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

By Georgina Baidoun and Claire Martin, 8th August 2024

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

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

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

1. Transparency matters – by Claire Martin

Access to the hearing was as helpful as could be.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A: Thanks. I will have a look. 

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

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

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

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

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

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

[later]

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

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

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

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

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

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

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

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

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

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

By Amanda Hill, 6th August 2024

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

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

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

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

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

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

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

Background to this hearing

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

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

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

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

Transparency orders and how they impact families

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

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

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

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

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

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

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

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

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

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

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

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

Recurrent mistakes in Transparency Orders

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

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

(a) Prohibiting identification of  public bodies

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It clearly states that P should be identified by initials. 

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

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

Finally, s14.26 of the CoP Handbook (which I understand is guidance rather than binding like a Practice Direction) notes that “The Transparency Order is a public document and therefore P’s full name should no longer appear in full in it. Likewise the names of the parties should be ‘appropriately anonymised’; although as with judgments public bodies should be named in full.”  It seems to be a fair inference, therefore, that a TO should not include P’s address. 

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

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

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

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

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

Speaking out 

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

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

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

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

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

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

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

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

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

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

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

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

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

By Amanda Hill, 31st July 2024

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Transparency requires free and timely public access to skeleton arguments in the Court of Appeal

By Celia Kitzinger, 28th July 2024

Why were members of the public asked to pay £626 to read skeleton arguments from a case in the Court of Appeal?  

Not me. I got them for free after I asked the lawyers, one of whom asked the judges during the course of the hearing whether I could have them. The judges approved their release to me (in anonymised form) without mentioning any fee[i].  

But members of the public don’t normally have a “hotline” to the judges like this.  Few other members of the public know in advance who the lawyers are likely to be, and still fewer feel it’s appropriate (or even acceptable) to send them emails asking for their skeleton arguments.  Most people can’t count on the lawyers – and, as it turned out, at least two of the three judges – knowing them from previous meetings or by reputation, and apparently feeling positively disposed towards granting their request on that basis.  It feels as though my (free) access to the skeleton arguments was because I got special treatment.  While I’m grateful for the arrangements made for the Court Office to send me the skeleton arguments, that doesn’t translate into “open justice” or “transparency” for the public more generally.  

Many members of the public want to read to read skeleton arguments and have legitimate reasons for wanting to do so.  

This particular case (Re PC, 18 July 2024) concerns end-of-life decisions for a woman in a “prolonged disorder of consciousness”.   The other people who asked the Court Office for the skeleton arguments include: a consultant in rehabilitation; two PhD students from Cardiff University, one researching family experience of the Court of Protection and the other researching court end-of-life decision-making; an academic researcher specialising in prolonged disorders of consciousness; and a staff member of the charity Compassion in Dying, that works to improve healthcare policy at the end of life. Most of them had watched at least part of the hearing as it was happening, live, but had been unable to follow it without the skeleton arguments – a problem I also experienced.

All these people – and, as far as I know, all other members of the public who asked the Court Office for skeleton arguments – were sent a letter telling them to make a formal application, and pay an application fee of £626[ii].   

This is an extract from the email.  It quotes Master Bancroft-Rimmer, a senior lawyer in the Court of Appeal[iii], who seems to have been consulted by court staff before they responded to requests from the public: 

“If you wish to apply for a copy of the skeleton arguments from the court file, you are required to make a formal application for permission, pursuant to CPR 5.4C (2) and PD 5A, paragraph 4.3, on an application notice (form N244) with the court fee of £626 or a fee remission certificate.” 

This response raises virtually impenetrable barriers to transparency and open justice.  

Cost as a barrier to transparency

Charging the public £626 to even ask for the skeleton arguments pretty much blocks the request. It’s an outrageous amount of money to expect people to pay for the chance of getting to read three electronic documents (around 20 pages each) which, in this case, have not only already been prepared for the court, but have also been anonymised – on judicial instruction – and lodged with the Court Office.  

Nobody who got in touch with me about this even considered paying up. I wouldn’t either!  Some people gave up at this point and that was the end of “open justice” as far as they were concerned.  

There were some suggestions for ways around the problem. One person decided to write direct to the lawyers, bypassing the Court Office, in the hope of obtaining the documents for free from them.  Another suggested finding someone eligible for the “fee remission certificate”[iv] mentioned in the email who’d be willing to apply without having to pay, and who would then share the documents with others who wanted them.  I’m not sure whether that would be lawful, or what conditions are (or could be) attached to documents we receive from the court. 

Since I’d already received the skeletons (for free),  I wrote to the Court Office myself, asking if I could get the court’s permission to share them. I was told on Friday 26th July, a week after the hearing, that  the judges who heard the appeal have confirmed that I may share my electronic copies of the redacted skeleton arguments with colleagues and members of the public.  If you want them (for free!), email me via the Open Justice Court of Protection Project contact form (here). 

It’s a pragmatic workaround, under the circumstances, but not a good model for transparency in the future.  It can’t routinely be me who supplies the public with free skeleton arguments from the Court of Appeal.  

Procedural requirements as a barrier to transparency

Even supposing that members of the public were willing to entertain the possibility of paying £626 (which we clearly are not), there’s also the challenge of finding the right form and working out how to fill it in.  

A competent google search on the alphabet soup of initialisations in that email from Master Bancroft-Rimmer (“CPR 5.4C (2)”, “PD 5A”, “N244”) does yield – at least for me – the relevant information.  It undoubtedly helps, though, that I already know that “CPR” stands for “Civil Procedure Rules” and “PD” stands for “Practice Direction” – and I’m already familiar with these rules and directions, so perhaps my google search was “customised” to find them again quickly[v].  Nobody else who’d asked for the skeleton arguments was confident of what exactly they needed to do to apply for them, even if they had been willing to pay the fee.

Lawyers don’t seem to realise how challenging their taken-for-granted terminology can be for the rest of us.  Even phrases like “pursuant to” (used by Master Bancroft-Rimmer) are opaque to many people.  Looking back at the email, there are fairly obvious ways in which its content could have been expressed in Plain English, more appropriate for the non-lawyers to whom the email was sent.  It would also have helped to send a link to the relevant form to fill in.  Some attention to accessibility would at least create an impression that the court was seeking to facilitate transparency, rather than putting insuperable barriers in our path.

Form N244 is relatively accessible, at least by comparison with the Rules and Practice Directions, and it comes with “Notes for Guidance” supplied.  But it seems more suited for applications from parties to vary or set aside a judgment, or to adjourn a hearing (examples given in the Guidance) than for requests from the public for skeleton arguments.  I can see the form could be used to request a skeleton argument, but it’s clearly not designed with that purpose in mind. Members of the public confronted with Q3 (“What order are you asking the court to make and why?”) said things like: “but I’m not asking the court to make an order – I’m just requesting the skeleton arguments”). This form is yet another barrier to open justice.

So, in this case, there was opaque and off-putting signposting from Master Bancroft-Rimmer as to what procedure members of the public should follow if they wanted to pursue access to the documents; and the relevant form is ill-designed for that procedure.

Delay as a barrier to transparency

I only obtained the skeleton arguments for this appeal after the hearing had finished.  

At lunchtime, I gave up watching the live hearing because I couldn’t understand what was going on.  

Without the skeletons, I had no idea – after two and a half hours of watching the applicant barrister make oral submissions – what the grounds of appeal actually were. That’s fatal to any adequate understanding of an appeal hearing!

There were two different reasons why I didn’t receive the skeleton arguments in a timely fashion.

First, because the Civil Procedure Rules require barristers to ask the judges’ permission before sending skeleton arguments out to anyone (like me) who isn’t an “accredited” court reporter.  They didn’t get the opportunity to do that until 2.00pm on the day of the hearing.

Second, because the judges decided, perfectly reasonably, that the skeletons should be released to me only in redacted (anonymised) form, without the names of people whose identities are protected by the reporting restrictions[vi].  The problem was that the legal teams had not already prepared anonymised skeletons for the public, so they needed to redact them before sending them to me.  Counsel for the ICB, Rhys Hadden, was aware of the problem: he said: “I don’t know if it’s feasible for it to happen as I’m on my feet (“on my feet” means “while I’m standing up and making my submissions to the judges”)  but in any case, we can do that and otherwise we may send them at the end of the hearing”. (2mins 57 secs,  Part 2, Re PC).

