hearing in Re A (Covert Medication: Closed Proceedings)

By Claire Martin, 23rd October 2024

Editorial note: Another observer (Meg Niven Withers, a social worker) also watched this same hearing and has blogged separately here: Moving forward in Re A (Covert Medication: Closed Proceedings): A social work perspective

The case (Re: A) has been in the Court of Protection since 2018 and we’ve been following it since May 2020.  It is now at an end. 

It concerns a young woman with a mild learning disability and primary ovarian insufficiency who refused to take HRT medication without which she would not achieve puberty. The judge, HHJ Moir, found that this was due to her mother’s influence on her and authorised her removal from her mother, and deprived her of her liberty in a care home where she didn’t want to be.  The court restricted and then stopped contact between the young woman and her mother in the hope that (without what they determined was her mother’s discouraging influence) she would agree to take the medication – and when that failed, the judge held “closed” proceedings (excluding the mother, and public observers) and authorised covert medication. When HHJ Moir retired, and another judge, Mr Justice Poole, took the case on, he almost immediately ordered that the closed proceedings should come to an end. After a series of public hearings, he finally ordered that A was to be informed that she had been covertly medicated, that it was now her decision whether or not to continue to take the HRT medication (which – now she’s achieved puberty – is clinically recommended for life on a maintenance dose) and that she would finally be allowed to return home to live with her mother, after 5 years living in a care home. That judgment was appealed by the Local Authority, the NHS Trust and the Official Solicitor but was upheld in the Court of Appeal. 

There was then an ‘implementation hearing’ on 24th June 2024 (blogged here) which focused on how these decisions were to be put into practice.  

By the time of the hearing I observed, on Monday 14th October 2024, before Mr Justice Poole, sitting at Sheffield Combined Court, the young woman (A) had been back home with her mother for just over three months (since 5th July 2024) and taking her HRT medication voluntarily. The judge said: “A’s return home has been a success”.

I was very pleased to be able to observe this hearing. This is a case that has been of significant interest to me, both as a public observer with the OJCOP project, and as a clinician working in health services, with a keen interest in how we use our power in relation to those we care for.

In this blog I am going to report on the hearing, focusing on the outcome of implementing Poole J’s 2024 judgment, then discuss the transparency issues, and finally end with brief reflections.  

The hearing

A and her mother (B) were in court, along with counsel for all parties: 

The hearing started late because A spoke to Poole J in private first. The judge informed the court: “I was delayed as I was meeting [A] and I told her there would be observers”. Poole J did an excellent job of balancing open justice with ensuring that A and her mother were informed of the reasons for our presence and with enabling them to retain some privacy. 

Sophia Roper (counsel for the applicant Local Authority) gave an opening summary: Very briefly, [this is a] long-running case concerning [A] … the court will recall that some time ago [A] left her mother’s care and was placed in a residential placement away from her mother. There was a period of no contact with her mother and a period of restricted contact. In your Lordship’s most recent judgment, [you decided] it was in [A’s] best interests to go home. I am not going to go into further detail.  I will focus on the positives. My Lord, [A] did go home on the 5th July and she has been there ever since. You’ll have seen from evidence filed that things are going well. She is smiling when I say that. Both the comments of the social workers and the most recent and detailed statement by her mother have demonstrated how successful this is … at the moment … proving to be. There have been …there are still a number of recent teething issues … attending medical appointments.  … [A] does not agree to meet the consultant in charge of her hormone treatment and as a result she is being transferred to her GP[1].

It was only on rereading my notes about what counsel said here that I realised she did not refer, at all, to the very important fact that A is voluntarily taking her medication.  This was eventually reported to the court by the mother’s counsel,  Mike O’Brien.

Counsel for the LA continued: In terms of other things since [A] went home – the social worker has visited [A] at her home, so has the Community Learning Disability Team, fortnightly meetings. Despite [A’s] reluctance to engage with yet more professionals, she has been willing to do so. This has not yet extended to accept care from community agencies … We have had discussions with Mr Mike O’Brien (counsel for A’s mother) as to what might be done … an agency has been engaged but so far [A] has said she doesn’t want support from them. Mr Mike O’Brien thinks that if specific younger carers [could be identified] … she may be interested. The Official Solicitor’s position is that all that can be done is to provide encouragement. 

So, it seemed that, despite all predictions from statutory bodies at the previous June 2024 hearing, A has been willing to engage with professionals from the Learning Disability service and social workers. She has not wanted to go out with carers, as per her ‘Community Access Plan’ and the suggestion was that this might be because she would prefer carers closer to her age. I wondered, also, whether the ‘Community Access Plan’ was a plan that A felt she owned, had been part of drawing up and contained things in it that she wanted to do. All those boxes might be ticked, and just not have been referred to in the hearing. Although, Mike O’Brien did then ask “I would want to be sure what that means – whether B would be consulted”.  Counsel for the LA replied: “We would circulate and ask for B’s comments, but it is ultimately the LA care plan. It follows the line set out in [social worker’s] witness statement.“

I thought that the language was interesting: ‘it is ultimately the LA care plan’. I would say it is ultimately A’s care plan, though I might be splitting hairs here, and I think Sophia Roper meant that the LA is drawing up the care plan, and although A’s mother can comment, she is not the author of the document. 

Counsel for the LA confirmed that a Deprivation of Liberty in the community is, technically, taking place (A cannot leave her home without supervision) and that the LA has oversight, though not control of, this situation. This arrangement was said to be ‘imputable to the state’ (counsel for LA) and therefore, the court would also need to review the authorisation of this Deprivation of Liberty in twelve months’ time: “Broadly the view between advocates is that proceedings need to shift from ongoing welfare decisions to moving to a process which the court needs to adopt under Liberty Protection Safeguards – to review Deprivation of Liberty in the community.” (Counsel for LA)

At this point in the hearing, I still wasn’t sure, even though counsel for the LA had gone through the draft order for the court, whether A had chosen to take the HRT medication voluntarily at home. 

The fact that A is now taking her medication voluntarily emerged piecemeal and with stated caveats during the course of the hearing. It was not specifically stated in the opening summary from the LA counsel – and yet this was the key issue that had led to her being removed from her home with her mother in 2019, had led to contact with her mother being stopped (then restricted) and had resulted in her being covertly medicated each day for several years.

There was reference to a recent hospital admission in September 2024 (unrelated to the HRT issue), during which a blood test was taken, and which did not show expected HRT levels. However, the doctor at the hospital has advised that, given that A had been unwell, the blood tests ‘should not be taken as evidence that she had not been taking [HRT]’ (Counsel for the LA). The judge clarified ‘[A] did take it in hospital’. 

Counsel for B (A’s mother) clarified the situation at home: “The first thing to say – this is the first hearing since [A] went home – is that the court made the best interests decision requiring to allow her to go home. I appreciate the various issues about blood tests, but she is indeed taking the medication … after 5 years of attempts by [listed others], her mother was able to get her to do so within a day“.

Poole J expressed some caution in relation to that assertion, but Mike O’Brien asserted that “[g]iven that they have [agreed that A will take the medication] ,… [A] should be given praise that she has taken [the HRT].” Poole J concurred: ‘Ye,s she has reached that decision herself’

So, A had decided, herself, to take the HRT at home. This was the opposite outcome from that predicted by the statutory parties when they appealed Poole J’s judgment this year. I don’t know what, exactly, A’s mother’s role was in A’s  decision to do that.

The court has always expressed deep scepticism about whether A’s mother would ever encourage her to take the HRT. A May 2020 ‘Case Summary’ helpfully provided to us (by LA Counsel) states unequivocally: “P’s Mother … insists that P’s behaviour is caused by her situation, that she would improve were she to be allowed to return home and that she would engage with treatment then” but continues to say that this statement “must thus be treated with the utmost scepticism”. (§24)

Both things can be true though: i.e. it can be true both that A’s mother failed to encourage her to take the medication AND that once she was removed from her mother she refused to take the medication because of the situation she’d been placed in.  I would suggest:

  1. It might have been true that A’s mother had (as HHJ Moir found in her original judgment) ‘failed to encourage’ her to take the HRT:
  2. And, A’s mother might also have been correct that, once A was removed from her home (and I would add, her key attachment relationship), her ‘behaviour is caused by her situation’. 

It takes little imagination to put yourself in A’s shoes. A has a mild learning disability and a diagnosis of Asperger’s. She lived at home all her life until age 18, with little formal schooling, hardly any other relationships (it was reported) other than those with her mother and grandmother, and some contact with her mother’s friends and their children. She was described by HHJ Moir as having an ‘enmeshed’ relationship with her mother – which is a specific psychological term emphasising “the role of family relationships in an individual’s ability to function. According to Minuchin, enmeshed family members struggle to define themselves outside the family.” [see website here]. And then – in 2019 – she was abruptly removed from her home. Notwithstanding the clear and rational reasons for this – to facilitate medical treatment to protect her long-term health – the court, I would suggest, did not appreciate the strength of an ‘enmeshed’ relationship, nor the damage that can be caused by a sudden removal of that relationship. The Case Summary (from May 2020, after A had been moved to the care home) continues: 

19. Issues regarding P’s care continue. In particular: 

a. P neglects her personal hygiene, has not showered since 17 March 2020 and continues to use wipes to clean herself; 

b. P refuses to change her clothes, and has not done so fully since 23 March 2020; 

c. P will refuse to eat and drink for periods of time; 

d. P is regularly refusing to take her epilepsy medication with the required frequency, and this has worsened over April and May 2020; and 

e. P is also refusing to engage in any social activities and is spending increasing time in her room. 

It was submitted at that time “that there is a consensus of opinion amongst those involved in P’s care that P is still being largely influenced by P’s Mother, and negatively so, to this end”. It wasn’t considered, however, that an abrupt removal of your main relationship might be the cause of the deterioration in mental wellbeing. Whatever the situation between A and her mother in relation to the HRT, and although there is no surefire way to know this for a fact, by all accounts A continues to take this medication by choice. It is perhaps worth mentioning that (at previous hearings) it was said that once A had gone through puberty she was at far less risk of health complications than if she had not taken the HRT to enable her to go through puberty. The HRT medication she now takes was described as ‘maintenance’ medication, which, whilst important, was not as vital for her health and wellbeing. 

It was interesting to hear the expectations in relation to A’s mother. Sam Karim (counsel for the OS), referring to A’s clinical appointments said: “I thought it was undisputed, that [A’s] mother would take all reasonable steps for her daughter to attend appointments.” Poole J clarified, in his ex-tempore (oral) judgment, the extent of expectations for A’s mother in relation to her medical care: “She will use her best endeavours to attend medical appointments”

This is all set against the backdrop of the entire system around her believing that she will do the exact opposite. That view, of course, was informed by their engagement with A’s mother in 2018 following the awareness (during a hospital visit when she was acutely unwell with seizures) that A had not gone through puberty. It would be very interesting to go back to understand the nature of that engagement and the safeguarding alerts that were raised. I wonder whether, for her own reasons, A’s mother might have been frightened and defensive at that time, and felt intruded upon, and she herself might have needed a lot of help, as well as A. This might have been offered to her, of course, and the Local Authority and NHS Trust might well argue that, had they not brought proceedings to court, then A’s mother might never have reached the position she is in now, encouraging her daughter to take the prescribed medication and allowing carers to take her out and about. It will never be known where alternative paths might have led.

