A chaotic start to a hearing – and assessment of Mum as carer ordered

By Amanda Hill, 17 May 2024

“Open justice is a fundamental principle in our courts”.

That is the standard line included in many of the court listings. This means that members of the public, like me, can observe hearings. Sometimes, obstacles are put in our way. In this hearing, certain members of the public were excluded from the hearing despite being admitted. This time it was for a good reason though and I will explain what happened and how to avoid it happening in future. 

I would also like to focus on two particular elements of the substantive matters in this hearing –an ageing mum whose ability to care for her son is being questioned, and record keeping by professionals. 

Background to the hearing[1]

The protected party in this case (COP 13337913) is S, a man in his late twenties who has autism spectrum disorder and global learning disability, and can display challenging behaviours. He has lived for a number of years in a supported living placement. 

The applicant is the London Borough of Islington, with S as first respondent and his mother (M) as second respondent. 

S’s mother lives over 2 hours away from S but – according to the position statement sent to me by her legal representative, Rosie Scott, M provides not only a lot of practical support to S but also a great deal of emotional support.  She’s been very concerned about the placement for a long time and believes it to be unsuitable for him for various reasons, not least that she believes S is very unhappy there. One of the options that the court was being asked to consider in this case was whether M’s home is suitable for P – in other words, could S move back home. 

Open justice – cock up not conspiracy 

The case was listed as follows: 

I think that District Judge Jackson was sitting in retirement in order to ensure judicial continuity in this case. Although the listing didn’t indicate that a link was available,  I emailed the court to ask if I could observe remotely[2] (which I later realized the mother did too). 

I did not get a reply to my initial email, so I phoned the court just over an hour before the hearing was due to start at 2pm and a little over 10 minutes later I received an email with the MS Teams link asking me to join 5 to 10 minutes before the start time. I also received a copy of the Transparency Order. So far, relatively straightforward. 

I clicked on the link a few minutes before the hearing and as is usual was placed in the “waiting room”. After a few minutes I was allowed in and I could see an empty courtroom. I was surprised to find that the court clerk wanted to check who I was and if I was at the right hearing. I confirmed the case number and she seemed happy. In the event there was a 30-minute delay to the hearing starting because the parties had asked for more time. 

The problem was that there were a lot of other people in the waiting room during this wait and the clerk did not know who they all were. As I had been admitted, I could observe the chaotic goings on behind the scenes before the hearing started. The legal teams eventually entered the physical court room and the clerk was trying to ascertain who was who in the waiting room in order to admit them to the hearing. The clerk explained to those in the physical courtroom  that I was the only observer who had received the transparency order but that there were other people in the waiting room who wanted to observe. Some people were authorized to attend as people impacted by the case, such as M and somebody else from the local authority. M logged on and then lost connection. 

The court rose at 14.35 but then the judge left 3 minutes later to wait for M to reconnect. 

At this point there were a lot of chaotic connection problems. Somebody was admitted, who turned out to be the mother of a different “P” from another hearing I blogged about here. She was asked by the court who she was and she replied that she was from the Stolen Lives campaign. She had requested the link but not received it. She was then told that she could not observe because, essentially, she had not received an official link. So, she was ejected from the hearing. Another person joined by Teams but then by telephone due to connection problems. It seems that they were a supporter of M. At one point there was a discussion between the remote LA representative and this person, trying to find out what was happening. A member of the legal team had to intervene to remind them that this was still a courtroom and they should not be speaking. I think this experience shows the difficulty of remote hearings using MS Teams. Some of the formality is removed. However, it can also be intimidating – I stayed a silent observer with my camera off throughout all this.  

Other people who I had seen waiting before the hearing started had disappeared and were not re-admitted at all. 

I gathered afterwards that the problem was that the link for the hearing had been sent to one person and then sent on by them unofficially to other people who wanted to support M, when they did not receive it directly from the court. 

As stated on the Open Justice Court of Protection Project  website, “If you haven’t received the link in a timely manner, re-send it with URGENT in the subject and forward it to us (openjustice@yahoo.com). We can’t share the links but we might be able to help.”

Unless a judge specifically allows it, links cannot be shared with other people. Whilst this can seem frustrating to those who want to observe, it is so the court knows who is observing, has email addresses for them, and can ensure that they have received the Transparency Order (at least in principle – in reality the track record of the court sending out Transparency Orders is rather patchy). 

 What probably felt like the court obstructing open justice in this case was simply that the official process had not been followed. 

That said, I think that there is scope for making the official process more efficient. It can be hard for court staff to manage (I could tell the clerk in this case was doing her best to do things correctly) and it can also be frustrating for would-be observers. I assume that in this case the link was shared because those wanting to observe had not received the link when requested. And I had needed to telephone the court staff to receive it. That takes up court staff time too. 

So I think all this was cock up rather than conspiracy but it does not help the reputation of the court in terms of its commitment to open justice.

The hearing finally started properly at 3pm. 

“None of us are getting any younger”

M wants her son to move back home with her and her other son.

Counsel for the local authority, Lee Parkhill, set out at the start of the hearing that steps were being taken to consider that, as well as alternative placements in care homes that would be closer to the mother’s home.[3]

When this was discussed during the hearing, the judge stated that she had asked “some time ago” for an assessment of the viability of M caring for her son at her home. She continued by saying that it had been a long time since M had cared for him (in 2013), and he had gone from a teenager to a grown man and “none of us are getting any younger”. The judge wanted to know if M would still be able to care for him, to see how able she is as a carer as she is “not getting any younger”. She wanted to see something of this nature, to “find out more about that”. 

Rosie Scott pointed out that there would be a care package in place and that M would not be caring for him on her own. The judge went on to say that she would like that aspect to be dealt with to avoid expensive renovations (which it had been outlined would have to be made to M’s house to allow S to return home). The judge asked how M handles S’s behaviour, that she would like to know more about that “as it’s important”, that it might show a way forward. The judge asked for more information about M’s role currently and what she would want to do. There was talk of a “trial” of M doing more for S and by mid-July an assessment of how it had gone with the mother’s interventions and S’s reactions to them. A carer’s assessment of M as a carer was also needed. 

It should be said that the judge wanted to ask M about this but it had been explained at the start of the hearing that although she was attending remotely, she was ill with laryngitis and could not speak. She had in fact appeared on camera at the start of the hearing at the judge’s request, and she was lying down in bed. This was unfortunate given the judge’s focus on her physical ability to care for her son. 

The judge’s concern also led me to reflect on the many unpaid carers looking after loved ones who are just quietly getting on with it without any input from the court. And the wheels of justice can move very slowly. This felt to me an additional pressure on M – I would hate to be questioned as to whether my own age and health could prevent me caring for a loved one, especially as a team of carers would be in place. Many protected parties in the COP want to go home and are indeed allowed to, with a team of appropriate carers in place. 

Record keeping 

There were question marks about the record keeping at S’s placement and the need for accurate record keeping was in the draft order. Asma Niazi, counsel for the OS and S’s litigation friend, addressed the gaps in record keeping that had been identified. For example, M says that S asks to go home with her each time she visits but the records don’t record that. M wants access to the records. The judge came back to this issue later. She said that it never ceased to amaze her that “professionals don’t record things properly”. She stressed the importance of recording things properly and there was a discussion about methods of communication. The judge asked “Why can’t they (the placement) just provide a detailed account?”.  This exchange made me reflect on how important record keeping and access to records are, the duties of professionals and also a parent wanting to know exactly what was being written about their son. 

A further hearing in this case was scheduled for 22nd August 2024. 

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

[1] Rosie Scott, Counsel for the second respondent, kindly sent me her position statement, which greatly helped my understanding of this case.  I also asked for the other two position statements but did not receive them. 

[2] The Remote Observation and Recording (Courts and Tribunals) Regulations 2022 (in Practice Direction on Remote Observation of Hearings, June 2022) empowers judges to “allow remote observation of in-person and hybrid hearings” as well as remote ones (§3).  

[3] It is forbidden to record any part of a hearing and I don’t touch type so my notes will not be 100% accurate.  

Centenarian challenges deprivation of liberty – and judge manages transparency failings efficiently

Celia Kitzinger, 16 May 2024

There are more than 500 centenarians in Devon, and she’s one of them.  

Until September 2023, she lived at home with her daughter.  

Now she’s deprived of her liberty in a care home, where she’s been for around six months, following discharge from hospital after a fall.

She wants to return home.

But now she’s been diagnosed with vascular dementia and assessed as lacking capacity to make decisions about where she lives and receives care, and who she has contact with.  

There seem to be some question marks about the adequacy of the capacity assessments and that’s “in abeyance” pending receipt of care home records which will enable consideration of her presentation on a day-to-day basis.

The problem with a return home is that the applicant local authority, Devon County Council, has received safeguarding concerns – hoarding and clutter, and her daughter restricts access and is alleged to be “coercive and controlling”. The local authority is of the view that it’s in her best interests to remain at the care home.  Her three sons agree.  Of course, if she has capacity to make the decision for herself, then the court has no jurisdiction.

Meanwhile the court is looking into a possible return home  – either because she may capacitously choose it, or because it may be the outcome of a best interests decision. They are investigating what a care package would look like.  This is proving difficult because the daughter is declining to engage.  The social worker (who was also in court) has tried to visit and “gain cooperation” but without success.  It seems that the daughter believes she should be the sole carer for her mother.

The judge, DJ Eaton-Hart, sitting at Torquay & Newton Abbot County Court, expressed concern about the delay “especially with a lady of her age” but reluctantly accepted that another directions hearing would be needed before a final hearing, and has asked for the case to return before him on the first available date after 26th July 2024.

Transparency Issues

There’s been a history of listing problems with cases before DJ Eaton-Hart.  They’ve been appearing in Courtel/CourtServe without any descriptors to indicate what the issues are before the court, and also without any contact information – which makes it very difficult for would-be observers to obtain links.  

But I was pleased to see that on Wednesday 15th May 2024 it all looked correct – so I selected a case (COP 14203764) about “Where P should live and receive care” and “authorising a deprivation of liberty”.  According to the list, the hearing would be a “directions hearing” , held via “Teams” and last for “ 1 hour”.  And the Bristol hub email address was provided for contact. So far, so good.

I received an email with the Teams link, and with the Transparency Order as an attachment. This was continuing well.  

But then, on downloading the Transparency Order (ten minutes before the hearing was due to start), I was dismayed to see that P’s name was spelled out in full on the face of the Order, and also appeared five times, in full, in the text of the Order itself.  The Order also prevented reporting the identity of the local authority.  The Order had been made by a different judge (DJ Smith) earlier this year.

Here’s part of the offending Transparency Order.  In every Transparency Order there’s a paragraph called “The subject matter of the Injunction” (usually, though not always, paragraph 6) which sets out the “Information” we are prevented from reporting.  It’s the paragraph I always turn to first of all.  In this case, as you can see below, it forbids us from publishing anything that identifies or is likely to identify the protected party (P) – the centenarian whose name is actually given in full (I’ve obscured it with those blue rectangles).  It also prohibits (in 6(i)(c)) from saying anything that identifies or risks identifying the Local Authority – that’s Devon County County Council (not spelt out in full!).

I immediately emailed the court.

Please could you alert the judge to my concerns about this TO as follows:

1. P’s name should NOT be given in full on the TO – it’s both on the face of the TO and in the body of the TO.

2.  It is not usual for the Local Authority to be covered by the information (see 6(i)(c)).  In exceptional circumstances, where the judge has decided there is a risk that identifying a public body risks identifying P, a public body is sometimes anonymised – but only after anxious consideration of other ways of protecting Article 10 rights (e.g. restricting aspects of P’s identity from public reporting to minimise risks of jigsaw identification).  Can the judge confirm that the Art8/Art10 balancing exercise has been carried out and other ways of protecting Article 10 rights considered?

The judge raised this with counsel at the beginning of the hearing: “Why does the Transparency Order name P? And why does the Transparency Order prohibit reporting of the identity of the local authority?”.  Counsel asked for a pause to take instruction which was arranged for later in the hearing, after the substantive issues had been addressed.  

