“Getting it right first time around”: How members of the public contribute to the judicial “learning experience” about transparency orders

By Celia Kitzinger, 7th June 2024

We operate a “Watch List” at the Open Justice Court of Protection Project.  We do this because the Court of Protection doesn’t always get things right first time around.  

Sometimes we find repeated problems with how particular judges’ hearings are listed (e.g. they don’t have descriptors to tell us what they’re about, or they say “Private” when they’re almost certainly not).  Or court staff at particular hubs or from particular courts recurrently fail to send us video-links in time to observe hearings.  When this happens, we put the relevant courts, or regional hubs, or judges on our “Watch List”. This means we try to ensure that someone goes along to future hearings and raises concerns if the problems continue. We hope that by repeatedly alerting the relevant authorities to the fact that they don’t have it right first time around, they’ll do better in future.  It seems to work.  We review the “Watch List” each month – removing those who are performing better, and adding others who are cause for concern.

The South West hub (all of it!) has been on our “Watch List” for the last two months because it has a disproportionately high number of hearings listed as “Private” – and one particular judge in the South West hub, District Judge Eaton-Hart (who sits in Torquay) was on our “Watch List” for an additional reason – a history of listing problems (no descriptors, and no contact details).  

So, I watched two of  DJ Eaton-Hart’s hearings in May – and having done so I added DJ Smith (who sits in Plymouth) to the Watch List.  That’s because at both of DJ Eaton-Hart’s hearings I was sent Transparency Orders made by DJ Smith, and both were problematic.  I subsequently sought to observe two of DJ Smith’s hearings.  Both were vacated – but I was sent the Transparency Orders for both. So, this blog draws on the four (sealed) Transparency Orders made by DJ Smith[1] that I was sent in connection with hearings during May 2024 to show how, as a member of the public, I was able to support the court’s learning about transparency. 

As I’ll show, the first three Transparency Orders I was sent took up a fair amount of court time because they (erroneously) prohibited reporting of the identity of public bodies.  On the first two occasions, I challenged the Transparency Orders via an email addressed to the judge, leading to what he described (several times) as a “learning experience”.  On the third occasion, I challenged the Transparency Order via a formal COP 9 application.  The fourth Transparency Order didn’t need challenging: it didn’t prohibit reporting the identity of any public bodies.  So it looks as though the “learning experience” had worked.

Of course, I am pleased that DJ Smith (and DJ Eaton-Hart and probably quite a few other judges whose Transparency Orders we’ve challenged) are now more aware of the requirements of open justice and how Transparency Orders should work.  But I’m also concerned, that this may not be the most efficient and cost-effective way of imparting this information.

I’m told that a message has now been sent (by the Senior Judge? by HMCTS?) around the South West hub (and maybe further afield?) telling judges not to routinely anonymise public bodies.  It would of course be much better for everyone if these errors were not made in the first place – but where they have been made, I would hope that they might be spotted in advance by lawyers or by the judge and fixed before the Transparency Orders are sent out to us.  

At the moment the court seems to rely on members of the public to spot the errors and to ask for changes. This does not seem an efficient or sensible use of public funds, and it places the burden of open justice on the shoulders of members of the public who are not trained in law, and do not necessarily have the knowledge or skills – or confidence – to carry out this task.  Correcting erroneous Transparency Orders also involves quite a lot of court time and imposes an unnecessary burden on the public purse.

Here’s what transpired with some of  DJ Smith’s Transparency Orders during May 2024. 

DJ Smith’s Transparency Order No. 1: Received 15th May 2024

The first hearing I observed before DJ Eaton-Hart was on 15th May 2024 and he’d “inherited” a Transparency Order from another judge, DJ Smith. There’s nothing unusual about that. It’s often the case that Transparency Orders are simply “carried forward” from one hearing to the next, even when there’s a change of judge.

But the Transparency Order for this case (COP 14203764) prohibited us from identifying the Local Authority (Devon County Council) – and also named P on the face of the Order, in the file name, and in the body of the Order itself. 

There was no reason to anonymise the Council (or to name P in the Order) and I complained about it to DJ Eaton-Hart, who asked for it to be changed.  I wrote about it here: “Centenarian challenges deprivation of liberty – and judge manages transparency failings efficiently.

Then, two days later, the same thing happened again. 

DJ Smith’s Transparency Order No. 2: Received 17th May 2024

On  Friday 17th May 2024 at 8.17am, I asked to observe all three hearings listed before DJ Eaton-Hart that morning.

I heard back at 10.36am that the 10am had been vacated, and the 12noon was likely to be vacated too – but the 11am (COP 1424179T) would go ahead and the court staff sent me the link and attached the sealed Transparency Order.

I saw immediately on opening the Transparency Order that, just as before, there were problems.  The protected party’s (P’s) name was on the face of the Order and in the file name – though not, on this occasion, in the body of the Order itself (where the initials “TA” were used).   And the Order prevented reporting the identity of the local authority.  

As before, the Order had been made by DJ Smith, sitting in Plymouth and not by DJ Eaton-Hart.  

As I’d been sent the Order in plenty of time, I was able to write to the judge before the hearing started – which is much easier than trying to raise problems orally during the course of the hearing.  Here’s what I wrote.

The judge was efficient and crisp in managing the problem. 

At the beginning of the hearing, he referred counsel to “the Transparency Order on page 23 of your digital bundle” and pointed out that it named P: “it should clearly be anonymised”.  

He continued: “Second, it injuncts those who are the subject of this order from identifying the local authority. This appears to be a boilerplate order that has come in with those two technical but important defects.  It appears there has been no scrutiny of  Article 8 and Article 10 rights nor is there any suggestion that this is one of those rare circumstances under which the local authority can be anonymised. Unless anyone seeks to persuade me otherwise, I require a new Transparency Order that doesn’t name P, and doesn’t injunct anyone from naming the local authority”. 

The applicant lawyer said he didn’t believe he needed instruction from his client but would go ahead and make the required changes – which he did. (I was sent the amended and sealed Transparency Order – after chasing it – on 7th June 2024).

The judge took the opportunity to reinforce the point that Transparency Orders should be properly considered by those who represent the parties.  “I understand how precedents are just used and reused, but it’s an important matter and it needs to be right for each individual case and not just boiler-plated out”.  

He also  referred (as he had two days earlier) to my concern about the Transparency Order as having provided a “learning experience” – and said, helpfully, that it’s “not a blame exercise – I’m just trying to get it right first time around”. 

The substantive matter of the hearing was dealt with very quickly.  It concerned whether or not P has capacity to make her own decisions about where she lives.  It seems that where she lives now is so unsuitable, and causes her so much distress, that there’s reason to doubt that she has that capacity – but in a better environment it’s possible that she would regain it.  Her current placement has served notice of termination on her, so it’s urgent to find somewhere else for her to live. At the next hearing (probably 17th or 18th June 2024) the issue of capacity will be considered again: “I’m not passing over the capacity issue, but a roof over this lady’s head is absolutely paramount.”

I’m very pleased with the way this judge deals with what are pretty clearly simply technical errors in Transparency Orders. These errors are, unfortunately, pervasive.

DJ Eaton-Hart’s practice compares very favourably with that of judges who ask for submissions, wait for counsel to take instruction, delay consideration until future hearings, or even require us to submit a formal application to vary the Order via a COP 9, resulting on a couple of occasions in pointless, expensive and time-consuming hearings devoted solely to fixing a technical error.

Transparency Order No 3 from DJ Smith: Received 20th May 2024

At both hearings I’ve watched before DJ Eaton-Hart, the Transparency Orders that needed fixing were made by DJ Smith.  So, when I saw a hearing listed before DJ Smith, I immediately asked for the link.  

As it happened, the hearing was vacated, but not before I’d been sent the Transparency Order – and, yes, it was made by DJ Smith, and yes, like the other two Transparency Orders I’ve seen from DJ Smith, it prohibits identification of a public body.  Actually, two public bodies: the local authority (§6(i)(c)) and the Official Solicitor (§6(i)(d)).  Here’s the relevant part of the approved and sealed Transparency Order as I was initially sent it for this case (COP 14100128).  

I was alarmed by the recurrent pattern of technical errors in Transparency Orders from this judge, and especially concerned that, on this occasion, the Transparency Order also prohibits us from naming the Official Solicitor. Increasingly we are seeing recently-made Orders prohibiting us from naming not just local authorities, Trusts and ICBs but also the Public Guardian and/or the Official Solicitor (see, for example, my blog post: “Challenging a Transparency Order prohibiting identification of the Public Guardian as a party”). So, I wrote to both Mrs Justice Theis (Vice President of the Court of Protection) and Senior Judge Hilder – and also raised my concern at a COP User Group Meeting. (I think it is those actions on my part which led to a memo being sent out to the judiciary informing them that they shouldn’t be routinely anonymising public bodies.). And at the COP User Group Meeting, HHJ Hilder advised me to complete COP 9 applications to get these erroneous Transparency Orders amended.

So, that’s what I did next.

Here’s the relevant part of my COP 9 formal application to vary this Transparency Order.  

I also wrote to the Official Solicitor:

The response from the Official Solicitor was interesting: “Please be advised we were not aware of the order referred to and we have checked our records and as far as we can see the Official Solicitor has had no involvement in these proceedings and we are therefore not in a position to assist”.

I remain baffled as to why DJ Smith made an Order that the Official Solicitor could not be identified as having taken part in the proceedings – which it seems she didn’t –  or even as having been referred to in the proceedings.