Here are some key points from Mr Justice Poole’s oral judgment at this hearing. In his nutshell summary of the history of the case, he said:

“The case first came before me some time ago: even then it was a complex issue in the COP. At that time [there were] difficult circumstances: [A] [was in a] residential home, an order was made that resulted in her [not seeing her mother] … [she was in] receipt of medications, which she knows about now, and the circumstances. An application by her mother for a decision on best interests for residence was made in the absence of knowledge of the medications. It also had an effect on the observers, [they were] not aware of the closed hearings. In any event, a series of decisions was made by the court … [and] ultimately earlier this year, the difficult decision was upheld on appeal, to make a best interests decision for [A] to leave the residential home and return home to the care of her mother, and to inform her of what had happened in terms of the medications.”

In relation to what has happened following the implementation hearing in June 2024, Poole J said:

“[A] returned home on the 5th July this year, Her mother has told the court in evidence that [A] takes the HRT daily by choice and she supports her to do so. […]  She also told me that it shouldn’t have been administered to her [secretly]. Unfortunately, [A] had to go into hospital for an acute medical issue in September for 8 days: she took the HRT. Her mother was supportive of this. This is very welcome news to the court, given the involved history of the case, [which is] set in a number of published judgments. [A] is engaging with her GP. [A] says she enjoys going out in the local area, city centre… [lost] she doesn’t want that to have to change. I have read discussions with [A] with the solicitor instructed by the OS, sparing [A’s] blushes … [she uses] abusive language … but she certainly made her views clear … I do urge her to engage with those who do seek to help her – medical professionals, social workers. There has been some engagement with health care professionals, inpatient care for example.”

 In relation to the judgment which ordered that A must return home, be informed about the covert medication and be allowed to make her own decision about whether to continue to take the HRT, Poole J said:

“The OS records that [A’s] return home has been a success, largely .. It’s right to say matters might have taken a different turn if the court … [inaudible]. So far it has been to her benefit and is a success. I recognise risks, but the fact is that they haven’t [happened ]…. Firstly, though I accept [A] and her mother will not see Dr X, the Trust has tried their best to support [A] and her mother, they have the court’s thanks. Likewise, the Local Authority have, over a number of years, tried to support [A] and her mother. They might not see it that way, but they have tried to offer support. [inaudible] … Also, and very important, [A] and her mother … [A] has taken the right decision to take this medication, and the court had to place trust in you [speaking directly to A’s mother].”

And in relation to next steps Poole J declared: 

“Parties have taken the position that the court should now make an order which brings to an end repeated proceedings in relation to residence, care, and contact with others, but which would allow for a review as follows: [care] arrangements and there will be a support and assistance community plan. Under that plan there will be a Deprivation of Liberty. There will be restrictions on her that amount to Deprivation of Liberty. I authorise [them] as necessary and proportionate in A’s best interests, but as case law dictates, there should be a review within 12 months, and a date will be set for a review hearing.”

Mr Justice Poole concluded proceedings by addressing A: 

“Thank you all very much indeed … the substantive proceedings [now] come to an end. [A] I wish you the best – if things go well there will be a review in a year’s time. It might be on the papers, but that depends on what happens in the next year. [A] you remain at home with your mum and it’s very nice to meet you”. 

I heard A say ‘thanks’ and we saw A and her mum make a very speedy exit out of the courtroom together. I think I would have done the same. 

Access Issues

This is the listing for the hearing below. It was listed under the Sheffield Court of Protection Courtserve listing service, which is helpful as it means that the public can see when a High Court judge is on ‘circuit’ and means that observers in that area who might want to observe a High Court judge in person are alerted to the case. It should also be listed in the Royal Courts of Justice Daily Cause List, and unfortunately it wasn’t. The COP case number is also wrong (it is missing a digit and should be 13236134). I had been expecting the hearing to be held a little later (as had been suggested at the last hearing) and I came across it by chance and noticed ‘NCC v A and B’. Luckily, I was able to observe. 

The judge noted that observers had been provided with the Transparency Order (which prevents us naming the public bodies in this case). Poole J turned his attention to what we could actually observe:  ”The camera is at the moment just showing a shield … [court staff moving camera around – judge making sure observers could have a good view of the court – but we couldn’t see him and the court] now they can see me in side view … if it could swing to the right a little bit, I don’t know [A] and [B – mother], move along two seats along [he explained to give them more privacy from observers so they were out of camera-shot, and also explained why there were observers in court].It was heartening to see a judge take time to ensure, firstly, that the protected party (A) and her mother (B) could be afforded some privacy within what was a public hearing, and that open justice was achieved.

It’s not the judge’s fault that, in this particular court, there was only one camera, meaning that we could either see counsel as they addressed the judge, or the judge when he spoke to counsel. It is often hard to hear what is said in court when the hearing is hybrid (i.e. some people are in a physical  courtroom and others on a remote link), and not being able to see each person speak makes it even harder. Other courts (for example, some regional courts and some courtrooms in the Royal Courts of Justice) have multiple cameras to enable all people who will be speaking to be seen at the same time. This seems to me to be the minimum technology required for effective transparency.

Microphones are another issue. In this hearing (as with many others)  it was often hard to hear counsel if they moved away from their microphone (they stand up to address the judge), and I don’t think the judge was always right in front of his microphone (though of course we couldn’t see him, because the camera was on the main courtroom, not the bench!): his voice was, at times, very quiet. Clip-on microphones would make much more sense to enable a hearing to be properly ‘public’, because of course just being in a room, or on a remote link, does not enable true access to a hearing if the sound quality (and/or camera access) is poor. 

Final thoughts

At the end of the last blog about this case,  I commented on how sad I felt about what has happened,  and A and B’s experiences. At the end of this hearing I felt very differently. 

A had spoken to the judge. She had made her views about the carers and health care professionals very clear to him. He spoke to her kindly and compassionately. She was able to hear what people in court had to say about her and her mother, and, importantly, she strode out of court on her own before anyone else (other than the judge) had left. 

There is something about being able to have agency and choice that is very important to us all, even if we are deemed to lack ‘capacity’ for certain decisions. 

Now that the substantive issues have been decided and the case is effectively over, we will be publishing a reflections blog about Re A, the issues it raises and the views and feelings which have been stirred in relation to what has been a key case for the Court of Protection. 

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

Appendix 

Previous blog posts about and published judgments from this case 

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

The published judgments are:

[1] It later transpired that A’s GP has not agreed to oversee her HRT medication, and I wasn’t clear, at the end of the hearing what the plan for that was. The judge explained: “it’s clearly in [A’s] best interests to have oversight of her HRT and if that requires involvement of her GP … then I hope that will happen. I have discussed with [A] the need for medical involvement …  and sometimes we don’t like seeing doctors but it’s necessary to do so sometimes.”

Can the court require certain information to be reported and specific words to be used as a condition of publication about proceedings? 

By Celia Kitzinger, 16th October 2024 (updated 21st October 2024)

It seems unlikely that the court has the power to require me to report information dictated to me by the judge, or to use specific words, as a condition of publication – but where is it written down that’s so?

When I asked around, lawyers told me that it’s so obvious that judges can’t mandate reporting in this way as to need no authority to back it up. The best I could find was Poole J stating clearly that “The court cannot dictate the detail of what reporters write or broadcast” (§20(vi) Re BR and others (Transparency Order: Finding of Fact Hearing) – although it is clear from the judgment as a whole that his focus is on reporting restrictions and do not also encompass, as in the case I’m reporting on here, the court dictating that certain things should be said. Perhaps it’s never occurred to anyone that a judge would mandate reporting of particular information? But a judge has.

In response to my emailed request to report on part of a private hearing before DJ Bland, the judge gave me permission to publish conditional upon the inclusion of  particular information and on the use of specific words in my report.

‘The court gives permission asked for in paragraphs 1 & 2 on condition that […] the family members are referred to as “they/them” instead of [xxxxxxxx   the redacted words are conventional gendered pronouns]…. any publication should record that there was no formal application made by any party to convert the proceedings from private to public, save for there being a short discussion at the beginning of the hearing’

(Email from Lancaster Family Court, 11th Sep 2024 at 10:37)

I’ve never been sent anything like this before.  I experience it as interference with my freedom of expression and with the Project’s editorial independence.

I object to the judge’s instructions about how I should report this case on principle.  I don’t think a judge should tell me what to write.  I also object on two specific grounds (further explored in section 5 of this report).

  1.  In my view it’s misleading to report (as I am required to) that “there was no formal application made by any party to convert the proceedings from private to public, save for there being a short discussion at the beginning of the hearing“.
  2. Use of the pronoun “they” for an individual person can imply a trans or non-binary identity.  No such identity was apparent for either of the family members in this case – both of whom used gender-specific pronouns to refer to each other, so the judge is requiring me to use non-preferred pronouns for these people.

I’m also not at all sure that it is within the judge’s power to make this Order (if it is an Order).  But I’m not a lawyer – and I’ve delayed writing and publishing this blog post while I researched the matter.  

Reporting of private proceedings is banned except insofar as the judge gives permission for any such reporting, in accordance with the Court of Protection Rules 2017. Section 4  – which says that the court can make contempt of court orders relating to communication about private proceedings “on such terms as it thinks fit” (§4.2(4)).  

The Rules provide some (non-exhaustive) examples of the sorts of orders this could cover – all of them prohibitions on the publication of certain information, and s.4(d) says that the judge can “impose such other restrictions on the publication of information relating to the proceedings as the court may specify”.  Practice Direction 4A likewise says that the court has the power to “restrict or prohibit the publication of information about a private or public hearing” (§1(d)). 

 So, it’s possible, with a literal reading of the Rules and Practice Direction, that the judge is entitled to impose a restriction on me to the effect that I can only publish the information I want to report if I also publish the information (and use the pronouns) he wants me to report – because the court can do “as it thinks fit”. 

I’m not sure, though, that it would have been envisaged by those who produced these documents that a judge would think it fit to require publication of certain information as a condition of publishing other information.  Both the Rules and the Practice Directions refer to “restricting and prohibiting” publication: neither suggests that a judge might conditionally mandate publication.  It seems an odd thing to do.  I can’t see that publishing the information the judge says I “should” publish is necessary to protect anyone’s identity or to ensure the just outcome of the case. I don’t know why I’ve been ordered to do this – or why the judge “thinks fit” to make this Order. 

The outcome of my enquiries is that I am not going to risk disobeying what (in the view of some of my contacts) is an “Order” from the court.  The advice I’ve received is that if I didn’t include the information above in a published blog about the case, and if I didn’t refer to each individual family member as “they”, I would risk being in contempt of court.  Even if the judge is over-reaching his powers in making this Order, I would need successfully to appeal his decision before the Order could be discharged (and I’ve now missed the 21-day cut-off period for making that appeal).

