“I have reached a clear conclusion that AB lacks capacity to decide whether or not she should be tube fed.” – Commentary on Judgment

By Lily Wildman and Emma Christie – 28th August, 2020

The judgment in the case of AB, the anorexic woman refusing tube feeding, was handed down this week (Northamptonshire Healthcare NHS Foundation Trust v AB [2020] EWCOP 40 (16 August 2020))

We observed the final hearing (and blogged about it here) as well as one of the earlier ones (here). In this blogpost we reflect on Mrs Justice Roberts’ judgment and consider whether an opportunity was missed to recognise the limited circumstances where patients with severe and enduring anorexia nervosa may have the capacity to make decisions with regards to their nutritional treatment.

This case concerned a young woman (AB) with anorexia nervosa. In a previous hearing it had been established that AB had litigation capacity and could instruct her own legal team.  In the final hearing, the issue for the court was whether AB had the capacity to make decisions relating to her ongoing medical treatment – specifically, in relation to naso-gastric (NG) tube-feeding, which she wished to refuse.

In fact, the Applicant NHS Trust was not seeking to administer NG tube-feeding. Doctors employed by the Trust were in agreement that NG tube-feeding would not be in AB’s best interests. The key question was whether NG tube-feeding would not be administered because it was not in her best interests, or whether it would not be administered because she had refused it.  The issue of whether AB had the capacity to make her own treatment decision goes to the heart of her autonomy and the principles at the core of the Mental Capacity Act 2005 (the Act).

Mrs Justice Roberts decided that AB lacked capacity to refuse NG tube-feeding. She also held that NG tube-feeding would not be in her best interests. There is a presumption in favour of capacity ( s. 1(2) of the Act) and a lack of capacity cannot be established as a result of a condition which might lead others to make unjustified assumptions about a person’s capacity (s 2(3) of the Act).   In previous cases before the court (such as E, L, X, W and Z,[1]as discussed by Emma Cave and Jacinta Tan), the very nature of anorexia nervosa has been articulated by medical experts to mean that patients lack capacity to make their own decisions about nutrition because they are unable to weigh information about their nutritional treatment, due to their extreme aversion to weight gain.  We discussed whether this approach encroaches on the creation of a blanket presumption of incapacity for patients with anorexia, meaning that they are unable to have autonomy over decisions about their nutrition.

Mrs Justice Roberts recognises this general description of anorexia nervosa as applicable to AB, describing it as ‘the development of a profound and illogical fear of weight gain’.

It seems that the judge was unable to view AB as having capacity due to the ‘insidious’ influence that anorexia nervosa had on AB’s decision making, infecting AB’s reasoning to the extent that it was no longer capacitous in relation to decisions that might result in weight gain. We understand the reasoning of Mrs Justice Roberts, who was unable to see in the case before her an example of reasoning that was not critically impaired by an irrational fear of weight gain. This is despite her observation that “AB is an intelligent and emotionally responsive young woman who is both thoughtful, articulate and insightful in terms of the position in which she now finds herself.” (para. 46 of the judgment)

While every case turns on its own facts, similar expert views were expressed in A NHS Foundation Trust v X [2014] EWCOP 35 140 BMLR 41 and In Re W (Medical Treatment: anorexia) [2016] EWCOP 13 151 BMLR 220, decided respectively by Cobb J and Peter Jackson J (as he then was).  Both judges concluded that he individuals in those cases lacked capacity in relation to decisions about their illness and treatment. Therefore, previous case law falls overwhelmingly in favour of the medical assessment that anorexia nervosa patients lack capacity to make decisions about their nutrition due to their inability to weigh the relevant information. However, it is clear from the judgment and previous statements throughout the hearings, that Mrs Justice Roberts explicitly recognises that AB and her interests are what lie at the very heart of this case, and that her decision must not be based on a comparative analysis of case law.

As Cave and Tan argue:

 “The courts should take a patient-centred rather than clinician-centred approach to framing the decision that is subject to a capacity assessment. Whilst Anorexia Nervosa sometimes affects decision-making capacity in relation to nutrition, this does not preclude a finding that the patient has sufficient capacity regarding end of life decisions.” (p. 5)

Cave and Tan, 2017

Nevertheless, we feel a slight sense of disappointment as a legal opportunity may have been missed. We agree that AB may lack capacity to make decisions with regards to putting on weight. Given the severe and enduring nature of AB’s anorexia nervosa, it may be correct to argue that this condition means that she is unable to weigh information about putting on weight, as envisaged in s 3(1)(c) of the Act. However, it was agreed by the NHS Applicant Trust and Counsel for AB that NG-tube feeding would not lead to AB’s recovery from anorexia, nor was it likely to save her life (in fact it posed its own risks to her life via ‘refeeding syndrome’).  This was why NG tube-feeding was found not to be in AB’s best interests. Accepting this agreed position, then, we see the relevant decision facing AB as one about end of life care, rather than about nutritional intake as such.

A patient-centred assessment of capacity will flexibly interpret the decision about which capacity is assessed by reference to the patient’s views on the value of treatment. A patient who lacks capacity to make a decision about their nutrition may have capacity to determine that treatment is no longer worthwhile

We agree with the patient-centric approach advocated by Cave and Tan, and apply it to this case to argue that, in the context of a decision about palliative care, AB may indeed have the capacity to refuse consent to the NG-tube as (potentially) life-sustaining treatment.

The decision confronting AB could be characterised as choosing between a (possibly) shorter life of better quality (at home with her family and pets) and a (possibly) longer life – dominated by restraint and NG-feeding (which itself could cause death from refeeding syndrome, and which her medical team was unwilling to administer).  We did not see evidence presented to the court suggesting that AB lacked capacity to judge whether quality or duration of life was more important. The same point is made by Daniel Wang (cited in Cave and Tan), who argues that the narrow way in which the patient’s decision was characterised by the Court in an earlier case (A NHS Foundation Trust v X [2014] EWCOP 35)

 “… led to an application of the Mental Capacity Act 2005 that is incompatible with the UN Convention on the Rights of Persons with Disabilities because, based on a diagnosis only, anorexia nervosa patients were denied the right to decide where the balance lies between quality and duration of their own lives”

Wang (in Cave and Tan, 2017)

As in the case analysed by Wang, we suggest that the relevant decision for which AB’s  capacity assessment was required was not necessarily whether to refuse or accept nutrition, but whether to refuse or accept treatment that she considered futile. (p.14)

With these issues in mind, we suggest that rather than assessing AB’s capacity in relation to naso-gastric feeding which may (or may not) improve her physical condition, instead it may be more appropriate to assess her capacity to decide between continuing treatment which has a low chance of success and opting for palliative care. We tentatively suggest that with regards to this latter issue, there may be insufficient evidence to rebut the presumption in favour of capacity.

The outcome of the judgement is the same for AB, regardless of whether she is deemed to have capacity or not, since NG feeding is judged not to be in her best interests.  But a judgement in line with our argument would have given effect to her autonomy and recognised that it is her decision to seek palliative care, rather than a best interests decision made by the judge on her behalf.

Lily Wildman is an aspiring barrister who has justgraduated with a law degree from Durham University and will be commencing the Bar Practice Course in September this year.  During the COVID-19 pandemic, she worked as a Care Assistant at a Nursing Home, which honed her awareness of the safeguards surrounding adults who lack capacity. She tweets @lilymwildman

Emma Christie is an aspiring barrister who has recently graduated from Durham Law School and will be returning to pursue an MJur researching the Domestic Abuse Bill (2020).  She has experience volunteering with dementia patients. She tweets @emmaleechristie

Image by Iñaki del Olmo on Unsplash


[1] Re E (medical treatment: anorexia) [2012] EWHC 1639; The NHS Trust v L and Others [2012] EWHC 2741; A NHS Foundation Trust v Ms X (Official Solicitor) [2014] EWCOP 35; Re W (medical treatment: anorexia) [2016] EWCOP 13; Cheshire & Wirral Ptnr NHS FT v Z [2016] EWCOP 56.

When P is in prison

By Celia Kitzinger – 20th August 2020

It’s shocking to log on to a regional Court of Protection video hearing (COP 13524261 before Her Honour Judge Davis in a regional court) and to discover that P is attending the hearing from Her Majesty’s Prison.

Instead of the domestic clutter of a family home, or the familiar backdrop of a care home or a hospital, the person at the centre of this hearing (let’s call him Joseph) was seated at a table with a blank wall behind him in a stark institutional prison setting. 

He looks to be in his mid-twenties, but I later learn he’s still a teenager.  He seems shy, overwhelmed perhaps by what is happening, not particularly communicative but obviously pleased to see his mother, who has also joined the video-conference.

We’re all on line, waiting for the judge who eventually turns up half an hour late, apologising profusely that her previous case took longer than expected. 

During that half hour we are a captive audience as Joseph’s mother engages with her son, delighted to see him after a long separation: “Hello sweetheart!  I love you Joey, my little darling. I’m here Joey.  I’m always going to be here for you, fighting your corner.  You’ll be out soon, so don’t you worry.  I miss you Joey!  I love you so much!”  She asks the sort of questions any mother would ask of a teenage son she hasn’t seen for a while: is he eating well (“you look as though you are”), is he sleeping well  (“you need lots of sleep, a growing lad like you”) and does he get enough exercise (“just 15 minutes of walking around, that’s life in here, that’s just how it is”).  She passes on messages from the family (“Nan says hi”; “Tell her I said hi back”).  She talks about what might happen when he gets out of prison – suggesting a haircut and a shave.  “I look like Big Foot!” he says.    She repeatedly reassures him that “we’ve got your back”; “I’m your Mum and I’ve got your back for ever and ever“.

It turns out that Joseph, who has autism and mental health challenges, is in prison due to an incident where he assaulted a carer and caused criminal damage to his room.  According to his mother (with whom I have spoken twice since the hearing), social services called the police and said, in effect, “nick him and charge him” (her words).  This is – says his mother – a completely inappropriate response to someone with Joseph’s problems:

It’s just not right.  It’s wronger than wrong”, she told me. “This shouldn’t be happening to Joseph or to anyone else like him.  He’s a beautiful soul. He has his problems because he’s autistic and has mental health problems, but that doesn’t mean you can treat him like an animal and just lock him up.

The main issue to be addressed in the hearing is where Joseph should live when he’s released from prison in ten days time. 

Unusually and – to me – again shockingly, it is Joseph’s mother (and not the Local Authority) who has brought the application to Court.  This is because the Local Authority was treating Joseph as someone who had capacity to make decisions for himself.  Joseph had refused services, challenged his autism diagnosis, and said he wanted to live in a flat on his own.  So the Local Authority had withdrawn all services.  They appeared to be content to leave him with no services on the basis that he had capacity to refuse them.

When it became clear that her son, left without services and living in a flat on his own, was involved with “bad people”, using illegal drugs, “smashing everything up”, “burning stuff”, and – once – assaulting her, his mother “begged for help”.  She was told Joseph was an adult now, and “we have to let him make his own mistakes”. 