Non-availability of redacted skeleton arguments has been a problem before for observers in the Court of Appeal.  I blogged about it here: How not to do open justice in the Court of Appeal.  The published judgment in that case – in which both an “accredited” journalist and  I were denied access to skeleton arguments during the hearing, because they hadn’t been redacted in anticipation of our requests, includes this paragraph: 

 “Regrettably, however, and in breach of the requirements set out in para 33 of PD52C, the parties’ open skeletons were not all formulated in a way they considered suitable for disclosure to court reporters. As a result, the court was unable immediately to meet requests by two observers to provide the skeletons, and it was more difficult for those observers to follow the arguments during the hearing. In future, this is a point which should be considered by the parties and the court during preparation of an appeal.“ (§23, In the matter of P (Discharge of Party), [2021] EWCA Civ 512

Yet here I was, three years later, in the same position – listening to a hearing I didn’t understand because I hadn’t yet been able to access the skeleton arguments.

On receipt of the applicant’s skeleton argument, the grounds of appeal became pellucidly clear: each of the four grounds of appeal is numbered and given a heading in bold, followed by a clear exposition.  So then, I was able to watch the recorded appeal hearing on YouTube, and it all made perfect sense.  But I should have been given the resources I needed to make sense of it at the time. 

The delay in sending me the skeletons was a delay in open justice.  

Open justice delayed is open justice denied.

Why timely public access to skeleton arguments is essential for transparency

As a seasoned court reporter (I’ve watched more than 550 court hearings), I was very well-placed to be able to understand the Court of Appeal hearing as it unfolded in real time.

I’d already watched this case in the Court of Protection, blogged about it (here) and read the judgment that was under appeal (NHS North Central London Integrated Care Board v PC & Ors [2024] EWCOP 31 (T3).   Additionally,  the matter of best interests decision-making in relation to clinically assisted nutrition and hydration for people  in a prolonged disorder of consciousness is at the centre of my work as an academic scholar[vii].  

Given this background, I expected to write about the hearing as it was happening by live-tweeting on Twitter/X, so that other members of the public could learn what happens when a Court of Protection case reaches the  Court of Appeal.  Instead, my only live tweets were about the failure of open justice.

After the hearing was finished and I’d received the skeleton arguments, I also tweeted the four grounds of appeal as revealed by the applicant’s skeleton argument. It cannot possibly be against the law (I decided!) to publish the grounds of appeal from a court hearing held in public. (Tweet thread is here: https://x.com/KitzingerCelia/status/1816722272020836852)

Listening again to the applicant’s submission on the recording with the skeleton in front of me, I can see the problems I faced: 

  • The first ground of appeal (“declining to adjourn to obtain expert medical evidence”) is pretty much unrecognizable from the way it was presented in court, where it appears (without the skeleton) to be an extended complaint that the second-opinion medical witness had changed his mind (about the patient’s likely experience of pain) and failed to comply with the national Guidance. 
  • The second ground for appeal (“conducting an assessment of PC’s experience of pleasure”) was alluded to, but never separately articulated or identified as a ground of appeal.
  • The third ground of appeal (“failing to determine the relevance of covert consciousness”) was presented in a form I understood at the time. 
  • The  fourth ground of appeal (“deciding that it was appropriate to cease CANH for someone with a low burden of care who had expressed no wishes not to have care”) –  which is the one applicant counsel started his submissions with – was confusing for an observer who didn’t have the skeleton because of frequent interventions from the judges which derailed its internal logic.  

None of this is to be critical of the advocate concerned.  His oral submissions assumed – as he was of course entitled to assume – that the judges had all read his skeleton and so he didn’t need to repeat the information in it.  As a result, I was lost. I had no idea even how many grounds for appeal there were, let alone what they were.

This experience drives home precisely the extent to which “The availability of skeleton arguments […] deployed in open court hearings is essential to any meaningful concept of open justice” (Nicklin J in Hayden -v- Associated Newspapers Ltd [2022] EWHC 2693 (KB) [32]).

What can be done?

As far as I can tell, everything done by the lawyers, the judges, and the court staff both in relation to my request (which resulted in the skeletons eventually being sent to me for free) and in relation to other members of the public (who were told to formally apply and pay £626) was in accordance with the rules and practice directions.  

Everyone followed the rules.  It’s the rules that are the problem. The rules themselves undermine the judicial aspiration for transparency. They need to be changed.

Abolish the distinction between “accredited” and other court reporters

First, the rule that says the public have to apply to the Court for permission to obtain the skeleton arguments should be abolished.  We should be entitled to skeleton arguments (which should be prepared in advance in anonymised form) as of right on the same basis as “accredited” court reporters (which means people with a relevant court security pass or journalists with a  “press pass”).  Like these “accredited” court reporters, we should be supplied with skeleton arguments on request before the hearing starts.

It’s simply impossible for the court to achieve the judicial aspiration for transparency so long as the rules continue to make an outdated distinction that privileges some court reporters  (in particular the subset of journalists who are “accredited”) over the rest of us when it comes to access to court documents.  

Mr Justice Nicklin, Chair of the new judicial Transparency and Open Justice Board ,said in a lecture earlier this year:  “Developments in society, and in communications, mean that where journalists once sat in Courts, now sit a new breed of court reporters. Often representing or reflecting particular interests, they are providing welcome additional eyes and ears of the public in reporting what takes place in our Courts and Tribunals.”(Newcastle-upon-Tyne Law Society Annual Lecture 2024 )

But the unwarranted distinction in Civil Procedure Rule 5.4C between “accredited law reporters and accredited media reporters” on the one hand, and those of us who are neither lawyers nor journalists on the other, actively impedes this “new breed of court reporters” from doing the work of transparency and open justice. 

Develop a clear procedure for access to skeletons by people watching via live-stream or recording

Civil Procedure Rule 5.4C seems to presume an in-person hearing, with court reporters attending in person (see §33)[viii]. This clearly needs updating.

The implication in the Rule is that paper copies of skeleton arguments will be supplied to “accredited” reporters and it’s stated that anyone else wanting copies must make an “oral” application (§33(5)).  This clearly needs updating since it must recurrently be the case that more people are observing live-streamed hearings via YouTube than in the physical courtroom.  We need to be sent electronic, not paper, copies of documents and we cannot make “oral” applications for them since we have no “oral” access to the courtroom when watching a hearing via YouTube.  Nor is there any advertised provision for us to email the Court to request skeleton arguments in advance of the hearing, nor any space provided at the start of the hearing for us to have emailed applications for skeleton arguments heard. This rule is simply not fit for purpose in relation to court reporters observing remotely.

I’m told that the procedure for making skeleton arguments available to non-parties in digital form is currently under review. I don’t know if that review is limited to the Court of Appeal or if it’s a wider review, and I haven’t been consulted as part of this review (if any court reporters have been consulted, I’d love to hear from you).

I hope the review includes consideration of the basic requirements to get this to work in practice. At best, this would involve placing all the anonymised skeletons and other open-access documents on the dedicated Court of Appeal website alongside the case summary and YouTube link so that they can be downloaded by anyone (“accredited” or not) who wants them.  I don’t think any of the courts does this – although I have seen skeletons posted on legal and campaigning websites and links to them from social media  (with or without the need for court approval, I’m not sure): take a look at some in the footnote.[ix]

Failing that, and at a minimum, there should be public information that skeleton arguments are available, how to access them, and prompt response to requests in advance of the hearing.

In conclusion….

There are some very positive aspects of transparency in the Court of Appeal.  Live-streaming (which is like watching a live television programme) is massively preferable to the Court of Protection’s use of MS Teams or Cloud Video Platform, which involves sending out links and logging in, and all the challenges of video-platforms.  It’s also really positive that hearings are recorded and made publicly available on YouTube (see https://www.judiciary.uk/live-hearings/re-pc/).

But it turns out that simply watching the Court of Appeal hearing – either live or on the recording – is not in and of itself sufficient for transparency.  

I very much doubt that the importance of skeleton arguments to the understanding of a case comes as any surprise to judges or to lawyers.  The matter has been repeatedly raised in key judgments over the years (e.g. Cape Intermediate Holdings v Dring [2019] UKSC 38).

It’s time to fix it. Fixing it will require collaboration between the judiciary, lawyers, and HMCTS, in consultation with court reporters, to figure out how best to deliver on transparency with regard to skeleton arguments. 

In the short-term, I would like to see judges take responsibility for ensuring that skeleton arguments have been anonymised in advance of hearings, that they are lodged with the Court Office, and that court reporters (accredited and otherwise) know how to get hold of them in a timely fashion, and without a charge. This might mean taking up a few minutes at the beginning of the hearing, after dealing with reporting restrictions and before moving to the substantive business of the hearing.  

I’ve also raised the matter with the judiciary’s new Transparency and Open Justice Board and await developments. 

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 550 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia

[i] You can watch the lawyer, Rhys Hadden, Counsel for the ICB, asking the judges, and see their responses in the YouTube video recording of the hearing – right at the beginning of Part 2, which covers the afternoon session. Part 2 Re PC YouTube video)

[ii] I think the fee is taken from here: https://www.gov.uk/government/publications/court-of-appeal-civil-fees-form-200/civil-appeals-office-fees-from-1-may-2024 (Thank you to Zena Bolwig who responded publicly to my Twitter enquiry as to how this fee could have been arrived at.)