Within six hours of submitting my COP 9, I received an amended (sealed) Transparency Order approved by DJ Smith as below.  The local authority and the Official Solicitor have been removed. I can now name them. (The local authority was Plymouth City Council).  But there was no explanation as to why they were ever included in “the subject matter of the Injunction” in the first place.

Here’s the amended Order – in the form it should have been in first time around.

Transparency Order No 4 from DJ Smith: Received 22nd May 2024

On 20th May 2024 I spotted two hearings, both listed for 10am, before DJ Smith sitting in Plymouth, and asked to observe both.

I received an email saying that one had been vacated, but attaching a Transparency Order for the other (COP 14186566).  As it turned out, that one was also vacated, but I was delighted to note that the Transparency Order was (almost) correct.  The judge had (almost) got it right first time around!

The remaining error (not visible above) was in the file name – which looked to be P’s surname. This is a frequent error and breach of P’s privacy in many of the Transparency Orders we are sent.

I also noted that the Transparency Order was freshly minted: it had been made just two days earlier, on 20thMay 2024.

Final reflections

So, the effect of all this intervention on my part seems to have been that DJ Smith will not in future be making Transparency Orders that routinely anonymise public bodies, and will (I presume) be amending those she has already made.  I eagerly await the next opportunity to check one of DJ Smith’s Transparency Orders and hopefully to observe a hearing before her.

Transparency Orders are not new.  They were introduced with the Transparency Pilot in 2016 and the “standard” template has remained  virtually unchanged ever since.  The 2017 version is publicly available as a downloadable pdf.

The part of the Order I’ve focussed on in this blog post is the paragraph called “The subject matter of the Injunction” and here’s how it looks in the template.

The problem seems to be that it permits (at 6(i) (c)) an anonymised reference to “any other party” – and this is being interpreted by some lawyers and judges as permitting the court routinely to prohibit identification of parties such as local authorities or even the Office of the Public Guardian or (oddly) the Official Solicitor. 

This does not seem ever to have been intended.  In February 2016, the Court of Protection Handbook published a guide to the “Transparency Order in Plain English” which stated explicitly that “Normally you will be allowed to name the local authority, CCG or NHS Trust who is involved in the case”.  The exception to this normal practice is (rarely) when naming the public body risks identifying the protected party.

I’m not sure how it’s come about that some judges seem routinely to be anonymising public bodies.  What is clear is that nobody has been challenging the practice.  

Until very recently, it was common for observers not to be sent Transparency Orders and around half of our blog were posted without sight of them.

Since the beginning of 2024, that’s changed dramatically – possibly as a consequence of evidence I submitted to the court, to the working group of the COP Rules Committee focusing on Transparency Orders, and to the Ministry of Justice (see: “Anxious scrutiny or boilerplate? Evidence on Transparency Orders”).  We do now almost always receive Transparency Orders – and so of course that mean we can see the errors in them.  And observers are increasingly challenging those errors, and taking up court time in doing so.

The problem for us, and for the court, is that all these challenges are very labour-intensive and costly to the public purse. I accept that the court is committed to the principle of open justice, and that these are administrative and technical errors rather than deliberate attempts to prevent us from reporting on matters of public concern.  Not all members of the public agree with me on that – for some observers, these errors are clearly creating a negative impression of the court’s commitment to transparency.  But whether they are cock-up or conspiracy, they have the same effect of breaching our Article 10 rights for no good reason.

There must be a better way of providing lawyers (who draft the Transparency Orders) and judges (who approve them) with the “learning experience” they need so that Transparency Orders are right first time around. 

Postscript, 11th June 2024

A few days after publishing this post I spotted another hearing before DJ Smith in Plymouth, listed for at 10am on 11th June 2024 (COP 1412356501). Unfortunately it was listed as “PRIVATE”. I checked with court staff that it really was private and was told it was.

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] Dates of TOs by DJ Smith: COP 14203764 made on 31st January 2024; COP 1424179T made on 24th April 2024; COP 14100128 made on 20th June 2023; COP 14186566 made on 20th May 2024.

My experience at Weymouth Combined Court: listing, access, and transparency

By Peter C Bell, 30th May 2024

It was one of those days where I had not really intended to do any Court watching. I was back in Weymouth to help the family to support my elderly father after the recent loss of both his wife (my mother) and then his elder sister and casually glancing through the Courtel/CourtServe listings for my local Court.

Weymouth is a combined court centre, with both magistrates and family and county courts located in the same building situated by the inner harbour in Weymouth. This is a short bus ride and then a 5-minute walk away from my parent’s house in Weymouth. My father used to appear regularly in these courts when he was a probation officer in Dorset, but that was some 50 years ago!

I’d never seen a Court of Protection hearing listed for Weymouth (you sometimes see them listed at Poole), but on Thursday 25 April 2024, buried amongst the Possession hearings to be heard that day in Courtroom 3 by District Judge Lacey was a Court of Protection (COP) hearing:

Start TimeDurationCase DetailHearing TypeHearing Channel
3:00 PM1 hour13784330 RestrictedCOP (Court of Protection) HearingVideo – Teams
Party Name
Parties Suppressed

I was intrigued to know what sort of COP hearing was happening in my local Court.

Access

Transparency was impeded by the failure to include the Weymouth COP hearing in the COP section on CourtServe.  I double-checked, just in case I’d missed it, but no – it was only in the Daily County/Family Court list – and so, unsurprisingly, it had not been picked up by the Open Justice Court of Protection Project team.  If I’d not been looking specifically at the Weymouth list, it would have been private by default.  I notice also that the list does not say that it’s a public hearing (it uses the word “Restricted”) and it does not provide any descriptors indicating what issues are before the court.  It also doesn’t provide the correct email address for would-be observers.

Knowing that COP is organised into regional “hubs” in England and Wales, I was aware that  requests to observe in Weymouth Court, which falls within the South-West region, must be sent to  Bristol. So, I submitted my usually-worded request to observe the hearing (and ask for the Transparency Order) by email to the COP regional hub in Bristol. My email was sent at 10:05 for a hearing scheduled for 15:00 the same day and I immediately followed it up with a phone call to the Hub to alert staff to the email.

At 11:26 I received from the South-West Regional Hub a Teams link to the hearing together with a copy of the Transparency Order made by DJ Lacey on 28 June 2023 and issued on 17 July 2023.

Transparency Order

As a law student I’ve received training on how to read legal documents and how to check them. So here are my thoughts on the Transparency Order I had been given:

  1. The intention of the Transparency Order is to protect the identity of the person who is the subject of the Court of Protection proceedings, so anything that might identify them should not be in or attached to a Transparency Order. The name of the person is usually replaced by initials, which may, or may not, be their own initials or some other initials chosen to represent them. In this case the initials JJ have been used in place of their name. However, the Transparency Order has a filename, and the filename used for this Transparency Order has, as part of that filename, the surname of a person beginning with J – so, it is most likely that the filename of the Transparency Order has revealed to me (and anyone else who is sent the Transparency Order) the name of the protected person.  I’m told this is not unusual.
  2. At clause 6(i)(c) of the Order the name of the local authority who are the respondent in the case is also protected. It is prohibited to publish information that identifies or is likely to identify that XYZ Council is a party to the proceedings. The wording in this sub-clause uses the initials of the Council – ie XYZ Council is a party to these proceedings and it is fairly obvious that the identity of the Council can readily be identified by these initials.  Moreover,  on the face of the Order the name of the local authority is spelled out in full.  The Transparency Order is a public document that ought to be available to every member of the public – but I cannot show you a copy as to do so would be a breach of the terms of the Order itself, owing to the way in which it has been drafted.
  3. At clause 9(i)(e) of the Order, permission is given for “disclosing information for the purposes of caring for DOB” but it is not clear what connection DOB has with the case; most probably this is an error and “DOB” ought to read “JJ”.

So much for the drafting of the Transparency Order but what about the prohibition on naming the local authority involved in this case? Why is it that it is thought necessary to withhold from public view the name of the local authority?

There are, occasionally, good reasons for withholding the names of public bodies, but this is rarely the case.  I can see no good reason why publishing the name of the local authority is likely to lead to the identification of the person who is the subject of these Court of Protection proceedings. And any local authority ought to be accountable for their actions – they are a public body after all.  Of course, in the Family Courts it is usual that local authorities are not named, but the Court of Protection is a separate jurisdiction with its own rules and procedures and case law. Is it too much to expect the legal professionals working in the Court of Protection to know those rules and the norms of the Court of Protection and to ensure that the correct templates are offered to the Court for consideration?

My immediate response, on reading the Transparency Order, was to submit a written request to the Court to vary the Transparency Order and to omit the local authority from the list of those parties protected by the Transparency Order. At the same time, I suggested that the Court might consider amending the duration of the Order, so that the Order was only in place during the lifetime of the person protected by the Order.

My email to the Court requesting that the Court consider my request to vary the Transparency Order was sent at 11:44. 

At 12:55 the Regional Hub sent me an email saying that the hearing at 3pm had been vacated (i.e. was not going to go ahead), but by this time I was on a bus on my way to the Court.

Why? You might ask. was I on a bus to the Court when the hearing I was interested in was one held on Teams? Well, just below the listing for the Court of Protection hearing on the Daily Cause list for Weymouth County Court was another hearing listed before the same Judge at the same time. This was a committal hearing with a Housing Association applying to commit a tenant to jail (or a fine) for contempt of Court. I will not give the name of the Housing Association or the name of the tenant for reasons which will become clear later on.