They were telling me I was an over-protective mother, but I knew he would be dead if I didn’t get him the help he needed.  It’s been nightmare after nightmare.  They’ve really let my family down.  There have been years of failings in services. The system is broken.

Her view is that “they wanted to say he had capacity so they could wash their hands of him”.

Joseph’s mother had never heard of the Court of Protection at the time she made contact with the Mencap Helpline.  I spoke (with her permission) to Julie Hinnigan, who is part of the legal team which supports the Helpline (now the independent legal charity called Access Social Care).   Julie Hinnigan told me:

 “The Helpline team was very concerned about the safeguarding issues she was raising – and she had a number of reports indicating that he may lack capacity to decide about residence and care.  At best his capacity seemed borderline.  We get so many calls from parents in this situation: they’ve been fully involved in care, and then their child hits 18 and all that experience that the parents have of bringing up the child is just lost, and the focus is switched on to autonomy.  We wrote a very detailed letter outlining the safeguarding issues – self-neglect, he’d been a victim of cuckooing – and we said back then that there was a ‘risk of impulsive behaviour leading to police involvement’.  The reply was brief: ‘our social worker has assessed him as having capacity and we’re not going to disclose anything about that, we’re not going to undertake a safeguarding enquiry and we don’t agree that an independent capacity assessment is needed’.  End of.  So, then we had to find a legal firm willing to take it on.

Once the court hearing started (with Joseph represented by Rhys Hadden for the Official Solicitor) it was apparent that some progress had been made, and a potential placement had been identified and agreed by the parties.  Counsel for Joseph’s mother (Katie Scott) summarised some of the problems ensuring the appropriateness of this placement.  Previous placements, she said, “have broken down – including in ways that have led to prison”.

When Joseph ‘kicks off’ the only response has been to call the police and then he ends up in the criminal justice system, and his mother – for obvious reasons – is extremely keen to ensure that doesn’t happen again.  He’s also been sectioned and spent time in hospital.  The Official Solicitor and [Joseph’s mother] have raised some concerns about whether this is going to be any more effective than previous placements.” (Katie Scott, Counsel for Joseph)

The proposed placement hadn’t been discussed with Joseph because there had been no available virtual visiting slots at the prison.  It did feel to me, as an observer, as though everything had been cobbled together at the last minute.  As with many court hearings, there was mention of a prior advocates’ meeting just before the hearing started, and the sense that agreements had been reached under the pressure of knowing that the case would shortly be before the judge.

An interim placement order was agreed, with follow-up arrangements in place to see how Joseph was getting on after the move, and another hearing in early September 2020.  Meanwhile, his mother tells me that she Face-timed Joseph recently and he told her the placement was “really really good”.  He’d been baking cookies, making pizza, playing football and TV games and been to the beach!  She plans to visit (all being well on the public health front) for a family birthday in a few weeks’ time.

According to Julie Hinnigan, the failings in social services were in part due to lack of knowledge and support for autistic adults – especially those, like Joseph, who don’t also have a learning disability.  “Services for autism are often way behind specialist services for learning disability”, she says.  “People with autism like Joseph can present as very able and mask very well.  It can be genuinely very tricky for non-specialists to assess their capacity”. 

So far, at least, this story has a happy ending.  The Court of Protection has lived up to its name.  It has protected and ensured support for a vulnerable young man who is now flourishing in his new placement. 

The tragedy is that this situation arose in the first place – that he was left so much at risk, ricocheting between psychiatric hospitals and prison, without the support he needed. 

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia

Image by Matthew Ansley on Unsplash

Questions of Capacity

By Louise Burrell – 19th August 2020

This judgment has since been published here: DP v London Borough of Hillingdon (Rev 1) [2020] EWCOP 45 

As an Adults Social Worker, I consider people’s mental capacity on a daily basis and complete formal documented mental capacity assessments probably once or twice a week. When financial management is involved this often results in paperwork for a Court of Protection (COP) application. I know the COP is there in the background to my work but once my paperwork is sent in, I have never given it much further consideration.   When the opportunity to observe a COP hearing arose I was very keen to see “what happens next”.

Having just been allocated a case concerning a lady in a care home who wanted to return to her own home, with a mental capacity assessment needed and a possible Section 21a appeal on the horizon, I was particularly keen to attend a Section 21a hearing.  With hearings only published late on the previous day, it was a very frustrating 4 hours that morning – sending emails and hoping for responses to attend whatever hearings I could find across England and Wales that could be identified as about a Section 21a appeal.  Attendance at 3 hearings was attempted: one was vacated, and I got no response from the other in time. I cancelled my request to attend the third one, listed for the afternoon, after Celia Kitzinger, co-director of the Open Justice Court of Protection Project came to my rescue and facilitated my attendance at Case No.11173747 Re DP before Mr Justice Hayden, from the Family Division of the Royal Court of Justice list.  She had attended the first hour or so of the hearing from its start that morning and, knowing of my interests and hearing of my frustrations, she emailed to let me know that I might want to join the hearing-in-progress via MS Teams.

The Question before the Court

This hearing was an appeal to a lower court’s decision on a Section 21a appeal.  Having missed the first hour or so, I was thankful that Celia was able to email a quick summary about DP (the person at the centre of the case) and the issues before the court.  DP was a gentleman in his 70s who, having lived in a care home for 16 years, wanted to move to an alternative care home to be closer his one and only friend outside of the care home environment.  He was not objecting to being in a care home as such. 

At the earlier hearing (on 6 May 2020 before DDJ Chahal QC), DP’s representative argued that there was insufficient evidence to rebut the presumption that P had capacity to make his own decision about where he should live.  The local authority had argued that there was indeed sufficient evidence to rebut that presumption, especially given that what was being requested was an “interim declaration” (under s48 of the Mental Capacity Act) and not a “final declaration” (under s15 of the Mental Capacity Act).  The judge in the earlier hearing had looked at the evidence on DP’s capacity – which was an assessment carried out by a doctor (not present at the hearing)  – and found various problems with the assessment, including that the doctor did not explain to DP why he was visiting him and asking questions, and the fact that the doctor did not discuss the specific decision in relation to which DP’s capacity was being assessed,  i.e. should he stay in this care home or move to another one.  Despite finding fault with the capacity assessment, the judge had concluded nonetheless that the quality of the evidence was sufficient for an interim declaration that (in the wording of s48) “there is reason to believe that P lacks capacity” to make the relevant decision.

My first thoughts were: “why on earth is this before such a senior judge? If he has capacity to make a decision about where to live then, great, get on with the move that’s he is requesting;  if he hasn’t got that capacity, then update your mental capacity assessment and get on with a best interests meeting so the gentleman has at least an answer, be that positive or negative”. 

For DP, the issue was whether or not he could make his own decision to move to another carehome so as to be closer to his friend.  For the Court, the issue was what the court should do if the capacity evidence in the DOLS authorisation wasn’t good enough to rebut the presumption of capacity.

The starting point for the judge at the previous hearing was Re F in which HHJ Marshall QC, discussing the capacity test and differences between an interim declaration and final declaration stated:

The “presumption of capacity” reinforces the general approach of the Act, that “P’s” basic right to have the power to make decisions for himself is to be respected and protected, and can therefore only be displaced by sufficient evidence establishing that he does not have capacity in the relevant respect. However, such a finding is what ultimately grounds a formal declaration under s15 of the Act, and s48 expressly confers powers on the court to take steps “pending” the determination of that question. It follows that the evidence required to found the court’s interim jurisdiction under this section must be something less than that required to justify the ultimate declaration. (Re F [2009] EWHC B30 (Fam)). 

In this case DP, acting via his Accredited Legal Representative with Victoria Butler Cole as his counsel, was challenging the fact that he remained deprived of his liberty despite the manifest shortcomings of the mental capacity assessment that were identified by the judge.  His argument was that if the court is not satisfied that the mental capacity requirement was met, it should either terminate the standard authorisation under the Deprivation of Liberty Safeguards, or vary it to a very short period (the time period of perhaps 2 weeks was mentioned) while a better mental capacity assessment is elicited.  What should not happen is what has happened in this case: it was turned into a standard welfare case, which means considerable delay (now nearly a year) in arriving at a final declaration of capacity.   Basically, the argument was that if the presumption of capacity has not been rebutted, the court cannot make even an interim decision to deprive DP of his liberty.  As the judge said, “It is deeply troubling in a mature democratic society if we are restricting people’s liberty with no foundation to do so.”

Human Rights

Although not quite the learning I had envisioned, observing the discussions between the judge and the legal representatives was very enlightening and has given me a much broader understanding of the law, and in particular the application of human rights.  I had already identified in recent weeks a personal knowledge gap in the application of human rights in my work.  Human rights, like the role of the Court of Protection, have been “lingering in the background” but in the hubbub of my daily practice rarely got real consideration.   Every aspect of the 5 hours of discussions I observed repeatedly returned to consideration of Article 5 (right to liberty and security) and Article 8 (respect for family and private life).  (I have since found the Equality and Human Rights Commission Publication GD.13.401 very helpful). 

The judge repeatedly stated that we should be guided by the principles of other Articles such as Article 6 (right to a fair trial).  Consideration should be given to P being able to access an independent and impartial hearing:  this should be within a reasonable time, without excessive procedural delays, with good conduct and diligence by all parties.  It came to light than DP may have a future claim for damages for unlawful deprivation of liberty.

Mental Capacity & DOLS assessments

It was very worrying to hear the opinions of both judge and legal representatives when discussing mental capacity assessments that are presented to them.  

  • They are often “poor”, “bad”, “inadequate”, “not sufficient”, “unsatisfactory”  or “perfunctory”.  Declarations of incapacity might be made “on the thinnest of evidence”.  
  • The judge commented on “little insights into capacity” that can be identified from very personal touches and day to day information such as a person’s actions, behaviours, likes and dislikes etc. but which are not evidenced in assessment documents. He specifically asked about what job DP had done before he had the strokes (in 2000 and 2003) that led to his residence in his current care home. (He was a computer programmer.)
  • The judge said that the doctor who carried out the capacity assessment “had not explained to [DP] what he had come to assess” adding, “that’s fundamental error” because it  does not give someone the  opportunity to prepare for the assessment or create for them  the best opportunity to provide evidence they can understand, retain, weigh and communicate the relevant decision
  • There are often instances where it appears that the assessor has not taken all reasonable and practicable steps to support the person’s capacity
  • It is not always clear that the assessment is based on a presumption of capacity that has been “displaced” (this is a “fundamental civil right”).
  • In some cases, as here, the assessment may not be assessing the right issues, and therefore missing the mark.  In this case, DP was not asked specifically about whether he understood and had weighed up the pros and cons of a move to another care home.
  • Assessments may be rooted in a paternalistic /protectionist approach aimed at protecting P.  This is “missing the point”.  One should “not eclipse or occlude the right of people to assert their own autonomy for good or bad”
  • There is a possibility of discriminatory practice due to assumptions related to diagnosis. 
  • There is an obligation to avoid unnecessary delays

Similar comments were made about the DOLS reports and the paperwork they considered “not fit for purpose”. If the work of trained professionals is in many cases inadequate, it will be interesting to monitor the situation when the Liberty Protection Safeguards are introduced and care home managers will share the responsibility. 