So, I’m writing a blog post in which I describe what happened and my concerns about this in relation to transparency, while complying with the Order to which I object, in the hope of encouraging others to reflect and opine on what was done, and on what should have been done.

As it happens, the Order that I should include certain information as a condition of publishing anything about this hearing is only one of my concerns about this case.

The judge, DJ Bland, is on the Open Justice Court of Protection Project “Watch List”.  That’s a list of judges we try to keep an eye on, because there have been problems in the past with gaining access to, or reporting on, their hearings.  Despite our expressions of concern sent to the judge and to HMCTS, these problems have continued and are apparent again in this case before DJ Bland, so this blog covers a range of transparency concerns. The sections are as follows: 1. Listing and access; 2. A private hearing; 3. My request to report on the proceedings; 4.  Reporting restrictions; and 5.  Mandatory reporting requirements – which addresses the matter of the judge making permission to publish conditional on my saying certain things and using certain words.

1. Listing and access 

I initially asked to observe this hearing (COP 13681604), without knowing anything about it, simply because it was before a judge on our Watch List (DJ Bland) and because I also noted that it had been wrongly listed (see Courtel/CourtServe listing below – it’ the third one down).

  • It appeared only in the Daily Cause List for Lancaster and not in the Court of Protection list which is where it’s supposed to be.
  • It doesn’t say anything about the issues before the court.
  • It doesn’t say whether it’s private or public.
  • There are no contact details provided for would-be observers.

The depressing fact is that these problems recur repeatedly in connection with  DJ Bland’s hearings[1].  

The listing errors are likely to be outside of the judge’s control, since listing is done by staff employed by His Majesty’s Court and Tribunal Service (HMCTS).  But regardless of where the responsibility for the failures lies, the effect is that DJ Bland’s hearings are regularly inaccessible to members of the public.  

As I wrote to HMCTS in relation to this hearing, “ Given the odds are stacked against any observer being present, I would like to observe it please.  Can you send me the link” (email, 1st September 2024, at 21.21)

I received a prompt reply, giving me the judge’s response: “this is a Public hearing relating to deprivation of liberty in relation to care and residence and that it is an Issues resolution early final hearing, which information is contained on the list displayed to court”. (email, 2nd September 2024, at 09:59)

So, from DJ Bland’s response, I took it that the hearing should have been listed as “Public” – albeit that this information was missing from the publicly available list. This was unsurprising.  Around 95% of listed Court of Protection hearings (leaving aside dispute resolution hearings, hearings on the papers, judicial meetings with P and so on) are heard in public – but  this fact is sometimes omitted from the public listings and it is common to have hearings erroneously listed as “private”[2]. 

2. A private hearing

So, although the CourtServe list didn’t say whether this hearing was public or private, the judge assured me, (in the email sent to me that morning at 09:59) that “this is a Public hearing”.  It turned out he was wrong about that.   

Judges sometimes don’t know whether their own hearings are “public” or “private” because the distinction sometimes turns on whether or not they have made a Transparency Order (which in turn depends on the lawyers having prepared a draft Transparency Order and put it in front of the judge to approve).  That seems not to have happened in this case.  As far as I can tell from what happened in court, the hearing was “private” by default (for lack of a Transparency Order) and not because the judge had at any point made an Order to say that the hearing should be private.  In fact, there didn’t seem any reason why it should be, and nobody argued that it should.

Shortly after I joined I video-platform, and before the judge entered, one of the lawyers (Hannah Haines, joint head of the Court of Protection team at Nine St John Street – and also herself a Court of Protection Tier 1 judge and a part-time Mental Health judge) explained to staff that the proceedings were currently private. There was no Transparency Order.

When the judge joined at 14.16 (after a delay occasioned by connection problems for family members) he announced that an observer had joined the hearing and asked if there were any objections.  There were not.   

On the basis of submissions from the parties, none of whom opposed the hearing being 

made public, I expected the judge to confirm that the hearing would be public.  He did not.  

He gave a brief judgment stating that “on balance it is not appropriate to convert the proceedings to a public hearing” but that he would “allow Ms Kitzinger to observe the hearing, without being able to report anything”.  

And with that the substantive proceedings began.

The judge’s reasons for deciding to hear this case in private (albeit with me present as an observer) were not clear from his judgment.  Neither he nor the advocates in court offered any Article 8/Article 10 analysis of the issue. 

3. My emailed request to report on the proceedings

Since, in his oral judgment, the judge had specifically banned me from reporting anything at all, I wrote to the judge after the hearing seeking permission to report on part of the proceedings – “specifically, that part of the hearing where you sought the parties’ position on whether the hearing should be held in public or in private (and if in private whether they were content for an observer to attend) – plus your judgment on the matter”.  

I explained: “This is because I am writing a piece about how judicial decisions are made to hear matters in private. I have attended about two dozen hearings at which judges have dealt with applications  – usually for hearings to be private – and about 50% of the subsequent hearings have in fact been held in private (and I’ve usually been excluded at the point that decision is made).  This is of obvious public interest and a crucial matter for understanding the way in which open justice and transparency operates in the Court of Protection.  I would add that it is my experience that the submissions (and judgment) as to whether or not a hearing should be (or continue) in private is often held in public and I can normally report on it (subject to a transparency order).  I appreciate that is not so in this case.”

I further explained that I wanted to report that proceedings had been going on for a long time, and that ”the family members manifested obvious [XXXXXXXX redacted – an emotional reaction] via [[XXXXXXXX  redacted – a behavioural display of emotion] – during the hearing”.

4. Reporting restrictions

The judge’s response was to permit publication subject to conditions which included both reporting restrictions and mandatory reporting requirements.

In my email seeking permission to report on part of the proceedings, I suggested two reporting restrictions: the kinship relation between Relative A and P, and he name and type of placement where P lives.  These would have been the restrictions I would have suggested for inclusion in the Transparency Order if I had been given the opportunity to argue that the proceedings should be made public.  The judge, in his response, did make these reporting restrictions. He said he gave permission to publish on condition that “any reference to [P’s] name is removed with her being referred to as “P” and that the term “placement” should be used instead of [XXXXXXXX  ]” and also required that the kinship relationship between Relative A and P should not be identified.  I’m content with all that.

Additionally, though, he prohibited reporting on two other matters: “the report should not refer to anything from the hearing which includes the length of the proceedings and the family members being [XXXXXXXX – the redacted term is an emotional description], as this would be taken out of context”.

Judges, lawyers and family members frequently comment on the duration of proceedings during the course of hearings (often critically) and we regularly report these comments.  The duration of proceedings is of course public information, since the public website, Courtel/CourtServe, publishes lists of hearings (and we reproduce them) informing the public when hearings are happening.  It is possible to deduce something about the length of these proceedings from publicly available information – such as this tweet from 2nd February 2021, which show that the case was before Senior Judge Hilder three-and-a-half years ago.

The judge has prohibited me from reporting what was said about the duration of proceedings during the course of this hearing, or people’s views about that.  So I won’t report on those matters. Additionally, the judge has banned me from on reporting the family members’ displayed emotional reactions in court. Both restrictions are unprecedented in my experience and the only reason the judge gives for making these reporting restrictions is because “this would be taken out of context”.  I’ve never heard this given as a reason for a reporting restriction before.  The usual grounds are protecting P’s identity and privacy, or that of the family, or preventing interference with the administration of justice.  

I’m not sure what the judge means by “taken out of context”.  By me? By readers?  And what “context”?  Clearly the duration of the proceedings and family members’ emotions are in the “context” of the court proceedings.  Admittedly I don’t know very much about these proceedings.  Even when I’m provided with an opening summary and Position Statements and even when I’ve been following a hearing over months or years (none of which applies here), the “context” I have for what I see and hear in court is much less than that of the judge, who has a whole bundle.  Not knowing enough about the context is always a problem for observers – and I recognise it must sometimes be a problem for judges and lawyers who read our blog posts and form the view that we might have written them differently if we had been privy to more information about the case.  But those are the constraints within which transparency in the Court of Protection operates.

5. Mandatory reporting requirements

My primary objection to a judicial edict that I “should” report certain information and use particular pronouns as a condition of publishing anything about the hearing is an in-principle objection. I think this is an interference with my Article 10 freedom of expression rights – and in this case there are no Article 8 privacy rights to balance against them (or none that were raised in court or in subsequent correspondence with the judge).

I also have specific objections in this case to the particular information the judge tells me I “should” report.  

First, I believe it would be misleading for readers to rely on the statement the judge says I must include:  i.e. that “there was no formal application made by any party to convert the proceedings from private to public, save for there being a short discussion at the beginning of the hearing” (Email, 11th September 2024 at 10:37).

I’ve complied with this condition by quoting the judge’s words, but this is not how I would choose to represent what happened. It is true that no party made an application to convert the proceedings from private to public.  It is also true that no party opposed making the proceedings public.  Additionally, it was clear that one party (the family member and litigant in person I’ve anonymised as Relative A) would have welcomed publicity – but the judge did not inform this person about the possibility of making an application to convert the proceedings from private to public.  Finally, of course, a judge can make proceedings public even if no party asks for this – and indeed, even if a party opposes it (though nobody did).

Here’s what happened.  

Submissions were made by Hannah Haines (for the ICB) and by Kerry Smith of Garden Court North Chambers (for the protected party via an Accredited Legal Representative). I report what they said with the usual caveats about accuracy, given that I’m not allowed to record hearings and these quotations, based on contemporaneous touch-typed notes, are unlikely to be 100% verbatim.

“The proceedings are currently private.  There is a difference between holding a hearing in private and preventing an observer from attending.  An observer can attend a private hearing but no information can be published in respect of those proceedings. The ICB is concerned about some matters if the proceedings were to be made public for the following reasons.  First there is a  history of safeguarding concerns of a personal nature regarding P.  Second, concerning [Relative A] there are more pertinent issues.  [Relative A] has indicated a desire to go to the press about [their] views regarding P’s  treatment and residence.   Proceedings being private make a very clear delineation in terms of no information being published outside of the proceedings. The concern is that if proceedings are public and a Transparency Order is in place, then there is a more nuanced area in terms of identification of P in terms of residence.  Geographical area, [location of placement] and other circumstances may make it easy for P to be identified, even if the strict terms of the Transparency Order are not breached. My client is content for you to make a decision and is not going to object to proceedings being made public or to them being kept private.”  (Counsel for the ICB)

“The Accredited Legal Representative is neutral – recognising there are competing considerations.  There is a matter of proportionality in making a Transparency Order when this is the final hearing and the case has been heard in private until now.  We acknowledge the concerns of the ICB.  [Relative A] has advocated previously for matters to be public and is here to represent [themself]. [They] wants to shed light on P’s situation and would welcome an independent observer to these proceedings.”(Counsel for P via the ALR)

Relative A was also asked whether they had any objections to my attendance at the hearing and reporting of it and said “No, that’s fine” – though it has to be said that I got the strong impression that their attention was not very much engaged with the matter of my presence in court as there were other burning issues very much at the forefront of their mind.