After the 10-minute adjournment, both counsel and the judge agreed that the naming of P on the Order “shouldn’t have happened” – that it was “an oversight”.  Counsel for P via the Official Solicitor said naming P on the Order was “obviously wrong” and that “the Order clearly shouldn’t have been sent out”.  He asked what could be done to stop this from happening again.  Also, Counsel for the local authority said they had “no issue with the local authority being named”.  

The judge was clearly troubled that “something’s gone wrong with the Order” and wanted to “acknowledge my role and Judge Smith’s role in not spotting that earlier”.  He said there were “learning points for those involved in drafting – and also I have to say, those approving – the Order.  This is not the proudest moment of those involved in this case, I should think.  Please file a new Transparency Order, and I’ll take steps to raise this with the COP hub”.

I was impressed with the way counsel and the judge handled the problems with the Transparency Order.  They swiftly acknowledged that it wasn’t as it should be, and they fixed it there and then, without delay (albeit without, so far, having sent me a new TO). This speedy response contrasts favourably with several cases recently in which delay has been caused to reporting by observers being required to fill in and submit COP 9 forms, or write position statements: decisions about transparency orders very like this one have been postponed to future hearings, months ahead, even though nobody has made positive arguments for protecting the identity of a public body. It’s as if once the mistakes have been made, it’s painfully cumbersome to unpick them – and so unjustified prohibitions have remained in place for many months. This really concerns me. Open justice delayed is open justice denied.

Another impressive feature of this case was that the judge accepted judicial responsibility for the errors in the Transparency Order (even though it was a different judge who had made the Order). He referred to those who had drafted the Order but acknowledged that it was a judge who had signed it. He was also clearly committed to making sure that it didn’t happen again.  

My understanding, from discussions at Court of Protection User Group meetings, is that the applicant solicitor is the person who usually drafts the Transparency Order.  Busy judges seem to be signing off on the Orders without checking them.  Of course, judges should not be “rubber-stamping” Orders, but equally it would be helpful if legal practitioners drew up Transparency Orders correctly in the first place.  

In a case earlier this year, another member of our core group, Daniel Clark, similarly wrote to the judge (DJ Geddes, Lead Judge for the North-East-East Court of Protection Regional Hub) about a problematic Transparency Order.  She, too, responded robustly and swiftly:

“Before we go any further, I’m not sure whether the message was relayed [to Counsel] that there had been a request to vary the Transparency Order, quite rightly because it’s wrong, or at least appears to be wrong, in that it includes…a prohibition on revealing information that Wakefield is a party to these proceedings, which shouldn’t have been included ordinarily. Does anybody object to me varying [that section] to that draft order? [nobody objected] Okay…I put out a plea to practitioners again – just stop doing it. It’s always difficult for it to be picked up when gatekeeping draft orders and the more that are right, the less time we have to spend on them when there’s much more important things to be thinking about including the actual facts of this case.” (Judge approves P’s conveyance (against his wishes) to a care home – and tells lawyers to “just stop!” routinely anonymising public bodies in draft Transparency Orders)

We are finding that a significant minority of Transparency Orders prohibit identification of public bodies (local authorities, integrated care boards, health boards, NHS trusts – and even the Office of the Public Guardian) for no apparent reason.  When we point this out, lawyers and judges seem genuinely surprised to find the extent to which their Orders have restricted open justice and rarely seek to justify them.  Almost always the prohibitions are simply removed – but sometimes not for days, weeks or even months after the hearing.

And it does worry me that the task of ensuring the appropriateness of the Transparency Order seems to be falling squarely upon members of the public – not all of whom have the knowledge and/or confidence to challenge these prohibitions in court.  

Best of all, of course, is when Transparency Orders are appropriately drawn up and there is no need to challenge them. But when they’re not, we really appreciate those judges, and advocates, who’ve read the Order in advance of the hearing, understand what it says, have identified the problems, and address them proactively in public court.  It’s immensely reassuring to see lawyers and judges engaging with the open justice implications of Transparency Orders – and thereby pre-empting our challenges.

Victoria Butler Cole KC set a good example recently when sitting as a Deputy High Court Judge at the Royal Courts of Justice (COP 14002430).  Right at the outset of the hearing, after establishing who was in court, she made sure everyone was aware that the TO prohibited reporting that risked identifying P and P’s family, where they live or are cared for and their contact details.  “But,” she said, “it also says that the Local Authority cannot be identified”.  Parishil Patel KC, the barrister representing both Leicester City Council and Leicester and Rutland Integrated Care immediately responded by saying, “We will amend that and will not be seeking anonymity for the public bodies”.   Perfect1.  The judge and the lawyers took responsibility for ensuring open justice and I didn’t have to intervene.  More like this please!

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 500 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia

  1. Well, not quite perfect. It would have been even better if anyone had actually sent me the Transparency Order, but I’ve no record of ever having received it – either the original version forbidding mention of the local authority, or any subsequent version. The judgment, however, has been published here: Re HC [2024] EWCOP 24 (and it does name the public bodies).

    Capacity and sexual relationships – an ongoing challenge and some cautionary notes

    Ruby Reed-Berendt and Beverley Clough, 13 May 2024

    This blog is a summary of a recent article published in the International Journal of Law and Psychiatry, as part of a special issue on mental health and borders. You can read the article in full here. 

    Peter (not his real name) is nearly 20 years old and has been diagnosed with mild learning disability, ADHD and possible OCD. Peter suffered sexual abuse as a child, and whilst he was a teenager he was convicted of a serious sexual offence against a young child. After this conviction, Peter was placed under the care of the local authority and is currently being looked after in a supported living placement. There are ongoing concerns regarding his sexual behaviour and in July 2021 he was assessed by a neuropsychiatrist as posing a “very high risk of committing harmful sexual acts towards others” due to intrusive sexual thoughts. He has a girlfriend, Jenny, who is also considered vulnerable and has social workers (employed by a second local authority). He and Jenny are not allowed to be alone together, but Peter has expressed a wish to live with her and to have a sexual relationship. Proceedings were commenced in the Court of Protection regarding Peter’s capacity in relation to a number of decisions, including deciding who he can have contact with, and engaging in sexual relations. 

    The case was heard by HHJ Burrows in 2023 (A Local Authority v ZZ [2023] EWCOP 61). He held that Peter lacked capacity to make decisions about contact but that he had capacity to make decisions about sexual relationships. He found that Peter could understand the physical act of sex, the risks involved, and the requirements of consent. Whilst he accepted that Peter is unable to control his urges, he concluded that this was not relevant to the question of his capacity. However, this was overturned on appeal by Mrs Justice Theis (Re ZZ [2024] EWCOP 21), who held that his “sexually disinhibited behaviour” needs to be considered as part of Peter’s ability to use or weigh the question of consent. 

    The case in many ways demonstrates the complexity of the issues surrounding capacity and sexual relations and the challenges that arise when these matters come to court. Central to both judgments was the application of the Supreme Court decision in A Local Authority v JB  [2023] UKSC 52, which was the focus of our article. This case recast how capacity to make decisions about sexual relationships should be assessed, and provided guidance as to how capacity in general should be assessed under the Mental Capacity Act 2005 (MCA). 

    The court’s ruling – that the person’s ability to understand the need for consent from a sexual partner is a key part of assessing capacity – was met with a mixed reception (and you can read some initial reactions to the decision here). For some, it was an important recognition of the centrality of consent to sexual relationships, and a decision that would help protect women and girls at risk of gender-based violence. For others, the decision represents a problematic restriction on the sexual expression of disabled people. This means the case can be seen as a clash between the interests of the disability movement in promoting the freedoms of disabled people, and those of feminists who resist violence against women. 

    In our article, we seek to challenge this framing. We argue that the direction the case law is taking should be a concern for feminist and disability movements. We draw on literatures from feminist theory, Black feminist theory, and disability studies to point to problematic features within the Supreme Court judgment – and case law in this area more broadly. We suggest that to realise both goals – moving towards disability equality and combatting sexual violence against women and girls – there is a need for dynamic conversations involving both movements, which carefully consider how apparently progressive social justice developments can leave behind those on the margins. This requires us to think about how the law is responding in these cases and the wider implications and consequences of such responses. 

    We begin by looking back on the histories of legal responses to mental disability. This story is one of restriction and control, where people with cognitive and intellectual impairments were denied any right to form sexual relationships. These early approaches tended to see disabled men as hypersexual and dangerous, and disabled women as asexual, childlike, vulnerable, and in need of protection from sex.[1] Despite changes in the last 100 years, we point to the ways in which these ideas of risk and vulnerability reappear in the assessment of capacity and sexual relations under the MCA. Indeed, if a person is considered to lack capacity to make decisions about sexual relations, then the local authority responsible for their care must prevent them from forming sexual relationships. At the very least, this shows the ongoing legal regulation of disabled people’s sexuality. 

    Turning to the JB judgment itself, the first key concern we raise in the paper is how the judgment approaches the issue of equality. The barrister representing JB argued that:  “…to include as part of the information relevant to the decision the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity imposes a discriminatory cerebral analysis on the potentially incapacitous”. (JB, para 96) 

    However, Lord Stephens rejected the submission, agreeing with the Court of Appeal that “amongst the matters which every person engaging in sexual relations must think about is whether the other person is consenting”. The submission of discrimination was rejected on a similar basis, with Lord Stephens emphasising that the standard could not be viewed as discriminatory given the requirement of consent applied to all in society.  

    We challenge this approach to discrimination and equality. We argue that the dismissal of concerns about discrimination overlooks the ways that disabled people experience law, as well as the reality that the MCA is specifically focused on those with a cognitive impairment (section 2) and is therefore not present in the lives of non-disabled people. Those who do not fall within the scope of section 2 will not have their capacity assessed or run the risk of having sexual relations and opportunities for them severely circumscribed through close supervision. Similarly, they are not routinely dependent on gatekeepers such as support workers to allow or question the development of potential sexual relationships. 

    We further raise concern about the extension of the concept of protection within the case. Usually in mental capacity law, and these cases in particular, decision-making is said to be a balance between promoting a person’s sexual autonomy and protecting them from harm. Lord Stephens made clear that when capacity is assessed, the reasonably foreseeable consequences of making or failing to make a decision can extend to the consequences for others. He noted that in the context of JB: “there are reasonably foreseeable consequences for JB of a decision to engage in sexual relations, such as imprisonment for sexual assault or rape if the other person does not consent. There are also reasonably foreseeable harmful consequences to persons whom JB might sexually assault or rape” (JB, para 73). 

    This expansion of the foreseeable consequences to consider the consequences for others was justified as providing protection to the public, with the Supreme Court confirming the MCA is not confined to only protecting the person. This aspect can be viewed in a positive light, in that it opens up the concept of harm to consider broader harms which can eventuate from decision-making. However, we suggest that court’s use of the language of protection, and the framing of JB that this entails, has worrisome implications and may extend the scope of mental capacity law, blurring the boundaries between mental capacity and mental health law or criminal law, but without the formal checks and balances that these other legal frameworks provide. The MCA is, in many ways, heavily informal, based on discretionary power and ideas of reasonableness. 

    Much of the earlier case law on sexual relations in the Court of Protection involved disabled women thought to be ‘vulnerable’ and at risk of sexual exploitation or abuse. In many ways, these more recent cases which are tending to involve P’s who are male raise important questions around gender. By making reference to the potential risks posed to the public by JB, the Supreme Court appears to make an implicit judgment in relation to JB’s dangerousness. This calls back to histories noted above, where disabled men were seen as a threat which required legal control. We can also see a blurring between vulnerability and dangerousness in this protectionist approach. JB is positioned as simultaneously vulnerable to becoming an offender, and dangerous to others by virtue of being a potential offender. He is simultaneously at risk, and a risk, he and others like him, perceived to present a threat to others, are cast back into this framing of disability as dangerous and deficient. 