For me as a practitioner completing mental capacity assessments, and considering training as best interests assessor, it was rather worrying listening to these criticisms.  The judge did comment when he said this is “not surprising considering the volume and pressurised circumstances in which they are undertaken” and that “a pro forma is being used”. These comments have made me take an even more critical look at my own reports and also I have now developed the confidence to insist on multiple visits if required and enough time to complete the assessment to the best of my ability.  Having recently chaired a peer discussion group on the theme of “all practicable steps under COVID restrictions” my colleagues are all finding it difficult to maintain the standards they would like in the current working environment. 

Using a Video-Platform

In recent months, having had to attend or chair meetings on video-platforms, it was useful to observe the judge at this hearing.  I have not yet, under COVID restrictions, needed to hold a remote best interests meeting necessary to gather information and opinions of multiple professionals in order to come to a decision.  Mr Justice Hayden said that, after many months into the COVID enforced ways of working, relying on telephone conference calls, which had been the case in the initial hearing, were unsatisfactory. He felt video calls and being able to see each other were important and should be “standard practice”. 

Mr Justice Hayden was critical of DP’s care home who had been unable to make arrangements for a video call conversation (as opposed to a phone call) with him.  The judge described this as “disappointing” and said: “All creative measures should be employed to enable people in care homes to have access to their family face-to-face. I’m a little bit concerned that this care home hasn’t mastered the video-conferencing platform. Can you later get someone in your team to query this?”   I found this very reassuring because during the hearing I observed, the details of DP’s situation were not much discussed.  All parties were well acquainted with this information through the previous hearing and documents I had not seen and time was spent on the technicalities of the law.  Nonetheless it was obvious that DP remained central in the judge’s thoughts and he was making an additional effort to talk directly to DP himself. 

During the hearing I noticed that there were long periods of silence during which Mr Justice Hayden appeared to be thinking carefully – processing information, gathering his thoughts and considering his wording.  My own experience of video-conference meetings is hurriedly writing inadequate notes, in a kind of short hand that I’m confident I will understand later – and then don’t! After observing this hearing I will have no problem in asking meeting participants to pause a minute whilst giving me time make better records. 

Outcome

I was going to title this section “Conclusion”, but that would be inappropriate. At the close of this particular hearing DP still did not have a decision.  With the capacity assessment deemed inadequate, the previous judge not having addressed the key question of the Section 21a appeal and some administrative errors, Mr Justice Hayden concluded that DP’s case needed to be reheard “expeditiously” before a different district judge – so really, starting all over again.   With my very limited knowledge of the legal process, the process so far appears to be an appalling waste of resources with the time delays very unsettling for DP and detrimental to his wellbeing.  On a positive note, shortfalls have been acknowledged and are now being addressed.  I do hope that by the time the next heating is arranged a new – and better – capacity assessment will have been completed in preparation and that those responsible will not be waiting for the hearing to say a new one is needed. 

Would I observe again ?—- Yep!

I have found the whole observation experience very beneficial.  The googling, looking up of legislation, reading up of quoted case law – both during and after the court attendance – has given me a crash course in legislation, that I now realise, I only thought I understood. Listening to a talk about how the Mental Capacity Act is implemented in the courts is one thing – actually observing it as it happens is very different! 

Human Rights has become real and applied.  I can see more clearly that down at the coal face, we have real opportunity to empower our service users.  And based on what I have observed, I have confidence that if the situation of our service users  should ever require consideration by the Court of Protection,  the judge will ensure their right to participate is facilitated and their right to self-determination, if at all possible, is respected. 

I did not find the process of being able to attend a hearing easy.  Fortunately, this was how I chose to spend my day off.  Being able to respond immediately to an email, being able to set aside anything else you might have on to attend a hearing starting in 20 minutes, on an unknown topic and of an unknown time duration, is not compatible with a busy day’s work with deadlines looming.  

But by gum, I’ve learnt so much more than from the mandatory eLearnings I have recently completed.  Having got to grips with the legislation, I’m now on the lookout for a court hearing before a district judge so as to be able to observe the discussions and decision making regarding capacity, autonomy etc that challenge me on a day to day basis.

Louise Burrell is a locum social worker currently completing assignments in Local Authority Adults social care teams. 

A Patient with Severe and Enduring Anorexia Nervosa: The need for a declaration and the capacity to make a decision

By Lily Wildman and Emma Christie – 18th August 2020

The judgment has since been published here:Northamptonshire Healthcare NHS Foundation Trust v AB [2020] EWCOP 40 (16 August 2020)

[N.B. This is an account of a different perspective on the hearing discussed by Clare Fuller in her blog of 17th August 2020, here – Bearing Witness: Anorexia Nervosa and NG Feeding]

Today (Friday 14 August 2020) we attended another (remote) hearing in the Court of Protection concerning AB.  The issue before the court was whether a young woman (AB) with severe anorexia nervosa has the capacity to refuse consent to naso-gastric (NG) tube feeding. (Last week’s hearing, as touched upon in our previous blog post, concerned whether AB had litigation capacity to instruct her own legal team, deciding this in the affirmative.)  In addition to the issue of capacity, this blog post will consider whether decisions which doctors would not in conscience be prepared to carry out, and where parties are in agreement as to the outcome, should continue to go to court in order to seek a declaration.

The Need for a Declaration

If doctors won’t in conscience do it then they shouldn’t be coming to court.

Ms Katie Gollop QC: (counsel for AB)

The applicant in this case (the NHS Foundation Trust) sought a declaration from the court that: a) AB lacks capacity to make decisions about treatment relating to anorexia nervosa and,  following that determination, b) it is in AB’s best interests not to receive any further active treatment for anorexia nervosa. It was clarified in the proceedings that “active treatment” refers specifically to NG tube feeding as no other proposed treatment would help given the severity of AB’s condition. The respondent’s (AB’s) argument was that she does have capacity to make that decision for herself (and her decision is not to receive NG tube feeding).

In this section we consider whether it is necessary for the court to make a declaration. In Re Y (2018) (UKSC 46) Lady Justice Black considered whether it was necessary for cases considering the removal of Clinically Assisted Nutrition and Hydration (CANH) from patients with a prolonged disorder of consciousness, and the removal of life-sustaining treatment more generally, to go to court for a declaration. In Re Y, the patient had been diagnosed as being in a vegetative state. He required CANH in order to prolong his life. The family and clinical team were in agreement that it was not in Y’s best interests to continue receiving CANH and instead of applying to the Court of Protection to seek a declaration that it was lawful to withdraw it, they had applied for a declaration that it was lawful to withdraw treatment under these circumstances without recourse to the court.  The judge granted this  and the Official Solicitor brought an appeal to the Supreme Court (leapfrogging the Appeal Court since the matter was urgent). The Supreme Court hearing went ahead despite the fact that Y died of infection in the meantime.

At paragraph 126 in the Supreme Court judgment, delivered by Lady Justice Black,  it was held that there is no mandatory requirement to seek a declaration where the removal of CANH or life-sustaining treatment is concerned. In dismissing the appeal brought by the Official Solicitor, Lady Justice Black stated that: “if the provisions of the M[ental] C[apacity] A[ct] 2005 are followed and the relevant guidance observed and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court.” In addition to setting out this general principle, Lady Justice Black listed three categories of case where, whilst not a legal requirement to do so, it may be in accordance with “good practice” to apply to the court for a declaration. Firstly, where the conditions in the MCA are not clearly satisfied, secondly, where there is a division of medical opinion and thirdly, where the family members disagree with what is in the best interests of a patient.

Applying Re Y to the facts of AB (today’s hearing,) there is no legal requirement for a declaration to be sought. Whilst not providing NG feeding to AB will ultimately result in her death, this is not in and of itself a justification for bringing a case to the court. In addition to this, the provisions of the Mental Capacity Act have been complied with (see below) and the NHS Applicant Trust and the family members support the decision that NG tube feeding is not in AB’s best interests. Indeed, additionally, at the end of today’s proceedings, counsel for AB, Ms Katie Gollop QC, sought an assurance to allay AB’s fears that the judge might require her to  receive  the proposed treatment:  Lady Justice Roberts assured her that she would not and this was not an assurance which the NHS trust sought to oppose. Therefore, with today’s hearing beginning and ending with NG feeding not being a proposed treatment, it begs the question whether this case needed to come to court for a declaration.

On the one hand, given that an agreement that NG tube feeding was not in AB’s best interests, it could be considered to be somewhat straying into the hypothetical to consider a proposed form of treatment which the clinical team for AB seems uncomfortable in providing. In his evidence, Dr B stated that in NG tube feeding in this case “the gain does not justify the input.” Indeed, if this is the finding and given AB’s past experiences of the proposed treatment (considered fully below), it seems odd to be discussing this treatment at length and in such a distressing environment.

However, whilst the best interests question was agreed by the parties, the authors are in agreement with counsel for AB, Ms Gollop QC, who states that notwithstanding this, “the Trust acted properly and correctly in bringing the application.” Firstly, AB herself in her witness statement emphasises the importance of having autonomy over the decision to refuse NG tube feeding. Balancing paternalism with a patient’s autonomy is central to the provisions under the MCA. As Herring et al. argue, “each person should be free to develop and live out their version of the good life.”[1] We argue that recognising the decision to refuse NG tube feeding as AB’s decision would formally recognise her autonomy to make decisions which are respected and followed by medical professionals. A further justification for bringing this case to court, as raised by Ms Katie Gollop QC is that, given the likelihood of cardiac arrest or further medical complications as a result of AB’s condition, it is necessary to ensure that medical professionals outside of the applicant Trust would not attempt to administer NG tube feeding. Therefore, we agree with counsel for the respondent that this is illustrative of a case where a declaration should be sought.

Although Lady Justice Roberts has not yet made a finding as to AB’s capacity (or lack thereof), it is submitted that, whilst not a legal requirement, this case is illustrative of where it may be “good practice” to seek a declaration from the court because the key issue of AB’s capacity was disputed. This central issue concerns AB’s autonomy; her right to make her decision to refuse NG feeding. The submissions with regards to capacity are considered fully, below.

The Issue of Capacity

Whether AB has capacity or not to refuse NG tube-feeding was the key issue in today’s hearing. S 1(2) of the Mental Capacity Act 2005 (MCA) states that there is a presumption in favour of capacity.  This can be rebutted by reference to the criteria set out in ss2 and 3. In order for the presumption of capacity to be rebutted (and for a person to be deemed to lack capacity to make a specific decision), they must be assessed as being unable to understand, retain, and/or weigh the information required to make a decision (and to communicate their decision e.g. vocally, via sign language, or other means), and this inability must be due to an impairment or disturbance in the functioning of the mind or brain.

Where a patient has capacity to make the relevant decision, the Court of Protection has no jurisdiction. The issue of capacity was at the heart of the expert witness evidence from Dr B who had been part of AB’s clinical team for a number of years. In his evidence, he submitted that he believed AB failed the capacity test under ss2-3, on the basis that she was unable to weigh the information related to the NG feeding (S 3(2)) because she finds it so “aversive”.  He claimed that the reason why she found it so aversive was “partly or wholly as a result of not being able to allow herself to have an increase in nutrition which is a direct consequence of her mental disorder”.