So – no party objected either to my presence as an observer in a private hearing, or to making the hearing public.  

It seemed likely that in fact Relative A would have supported my application (or even made one of their own) if they had understood what was going on – as indicated by Counsel for P via the ALR. 

The “concerns” raised by Counsel for the ICB relating to the identification of P on the basis of jigsaw identification from reporting about the geographical area of the case seemed to me to be both unlikely to materialise in reality and also as readily solvable with simple amendments to the standard Transparency Order.  Nothing I heard later in the hearing changed that view.   There was nothing to indicate that this hearing was in any way more challenging for transparency than many other cases which are routinely heard in public.

My opinion wasn’t sought – but if I had been offered the opportunity to speak (the judge is of course under no obligation to permit a member of the public to address him in court), I would have asked for the hearing to be made public and suggested ways of drafting a Transparency Order (e.g. with some minimal restrictions relating to place of residence)  to avoid the (remote) risk of P being identified as outlined by counsel for the ICB. 

Second, I have also been required – again as a condition of reporting – to refer to individual family members (who identify themselves in conventionally gendered terms) as “they”.  In the context of contemporary gender politics, this is simply offensive. I could have written about them without revealing their sex/gender if required to do so (and without using “they”) but the judge specifically required me to use “they”.  I suspect he is unaware of the political issues at stake and that this was merely an attempt to provide an additional layer of anonymity. The Open Justice Court of Protection Project guidance for bloggers (available for download here) specifically advises against this strategy for anonymising people. The Equal Treatment Benchbook (Chapter 12) advises judges to use people’s preferred pronouns where possible, and this judge did so in court.  A blogger should not be compelled by judicial edict  to refer to a person customarily referred to as  “she/her” or “he/him” as “they”  implying a non-existent trans or non-binary identity and departing from that person’s preferred pronoun use.

So, to return to my opening question and the title of this blog post: Can the court require certain information to be reported and specific words to be used as a condition of publication about proceedings?  Or is this judge over-reaching his authority?  Does the judiciary need more training on transparency? Should I have appealed – and what might have happened if I had?  And what are the implications of decisions like this for transparency and open justice in the Court of Protection? I’m also wondering whether DJ Bland’s order (if it is an order) is “ultra vires” – i.e. it wasn’t within his power to make it: if that’s so I would have a defence for breaching it, but it’s not something I want to risk.

Finally, the end result of holding the proceedings in private, and restricting/mandating my reporting of the case, is that I’m not able to write anything about the substantive issues. They were interesting, and concerning, and raised some problems relating to litigants in person and family members’ involvement in Court of Protection proceedings. I would have liked to report on the substantive issues – and the litigant in person, Relative A, would have no doubt welcomed the publicity. But that hasn’t happened due to the judicial decisions relating to transparency in this case. Transparency is clearly the loser.

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)

[1] See Amanda Hill “Apologies for any inconvenience caused”: A failure of open justice, 29th February 2024 and Celia Kitzinger Just another failure of open justice: DJ Bland in Lancaster County Court, 11th July 2023.  It happened again in 7th October 2024.  We are missing many of the DJ Bland’s hearings because they are incorrectly listed. Additionally, for months at the beginning of this year, the contact telephone number for the North West Regional hub (the contact for DJ Bland’s hearings – as well of course as a lot of other hearings in the Manchester area) was wrong: it went through not to the Court of Protection but to Adoptions.  It took multiple emails from us to correct this, and it was wrong again for some hearings in October 2024.  And in February this year, an observer was denied access due to the court’s “internet problems”.

[2] See: “Private” Hearings: An Audit.  Recently HHJ Cronin (COP 13683207, 26 September 2024) read out in court the listing as it appeared in her own list, demonstrating that all the information that should have been (and wasn’t) in the Courtel/CourtServe listing was in fact in the list provided by the court. Something is going wrong, it seems, when HMCTS court staff enter the data into Courtel/CourtServe – and it is very much to the detriment of open justice, and must be very frustrating for judges for whom this is an important aspiration.

Fifteen Top Transparency Tips for Judges

By the Core Team of the Open Justice Court of Protection Project, 15th October 2024

The Open Justice Court of Protection Project (henceforth OJCOP) was founded by Celia Kitzinger and Gill Loomes-Quinn in June 2020 to support and promote the judicial aspiration for transparency in the Court of Protection, by encouraging members of the public to observe and blog about hearings. You can find our website here: “Open Justice Court of Protection Project”.

Since 2020, it has become common to find public observers in the Court of Protection – many of whom have no connection with this Project.  Others attend with our support – and we’re aware that observers include a large proportion of professionals working with the Mental Capacity Act 2005, as well as people who are concerned that they may be a future P in the Court of Protection, and family members of Ps in upcoming cases.  We know that for all observers, especially those observing for the first time, anxiety levels may be high in relation to court protocol and – for remote hearings – the correct use of technology.

The tips in this document are indicative and not exhaustive. We’d welcome feedback.  And, if you can make the time, we suggest that you observe a hearing for yourself – by randomly choosing one from the Courtel/CourtServe listings. You might be surprised by just how different the experience is compared with sitting in court as the judge.

Transparency Orders

  1. Does a hearing need to be (wholly) private?: If you are asked to order that a case should be heard in private (without a Transparency Order), please consider holding in public at least that part of the hearing at which you consider the application to hold the substantive matter in private – and there may be other parts of a case that can be public even where part is properly private.  Please remember that you can admit an observer to a private hearing (including a ‘closed’ hearing) at your discretion. 
  2. Check the Transparency Order: Prior to a public hearing, check the Transparency Order for unusual prohibitions (e.g. prohibition on identification of a public body) or omissions (e.g. not protecting the identities of people/parties who’ve joined hearings subsequent to the TO being drawn up). If we notice an omission during a hearing, we will try to notify the court but our messages don’t always reach the court until after the hearing. If an Order prohibits us from identifying public bodies, we routinely ask for it to be varied since this is often a mistake or something that has been done without a balancing of the relevant Article 8 and Article 10 rights.   
  3. Ensure observers have received the Transparency Order: Ideally, we should receive a copy of the Transparency Order before the hearing starts. If we’ve not been sent a copy and you need to make a verbal Order, please don’t refer to it as being “in the usual terms”. Some members of the public will not know what this means. Even if they do know what this means, we have found that this is not always an accurate description of the Order we later receive.
  4. Silent affirmation of receipt of Transparency Orders from observers: Some judges say to all observers that they assume that they have read and understood the Transparency Order, and tell us to speak up if we have not. This saves court time because it means the judge does not have to ask each person individually, and it also reduces the anxiety that some people experience when observing a hearing. 

Listings

5. Courtel/CourtServe: This service is the main way we learn about hearings and it’s the source we rely on as public observers. Please check how your hearings appear on the Courtel/CourtServe listing – it may not be as you expect or indeed as you have directed. For example, around 50% of judges whose hearings are listed as “private” tell us they’ve been so listed inaccurately – and this has the effect of making the proceedings private by default. To understand the scale of the issue, you may find it useful to read this report by Celia Kitzinger: “Private Hearings: An Audit”. 

6. “Late” Requests: Be aware that messages from would-be observers may reach you rather later than you would like. This is because we cannot usually ask for remote links until the evening before a hearing because the lists are not published until then (and court staff are busy and may not spot them or forward them to you immediately). You may find it useful to read this blog by Claire Martin, who explores in detail why we do not ask for hearing links earlier: “Why members of the public don’t ask earlier to observe hearings (and what to do about it)”.  [Addition April 2025: Rebuking members of the public for “late” requests has a serious deterrent effect on open justice: Clare Fuller describes feeling “humiliated” by a sharp response from a judge after joining a hearing late due to HMCTS staff not sending her the link until after the hearing had started: “If this had been my first court observation, it would have been my last“.)

7. Last-minute changes to a hearing (e.g. from in-person to remote or moving a hearing earlier or later than publicly listed) need to be communicated to would-be observers by updating the public listing and by emailing or verbally informing those who have asked to observe or are waiting outside a courtroom to do so. Recently, an observer waited in the corridor outside an RCJ courtroom for an in-person hearing to start, while the judge sat inside conducting the hearing remotely.

Courtroom door notices

8. Notices on the door? Ask someone to check notices on the courtroom door – there may be a big “PRIVATE” sign on the outside.  Would-be observers have given up and gone home when confronted with a private sign on a courtroom door – even when it says “public” in the listings. 

During the hearing

9. Welcoming observers: Please do try and make observers feel welcome. Some members of the public have told us that they been made to feel very unwelcome. Small things (e.g. when you thank counsel at the end of the hearing also thanking observers for taking the trouble to come and support the judicial commitment to transparency) are always welcome. 

10. Please don’t ask why we’re observing: If a case is for hearing in open court, we don’t need to give a reason for why we want to observe a hearing.  We appreciate that it can be helpful for P and P’s family to know who is watching and to be reassured that these are people they can trust, so explaining about the role of the Open Justice Court of Protection Project in trying to ensure that justice is seen to be done may be a helpful way to do that. Please bear in mind that asking observers in open court why they want to observe a hearing can place them in a difficult position when (for example) their reasons relate to their own current or future COP proceedings, or to their own impairments or family experience.

11. Video and audio: Check that all observers can see and hear. Encourage counsel and court staff to speak up or ask somebody to ensure that microphones are available. This is especially important during in-person or hybrid hearings. If possible, during hybrid hearings try to ensure that a camera is positioned on whoever is speaking. It can be quite difficult to differentiate between disembodied voices. Being admitted to a hearing but not being able to hear it is not open justice (See: “The silent courtroom: A remote hearing without sound – and why transparency matters”;” Inaudible in-person proceedings: A practical barrier to transparency and open justice”).

12. Who’s who in court? At the start of the hearing, ask the applicant (or if they’re not represented, the Official Solicitor) to identify the names of all the legal representatives and any others who will be addressing the court. This is so that we can accurately report on a hearing, and so we know who to ask for position statements. While it may be court etiquette for counsel to be referred to as Mr/Ms X, knowing their first name can help us find the right person online. This is not as relevant for remote hearings as counsel have their full name on screen (and clear introductions at the start do not mean everybody must be referred to as such for the duration of the hearing). (Also, we often don’t learn the name of applicant counsel until late in the proceedings because they never introduce themselves.(

13. Position statements: It’s hard to follow a hearing without access to position statements. It’s helpful if judges give counsel permission (if required) to share position statements with us either before or at the very beginning of a hearing. Please don’t wait to be asked: it’s difficult for observers to create a ‘speaking slot’ to make this request, and although counsel may be aware that we want access to position statements, they are otherwise preoccupied and may forget.

14. Opening summaries: Ensure that the hearing starts with an “opening summary”, detailing the basic facts of the case and the issues before the court.  This would also be in line with the advice of the former Vice-President, Mr Justice Hayden (“The Court of Protection and transparency”). Some judges prefer to do this themselves; others ask counsel for the applicant to do so (or another barrister if the applicant is a litigant in person).