    The underpinning of the decision – to prevent violence against women and girls – is undoubtedly a laudable one. But feminists have long argued that tinkering with the law on sexual offences does not address underlying social inequalities and attitudes which underpin these problems. Indeed, as we see in the ZZ case, the decision in JB has by no means settled this area of law. In another case, Mr Justice Poole has also cautioned against a ‘protective imperative’, suggesting that the court’s desire to protect others should not drive the assessment of capacity (Re PN [2023] EWCOP 44). Challenges continue about where ‘capacity’ ends and where unwise decision-making begins, especially in the context of significant concerns about risk. We need to keep questioning whether the MCA – given the concerns we raise – is the right method to tackle this important problem. 

    For many of us, a decision to have sex with another person is among the most private and personal we make. However, as we have seen, this is not necessarily the case in the context of mental disability, where state control and enforced celibacy remain a strong possibility. There is a continued struggle to properly consider and account for the sexuality of disabled people within the MCA’s legal framework. When thinking about this in the context of tackling sexual violence, we need to think and look differently, keeping feminist and disability aims in conversation with each other throughout. As Black feminist Angela Davis reminds us, we need to look to “lift as we climb” – to take seriously the struggles of all marginalised groups in seeking equality.

    [1] See Sandland, R. (2013), ‘Sex and Capacity: The Management of Monsters?’ Modern Law Review,  76: 981-1009. ttps://doi.org/10.1111/1468-2230.12045 

    Ruby Reed-Berendt is a PhD researcher at Edinburgh Law School. Her PhD provides an intersectional critique of mental capacity law and draws on Black feminist theory, critical disability studies, and critical race theory. She tweets @rubyreedberendt 

    Beverley Clough is a Professor in Law & Social Justice at Manchester Law School, Manchester Metropolitan University. Her work focussed on the intersections of health and social care law through feminist legal theory and critical disability studies. She tweets at @bev_clough 

     Open justice fails again: This hearing wasn’t publicly listed – then the judge denied us remote access, and never sent the approved order 

    By Celia Kitzinger, 12 May 2024

    Last week, Mr Justice Nicklin was announced as the chair of the judiciary’s new transparency and open justice board.  He gave a speech welcoming  “a new breed of court reporters” – and the “hugely valuable contribution” made by members of the public who tweet or blog from court.

    It’s lovely to feel “seen” and valued like this – especially in a context where I often feel anxious about the time and trouble we cause to court staff, lawyers and judges who are trying, desperately and against the odds, in an under-resourced system, to administer open justice with a listing service, a set of rules, and video-technology none of which are really fit for purpose.  I’m very pleased that Mr Justice Nicklin appreciates what we do – and even more so that he acknowledges that he’s “vulnerable to the charge that ‘talk is cheap’. It is easy for judges to talk loftily about the importance of transparency and open justice” (§35).

    Over the past few years, since we launched the Open Justice Court of Protection Project, I have listened to a lot of fine words from the judiciary about open justice. That’s nice – but what I really want is concrete action. And I would like the judiciary – and in particular the members of the judiciary’s new transparency and open justice board – to understand what public observers (and journalists) are up against.  So please read on.

    This blog post is about the dismal reality of trying, and failing, to observe a hearing in  an important case – a  hearing that never even appeared in any public listing.  I can’t tell you anything about what happened at the hearing because half an hour before the hearing was due to start, we were refused a link to observe remotely – and then, despite twice asking for the approved order, it’s never been sent.

    Background

    Peter (not his real name) has been the subject of previous court proceedings before HHJ Burrows, and there’s a published judgment (PH v A Clinical Commissioning Group & Anor (Dismissal of proceedings) [2022] EWCOP 12).

    Back then, in March 2022, Peter, who has diagnoses of Autistic Spectrum Disorder, moderate learning disability and Tourette syndrome had been detained under section 3 of the Mental Health Act for several years, in fact for most of his adult life.  The judgment says: “He is subject to very considerable restrictions on his liberty beyond those detained patients usually experience. No one believes him to be in the right place. Everyone seems to believe he ought to move to somewhere which meets his needs much better. It is anticipated that place will be outside a hospital setting.” (§1)

    Peter’s mother made an application to court under s. 16 of the Mental Capacity Act 2005, seeking declarations as to what residence and care options are in Peter’s best interests.  The judge, after carefully considering the respective roles of the Mental Capacity Act 2005 and Mental Health Act 1983, and the interaction between them, decided that the Court of Protection had no useful role to play at this stage: “I am unable to see how this Court has any useful and proper function in this process at this stage” (§24).  He dismissed the application.  

    This case is important because Peter is one of more than 2,000 autistic people and people with learning disabilities who are detained as inpatients in mental health hospitals in England (Assuring Transformation NHS Digital data). The overwhelming majority (92%) of autistic people and people with a learning disability who are detained in hospital are put there, as Peter was, using the Mental Health Act 1983.  It is very rarely the case that living in hospital is in their best interests. 

    So, when we learnt that the case was back before HHJ Burrows in Preston on 25th April 2024 (COP 12717426), and that the hearing would be held ‘in public’, we were keen to observe it and I made enquiries (for myself but also on behalf of Daniel Clark, another member of the core team of the Open Justice Court of Protection Project).

    Open justice fails

    Neither Daniel Clark nor I was able to observe this hearing, or to find out afterwards what had happened at it.  

    There were three fundamental failures of open justice.

    1. The hearing did not appear on any public list

    We heard about the hearing informally through one of our contacts  – so we only found out about it late the day before and had minimal information. All hearings in the Court of Protection are supposed to appear on public lists (in CourtServe).  That’s part of what open justice means. The public should be informed that a hearing is taking place.  That’s pretty much a bare minimum requirement.  There’s no chance of observing a hearing if we don’t even know it’s happening. 

    A (very helpful) member of court staff speculated that it didn’t appear on the public list for Thursday 25th April (which is published at around 4.30pm the afternoon before) because it had only been added to the judge’s list on the morning of the day the list was published (“It may be because it was added on Wednesday and the list may have already been sent in, prior to me listing it in his honours diary that morning”).  He later confirmed that was indeed the problem.  So, although the CourtServe list indicates that it’s updated regularly (often every half hour or so), it seems to be just a fact of life that a case  scheduled on a Wednesday morning for a hearing on Thursday morning (i.e. around 24 hours later)  is ‘too late’ to be included.  This makes me concerned about how many hearings never, in fact, appear in the lists at all.

    2. HHJ Burrows refused permission to observe remotely.  

    There was an earlier indication from court staff that we would be sent a link to observe it, but then at  9.30am on the morning of a hearing due to start at 10am,  we were told: “Unfortunately, we are not sending any links out this morning as his honour has directed this to be a fully attended hearing. Anyone may come and observe in person (Including Mr Clark) but the court cannot send out teams links for remote attendees, I am sorry this is the case and would try to urge you to send someone to come and observe in person if you have the capacity to do so.” (Court Clerk, Preston)

    Had we known earlier that the hearing could only be observed in person, one of us might have made the 1-2 hour journey to Preston to observe it.  But the judicial decision not to provide links to this hearing was conveyed to us way too late to make this possible – and this must surely have been evident to the judge if he’d given it a moment’s thought.

    Under these circumstances, I believe that open justice could only be served by issuing links to members of the public who wanted to observe  – or, I suppose, by delaying the start of the hearing to allow us to attend in person, though that would seem a very expensive option, and one unlikely to be compatible with the judge hearing other cases in his list in a timely fashion that day. 

    Of course, sometimes it’s simply not possible, especially in regional courts, to provide video-access to fully in-person hearings because courtrooms aren’t supplied with the appropriate equipment or there are no staff available to set it up.  Requests for remote access can impose intolerable burdens on the court or its staff.  But in this case, the non-availability of a video-link was attributed not to resource problems but to a judicial decision simply not to provide it.

    I find this baffling. 

    The whole point of the much-vaunted Remote Observation and Recording (Courts and Tribunals) Regulations 2022 (see Practice Direction on Remote Observation of Hearings, June 2022) was to empower judges to “allow remote observation of in-person and hybrid hearings” as well as remote ones (§3).  The regulations (and underlying statute) include as a “mandatory consideration” for judges making a decision about whether or not to  provide remote links for observers, the importance of open justice.

    “Decision-makers must give due weight to the importance of open justice. This is a mandatory consideration. Open justice serves the key functions of exposing the judicial process to public scrutiny, improving public understanding of the process, and enhancing public confidence in its integrity. Remote observation can promote all those purposes. Access for reporters, legal commentators and academics is likely to do so. Judicial office holders may take as a starting point that remote access for other observers is desirable if they would be entitled in principle to have access to a courtroom in which the hearing was taking place, and giving them remote access is both operationally feasible and compatible with the interests of justice.” (§18,  Practice Direction on Remote Observation of Hearings, June 2022)

    When there has been a failure to publicly list what was intended to be a “public” hearing and members of the public have learnt about it informally and have asked to observe, then – in my view – that strongly supports the provision of remote access.  Conversely, to tell us half an hour before the start of a hearing that we can only observe if we attend in person is, in effect, to decide on a private hearing. It’s not clear to me, then, how HHJ Burrows’ “mandatory consideration” of the issues here resulted in a decision not to provide remote links.

    Against a general backdrop of judicial support for and practical facilitation of open justice, I’m very disappointed that HHJ Burrows  – who is Lead Judge for the Court of Protection North West Region –  decided against permitting remote observation under these circumstances.

    3. No response to my requests for the approved order

    The hearing from which we were excluded was listed (it says in the Transparency Order) to consider:  

    “(i)  The capacity of P to litigate in these proceedings; 

    (ii)  Appointment of Litigation Friend 

    (iii)  Decisions as to P’s care; 

    (iv)  Decisions as to P’s residence; 

     (v)  P being deprived of his liberty.”

    After the hearing, I emailed the judge (via his clerk and via the ordinary COP.Manchester@justice.gov.uk email address) asking for the approved order from this hearing so as to be able at least to report accurately on the decisions of the court.   

    We’re entitled to the approved order from “public” hearings under COP rule 5.9 

    Supply of documents to a non-party from court records

    5.9.—(1) Subject to rules 5.12 and 4.3(2), a person who is not a party to proceedings may inspect or obtain from the court records a copy of any judgment or order given or made in public.

    I sent emails on Monday 29th April  2024 and again on 7th May 2024.  I’ve received no response.  

    Open justice is not a “bolt on”

    I was pleased to read Mr Justice Nicklin’s statement that: 

    “The Lady Chief Justice and the Board want to move away from regarding transparency and open justice as a ‘bolt on’; something to be regarded as additional to the administration of justice. We need a recalibration: to make openness and transparency an essential feature of delivering justice. Many already do so, but every Judge, Magistrate and Tribunal Member should be thinking about the ways in which s/he can promote transparency and open justice when sitting. That can be as simple as ensuring that those people who are watching the proceedings can actually hear them, that they have the skeleton arguments to which reference is being made, and can find out the result of the case.” (§33)

    The case I’ve described here doesn’t even begin to meet these aspirations.  We weren’t able to access the hearing due to a listing failure, and we’ve not been offered skeleton arguments (or “Position Statements”) nor have we received the approved order which I have twice requested and am entitled to receive. 

    The three elements of which this failure is composed are all familiar to me.  We’ve no way of knowing, of course, how many hearings never appear in public listings, but I do know that when we learn about hearings from family members and others involved in cases, and then go to find them in the lists, we can’t locate them around 50% of the time.  (We blogged about one case here: A ‘secret’ hearing on life-sustaining treatment).  Judges don’t often refuse to send links for “public” hearings (I can think of very few other cases) – but often quite frequently nobody responds to our requests for the links so we don’t receive them anyway (and there have been previous inexplicable judicial decisions not to admit particular would-be observers, e.g. A disappointing failure of open justice: DJ OmoRegie says no)).  Finally,  I am normally sent approved orders when I request them (albeit at a cost of £5 from one judge) – although it sometimes takes several reminders and I can think of one other case where repeated requests have failed to elicit it. So, yes, this hearing before HHJ Burrows was an exceptionally comprehensive failure of open justice, but the elements of which it’s composed are familiar.