The capacity of patients with severe and enduring anorexia nervosa to make decisions about their own nutrition is a contentious area. Emma Cave and Jacinta Tan in their article Severe and Enduring Anorexia Nervosa in the Court of Protection in England and Wales,’ state that courts should take a patient-centred rather than clinician-centred approach when considering capacity.  It is possible to see that, in some cases, anorexia nervosa may affect the capacity of the patient to make decisions in relation to their nutrition. However, this assessment should be case specific and not applied as a general presumption. Further, even where P does lack capacity in relation to their nutrition, it does not, necessarily, mean that the patient lacks capacity in relation to all medical decisions.

The skeleton argument of the respondent (AB) identifies five cases where individuals living with anorexia nervosa were all found to lack both litigation capacity and capacity to make the relevant treatment decision. These were the cases of E, L, X, W and Z, all between 2012-2016.[2]   In the present case, however, it has already been established that AB does have litigation capacity. Further, Ms Katie Gollop QC used the case of Re E, to refer to a passage from the judgment of Peter Jackson J (as he then was) which discusses the potential Catch 22 situation that can arise in relation to capacity and anorexia. This Catch 22 is the claim that the nature of anorexia nervosa directly affects whether P will decide in favour of proposed treatment, with a preoccupation on whether weight-gain will result. This reasoning has caused medical experts to conclude patients lacked capacity, as the very nature of anorexia nervosa, it was argued, precludes patients from weighing the information with regards to treatment options.

Indeed, in today’s hearing, Dr B submitted that AB was holding onto the ‘overvalued idea’ of avoiding weight gain, resulting in an inability to ‘weigh things appropriately’. In AB, Ms Gollop QC described this argument as ‘circular’. Indeed, it does appear that, to use the nature of anorexia nervosa to preclude capacity, may come close to a blanket presumption as to whether any patient with the condition can have the capacity to refuse their consent to treatment.

We consider this to be a disconcerting idea, as it assumes that there are no capacitous reasons that patients could give to refuse treatment, or at least, that patients are inextricably bound to the voice of their illness in all aspects of their decision-making. This line of reasoning was rejected in the case of Re SB, where experts asserted that P could not weigh the information in such a way that it be said she had capacity to consent to an abortion. In spite of this, P was indeed able to provide rational reasons for not wanting to have the child. P was held by the judge to be able to consent to the termination of her pregnancy on the basis of this ability to provide rational reasons for going ahead with the abortion.

After hearing the statement of AB, we are unconvinced by the idea that anorexia nervosa patients are unable to extract their decisions from the voices of their illness. In her statement AB wrote that, ‘my illness is a part of me, but it is not all of me; it does not define me, and that is where I think that Dr B is wrong’. In her statement, AB was able to lucidly express a number of reasons why she wished to refuse treatment. Crucially, none of the reasons she gave related specifically to a fear of putting on weight. Instead, they refer to the effect of past experience of force feeding on AB, the risks of tube feeding, futility of NG tube feeding and the desire to focus on her quality of life.

AB gave a harrowing account of her past experiences as an in-patient. She started by saying

I have been held down by my legs with a tube thrust forcibly up my nose. I have had food inserted through a syringe so quickly and violently that I was sick.

AB

It is clear that the treatment has been highly traumatic, both physically and emotionally for AB, and she does not wish to repeat such experiences. In addition to AB’s negative experiences in the past, she has also been able to weigh the benefits and drawbacks of the treatment, stating

I do not want to die, and I do understand what the illness is doing to me, and the consequences of continuing down the path that I am on. Similarly, though, I also understand what the physical risks, as set out by Dr B, of forcibly feeding me now are, and I wonder in addition whether in fact the mental stress of being treated against my will would kill me.

AB

The medical evidence of the case sets out life-threatening risks of tube feeding. In addition to this, AB has considered that there is unlikely to be a lasting benefit to her health if she is tube fed: this is because while she is able to gain weight in the short-term, this weight has never been able to be maintained in her 13 years of suffering from anorexia nervosa.

Finally, the importance that AB places on her autonomy is undeniable and goes to the heart of the principles under s 1 of the MCA, which holds that a person must be presumed to have capacity, respecting the person’s rights and freedom of action. In her statement, AB expresses:

I have been helpless – and watched helplessly – as every aspect of my life, every aspect of my being, has been controlled by those with the power to do so’

AB

Rather than seeing a voice controlled by her condition, we see an articulate consideration of her quality of life, a consideration of the long-term prospects of treatment and an expression of her personal autonomy. The following words of AB ring in our minds as we wait for a judgment to be handed down in the coming days:

The decision not to undergo further inpatient treatment is mine. The illness is a part of me, yes. It is a voice, yes. It is a bullying and powerful voice, yes. But the voice making this particular decision is mine.

AB

The judgment for this hearing will be handed down within the next week. If AB is found to have capacity by Mrs Justice Roberts, this will be the first case in England and Wales since 2012 in which a patient with severe and enduring anorexia nervosa is found to have capacity to make her own decisions about nutrition.

Lily Wildman is an aspiring barrister who has justgraduated with a law degree from Durham University and will be commencing the Bar Practice Course in September this year.  During the COVID-19 pandemic, she worked as a Care Assistant at a Nursing Home, which honed her awareness of the safeguards surrounding adults who lack capacity. She tweets @lilymwildman

Emma Christie is an aspiring barrister who has recently graduated from Durham Law School and will be returning to pursue an MJur researching the Domestic Abuse Bill (2020).  She has experience volunteering with dementia patients. She tweets @emmaleechristie


[1] I. Goold and J. Herring, ‘Great Debates in Medical Law and Ethics.” (Palgrave, 2014)

[2]  Re E (medical treatment: anorexia) [2012] EWHC 1639; The NHS Trust v L and Others [2012] EWHC 2741; A NHS Foundation Trust v Ms X (Official Solicitor) [2014] EWCOP 35; Re W (medical treatment: anorexia) [2016] EWCOP 13; Cheshire & Wirral Ptnr NHS FT v Z [2016] EWCOP 56.

Photo by Thiago Cardoso on Unsplash

How to Find a Court of Protection Hearing to Observe

By Celia Kitzinger, 17th August 2020

There are various ways for you to find a hearing to observe, if you are interested in seeing law in action in the Court of Protection. Obviously, you can simply pick one of our “Featured Hearings” from the home page of our website: we update them every evening for the following day.

Or you can scroll through our tweets the evening of the day before you want to observe a hearing. There are usually many more there.

This is a brief guide to finding hearings for yourself, if you don’t want to rely on us to tell you what’s available.  There are several reasons why you might want to find hearings yourself:

  • We only reproduce a selection of what’s listed – somewhere between 3 and 10 usually.  There are around 30 hearings every day, so if you can find them yourself, you will have more choice.
  • The hearings we’ve selected may not be at a time of day you can observe (though we do try to include both morning and afternoon hearings).
  • The hearings we’ve selected may be vacated or adjourned – in other words, when you ask to observe them, you are told they are not happening – so you may need to find another one quickly.  (Hearings can be vacated right up until the last minute before the hearing, if the parties can come to agreement without the need to involve the judge.)
  • We only post hearings the day before.  If you want a longer lead-in time, you can sometimes find hearings listed up to a week in advance in CourtServe (see below) and organise your time so as to be available then. (The downside is that they may well be vacated before the date they are listed for.)
  • You might want to observe a hearing on a specific issue (such as DOLS, or Finance Deputies, or where P should live). We might not have selected a hearing dealing with the issue you are interested in – so it can be useful to check the lists yourself for what’s available that day. (If you are interested in a specific issue, you are most likely to be successful if you check the Court of Protection Daily Cause List – see (2) below).
  • We’re sometimes asked for hearings before a specific judge, or in a particular regional court. We don’t have the resources to do this for everyone, but if you know how to locate hearings yourself, you can find them!

There are three websites where you can find lists of hearings

1.  Family Division Daily Cause List

This lists hearings in the Family Division of the Royal Courts of Justice.  The list is published every afternoon – usually around 4.30pm -5.00pm – for hearings on the following day. 

If you bookmark this page and check it regularly you will find hearings in the Court of Protection listed – but not every day. Most of the hearings on this list are NOT hearings in the Court of Protection (and they are not open to the public).  But the same judges do sometimes hear Court of Protection cases.   These hearings are before the most senior judges in the Court of Protection and they are typically assigned the most “complex” or “serious” cases.  You may recognise the names of some of the judges:  Mr Justice Hayden, the Vice President of the Court of Protection, is one of them.

There’s no information on this list about the issues that will be dealt with in the hearing – you’ll only discover this once the hearing begins.

There’s also no time estimate provided on this list.  I once requested to attend a hearing, having allotted a morning for it, only to learn once I received the link that it was scheduled to last for three days. Another time, the hearing was done and dusted in 16 minutes.

You can find Court of Protection hearings on this list by looking for the words “Also sitting as a Judge in the Court of Protection” next to a judge’s name, and the letters “COP” before the case number. For example:

Before MRS JUSTICE THEIS
Also sitting as a Judge of the Court of Protection
Wednesday, 12 August, 2020
At 09:30 AM
Applications in Court as in Chambers
FD20P00480  MS Teams Hearing
At 10:30 AM
Applications in Court as in Chambers
HEARING NOT OPEN TO THE MEDIA
ZC194/19  MS Teams Hearing
At 02:00 PM
FOR HEARING IN OPEN COURT
COP 13632000 Re: RD  MS Teams Hearing

This judge, Mrs Justice Theis, has various hearings in the morning that are not  Court of Protection hearings (and not open to the public) and then a Court of Protection hearing at 2pm “in open court” (i.e. the public can attend).  The case number is 13632000, and the case name is “Re: RD” (these are usually the initials of the person at the centre of the case).  It is a Microsoft Teams hearing (i.e. via a video-platform, rather than by phone as many still are).  There is a single email address for all hearings listed on this page (rcj.familyhighcourt@justice.gov.uk ).  It’s provided towards the top of the page. They ask you to email before 9.30am on the day of the hearing – so do that if at all possible. In practice, you will sometimes be able to gain admission later than this. (On the other hand, sometimes you get no reply at all – they are very busy and occasionally simply fail to respond to emails.)

2.  Court of Protection Daily Cause List

Despite its name – which makes it sound pretty comprehensive – this lists only a small selection of Court of Protection hearings every day: those held from the London-based Court of Protection on the 5th Floor of First Avenue House, 42-49 High Holborn, London WC1V 6NP.  There is one email address (and phone number) for all hearings on this list and it’s provided near the top of the page, where it suggests contacting the Judicial Support Team on 0207 4218718 or courtofprotectionhearings@justice.gov.uk.

This list is the most user-friendly option for public observers, because it provides helpful information including the issues the hearing is going to address and a time estimate for the hearing.   It’s worth bookmarking and checking it every day if you’re interested in observing hearings.