15. Court documents: When discussing an Order, evidence, or other court documentation during a hearing, remember that we do not have access to the court bundle e.g. we do not know what is in “section 10 of the draft order”. Reading it aloud – or screen-sharing – makes that transparent. 

Thank you for your commitment to transparency and open justice in the Court of Protection.

The Project’s core team authored this document for use in judicial training. You can find out more about the core team members of the Open Justice Court of Protection Project here: “Meet the Team“. With thanks to Daniel Clark for taking the lead in drafting this document.

Elucidating the meaning of deprivation of liberty orders: HHJ Burrows and local authority at cross-purposes on DOLS and care plans

By Celia Kitzinger, 10th October 2024

Update: The judgment has now been published (click on the link in the title of the case): Bury Metropolitan Borough Council v EM & Ors [2024] EWCOP 76 (T2). The judge refers to the protected party as “Emma” in that judgment, so I’ve amended this blog to reflect that. The published judgment provides a lot more detail about Emma’s background and history that we’ve covered in our blog posts and also sets out, in detail, the judge’s concern about the language and conceptualisation of deprivation of liberty. The key issue of being “on a DOLS” is addressed in paragraphs 45-62 of the judgment. I highly recommend reading those paragraphs in conjunction with this blog post.

This is a follow-up report on the case already blogged earlier (by Hita Jadeja): COP 14216532 before HHJ Burrows sitting in Preston: A Puzzling Application, Breach of Court Orders and Draconian Restrictions.  The “puzzling application” in that hearing was the Local Authority’s application to withdraw from proceedings, since they no longer considered it necessary for the court to authorise a deprivation of liberty for the person at the centre of the case. Neither the Official Solicitor, nor the protected party’s parents (both of whom are also parties), agreed: parties other than the LA believe that the care plan (which meets the criteria for ‘deprivation of liberty’) should continue – for now – in a modified version of its current form, a modified version that would continue to meet the criteria for ‘deprivation of liberty’. I watched the subsequent hearing in this case, around a month later, on 9th October 2024. The interaction in court very much revolved around the meaning and impact of ‘deprivation of liberty’ orders and their intersection with care plans.

I’ve not tried to be comprehensive about what happened in this hearing because the judge has said he will shortly be publishing a judgment, and that his judgment will focus on the meaning of Deprivation of Liberty: “I think it’s necessary for me to make some comments about understanding of what this court does and what its orders mean and what they do not mean”.  In reporting on this hearing, I’ve concentrated on what I think it was about this case that led the judge to consider such a judgment “necessary” – in particular the to-and-fro interaction between the judge and counsel for the LA, and the apparent cross-purposes at which they found themselves. The judgment will be the single authoritative voice of the judge, in a considered written form. The value of a blog post like this (in my view) is in capturing the live interaction which sparked that judgment. I’ll link to the judgment when it’s published.

Summary of the hearing

Briefly, the protected party, “Emma” (not her real name), is a young woman with diagnoses of “Autistic Spectrum Disorder” and “Attention Deficit Hyperactivity Disorder” – and possibly “Emotionally Unstable Personality Disorder” too (this was disputed). She’s clearly very vulnerable with a history of self-harm and suicide attempts. She’s subject to a restrictive package of care at her current placement which amounts to a deprivation of liberty which is currently authorised by the court. 

At the last hearing, the local authority (Bury Metropolitan Borough Council) sought the court’s permission to withdraw their substantive application (to deprive Emma of her liberty) on the grounds that her social worker has conducted a capacity assessment and found that her mental health has improved significantly at her current placement, and she now has capacity to make her own decisions about where she lives.  She’s keen to leave her current placement (with locked doors and windows and no freedom to go out unescorted) and to go to a less restrictive placement. The judge found the evidence concerning Emma’s capacity to be insufficient and (after considering whether an expert should be appointed, but finding this would take too long), he directed a capacity report from Emma’s treating psychiatrist.  

At the hearing I watched on 9th October 2024, the treating psychiatrist’s report on Emma’s capacity was now before the court. It says (in essence) that Emma has capacity to conduct the proceedings, and to make decisions about her care, and contact with her family, but does not have capacity to make decisions about contact with others.  On that basis, the local authority sought (again) to withdraw its application so that Emma could move to a new placement which would allow her considerable freedom (including leaving the placement unescorted): two possibilities have been located but neither (said counsel) would accept Emma if she were “under a DOLS”.

The Official Solicitor (Emma’s litigation friend, Francesca Gardner) does not accept the adequacy of the report from the treating psychiatrist: the assessment doesn’t set out the information provided to Emma or what she said during the course of the assessment; it doesn’t address her capacity to make decisions about where she lives; it doesn’t address the extent to which her capacity fluctuates.  Furthermore, at a subsequent Round Table Meeting at which the report was discussed, the treating psychiatrist gave additional information not included in the LA’s submissions.  She considers Emma’s capacity to fluctuate and that there are times that she lacks it; and she doesn’t consider that Emma is ready to move on from her current placement – that would be “premature” and “jumping the gun”.[1]

As an “inquisitorial” rather than “adversarial” court, counsel in the Court of Protection seem often to be working in harmony, even across differences in perspective.  In this case, though, there was some obvious antagonism and the Official Solicitor made clear that she has “significant concerns as to the conduct of this local authority, and the impact that that conduct is having on the decisions that are being made for [Emma]”.  She at one point interrupted her own complaint that “the Local Authority has not informed OS or the court that [the treating psychiatrist] has significant concerns”, to comment sharply on the LA’s barrister’s facial expression (“My Learned Friend may pull faces, but I ask her to reflect”). The LA had also (oddly!) objected to the treating psychiatrist being asked to assess Emma’s capacity to conduct proceedings, saying that this task fell to Emma’s legal representatives (even making an application for this to be considered “urgently” by the court!).  This, said the Official Solicitor, was “misconceived, obstructive and unreasonable”: on the basis of what I’ve seen in other hearings (s.49 – and expert – instructions to assess capacity to conduct proceedings are absolutely routine), I have to agree. 

The Official Solicitor asked (again) for an independent expert to be instructed – and this time the judge approved the appointment of Independent Social Worker, Mental Capacity and Best Interests Assessor, Eleanor Tallon, to address the care plan and Emma’s capacity on all relevant matters.  (I noted that he also mentioned at some point that Emma is a vulnerable person entitled to rely on the inherent jurisdiction of the High Court even if she does have capacity for some decisions.)

What is a ‘deprivation of liberty’ order? Some cross-purpose interactions

A lot of the hearing was spent with the judge questioning Julie Waring, counsel for Bury Metropolitan Borough Council, about why the local authority was asking to withdraw their application to deprive Emma of her liberty.  There was a series of questions at which the judge and counsel seemed to be at cross-purposes – and it is these exchanges, I imagine, that will have motivated the judge to produce a written, public judgment. I reproduce them here as best I can, based on contemporaneous touch-typed notes, since we are not allowed to audio-record hearings: note that they are unlikely to be 100% accurate.

LA: The local authority is seeking permission to withdraw the application. That is opposed by Official Solicitor who has requested permission to submit a further assessment of Emma – with a report that would not be available until the beginning of December, so we’re looking at another 12 weeks. So Emma would be subject to restrictions and DOLS for a significant period of time.

Judge: In what way would Emma’s care plan be affected by the decision I make?

LA: If our application is not withdrawn, the care plan would remain in situ.

Judge: So what does DOLS add to or subtract from the care plan?

LA: The restrictions.

Judge: But aren’t they part of the care plan?

LA: They are. That’s why we’re seeking to withdraw.

Judge: I’m having a déjà vu experience. Didn’t we have the same conversation at the last hearing? Forget “DOLS “ (it’s an ugly acronym) and think about the care plan. Is Emma allowed to come and go as she wishes?

LA: No.

Judge: And is that because it’s assessed to be not in her best interests to come and go because she may be putting herself at risk? In other words, forgetting the DOLS aspect, is it the position of the LA that it’s in her best interests to be escorted, or supported, when she leaves the placement? 

LA: Yes, but the care plan has been prepared because she’s under a DOLS

Judge: But hang on, care planning should be the other way round. Forget the DOLS for a moment. Is it necessary for this very vulnerable young woman with a history of extreme dysregulation, is it necessary for her to be subject to restrictions preventing her from leaving or not?

LA: The LA adopt the position that it’s not necessary. She’s made significant progress at [Placement]. [Runs through history of dysregulation incidents to illustrate diminishing severity and frequency]  It’s the LA’s position that, having considered the report of [treating psychiatrist], it’s not necessary, because she no longer lacks capacity.

Judge: I’m trying to avoid capacity at the moment. What I’m looking at is the care plan. I appreciate a care plan may be predicated on the need to make decisions for a P who lacks capacity.  But the current restrictions are that medications are locked up, windows and doors are locked, and she’s not free to leave – those are the restrictions LA feels no longer necessary?

LA: Yes.

Judge: So, regardless of any order I make, if the LA thinks doors should be open and she should come and go as she pleases, is that what’s going to happen whatever I decide?

LA: In the event that you accede to the LA’s request to withdraw the DOLS application, yes.

Judge: I don’t like the acronym DOLS it trivialises something extremely important. The deprivation of liberty this court authorises is a permissive not mandatory order. It means the local authority is able to deprive Emma of her liberty if it is necessary and proportionate and in accordance with the care plan. If I grant a DOLS it does not require the LA or anybody else to deprive that person of their liberty. That is something that has to be decided by the MDTs responsible for the care plan – including those responsible for looking after Emma on the ground.

Later there was this exchange:

Judge: So, most of the time, when she isn’t triggered by anything like a difficult episode with a co-resident, not only is she not challenging or injurious to herself, but she is also able to have reasonably frank and insightful conversations into her own circumstances. But there are situation – reduced by being at [current Placement] – in which she can become dysregulated and pose risks to herself?

LA: They are very few incidents now.

Judge: That’s because the care plan’s working, isn’t it. The care plan that’s going to be changed.

LA:  And the therapy and the work Emma has invested in herself.

Judge: I can’t make a longitudinal declaration, but I could make an anticipatory declaration of lack of capacity authorising those looking after her to use proportionate means. You’re not inviting me to do that?

LA: The LA is not inviting you to do that because it would hold Emma back in her aspiration to move on [to new placement which is not able – it has said – to implement these restrictions].

Judge: I’m not interested in that, to be blunt with you.  I’m interested in keeping her safe. I’m simply saying that, when she needs to be, she can be deprived of her liberty. It’s not mandatory but permissive. Why can’t she be subject to court authorisation which says if she is in need of restraint (like being kept in a particular place for a particular time) that can happen.  You’re saying if I made that order, she can’t move on.

LA: Maybe we can make enquiries of [candidate new placements] and they may be willing to take her on that basis.

Judge: We don’t know, do we. Also, [her treating psychiatrist] thinks, notwithstanding everything else, that Emma does lack capacity to make decisions about other people. What’s going to happen about that?

LA: Other professionals will work with Emma on that.

Judge: What does that involve?

LA: Social skills training.