[iii] The role of “Masters” in the Court of Appeal Office is outlined here: https://www.judiciary.uk/guidance-and-resources/judicial-authority-of-court-officers-in-the-court-of-appeal-civil-division/

[iv] I googled this and discovered the rules for obtaining a “fee remission certificate” are here: https://www.gov.uk/get-help-with-court-fees

[v] “CPR 5.4C (2)” means Civil Procedure Rules Part 5, which is called “Court Documents” (https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part05).  The rule referred to here is Rule 5.4(C),  “Supply of documents to a non-party from court records” (https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part05#5.4C).  “PD 5A” means Practice Direction 5A (https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part05/pd_part05a) which is a supplement to Part 5 of the Civil Procedure Rules and deals with court documents.  The form “N244” is here: https://www.gov.uk/government/publications/form-n244-application-notice

[vi]  It’s somewhat ambiguous (at least to me) whether the judges gave permission at this point for the skeletons to be released only to me, or more broadly to observers generally.  The rules indicate that each “non-accredited” court reporter is required to ask individually, and to give their reasons for wanting the skeletons.  I believe I was the only such person with a request before the judges at the time the decision was being made.  LJ Bean said  “Subject to redactions being made, there’s no reason why skeletons shouldn’t be released, certainly to Professor Kitzinger” (2:46 mins into Part 2  Re PC). It may be that if asked by counsel they’d have confirmed at this point that they could also have been released to other members of the public – but that question was not raised.

[vii] I’m co-director of the Coma and Disorders of Consciousness Research Centre at Cardiff University. l also served on the British Medical Association core editorial group that produced guidance on clinically assisted nutrition and hydration and on the Royal College of Physicians Guideline Development Group that produced guidance on prolonged disorders of consciousness.

[viii] This is odd, given that there is a note at the bottom saying the Rule was updated in April 2024, by which time there had been probably hundreds of live-broadcasts from the court. Live-streaming of selected cases in the Court of Appeal began in 2019 to improve public access to, and understanding of, the work of the courts. For more information, including links to upcoming life-streamed Court of Appeal cases, see: https://www.judiciary.uk/the-court-of-appeal-civil-division-live-streaming-of-court-hearings/

[ix] Here are a few examples from Twitter/X.

The Court of Protection at its best?

By Georgina Baidoun, 24th July 2024

The Open Justice Court of Protection Project posted the following alert on X and I felt I should rise to the occasion, given that the appointment of deputies for property and financial affairs is my particular interest area. The court listing isn’t specific about the type of deputy but there are very few appointments of health and welfare deputies.

According to the Transparency Order, AL, the protected party, was the applicant. TL was the respondent. I’m afraid that order of things didn’t make a lot of sense to me in the context of the current hearing, but perhaps it reflects the history of the case. Neither party had legal representation. 

The judge explained that she had arranged this hearing so that she could explain the actions she was going to take, rather than TL simply receiving a piece of paper. She didn’t anticipate that there would be any need for further hearings. 

From the conversation that took place between the judge and TL (there was no opening summary and I did not request position statements, given that the parties were unrepresented), I put together the following likely scenario, but relationships were not clarified and nor was the background to the two essentials in the case. The first was that P was the subject of on-going county court insolvency proceedings and the second was that he had been assessed and found to be lacking in capacity to manage his property and financial affairs and the judge was about to make an order to that effect.

It seemed likely that TL was P’s wife. Since P was being treated in an NHS neurological facility, it also seemed likely that he had been subject to a catastrophic event, especially as the judge referred to the fact that he would be assessed again, possibly in 6 months’ time, when his capacity might have improved. 

TL had applied to become the COP deputy for P’s property and financial affairs and also sought permission to raise an immediate loan to be secured on P’s home (which they jointly occupied and might have jointly owned). It was the judge’s opinion that, with all ‘the additional matters that TL was handling’, the best solution at present would be to appoint an interim professional deputy who would work in P’s best interest, which would also include helping TL. The problem was that there was no money to pay a deputy and the judge was therefore exploring the possibility of employing one who would agree to being paid after the house was sold. Selling the house and downsizing was the longer-term goal but that would require a ‘trusteeship application’.

TL was in contact with a mortgage broker to arrange a loan and was hoping that the judge would give approval for that at this hearing. She wanted to know what information she could share and with whom. The judge agreed that it would be sensible to share with everyone concerned the judgment that P lacked capacity to manage his property and financial affairs. She hoped that the urgency for arranging a loan could be avoided if the impending insolvency hearing was postponed. That was not a matter for her but she hoped the county court judge, with whom she had been in contact, would make that decision once he was informed of the capacity judgment. The priority now was to appoint an interim deputy but no order could be made to that effect until someone could be found who was prepared to undertake the role.

My thoughts

I was very impressed by the sensitivity of the judge in this case. She chose to hold a hearing so that a conversation could take place and so that she could explain what actions she had taken and would be taking to make progress. There was no suggestion of differences of opinion, simply a desire to make what must have been a dreadful situation for TL as manageable as possible.

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

Anonymising P and his family in the courtroom: An unnecessary and unhelpful precaution

By Amanda Hill, 21st July 2024

This blog is about an all-remote hearing before a judge (HHJ Brown) who ruled – very unusually for a Court of Protection hearing – that no parties’ names should be used in the course of the hearing. She asked for the protected party (P) to be refered to with an initial all the time, rather than by his first name.  She directed that P’s mum should be referred to as ‘Mrs A’ throughout. All place names were to be anonymised too.

The judge made this decision because there were observers present, even though we had all received the Transparency Order.  In my view, this decision, made with the best of intentions to protect the family’s privacy, had a negative impact on the hearing. It’s the first time I’ve ever seen a judge do this. I hope that I don’t see this unusual decision again. 

Background to the hearing

The case (COP 12219141) has been blogged about before: COVID-19 vaccination with sedation: Instructing an expert. When it was listed as back before the court, this offered an opportunity to find out what had happened since the last hearing. A message was posted on the Open Justice Court of Protection’s Observers’ What’s App group to see if anybody could observe it[1] and four people, including me, were available and requested the link in the usual way, as outlined on the OJCOPP website. The hearing was listed for one day and was due to start at 10am. 

From the previous blog, I knew that P has a learning disability, Down’s Syndrome and autism. Although that blog was about whether P should receive the Covid vaccination, the situation for this hearing was different. It turned out to be a hearing to do with P’s residence and care,  and contact with his mother.  P’s mum wanted him to go and live with her rather than in supported living. If he couldn’t do that, she wanted increased contact with him (her contact is currently restricted by the court) and she also wanted certain elements specifically inserted into his care and support plan. P’s mum, whom I shall refer to as Mrs A, (as the previous blog has already referred to P as DA) was present and gave oral  witness evidence and was subject to cross-examination. A Social Work Team Leader also gave oral witness evidence.

The judge’s reaction to observers attending the hearing

P was represented via his Litigation Friend the Official Solicitor by Bethan Harris. The Local Authority was represented by Kate Round and Kate Mather represented P’s mother.   Celia Kitzinger emailed requesting everyone’s position statement. Position Statements set out the position of the respective party and usually greatly enhance understanding of a hearing. The issue of the position statements came up at the start of the hearing as in response to Celia’s email one of Counsel checked with the judge whether they could be provided to observers.

At this point, the judge decided that all observers could be provided with the Position Statements but that they should be anonymised first. She actually read out the names of the four observers to whom the Position Statements should be sent. This meant that the legal teams had to spend time during the lunch break anonymizing the Position Statements but it also meant that we received them before the hearing started again after lunch, and so we had the chance to read them and understand more about the issues at hand. This was very beneficial for open justice.

However, the judge also decided that no names or place names should be used in course of  the hearing itself. This was very unusual. It’s not something I have seen before in the hearings I have observed. And Celia confirmed to me that she has observed over 550 hearings and has never seen a judge take such action. 

Impact of the  judge’s decision  

(i) Impact on the hearing – a person-centred focus? 

The judge was acting with the best of intentions, to protect P’s privacy. However, it was clearly an effort for everybody to remember to use ‘P’ instead of his name.  I got the impression that it was very hard for Mrs A to hear her son talked about as P and indeed for her to use that term. She was very emotional anyway, and she seemed to hesitate before saying P, as though it was an effort to remember to do that. I felt that it was dehumanizing, reducing her son to an initial. 

It was clear to see during the hearing that it was already a very difficult situation for her and I believe that the additional worry of thinking about having to refer to her son as P and listening to him referred to that way made her feel even worse. At times she was crying and she was finding the hearing difficult. It was an extra effort for all the participants not to identify P by name, and sometimes of course his name slipped out (as I had guessed it would), including by the social worker team leader who was a witness. 