The list is published every afternoon – usually around 4.30-5pm – for hearings on the following day.  There are usually 3 – 6 hearings listed on this website every day, sometimes more, and sometimes none at all.

Here is a sample entry:


In The Court of Protection, 5th Floor First Avenue House, 42-49 High Holborn, London WC1V 6NP
Wednesday 12 August 2020
Before Senior Judge Hilder
Start Time  Case Details

10:30AM   13422792 Directions where KS should live and the care he should receive. Private hearing – remote hearing. T/E 1 Hour
11:30AM   13544953 EW. To consider a) application for authorisation of deprivation of liberty. Private hearing – remote hearing T/E 1 Hour

On this date, Senior Judge Hilder (another judge whose name you might recognise – she often gives talks about the Court of Protection at conferences) has two hearings.  The one at 10.30 am (Case number 13422792) concerns someone with the initials “KS” and the hearing is about his residence and care.  The one at 11.30 am (case number 13544953) concerns EW and an application for a Deprivation of Liberty.  Both are ‘remote’ hearings (at time of writing, this usually means telephone hearings from this list) and both have a time estimate (T/E) of one hour.  This list is the only one of the three that systematically provides both a list of issues to be heard by the court and a time estimate

You will notice that they both say that they are “private” hearings.  When hearings are listed as “in open court” or “open to the public” or “in public”, this usually means you are free to attend but you will need to gain access.  When hearings are listed as “private” you can usually attend them (except for Dispute Resolution Hearings [DRH] – these you can not attend) but you need to ask the judge’s permission and give a reason why you want to attend (e.g. “as a social worker, to understand better how decisions about capacity and best interests are made by the court” or “as a law student, to observe the workings of the court”, or “as someone whose family is involved in a forthcoming COP hearing, to observe someone else’s experience in court to give me confidence going forward to mine”, or “as a member of the public wishing to observe Open Justice in the Court of Protection”).   There is no reason to avoid requesting access to hearings simply because they are labelled “private” or “public not admitted”.  In fact, I have discovered that often judges do not know how the case they are hearing has been listed, and I have sometimes been told that a case listed as “private” should in fact have been listed as “public” and once that a case listed as “public” should have been listed as “private”.

If you only want to observe one hearing – and especially if you have a preference as to the issues that the hearing will address – this is probably the best website for you to use.

3.  CourtServe

Courtserve is a live court listings service by Courtels Communication Ltd under contract to Her Majesty’s Court and Tribunal Services.  It lists all the hearings in all the courts across England and Wales.  You will need to register to use it (with a user name and password) but it is free to use.

For your purposes, you need to locate the section called “Court of Protection lists” under the “County Courts” tab.   It is rather oddly located in the list of geographical place names – between Colchester and Coventry.  Under the heading “Court of Protection”, you’ll find a list of towns and cities where hearings are being held (and the dates in the column on the right).  This is very useful if you particularly want to observe a hearing in your geographical area.

The Court of Protection has seven regional ‘hubs’ in addition to the London office.  These are based in:

  • Leeds (the North East-East Regional Hub)
  • Newcastle (the North East North Regional Hub)
  • Manchester (the North West Regional Hub)
  • Reading (the South East Regional Hub)
  • Bristol (the South West Regional Hub)
  • Birmingham (the Midlands Regional Hub)
  • Cardiff (the Wales Regional Hub).

The postal addresses, email addresses and phone numbers for the regional hubs are provided on this webpage

Until recently, requests to observe a hearing had to be sent to each court separately, but now, requests must go to the regional ‘hub’, rather than to the individual court where the hearing is scheduled to take place.  So, for example, a request to observe a hearing in Swansea should be sent to the Cardiff email address; a request to observe a hearing in Oxford goes to the Reading email address; a request to observe a hearing in York goes to the Leeds address.  The system is still under development and there are some problems with the email addresses provided at present – some have only the address at which the judge is sitting and not the regional hub address; some have both addresses!  You should also be aware that some regional courts have entered the regional hub address incorrectly (with typos) so that your email will bounce back as undeliverable.  You can check the correct email address on the webpage here.  Sometimes there’s no contact address provided – but it usually tells you which ‘hub’ the court is part of at the top of the page, from which you can deduce which address to write to.

The information provided by the different courts is very variable.  Sometimes you’ll have nothing more than a case number and time.  Sometimes there isn’t even a case number – it will just say “Court of Protection hearing” or “Re. AB” or “private hearing”.  Note that the same principles apply for “private” hearings listed in CourtServe as on the Court of Protection Daily Cause List above: you need to ask permission of the judge and give a reason if you want to attend a “private” hearing.  On 5 August I was given permission to observe a hearing that was listed like this:

2pm 11578958 NG: IN PRIVATE – TO BE HEARD REMOTELY – NOT OPEN TO THE PUBLIC – DIRECTIONS – T/E 2 HOURS

It is unusual to have any information about either the issues to be addressed in the hearing, or a time estimate for the hearing (although either or both are provided occasionally, as in the example above).    There is sometimes (but not always) information about whether a hearing is “Remote” or “Attended”/”In person”.  Quite often this is conveyed by naming the platform to be used (e.g. “Telephone” or “BT MeetMe”, or “Microsoft Teams”, “Skype”, “Zoom” or “CVP” – Cloud Video Platform).

You should also be aware that currently only about half of the Court of Protection hearings listed across England and Wales actually appear under the “Court of Protection” heading.  The other half (or more) are scattered throughout the list under the names of individual towns or judges.

I did a comprehensive search through CourtServe on three days in the first week of August 2020 just to see how many hearings I could find. 

  • On 3 August I found 19 hearings only 11 of which were under the COP heading. 
  • On 4 August I found 21 hearings, of which 10 were under the COP heading. 
  • On 5 August I found 37 hearings of which 16 were under the COP heading.

So currently it’s averaging out at about half of all hearings appearing under the Court of Protection tab.  If you are looking for COP hearings in a particular geographical locality (other than the South East), this does mean for now that you will need to click through the list on the names of individual towns and cities to find COP hearings that have not been entered under the COP tab. This is a massive improvement on a few months ago when there was virtually nothing under the Court of Protection tab – and I can see signs that it is improving week by week.  Some regional hubs – in particular the South East Regional Hub – now put (virtually) all their hearings under the Court of Protection tab. 

CourtServe was developed for use by court professionals and it probably works well for legal staff who simply want to know when their hearing has been listed and can type the case number into the search facility.  For would-be public observers looking for Court of Protection hearings though, it’s a bit of a nightmare as soon as you venture outside of the Court of Protection tab. 

There is no standard presentation format.  You can usually recognise COP hearings by their case number: they almost all consist of 8 digits beginning with 1 and no letters of the alphabet as part of the case number  – except occasionally a ‘T’ at the very end.  (I’ve tried to find out what the ‘T’ means and nobody knows.)   Sometimes it may appear that the number begins with letters because the initials of the person the case is about are given before the case number, rather than after it (which is more usual).  Watch out also for the “AM” or “PM” from the time of the hearing, which sometimes appears ‘attached’ to the beginning of the case number.  Sometimes they also say “Court of Protection” or “COP” by them. 

Here are some examples taken from the lists 3-5 August 2020: none of these appeared under the COP tab and none included the information that the judges were sitting as judges in the Court of Protection. 

a)  10.00AM  COP 13533327 Directions 1 hour via CVP

b)  2.00PM 1360178T BB

c)  2.00PM Re: B – HEARING – NO MEDIA ATTENDANCE ALLOWED – ATTENDED

d)  3.00PM 13559791 GJD DRH 1 hour

e) 3.00PM  BT meet me 13559543

You should be able to see that four of the five have 8-digit numbers beginning with 1 (in fact 135 and 136 are very common opening digits).  Two of them also provide the initials of the person at the centre of the case (in (b) it’s “BB”; in (d) it’s GJD).  There are lots of other initialisations in these entries which will become familiar as you work through the lists (and which I’ve already mentioned earlier).  The only hearing I can tell in advance that I would not be allowed to attend is (d): it’s a Dispute Resolution Hearing.  I would consider asking to observe any other others – including (c), although it is an “attended” hearing, meaning that I would need to be able to attend physically in a real courtroom!  I’ve only very occasionally come across hearings without case numbers, and only attended one of them – at which point it became clear that the reason for no case number was that it was an ‘urgent’ hearing on Tuesday morning following a serious medical incident late on the Friday night before.

Finally, all three of these lists do “update” regularly during the course of the day (and overnight).  A hearing that was listed at 9pm the evening before may have disappeared by 10am the next morning – and new ones may have been added. All three websites have a “last updated” time check at the top of the page.  Keep an eye on it.

This information should enable you to find Court of Protection hearings to observe if those we list as Featured Hearings on our website, or those we tweet via @OpenJusticeCoP don’t meet your requirements (e.g. for time, geographical location, or issue). Good luck – and don’t forget that we’d be very interested in considering publishing a blog about your observations, if you wanted to write for us!

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project

Image credit: By Free Clip Art – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=73556192

Bearing Witness: Anorexia Nervosa and NG Feeding

By Clare Fuller – 17th August 2020

The judgment has since been published here:Northamptonshire Healthcare NHS Foundation Trust v AB [2020] EWCOP 40 (16 August 2020)

Yesterday I bore witness. I cannot think of an opening statement to articulate the experience better; to describe it as reporting of facts or a learning opportunity diminishes the very human experience at the heart of this case.

In writing I remain mindful of the anonymous life that was scrutinised in the Court of Protection and wish to acknowledge the dignity of AB, the young lady at the heart of this case, and the suffering she endured initially as a victim of bullying at school and then a life dominated by anorexia nervosa. I wish to also acknowledge the compassion shown by Mrs Justice Roberts in her communication with AB throughout the hearing (at which AB was present) and especially in her communication with her at the end where she addressed AB directly (see a blog commending this practice, here), reassuring her that there was “no risk at all” that her judgment would authorise naso-gastric [NG]  feeding against AB’s wishes.

So how do I come to be writing about this at all? It would seem somewhat out of my area of interest and expertise as a palliative care nurse. My interest was piqued by a Twitter post from Celia Kitzinger, co-director of Open Justice Court of Protection, with whom I have previously exchanged correspondence relating to capacity and decision making from both a professional and personal view. She alerted me to the hearing, which was open to the public,  and I followed this up with an email request to the Court of Protection judicial team in which I identified the time and date of the hearing, the name of the judge, the case number and my position as a Registered Nurse with an interest in the Mental Capacity Act 2005.  I received a swift response from the Court Clerk with a link to Microsoft Teams to join the hearing.

The hearing centred around AB, a woman in her late twenties with a 13-year history of anorexia nervosa.  It followed two earlier court hearings (see this blog for a summary of one of the earlier ones), including a ruling that AB had litigation capacity to instruct counsel to represent her. This meant she had instructed her own solicitor and barrister for this hearing, rather than being represented via the Official Solicitor. 

After joining the hearing, it took me a while to fully appreciate the nuances of the case as initially it appeared that agreement had already been reached; everyone agreed that it was not in AB’s best interests to be fed via NG tube against her wishes.  The arguments presented by both parties demonstrated the complexities of the law and the challenges of applying section 3 of the Mental Capacity Act 2005, specifically the ability to use or weigh information as part of the decision-making process.