Judge: If she meets someone who is likely to cause her harm, they can stop her from having contact with that person?

LA: No.

Judge: Yes, they can.

LA: Only if it’s in the care plan.

Judge: Well, the restrictions follow the care plan.

The judge was clearly concerned about Emma’s own perception of being “on a DOLS”. He said she “needs to understand she’s being looked after by professionals who I’m quite sure want to see her flourish” and being “’on a DOLS” is not her being put in a small envelope and filed away until someone makes enough fuss that she’s got out and had a look at”.  

Judge:  My concern is that the court is stigmatising her in her own mind – as if by the court making a permissive order it’s somehow acting as a jailer in the prison cell she doesn’t want to be.

OS: That is a fundamental misunderstanding of the function of the court – as though while this order is in place Emma must be deprived of her liberty. That is wrong in law. It is surely not beyond the wit of those involved to deal with an Order permitting them to provide care at the times when she needs it and to adopt the least restrictive approach. It is that which the Official Solicitor asks the court to approve.

Judge: It goes further than that.  I’ve been told the identified placement won’t take her if she is quotes “on a DOLS”. Well do THEY understand what that means?

OS: I suspect not. There is a good deal of misunderstanding and miscommunication. If you were satisfied that Emma’s capacity fluctuates and that when she lost capacity she could receive appropriate care, that would simply be legal protection for the care provider. It would be to assist care providers. That seems to be totally misunderstood. The Official Solicitor’s concern has been – I can’t stress enough the concern about the LA’s understanding in these procedures. They repeatedly say Emma is “on a DOLS”. She’s not “on a DOLs”. If permission were given tomorrow for door code so she could leave the placement,  or a key to unlock the door, that doesn’t require amendment to the Order. The Order provides for it. And there’s been a background of disagreement and dissenting voices relating to Emma – we didn’t know [the treating psychiatrist’s] views until the Round Table Meeting, or her mother’s views until this hearing. The LA hasn’t-  It’s the LA’s role to put that information before the  Official Solicitor and before the court and it has not. We’re having to search for it. 

Judge: What order would you like me to make? What do I say about the restrictions on Emma. She’s under constant supervision and control and not free to leave: it meets the Cheshire West test.

OS: The OS position is that there are reasonable grounds to believe that Emma lacks capacity,  and the up-to-date view of [the treating psychiatrist] is that Emma’s capacity fluctuates. We invite you to continue the Deprivation of Liberty Order but to make recitals on the face of the Order that it’s permissive and not prescriptive. On the evidence of [treating psychiatrist] and Emma’s mother, you can’t remove the Order.  And we invite you to instruct the Independent Social Worker and to require substantive and detailed evidence from the LA including risk assessment and a care plan and evidence that necessary conversations have taken place concerning what “deprivation of liberty” means.

Judge: As far as the DOLS issue is concerned, this is not a problem of the creation of social workers. This is a problem of the creation of lawyers, who use the term in what I regard as a flippant manner. It is simply approval of a care plan which the court regards as in best interests of the person. If a care plan is put before me, the Order would be led by care plan not by my own wish to incarcerate an 18-year-old girl – a wish I emphasise that I do not have. It’s very important to get back to care planning .  The social worker is committed and has had conversations with Emma’s mother but what is lacking here is a proper legal hand on the tiller of this litigation This litigation is about care planning.

Judical decision

The judge authorised the current care plan and Emma’s deprivation of liberty (“because the care plan does amount to a deprivation of liberty”) and appointed the independent social worker to carry out an expert assessment.  Picking up on a point from Emma’s mother, he also queried the contact restrictions between Emma and her family members:  “Emma enjoys contact with her family and enjoys being out.  If there are to be restrictions – formal or informal – they have to be very properly risk assessed and explained. If there is over-restriction on contact, then should be returned to me with some urgency.  I was asked at the beginning of this hearing  to remove ALL restrictions and let Emma come and go as she pleases, with whomever she pleases, so I can’t see how restrictions on contact with members of her family can possibly be sustainable”. 

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)

 

[1] Emma’s mother, also in court, expressed considerable anxiety about her daughter being in a residence with no restrictions at all: she’s “easily led”, “quite giddy”, “thinks in black and white”,  finds it “difficult to ask for help from people she doesn’t know” and there’s a risk of her daughter ending up “back at Square One”.  By contrast, the social worker in court expressed the view that Emma was happier, more confident and ready to move on.

A Puzzling Application, Breach of Court Orders and Draconian Restrictions

By Hita Jadeja, 9th October 2024

This case concerns a young lady (P) with diagnoses of ADHD and Autism Spectrum disorder and with a history of self-harm.  She is currently in a rehabilitation placement following treatment at a mental health hospital.  

HHJ Burrows heard the matter (COP 14216532) remotely via MS Team, on 9 September 2024 sitting as a nominated Court of Protection judge at the Sessions House, Preston.  I received both the video link and transparency order in good time.

Present on MS Teams were P’s social worker, a representative from an NHS Foundation Trust, two solicitors – P’s solicitor and her colleague, P, P’s parents and another public observer.  Barrister for the relevant Local Authority (LA) was Ms Julie Warring Oriel Chambers.  P’s counsel was Ms Francesca Gardner | 39 Essex Chambers.  (Instructed via her litigation friend the Official Solicitor) 

After the hearing I requested position statements from both barristers, I am grateful to Ms Warring for sending the LA’s position statement (PS).  

The Hearing

The judge interrupted the LA’s counsel right at the start of the hearing, as she mentioned a point raised during the pre-hearing discussions, saying that there were two observers present, it would helpful to provide a case summary.  I am grateful to HHJ Burrows as this allowed me to fully appreciate the hearing.

From the opening summary, I learnt that P had been detained by the police under s.136 of the Mental Health Act (MHA) following a suicide attempt in March 2023. She was then sectioned (detained) in a mental health hospital under s.2 MHA and remained there under section 3 for about a year until a suitable placement was secured.  At this point a DoLS application was made, the restrictions include: inability to leave the placement, locked doors and windows during dysregulated episodes, and having her medication locked in a cabinet. It also appeared that there were restrictions surrounding contact, although I didn’t learn about these until later in the proceedings. 

HHJ Burrows added that before the matter came to the CoP, the LA had made applications to the High Court under the inherent jurisdiction when P was a child.  He also said that the Official Solicitor (OS) has made an application for a costs order against the LA for filing documents outside ordered timescales.  I was interested to see how the CoP deals with non-compliance of court orders.  I have commercial litigation background, and in my field, this carries the risk of high-cost consequences and the court’s approach (depending on the why, seriousness and significance of the breach) is generally not lenient in granting relief from sanctions. 

The PS provided further background. P has been diagnosed with ADHD and ASC, emotionally unstable personality disorder and anxiety.  There is a long history of taking overdoses, cutting and several attempts at ligature strangulation.  The judge referred to previous applications made by the LA.  From the PS, I ascertained that the LA had made an application for an order under the Courts Inherent Jurisdiction s100 of the Children Act 1989 and a short interim DoLS order had been granted.   At the expiry of that order, it was acknowledged at the hearing, that as P was subject to an order pursuant to s3 MHA, the court did not have jurisdiction to make a DoLS order, and the LA sought permission to adjourn the application with liberty to restore (i.e to return it to court) should P regain capacity and a placement is secured, before turning eighteen.  

LA’s Application & Capacity Assessment

This is a summary of the concerns and questions raised by the judge in relation to the LA’s application to withdraw proceedings on the basis that P no longer needs to be deprived of her liberty.

The judge asked the LA’s counsel if it is their position that P can be cared for at a placement that does not require her to be under constant supervision and where she would be free to leave.  LA’s counsel stated, yes but at the current placement the restrictions will remain (locked doors and windows, medication locked in a cabinet and not free to leave) and her care plan is geared around having therapy and support staff.  

The judge replied: “But your case is that she does not require those restrictions. Then picture a situation where P says ‘I want to go out on my own’ – what happens then?”  If P’s care plan states that she is free to leave, then it sounds unlawful if it is not in her best interests to be deprived of her liberty.  

If the LA state that the DoLS is no longer required because she has capacity, “what I want to know, is if I acceded to your application and the case is dismissed, what happens to P?”

The answer to this was that P can remain in her current placement until she reaches twenty-five years of age, and if she wishes to remain there, she will have to sign an agreement consenting to the current restrictions.  The LA will continue to look for a less restrictive placement: two have been found, however they are out the area/town to where P’s family live. 

The judge asked, “If the DoLS is taken out, has the LA properly assessed that it is fine for her to leave the placement?” Counsel for LA answered in the affirmative.

HHJ Burrows said that the LA’s application to withdraw proceedings is based on a capacity assessment carried out by P’s social worker.  P has been assessed to have capacity with regards to her residence.  This implies that P understands her care needs because where she resides is intimately linked to the delivery of her care.  

This he said was confusing. P has had turbulent years with various mental health problems: she has emotionally unstable disorder, dysexecutive problems, fluctuating capacity and during periods of being unwell she poses a risk to herself.  Leaving the capacity issue to one side and looking at the care plan, if she insists on going out when she wants to, either alone or mixing with whoever she wants, would that not expose her to considerable risk?

Counsel for the LA explained that historically there was risk on a daily basis, requiring restraint and restrictions.  Since being at the placement P has made a lot of progress: the last incident of self-harm was in early August and P is now able to better regulate herself.  

The judge said that P resides in a placement that can support two people and can operate a care package that P needs, but I understood that the operating model of the placement is that P will be subject to the same restrictions in terms of not being able to leave the placement when she wants – as the other person can’t. The judge raised a concern about this.  “If you were locked in because the person you are living with needs to be locked in, would you want to live there?

LA’s counsel replied: “No. The LA are looking for an alternative placement“.  P has expressed that she wants to move to a place with less restrictions – more of a supported placement.  The LA are looking at placements where there is an open-door policy, where she can have guests over and have a package of care to support her needs.

The Judge then turned to P’s social worker and commented that the assessment does not consider P’s capacity in relation to care and treatment which is linked to her residence; or whether P understands her welfare needs, her mental health problems and whether she understands what it is to live in a supported placement.

He asked P’s social worker to explain what it means to remain at the placement with and without the DoLS.  The answer was, she is not free to leave: doors and windows are locked and restraint is used if required.  “What is the reason for P not being able to leave the placement at the moment?“. The social worker replied, “because of the court order”.

HHJ Burrows stated that the court is here to approve P’s care plan.  Her care plan comes first, how can her needs be met, then apply the DoLS.  The court has authorised the power to use DoLS but it has to be in her best interests.

The LA’s position essentially was that P has capacity regarding her residence and that she understands all the restrictions that come with the placement, including restricted contact with her family (mentioned in the section below).  The judge was not convinced that she understood all the restrictions that come with her placement and whether they are in her best interests.  He therefore ordered that a psychiatrist should be instructed to provide a capacity assessment and comment on all aspects – contact, residence, litigation, care and, that it may be prudent to instruct an expert.  P’s counsel agreed that all areas need to be assessed and that she did consider a section 49 report (obtaining an expert report of P’s capacity) but the timescales in which the OS wants the capacity evidence ruled it out.  The judge agreed, stating it currently takes between 8 -10 weeks.  It was agreed, for now, whilst not ideal, that P’s treating psychiatrist who is engaged with the placement can be instructed to carry out the assessment.