In my opinion,  it added a degree of additional stress for the witnesses, who are probably not used to appearing in Court of Protection hearings. I also wondered what the impact would have been on a P themselves if they had been in court.

(ii) Impact on observers 

Speaking for myself, observing the hearing felt very uncomfortable. I was conscious that because of my presence the judge had made a decision that was making the hearing more difficult for those involved. If there had been no observers, those present would not be worried about naming P – the judge had made this decision solely because there were observers present.  Maybe for legal teams and professionals the impact would be less, but I suspect that they also would prefer to have named P. However for his mum I felt the situation was unbearable. She was struggling with her emotions and having to remember not to name her son surely added a degree of extra tension and stress. I felt bad that my presence had contributed to that. And I also felt that it was an unnecessary action by the judge to have taken, as though we weren’t trustworthy and that we wouldn’t adhere to the Transparency Order. 

(iii) An over-reaction? 

Observers are subject to Transparency Orders. This means that when we publish something about a hearing, restrictions are placed on us as to who and what we can identify. If we don’t follow the provisions in a transparency order, we can be found in contempt of court. So even if P’s name had been openly used in court, I would not be able to name him or publish any other identifying information. 

One of the barristers, Kate Round, recognised the force of the transparency order on observers, and at one point she deliberately named the care home where P had lived at one time. She did this at a time when Mrs A was upset, and I may be wrong but I felt that she did it to make it easier for Mrs A. She said “Do you remember when P moved to LR (fully named in court) – I’m going to name it, everyone knows there is a transparency order…..”. This was a recognition that even where names were used in court, observers would not be able to refer to them in anything published after the hearing. So there are already rules in place to protect P’s privacy and I would question whether it was really necessary for the judge  to impose additional restrictions in the hearing itself – restrictions that in my opinion made the hearing more difficult for those participating. Maybe it comes down to a training issue for judges, as Her Honour Judge Brown was not obstructing open justice and had welcomed us into her courtroom and ensured observers were sent (anonymised) Position Statements . It  seemed to me to be overly cautious.  Despite the fact that P’s name is routinely used in court hearings, I am not aware of any instances over the last four years when observers have breached the transparency order forbidding publication of P’s name. So, the system seems to work well as it is, without this additional precaution.

One contrasting approach is that of Mr Justice Hayden. He insists that a person’s name should be used, and that anything else would be dehumanizing. He makes clear that the transparency order prevents observers from identifying P, their family and where they live. This is a neat and simple solution. Going further in a hearing to protect P’s privacy is therefore unnecessary. 

Open justice in the Court of Protection has come a long way since Celia Kitzinger and Gill Loomes-Quinn launched the OJCOPP in June 2020. Most judges are making it easier for observers to attend court proceedings and more observers are coming forward. However, this hearing showed that there are still improvements that can be made, not least in how judges assess what it means to have observers in a hearing.  

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

[1] The Open Justice Court of Protection Project runs monthly webinars on how to observe a CoP hearing and those attending can ask to be added to the WhatsApp group. The purpose of the group is to alert members to upcoming hearings and for core team members to provide support observing if needed and possible. I was not able to join for the whole day due to other commitments. Celia Kitzinger has kindly allowed me to use her notes from the part of the hearing I didn’t observe.

Appointment of a Deputy – and some good news for transparency

By Georgina Baidoun, 16th July 2024

I was interested in this hearing (COP 13826049) before DJ Griffiths sitting at Exeter on 11th July 2024 because it was listed as concerning the appointment of a deputy for property and affairs.

Before the hearing began

I was surprised to find that the Transparency Order I was sent in advance of the hearing  did not mention a Deputyship but said:

(3) The attended hearing is to be listed as follows: 
a) Where KW should live; 
b) Authorising a deprivation of liberty 

The explanation became apparent during the hearing but I afterwards saw that the court administrator had responded to my query saying “the issue of where P will live is not before the court today, only the Deputyship issue that has arisen”.

In fact, the procedural issues were at least as interesting as the substance of the hearing and it was another good day for open justice.

When the hearing was about to begin, it was noted that one participant was having difficulty joining. The judge said that he had himself had a similar difficulty! It was agreed that, while waiting for this participant, the barrister for the Local Authority, Matthew Angus, would summarize for me what had happened previously. The judge did not ask me if I had received the transparency order and whether I agreed to abide by it but he did assume that I was there on behalf of the ‘transparency project’ (by which I took him to mean the transparency project called the Open Justice Court of Protection Project rather than the Transparency Project, which specialises in Family Courts), to which I assented.

The story so far was indeed mainly concerned with health and welfare issues. P was a man with learning disability who needs care under the ‘Care and Support Act’, which I think is now the Care Act 2014, clinging on to its old name for those who have long worked in this area, as Mr Angus has done. There were two of P’s family members involved in the case, his mother and his brother, although neither were joined as parties or in attendance. Three members of the local authority were in attendance but did not participate. Others in attendance were a barrister and a solicitor acting for P on behalf of the Official Solicitor in the health and welfare aspects of his case.

Previous hearings had been concerned with where P should live and constraints on contact but also, in January 2022, with an application by the local authority to be appointed Court of Protection deputy for P’s property and financial affairs. The issue referred to in relation to that hearing was the need to obtain a copy of P’s father’s will but I assume nothing was resolved because that was also the main issue at this hearing. 

The hearing

The judge opened, with everyone now in attendance, by noting that there was now an agreed draft of the latest decisions about P’s residence, which I suppose was essential background even though the current hearing was about property and affairs. 

Mr Angus then set out the local authority’s position. The deputyship application was concerned with moneys (and possibly a tenancy) inherited from the father that were being held for P by his mother and brother. The local authority already held the Department of Works and Pensions appointeeship for P (allowing them to collect his benefits) and it would be easier for them if they could have responsibility for other assets too.

When the original application was made in January 2022, P’s mother had objected. Since then, there had been issues relating to P’s capacity to manage his own financial affairs. It seemed that he had been judged not to have such capacity but there was a separate question as to whether he had capacity to litigate. It was now also not clear whether the mother had capacity to litigate or, indeed, whether she still objected. Her last objection had been recorded in March 2022. (I have no idea why nothing seemed to have happened in the intervening period.)

The judge responded to Mr Angus by pointing out that “the local authority’s convenience was neither here nor there” and that any decision would be based entirely on P’s best interests. P was not currently a party to the case and the two lawyers present at the hearing who were acting on behalf of the Official Solicitor had no formal role, since they were only instructed to act in health and welfare matters.

The judge moved on to next steps. He would be asking the Official Solicitor to act as P’s litigation friend in this matter too. He would also seek to join P’s brother as a party. Once joined, he would be required to provide any financial information he held concerning the father’s will, but he could then apply to be discharged, if he so wished. It was also necessary to discover whether the mother had capacity to litigate or whether she too needed a litigation friend. Also, whether she still objected to the application. The application to appoint a property and affairs deputy would be separated from the health and welfare case, a separate number allocated and a new Transparency Order prepared.

The judge noted that if, when all the necessary financial information had been collected, it was discovered that there was very little in the way of assets, it might not be necessary to appoint a deputy at all. The amount of money available would also inform the Official Solicitor about the costs of acting in this case.

The Transparency Order

I had asked for the Transparency Order when I asked to attend the hearing and was sent two (sealed) versions: one made by DJ Scott on 10th January 2024 and the second made by DJ Griffiths on the very day of the hearing I was observing (11th July 2024).

The earlier-dated Transparency Order prohibits identification of the local authority.

The subsequent Transparency Order says that the earlier one “erroneously includes the identity of the Local Authority within the protected subject matter” (see below) and amends it to correct that error.

The “amended” version strikes through the prohibition on naming the local authority (see 6(i) (c)).

This is excellent news. 

There have been at least two other recent occasions on which Transparency Orders have prevented identification of Devon County Council and have been challenged by observers (see: “Getting it right first time around”). The Open Justice Court of Protection Project has identified a recent spate of these erroneous Transparency Orders and has done some work to alert both HMCTS and the judiciary to the problem. I think it is fair to assume that the amended Transparency Order is a direct result of the work that the Open Justice Court of Protection Project has done – and it’s very reassuring to know that the judge did it on this occasion without having been prompted to do so by an observer’s complaint. 

This marks real progress for open justice!

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

Anorexia and the capacity to make decisions about nutritional intake

By Ty Glover, 14th July 2024

Back in 2007, a spate of television programs focused on “size 0” and “super skinny” bodies with the focus being on the then (and now) fashionable trend for size 0 models. Although I did not watch all of those programs, I recall one in which Louise Redknapp, wife of former footballer and current TV pundit Jamie Redknapp, presented “The Truth about Size Zero“. In that program Louise vividly articulated the misery and difficulty of achieving the goal of dropping two dress sizes and reaching size 0 for which the program was designed. Her physical, emotional, and psychological distress at achieving that goal, despite support from expert nutritionists, was clearly described.