    As Nicklin J also said, quoting the Lady Chief Justice: “The greatest threat comes not from direct attack on the principle [of open justice], but rather from careless – sometimes inadvertent – failures to protect its ideals.” (§45) 

    I think the judiciary’s new Transparency and Open Justice Board will have its work cut out for it.  We look forward to participating in the Judiciary’s promised stakeholder engagement. 

    This particular case will be back in court again on 16th August at 2pm before HHJ Burrows sitting at Preston (with a time estimate of 2 hours). I am still hoping that open justice might prevail. 

    Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 500 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia

     

    Crisis point – is hospital a viable option for P?

    By Amanda Hill, 9th May 2024

    The protected party in this case (“L”) is a man in his twenties with “significant learning disability”, autism and complex physical disabilities. He had been living at home with a care package in place until July 2021, when his care package broke down and he was moved to a new placement after an application by the Health Board to the Court of Protection. This was supposed to be a temporary emergency placement, but L is still there nearly three years later because, over the years, suitable alternative arrangements have not been found

    Now a placement needs to be found urgently.  Following a long period of notice, his current placement is threatening to withdraw care if he does not leave immediately. The problem is that the only options before the court are either a sub-optimal placement an hour and a half  away from the community and family he loves, or hospital admission, which nobody seems to accept would be in his best interests. 

    Background to the hearing

    This hearing, listed for three hours on 19 April 2024, was the latest in a long running case (COP 13290314) before HHJ Porter-Bryant[1], sitting in Newport, Wales. Celia Kitzinger has blogged about one aspect of the case from an earlier hearing here. There are also two judgments, from December 2023 here, and an appeal upholding that judgment (CL v Swansea Bay University Health Board & Ors), published a few days before this hearing. 

    As noted in the earlier blog post, this is “a very complex and long-running case – and one that is causing immense distress to the mother”. Over time, the relationship between L’s mother ‘C’ and various professionals has broken down, to such an extent that she is prevented from visiting L at his placement. Various allegations have been made about C’s behaviour and C was discharged as Personal Welfare Deputy for L. In order to move things forward, protocols to do with medical clinical appointments, contact in the community, and care planning have been agreed between C and the Health Board. The initial objective of this hearing was to consider those protocols, as well as to consider the long-term residence, care and contact options for L, but, as the judge said[2] in oral judgment at the end of this hearing, matters have taken a turn and the situation has moved on rapidly. 

    Things have reached a crisis point. 

    The placement – having given L notice to leave in September 2023 – has now enforced the notice. The staff are at the “end of their tether” with the notice period and it is now “D Day”. They’ve said “enough is enough” and they will care for L no longer. The placement manager is off work with stress and there is a threat of union involvement and action. There are fears that the staff would even walk out “and that fear seems to be justified” according to the judge.

    Two options have been found by the Health Board: H, a private supported living placement that has a vacancy for L, or hospital. 

    Rosie Scott , counsel for the applicant Health Board, set out the matters before the court:

    1) Is it in L’s best interest to reside at H, or another placement? 

    2) C’s contact with her son

    3) Care planning protocol 

    In the event, there was no time to discuss the care planning protocol and most of the time was devoted to the first issue of residence. 

    Residence options for L

    There was only one available community option offered by the Health Board, “in the sense both that there is a vacancy and that the Health Board has determined that it will commission a place there”.

    The Health Board had considered other community options before coming to its commissioning decision. One was another supported living placement, which was ruled out because it would result in “overprovision” for L: 2 to 1 support 24 hours a day (he’s assessed as needing only 12 hours a day) and ‘non-negotiable’ clinical support from people like an Occupational Therapist. During the hearing, Counsel for the Health Board conceded that cost was a factor, but said that L’s autonomy weighed more in the commissioning decision. Domiciliary care options (proposed by his mother) were also considered but ruled out. 

    The only alternative to this community option was a “bed within the acute admission unit” of a local hospital. This would mean a much more restrictive environment – and L does not need treatment.

    Despite the stark alternatives, there were concerns about the proposed placement – including the space available and particularly whether there is a fire risk for L, due to the size of his wheelchair. Other issues include the compatibility of L and the other residents, and the fact that the placement is an hour and a half away from L’s home town, where he has lived all his life. 

    There has been a high level exploration with L about moving to H. When shown photos of H, he reacted positively to some of them but he didn’t like the photos of the bedroom. He wants to stay where he is (which isn’t an option) and wants to see his mum and dad more, which would be difficult with a placement so far away. 

    In his summing up the judge said “Community is of magnetic importance to L, he is a (home town) boy”, echoing submissions by Counsel for the father of the  “magnetic importance of family” for L and “being where he is familiar”. It is also an issue for L’s parents, as it would make contact with L more difficult. 

    Counsel for the Health Board stated, however, that the placement is suitable, available and can meet L’s needs. She acknowledged that a closer placement would be ideal but stated that the search for a placement had been a national search and they were “lucky” that it was (only) an hour and a half away. She argued that it was in L’s best interests to move there. It is the only option in the community and they would be asking the court to authorise L’s deprivation of liberty at this placement. She proposed a 6-week review and raised the prospect that it could become more than an emergency placement; it could be a long term placement for L. The “bottom line” or ‘stark fact” is that no other options (in the community) are being considered by the Health Board. This was partly due to questions about L’s needs but also due to financial constraints. L’s Litigation Friend (represented by Nia Gowman) does not, in contrast, see H as a long-term option, but agrees with the Health Board that it is the only option for now. 

    The alternative to H before the court is hospital. But there was discussion about how viable an option for L this really is. Neither counsel for L or for his mother considered it an option. Even the Health Board proposing it did not seem to think that it was an appropriate option, unless a community option was not available. Rosie Scott stated “I suspect it is not necessary to say that a clinical environment in hospital is not suitable for L” if a community option is available.  She continued that it would take a long time to find somewhere else and it would not be quicker if L is in hospital. She emphasised that “going to hospital does not mean another option will become available”. In other words, if L was placed in a hospital, he could be there for some time.[3] Counsel for L did not consider hospital to be a viable option and was surprised that the Health Board was even considering it. With a hospital admission there was no concept as to how L would be cared for.  

    At some point during the discussions, the judge made a comment (which I didn’t catch) which implied that hospital had only been put forward as an option by the Health Board in order to cast the community option in a better light. Rosie Scott took umbrage at that. She stated that she “must push back on the idea that hospital is being put forward as a black art to shine light on [the community option]” and the judge accepted that it was an “unwise comment on my part”. He referred to this again in his oral judgment, stating “I had suggested disingenuously that a cynic would say that the [community placement] was presented as an alternative to hospital to make it more attractive but I was not suggesting that it was inappropriate. It is what it is, there are only two options”. He continued by saying that little is known about the ward apart from it is in hospital in [home town], little is known about whether L would have his own ward, or contact, or community access…. “it is a hospital setting and not a home. It is a setting for those with difficulties different to L’s, it is a medical environment……..it is however close to home…….Much of the evidence for a placement is not before the court because the Health Board do not consider it a viable option. I agree”. He stated that it is hard to see that it would be in L’s best interests. 

    Not surprisingly under the circumstances, the judge decided that it was in L’s best interests to move to the community placement. The current predicament was that in his current placement staff could walk out on L, he could be evicted, which could lead to him going to hospital. Therefore, it was in his best interests to move to H on a short-term basis, whilst accepting that there were still concerns. In particular, a fire evacuation plan should be prepared before L moved there.  

    Everyone seemed to hope that the new placement would provide the opportunity for a “fresh start” and, despite all the problems relating to contact in the current placement, the Health Board was not seeking contact restrictions: “At present there are no restrictions sought by either the Health Board or the owners of [community placement] in terms of [the mother’s] presence at [community placement] or in contacting staff. It is hoped that none will be necessary in this fresh start”. 

    The judge acknowledged that the start of the relationship had been positive.  Imposing restrictions could have the opposite effect (to that intended) to the extent that the relationship would start on a “poisoned basis”. He stated that it was a difficult balancing exercise such that if he got it wrong, “we could go back to the beginning” and be in a worse position. “I stress to the court that the placement needs to work. If it is put to me that the relationship is deteriorating, I will put measures in place to ensure that the placement is retained”. 

    The judgment concluded with the judge stating that the search for a long-term residence should continue. For example, domiciliary care could be met if the Health Board could fund it, or another suitable placement. However, he said that he didn’t wish to make that a requirement for the Health Board, “I appreciate the significant resources that have been given over to this case already. We aren’t there yet”. He acknowledged there may be further developments. Could the drawbacks of this placement be mitigated? If L becomes happy at the placement, that would be a significant factor. 

    Finally, there was a brief discussion about C allegedly breaching the Transparency Order. She had sent an email in mid-April to her member of the Senedd, apparently wanting their involvement as she was not happy with the Health Board’s commissioning decisions. The Health Board alleged that this breached the Transparency Order because it “identified that C is the mother of a P involved in Court of Protection proceedings to somebody who is not involved in proceedings or involved in L’s care or support”.The judge stated that he realised C wanted help (from her Senedd member): “C, I know you reached out for help, but those orders are there for a reason, you can get yourself into trouble. I’m aware why you did it”.

    The hearing concluded with another hearing set for July, to consider how the placement is working and the protocols that were initially due to be covered in this hearing. 

    Reflections

    A shadow hanging heavily over this hearing was the fact that hospital was being considered an option even though that would be a clinical environment and not suitable for his needs. It seemed to be posited as a residence of last resort for L – but still a possibility if there was no community placement for him. The paucity of options is an extremely sad state of affairs. 

    As the judge stated in his December judgement, he recognises that C feels very strongly about trying to ensure that L obtains the right care: “I have never lost sight of her love or strength of feeling and determination to do all that she can to secure what she feels is the best outcome for P”.  She has had her personal welfare deputyship taken away, even though there were no findings of wrongdoing. She wants her assembly member to help her challenge the Health Board’s commissioning decisions but is unable to contact them due to the transparency order in place. And now her son is being moved an hour and a half away from her to a placement that she doesn’t feel is approriate, but is the only viable option. And a sword of Damocles is hanging over her: in effect, “don’t rock the boat or you won’t be able to see your son”. 

    I should say that L’s father was also represented in this hearing, and the dynamics of the relationship between him and C are also a factor in decisions about contact. I feel that it can be very difficult for families, who have to tread a fine line if they feel their loved one is not receiving the approriate care.  At the same time I know that professionals are placed in difficult situations too. That said, if a placement can turn around and say they won’t care for somebody anymore, then the odds are certainly stacked. It’s a very difficult situation to navigate. 

    Finally, the discussion at the end of the hearing about the Transparency Order highlights, in my opinion, the practical difficulties faced by families whose freedom of speech is restricted by a Transparency Order, and whether the restrictions are really proportionate and necessary. I understand why restrictions are in place, to protect P, but I do wonder if there is not some balance to be struck as the restrictions are very onerous for families practically. These orders are generally in place until the court orders otherwise and, rying to get a Transparency Order varied (changed) can be extremely difficult.

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

    [1] I am grateful to the clerk at Newport court who facilitated access and tried to help when I encountered sound issues, which was frequently. I was the only observer on the link and this was a fully in-person hearing. Thank you too to Rosie Scott and Nia Gowman for sharing their very helpful position statements.

    [2] It is forbidden to record any part of a hearing and I don’t touch type so my notes will not be 100% accurate.  

    [3] People in the United Kingdom with learning disabilities can end up staying in hospitals for a very long time.  This is a recent report from BBC Scotland: https://www.bbc.com/news/articles/ck5k91j6g00o?fbclid=IwZXh0bgNhZW0CMTEAAR32TFS2o5y3TuHB-WSWTcLbYhxr6JkDcv4qQJbjqqmRDdglltMdmFJ88Ag_aem_AboDYaAZGAMIfFosrnwD0YwJhlpfUM4gX2YT_Q01QtZ2Su91fxtncBEvlu53aCgU5_frI5bRMLcvLhDcwwCOXI-N

    And it is an issue in Wales too: 

    Homes Not Hospitals protest: Learning Disability Wales backs Stolen Lives campaign

    A day in the Court of Appeal

    By Cliodhna Carroll, 8th May 2024

    Editor’s note: You too can watch this hearing – it’s recorded and available on YouTube here: https://www.judiciary.uk/live-hearings/re-a-by-her-litigation-friend-the-official-solicitor/

    On 30th April 2024, having cancelled my day due to a bad cold and looking like Rudolph the reindeer, I reached for my iPad to find something to entertain me and remembered that the Open Justice Court of Protection Project had tweeted about an appeal hearing which was being held that day following the Court of Protection decision in Re A before Mr Justice Poole. I knew it concerned a young woman who was deprived of her liberty in a care home (against her own wishes and those of her mother) in order to ensure she received medication (covertly).