The judge mentioned that the OS has commented that there has been a lack of care planning. He said, this may be those rare cases where an independent social worker might have to be instructed.  The judge added, this was not a criticism of P’s social worker as he does not know, what advice or support she has been provided with.  LA’s counsel stated that they do not accept that there has been an absence of care planning and that the social worker sees P fortnightly.

The judge further commented that the LA’s capacity evidence is in a state of disarray, there is no evidence of P’s capacity around care and treatment and yet it is asserting capacity as the reason to withdraw proceedings.  He questioned the LA’s counsel: “if I accept your application, P will be given an agreement to sign to stay at the placement, which we know she does not like. What if P does not consent to it? What would you do?”

She replied, “it’s between a rock and a hard place”.  The LA have found two other placements with twenty-four-hour support where there are no restrictions but they are out of area.  HHJ Burrows said he does not know the details of those placements.

P’s Mother’s view and P’s wishes

P’s mother was concerned about P’s safety if all restrictions were removed and if she could do whatever she likes.  In her opinion, P has not gone through enough therapies to allow for that kind of freedom.  She also expressed that P is bored at the placement.  Her mother explained that at some previous point in time (when exactly was not clear) she could visit P nearly every day, however that has changed and is now limited to two days a week for two hours.  This only allows time to take P out for lunch and feed the ducks.  P would like to go shopping but there is not much in the area and due to the time constraints, she cannot take her out of the town or plan other activities.  Other family members are not allowed to take her out which they could previously.

P’s counsel informed the judge that P was present on the link with her solicitor but is uncomfortable to switch on the camera.  The Judge greeted her and informed her that he will speak to her after everyone has gone off the link. We heard a “hi” from P.

Given that P has capacity to make her own residence choices, it’s curious (said P’s counsel) that restrictions have increased – as mentioned by her mother and also, she is not able to see her aunty.  P wants the restrictions to be reduced and she wants more meaningful contact with her parents. She also wants to go to a music concert with her friends which is important to her – the LA should set out whether she can go alone or supervised, if not, then to provide written evidence to back up their position.

Towards the end of the hearing, P’s counsel informed the judge that he has explored all her concerns so she would like to leave the link when everyone else does.  HHJ Burrows remarked, “sounds like I am being brushed off”. “ In the nicest possible way”,  replied P’s counsel.

Conduct & breach of court orders

P’s counsel made it very clear that the LA’s approach was impossible to understand – ranging from their lack of engagement, to their non-compliance with court orders, and (now) pursuing an application to withdraw proceedings.  She asserted that there had been a lack of communication from the LA, e.g. delays were never raised in advance and every single direction within the court order had been breached, including delayed disclosure of documents such social care records that the OS had requested. She only found out about P’s capacity assessment four weeks after it was conducted.  She invited the judge to reject the LA’s submission that this was due to staffing issues and, that the social care records were in possession of the relevant NHS Foundation Trust and not the LA.  She said that their conduct has simply been deplorable which has directly impacted P as the case has not been able to move forward.  Therefore, a punitive sanction should be imposed.

From my notes I cannot tell whether the judge or P’s counsel made the following point: the LA’s conduct also puts P at risk – if she does not consent to signing the agreement, she can no longer remain at the placement, and this potentially leaves a vulnerable young lady with complex needs homeless.

The LA’s counsel apologised for the breaches, explaining that the solicitor dealing with the matter left, the social worker was on leave due to illness and it took some time before a locum solicitor was appointed.  Secondly, the LA was required to obtain a lot of information in a short period of time.  She put forward that the breaches were not wilful or due to misconduct so the sanction should not be punitive.

HHJ Burrows stated that when the directions were made two senior people from the LA were present, there was no disagreement about the timetable: in fact, it was applied generously.  There has been no application for relief from sanctions to extend the compliance time, nor has there been an application to vacate the hearing knowing that the OS is without the requested information.  If this was a civil case, you would simply have to pay costs.  The threshold is higher in the Court of Protection, but it may well have been crossed here.  

Judgment

The judge did not grant the LA’s application and said he would give a short judgment – almost bullet points.  

This is what he said. 

“I am not being critical of the professionals involved in this case but there seems to be systemic problem at the LA in terms of retention and interface between the social service and the legal department.  This has led to the position of hosting an hour and forty minutes meeting on how to get evidence to support the draconian measure against P.

I am somewhat bemused at the application to withdraw proceedings.  P needs security, I have a suspicion in my mind that she might not have the capacity about her residence and care, and the contact restriction with her family has to be justified.

Stating that P can go back to the placement even if she has capacity, reeks of inadequate consideration of care planning. The OS is rightly angered, that had the documents requested been provided in time, the OS would have made proper decisions about proceedings, what steps are in P’s best interests, and a new capacity assessment could have been done in domains including care, capacity to litigate etc.  

P is better mentally and because of that a capacity assessment was done, which only considered capacity in the narrowest sense.  Nothing about her volatile mental health state has been considered by the social worker. 

How can the LA come to court and make an application to withdraw proceedings, the effect of which is P can do whatever she likes.  The alternative is to remain and sign an agreement and consent to the restrictions, that is unsatisfactory, and for the LA leaves open to a civil liability claim. 

Understanding P’s needs and care planning cannot be done without proper assessment.  This confront me with a problem: an inhouse treating psychiatrist is not independent, although it is a good start. P’s capacity for residence and care are intertwined, but we also need capacity assessments in relation to contact with her parents, friends and other family members including her capacity to use other forms of communication including social media. A short instruction letter to the treating psychiatrist seeking her views, will do – a paragraph on each domain above is sufficient.  

The LA and social worker need to consider proper care planning factoring the outcome of the capacity assessment.  Too much use of DoLS in a flippant way is serious, care planning comes first then DoLS.  At the next hearing, I will consider whether an independent social worker and section 49 report is required.”

The LA has been directed to have an outline of their updated care plan ready for the next hearing.  HHJ Burrows had also asked the LA to file written submissions by 4.30pm on 16 September 2024 so he can determine on the costs order that the OS is seeking and he will give his decision in writing.                                                       

A hearing has been fixed for an hour to be held remotely on 9 October 2024 at 10.00am.  Another hearing is also scheduled for the same time so there may be a delay depending on which party is ready first.  

Final Thoughts

The Court of Protection is said to be an inquisitorial court, and this was definitely a very judge-led hearing.  Shortages of suitable care placements is well known but in my view the LA’s application showed little consideration of P’s welfare and rights: as such it was reassuring to see the rigour with which HHJ Burrows tested the LA’s evidence and how their proposed plan would safeguard P’s interests.

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.

Note: The judgment and quotations are based on my contemporaneous notes and not a verbatim account.

When parties don’t appear in court and judge goes ahead anyway: Appointing a professional deputy

By Georgina Baidoun, 4th October 2024

At 10.30am on 25 September 2024 I watched a hearing before DJ Ellington at First Avenue House, listed as below. 

Although listed as ‘in-person attended’, as with several other recent hearings, I had no difficulty in obtaining a link to observe remotely. It was a directions hearing concerning the appointment of a deputy for property and affairs and was timetabled to last all day. In fact, I watched only the morning session in which it appeared that there would be no need for further hearings. Certainly a decision was reached on the substantive matter although it might have been that the apportionment of costs remained an issue.

Appearing in the court were two representatives of the three parties concerned (not four as listed – see below). Mr Stewart-Wallace of Ten Old Square appeared for the applicant, EB, and another, whose name I did not properly hear but who could have been a Mr Machin, appeared for the two respondents, J-PE and MS.

I am afraid that I had the same hearing difficulties that I have experienced when observing previous attended hearings. Others say they have had similar difficulties (e.g.  The silent courtroom: A remote hearing without sound – and why transparency matters) and I have my own hearing problems. For this reason, I cannot pretend to give a blow-by-blow account of what was said or even be sure who the parties were. I think they were P’s sister and her two children. The listing shows a fourth party but on the Transparency Order ATR is P and EB is the applicant.

The issue before the court seemed relatively simple, although also rather unusual in my limited experience. There had previously been disagreement among the parties as to who should act as Court of Protection deputy for P’s property and financial affairs. As a result, an interim deputy had been appointed by the court and the application now was to make that appointment permanent. One of the parties, the original applicant for the deputyship, agreed with this but the other two were opposed. Their opposition was not to the principle of a professional deputy but to the particular appointment, and this was not because they had anything specifically against the proposed deputy but because they wanted more time to investigate her suitability. 

Application for an adjournment

The judge opened the hearing by noting that neither of the respondents was present, having requested that the hearing be adjourned. Their representative said that they were both abroad and, as it appeared later, had not requested a remote hearing until the day before. The applicant’s representative said he saw no reason for them to attend and, in fact, no reason for the hearing because there was no basis for opposing the deputyship appointment. The respondents’ position statement had only arrived the day before, however, and he had not had time to read it properly. 

I was surprised by how seriously the judge took the decision as to whether to adjourn the hearing. The respondents were, after all, represented in court by their barrister. She rehearsed in detail previous cases where hearings had gone ahead without one of the parties being present and, afterwards, I found these cases and extracted the parts to which she referred; they are included below.

The judge noted that the case had made no progress for a long time (the TO was dated March 2023) and the respondents had submitted no witness statements, but she also clearly felt she must consider seriously whether their presence was necessary for ‘a fair trial’. The applicant’s representative said he could not see what their presence would contribute. In any case, the use of the term ‘trial’ was itself questionable.

One of the respondents had submitted medical evidence to justify non-attendance and its status also became part of in-depth consideration (the case extracts below cover this issue too). There was a brief adjournment in which the respondents’ barrister attempted to get in touch with them to see if they could join remotely, even at this late stage. That attempt failed. 

When the hearing resumed, the applicant’s representative said that, during the adjournment, he had been able to read the respondents’ position statement properly for the first time. He reiterated that there was nothing at all in it that questioned the suitability of the deputy. The respondents had had quite enough time to instruct their representative. He also pointed out that the medical evidence, which referred to one respondent’s health issues and the stress that would be caused by the need to travel, was in another language with only an automated rather than certified translation.

The judge decided that the hearing should proceed. She reiterated the lack of progress to date, the interim deputy having been in post since July 2023. There had been several previous delays with at least one other hearing already having been adjourned. One respondent had provided medical evidence for non-attendance that she did not consider to be sufficient and the other had supplied no evidence.