At that time I was a relatively inexperienced Consultant in Eating Disorders, but I had already witnessed such suffering, and this programme had a significant impact on my thinking. Given that, after oxygen requirements, fluid intake, and excretion, food intake can be considered as one of a human’s most fundamental needs, it became clear, both due to my early experience and Louise Redknapp’s articulate description, that avoidance of appropriate calorific intake was profoundly aversive and to continue in such a pattern of behaviour would require a psychological force of immense proportions.

My experience since then has only confirmed that belief. Anorexia Nervosa is a profoundly powerful condition. It is classified as a Mental Illness (ICD-11 6B80) and recognised as an impairment of the mind with respect to the Mental Capacity Act 2005. Its ability to derail the life path of articulate and intelligent people, usually young women, has to be seen to be believed. Their inability to simply accept sufficient calories to maintain weight is extremely difficult to overcome. The lengths to which such patients will go to avoid calorific intake and weight gain is remarkable. The misery and depression which goes alongside this behaviour is consistently reported by patients and their families as well as clinical observers.

It is only by understanding the profoundly aggressive nature of anorexia nervosa that one can begin to understand the disparity between otherwise cognitively intact young woman and their intrinsically harmful thinking and behaviour.

It was, therefore, no surprise to receive Celia Kitzinger’s request for me to explain how such articulate and intelligent young women could possibly be deemed to lack capacity to make decisions when they appear, on the surface, to be so coherent and insightful. Her request was prompted (she said) by a recent case before Mr Justice Hayden at which public observers watched “Pam” gave powerful and eloquent evidence to the court about her wish to be discharged from treatment (see Anorexic woman gets to make her own (incapacitous) decisions, says Hayden J).  Despite her articulate and intelligent self-presentation, none of the parties (including the Official Solicitor who was acting for “Pam”),  argued that “Pam” had capacity to make decisions about her nutritional intake for herself.  The judge and all the parties (except “Pam” herself) accepted that the presumption of capacity in the domain of nutritional intake had been rebutted.  This was queried by one of the observers in a comment on the  blog post:  “I think the main surprise for me on the day was the difficulties the psychiatrists had with demonstrating why Pam lacked capacity to make decisions about her treatment. It felt like it was assumed that because the illness itself and decisions about being fed are so intertwined, NO patient with anorexia can be deemed as having capacity to make decisions regarding treatment? This was in contrast with how eloquently Pam put her case across – surely if anybody was going to be deemed as having capacity it was this lady?” (Nat Davies).

It is only by understanding the profoundly intrusive nature of anorexia nervosa on an individual’s thinking in regard to nutritional intake, weight gain, whilst also understanding the limits of this impact with relative preservation of thinking in other domains (e.g., financial, emotional and medication decisions etc.)  that one can realistically comprehend how such a disparity can occur.

Although an individual with anorexia may be unable to decide between an apple and Mars bar despite their “life depending” on the acceptance of a Mars bar, they may articulately, coherently, and capacitously make decisions about finance, relationships and medication without any cause for concern.

This highlights the specific and time related nature of capacity decisions. It is clear to me that patients with severe “active” anorexia almost always lack capacity to make decisions about nutritional intake whilst under the influence their anorexic condition. The overwhelming nature of the anorexic cognitions endured by patients with anorexia in relation to weight gain, or in anticipation of weight gain, mean that they will almost always, under the influence of that condition, make decisions regarding nutrition which are almost certainly lacking in capacity. It is in the domain of weighing matters in the balance that this lack of capacity should be understood.

The overwhelming impact of anorexia nervosa on an individual’s ability to weigh matters in the balance is, in my opinion, incontestable. The avoidance of weight gain and the restriction of dietary intake (or the urge towards compensatory behaviour) is such that I have no doubt that most patients, if not all, who are enduring an anorexic condition lack capacity to make decisions about the nutritional intake which is most appropriate for their overall well-being.

There is also a clear, though not universal, impact on a patient’s ability to understand the nature of nutrition and their body weight. Many patients erroneously believe that they are of normal (or above normal) weight, and they also believe, in a similarly erroneous way, that normal dietary intake will have a profound effect on their weight with massive weight gain anticipated. These errors of comprehension are directly attributable to their anorexic condition.

It is not possible, given the construction of the Mental Capacity Act 2005, to believe that such patients retain capacity to make decisions related to calorific intake in the face of such an overwhelming psychological impairment.

There is, however, no doubt that these individuals retain capacity in most, if not all, other domains of cognition. There may well be an impact from their condition on their relationships, emotional state, and motivation, including some suicidal thinking. That does not, however, mean that capacity in these other domains is necessarily impaired. It is my practice to assume that most patients with anorexia nervosa lack capacity only in the domain of nutritional intake. For example, I rarely, if ever, insist that patients take medication against their will as there is, as yet, insufficient evidence to take such an authoritarian position.

There is no doubt, in my mind, that these individuals almost always retain capacity to make decisions about finances, relationships, and about with whom they should associate. There is also little doubt that they retain capacity to make decisions about residence and their own living circumstances. Given that they also remain articulate and often insightful with regards to nutrition, it is unsurprising that such patients might appear to many observers in the Court of Protection to be expressing capacitious views about their own anorexia. That appearance is misleading. As explained above, anorexia has such a profound effect on an individual’s ability to weigh matters in the balance and often also on the ability to correctly comprehend  one’s own circumstances, that, in most cases, the presumption of capacity is rebutted.

Only by understanding both the severity of anorexic cognitions, the profound impact of those cognitions on the ability to both understand and weigh the relevant information in the balance and the restricted nature of this psychological impairment can one reconcile the determination that patients lack capacity in relation to nutritional intake with their capacity to make decisions in most, if not all, other domains and their apparently coherent and insightful ability to articulate their own position.

Ty Glover is a Consultant in Eating Disorders Psychiatry and an Independent Medicolegal Expert with experience of the Court of Protection, whose knowledge of this field draws from his experience over the last 12 years as an expert witness in numerous complex cases of serious medical treatment involving eating disorders in the broadest and narrowest sense of that term – as well as further experience as an expert witness in the Court of Protection in relation to mental health problems unrelated to disordered eating.

Complex issues for the court and plans for an ‘omnibus’ capacity hearing

By Claire Martin, 9th July 2024

At the centre of this case is Mrs G who has come to the attention of the court because carers have alleged that her daughter is abusing her.  Mrs G is said to complain to carers about her daughter’s behaviour, and then to retract these statements later. Her capacity to decide about contact with her daughter (amongst other things) is now in question. Mrs G’s daughter denies, vehemently, all of the allegations, including a report that she threw food over her mother. 

Mrs G was given a diagnosis of Alzheimer’s disease in 2021, which is now also in question. A jointly-instructed independent expert has informed the court that his assessment suggests this diagnosis is incorrect and that Mrs G retains capacity to litigate and decide her care and support. The Local Authority disputes the independent expert’s assessment on these matters. 

Mrs G wants to instruct her own legal representative. Even if Mrs G has capacity to do this, there is concern (from the Local Authority) about whether she can she do this freely without undue influence from her family. Her daughter holds  Lasting Power of Attorney (both for Property & Finance, and for Health & Welfare);   the Local Authority made an application for this to be suspended. along with many issues of capacity for Mrs G. 

We observed a hearing for this unusual case, COP 14187074 (which we have blogged before), before Mrs Justice Arbuthnot (a Tier 3 judge), sitting in Norwich County Court, on Thursday 6 June 2024. 
At the time of the previous hearing on 17th January 2024, two different legal teams had turned up in court to represent Mrs G and the judge decided that her representation should be via the Official Solicitor since there is reason to believe that she lacks capacity to conduct proceedings in a case concerning whether she is subject to control by her daughter.

This post covers (1) Accessing the hearing; (2) Who’s who in the hearing; (3) Background to the case; (4) Issues for the court at this hearing; (5) What happened at the hearing; (6) Mrs G’s daughter, the Inherent Jurisdiction and undertakings; and finally, (7) Reflections.

1. Accessing the hearing

When I joined the hearing – which was an in-person hearing – which I and another observer were watching remotely – we were the only people in attendance on the remote link.