    I have wanted to attend a Court hearing for many years, but never seemed to be able to prioritise this, and on the one previous time I tried to join a hearing, the case did not go ahead. So, this seemed a perfect way to spend my ‘sick day’. 

    The post on X from the Open Justice Court of Protection Project provided clear instructions on how to join the hearing. Two clicks later and I was on the judiciary YouTube channel watching the live-streamed hearing in the Court of Appeal. 

    On first impressions, I appreciated that there were two camera angles, one towards the three judges and one towards the open courtroom where the solicitors and legal representatives were seated, and possibly family members or other members of the public, though this was not clear. Having read a number of previous blog posts about attending Court remotely in the Court of Protection (via MS Teams or cloud video platform), I was glad to be able to hear all speakers and appreciated the anonymity of my attendance (e.g that I did not have to introduce myself nor state why I was present)

    I had read previous blog posts about this case which I had received as I am on the mailing list from the Open Justice Court of Protection Project, so I was aware of the background to the case, which meant that it was relatively easy for me to follow along. You can find the previous blogs here[1]:

    P’s case has been before the Court of Protection for a number of years. She is a woman in her 20s who has diagnoses of “mild learning disability”, “Asperger’s”, epilepsy and a medical condition affecting her ovaries which impacted on her reaching puberty. She has been living ‘temporarily’ in a care home for a number of years where she has received medication to induce puberty, which (since she repeatedly refused it) was given covertly. Reading previous blog posts, it seems that A’s mother was not aware for a number of years that A had been given medication covertly. It was not clear from what I heard, though I may have missed it, what had prompted the move to a care home, though I gathered that there was a belief that P’s mother had influenced A to refuse medication. 

    A has consistently expressed a wish to return home to live with her mother. There are a number of concerns regarding her mother’s ability to care for A including the ongoing provision of medication. There were a number of references to there being an “enmeshed relationship” between P and her mother. There were discussions about P’s mother being the person she trusts most in the world and that her mother is best placed to support her with agreeing to take medication, which she needs to take for life. There were discussions about telling P about receiving medication covertly and if she is told that she was covertly given medication this may lead to a distrust in professionals, which could impact future treatment, care and support. 

    Further details of the background to this case are available in Mr Poole’s judgment from 20 March 2024 A, Re (Covert Medication: Residence) [2024] EWCOP 19  – which is the judgment being appealed. It makes for quite sad reading. 

    I gather from previous blog posts and from my observations that Katie Gollop KC represented the local authority and Sam Karim KC acted for the Official Solicitor representing A. Joseph O Brien KC represented the NHS Trust.  A’s mother was represented by Michael O Brien KC. 

    The local authority and the Official Solicitor were both appealing Mr Justice Poole’s decision that it was in A’s best interest to return home whether or not she independently agreed to take medication. From the current hearing I gathered that there was a directive within Mr Poole’s judgement for parties involved to develop a plan to consider how to support P with accepting medication, with the assistance of her mother. I gathered that part of the appeal was the Local Authority’s claim that this plan was simply not feasible and was associated with both short-term and longer-term risks to A.

    I was struck by the compassion and consideration shown to A throughout the discussions. The legal representatives all indicated a long relationship with A’s case and demonstrated their knowledge of her journey over the past few years, particularly in relation to her health, treatment, relationships and social / community life, along with a reflection on her level of cognitive functioning and ability to make decisions. 

    I was touched by the thoughtful reflections to aid the understanding of A’s mother’s perspective, provided by Michael O Brien KC within the hearing. Whilst we did not hear directly from A’s mother in the appeal hearing, Michael O Brien certainly brought parts of her story to the proceedings, which felt very important given that there could be a tendency to judge some of her behaviours, particularly regarding choices she has made for her daughter. This understanding of A’s mother felt crucial in many ways. As a clinical psychologist / neuropsychologist, thinking systemically is key to working with families and the wider systems around A, and having an understanding of all parties within a system is essential, particularly in the event that there is a need for things to change (e.g. understanding a medical condition, ensuring appropriate treatment). 

    It was reassuring to hear repeated discussions about the legal framework and the mental capacity assessments at the heart of this matter. Whilst there are limitations to the Mental Capacity Act (not least related to the frontal lobe paradox), it does provide a relatively clear legal frame (at least from a clinician’s perspective). The process of best interests decision-making was returned to a number of times within this hearing, and it certainly felt that A was being held at the centre of things. 

    I am curious as to where this case will go; and appreciate the need for  Judges to hold on to multiple perspectives to aid with decision-making, and to support with guiding best interests decisions for A. 

    Reflections 

    There were a number of things which stood out to me during this hearing. Firstly, was my feeling of discomfort and anxiety. I work as an expert witness in clinical neuropsychology and have completed assessments of capacity with people regarding a number of decisions and provide neuropsychological opinion to inform the Court regarding people’s neuropsychological functioning and rehabilitation needs in personal injury claims. To date, I have never had to attend Court, so I was definitely noticing the worrying thoughts and stomach flips when thinking about what it might feel like to be speaking in a courtroom to provide evidence. This certainly made me appreciate the thought, skill and composure of the legal professionals and the judges in considering all that was shared and heard in the room, without looking nervous. My mind tells me that they are human and that they too must experience some nerves in this scenario!

    One of the things which really stood out for me was the rhythmic movements from considering the big picture to the details and vice versa, and the considerations given to a number of options in the hope of finding a workable solution for all involved. I enjoyed, despite the aforementioned nervous feelings, hearing the questions, discussions and debates between the judges and the solicitors providing evidence.  

    One other thing which stood out to me was that there were four barristers, each making their client’s case to the judges, and that there was little interaction between them in the courtroom, except via the judges. I’m not sure why this stood out as I have seen enough courtroom dramas to know that this is how it works, but I guess as a clinical psychologist I am more used to sitting in a circle with people and sharing viewpoints together to mediate towards change, and instigating change felt like it was central to this case. 

    This was a long (at least to me, as a new observer) hearing, running from 10am – 1pm and from 2pm – 5pm. I was incredibly impressed, particularly as a clinical neuropsychologist, by the attention, focus, working memory, memory and executive skills (reasoning, organisation and co-ordination) demonstrated by all involved over a prolonged period. It certainly provided me with enhanced respect for legal professionals.

    Dr Cliodhna Carroll is a Consultant Clinical Neuropsychologist working with Allied Neuro Therapy Ltd providing community-based neurorehabilitation following acquired brain injuries. She has an interest in mental capacity, particularly related to the frontal lobe paradox. Her current NHS post is as a Specialist Paediatric Clinical Psychologist at Great Ormond Street Hospital, providing psychological interventions with young people with neurological conditions and their families. 

    [1]

    Unplanned disclosure and (still) no agreed ‘exit plan’: Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44 continues
    Still no exit plan and “we are some way away from the ideal scenario”: Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44
    Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44
    Medical treatment, undue influence and delayed puberty: A baffling case

    “Substantial disagreement” about whether P should return home 

    By Daniel Clark, 6 May 2024

    Mrs F has a diagnosis of schizophrenia, and has been detained under the Mental Health Act 1983 on a number of occasions. She is currently residing in a mental health hospital.  She is medically fit for discharge and subject to a standard authorisation under the Deprivation of Liberty Safeguards. The local authority wants her to move to a care home; her family want her to come home.

    This case (COP 14229945) was heard before District Judge Davies, sitting remotely (via Cloud Video Platform) at Derby Family Court, on Friday 19th April 2024. 

    The applicant local authority, Derbyshire County Council was represented by William Balmer.  Mrs F was represented by her son as her litigation friend. The NHS Trust was represented by Ben Troke of Weightmans. Mrs F’s husband also appeared as a litigant in person, and was added as a party to proceedings during this hearing. 

    This hearing

    Counsel for the local authority explained that Mrs F previously resided at home with a care package of 3 hours a day, and 10 hours of respite a month. From the point of view of the local authority, Mrs F is ready to be discharged from hospital. A move to a care home had been assessed as being in Mrs F’s best interests, and her social worker had identified one that was suitable. 

    However, in a turn of events that sounded like it occurred in the run up to this hearing, the care home rescinded its offer. The social worker has identified two more potential care homes but, currently, “there is nowhere for [Mrs F] to go upon being discharged”. 

    Why the local authority had come to the view that moving to a care home (rather than returning home) was in Mrs F’s best interests was not clear, though brief reference was made to previous strain on her husband, as well as some “factual dispute” about her previous care arrangements. 

    On Mrs F’s behalf, her son submitted that it is in Mrs F’s best interests to return home: this is also the view of her husband. However, neither of them thinks that she is medically fit for discharge. 

    To add a further level of complexity, in contrast to everybody else, Mrs F’s husband thinks that Mrs F might actually have the capacity to make decisions about her residence and care. 

    The judge could not resolve any of the matters at this hearing. He was simply approving an Order that would allow the local authority to submit more evidence with regards to the other care homes, a balance sheet assessing their advantages and disadvantages, and a draft care and support plan. I know this because the judge, acknowledging that I hadn’t seen the order, asked Counsel for the local authority to go through all of the directions that the Order was making. 

    Given the level of disagreement present at the moment, the local authority sought for the matter to be re-listed for a one-day hearing in June. The judge, however, was very clear his diary was such that he could not offer a full day hearing until October or November, which was clearly too far away: Mrs F cannot stay in hospital until then. 

    The judge also seemed quite keen that Mrs F’s son and her husband should receive some formal legal advice. He pursued this line of thinking with Mrs F’s son in particular – but he did not seem very enthusiastic about this. The exchange went a little like this:

    Judge: The one question I have of you is whether you intend on seeking legal advice on behalf of your mother. I think I know that an order was made allowing the Official Solicitor to be made litigation friend. Have you thought about that? There may well be legal aid to assist you putting forward your mother’s voice.

    Son: I haven’t participated in engaging with that but I may take that up.

    Judge: I think it’s a good idea. Mr Balmer [Counsel for Local Authority], you will know firms. You could share them.

    Counsel for Local Authority: That’s already been done Judge.

    I’ve never seen an exchange quite like this before, but I’m told that it’s not particularly unusual for family members to decline offers of legal representation (either for themselves or for P). Litigants in person sometimes believe that they can do a better job than lawyers at representing family members – because they know them best, because (unlike lawyers who are ‘hired guns’) they truly care, or because they feel disappointed and let down by lawyers in the past. 

    It might also feel as though the only way to ensure your mother’s voice is truly heard is by representing her yourself. As we know, such as in Laura Wareham’s case, the Official Solicitor sometimes takes a position that is contrary to the expressed wishes of the protected party. 

    On the other hand, the court process can be confusing and intimidating, despite the adjustments made by legal teams and the judge (see the Equal Treatment Bench Book). “Anna” has explained that being joined as a party helped her mum’s case “to be conducted in a positive spirit”.  

    However, acting as a litigant in person for oneself is very different to acting as a litigant in person as litigation friend for a protected party. There is a risk, which I think is what the judge was getting at, that Mrs F’s best interests may be hard to discern or advocate for in the absence of legal advice. 

    These type of difficulties are precisely why the Open Justice Court of Protection Project is keen to support many different people who want to observe hearings, including those who are acting (or who may be acting soon) as litigants in person. It’s very helpful to see the court in action before you’re thrust into its limelight. 

    I aim to observe this hearing when it returns to court in June.                       

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

    Final considerations for a s21a challenge: Questions about truth-telling to someone with dementia and, yet again, issues with the Transparency Order

    By Daniel Clark, 2nd May 2024

    Mrs B has a diagnosis of dementia and has lived in a care home for over a year. She does not want to live in a care home; she wants to return home and can see no reason why she can’t. However, her home has been sold and she doesn’t know about it.