Listing problems are not unique to the Court of Protection

But apart from this case which I was interested to observe in person, there was yet another reason that I was on the bus. This was to do with the listing of cases in the Magistrates Court, which is in the same building – Weymouth is a combined court centre. The Magistrates were sitting in Court 1 and on Courtserve was a list of cases before the magistrates. However, again from previous experience, I noticed that it was only a very short list and all of the cases on the list were Libra cases.

Now the Courts are going through a transition to new technology for listing cases (at least in the Magistrates Courts). The old system Libra is being phased out and new cases are listed on something known as Common Platform or CP. Cases listed on Common Platform have a particular format for the case reference – which is usually 99AA9999999 whereas Libra case references are in the format which is wholly numeric.

Weymouth had loaded one file on to Courtserve which was clearly the Libra list. There was no sign of any Common Platform cases, which made me suspicious. You see, Libra listings are loaded automatically on to Courtserve – the Libra system sends them to Courtel who process them on to their system. But Common Platform lists have to be emailed by each individual court across to Courtel before they are loaded on to Courtserve. So my suspicion was that there WAS another list of cases – but this had not been emailed by staff at Weymouth Magistrates Court. The only way to find out, as the telephone lines at Weymouth Magistrates Court were not being answered, was to hack up, get through security and have a look at the physical notice board outside each Court. That is modern technology for you!

Arriving at Weymouth Combined Court Centre

Hence my arrival at Weymouth Combined Court centre at 13:55 (according to my trusty notebook). There was a new security officer on duty at the entrance, with the two security officers that I recognised and who recognise me and say, “Hello Mr Bell”, sitting and/or standing in the background. The new man was being very, very, very thorough!

I take with me a back pack with various things in it to sustain me throughout the many minutes (sometime hours) of waiting in Courts. And also some items for taking photographs of my journeys to and from Court (taking photographs without permission inside a Court or near the entrance to a Court can land you in a lot of trouble). I had to empty almost everything out of the back pack for examination. Battery packs, selfie stick, lots and lots and computer and phone leads, chargers, laptop, multiple notebooks, ID, you name it, if I might need it, it is usually with me …

The usual arms wide legs apart stance, show the wristwatch, turn around, show the belt buckle, hold still until wand has finished bleeping (never understand how they work out whether the bleeps are real or false?) AND relax. Then pack everything back in to back pack, take out trusty notebook and pen, and do the rounds of the three noticeboards. 

Sure enough, on the noticeboard outside Court 1 – the active Magistrates Court – are TWO lists. The Libra list published on Courtserve and a much longer, two page list of Common Platform cases.

I have the Libra list on my laptop and on my mobile phone, but obviously do not have the much longer CP list.

I walk around the other noticeboards – nothing posted outside Court 2, and quite a long list posted outside Court 3 – but this is another list that I have downloaded from Courtserve. There, at the bottom of the Court 3 list, are the two hearings at 3pm that I am interested in.

I return back to security and ask how I can get a copy of the 2nd list for the Magistrates Court, and am directed through a door to the office. 

This area is empty with a partition (wiggly, not straight!) along its length dividing the area in to two. At the end of the public side, there is a telephone handset with a notice saying, if you want to contact the County Court, lift the handset.

In the middle of the partition is a glass window through which you can see an empty office with desks for around 8 people. By the window is a buzzer, which I press.

Shortly thereafter two women enter from the far end and go to a computer screen where they sit and stand together discussing some procedure on the computer. After some minutes one of the women comes over to the window to ask what I want. I reply that there are two lists posted for the Magistrates Court but only the Libra list is available on Courtserve, could I have a copy of the other Common Platform list?

The response is – we have sent that to Courtserve – it should be there. I get out my mobile phone and navigate to the Weymouth Magistrates Court entry on Courtserve and show them that it is only the Libra list that is there. I advise them that Courtel have told me that Libra lists are sent automatically but CP lists have to be sent manually. I am told that they have been told that the CP lists are sent automatically, but there is obviously some confusion.

Could I have a copy of the CP list, please? Could it be emailed or could I have a printed copy? A printed copy of the double sided A4 page with the list of CP cases is provided to me.

At 14:09 I step in to the public gallery entrance to Court 1 where a case is in progress. In the public area on the back row there is a young woman in a black suit with a laptop typing away furiously (but silently).

In the Court are two female Magistrates on the bench, with a large male legal advisor (much taller and heavier than me!)  sat in front of them looking at me. To the left in a box of his own sits someone I recognise as the Probation Officer, also with his laptop open in front of him.

At the front of the Court on the left is a woman from the Crown Prosecution Service with laptop up on a stand in front of her, and to the right is the solicitor for the Defendant.

On the right of the Court behind a glass screen (in the area known as “the dock”) can be seen the head only of the person who is the defendant.

Just in front of the public area and on the right rear of the Court is a cordoned off area where the Court Usher usually sits, but she is not in Court at the moment.

I take a seat on the public seats at the rear of the Court, open trusty notebook (a real, paper notebook not a digital one) and try to follow what is going on.

The Magistrates Court

I gather that the Defendant is a Miss Davies and the offence appears to be one of some disorder outside a property when drink had been consumed. Police were called. The Defendant’s solicitor offers some mitigation and advises the Court that his client is pregnant and expecting a baby within the next two weeks and asks for the offence to be dealt with by way of a financial penalty.

I am looking on my mobile phone to find the listing to try and locate the name of the Defendant and the case reference when the Legal Advisor barks across the well of the Court at me – is that a mobile phone? I hold it up and say, I am trying to look at the hearing list …

I am told that I must switch off any mobile phone when I come in to Court (see later for my comments on this). I do as I am told – he is much bigger than me! – and switch off my phone.

The Chair of the Magistrates asks Miss Davies to stand and then tells her that she has a conditional discharge for 12 months. There is a quick discussion with the defence solicitor about his client’s financial circumstances and the Magistrates order a surcharge of £26 and £40 costs totalling £66 which they agree can be deducted from benefit.

The Chairs closing remark to the Defendant was to thank her for her attitude in Court and to wish her good luck.

It is now 14:19 and the Court moves on to the case of Mr Jake Batty who is listed for a 10:00 hearing. It appears that Mr Batty is not at Court.

The Probation Officer explains to the Court that Mr Batty is not present because they (probation) had advised him to attend at Bournemouth Crown Court as he was due there today for sentencing in another matter. It seems that he did not, however, attend at Bournemouth and the Crown Court has issued a warrant for his arrest. 

In the circumstances, the Probation Officer invites the Court to adjourn the current proceedings to a later date, as it would be inappropriate to ask the Court to issue a warrant, given that it was the Probation service who had advised him not to attend this Court but to go to Bournemouth Crown Court instead.

A date is found by the Legal Advisor and Mr Batty is ordered to attend at Weymouth Magistrates Court on 20 June 2024 @ 10:00 a.m.

At this point I took the opportunity to pop out from Court 1 in order to copy down in my notebook the Libra hearing list of 5 cases that were not on the CP list I had been given.

I was able to flick back through my notes and correct the names and add the case numbers to the two cases I had just observed.

Committal hearing

At 14:50 I moved to sit outside Court 3 waiting for the committal hearing to begin. By this time, I had been made aware by the Judge’s Clerk that the Court of Protection hearing listed for 3pm on Teams had been cancelled. I had enquired how the two cases were to be scheduled. My plan was to find a quiet room and set up my laptop for the Teams hearing using my mobile phone as a WiFi hotspot, and then to switch off the electronics and revert back to the trusty pen and paper notebook for the other hearing (or vice versa – depending on which hearing the Judge decided to deal with first).

The Judge’s Clerk told me that the committal hearing would be in Court 2 (because it was a committal) and I noticed in one of the meetings rooms a barrister in full wig and gown (as I now find is required for a committal hearing) with another woman who was either her instructing solicitor or a representative from the Housing Association that was bringing the proceedings.

At one stage a young woman accompanied by a young man were escorted by the Judge’s Clerk in to the meeting room where the barrister and the other woman were seated.

At 15:05 the Judge’s Clerk came up to me and informed me that I could not be admitted because “the Defendant says that she will not come in to Court if there is someone present”. I was told that she had suffered a recent trauma – and then the nature of that trauma was made plain to me.

I realise that the Court official was trying her best to convince me that I should not observe the hearing – but I do not think that she ought to have breached the Defendant’s right to confidentiality in the way that she had done.

I politely but firmly insisted that the decision as to whether I could observe should be made by the Judge. It was a public hearing and I had a right to be heard if there was consideration being given to holding the hearing in private.

The Judge’s Clerk repeated what she had said, but louder and more forcefully. And went to go back in to the Court room.

I repeated what I had said, and emphasised that this was a decision for the Judge and I asked explicitly to speak with the Judge before he made his decision.

I sat back down to wait with my heart thumping.

At 15:28 the Judge’s Clerk advised me that we would all go together in to the Court room (now Court 2) and the Judge would find out the Defendant’s reasons for not wanting the public present.

At 15:30 the Judge entered the Court room as we all stood, asked us to be seated and started by addressing the Defendant at some length.

The Judge first raised the point that the Defendant was not legally represented. He acknowledged how difficult it can be to obtain representation even though you are entitled to it.

He also said that there was the issue of members of the public being present today.

The Judge advised the Defendant that she was entitled to free criminal legal aid, and had various rights, including the right to answer any questions, the right not to self-incriminate (which he explained), right to remain silent and not to  give evidence.