It was very hard to follow what was going on for two reasons: there was only one camera in the court and the courtroom appeared to only have one microphone (the judge, at the bench, had her own). In the morning session, we could only see the judge on camera. Others spoke and it wasn’t always clear who was speaking. After emailing the court clerk, the camera was turned to face the courtroom in the afternoon session. This meant we could see all those present in court, but not the judge, whose disembodied voice we heard well because she had her own microphone. This did make it somewhat easier to follow proceedings, though we witnessed the court usher moving the one sole microphone between people as they spoke, causing some difficulty at times to shuffle it between them all. At times, he forgot to move it, meaning we hardly heard some of what was said. So, overall, the sound access to this hearing was patchy. We have done our best to piece together what happened! We have had the benefit of the Position Statement for the Official Solicitor (kindly shared with us by counsel, Malcolm Chisholm) which has helped us greatly to understand the facts of the history of the case. 

2. Who’s who in the hearing?

At first we were unsure who was representing Mrs G. As noted, we couldn’t see the courtroom and when the hearing got underway at 11.49am, it was exceptionally hard to hear the voice of the person who turned out to be Oliver Lewis, counsel for the Local Authority. We don’t know whether the case was introduced, but we heard him mention the Transparency Order [TO] (which we hadn’t received at this point) and the judge said that ‘it applies’. We did receive the TO at 12.09 from the court clerk and checked to see what it covered, and to ensure that we are not in breach of any of the injunctions in this blog.

As is usual, we cannot name or publish anything that is likely to identify Mrs G, or members of her family. We are not restricted from naming the Local Authority, however, which is Norfolk County Council. 
Mrs G was now represented by her Litigation Friend the Official Solicitor [OS], and Malcolm Chisholm  was counsel for the OS.

The only other person formally able to address the judge was Mrs G’s daughter, who was representing herself.

We heard all three speak during the morning session, though could not see them.

Mrs G put her hand up at one point and the judge invited her to speak. More of that later. When we rejoined for the afternoon session, we could see that there were other people in the courtroom too, including Mrs G herself, and others sitting beside her, who turned out to be her ex-husband and her daughter’s partner. We think there were also solicitors for the Local Authority and for the OS.

3. Background to the hearing

We were very thankful for the Position Statement from the Official Solicitor to help us understand the background to this case.

Mrs G is a woman in her 70s. She lives in her own home with a live-in carer, though Mrs G asserts that she can be more independent. In 2021 Mrs G was diagnosed by the local memory clinic with Alzheimer’s dementia. Her daughter holds Lasting Powers of Attorney for both Property & Affairs and for Health & Welfare. 

Mrs G came to the attention of the Local Authority in February 2023 when she spent a period as an inpatient period for a chest infection. Health care professionals raised concerns with the local authority about Mrs G’s daughter (we are not sure what exactly the concerns were). There was some dispute about Mrs G’s needs on discharge from hospital, and this has led to the application to the Court of Protection.

The council asserts that Mrs G needs live-in care to support with eating, prompting for personal hygiene, cleaning and ‘accessing the community’. The council also alleges that Mrs G’s daughter has ‘overridden her autonomy’ and that has assaulted her. Mrs G’s daughter denies all accusations and asserts that her mother has capacity to make all her own decisions. The council has applied to restrict contact between Mrs G and her daughter, as well as the daughter’s ex-husband and current partner. 

Importantly, there have been two more recent (2024) psychiatric assessments of Mrs G. One was done by a previous treating clinician (who we think was instructed by Mrs G or her daughter) who assessed Mrs G as having ‘mild cognitive impairment’ and stated:“I believe she has capacity to decide her care needs, where she should live and decide who should have financial control over her assets. In addition, with support, she has at present legal capacity”. The other was by Dr Barker, an independent expert psychiatrist, jointly instructed by the legal teams in this case. He also reached the conclusion that Mrs G had a “…relatively mild, memory impairment, particularly with spontaneous recall, which is common with normal ageing, but not typical of Alzheimer’s disease … [Mrs G’s] cognitive impairment has not yet reached a level at which a diagnosis of dementia would be appropriate, and her cognitive testing has markedly improved since the diagnosis of Alzheimer’s disease was given in 2021, suggesting this diagnosis is incorrect”.

4. Issues for the court at this hearing

The issues were mainly about deciding how the case was to proceed.  There are many substantive issues for the court to decide: 

  • Litigation capacity
  • Capacity [and best interests, if appropriate] for other decisions – including where to live, contact with her family, care and support, appointing (and revoking) an LPA 
  • Fact-finding regarding allegations of bullying and coercive control levelled at  Mrs G’s family, principally her daughter. This is considered under the Inherent Jurisdiction.
  • Potential committal proceedings against Mrs G’s daughter – depending on the outcome of the fact-finding – we think (though are unsure) for breaches of the court order in relation to contact with her mother. 

5. What happened at the hearing?

Sound was very patchy at the start, except for the judge who was more audible. What was clear was that this hearing is what is called a ‘directions’ hearing – the judge and Oliver Lewis were immediately engaged in considering how many days of court time were going to be set aside to hear evidence about various matters: capacity, fact-finding “and then we go from there” (as the judge put it).

There is a significant amount of paperwork for this case, especially allegations against Mrs G’s family from various professionals involved in her care  – the judge referred to ‘some direct, some not direct’ and advised counsel for the Local Authority to ‘choose your best evidence’. 

And does Mrs G have litigation capacity? If she does she can instruct her own legal team. Counsel for the OS said: “This is a case where all capacity issues overlap: litigation capacity, care, residence, contact and support, LPA …. [There is] artificiality when we look in silos… you may take a view to deal with all capacity issues at the same time. If I am here for the OS I am advancing a case on a best interests basis, taking into account her wishes and feelings, but I can’t take instructions from her [poor sound quality] …. about her own capacity … The neater way is a one-day litigation capacity hearing and see where we go from there.”

Of course, if Mrs G has litigation capacity, she might prefer to instruct a different legal representative, i.e. someone other than Malcolm Chisholm. This issue, therefore, needs addressing first. Oliver Lewis was very clear on the position of the Local Authority, that – regardless of litigation capacity – they would still submit that Mrs G needs to be protected under the Inherent Jurisdiction, due to what they say is coercive and controlling behaviour from her family. The Local Authority also disputes Dr Barker’s findings, so he will need to be called to be cross-examined. 

Counsel for the OS and counsel for the Local Authority took different positions on how to handle the multiple capacity issues in this case. The Local Authority proposed all capacity issues to be dealt with together whereas the Official Solicitor advocated for only litigation capacity to be considered at the next hearing. The Position Statement for the Official Solicitor states that the ‘Official Solicitor is in an invidious if not impossible position, namely acting as litigation friend in the best interests of a protected party who asserts (with the strong backing of an expert witness in two detailed reports) that she has capacity to give instructions on all relevant matters’. 

Mrs Justice Arbuthnot wrestled with this during the hearing, describing the dilemma as finding the ‘the least worst option’. Here are the arguments and considerations presented to the judge: 

Counsel for the Official Solicitor – on behalf of Mrs G: “…. Litigation first …. rather than all at once. My submission would be just on the matter of litigation capacity, not the others, so that if your determination is that P has litigation capacity, she’s in a position to instruct, so that other capacity issues get resolved on that basis. […] there is a sharp distinction between the two roles [acting for the OS and acting directly for a client with litigation capacity]. So litigation capacity needs dealing with in a separate silo.” [Counsel’s emphasis] 

The judge was initially persuaded by this argument: “I think he’s right it should be litigation first”.  But counsel for the Local Authority:  said “In my submission there are dangers of that approach.”  Linking litigation capacity to coercive control, he continued: “There are indications in my submissions that Mrs G lacks capacity to conduct proceedings as well as [other capacity issues]. It would be artificial to separate it out. If we were in the King’s Bench division ….. [if there was a] neighbourhood dispute, and someone’s capacity was in question, it’s different, but in this case EVERYTHING is related to capacity, and the control issue. If [Mrs G] has litigation capacity, first it’s unlikely that she would lack subject matter capacity… it’s unlikely, if possible; but if the court finds she [doesn’t lack] capacity, she’s in no worse a position, she can choose not to continue and instruct a solicitor of her choosing. The court is still going to be dealing with fact finding – she will just have the right to be protected, as the OS will remain.  Of course, it’s any litigation friend’s responsibly, especially the OS, to make sure the court knows what P feels about each capacity area. The court won’t be deprived of knowing what P thinks about each of the capacity areas.” [counsel’s emphasis]

Mrs G had her hand up at this point and the judge invited her to speak: She said: “My relationship with my daughter is terrific [very quiet no microphone in front of her] … I need to be able to carry on… [inaudible]. The judge assured her that she was trying to work out ‘how the hearing about your daughter can be broken into pieces’.

Mrs G: I want to continue my relationship.
Judge: … We are not stopping the relationship – it is my job to make sure it is safe. 