We heard first from the Doctor who knows AB well and described AB’s illness as “severe and enduring”. AB has been treated unsuccessfully for anorexia nervosa for many years and the Doctor summarised the current position by stating that “rather than trying to force someone into recovery it is about improving quality of life”.  AB has had multiple admissions for forced NG feeding, which she described in detail in her witness statement. The Doctor felt that in this case “the gain you get from it does not justify the input” and highlighted the very real threat of organ failure by re-feeding syndrome potentially caused by feeding after a period of malnourishment (AB’s current weight is around 26 kg or 4 stones, with a BMI of 9.7). At best interests meetings it had already been decided that AB’s management would be “symptom focused healthcare”.

This hearing however did not hinge on whether or not to feed AB against her will, using restraint,  but on whether she has capacity to consent to or to refuse NG feeding (in which case the Court of Protection has no jurisdiction and it is a decision for AB to make for herself) or whether she lacks that capacity – in which case the decision about NG feeding should be made for her by the treating team and, now, the Court, on the basis of her best interests.

The Doctor presented the case that while it would not be in AB’s best interests to receive NG tube feeding, she did not have capacity to make this decision herself. The argument that she does not have capacity to refuse NG tube feeding was based on what was considered to be AB’s ‘over-valued idea’ that it is desirable to be thin and to avoid being fat. This ‘over-valued idea’, the Doctor said, infected her ability to weigh things up appropriately.

AB does not agree. She wants to make her own decision about the NG tube: “”it is a decision that I do not want to be made by anyone else: not by my illness, not by my team, not by anybody”.  Her counsel argued that AB was not fighting to be thin but fighting not to be force fed (while understanding this would lead to death).

We had an indication of what AB had experienced through her Doctor’s account: however to hear AB’s own statement felt like being given a window into her world. AB requested her statement to be read by her solicitor: that did not diminish the impact of her words. We heard AB’s view on her illness, the root of this and the impact of 11 admissions and forced NG tube feeding on her physical and mental health. AB described articulately and in harrowing detail the physical restraint used and the impact this has had on her.

“To say simply that I have had 11 in-patient admissions doesn’t in and of itself convey what happened during those admissions.  It couldn’t.  I have been held down by my legs with a tube thrust forcefully and forcibly up my nose.  I have had food inserted through a syringe so quickly and violently that I was sick.  I have had my mobile phone removed from me so that I couldn’t call my friends or my family, and they couldn’t contact me.  I have been restrained and force fed in front of other patients. I have been left covered in bruises and scratches.  I have been thrown down on to a bed because I refused to sit in a chair.  I have had my feet stamped on when being manhandled.  I have been lied to, blackmailed, promised that something would happen, only to then be told that it won’t, and threatened.  I have been searched on returning from leave, as have my parents.  I have been helpless – and watched helplessly – as every aspect of my life, every aspect of my being, has been controlled by those with the power to do so.  In turn, I have kicked and screamed until I’ve been hoarse.”

AB

My thoughts at this point were on the suffering AB has endured that led to her illness, the suffering she has experienced as part of her illness, and the pain her parents must be experiencing. As a Mum I cannot begin to imagine the feelings of powerlessness in such a situation.

Despite the restrictions of her illness, AB also said she wanted “to continue living the life that I love, with those who I love, and those who love me… It is a life that I lead one day at a time, making the most of each day, not knowing whether one day I will simply not wake up”.  She described gaining much pleasure from interactions with family and with her pets (a husky, a parrot, a tortoise and a ferret). 

AB recognised the voice of anorexia nervosa – she described it as a “bullying and powerful voice”.  But, she said, “the voice making this particular decision [about NG feeding] is mine”:

“It is a voice made hoarse by screaming, and tearful by the prospect of being forcibly treated against my will – knowing all the while both that any such treatment may cause my death in any event, and that, even were it not to, the likelihood of it ‘working’ is minute.  I do not believe that anyone would agree to undergo further inpatient treatment knowing what it entails and if told, as I have been, that the chances of ‘success’ – whatever that actually means – are so low.”

AB

So, it would appear simple. AB does not wish to be restrained to be fed and the medical team do not feel it is in AB’s best interests to be restrained (for a likely period of at least 6 months) to be fed. Where then is the disagreement between the parties and why does it matter?

Crucially, the parties disagree about whether or not AB has the capacity to make the decision to refuse medical treatment herself.

The debate that followed revealed some of the infinite loop or circular argument if it were claimed that AB lacks the ability to make a capacitous decision about nutrition because she has anorexia nervosa. The barrister representing AB in court argued that:

 “the autonomy of people with anorexia should be guarded as vigorously and rigorously as those with different impairments of the functioning of the mind and no assumptions should be made about the decisions they are capable of making.  The statutory presumption of capacity applies as much to those suffering from severe, life-threatening anorexia as it does to all others.”

Counsel for AB

What I took from observing the hearing are two key points:

  • First, a finding that AB has capacity would mean that she retains her right to autonomous decision-making. The outcome likely (no NG feeding) remains the same, however decision-making would be clearly driven by AB and not made in her best interests. This matters to AB.
  • Second, if the Court finds that AB has the capacity to make decisions about whether or not to undergo tube feeding, then she will be in a position to make an Advance Decision to Refuse Treatment (ADRT) which is only possible if you have capacity to make the relevant decisions. This would provide her with lifelong protection from that unwanted treatment if she loses capacity.

This is my first experience of being present for a Court of Protection hearing. I will be reflecting on the hearing as part of my professional re-validation process and all elements of our Nursing and Midwifery Code of Practice were relevant.  (These are: prioritise people, practice effectively, preserve safety and promote professionalism and trust). I would urge other nurses to consider attending the Court of Protection as part of their professional development: the Open Justice Court of Protection Project provides excellent support for anyone wanting to do this.

Listening to the barristers’ arguments was compelling and I learned much about the Mental Capacity Act 2005. Before the case I was fully aware of section 3 of the Act (the ability to use or weigh information as part of the decision-making process), but had not appreciated the full application of this and the challenges there could be in demonstrating that this requirement was met.   What would I rule if it was my power? Listening to my head and my heart and with the evidence presented in Court I would say that AB has capacity to decide her future. My head applies the MCA and I find AB able to understand and retain information and to communicate her decision – that was never in question. Crucially I consider, on the basis of her witness statement (from which I have quoted above) that AB has insight and the ability to weigh up information despite her illness – the question that matters most in this case. My heart listens to a young lady who has suffered enough: she is asking to maximise the quality of her life and to spend her life doing the things she loves with the people she loves. The questions I would ask AB now would be drawn from Atul Gawande’s “5 Questions to Ask at Life’s End”:

  • What is your understanding of where you are and of your illness?
  • Your fears or worries for the future
  • Your goals and priorities
  • What outcomes are unacceptable to you? What are you willing to sacrifice and not?
  • And later, what would a good day look like?

At the time of writing a decision has not been made.  Mrs Justice Roberts acknowledged the need for swift decision making given the fragility of AB’s current health. If AB is found to have capacity to make a decision about her own nutrition, this will be a landmark ruling for patients with anorexia nervosa.

I started writing by saying that yesterday I bore witness and I end by reflecting on the impact that observing this case has had on me. Without doubt, the biggest impact is thinking of both AB and her family.   I now also have a better understanding of the application of the Mental Capacity Act and specifically the finely balanced argument that surrounds the ability to make a capacitous decision. I will be reading the judgment to better understand how the judge made sense of the arguments on both sides and arrived at her decision that AB either does, or does not, have the capacity to make her own decision about the NG tube.

Clare Fuller RGN MSc is Lead Practitioner for Palliative and End of Life Care.  She tweets @ClareFuller17

From Prison in Ireland to Care Home in England

By Adam Tanner – 14th August 2020

On Friday, August 7, 2020, I observed a hearing (Case number COP 13631515 Re OB) before Mrs Justice Knowles, a Tier 3 judge in the Court of Protection.   An application had been made by the Health Service Executive of Ireland (HSE) to authorise the transfer of a young man, P, from a prison in Ireland to an interim health care facility in England (funded entirely from Ireland).

The case itself was listed as an hour-long hearing but took less than 45 minutes.  The application had the  full support of all other parties.   

At the opening of the case, and in emails prior to the case, those present in the virtual Court were made aware that this case was subject to a transparency order. This order prohibits anything which may lead to the identification of P, or any member of his family, or the hospital provider, whether through direct naming or in any other way.

The barrister representing HSE (Henry Setright) was aware that public observers were present on the Zoom hearing and he laid out the facts of the case in very clear detail for our benefit. Despite the guidance from Mr Justice Hayden that there should be introductory summaries of the issues involved in the case, it often happens that lawyers and judges alike forget that others are in the court,  many of whom will have no clue about the facts of the case. It was a breath of fresh air to see counsel immediately suggest to the court that an overview be given for the benefit of those who were not a party to the case.

It was said that P had been diagnosed with autism, bipolar disorder, intellectual disability, a conduct disorder and also showed signs of a personality disorder. It was also said that P had a history of self-harm, having done so through cutting himself on at least two known occasions. Counsel stated that P’s current placement, within prison, left him in “unsatisfactory circumstances” entirely unsuitable given his very clear vulnerabilities. He was unable to take up the option of bail because there was no suitable placement for him in Ireland.

The issue in this hearing was mainly centred around the jurisdictional issues under the Mental Capacity Act 2005 of transferring a patient deprived of his liberty from Ireland to England. The applicant was asking the court to recognise and enforce the original Irish order, pursuant to paragraphs 20(1) and 22(1) of Schedule 3 of the MCA 2005. Schedule 3 allows for the international protection of adults and allows for the English courts to recognise and enforce protective measures which were issued by another jurisdiction.

HSE noted that Mr Justice Hayden had recently ruled on a similar matter in the case of HSE v Ellern Mede Moorgate [2020] EWCOP 12 (https://www.bailii.org/ew/cases/EWCOP/2020/12.html). The facts of these two cases are very similar and as such counsel pointed to this ruling to act as guidance in this case. Hayden J said that the Court must consider several instruments, to ensure that P’s rights are not infringed: this includes the MCA, the Human Rights Act, and the Hague Convention on the International Protection of Adults (https://assets.hcch.net/docs/c2b94b6b-c54e-4886-ae9f-c5bbef93b8f3.pdf).

In the current case, Knowles LJ was satisfied that the conditions laid out by Hayden LJ were met and that all criteria were satisfied for the recognition and enforcement of the original Irish order, allowing P to be transported to his interim care facility and then finally his permanent care facility in England.

This hearing was unlike any I have seen in the Court of Protection thus far, as it was noted right at the start of the hearing that applications under Schedule 3 are not a common occurrence.

My experience of this hearing was that it exemplified the transparency of the court: access to the hearing was granted within 10 minutes of an email being sent, a very clear introduction to the case was made for our benefit (without a reminder being given), and an attendance sheet was also provided before the hearing. Furthermore, once the hearing was over, I quickly received a copy of the transparency order and was able to clarify what the order allowed in the same afternoon.