    This case (COP 14152805) was heard before District Judge Christopher Taylor, who was sitting remotely (via MS Teams) at Bristol Civil & Family Justice Centre. The hearing I observed, on Thursday 11th April 2024 at 11:00am, marked the conclusion of these proceedings, which had been constituted as a s.21a challenge to Mrs B’s deprivation of  liberty.

    Representing the parties were Counsel for Mrs B, Emma Harrison of Butler & Co Solicitors, instructed by Mrs B’s Accredited Legal Representative, and Counsel for Bristol City Council, Kate Meller. Mrs B’s sons have been involved in the proceedings, and had contributed their opinions throughout, but they were not present at the hearing. 

    When proceedings had first begun, Mrs B spent much of her time in her bedroom and did not engage with any activities. Now, she often eats in the dining room and enjoys taking part in some of the activities on offer. 

    Given this change, the court is satisfied that it is the best interests of Mrs B to remain in her current care home. However, there were a few matters to deal with. This blog will discuss them, and then discuss the Transparency Order.  

    Should Mrs B be told her house has sold?

    The first matter for the court to deal with was whether Mrs B should be told that her house has been sold. While there is no dispute that she lacks capacity in relation to her care, residence, and finances, there was a question about whether being told her house had been sold may assist in her understanding that remaining in a care home is the only option (notwithstanding the fact that she has been assessed as requiring 24-hour care). 

    Counsel for Mrs B explained that there were three options available: to not tell Mrs B, to tell her once, or to tell her regularly. Counsel explained that her “family were very clear they didn’t want mother to know they had sold her house, and the care home were clear that she would forget very quickly and it would be very distressing”. 

    Given that they could not take instructions from Mrs B, her Accredited Legal Representative was neutral on the matter. On the other hand, Counsel for the local authority endorsed the assessment of Mrs B’s social worker. This led to the conclusion that it was in Mrs B’s best interests to not be told about the sale of her house at any point. 

    This is because being told may, in the words of the judge, cause “agitation and distress and cause difficulties”; in particular, it may put a strain on the relationship with her sons and the care staff. This may only be short-term if Mrs B forgets but there was also a risk that she would not forget, making the strain more long-term. 

    The judge saw this potential for distress as the predominant factor in formulating this best interests decisions, and declared that it was in Mrs B’s best interests to not be told. Instead, the care home should carry on as they are, which is distracting and diverting when Mrs B asks about her house.

    Despite the fact that, of course, I haven’t met Mrs B, I found this really quite remarkable. A person can only be said to lack capacity if they cannot understand, retain, use, or weigh, the relevant information, or communicate a decision. However, if someone is denied access to some of the relevant information, their capacity surely cannot be adequately assessed.

    By not telling Mrs B  – even once –  that her house has sold and that she therefore cannot return to it, the court is endorsing a situation where Mrs B does not hold all of the relevant information. How can she expected to understand, retain, and weigh-up this information if she has not been given it?

    There is also a considerable literature on the ethics of “lying” to people living with dementia. The Alzheimer’s Society employ the example of a person asking for a deceased family member: how should a carer react? Typically, it would be quite distressing for a person to be reminded that their mother has died. 

    However, it can also be distressing for the question to be ignored. Here, perhaps it is better to lie by omission (such as distracting them), which is the approach the court is endorsing in Mrs B’s case. In my experience as a paid carer, it’s much easier to think about distracting somebody than actually doing so. If you desperately wanted to see a family member, would you accept someone trying to distract you with a cup of tea or a walk in the garden? 

    Some researchers have problematised the idea of “therapeutic lying”; the term employed when carers lie because they think it is the kindest way to avoid distress. Given that we accept truth-telling as a moral good, why would it be morally acceptable to take lying to be a standard part of care for those living with dementia? This can lead to the dehumanisation of the person. The fact remains, however, that truth-telling can be extremely distressing.

    “Anna” has explained that part of the process of her mum’s s21a challenge was that her family had to tell their mum that her house had been sold. They hadn’t done this before because they wanted to protect her feelings; they knew it would upset her and they were right. “Anna” writes that telling her mum was “a moment I will never forget. When I told her, mum told me she hated me and would never forgive me. She even told me that she didn’t love me anymore and not to go to her funeral. She was very upset and distressed and obviously I was too”.

    This is a stark reminder that there are very real consequences of a radical approach to truth-telling: it can be distressing not only to the person but also to their family. Not one of us can predict whether we’ll develop a dementia and we certainly can’t predict how we’ll react to being told distressing information. However, there are some steps we could take.

    Researchers who asked people living with dementia what they think about lying discovered a complex picture. In sum, whether somebody wanted to be lied to depended on the personal views of the person. Interestingly, nobody who thought lying is “always wrong” thought that avoidance of potentially upsetting topics was lying. 

    In that research, the researchers suggested that “advanced directives” could “be a fruitful way of identifying people’s preferences towards truth-telling, informing their future care”. In the United Kingdom, this could be included in an Advance Care Plan and is, I think, the best solution open to us (at the moment). 

    A potential costs application

    Another matter requiring a conclusion was that when she was a patient in hospital, just prior to her move to the care home, Mrs B was very clear that she wanted to return home. This was ignored, and no proceedings in the Court of Protection were commenced. 

    Her Accredited Legal Representative therefore wanted a costs Order to be made, which would allow the Official Solicitor to investigate whether it is proportionate to bring a claim under the Human Rights Act on Mrs B’s behalf. 

    In effect, this Order would recognise it as lawful for Mrs B’s Lasting Power of Attorney to release funds so as to cover the costs incurred by the Official Solicitor while she investigates this claim. 

    The judge was theoretically happy with this Order. However. Mrs B’s LPA for financial decisions is one of her sons, and it was not clear that he had been made aware of this application. The judge was therefore not happy to make the order sought because he wanted to allow him time to make representations. The judge will deal with the matter on the papers, “provided I am satisfied they’re aware of it and have had sufficient time to respond”. Alternatively, he will list the matter to be brought back before him. 

    Unusually, I got to see the draft Order under discussion because the judge had not received it, and so asked Counsel for Mrs B to share her screen. This was a great moment for open justice, even though it did only happen because an email was taking too long to be delivered.

    It is so much easier to be able to follow the discussions about an Order when we can actually see it. As far as I am aware, only one Court of Protection judge (Hayden J) routinely asks for his screen to be shared so that observers can see the documents, including witness statements, that he is looking at. It would be great if more judges started doing this (and not just because they were experiencing tech issues!)

    What will Mrs B be told? 

    Mrs B was a social worker, and as such she was quite aware of certain processes: namely, detention under the Mental Health Act 1983. Her Counsel explained that she often asks, “Why am I here, I’m not under section”. The idea that she might be, or that she is being held by virtue of a mistake, was understandably distressing. 

    The court was therefore asked to consider whether it should send a short letter or short judgment to Mrs B, explaining that it has been found to be in her best interests to remain in the care home. It did not seem to me that the judge even had to think twice about this: he expressed that he was “more than happy to draft a letter setting out the position”, and for this to be sent out on court-headed notepaper with his signature. 

    This is fairly common in Family Court cases, and is (thankfully) starting to find its way into the Court of Protection. For example, Mr Justice Poole detailed in one judgment ([2024] EWCOP 5) that he would write a letter to the protected party explaining the decisions he had made. Similarly, so that P will continue to trust his family and treating teams, John McKendrick KC (sitting as a judge in the High Court) explained in a judgment([2023] EWCOP 51) that he sent a letter to a protected party explaining that the court, and nobody else, was responsible for authorising surgery to which he was not consenting. 

    In my view, this is a very encouraging way of ensuring that a protected party is treated as more than just a case number: it ensures that they are recognised as a person whose views and wishes are respected even when they cannot be accepted. 

    The Transparency Order

    I received the Transparency Order for this case prior to the hearing and, upon reading it, was dismayed to find that it prohibited identification of the local authority 

    This is quite unusual: a local authority is a public body, funded by the taxpayer and therefore accountable to her or him. However, it cannot be accountable if the taxpayer does not know what it is doing. For this restriction to be justified there would need to be a fairly compelling reason why the identification of a local authority would (or could) lead to the identification of P. 

    At this stage, I knew nothing about this case. However, as a matter of principle, I wrote an email for the attention of the judge. Here is some of it:

    This can be quite a scary thing to do but I’ve done this before, including before a High Court judge. I’m therefore “used to it” in a way that can only come from practice (practice that, really, I shouldn’t have ever needed to have!)

    The judge dealt with this matter at the start of the hearing. Counsel, who had also been sent my email, did not see a reason why identifying the local authority should be prohibited. They were however conscious of the fact that Mrs B’s children have had strong views throughout proceedings but they were not present and therefore not able to express what they thought about my application. 

    The judge, however, did not feel the need to hear from Mrs B’s children before making a decision. After all, this was an “issue of transparency” but I was not proposing that Mrs B should be identified. Clearly, the judge did not think that identifying Bristol City Council would somehow lead to an identification of Mrs B. 

    While I was happy that the judge agreed to vary the Transparency Order, I was also dismayed that I needed to apply for this in the first place. At some stage, a lawyer had drafted the Order and a judge had approved it. If there was no compelling reason why identifying Bristol City Council would identify Mrs B, how did this prohibition find its way into the Transparency Order in the first place? 

    A few months ago, I observed a case before District Judge Geddes and an almost identical situation with the Transparency Order was played out. In this instance, the judge said of routinely anonymising public bodies, “just stop doing it […] there’s much more important things to be thinking about including the actual facts of this case.”

    Clearly, more lawyers need to hear this.

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

    Challenges relating to capacity to engage in sexual relations

    By Amanda Hill, 30 April 2024

    As a prospective PhD student researching families in the Court of Protection, I wanted to learn more about capacity, how capacity assessments are done and how Court of Protection judges determine whether somebody has capacity to make decisions. So, when I saw this hearing (Case COP 133330937) listed for 6th March 2024 on the Open Justice Court of Protection Project Twitter (X) page, it sounded an interesting hearing to observe as the case involved various different decisions about capacity: 

    Although the hearing was listed for 2 hours, it actually only lasted for about 30 minutes. 

    Having read the position statements from both the local authority, East Sussex County Council, (the applicant) and the Official Solicitor (OS) (representing P, the first respondent) before the hearing, I knew that a lot of work had gone on behind the scenes to ensure that the parties were in agreement about a way forward. But even though the hearing was short, I learned a lot from it, including the role of expert witnesses and about the process of capacity assessments. I was able to do this not only from observing the hearing but from receiving the position statements (PS) in advance so I thank the parties’ representatives for allowing me to have them. 

    The PS from the OS was particularly useful because it was 22 pages long and included a lot of detail about the law relating to capacity.  It also included an annex at the end which detailed a summary of the expert witness’s conclusions and reasoning of the various capacity assessments she was being asked to make, over a number of different areas. I will start by setting out the background to the hearing, before describing the hearing itself and then reflecting on what I have learned from it, including about the role of expert witnesses, the role of family and how I experienced open justice. 

    Background

    P, the protected party in this case, is a young woman with complex needs arising from a brain injury acquired when she was 7 years old.  She lives with her mother and siblings. P currently has a boyfriend (T) who is under the age of 18, T. P wishes to be in a relationship with T, and engage in sexual relations with him. It is also reported that she wishes to have children. She doesn’t agree with some of the restrictions in place, including those which affect her freedom and ability to spend time with T, unsupervised. She does not disagree with all of the support in place for her, though, and she wants to remain living in the family home with her mother. 

    The LA first applied to the court in January 2023, wanting declarations regarding P’s capacity to make decisions in various domains.  They also applied for an ‘authorisation of deprivation of liberty in her best interests’. Since that time there have been various case management orders made through previous hearings, round table meetings and discussions with the parties, interested persons[1] and the joint expert, Dr Lilley[2], who had been appointed to conduct the capacity assessments. 