After an exchange with Mrs G’s daughter to explain the process of addressing the capacity issues, followed by the fact-finding and the implications of that for contact with her mother, the judge returned to the matter of how to deal with litigation and other capacity issues:  “At the moment we are trying to work out HOW MUCH should be done on those days. The OS says only litigation capacity – or the whole lot. [To Oliver Lewis] Can you just explain why the whole lot again?”

Counsel for the Local Authority: It’s very rare for someone to have capacity to litigate and [then not have capacity for other issues] …. My example of the neighbourhood dispute over a fence. Case law suggests capacity has to be looked at in the round. Litigation capacity has to be looked at in relationship to the proceedings [as a whole] – [capacity to decide about] care, contact, make/revoke LPA , and in the Inherent Jurisdiction case, whether she is a vulnerable person subject to coercive control by [her daughter]. In my submission, Mrs G has said to numerous health care professionals she doesn’t want her daughter to be as controlling as she is, when her is daughter not there. Totally understandable, it’s not critical of Mrs G. She’s said the opposite to many professionals. It would be in my submission, entirely artificial and wrong to deal with litigation capacity as if it’s a silo, and unconnected to other areas of capacity. I would say that about any COP matter, but especially where at the centre are these allegations of influence and control. It could be that if the court determines capacity in an omnibus hearing in one day and finds it’s not possible to determine capacity in any or in some of the areas, then it may be that court would direct an assessor to carry out an assessment of capacity AFTER the court has found out the facts. Dr Barker says he didn’t put the allegations to Mrs G because he didn’t know which ones had happened or not. He couldn’t come to a true assessment about capacity …that could be one of the outcomes. 

It seems that the Local Authority is saying that the reason they do not currently accept Dr Barker’s (independent expert) capacity assessment (that Mrs G retains capacity for all matters) is because he didn’t put to her the full relevant information about the allegations against her daughter. According to Dr Barker, he did not do this because he did not know which allegations were proven. So, the Local Authority is submitting that his conclusions regarding capacity cannot (yet) be relied upon. And further, that there should be a fact-finding hearing under the Inherent Jurisdiction if Mrs G is found to retain capacity in any matter. This argument confuses me. If the Local Authority is saying Dr Barker’s assessment is not reliable because he did not put the (proven) allegations to her – then how can a capacity hearing (before the fact-find) determine her capacity?

Nevertheless, Mrs Justice Arbuthnot then said: “I am now moving in his [Oliver Lewis’] direction.”

Counsel for the OS tried again: “It’s to do with [Mrs G’s] voice in the proceedings. At the moment, we have been supplied as her litigation friend and obliged to present her case in her best interests. That’s not the same as her being able to instruct as she wishes. […]  If it proceeds to inherent jurisdiction, and the court determines she is vulnerable, then the OS can be joined as a party. That’s for the future …. [Judge: Yes] Er … I have made my position clear. I suppose I could live with capacity being dealt with on the same day, but that comes with a health warning… If she HAS litigation capacity, and wants to rely on Dr Barker … does she want me, or someone else? The case is complex and dynamic. I agree we need to separate out the case and … I could live with everything being dealt with on the same day, but it might get more complicated on the day.”

The judge exclaimed: “[It is] such a technical thing. All capacities together or separately. Certainly, fact-finding …. It is SO technical this and very unusual, terribly unusual.” [Judge’s emphasis]

So, an ‘omnibus’ hearing to determine all aspects of capacity in question, including litigation capacity, was planned over two days in July 2024. 

6. Mrs G’s daughter, the Inherent Jurisdiction and undertakings

Understandably, both Mrs G and her daughter were concerned about their relationship, and contact. We couldn’t hear a lot of what Mrs G’s daughter was saying, though she was clearly expressing concern about proceedings: “If this continues, we could go round and round”.

    The judge clarified: “…there will be a fact finding under the Inherent Jurisdiction. [There are] two proceedings side by side. One Court of Protection [for] capacity etc., the other Inherent Jurisdiction. My powers are to protect someone, even if they have capacity. Capacity is not the be all and end all. I can still protect her as a vulnerable person.” [Judge’s emphasis]

    The judge assured Mrs G’s daughter that “a decision will be made” regarding capacity, and that Dr Barker and Mrs G’s social worker will be giving evidence in regards to capacity and then, following a fact-finding, “if I find that bullying has happened” another independent expert (on coercive control and bullying  Prof Dubrow Marshall) will be instructed “to make it safer”. The judge qualified this with “I have to be persuaded he’s going to be necessary”. 

    Earlier in the hearing counsel for the Local Authority had referred to ‘undertakings’ having been breached by Mrs G’s family. The judge dealt with this toward the end of the hearing. 

    The distinction between an ‘undertaking’ and an ‘order’ is, according to this website: 

    “An Undertaking is defined as a legal promise to the court to do, or not do, something, which is binding upon the person making it. Undertakings are made where the court is unable to make an order for a party to do, or refrain from doing, something and once an undertaking has been made, it has the same effect as a court order. An Undertaking can only be made with the consent of the party making it, being a key difference to an Order than can be imposed on parties or made by consent.

    The form of an undertaking must be signed with a notice setting out the consequences of disobedience so as to be enforceable as if it were an Order. No such wording is necessary to enforce an Order.”

    It wasn’t specified which undertakings Mrs G’s family was said to have breached, but Oliver Lewis (for the LA) asserted that “there has been a question of a few alleged breaches of these undertakings … undertakings have had limited effect. There have been no consequences.”

    Judge: What does it say about telephone calls, I haven’t got it in front of me?

    Counsel for the LA: It says contact shall be supervised until further order.

    Judge: It needs to SPELL OUT, it seems to me, that any phone calls are [subject to that]… [judge’s emphasis]

    Counsel for the LA: Happy to spell that out for greater clarity.

    Judge: I will need someone to type it out and print it out and no one will leave court until they’ve signed.

    Mrs G’s daughter said that she was “never told that I couldn’t speak to my mum without being on loudspeaker”. The judge confirmed to Mrs G: “when [you speak on the phone] to your daughter, son-in-law or ex-husband, it needs to be on speaker phone. You can talk privately but it needs to be on speaker phone.” (But it’s not ‘private’ if it’s on speaker phone for carers to hear, I would argue.)

    Mrs G’s daughter continued, that Social Services had “completely misjudged our family”, talking about the scrutiny they had been subjected to: “We didn’t know a safeguarding was on, we didn’t know what it meant. [She – the live-in carer] heard words between us and suddenly a safeguarding … they had the wrong end of the stick. [They are] trying to control a frail elderly lady who loves her family, [to] coercively control her, it’s ironic. They write down everything we say, word for word, supervised contact. My mum has stood her ground on multiple occasions since January. She’s been interrogated about her private life with her family constantly. I have been reading transcripts from [Social Worker, plus she listed three others]. Mum has not wavered once. She would not be without us all. … they haven’t seen any coercion.” 

    Mrs G’s daughter was also very clear that the original diagnosis of Alzheimer’s dementia was ‘incorrect’: “Whatever you decide …. Mum doesn’t have Alzheimer’s. … It’s a witch hunt on my family … I would like you to give my mum her capacity back”

    I don’t think Mrs G’s diagnosis of Alzheimer’s has been officially changed, but her previous treating clinician and the expert witness both suggest (in their reports) that she does not have Alzheimer’s disease. 

    Counsel for the LA raised a final issue for the undertakings – not to mention the possibility of a care home to Mrs G. He said that ‘other allegations’ were distressing Mrs G, and that the Social Worker wants Mrs G to remain at home. It was hard to work out who was alleged to have said what, when, but there was a suggestion that Mrs G’s daughter was mentioning care homes to her mother. She denies this and Mrs G’s husband said that it was the Local Authority that was talking about care homes when Mrs G was in hospital. The judge was emphatic: “NOBODY must mention care homes to her. … The point is DON’T. There’s no point in mentioning it. …” Mrs G’s daughter said something in response that we could not hear and the judge reiterated: “Well it’s not on the table, it’s not proposed, this lady wants to stay at home. It is NOT to be talked about.”

    The hearing came to quite an abrupt ending following this exchange – after agreeing dates for further hearings – and what the judge said to conclude the hearing was inaudible. 

    7. Reflections

    This was a very interesting hearing about a difficult case – for all concerned.  From an observer’s perspective it covers much of what the Court of Protection is about – whether or not P has capacity for many decisions, including litigation capacity itself; whether, even if P retains mental capacity for any or all decisions in question, she is subject to coercive and controlling behaviour from her family (‘bullying’ as the judge put it) and, if she is, what is to be done about managing contact between P and her family; Lasting Power of Attorney; best interests in respect of all decisions should P be found to lack capacity; and then the possibility of committal for P’s daughter (for allegations which – to us – are not clear at present). All these issues together make it a very compelling case of great public interest. 