As a PhD researcher, with a focus on the Mental Capacity Act and patients unable to make their own decisions, it is always a useful experience to see the Court of Protection in action. This case expanded my personal knowledge of Schedule 3 of the MCA and how vulnerable adults from other jurisdictions can be treated under the provisions of the MCA. It was also interesting to note the brief discussion that was had at the end of the case, concerning the public purse and the fact that all treatment here in England would be funded entirely by Ireland. In my research, concerning end-of-life medical care, the Court is often very hesitant to discuss the funding aspects of treatment; however, as this was an inter-jurisdictional case, finances were much more relevant.

Adam Tanner is a PhD researcher in mental capacity law and tweets @AdamrTanner

Accessing Open Justice: Our Experience

By Emma Christie and Lily Wildman – 13th August 2020

The Court of Protection has been labelled by critics such as journalist, Christopher Booker, as the ‘most sinister’ and ‘shadowy’ court in England and Wales.

The promotion of an open justice system is fundamentally important to society; it enables the public to engage in proceedings and report on them (so far as compliant with reporting restrictions) and it furthers principles such as public confidence and an impartial judiciary. However, as noted by Celia Kitzinger in an earlier blog post, it is rare that the public attend Court of Protection hearings. This somewhat compromises the achievement of open justice.

With the majority of hearings now operating remotely, we took advantage of the “Open Justice Court of Protection Project” to observe a hearing.

Our first experience with the Open Justice Court of Protection Project arose from stumbling upon the twitter page (@OpenJusticeCoP). Their page states their objective of promoting open justice and goes on to list court hearings by date, with an email and telephone number to contact to register an interest in observing the hearing. Interested but somewhat unsure about the protocol for getting in touch with the court, we messaged the reliably helpful twitter page, and – with support from Celia – we found it remarkably  straightforward to access a hearing on Friday 7 August 2020.

We chose one listed in the Family Division of the Royal Courts of Justice (the listing page is here).  These hearings are before the most senior (Tier 3) judges in the Court of Protection – for us, this was Mrs Justice Roberts.  The case (COP 13630725 Re: AB)  was listed  for hearing in open court at 10:30am.

We sent emails requesting access to the contact email address given on this listing webpage.  As advised, our email subject lines contained the time and date of the hearing, the name of the judge and the case number.  Our emails were short, but professional, stating that we were aspiring barristers with an interest in open justice and that we wanted to learn more about the Mental Capacity Act 2005 in practice. In response, we received emails from the Court Clerk which included a link to the Microsoft Teams Meeting later that day. This was around two hours before the hearing was due to start.  As it turned out, though, the hearing did not start for another two hours after the scheduled time, demonstrating a key point that will be familiar to those in the legal profession – prepare to be flexible!

When we clicked on the link to join the Microsoft Teams conference call, we were asked by the judge to confirm our names and explain our interest in the case. We were then asked to read through the ‘Transparency Order.’ These vary from case to case and as we hadn’t been sent one in advance for this particular hearing, we emailed the Clerk and read through this document after the hearing. More about Transparency Orders – a feature of almost every hearing in the Court of Protection –  is available here. For a concise summary, Victoria Butler Cole QC explained the Transparency Order and what it forbids in relation to blog posts/social media:

  • You cannot publish any information which reveals the identity of P, or any other person or body named in the Transparency Order, and links them to the Court of Protection Case
  • If you have any concerns that something you might have heard might inadvertently reveal their identity (age, where they live, medical condition etc.) you can ask the judge to clarify. You often see Press Association reports saying ‘a woman in her 30s in the East of England’ for example.

Finally, we stated that we were members of the public who were interested in learning more about mental capacity.  After this, we were told to mute our microphones and turn our video off during the hearing. The judge explained to us that this was in order not to confuse the parties to the case who were present in the hearing we observed today.

After contacting the Open Justice Court of Protection Project on Twitter, we had been given invaluable advice about how to make the most out of attending the hearing. We were made aware of how important it is to take detailed notes – this not only aided our understanding of the matters in the case but also helped with writing a blog post afterwards. As a judgment may be published following a hearing (especially hearings before Tier 3 judges), we focused on recording actual quotes from counsel or the judge, especially anything compelling or persuasive.

Here’s a summary of the hearing we observed.

The party at the centre of the case (“AB”) was a lady in her late twenties with Anorexia Nervosa. Today’s hearing concerned the issue of ‘litigation capacity’ – the capacity of an individual to instruct somebody to represent them in court. The court noted that this is separate from subject matter capacity, which relates to the capacity to make decisions on issues of medical treatment (in this case) or another substantive decision such as where to live or who to have contact with. After speaking to AB,  Judge Roberts, reiterating the words of Ms Gollop QC (counsel for AB) described AB as an “articulate, thoughtful and reasonable young woman” a factor, in addition to expert capacity assessments, which influenced the finding that AB had the litigation capacity to instruct counsel to represent her in a subsequent, substantive hearing. This will determine whether AB has capacity to refuse medical treatment.. This is a matter that is to be determined in court next week, and we hope to be able to attend the hearing.

Overall, we encourage anyone with an interest in open justice (which should be everyone), including students, or aspiring lawyers, to utilise this great project and raise awareness of just how open, open justice can be. Whilst COVID-19 has brought ample levels of disruption and postponement, it has made engaging with the  principles at the heart of our justice system easier than ever. This is especially the case for us as two Northern students who would otherwise have struggled to attend the Royal Courts of Justice in person.

Lily Wildman is an aspiring barrister who has just graduated with a law degree from Durham University and will be commencing the Bar Practice Course in September this year.  During the COVID-19 pandemic, she worked as a Care Assistant at a Nursing Home, which honed her awareness of the safeguards surrounding adults who lack capacity. She tweets @lilymwildman

Emma Christie is an aspiring barrister who has recently graduated from Durham Law School and will be returning to pursue an MJur researching the Domestic Abuse Bill (2020).  She has experience volunteering with dementia patients. She tweets @emmaleechristie

Should P’s ‘Litigation Friend’ instruct P’s lawyer to promote P’s wishes and leave ‘Best Interests’ decision-making to the judge?

By Jenny Kitzinger – 12th August 2020

“I am incarcerated in a building against my will and which prohibits me having my own volition. The removal of my free will is inequitable, unjustifiable and entirely wrong in my view”

Mr G

These are the words of Mr G – a man in his early 60s who was the subject of a Court of Protection hearing I observed recently. He wanted to leave his current placement and return home.  His wishes did not prevail. The court ruled that he should remain in his current placement in an Acquired Brain Injury unit for now. Another hearing will be held in October.

So, what went on in this hearing, and what role, in particular is played by Mr G’s ‘Litigation Friend’?

The decision to be made

Mr G is a man in his early 60s with frontal lobe disorder and some complex medical conditions. The court had already determined that he lacked capacity to conduct proceedings and to make decisions about where he lives and the care he receives. He had previously agreed voluntarily to move into a centre for people with Acquired Brain Injury [ABI] but now wished to return home to live in his flat in the community. It was this decision that was before the court

The case was heard before Judge Jim Tindal. Mr G was the applicant in this case and was represented by his litigation friend the Official Solicitor. The respondents were the county council, the clinical commissioning group and the NHS Trust.

This case was a stark illustration of how P’s ‘Litigation Friend’ may argue in court for the polar opposite of what P himself says that he wants.

The arguments presented by the Official Solicitor (“representing” Mr G) versus those presented by Mr G himself

The position taken by the Official Solicitor “on behalf” of Mr G was that Mr G should not return home, i.e. Mr G’s legal representative made an argument directly contrary to Mr G’s wishes.  Counsel laid out the background to the case, including intensive efforts to support him in his own flat over about six months prior to admission to the ABI unit, and an outline of current rehabilitation goals within his placement e.g. addressing his alcohol addiction, reducing his oxycodone medication and maintaining good control of his diabetes. A return home risked putting Mr G “in peril”, with the risk of “poor compliance with nutritional intake” and “high risk of sudden death if he failed to comply with diabetic medication regimes”. The OS asserted that it is in PG’s best interests to remain at the current placement.

Nobody opposed this position except for Mr G himself. Mr G asserted that he was “perfectly capable of making decisions”. A doctor’s report referring to alcohol and opiate dependency, amnesia and vascular dementia, was, according to Mr G, full of “countless errors’. The only disability Mr G seemed to acknowledge was related to the residual impact of a stroke. This, he said, meant that “if I tried to read at my erstwhile speed I would miss out some paragraphs.” He was, he declared, fully competent to manage his own life.  Mr G also rejected any suggestion that his current placement benefitted his health and added that the other people residing in his placement all had mental problems and that association with them did not “enhance my life”. He also saw no rehabilitation benefits as: “I have received zero, absolutely zero, rehabilitation”, and anyway, he declared, he did not need any rehabilitation. Finally Mr G also argued that problems in managing his own health were in the past. He acknowledged there had been “a reasonable level of chaos” and had “no hesitation in confessing I drank while I was with [now ex-partner], but that was because of the stress’” He was also prepared to “readily admit” that his mother’s death and other difficult circumstances had, for a while, “led to an absence of complete clarity”. He had temporarily “lost the clear view that I always held”. It would be different now however. “I give you my word”, he declared, that if allowed home, “I would conduct myself in an exemplary style. I would meet whatever you impose on me in good heart because it is a means to an end”.

Courtesy, respect and acknowledgement

The court was exemplary in ensuring Mr G was heard in the court, with a great deal of effort put in to enable his participation and time devoted to hearing him. He was treated with great courtesy throughout. During the hearing itself Mr G was explicitly acknowledged by the judge as “an intelligent and articulate gentleman” who, the judge declared, could “eloquently and respectfully” contest the opinion of the medical profession and indeed, of the judge himself.  There was clear concern not to undermine Mr G’s image of himself and his dignity in court.  For example, before quoting from the Mental Capacity Act 2005, the judge said “forgive the terms I must use” before going on to refer to “a disturbance in the functioning of the mind or brain”. There was attentive listening and empathy, for example when the judge echoed back to Mr G, that he felt “caged in” – explicitly stating “my phrase, not his, but I hope it reflects how he feels”.  The judge repeatedly indicated that he had heard and acknowledged Mr G’s strong wish to return home. He also drew attention to the fact that Mr G’s so-called legal representative was, in practice, arguing against what Mr G himself said he wanted, commenting to Counsel: ”You’ll usually say you represent Mr G, but given we have just listened to Mr G explain his position  you’ll understand why I say you act for the Official Solicitor”

Having heard Mr G’s views, the judge nevertheless over-ruled them. In doing so he was explicit that he was looking not just at risk but at best interests and there was a need to balance safety (protection) versus a return home (self-determination) which “would satisfy the very strong expression of beliefs, values, wishes and feelings”. This was not just about preferences but also, he said “about rights – a very weighty factor”.