The judge then referred to Section 1.1 of the Court of Protection Rules 2017 which says: “These Rules have the overriding objective of enabling the court to deal with a case justly and at proportionate cost, having regard to the principles contained in the Act.” It goes on to say:

(3) Dealing with a case justly and at proportionate cost includes, so far as is practicable—
(a) ensuring that it is dealt with expeditiously and fairly;
(b) ensuring that P’s interests and position are properly considered;
(c) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(d) ensuring that the parties are on an equal footing;
(e) saving expense;
(f) allotting to it an appropriate share of the court’s resources, while taking account of the need to allot resources to other cases; 

Further delay would impact dealing with the case expeditiously, imposing a penalty on applicants in other cases. It would also be against P’s interests as her estate was ‘not huge nor complex’ and the costs of continuing action would be taken from her assets . 

The respondents’ position was that their concern about P’s finances had caused significant stress and that they had not been convinced by a statement given by the interim, and now proposed permanent, deputy which had been provided to the court previously. They continued to seek reassurance about her performance. However, the judge said that they had provided no evidence to support their concern. She accepted that their representative had not been instructed for this particular hearing but he had been acting for them for over a year. The stress of travel would not have prevented a remote hearing and no timescale had been given for when the respondent with the medical certificate would be fit again. She was therefore refusing to grant an adjournment.

Application for the appointment of a deputy

Returning to the decision about the deputy, the respondents’ representative said that they felt they were ‘still in the dark’ about P’s affairs and would be happier with more information, referring to ‘everything in paragraph 12’, presumably of their position statement. They were not suggesting that the deputy’s hands should be tied but they wanted to be sure P’s affairs had been fully investigated and to have more information about actions already carried out. The judge suggested that she could order the parties to notify the court of their requirements in these respects and that she could then order the deputy to make a report, including progress towards making a statutory will. She was, however, concerned about the costs, which would come from P’s assets.

The applicant’s representative expressed his concerns about this idea, referring to the poor relationships existing between the parties and giving his view that it would be a ‘recipe for disaster’ for them to be communicating with each other and with the deputy outside of the court. He thought it would be particularly unfair to the deputy but the judge seemed not to give much weight to that, saying that she was a professional and presumably used to such situations.

The judge pointed out that, when deputies were appointed, they made a declaration to the court in respect of their responsibilities, which included making an annual report to the Office of the Public Guardian. This should be sufficient reassurance that they were conducting P’s affairs properly. The deputy named was on the Court of Protection panel of deputies which made her prima facie suitable to hold the position and she had previously summarized the actions she had already taken in a witness statement. Changing deputies at this stage would result in still further costs for P. Referring to the relevant sections of the Mental Capacity Act 2005, she pointed out that, if the parties had particular concerns once the deputy was appointed, they could raise them with the Public Guardian,.

The judge also asked if there was anything on file about P’s attitude to her family members that would help ascertain her wishes and feelings, given that there was no Lasting Power of Attorney and no will. Her doctor reported that she no longer knew who her family were but he had expressed the opinion that, if she had had mental capacity, she would have wanted all the parties to be deputies. The judge said that “Having the parties in attendance would have helped to get a better sense”. (I wasn’t sure where this fitted into the discussion since it had already been decided that none of the parties was to act as deputy. Maybe she was thinking ahead to how P’s affairs were to be administered and to the statutory will.

The judge concluded that she would order that the existing interim deputy be made permanent. She also decided that it would be disproportionately costly to P to ask the deputy to report to the parties. She would, however, ask that the deputy provide them with a copy of her annual report to the Public Guardian, unless it became apparent that this was not in P’s best interests. She would also order that the deputy should prepare a statutory will for P.

My thoughts

I was surprised that it seemed to be accepted that the parties, having failed to reach agreement among themselves as to who should be appointed deputy, should have a say in who the court should appoint as professional deputy and, with sufficient evidence, could have brought about a change. I thought the decision to proceed without the parties present was eminently sensible in the circumstances, given that it seemed unlikely that their presence would have contributed anything that was not already known. I can imagine, however, that the hearing would have been quite a lot livelier! 

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

Appendix: Case Law cited

Morgan & Anor v Egan

Morgan & Anor v Egan [2020] EWHC 1025 (QB) (01 May 2020)

21. The Morgans’ grounds of appeal were that the judge erred in that she: (1) gave insufficient weight to the medical and lay evidence before her and applied in an overly rigid way the authorities about the evidential requirements for adjournment applications; (2) left out of account or failed to give proper weight to the Morgans’ efforts to obtain proper medical evidence; …(4) failed to balance fairly the various factors in favour of adjourning the trial; …

51. For these reasons, I have concluded as follows:

Grounds 1, 2 and 4 are arguable and the appeal is allowed on those grounds. In summary: HHJ Sullivan erred in law and reached a decision that was not properly open to her in refusing to adjourn without seeking or permitting Mr Morgan to file further medical evidence. In the light of evidence filed subsequently, the error has been shown to be material. The judge should not have proceeded with the trial.

26. The only qualification to this is that, in reviewing the trial judge’s exercise of discretion, the appellate court must be satisfied that the decision to refuse the adjournment was not “unfair” in terms of Article 6 ECHR. This does not, however, mean that in any given situation, only one outcome is fair: Terkuk v Beresovsky [2010] EWCA Civ 1345, [18]-[20] (Sedley LJ), cited with approval in Solanki v Intercity Telecom Ltd [2018] EWCA Civ 101, at [32]-[35] (Gloster LJ).

Grounds 1, 2 and 4: The judge’s treatment of the medical reasons for adjournment

The following relevant principles can be distilled from the authorities:

(a) A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties: Teinaz, [21] (Peter Gibson LJ).

(b) However, the court must satisfy itself that the inability of the litigant to be present is genuine, and the onus is on the applicant to prove the need for such an adjournment: ibid.

(c) In considering the need for an adjournment, it is important to focus on the nature of the hearing and the role that the party claiming to be unfit is called on to undertake in it, bearing in mind:

(i) any reasonable accommodations (e.g. breaks, hearing evidence remotely etc.) that can be made to enable effective participation; and

(ii) that if the party is financially able to instruct legal representatives and able to give effective instructions to them, his absence may, depending on the facts, be of little consequence.

See Decker v Hopcraft [2015] EWHC 1170 (QB), [27]-[28] (Warby J).

(d) Generally, the court should adopt a strict approach to scrutinising the evidence adduced in support of an adjournment application on the grounds that a party or witness is unfit on medical grounds: Mohun-Smith v TBO Investments Ltd [2016] 1 WLR 2919, [25] (Lord Dyson MR).

(e) Where medical evidence is relied upon in support of an application for an adjournment, it should:

(i) identify the medical attendant and give details of his or her familiarity with the party’s medical condition (detailing all recent consultations);

(ii) identify with particularity what the condition is and what features of it prevent participation in the trial process;

(iii) provide a reasoned prognosis; and

(iv) give some confidence that what is being expressed is a reasoned opinion after a proper examination.

See Levy v Ellis-Carr [2012] EWHC 63 (Ch), [36] (Norris J), approved in Forresters Ketley v Brent [2012] EWCA Civ 324, [26] (Lewison LJ).

(f) Accordingly, a “sick note” may well be insufficient to justify an adjournment, particularly if it refers only to an unfitness to attend work. However, in considering whether that is so, the court must consider (i) the pressure under which GPs are working and the difficulties that may be faced by a litigant in person in obtaining more a detailed report and (ii) the frequency with which late, unmeritorious adjournment applications are made: Emojevbe v Secretary of State for Transport [2017] EWCA Civ 934, [31] (King LJ); Hayat, [41] (Coulson LJ).

(g) If the court is not satisfied as to the quality of the medical evidence supporting an adjournment application, the court has a discretion (not a duty) to conduct further enquiries – e.g. by seeking a fuller report in short order: Teinaz, [22] (Peter Gibson LJ); Solanki, [35]; Hayat, [42].

(h) If there is a challenge to the exercise of this discretion, it is incumbent on the challenger to show that the further enquiries would have led to a different decision: Hayat, [43].

General Medical Council v Ijaz Hayat

24. The Tribunal considered the application to continue in Dr Hayat’s absence on the basis of these three pieces of medical evidence (paragraphs 22 and 23 above). The relevant part of their determination is at paragraphs 15-19, in these terms:

15. The Tribunal notes that there is a burden on medical practitioners subject to a regulatory regime to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them.

16. It follows that where a medical practitioner seeks an adjournment of a hearing, on the basis that they are not fit enough to attend, then it is their responsibility to ensure sufficient evidence is presented to the Tribunal to establish that this is the case. The Tribunal is satisfied that Dr Hayat is aware of that responsibility, as a result of various communications with him.

17. The Tribunal considered the email sent on Dr Hayat’s behalf this morning at 08.55am and subsequent Statement of Fitness for Work for Social Security of Statutory Sick Pay sent during the course of the afternoon. This document indicates that Dr Hayat is not fit for work because of the following conditions:

This document indicates that Dr Hayat is not fit for work and does not suggest that he is not fit to attend and fully participate in these proceedings. It essentially reiterates the medical information from during the hospital admission.

18. The Tribunal considered that it can conclude on the basis of present information that Dr Hayat has voluntarily absented himself from this hearing. The Tribunal has therefore determined to accede to your application today to proceed in Dr Hayat’s absence.

19. The Tribunal is aware of its duty to ensure that proceedings conducted in the absence of the doctor are fair and to take reasonable steps to expose any weaknesses in the GMC case.”

68.Although there are one or two cases which put the emphasis on unfairness (see for example Terluk v Berezovsky [2010] EWCA Civ 1345), that emphasis is explicable on the facts of the cases themselves (Terluk was about an alleged breach of natural justice), rather than constituting a more general statement of principle. Moreover, I note that in Dhillon v Asiedu [2012] EWCA Civ 1020 at [33], this court explained why the Tanfern and Turluk approaches were “both consistent and analogous”. Baron J, with whose judgment both Arden and Davis LJJ agreed, said:

“Although the language in these two cases is entirely different, the foundation of the decisions is both consistent and analogous. The conclusions which I derive from the authorities are that:

a. the overriding objective requires cases to be dealt with justly. CPR 1.1(2)(d) demands that the Court deals with cases ‘expeditiously and fairly’. Fairness requires the position of both sides to be considered and this is in accordance with Article 6 ECHR.

b. fairness can only be determined by taking all relevant matters into account (and excluding irrelevant matters).

c. it may be, in any one scenario, that a number of fair outcomes are possible. Therefore a balancing exercise has to be conducted in each case. It is only when the decision of the first instance judge is plainly wrong that the Court of Appeal will interfere with that decision.

d. unless the Appeal Court can identify that the judge has taken into account immaterial factors, omitted to take into account material factors, erred in principle or come to a decision that was impermissible (Aldi Stores Limited v WSP Group Plc [2007[ EWCA Civ 1260. [2008] 1 WLR 748, paragraph 16) the decision at First Instance must prevail.”

69.I respectfully agree with that passage. I do not find any significant incompatibility between the two, a point which Mr Sarker appeared expressly to accept when he submitted that “there is no conflict between fairness and discretion”.

75. In summary, the decision to refuse to adjourn the hearing was a discretionary matter, properly made by a specialist tribunal on the basis of all the evidence. It was a decision to which the Tribunal was entitled to come. As I have already said, speaking for myself, I consider that it was the correct decision in any event.

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.