    I was intrigued by two things that Mrs Justice Arbuthnot said in respect of Mrs G’s relationship with her daughter. At one point the judge said to Mrs G’s daughter: “My job is to work out, under the Inherent Jurisdiction, is to work out if your mother can continue to have a relationship with you, safely …. We’ve all had strong relationships [referring to altercations and emotions running high in all relationships]” [my emphasis}. Later, the judge said: “IF I make certain findings – this is a mother who wants to see her daughter and a daughter who wants to see her mother. I wouldn’t want to get in the way of that.” [Judge’s emphasis]

    In the first quote, the word ‘if’ confirms that a court order could be made to prevent any further contact between mother and daughter. The second quote seems to suggest the opposite, but I think that the judge is, on the one hand, outlining a possible legal scenario (that the court does have the power to prevent contact between P and specified people) and on the other hand, is expressing a view that she does not want to do this. Mrs G and her daughter were (understandably) anxious  about the ongoing uncertainty (Mrs G: “I want my relationship to continue”). The court is following correct procedure, of course: where there is allegation of coercive control and a vulnerable person, this must be taken seriously and looked into carefully. At the same time, the fear and panic that potentially having your mother-daughter relationship ended by court order must be difficult to bear. The judge later confirmed “We are not stopping a relationship; it is my job to make sure it is safe.” I am not sure I would have felt reassured by the end of this hearing that this was a certainty – and I still feel unsure, given the fact that the court will consider coercive control, bullying and potential committal of Mrs G’s daughter. 

    A final thought on Mrs G’s diagnosis. I wasn’t clear whether this was going to be clarified at the next hearing, either by the witnesses (Dr Barker the expert witness and Mrs G’s Social Worker) or Mrs G’s treating team . It could have been mentioned and I missed it being discussed. It seems to me to be very important, not only for the court case (i.e. the nature of Mrs G’s ‘impairment in the functioning of her mind or brain’ for the purposes of the Mental Capacity Act 2005 Section 2), but also for Mrs G herself. Does she have dementia? It was suggested that she was given this diagnosis in 2021 when she was ‘very poorly’ (daughter). It is notable that Dr Barker’s April 2024 report suggested that he had repeated the cognitive tests that Mrs G had previously completed and found that her scores had ‘markedly improved’. This is three years later, which would not be expected if someone has Alzheimer’s dementia. One of the defining characteristics of this diagnosis is ‘insidious onset and gradual progression of impairment in one or more cognitive domains’ [see here]. Diagnosing any dementia is not an exact science, involves clinical judgment as well as standardised assessments and neuroimaging: the NICE Guidelines outline best practice here. Incorrect diagnoses of dementia can be made (see here and here for example) and monitoring of a diagnosis is important because there is no, one, single test to confirm the presence of the disease whilst someone is alive. 

    The next hearings for the case are on 22nd and 23rd July 2024 (to determine capacity issues, including litigation capacity) and then 2nd – 4th October 2024 (fact-finding regarding allegations of coercive control and ‘bullying’). 

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

    Daughter’s home in jeopardy when mother dies and father lacks capacity

    By Georgina Baidoun, 4th July 2024

    This case caught my attention because it was listed (see below) as concerning “authorising a gift or settlement of property” – and it turned out to be a substantial gift (a house). 

    My request to observe the 11.00am hearing (COP 13569463) before DJ Ellington was answered with a link and Transparency Order received well in time for me to prepare myself. 

    When the hearing started, the applicant questioned my presence and I replied that I was simply a member of the public, but that I was also connected to the Open Justice COP Project. The judge asked me if I had received the Transparency Order and I confirmed that I had and agreed to abide by it.

    The parties

    The only party in attendance was the applicant, who was the professional Court of Protection deputy for P’s property and financial affairs.

    The respondent was P himself, who the judge said was not yet joined as a party, which I think is unusual. I assume the reason was that there was no-one to represent him, the Official Solicitor having refused without giving reasons.

    P’s daughter had been expected to join the hearing but she was not a party and, after attempts to contact her failed, the judge started without her. When she did join, she said that the Official Solicitor had refused to act for P because of costs, P having very little in the way of assets. The judge wondered whether there was an alternative to the Official Solicitor and later suggested maybe ‘just someone independent’ if it turned out there was no opposition to the application.

    Application to make a gift

    The gift for which the Court’s approval was sought was half of a home currently lived in by P’s daughter. It had been jointly owned by her parents and lived in by her and her mother until her mother died, her father having left many years before. She was her mother’s sole beneficiary but joint ownership of the house meant that it had passed in entirety to her father. He lacked mental capacity to deal with his property and financial affairs and was living in a care home, with his care was being funded by the Local Authority under Section 117 of the Mental Health Act – see note below. 

    Before a substantial gift can be made by a deputy (or an attorney) everyone likely to be affected must be officially informed, including any public sector organisation which might have an interest in ‘deprivation of assets’ needed for care costs. (The judge later referenced Practice Direction 9E in this respect – see note below). The applicant believed that the Local Authority had provided sufficient assurance that they would not oppose a gift on these grounds but the judge said she needed more evidence.

    Another issue was the ‘family tree’ and who else in the family might have an interest. P’s mother was still alive but in poor health and living in a care home and there were two other relatives who had said they had no objection, although they had not done this by means of the official COP5 form. The judge said she needed more assurance that there was no-one else who should have been informed. The applicant believed that, according to intestacy law, the daughter would be the sole beneficiary when her father and his mother died.

    At this point, the daughter belatedly joined, having possibly had technical issues because she later dropped out again for a while. She was clearly very distressed by the whole court process which she said had been going on for 4 years; she said she’d had only 24 hours’ notice of the current hearing. The judge explained that this hearing had been called as a matter of urgency because the mortgage on the home was coming to an end and she wanted, if possible, to avoid the threat of repossession. Other issues were not being considered at this point.

    The daughter said that her father had written a statement saying he wanted to give her the home and that these problems could have been solved several years previously. (It later transpired that she had applied to be the deputy for P so maybe she thought she could then have made the gift herself without involving the court.) The applicant said that, if there were to be a change of ownership to include the daughter, a new mortgage would depend on her earnings, which she had confirmed were uncertain.

    There seemed to be some confusion here and the judge intervened to check whether the gift applied for was for the whole or half of the home. The applicant replied that it was for half only, to get the daughter into the position intended by her mother’s will. She would jointly own the home with her father who had sufficient income to pay his share of the mortgage. The applicant suggested that P might have a statutory will made according to intestacy rules, which would confirm that the daughter would inherit the home after he died.

    P’s daughter, on the other hand, believed that she should be gifted not half but the whole of the home. Without full ownership she would not be able to sell it. The judge said this would have to be the subject of a separate application. 

    The deputyship

    It seemed that much of the daughter’s frustration arose from an on-going issue about the deputyship for P that was not being considered at this particular hearing. I think that she had originally applied to be deputy but her application had been contested and an interim deputy had been appointed while the case progressed. A major problem with not being a deputy was that she had no legal standing with the mortgage provider and any negotiations about the future had to be undertaken through the applicant.

    Next steps

    The judge agreed that the applicant should have the court’s authority to negotiate with the building society to see if a new mortgage could be arranged. This would require details of the daughter’s income, which she was ordered to supply to the applicant.

    For the rest, the judge determined that, before she could make progress, she would need:

    • Forms from the relatives (COP5) acknowledging service
    • Form COP20B from the LA confirming they would make no future claim on P’s assets
    • A genealogist to confirm that there were no other potentially interested relatives
    • Relevant details relating to the future of the mortgage
    • If possible, any thoughts the Official Solicitor might have as to P’s interests and the reason why they had declined to represent him
    • If possible, someone independent to represent P.

    At the daughter’s request, she agreed to add her as a party to future proceedings.

    The judge suggested an early date for the next hearing but P’s daughter asked for a delay. It was arranged for 24 September 2024.

    My thoughts

    With increasing numbers of young people living with their parents for much longer, this case is likely to represent a problem that others will face in future. It underlines the need for parents to think carefully about what happens when they die or if they lose mental capacity. Here the problems were compounded by neither the mother nor her daughter seeming to have understood the difference between joint ownership of the home and tenants in common. Perhaps the father would have been prepared to alter the ownership arrangements if the potential consequences had been considered before he lost capacity. 

    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

    Notes

    Some people who have been kept in hospital under the Mental Health Act can get free help and support after they leave hospital. The law that gives this right is section 117 of the Mental Health Act, and it is often referred to as ‘section 117 aftercare’.
    https://www.mind.org.uk/information-support/legal-rights/leaving-hospital/section-117-aftercare/

    Practice Direction 9E – Applications relating to statutory wills, codicils, settlement and other dealings with P’s property
    https://www.judiciary.uk/wp-content/uploads/2017/12/pd-9e-applications-relating-to-statutory-wills.pdf