The judge was careful to soften the blow of over-riding Mr G’s wishes, suggesting, for example that with the easing of lockdown “the lived experience of the last months may not be the same for the next 2 months” in the ABI unit. He also held out the possibility that a different decision might be made at the next hearing (in October), with the hope that the rehabilitation process in the interim would actively maximise the chance of Mr G achieving his goal.

There was a great deal to admire in the conduct of the proceedings….so why did it feel so unsatisfactory from my point of view? Why did I find the process unsettling?

An unsettling process – what was left unexplored?

While I note the courtesy, empathy and care with which Mr G was treated, it nonetheless felt as if his wishes were not fully represented or explored in the context of this court hearing. I did not have access to any of the court bundle, so do not know if these issues may have been addressed elsewhere, but in the context of this hearing, I was left with many questions. 

The Mental Capacity Act 2005 requires best interests decision-making to take into account P’s “past and present wishes and feelings” (s. 4(6)(a)). 

In relation to Mr G’s present wishes, it was clear that he wanted to return home.  But I wanted to understand more about this.  For example, if it is indeed true that Mr G’s life is in peril outside his current placement, is that a risk he would wish to take? I didn’t hear this question being asked of him. For me the most poignant, but unexplored parts of P’s testimony in this hearing were where he talked about an apparently reduced life expectancy and made clear that he had no wish to spend his last years living in “a hospital”. Did he want to go home, I wondered, even if, this might put his life in peril?

In relation to Mr G’s past wishes, there seems to be no exploration at all (in the hearing).  I did not hear any discussion of “ the beliefs and values that would be likely to influence his decision if he had capacity” (s. 4(6)(b) of the Act) or “the other factors that he would be likely to consider if he were able to do so” (s. 4(6)(c) of the Act).   Before his acquired injury, when he had capacity to consider such issues, how would Mr G have balanced protection and self-determination? Was he a man who, prior to losing capacity to make decisions about such things, took risks, for example? Was exercising his own “free will” a core value for him and was he the type of man who would have chosen liberty over safety?  

Of course, attending one hearing is only a glimpse into one moment in a complex ongoing case, without the benefit of all the written evidence informing proceedings. From what I witnessed I also got the sense that it might be a challenging process to work with Mr G on such questions.  In relation to his present wishes, he gave no signs of entertaining the possibility that his life would be in peril were he to return home – and this was a difficulty which would have to be overcome in order to explore his present views on this possibility.

In relation to his past wishes, Mr G projected such a strong desire to be in charge of arguing his own case and such confidence in his abilities to do so that he may have been reluctant to allow professionals to be involved in exploring his past wishes (e.g. by consulting others who knew him prior to his brain injury).

Such challenges, however, are all the more reason for skilled advocacy support and strong person-focussed representation via a Litigation Friend.  A form of representation felt completely absent in this hearing: instead Mr G seemed very alone in court, and completely outgunned, with his so-called ‘representative’ serving to oppose his wishes. This is a pattern I have seen repeated in many other hearings and brings me back to a core concern about the role of the Litigation Friend in the Court of Protection

Time for change?

The Mental Capacity Act 2005 states that a best interests decision includes considering ‘the person’s past and present wishes and feelings (s 4(6) MCA) and the considerable weight that should be given to P’s wishes has been clarified by  the Supreme Court in Aintree James [2013] UKSC 67, and in subsequent case law. The process of gathering, exploring and representing P’s wishes is therefore an absolutely critical part of any best interests decisions.

Many of the blogs on this website have highlighted the great weight given to P’s wishes in best interests decision-making and the efforts and compassion put in to hearing P’s voice and the skill of the judge in engaging with P.  Less focus has been given to the mechanisms through which P’s past and present wishes and feelings are represented. However, we did focus on this in a previous Open Justice Court of Protection blog, which highlighted the problem of counsel appointed to represent P arguing for exactly the opposite of what P wanted.  The potential injustice and inequalities of this anomaly have also been highlighted by legal experts who point out that “Ordinarily, a lawyer who submitted entirely the opposite of what she knew her client to wish would face, at best, professional sanctions, and at worst, a claim for negligence.” But it is common for this to take place in the Court of Protection. (Alex Ruck-Keene, Peter Bartlett and Neil Allen)

Attending this hearing yet again left me wondering whether the best interests process is potentially undermined by having P represented by someone apparently tasked to secure his ‘best interests’, rather than doing his best to represent what P wanted for himself. If P’s lawyer was instructed to promote P’s views, we might get better evidence of past and present wishes and feelings. This might also force the court to grapple with the challenges of accessing and considering both past and present wishes and explicitly engaging with P’s own values (past and present) in weighing up their own safety versus self-determination

Do we need to change the system?  Should P’s ‘Litigation Friend’ instruct P’s lawyer to promote P’s views – and leave ‘Best Interests’ decision-making to the judge?

Jenny Kitzinger is a Professor in the School of Journalism, Media and Culture at Cardiff University, where she also co-directs (with Celia Kitzinger) the Coma and Disorders of Consciousness Research Centre. She tweets @JennyKitzinger

Addressing the Oral Judgment to the Person it Most Concerns

By Celia Kitzinger – 3rd August, 2020

Something exceptional happened in a hearing I observed last week. 

A judge – it was Mr Justice Cobb – delivered an oral judgment directly to the young woman at the centre of the case, addressing her by name.

This was the 53rd hearing I have observed in the Court of Protection since 1 May 2020.  The person at the centre of the case, “P”, has been present in (virtual) court in about a fifth of these hearings – sometimes for part of it, sometimes for all of it.  She or he has often had the opportunity to address the judge and to influence the proceedings.  Judges often ask P questions, respond empathetically, and create an opportunity for them to express their views, even when they have a legal representative to do this for them. This kind of involvement of “P” is part of the ordinary business of the Court of Protection.

What is unusual – this is the first time I’ve heard it – is for the judgment itself to be addressed to the person it most concerns.

The oral judgment is the formal bit at the end of the hearing where the judge says what he or she has decided in relation to the issues raised in the hearing.  Until I heard Mr Justice Cobb do it differently, I hadn’t really noticed that, in every other case I have observed, the judgment has been addressed to the barristers. 

So, in one recent judgement, for example, the person the hearing was about was present throughout, and we could all see him on the video-platform. At the end of the hearing the judge said in her oral judgment:

“I am satisfied that I can make an interim declaration that P doesn’t have capacity to decide where to live or the conditions under which he lives.  But P needs to know more about the placement that’s proposed and the placement needs to know more about him, and in particular how to manage him if he has another period of difficult behaviour.”

If it wasn’t routinely done this way in the courtroom, it would surely be odd to talk  about P in his presence, and not to P.  But this is the way it is usually done.  In all previous oral judgments I’ve heard, P has been referred to as ‘he’ or ‘she’ – talked about, in the third person – even when he or she is sitting right there watching and listening.

However well-intentioned and fair the judgment, and however tactfully it is phrased, it can feel somewhat unsettling, almost “rude”, for a judge to announce to the lawyers what she has decided should happen to P by speaking about P, in P’s presence.  

Contrast that with what I heard last week from Mr Justice Cobb:

“I realise, Jennifer, that you are unhappy at [Placement]. I am satisfied that the local authority is looking carefully, conscientiously and creatively for somewhere else for you to live – and to live with Rover [Jennifer’s dog].  I understand this may make the world of difference to you, to live with Rover.  Your lawyer has suggested a number of options for where you might live and all of these will be looked at. I’m also pleased that there’s been some agreement reached about your use of the internet and your mobile phone. I know you’re not entirely happy with it but, Jennifer, this new arrangement will help to protect you. […]  I’m going to ask [Lawyer 1] and [Lawyer 2] to pull together an order to that effect.”

In this judgment, from Mr Justice Cobb, it is the lawyers who are spoken about and P (Jennifer – a pseudonym, obviously!) who is being addressed.  It’s a change from P being “him” (or “her”) to P being “you”. 

This feels appropriate – it is, after all, Jennifer who is the person most directly affected by the judge’s decisions.  And Mr Justice Cobb took care to acknowledge that he understood Jennifer’s feelings (“I realise you are currently unhappy at [Placement]”) and was concerned to get it right for her (e.g. by enabling her to be with her dog).

Listening to this judgment at the end of an otherwise unremarkable hearing took me unawares and made me realise how uncomfortable I’ve felt with a lot of the oral judgments I’ve witnessed over the last couple of months, where P (however fully involved in the hearing at an earlier point) has become the “object” of a judgment addressed to lawyers. P is being talked about instead of directly addressed on a matter that concerns them more than anyone!

Most judgments in the Court of Protection are never published.  I know there has been some recognition in the Family Court of the benefit of addressing published judgments to the people most affected by them.

The judgment in Re A (Letter to a Young Person) [2017] EWFC 48 is (apart from four introductory paragraphs) a letter sent by Mr Justice Peter Jackson to a 14-year-old boy, who wanted to  move to Scandinavia with his father but was refused permission by the judge.  Mr Justice Peter Jackson wrote: “This case is about you and your future, so I am writing this letter as a way of giving my decision to you and your parents.”  It’s important not simply for involving a young person in the proceedings, but also because he has the opportunity to understand the reasoning behind the Court’s decision.  (See also the letter, incorporated into the judgement, sent to the children in a Scottish case here). 

Of course, in addressing a young person in this way, judges have to use more straightforward language. Some judges have shown this can be done.  The previous year, Mr Justice Peter Jackson had written a “plain English” judgment in the hope that the mother and older children could follow it (Lancashire County Council v M and Others [2016] EWFC 9).  In 2018, Deputy District Judge Reed (Lucy Reed one of the founders of The Transparency Project)  published a judgment in which she had decided to place a child for adoption, contrary to the wishes of his Mum (M) and Dad (D). D had a learning disability and found reading difficult. The judge says:

“I’ve tried to explain my decision using simple words …  D (and M) might want to read it later, maybe with his lawyer. M helps D with reading so they might want to read it together in the future.”

Writing judgments like this also means that it is more accessible to lots of other people who are not familiar with the language of the law.  I recommend taking a look at these published court judgments: they clearly promote the transparency of judicial decisions.  Why not have “plain English” or “easy read” versions of published judgments that give P (and all of us who might become future Ps) the opportunity to understand how decisions are taken by the Court and the reasoning on which they are based? 

The principle of making published, but also especially oral, judgments accessible to those whose lives they affect, and – in particular –  addressing them directly when they are in court, could be applied more widely in the Court of Protection.

It’s common for judges to say that P is the person at the centre of the case.  P is often given the opportunity to address the judge – sometimes as part of the court hearing, sometimes before or after it – about their own views and what outcome they want from the hearing. But communication is two-way – not just from P to the judge, but also from the judge to P. 

When a judge hands down an oral judgment, it would be refreshing to hear it addressed to P – as Mr Justice Cobb did when he explained to Jennifer what he’d decided and why. It’s courteous. It involves speaking directly to P instead of talking about her in her presence to other people (a horribly familiar experience for many disabled people of course).  It recognises P’s presence and treats her as a participant in the interaction. 

I hope that, when P is in court, more judges in the Court of Protection will consider addressing their oral judgment to the person it most concerns

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project.  She tweets @kitzingercelia

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