He explained that the possible consequences of the alleged breaches included fines or imprisonment. 

This was the second time that this hearing had been listed but the Court was aware of the reason why the Defendant did not attend on the last occasion.

He explained that these were public proceedings and a fundamental part of our justice system was the principle of open justice. Anyone can sit at the back of the Court and listen, as Mr Bell was doing.

The Judge told the Defendant that Mr Bell attends various hearings, not just here but all over the country. There was nothing to suppose he had any particular interest in this case or the Defendant.

In exceptional circumstances and where it might otherwise be adverse to the administration of justice for a hearing to be in public, a hearing could be held in private.

The Judge told the Defendant that he would hear from Miss Patley (I think that was the name) on behalf of the claimants, then from you (the Defendant) and if necessary, from Mr Bell.

The Judge then again told the Defendant that she was entitled to legal representation today and that he was aware that she had contacted more than one firm without success. Technically this is the first time I have seen you to be able to tell you that. And that is my starting point, given this is the first time you have appeared before me.

The Judge then invited Miss Patley to address him.

At 15:38 Miss Patley advised the Judge that these proceedings were public and subject to Part 81. However, CPR rule 32.3(3)(g) allowed the proceedings to be in private in part or in whole. The Judge would be assisted by the White Book and the rules allowed him “for any other reason” to order that the hearing is not in public.

It was open to  this Court based on the vulnerability of any party to so order.

So that was the route for the Court to that result.

Counsel told the Judge that the Defendant had been able to make various disclosures to her, but did not elaborate on what those were.

With respect to the substantive application, the Defendant had contacted numerous firms. It was not unusual for parties to go unrepresented in these sorts of proceedings. The purpose of today’s hearing is to establish to what extent the Defendant accepts the 8 breaches of the Order which are alleged.

The Defendant is accompanied today by a companion who is sitting at the back of the Court.

The Court can proceed to sentence her but sentencing would require the Court to hear her vulnerabilities.

Counsel for the Claimant then made reference to case law – but I did not catch the reference.

Counsel said that the Claimant would accept that this is a case were an adjournment is the right thing to do. The Defendant has demonstrated that she can comply with the order.

In order to get there the Defendant would have to admit the allegations. If the Defendant does not accept the allegations, then it would be necessary to list for a trial, with the result that the proceedings would be hanging over everybody’s head. However there remains the Defendant’s fundamental right to challenge the allegations.

The Judge then addressed the Defendant again.

Miss X (the Judge used the Defendant name but I am not going to publish it) – to make that order I would have to hear those vulnerabilities. The question I need to ask you initially is, would you like a chance to find representation? In terms of a further opportunity to get legal representation would you like a further chance. You should not feel in any way coerced or bullied in to going ahead.

The Defendant referred to her mental health and that she wanted to understand the proceedings better.

The Judge then addressed me. Mr Bell I WILL come to you and you will have an opportunity to speak if it is necessary to do so.

Counsel for the Claimant, Miss Patley, then gave the Court her client’s view on the question of adjournment. She stated that, ordinarily, they would strongly oppose any adjournment as these were serious matters that needed to be addressed. The Claimant would accept that on the last occasion the Defendant’s non-attendance was for a good reason that the Court is aware of.

They did not want to be in a position where a party was put to detriment. Both parties should be on an equal footing. Ordinarily, in this case, it would be fair to give the Defendant the opportunity to find representation. The Court accepts that the Defendant has shown compliance with the injunction. That would work to her advantage. However, they would expect to see compliance with the injunction.

The Judge addressed the Defendant and advised her that it is unusual that consent is given by a Claimant for an adjournment. However I am conscious that this is the 2nd hearing and you were not present at that hearing. On balance it simply would not be fair. You are aware that this injunction is in place. It falls upon me to remind  you that that order is in place. I have to warn you. It is in force. Please make sure that you do not breach it. You could try more national firms. Before you go make sure you get a copy of the order that was made last time. Please do try Yeovil.

The Judge then discussed with Counsel the length of time for the adjournment – it was suggested 21 or 28 days.

The Defendant advised that she was doing a mental health course and asked if Tuesday mornings could be avoided. The Judge agreed and said he was not available on Tuesdays anyway. He advised the Defendant, when they did find legal advice, that she tell them of her vulnerability and also about her concern about having a member of public present.

The Defendant asked if a doctor’s note would help and the Judge said, yes, any documentation would be helpful.

The Judge then adjourned the hearing to the first available date after 28 days, He told the Defendant that it would probably be the same Judge on the next occasion.

He then told the parties that they could leave but asked me to remain behind. He assured the Defendant that he would not be talking about her case with me but wanted to talk to me about another matter.

The Defendant thanked the Judge for the way he had helped her and in return the Judge thanked the Defendant for the way she had conducted herself in Court.

As the Defendant’s companion was leaving I handed him one of my business cards with my phone number and whispered that I might be able to help the Defendant to find legal representation if she wanted to give me a call.

All the other people in the Court then left leaving just the Judge and myself.

Judicial comments on the Transparency Order

The Judge explained that he just wanted to say a few words about my request to vary the Transparency Order in the Court of Protection case. He assured me that it was being dealt with but that he had thought it only fair that he should send a copy to the local authority for their comments.

I thanked him and agreed this was quite appropriate. The Judge then asked me a little bit more about myself, my law studies and what I wanted to do once I had my law degree. The Judge said that he was aware of my engagement with the Court from conversations with his colleagues. We chatter very pleasantly for a few more minutes before I stood, thanked him and left the Court.

Afterwards, outside the Court, the Defendant and her companion and the Judge’s Clerk were waiting. The Defendant approached me and we shook hands. She seemed relaxed and was smiling. I assured her that I would not be revealing her identity in my blog posts and she was very grateful for that. I think she said something along the lines of “too many people know too much about me already – and it affects my mental health”.

I asked her to give me a call if she was still having difficulty finding representation and I would see if any of my contacts could help.

And so ended an interesting day at Weymouth Combined Court!

Mobile phones and laptops in court

As a follow-up to the “put that mobile phone away” matter, I have located that letter to the Observers Network by the Lady Chief Justice of England and Wales and sent a copy to the Weymouth Court asking them to bring it to the attention of HMCTS staff there. Let us see what happens next time I am in the Weymouth Magistrates Court and want to use my laptop to look something up!

Peter C. Bell is a law student at the Open University. He tweets @dolphinpcb

Caesarean: A directions hearing

By Celia Kitzinger, 27th May 2024

The purpose of a  “directions” hearing is for the judge to narrow down the issues that are to be decided, and to give instructions (“directions”) on how the case will proceed.  The point is to sort out procedural and practical matters.  Directions hearings often cover actions that need to be taken (e.g., capacity assessments, disclosure of medical records, obtaining witness evidence and determining the availability of witnesses to come to court) and the dates by which those actions need to be done, so that everything is ready for a full hearing where a final decision can be made.  They’re a kind of ‘advance planning’.

Directions hearings are very important in ensuring that the case proceeds smoothly and in a timely fashion. If the parties don’t ask for something that they later think is needed, or if the judge does not direct something that one of the parties says is necessary, that matter is sometimes raised again at the next hearing and this can lead to concerns about whether substantive decisions should be put ‘on hold’ and await whatever it is that hasn’t been done – or whether, even in the absence of that information, the judge can go ahead and make an important decision.  

For example, I’ve seen lots of directions hearings where judges have declined a request to authorise an independent expert report – only to find at the next hearing that the s.49 report (from the NHS or social care staff caring for the protected party) has either not been submitted to the court, or that it displays insufficient expertise to form the basis for the decision that needs to be made.  

One important cause of delay in the Court of Protection is (in my view) inadequate directions hearings. But I can entirely see the difficulty for parties and for the judge in determining exactly what is needed in advance, without squandering public funds by putting everything conceivable in place from the outset. It’s obvious too that new issues arise in the course of following the directions from a first hearing – a report turns up a previously unanticipated disagreement about capacity, or a family member raises something that hadn’t been considered, or a placement that had been thought suitable turns out not to be, or becomes no longer available.  When this happens, then there’s another directions hearing, and (often) several more – sometimes called “case management hearings” – as everyone tries to get together the information and real-world options the judge needs to know to make substantive decisions.  See for example “Covid vaccination and T-cell immunity: A renewed application for expert evidence”, where not appointing an expert at the earlier directions hearing seems to have caused – by my reckoning – a 9-month delay in resolving the case.

This very short (20 minute) directions hearing (COP 14257278) was a hybrid hearing before Deputy High Court judge, Ms Victoria Butler-Cole KC, sitting in the Royal Courts of Justice in Court 42 on 24th May 2024.

My aim in this blog post is to set out some of the information I gleaned from that hearing (and some of the gaps in that information) to assist people who might want to observe the final hearing which is listed for 10.30am on 30th May 2024.

Transparency Matters

Joining

I observed the hearing remotely via what looked like a new (modified) version of cloud video platform (CVP).  I had no problems with it but one of the two observers planning to observe the hearing with me was unable to get sound and video working (so missed the hearing altogether, despite her name appearing in the sidebar as an observer). This is quite a common difficulty people experience with this platform.  If you are planning to watch an upcoming CVP hearing you might find it helpful to read this information: “How to join Cloud Video Platform (CVP) for a video hearing”.  That said, it wasn’t obvious to me from the link I was sent that this was cloud video platform: nothing in the email said so, and the link I was sent was hmcts2300@meet.video.justice.gov.uk.  But a google search on “meet.video.justice.gov.uk” throws up information about cloud video platform, so I figure they are probably the same thing, or versions of the same thing.  If someone with my experience of observing remote hearings (I’ve watched more than 500) is hazy on this point, it can be assumed that most other members of the public will struggle with this too.