    The case had now reached a hearing on 6th March 2024, 14 months after the initial application. The PS for the OS outlined the issues before the court, which were whether P has capacity to make decisions about: 

    a) her residence

    b) her care

    c) contact with close family members

    d) her contact with others (excluding close family members)

    e) contact with a person with whom she may wish to engage in sexual relations

    f) decisions about the support she requires when having contact with a person with whom she may wish to engage in sexual relations

    g) engaging in sexual relations

    h) her use of the internet and social media 

    and about her capacity to: 

    i) conduct the legal proceedings

    The court was also being asked to determine best interests for P in relation to her care arrangements and whether the restrictions that amount to a deprivation of liberty are necessary and proportionate to the risk and likelihood of harm for P. The final issues for the court were what evidence and plans were required to determine P’s best interests in relation to arrangements for contact with T, arrangements for contact with other persons with whom P may wish to engage in sexual relations[3] and finally P’s use of the internet and social media. 

    I reflected on reading this that 14 months is a long time in a young adult’s life, especially one who wanted to spend time with a boyfriend, and that there were a lot of issues before the court. One sentence in the PS for the LA particularly struck me: “it is not in P’s best interests for the proceedings to drag on indefinitely nor for them to be a vehicle to micro-manage all aspects of P’s welfare.”

    Assessment of P’s capacity to make decisions in the various domains was conducted by Dr Lilley, who wrote four reports. According to the local authority, “her opinions on capacity remained consistent apart from in one area: consent to sexual relations.” It seems as though there had been a lot of debate around this specific domain, and in particular around a difference between P’s capacity to engage in sexual relations with T, and engage in sexual relations with non-specific others. Dr Lilley’s initial conclusions were that P lacked capacity to engage in sexual relations, then that she lacked capacity to engage in sexual relations for anyone other than a person such as her boyfriend T.  A meeting was held in late January 2024 between Dr Lilley and all the interested parties.  Following that, Dr Lilley wrote a fourth and final report, with that recent view being that P does have capacity to engage in sexual relations. As all parties are now in agreement, it was deemed that it was not necessary for Dr Lilley to attend the hearing. 

    The agreed position between the parties now being put forward to the court was that P lacks capacity to conduct the proceedings, make decisions about her care, make decisions about her contact with others, except for contact with close family members she knows well, and to make decisions about using the internet and social media. 

    She does, however, have capacity to engage in sexual relations and make decisions about her residence. 

    The reason for the hearing was that the court was being asked to make final declarations as to these assessments of capacity and the best interests decisions on behalf of P outlined above. 

    The hearing on 6th March 2024[4]

    The hearing started at 11.20 am and finished at 11.50 am. Judge Lusty was in a physical courtroom but everybody else was appearing remotely. On logging on, I had added the label “public observer” to my name and I was glad I did because on joining the hearing Judge Lusty asked Lindsay Johnson, Counsel for the LA, to introduce everybody. Judge Lusty also asked me to confirm that I had received, read and understood the TO and I confirmed that I had. 

    The other people in court included Counsel for the OS Gemma Daly, solicitors for both the OS and the LA, P’s case manager at the care provider, a privately instructed Clinical Psychologist, a member of the social work team and a representative of P’s Property and Affairs deputy. It struck me that everybody attending the hearing was a professional involved in the case. P was not present and neither were the other two respondents to the case, nor any other friend or family member. 

    There was no summary of the case (so it wasn’t best practice in accordance with guidance from the former Vice-President of the Court of Protection, Mr Justice Hayden). But as I had received the parties’ position statements in advance it was probably thought unnecessary, which – as I believe I was the only observer –  it would have been. 

    Counsel for the applicant local authority

    Lindsay Johnson set out the latest developments. He started by saying that Dr Lilley had updated her report following the very useful meeting on the 31st January. It had clarified views and there was now an agreed position as to P’s capacity across a number of domains, which were included in the draft order (and as I have set out above). He stated that her capacity to make decisions with regards to residence was that she could choose between two different options but that was not an imminent issue. He was asking the judge to make final declarations, to build on interim court orders. But there had been a major change in Dr Lilley’s views on P’s capacity to engage in sexual relations, from the original view of no capacity, to a modified view of capacity to engage in sexual relations with T, to now being assessed as having relations to engage in sexual relations. This meant that capacity issues had been agreed. 

    Best interests decisions now needed to be made, but at present the judge did not have all the evidence before her.  A draft plan of contact was in the order, including plans for unsupervised contact between P and T, where there was general agreement. There would be a return to the court if more restrictive measures were proposed. In essence what remained to be determined was a plan for P to have contact with other people, the so called TZ N°2 plan. The social worker was going to prepare that, which would then be agreed with the OS. 

    The best interests of P with regards to use of the internet and social media was also outstanding. Mirroring software that allowed for proportionate monitoring of social media was the restriction currently in place. It was proposed that the draft care plan should include everything with regards to best interests before the court, namely the TZ N°2 plan and methods for monitoring social media and internet use. 

    Lindsay Johnson also raised the fact that P’s mother should be given an opportunity to provide a statement to the court if she wished to. She had not taken an active role in proceedings to date and had not chosen to file evidence. He said that he wanted her to have a voice in the proceedings, although he was in no way suggesting that she didn’t want to be involved in P’s care. He proposed a round table meeting and /or an advocates meeting. 

    At the final hearing, the arrangements for care, via the care plan, will be presented. The judge will have to decide if the proposed plans posed proportionate restrictions to P’s liberty.  

    Counsel for P (via her litigation friend the Official Solicitor)

    Gemma Daly stated that the OS accepted the conclusions of the order. With regards to capacity, the judge could make s.15 final declarations on the matters in the order. The concerns about Dr Lilley’s evidence had now been resolved now that she had changed her position. The connected concern about contact with others had also been resolved. Contact with close family was now a separate issue and it was deemed that P does have capacity in that domain, as a distinction to “contact with others”. Dr Lilley’s view was that P could gain capacity when she gets to know somebody over time. The difficulty in this case was the distinction between capacity to engage in sexual relations with somebody (which she was deemed to have) but the fact that she lacks capacity to make decisions about contact with others. 

    Gemma Daly referred to a paragraph in Dr Lilley’s most recent report which reads. “I now consider that P does have capacity to make decisions about sexual relations with others generally, not just with T. She does understand and retain the relevant information and she is capable of using and weighing it and communicating to make decisions about engaging in sexual relations”.  With regards to contact with others, “P lacks capacity to make decisions about contact with others, with the exception of close family members she knows well and has known for many years. This should be subject to review”. 

    Gemma Daly stated that logically there was a distinction between capacity to engage in sexual relations and capacity to make decisions about contact with others in this case. She went on to say that there was not a longitudinal approach to capacity in this case and the judge was not being asked to make an order as to this as it would be contentious. She went on to outline that the “causative nexus”, the cause of the lack of capacity, was a mental disorder and was not due to P’s age or maturity. However, because of her age and maturity, her capacity would have to be kept under review. 

    In terms of capacity for decisions as to the use of the internet and social media, Dr Lilley had not had the opportunity to assess whether she has capacity. (The report states that she lacks capacity but that “this should be subject to review, particularly as restrictions are reduced and more information about her current functioning becomes available.” P had not been able to hold information in mind because of her impulsive behaviour. Education has helped, but she still lacks capacity. The order asks for review periods to be added to the care plans.  

    In terms of best interests, Gemma Daly referred to §33 of her PS, stating that P’s capacity to “engage in sexual relations with others would be restricted somewhat by best interests regarding her contact and the support she requires”. She referenced Mr Justice Hayden’s comment in Manchester CC v LC & KR [2018] EWCOP 30 that “It has been canvassed that if the court is to restrict LC either in part or, potentially, fully in such a sphere (i.e. where she has capacity) the court ought to only consider such measures under the parens patriae jurisdiction of the High Court.” (I understood by this that if P wanted to engage in sexual relations with somebody other than T but was restricted because she was not deemed to have capacity to have contact with them and a judge would have to decide whether it was in her best interests for contact, then that would have to be heard in the High Court. At present it isn’t a situation that has arisen.) 

    Summing up

    The judge then summed up. She said that things have moved on since they were all together and she didn’t underestimate the effort that had been put in, especially by Dr Lilley. She was satisfied that she could make s.15 final declarations in the draft order which had been read by Mr Johnson. She appreciated that Dr Lilley’s views had changed but the evidence had made it clear why they had changed. She was not in a position to approve a final order because it was necessary to continue interim restrictions. However, there were sensible directions to hopefully take the case to the point of concluding, to the benefit of everybody.   The final hearing is listed for 2pm – 4pm 28th May 2024. 

    The judge finished by asking that her thanks be sent to Dr Lilley and by saying that “everyone’s approach has been conciliatory which has been very helpful”. 

    Reflections 

    This hearing underscores the importance of an expert witness to decisions about capacity. Clearly a lot of work had gone on behind the scenes and I thought it was interesting to hear about a case where an expert witness had changed their opinion, and to be given an insight into the process that led to that. This hearing underlines that people can have (or lack) capacity for different things and at different times and that there is no such blanket term as ‘having capacity’, which I think lay people like myself can sometimes assume. 

    I did wonder why neither P nor any family member was at the hearing. I was pleased to note that Lyndsey Johnson was keen for the family’s voice to be heard. This case highlights that, sadly, anybody at any time can become a P in a COP case through an unexpected injury, and any family can find themselves involved too. That’s why open justice is so important in increasing understanding and awareness of the Court of Protection. 

    Finally, the process of gaining access to be able to observe the hearing was an exemplary instance of open justice.  I sent a standard email to the court, requesting the video link, the transparency order (TO) and the position statements (PS) at 7am the morning of the 6th March. I received the TO at 7.35am, from the administration officer of the SE court hub. I then received the link to the hearing from the clerk to HHJ Lusty at 8.30am. I was then surprised to receive another email from the administration officer at about 9.50am, saying that Judge Lusty had informed her that “Counsel for the OS is just waiting for instructions from her solicitors about the disclosure of their position statement”. And then at 10.10 am I received both PSs, a full 50 minutes before the hearing was due to start, giving me a good amount of time to read them. This was the first time I could recall being sent the PSs before the hearing. I have sometimes been sent them when I have requested them again after a hearing but I would say that more often than not I am not sent them. 

    So, in this case I was able to really appreciate what was covered in the hearing. The PS was redacted so that P could not be identified, nor the other two parties. This was in line with the TO. It was so useful to me to have read both of these before the hearing started. 

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

    [1] These included P’s Property and Affairs deputy, her case manager, and a psychologist, who were all present at the hearing I observed. A social worker was also present. 

    [2] I have been unable to identify who exactly Dr Lilley is, as she was not named in full in either the court documents or during the hearing 

    [3] This was identified in the LA PS as a TZ-style plan, after TZ (N°2) [2014] EWHC 973. Daniel Clarke has blogged recently about another case involving a TZ-style plan here

    [4] It is forbidden to record any part of a hearing and I don’t touch type so my notes will not be 100% accurate.  

    “For now, it’s a ‘no'”: Court considers access to Grand Theft Auto

    By Gill Loomes-Quinn, 28 April 2024

    Grand Theft Auto – a series of action-adventure games – was at the centre of this hearing.  The protected party (C ) doesn’t want restrictions on his liberty to play the video games – but is (his carers say) “unable to cope with the emotional impact” of them. Gaming “leads him to try and copy in real life what he sees happen in some games as the boundaries between fantasy and reality blur for him”.  This includes assault and threats of physical and sexual violence against both his carers and/or the public. Work to increase C’s self-awareness of these issues has not been wholly successful.

    And so the case (COP 12521181) was in court on Monday, 3rd April 2024 before District Judge Wylie, sitting in Lancaster.  It was a case, about which judgments have previously been published (A Local Authority v C & Ors [2021] EWCOP 26; Re C [2021] EWCA Civ 1527) – which is what stimulated our interest in watching the hearing – but the issues facing the court in today’s hearing were entirely different to those addressed in the published judgment. 

    The protected party, C, is 30 and has Klinefelter syndrome and autism.  He is said to enjoy sports, music and history. The application from the local authority was for a further 12 months authorisation of his continued deprivation of liberty relating to residence and care, following an objection by his Rule 1.2 representative. 