Audio and video

I experienced issues with both audio and video in the course of this hearing.  

On audio: the very helpful court usher (Audrey) did a brief sound-check before the judge came in: “Can everyone hear me?”.  I confirmed that I could and nobody else on the platform said anything (I didn’t know at that point that one of the observers couldn’t hear anything from the court and obviously – as she couldn’t hear it – she couldn’t respond herself to the usher’s question).  I did take the opportunity to point out that it wasn’t possible to know from the fact that the usher was coming through loud and clear on whichever mike she was using (probably the judge’s) whether or not we would be able to hear the lawyers.  Sometimes the lawyers’ mikes aren’t switched on, or their mikes are too distant to pick up their voices.  This later turned out to be a problem in relation to Katie Gollop, the lawyer representing P via the Official Solicitor.  We missed several minutes at the beginning of her submission – though Audrey helpfully sorted it out (turning the mike on, then moving it closer) in response to my comments in the ‘chat box’.  

On video: There was no camera on the judge.  There’s something quite unsettling for those of us concerned with open justice for the judge to be nothing more than a disembodied voice in a video-hearing.  Just on principle, judges shouldn’t be invisible!  Also, I know from lawyers that they observe the judge closely during hearings to pick up cues about how the judge is responding to their submissions and where they can leave a point and move on, or where they might need to expand.  I want to be able to see what that too.  I’ve only observed one other hearing before Depty High Court Judge Butler-Cole KC in the RCJ but at that one, too, there was no camera on the judge – and these two have been the only (video-based) hearings with an invisible judge. Is this something to do with facilities in Courtroom 42 perhaps?

Who is in court?

As usual, the applicant lawyer provided an introduction – primarily for the judge but obviously really useful for observers – as to who was in court. He said he was representing the applicant Trust (along with his instructing solicitor); Ms Gollop was for the Official Solicitor, along with her instructing solicitor and – he was speaking quickly – some other people including, I think, a social worker.  Also, as usual, the applicant lawyer did not introduce himself.  I think there must be some court etiquette that means applicant lawyers never say “I am Mr/Ms Bloggs….” – the judge must be presumed already to know.  But observers don’t know, and so we have to work out who they are from what happens later.  Sometimes the judge helpfully responds “Thank you Mr/Ms Bloggs” (more of this please!) but often we have to wait until another lawyer says something along the lines of “as Mr/Ms Boggs said….” or for the judge to cue in Mr/Ms Bloggs to speak later in the proceedings.

I often recognise the lawyers – if not by sight (which can be hard when they’re be-wigged, though they weren’t in this case) by sound – but in this case I had no idea who the applicant lawyer was.  I eventually figured it out when the lawyer for the Official Solicitor said, about half way through the hearing “Mr Rylatt and I have had some discussion…” – and bingo! I recognised him as Jake Rylatt, a lawyer I’ve watched before (albeit infrequently) in several hearings.  I doubt those observers who hadn’t already come across Jake Rylatt would have picked this up.  

Fortunately, “Gollop” and “Rylatt” are uncommon names and typing them into google along with “lawyer” quickly yields information about who these two lawyers are, even if you don’t know their first names, (see Katie Gollop KC and  Jake Rylatt).  I am often left floundering when trying to identify lawyers with names like “Smith” or “Watson”.  Again, it’s clearly some antiquarian bit of court etiquette that unhelpfully dictates that first names aren’t used.  A recent exception was when there were two “Mr O’Brien”s in court and the judge resorted to referring to them as “Mr Joseph O’Brien” and “Mr Michael O’Brien” (though actually you can only find the latter if you know he’s on his barristers chambers webpage as “Mike O’Brien”).  Exceptionally, I also observed a hearing with two barristers both called “Francesca Gardener” see:  Francesca Gardener and Francesca Gardener!

My point is that observers should be able to know the name of the applicant lawyer from the start of the hearing (because everyone else in court does!) so if they can’t bring themselves to breach court etiquette by saying their own name in court, please could the judge thank them by name immediately after their opening introductions so that we know who they are.  

Transparency Order

The judge checked at the very beginning of the hearing that we knew the provisions of the Transparency Order, which she said had been previously made by another judge, Mrs Justice Theis (the Vice President of the Court of Protection).  

We were told that we cannot publish anything likely to identify the protected party and her family members, or where they live or are cared for.  We are also prohibited from publishing any material identifying the hospital, or the staff involved with her care and treatment.  

There was one further prohibition which, if I heard it correctly,  seemed unusual but which “is now moot”.  I’m not quite sure what this was and don’t want to report it incorrectly (if I’m even allowed to report it, which it seemed to me I might not be). This prohibition does not  (I believe) affect my freedom to report anything heard subsequently.  

The reason why I’m somewhat unclear about what the Transparency Order actually says is because I’m relying on an oral version of it and I have not yet received any written version of the Transparency Order relating to this hearing.  I assume this will be sent out to observers eventually – and I hope more promptly for the final hearing. 

Opening summary

Applicant counsel (the lawyer who I later learnt was Jake Rylatt) provided – with the judge’s approval – a useful opening summary.  I’ve reproduced it below.

What is the case about?

We learnt from the opening summary that the protected party (HW) is in her mid-thirties and she’s 37-weeks pregnant.  She’s detained under the Mental Health Act and it had been agreed that she lacks capacity to conduct these legal proceedings (hence the appointment of the Official Solicitor on her behalf), and also lacks to make decisions about care and treatment related to her pregnancy and delivery of her baby.   The Trust had made an application that it was lawful and in her best interests to carry out a Caesarean section – provisionally planned for 3rd June 2024.  They’d hoped for final orders this morning, but there had been a change in HW’s presentation when she was assessed two days earlier and that had led the Official Solicitor to ask for a little more time to see whether it was possible that HW might regain capacity to make her own decision about a Caesarean in June.  (Hoping to learn more about the background to this case, I asked for Position Statements but were told none had been prepared for this hearing.)

The applicant Trust 

Counsel for the applicant Trust, Jake Rylatt explained that HW’s medication (olanzapine for her psychotic condition) has been “titrated upwards” (increased) with the result, it seems, that she is now acknowledging the views of other people that she is pregnant.  From this observation, I gathered that she previously has not. He added that there is a clinical view that she may being doing this as a means of securing her discharge.

More recently still, she has accepted she’s pregnant to the extent that she’s saying, “if nine people are saying I’m pregnant and only one (myself) holds out, then I must be pregnant”. She’s also reported as having said that if she is indeed pregnant then she’s content to go ahead with a c-section and is in the hands of the clinicians in terms of what they think best for anaesthesia.  

The implication, it seemed to me, from what counsel for the applicant Trust said, was that despite some improvement in her ability to understand information relevant to the decision that needs to be made (specifically, that she’s pregnant), HW lacks capacity to make that decision for herself and is unlikely to regain it by the time of the planned surgery.  He invited the judge to convene a final half-day hearing for 2pm on 30th May 2024, saying that if all parties agreed by that point, then the hearing could be vacated.

The judge indicated a somewhat different approach: “Capacity is very definitely in question. The fundamental basis of the original application was that [HW] didn’t believe she was pregnant and that doesn’t now appear to be the case. One possibility is that the treatment has caused the change; another possibility is that it’s just taking her a bit of time to recognise the fact she’s pregnant and come to terms with it”. 

The judge asked Jake Rylatt which witnesses he proposed to call. It was agreed that the anaesthetist would not be needed, but the obstetrician would. The consultant psychiatrist treating HW was, said counsel “away today, but it is hoped he’d be available to step into the fray in future if necessary”. It didn’t seem particularly helpful to characterise the court hearing as a “fray” (“an energetic and often not well-organised effort, activity, fight, or disagreement”, Cambridge English Dictionary).  I noticed that the judge conspicuously avoided that that term in her response:  “It’s not going to be helpful to have someone else step in if they’re not familiar with HW and her situation”. The judge asked for steps to be taken to find out when HW’s own psychiatrist would be available to give evidence to the court. 

The Official Solicitor

I couldn’t hear the first few minutes of what Katie Gollop was saying.  First her mike wasn’t switched on and she was completely inaudible.  Then the usher responded immediately to my raising the matter in the chat by turning on the mike, but it was too far away to pick up more than the odd phrase.  For some time, I could see Katie Gollop, but not hear her, and I could hear the judge, but not see her!  The usher then did move the mike closer and the sound quality was then fine.

I heard the judge say that there was a midwife spending time with HW, that there had been mention of foetal movements (perhaps in relation to HW coming to believe that she is in fact pregnant?), and then a discussion about HW’s family, who I think haven’t been involved in this situation at all up to now.  The Official Solicitor made clear that she was not pursuing family members (I think she mentioned a restraining order?) but that the local authority might be so doing.

The judge directed the Official Solicitor to get HW’s medical records for the past couple of weeks.  I reflected at this point that I didn’t know (and still don’t know) why the Trust has taken the position that a Caesarean is in HW’s best interests.  I don’t know, for example, if this is for a physical reason that makes vaginal delivery potentially risky (e.g. a breech presentation) or whether it’s solely related to HW’s mental health issues (I can imagine that going into labour would be very frightening if you didn’t believe you were pregnant). Katie Gollop did refer to “potential risks to the baby [sic]” but without spelling out what those were.