    Having read the previous judgments, it was really great to hear from C’s senior social worker, via Ben McCormack, counsel for C (by his litigation friend, his Rule 1.2 representative) about how successful the support arrangements were proving – thanks largely to the “fantastic job”[1] being done by his care provider according to an “unusually detailed care plan”; and of how settled and “improved” C’s quality of life had become, following a period between 2014 and 2017 of residence in a secure hospital with “very limited options”. 

    This hearing served as an important reminder to me that ‘life goes on’ for protected parties following a hearing or the publishing of a judgment; and that for many disabled people, the influence of the MCA 2005 legal framework, and often the Court of Protection, is long-term, and can cover a broad range of facets of a person’s life.

    THE HEARING

    Access

    Having emailed the court with my request for the hearing link at 22:58 the evening prior, I spent the morning of 3rd April checking my email periodically to see if the request had been successful. I always find this process fraught and anxiety-provoking due to the opacity and seeming randomness underpinning it. On this occasion, however, being in contact with Celia alerted me to the fact that she had been successful and had received the link before me. She was also able to provide me with an alternative email to contact (for a court in Blackpool, for some reason). Following a protracted period of email exchange with a court administrator in Blackpool, I received both the link and the Transparency Order by lunch time and was ready for the hearing.

    Transparency

    The hearing started at 3:05pm with a discussion regarding the Transparency Order. Counsel for C via his litigation friend and Rule 1.2 representative (Ben McCormack) argued for amendments to the Order to bring it in line with the terms of the restrictions in operation in previous proceedings concerning P before the Court of Appeal in 2021. The proposed amendment would increase the scope of the restrictions to include: the identity of C’s litigation friend at the time and now (both of whose specific geographical location could potentially serve as a means of identifying C); the identity of the Local Authority; the names of P’s social worker, healthcare professionals and other carers; P’s age; and the name of any hospital in which he had received treatment. Ben McCormack argued that there had been no material changes in P’s life since 2021 to suggest that different restrictions would be appropriate now, and care needs to be taken to ensure P’s care package is maintained without disruption – particularly in view of the high profile previous judgments. These amendments were endorsed as ‘sensible’ by counsel for the Local Authority (Roger Hillman) and were approved by the judge. 

    Celia Kitzinger raised two questions relating to reporting the hearing and the risks of identification of the protected party: (1) whether it would be acceptable to refer to P’s age as “in his twenties/thirties” – in answer to which it transpired that his exact age of 27 was previously included in the Court of Appeal judgment from 2021. The information was therefore already in the public domain and so it could continue to be reported in these terms; and (2) whether reporting that the case was being heard before District Judge Wylie in Lancaster was identificatory (this was agreed not to be the case). 

    Celia asked her questions by turning on her camera and mike (observers usually have these turned off during proceedings) and speaking at an appropriate point in the proceedings (i.e., while no one else was speaking but before the hearing moved away from the theme of ‘transparency’ issues).

    It’s self-evident that the role of members of the public present during a hearing is simply to observe, and to refrain from taking any active part or exerting any influence on the substantive proceedings   Sometimes, however, especially in the absence of journalists in court, we have a role in ensuring the practical implementation of open justice.  Celia’s intervention provided an example of how this role can assist the court in clarifying the scope and detail of the Order – thereby supporting the court’s policy commitment to open justice. This is increasingly common as observers gain the knowledge, skills and confidence to perform this role. For examples of observers’ engaging actively with the contents of the Transparency Order to ensure that both Article 8 (P’s right to privacy) and Article 10 (the public right to information) are appropriately balanced see: Daniel Clark’s blogs: “When P’s best interests aren’t in a Council’s financial interests”; “Judge approves P’s conveyance (against his wishes) to a care home – and tells lawyers to “just stop!” routinely anonymising public bodies in draft Transparency Orders“; and Claire Martin’s, “A most distinguished man”).

    Issues before the court

    After the discussion of ‘transparency’, Roger Hillman (counsel for the applicant local authority) opened with a proposed outline of today’s hearing. He suggested that after a short summary of the current situation from him, there would be a break in the hearing for the judge to speak (remotely) with C while everyone except C’s litigation friend and solicitor left the call. We would then rejoin at a prearranged time for any judgment to be handed down. This was accepted by the judge.

    In the opening summary, I learned that a “commendable achievement” had taken place regarding C’s care since the placement commenced in 2017, following a period between 2014 and 2017 when C had been in a secure hospital placement with “very limited options”. Challenges attributed to C’s autism and learning disability, particularly his emotional dysregulation, have apparently been addressed via a detailed care plan “which is quite a volume in its own right”, and which focuses on “working with C to achieve outcomes for him and to involve him in identifying solutions”. C’s care provider was commended for doing “a fantastic job”.

    Two ongoing issues in C’s case related to his objections to decisions restricting his access to the computer game Grand Theft Auto (GTA) (because of its apparent disruptive impact on his emotional wellbeing); and to his consumption of fat-intensive foods and sugary drinks (because of concerns regarding his weight). An amended care plan had been sent through and a Positive Behaviour Support (PBS) Plan is to be filed as well. This is to include recommendations about how to manage the implementation of the best interests decision concerning P’s food and drink intake, and what to do when P challenges this. Subject to this document being filed in 3 weeks’ time, Hillman asked that the court approve the care plan in its amended form (along with the restrictions), as appropriate, necessary, and proportionate; and to renew the standard authorisation (of the DoLS) for the next 12 months. He added that the current litigation friend could continue to be Rule 1.2 representative in the run-up to the next review in 12 months. He then invited Ben McCormack (counsel for C)  to tell the judge something of the “preoccupations” of C and the subjects of his complaint. This was to assist the judge in her upcoming meeting with C.

    McCormack began by indicating that, for C, this was a hearing where the court was going to decide whether or not he would be able to play GTA. Apparently “we know he wants to play GTA” but there is a “sophisticated analysis and justification” as to why this is not in his best interests as “it’s a game that triggered lots of disruption to the carefully calibrated care plan he’s got”.

    The parties, including C’s litigation friend, agree that GTA is not in C’s best interests – so  access to GTA is “not an issue between the parties” and “there isn’t a dispute between the parties to the litigation”.  By contrast, however, C himself very much wants to play GTA: that’s “his preoccupation and likely to be what he wants to talk to you about”.

    We then heard about why the care plan in a broader sense was said to be in C’s best interests. As background context, McCormack reminded the court (and informed any observers unfamiliar with the case) that C had been in hospital for three years; adding that it was “rare” to find someone with his sort of history to be now discharged and “living successfully in the community” with a “sophisticated and knowledgeable team” who “really understand what makes him tick”. C is “consulted” and “helps to design” systems that assist him to “navigate the difficult parts of his life”. The position of C’s litigation friend is that the care package is working well and although C is deprived of his liberty, this is in his best interests. The “tidying up of documents” [following today’s hearing] is not going to affect materially this position, and it is thought unlikely that any other hearings will be necessary. Referring to his position statement, McCormack suggested that “we think it would benefit P to feel that this was an end to the case”, and that if the judge were to agree that no further oral hearings would be necessary and that the care package is working well, “it would be helpful if you could make sure C is aware of it”. He concluded by asking if he could assist the court with “any further groundwork” for the judge’s meeting with P. 

    There followed some discussion between Ben McCormack and the judge, beginning with the judge enquiring as to the detail of C’s “food issues’” It turns out that P reportedly wants to lose weight but isn’t managing to do so [N.B., there is relevant literature indicating that “weight and body composition variations” are associated with Klinefelter syndrome, although this was not referenced in the hearing]. A referral to an NHS dietitian is apparently ongoing but currently subject to a waiting list. It is envisaged that the PBS plan will cover what staff should do when C “goes behind those rules” aimed at supporting weight management. However, counsel considers it unlikely that C will want to discuss this issue much with the judge.

    In relation to the game C is prohibited from playing, the court heard that GTA is “not some backstreet, under-the-counter game – it’s a huge part of popular culture, one of the best-selling video games in the world”. C would have been able to see people talking about it and watch clips of people playing it on YouTube (emphasising to me the potential for social exclusion and marginalisation to result from seemingly intensely individual best interests decisions made in the Court of Protection). Then, before the court was cleared ahead of the judge’s meeting with P there was a brief exchange about how P had managed his previous interaction with a judge – in the hearing before Mr Justice Hayden reported here. Addressing the judge, counsel said that, when preparing for the current proceedings, P said he “rather hoped you were as good as the last judge he had”!

    We were then asked to leave the video-platform  while the judge met with P.  We were told we would be sent an email when the judicial visit was finished and it was time to return.

    Submission from the Local Authority

    When we returned to court, Roger Hillman made his submission on behalf of the Local Authority. They are keen to see this “successful” placement continue and thrive, but note that life is not always “plain sailing or easy for C” as he has “mental health problems and problems with managing his emotions if they get the better of him” – including when he “mixes up reality with fiction or make believe as appears on the video screen”. It is for this reason that the Local Authority wants the court to rule that the ban on C’s playing of GTA continues. He conceded that “C may disagree and have his own opinion on that”, adding that “nothing is forever” and the decision “can be reviewed” in future, but as things stand, he hoped the court would say the care plan is a “reasonable and proportionate approach”. He therefore asked the court to approve that restriction in the care plan. This was followed by some brief discussion of the procedural formalities concerning the filing of the care plan and PBS Plan with the court and the judge’s authorisation of the deprivation of C’s liberty for the following 12 months. 

    Submission for C (via his litigation friend)

    McCormack made his submissions on behalf of  C, which echoed many of the points made by Hillman: C has an “ongoing interest” in accessing GTA and “nobody’s ruling it out forever”, but currently this can’t “be effectively managed” and is therefore a proper restriction of his liberty. Further, considering C’s care plan more generally, the position of C’s litigation friend was that while C ’s life is “tightly controlled in many respects”, when read as a whole, the court should approve the deprivation of his liberty as appropriately within the scope of Article 5 of the European Convention of Human Rights.

    Judicial Decisions

    After more discussion about the procedural formalities to follow today’s hearing, the judge concluded by saying that she would adopt McCormack’s proposal that a COP 9 form with either a final order or a request for a further hearing (in the event that an order could not be agreed by the parties) should be filed with the court, with deadlines of 24th April for the PBS plan and 8th May for the COP 9 or request for a further hearing being confirmed. She explained that she “had considered very carefully the detailed care plan”; adding that P “has a level of insight” into the issues caused for him by playing GTA – although “he said to me it was the fault of the staff rather than the impact of the game”. The judge’s view was that this is “proportionate and necessary” and can be recorded on the face of the order. She was “entirely satisfied it’s in P’s interests that the care plan should be approved and he shouldn’t have access to GTA, knowing he will be very disappointed” but “for now, it’s a no”. 

    Reflections

    Today’s hearing was a reminder for me that the lives of the Ps we read about in the (relatively few) published judgments to come out of the Court of Protection continue beyond the proceedings that produce those judgments[2]. As in this case, a ‘P’ may find themselves the subject of court proceedings multiple times over the course of many years; and this caused me to reflect on how for many disabled adults, the socio-legal framework of mental capacity legislation can enmesh itself into their lives across a broad range of issues and domains over the course of a lifetime. In such instances, while a hearing such as this may function as a ‘snapshot’ into a person’s life,  a longitudinal, holistic view of the law’s impact on life is also crucial. 

    Throughout the hearing I noted the juxtaposition of the technical, legal, somewhat ‘abstract’ framework of the Deprivation of Liberty Safeguards (DoLS) authorisation alongside the more ‘real world’ concern with access to the GTA game that was exercising P, described as the “point” of the hearing from his perspective. And it was certainly novel, to me, to see the court taken up with the question of access to a computer game

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

    [1] Care has been taken to be as accurate as possible in quoting. However, as recording of court proceedings is prohibited, quotes cannot be guaranteed to be verbatim.

    [2] See also:  “The immediate steps in the aftermath of that judgment”: Increasing concerns, a TZ care plan, and judicial continuity