Together, counsel and the judge worked out the schedule up to the next hearing: another visit to assess HW’s capacity on Tuesday afternoon next week (the hearing is listed for the Thursday), followed by an advocates’ meeting early Wednesday afternoon and the Position Statements to be submitted to the court late on Wednesday. 

The judge asked whether HW wanted to talk directly to the judge herself – concerned that she should have this opportunity and it should be included in the schedule. Nobody seemed to know the answer.  

Listing the final hearing

The judge pointed out that “the legal framework isn’t going to be contentious”, and then listed the hearing for the whole day on Thursday 30th May 2024 (rather than the half-day requested by the Trust) “to give time for a remote visit [i.e. a  conversation with HW] and for the judgment, which you’re going to need as soon as possible”.

I have requested a copy of the approved Order (to which members of the public are entitled under COP rule 5.9) which will doubtless enable me to correct this blog post and to fill in some gaps.  When I receive it (I hope before the hearing on Thursday 30th May 2024), I’ll update this blog post accordingly.

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

 

 

Challenging a Transparency Order prohibiting identification of the Public Guardian as a party

By Celia Kitzinger, 24th May 2024

UPDATE: There was a hearing about this matter on 30th May 2024 at which the prohibition on identifying the Office of the Public Guardian as a party in the case was lifted. It was, said the judge, a “mistake” to have included this prohibition in the Transparency Order. For a description of the hearing and our reaction to it, see this blog post by Celia Kitzinger and Georgina Baidoun. Prohibition on identifying Public Guardian is “mistake not conspiracy”, says Judge. We can now reveal that this fiasco concerned COP 14123571 before HHJ Sullivan.

I have just submitted my Position Statement (as a litigant in person) for a hearing, listed for one hour, about my application to vary the Transparency Order to permit identification of the Public Guardian in a recent case in the Court of Protection.

I am dismayed that it’s been necessary for a member of the public to make a formal COP 9 application and to be required to attend a hearing about this matter, which could (surely!) have been dealt with swiftly by a judge on the papers, on the grounds that this prohibition is unlikely to be compatible with open justice. But here we are. Perhaps there is something of which I am unaware that will cast a different light on the matter.

Here’s the statement I’ve submitted to the court – redacted, since it would breach the Transparency Order to let you know the case to which this prohibition applies. Everyone knows the Public Guardian is often involved in Court of Protection hearings, of course, so I can’t be breaching the Order by letting people know that I am involved in one such case. I simply can’t tell you which one. I will report on the outcome in due course.

POSITION STATEMENT

(REDACTED to comply with the Transparency Order I am challenging)

By applicant, Professor Celia Kitzinger, co-director of the Open Justice Court of Protection Project for a hearing at XXXXXXXXX Court before HHJ XXXXXXX. via CVP

  1. This is an application for variation of the Transparency Order to permit identification of the Public Guardian as a party in this case. The variation would involve deleting the initials “OPG” (Office of the Public Guardian) from §6(i)(c) of the sealed Order made by XXXXXX. dated and issued on XXXX 2024.
  2. I make this application as a person affected by the Order in my role as co-director and blog editor of the Open Justice Court of Protection Project.  The Project was set up in June 2020 to support the judicial aspiration for transparency by encouraging members of the public to observe hearings and to blog about them.  We have supported more than a thousand members of the public to observe Court of Protection hearings and published nearly 500 blog posts. 
  3. A member of the public (GXXXXX ) observed a hearing in this case on XXXXXXXXXX 2024 and has sent me a blog post about it which I cannot publish because it identifies the Public Guardian as the applicant.  On the basis of my reading of this blog post, I believe it is is impossible, in practical terms, to write about the proceedings without identifying the Public Guardian’s role.
  4. I am submitting this Position Statement without having seen a Position Statement from the Public Guardian explaining why they sought protection of their identity from the court (if they did) and why they oppose (if they do) my application to vary the Transparency Order.  As a Litigant in Person, I would appreciate knowing in advance of the hearing what their position is and the arguments they advance to support it, since I am already at a significant disadvantage as a non-lawyer representing myself.  It is difficult to challenge arguments I haven’t yet been made aware of, and at present I cannot envisage any circumstances under which it could be necessary, proportionate or in accordance with the principle of open justice to prevent the public from knowing that the Public Guardian was involved as a party in the Court of Protection. Nor, having read GXXXXX’s report of the hearing, can I see any reason why we have been ordered to conceal the Public Guardian’s involvement in this particular case.
  5. I raised the general principle of anonymising the Office of the Public Guardian (or the Public Guardian) at the First Avenue House COP User Group meeting on 23rd April 2024 and was told, by a representative from OPG, “The OPG doesn’t routinely, and very rarely, seeks to be anonymised. It is likely that any such transparency order has been made without OPG input.” At my instigation, GXXXXX has recently attempted to seek input from the Public Guardian about this matter in relation to this case in particular, but without success.  

The reasons I am advancing for varying the Transparency Order are as follows:

6. The information that the case involves the Public Guardian as applicant is already in the public domain. The hearing on XXXXXXXX 2024 was listed in Courtel/CourtServe as below – and the screenshot of this listing was circulated by the Open Justice Court of Protection Project on social media, including X (formerly Twitter), where we have over 6k followers). Since posting this information pre-dated the Transparency Order, and Transparency Orders cannot act retrospectively, we have not deleted this information. When information is already in the public domain, it makes no sense for Transparency Orders to seek to suppress it. 

7. Transparency Orders are not designed to protect the identity of public bodies. Under the terms of the Transparency Pilot 2016, now incorporated into routine Court of Protection practice, the purpose of the Transparency Order is to enable hearings to be held in public in accordance with the principles of open justice and Article 10 rights to freedom of information, while protecting the Article 8 privacy rights of the person at the centre of the case (P).  Protection of public bodies was never an intended goal.

8. There is no evidence that identifying the Public Guardian risks identifying P. The is only circumstance in which I have seen judges order that the identity of public bodies cannot be reported is when so doing makes it “likely” that P could be identified, via a process of jigsaw identification.  This is rarely the case – but does occasionally arise (e.g., with small NHS Trusts with only one specialist centre at which someone with P’s medical condition could be treated).  It is highly unlikely that identifying the Public Guardian as the applicant in this case carries a risk that people could identify the protected party.  The onus is on the applicant who seeks anonymity, and the court that grants that anonymity, to explain how it would be “likely” to do so. No such explanation has been offered.

9. I have seen no evidence of a careful balancing exercise of P’s Article 8 right to privacy with the public’s Article 10 rights to freedom of information. The Court of Appeal in Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331 has confirmed the need for an intensive fact-sensitive evaluation and balancing exercise when curtailing freedom of speech to safeguard Article 8 rights. I am not convinced that any such balancing exercise has taken place in this case – or that if such a balancing exercise were to be undertaken, the outcome would be in accordance with the current reporting restrictions.

10. One consideration weighing heavily in favour of varying the Transparency Order as per my application, is the draconian consequence of concealing the identity of the Public Guardian, which is that in reality the case cannot be reported at all.  This seriously compromises the freedom of expression of the member of the public who observed the hearing, who cannot have her blog about it published, and my own freedom of expression as blog editor, as I cannot publish her blog post.  It also compromises the public’s right to receive the information we are prohibited from publishing –and this is information concerning a public body engaged in matters of legitimate public interest.   

Celia Kitzinger, 24th May 2024

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

A private hearing before DJ Glassbrook

By Claire Martin, Celia Kitzinger, Peter C Bell and Kim Dodd, 22nd May 2024

A few months ago, we published an audit of “private” hearings – that is, hearings that appear as “private” in the lists on Courtel/CourtServe. 

What we found is that at least 50% of those “private” hearings had been wrongly listed as such.  The judge actually intended them to be public.

Since then, Celia has been systematically sending emails to each of the judges whose hearings are listed as “private”, asking if that’s really intended.  Replies often come too late to be useful, and we’ve missed many hearings intended to be “public” because the mistake in the listings was only corrected after the hearing had taken place.  

By contrast,  DJ Glassbrook got back in a timely manner on 9th May 2024 when asked about his hearing in Northampton the following day (COP 13982390): “This is a s.21A and would appear to be suitable to be [a public hearing]  with the benefit of a Transparency Order, albeit I can’t actually see such an order”. He explained he would ask for submissions on the matter and would need to ask observers to leave if he was persuaded it should be held in private.  In the event, that’s actually what happened – which makes this an interesting case for open justice. 

The hearing

Celia (who was not herself able to join the hearing due to previous commitments) alerted the core team to the possibility that this “private” hearing would in fact be in public, and also posted on X about it.  Claire Martin attended from the core team, and so did two other observers: Peter C Bell and Kim Dodd.  What follows is based on Claire’s contemporaneous notes of what happened, checked by Peter and Kim (who were admitted to the online platform a couple of minutes sooner than Claire). This transcript is as accurate as we could make it, given that we are not allowed to audio-record hearings, but is unlikely to be 100% verbatim. Counsel were Lucinda France-Hayhurst of St John’s Buildings for the protected party and Zoe Whittington of Cornerstone Barristers for the Local Authority.

Judge: Yesterday I received an email from Celia Kitzinger. Frankly, once a case gets going it’s not something I’d considered. There’s no Transparency Order (TO). I agreed with Professor Kitzinger if she wanted to observe I’d need to get a TO.  I would need to hear submissions from parties. There is no TO. No party may publish anything. If it becomes a public hearing, there is a draft TO and I should check the observers are aware of the standard terms.

Claire was joined to the video-link at 10.13am.  

Judge:  Dr Martin I know you’ve just joined – unfortunately the requests arrived late – well this morning they were sent over. [Mentioned reporting being restricted in ‘usual way’] You can’t name any party or accommodation of P. 

DJ Glassbrook then asked counsel for P for her view on observers being present at the hearing. 

Counsel for P: I don’t have instructions so I’m minded to ask you, judge, to apply caution.

Judge: Why? 

Counsel for P: Why?

Judge: Yes, why more caution, and let’s face it  […]  what I do in the vast majority of cases is to make, first, directions that this is subject to a Transparency Order (TO) and from memory I don’t think I have ever heard it argued that it should THEN become private. So, it’s routine for a TO these days, isn’t it?

Counsel for P: It certainly is …

Judge: So, if you say that shouldn’t hold in this case, I need to know why … I think it was simply an error on my part at the beginning …. [the judge was suggesting that the hearing being listed as ‘Private’ from the beginning was an error on his part]. 

Counsel for P: Nevertheless, I have no doubt that it would be the expectation of the ALR (Accredited Legal Representative) that proceedings should be in private – and whether in error or not it was listed as private  […] What I say may give rise to […] we have a potential criminal investigation, the Local Authority will provide information before the next hearing . We don’t have information at present and until we have it, we don’t know whether there will be a concurrent prosecution. The facts of this case are very sensitive, jigsaw identification [may be possible] …. We are at a point in P’s life during a move … it’s an extremely febrile time for P. If jigsaw identification were to come about […] I am asking you to consider the position for a short period to allow the ALR to weigh in and for information from the police. A careful review before the next hearing, and if in the ALR’s [view] it should be in public, there will be a TO.

Judge: I am bringing up the draft … [reading a draft TO – possibly the template from the Transparency Pilot, here or a version of it prepared for this particular hearing but not yet approved].  What I am looking at is the subject matter of the injunction in the draft TO. It’s in the standard form. The subject matter: (reading) “any information that identifies or is likely to identify that SR is the subject of proceedings, or that any person who is a member of the family or that any material that identifies or is likely to identify where any person lives.” […] We could add a line that it includes where P will move to.

Counsel for P: It’s not the geography, it’s the nature of her conditions, and given that we are at a particularly sensitive moment … There are of course times where court uses discretion….

Judge: OK. Miss Whittington?

Counsel for LA: The Local Authority remains neutral, [it is] content for it to be made public with a TO. [?Happy to] hear other submissions – we wouldn’t object to it, but judge we are in your hands.

Judge: If I pick up what Miss France-Hayhurst says and if we consider particular characteristics of an individual and there is to be some criminal case, which reveals those characteristics of the individual, that’s the end of it isn’t it? It’s out there then?

Counsel for LA: Yes, that’s right

Judge: And do you say we can phrase the TO protect against that?

Counsel for LA: I would say so, yes. Obviously the TO is phrased to deal with concerns.  I don’t think the Local Authority would be concerned with a sufficiently robust TO.

Judge: Is that something we are able to do now? If it’s the particular characteristics of P that are the issue, I suppose it would be possible to include within that, paragraph 6 ‘don’t disclose matters that are particular characteristics of the individual’. But that makes it nigh on impossible to report ANYTHING. So, a  characteristic – what is that? A certain age? Yes. Is […. ….] all sorts of characteristics … that would help identify the individual. What I am trying to do here is not tell you I have made my mind up, it is to force engagement with arguments from Miss France-Hayhurst.

Counsel for LA: Yes, and essentially the Local Authority position is that it is content with the TO in standard terms. It prevents reporting in any event….

Judge: It doesn’t prevent reporting. It expressly ALLOWS reporting.

Counsel for LA: Yes, what I mean is it prevents identification of P, that’s Miss France-Hayhurst’s concern. I think that’s covered by the TO in any event. I have an update from my client. The information the Local Authority has from the police is that there isn’t going to be a police investigation. That might assist.

Judge: OK! Miss France-Hayhurst, I appreciate that getting that information right now isn’t especially comfortable for you, or for me. So, it seems the main risk of identification is that if there are similar characteristics published as part of criminal proceedings and someone puts two and two together. Were it not for that we’d have a TO wouldn’t we?

Counsel for P: Well … judge it’s impossible to say if we would or wouldn’t. I am in the position of not having instructions ….

Judge: Well, I feel quite entitled to lean on both of you here as advocates with a duty to the court to assist, regardless of instructions. You’re both experienced in Court of Protection matters. This isn’t a matter for instructions, they will express an opinion. […] Part of the fun of being an advocate is being put on the spot now and again …

Counsel for P: It certainly reduces the possibility of jigsaw identification.  […] The court also has to consider the potential impact though. I appreciate it would be sensitively reported by these observers. … But P is likely to be moved to a different area and it’s likely to be a challenging time [it needs a] period of time and adaptation for P, so the last thing they would need is jigsaw identification. I would urge the court to exercise caution TODAY. [Counsel’s emphasis]

Judge: [thinking] …. Any observers have anything to say? 

(Kim suggested a temporary ban on reporting and allowing us to observe, and pending a TO we could later report.  Claire agreed and said that she was going to suggest a  temporary ban on reporting.)

Counsel for P: Surely there’s no point of observing if you can’t report? 

Judge: What would be nice would be if we had all had …. and I don’t make this observation as a way of criticising anybody at all – if we’d all had lots of time to look at it and consider it, it would be undoubtedly more comfortable.

(By this point it’s already 10.37am)

Judge: Let’s face it, I’m not good on reporting restrictions practice.  I imagine if I got the civil procedures rules out there may well be more in that but [I don’t have] time for me to go through that, [it] would be such that, in practice, we would simply be adjourning this hearing, and it would be for nothing. I admit reporting restrictions are not my normal thing.

Peter: […] Open justice – I would ask the court to adopt the least restrictive approach. [There is] an additional point about observing but not reporting. Obviously if we can observe and not report we are then able to make submissions about the reporting restriction to ask for it to be lifted. I have come across temporary ban on reporting  – I think Open Justice Court of Protection has examples – so there are precedents.

Judge: OK let me tackle this now. This is a hearing about an individual who has particularly unusual characteristics. It’s a welfare hearing. In the large majority of these hearings as indicated by the relevant practice direction, the hearings will be under a TO which imposes some restrictions. Yesterday I had an email asking whether this hearing should be in private, and I readily admit that this isn’t something that I had given any great thought to. I may have done early on in the proceedings, I don’t remember. The norm is undoubtedly for there to be public hearings with a TO. I have heard submissions from advocates and brief submissions from three observers as well. I have to balance. I accept it might be possible to impose a reporting ban pending any further decision. I need to be careful here because the general principle is not transparency above all else, but transparency and rights of the protected party. I am told that at one stage there may have been criminal proceedings, and I am told today that might be otherwise, I haven’t seen a document [saying this is so]. The police giving indication doesn’t prevent that being reviewed. In those cases where another party has an interest, they can ask for a review. Criminal procedure is not my specialist area either. I would need some more information. The particular issue is that criminal proceedings are normally public and the press can publish whatever they like and potentially track back. If they do so and this is put together with the characteristics in the Court of Protection matter, it would not be challenging to put the [two together] and I can appreciate, knowing what I do about the protected party, that would be damaging. How am I going to deal with this? No party is going to be in a position to put submissions … We’ve used three-quarters of this hearing on just this issue. I would like more time – I want to study [more]. I believe that this hearing is to remain private. If required, then we can have another hearing to discuss just this issue … if we then have a decision that subsequent hearings should be public with a TO then the subject matter becomes public. The effect of that is not to deny transparency but to delay it, and I believe that is a proper way of doing it. Miss France-Hayhurst, Ms Whittington, is there any reason that what has happened TODAY should not be reported. [Judge’s emphasis]

Counsel for P: No

Counsel for LA: No

Judge: So, the observers are free to report, should they wish to, the outcome of this hearing so far today. I am going to ask you to leave unfortunately. If there is a further hearing then the three of you can be sent the link or it can be published on CourtServe. 

Counsel for P: I would advise in the interim that if publication of what we have discussed today is permitted, this should be subject to a TO.

Judge: That makes sense. Miss Whittington and Miss France-Hayhurst, can I ask you to look at that and send it to the three parties. I am sure between us we can find out the email addresses. Whilst observers are free to report what’s happened, that may not be done until the TO has been received, and it will be subject to that TO. 

Peter: We are now needing to make submissions without knowing the facts – how do we get round that?


Judge: You know there are specific characteristics and there may be criminal proceedings and I don’t think it’s [necessary?] for the particular characteristics to be known, for you to be aware that they are such that it would be easy to equate the two cases. I have ten minutes to deal with this hearing, so I have to deal with the hearing itself. I can’t let transparency completely scupper the hearing; it’s come close to it already. When you have the TO the three of you will be subject to it. Unfortunately, I am now going to have to ask you to leave. 

The observers left at 10.50am

Reflections

We don’t doubt that this judge shares the broader judicial commitment to transparency in the Court of Protection, but in practice there are clearly problems.

The system is supposed to work by the judge making a decision at the outset of the case about how the hearings are to be listed, and – if they are to be in public – by  simultaneously making a Transparency Order. 

If there’s no Transparency Order, court staff routinely list cases as “private” – even when the judge has not considered the issue and has certainly not made any decision that a hearing should be held in private.  If a judge has decided (or simply assumed) that a hearing will be in public, but hasn’t made a transparency order, the hearing will be listed as “private”.

Then (as seems to have happened here) when observers ask to attend, the judge thinks (despite the listing) that the hearing is probably public, but a situation can arise where at least one party is under the impression that a deliberate decision may have been made to list it as private. It sounds as though it’s appeared in the lists as a “private” hearing before (though we don’t have evidence of that).  

The advocates were then bounced into having to make arguments on the fly, not having expected this to become an issue, and with the judge having (apparently) assumed it was likely to be a listing error rather than reflecting anyone’s view that the hearing should actually be held in private.

Since there is now (it seems, pending instruction from the ALR) an application to hold the case in private, Celia will be making an application to act as Intervenor to help the judge with considering how a Transparency Order can be made that balances P’s Article 8 privacy rights with the public’s Article 10 rights to freedom of information.  

The messiness of this hearing could have been avoided, of course, if the basic principles of whether the hearing was to be private or public (and what reporting restrictions could enable a public rather than private hearing) had been considered at the outset of the case.

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

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

Peter C. Bell is a law student at the Open University. He tweets @dolphinpcb

Anorexic woman gets to make her own (incapacitous) decisions, says Hayden J

By Celia Kitzinger, 19 May 2024

“It does not follow that when a judge is satisfied that the presumption of capacity has been rebutted that it is automatically incumbent on the court to take decisions for the protected party…. Sometimes it is in the best interests of the protected party to take decisions for themselves, even when they cannot weigh all the factors into the balance in the way the capacitous can.”  (Hayden J, in oral judgment)

At this hearing before Mr Justice Hayden, “Pam”, a woman in her 40s who has received treatment for anorexia against her wishes under the Mental Health Act for more than twenty years, pleaded with the judge to be allowed to leave hospital.  She wants to be discharged from the Mental Health Act and allowed to return home. She does not want to engage any more with the Eating Disorder Services, but is happy to access symptom management to alleviate the consequences of not eating sufficiently and to improve her quality of life.  

She was, as Mr Justice Hayden said, “a powerful and eloquent advocate on [her] own behalf”.  He made declarations that she should, in future, receive treatment only in accordance with her wishes.  

My original intention was to focus on Pam’s role in the hearing and simply link to the published judgment for the details of the case. But two months later there is no published judgment, and I don’t know if there will be one, so I have revised my original draft and written a fuller report than I originally intended.

The judgment is important because it (again) pushes forward the boundaries on decision-making for the incapacitous, as Hayden J has done previously and most obviously in two other cases: Rotherham and Doncaster and South Humber NHS Foundation Trust and NR [2024] EWCOP 17  and Avon and Wiltshire Mental Health Partnership v WA & Anor [2020] EWCOP 37.  (See also our blog posts about these two cases:  A rock and a hard place: Abortion decision for an incapacitous and conflicted P; “What is he saying to us?” The ‘voice’ of a hunger-striking man in a best interests decision about his medical treatment.).

In those two earlier cases, Hayden J found the protected party to lack capacity to make the relevant decisions (to consent to or to refuse an abortion [NR]), to consent to or to refuse clinically assisted nutrition and hydration [WA])).  But the judge nonetheless left the decisions up to the protected parties. The judge made clear his view that it is in the protected parties’ best interests to be free to choose for themselves and to assert their own autonomy. 

Judgments like this have  been described – by eminent lawyer and commentator Alex Ruck Keene – as “creative”, or even “odd”:

“On the face of it, it might seem somewhat odd for the court at the same time to conclude that the person lacks capacity to make the decision in question, but that it is in their best interests for them to decide what should happen (or perhaps, to be more precise, for their choice to be respected as determinative).   It might also seem somewhat odd for the court to decline, expressly, to make any best interests decision, given that a key part of its statutory raison d’être is to make such decisions on behalf of individuals unable to do so.” (“Exercising legal capacity and termination: A creative approach by the Court of Protection”)

In the context of decisions about treatment for anorexia, however, it is perhaps less surprising. We have seen similar decisions from other judges who have likewise made decisions that it is not in the anorexic person’s best interests to be given forcible treatment against their will, and the choice as to whether or not to accept treatment (or to eat) is left with the person themselves.  For an expert overview of the court’s approach to these cases of severe and enduring anorexia see Expert witness in anorexia cases[1].

The hearing

It was an in-person hearing before Mr Justice Hayden sitting in the Royal Courts of Justice on 26th March 2024.  All the parties (including Pam) were in the physical  courtroom,  but a link was available for the witnesses, who included the independent expert appointed by the Trust and the treating psychiatrist (both of whom gave oral evidence) and others including the GP and palliative clinician (who did not give evidence).

The position of the parties was as follows:

Applicant Trust position

The applicant Trust (Southern Health NHS Foundation Trust, represented by Nicola Kohn of 39 Essex Chambers) was seeking declarations that Pam lacks capacity to make the relevant decisions and asked the court to approve its proposal to cease treatment of Pam’s anorexia against her will and to implement a care plan for palliative care in the community.

Since her anorexia diagnosis in 2004, Pam has never achieved a body weight above 38kg (BMI 14.7). The Trust summarised a long list of admissions to treatment units from 2005 onwards, none of which has been effective in curing her anorexia (though they did of course keep her alive).  “With a heavy heart”, they say that “further treatment is likely to be futile, harmful and is not in accordance with [Pam’]s wishes”.  

Official Solicitor position

Pam was represented, via her litigation friend the Official Solicitor, by Parishil Patel KC of 39 Essex Chambers.  The Official Solicitor had considered the available evidence, including in particular Pam’s own articulately expressed view that she has capacity both to conduct the proceedings and to make decisions about her treatment for anorexia.  The Official Solicitor’s view, however, is that Pam lacks capacity in both areas “because her ‘anorexia cognitions’ mean that she is unable to use and weigh the relevant information in making a decision”.  There is, said the Official Solicitor, “a significant risk” that discharging Pam from detention under the MHA and providing only treatment that she accepts and complies with, “will lead to her death”. Nonetheless, Pam’s beliefs and values (albeit distorted by anorexia) “should be afforded significant weight” and the proposed care plan “promotes [Pam’s] autonomy and gives her the best chance of peace and comfort in her life”. 

Cygnet Healthcare Limited position

Pam’s current care provider, Cygnet, was represented by Francesca Gardner of 39 Essex Chambers. They’d had input into the formulation of the care plan and provided input, via the treating clinician,  into current clinical opinion as regards further inpatient treatment for Pam.  The treating clinician had considered the  independent expert report from Dr Pelosi and agreed with his conclusions, specifically that Pam lacks capacity to make the relevant decisions, and that the chances of any specialist eating disorder unit being able to achieve full weight recovery in Pam’s case were remote.  They also referred to Pam’s own statement (also referenced by the other two parties) that if her weight were to fall below 30kgs (she currently weighs 30.6kg, BMI 11.81), then she would accept a brief admission to hospital for refeeding on condition that it was a voluntary admission and that treatment under the Mental Health Act was “off the table”.  Although joined as a party for this hearing, the care provider played a modest role in proceedings.

Professional Witness Evidence

Dr Anthony Pelosi described Pam as “highly articulate, highly intelligent” but said her ability to use and weigh relevant information “is entirely occluded by her preoccupation with her weight”. She is, he said, unable to weigh any information about her anorexia “because of the distorting and all-consuming effects of anorexic psychopathology on discussions about her health and wellbeing as they relate to her nutritional status, her body weight and the shape and size of her body”.  He had considered the possibility of feeding Pam (against her will) up to a BMI of 20, in the hope that this might ameliorate her anorexic psychopathology, but reported that she’d found refeeding to a BMI of 15 as “traumatic in the extreme”, and said that it was very unlikely that she would choose to sustain improvement after discharge from hospital.

The Trust psychiatrist was asked by the counsel for the Trust to explain the basis on which Pam’s refusal of weight gain “is not simply a decision she makes, and an unwise one, but a decision she is unable to make because of an impairment in her mind or brain”.  In response, the psychiatrist described the “severe trauma and suicidal thinking” that Pam experiences when her weight goes above 30kg.  “She understands that she could potentially die, but she’s not able to understand that in a way that those without this level of psychopathology would be able to.  She can’t really comprehend the consequences of not maintaining her weight above 30kg […]. She says she doesn’t want to die, but can’t prioritise that as a more important factor compared with maintaining the weight she wants to maintain”.

Pam’s evidence

Before the lunch break, the judge addressed Pam, saying: “ We’re all talking about a really important decision about your life.  You are an intelligent, articulate woman.  I’d quite like to hear what you have to say about this. I will make the process of giving evidence as relaxed as I can and I’m not going to make you go into that witness box against your will. It’s up to you and you can let me know what you decide when we return at 1.30”.

When the court reconvened, counsel told the judge that “Pam would like to address the court” – and she was sworn in to give evidence.  I’m not sure that what protected parties say in court is technically “evidence”, but in the context of this hearing, with this P, it felt absolutely appropriate that she should be able to address the court, in public, in the same way and with the same formality and gravity as pertained to the doctors who had given evidence about her.   

Pam described what she called the “merry-go-round” of admissions to Eating Disorder Units and coercive treatment.  

Pam:  My weight dips, I stop ticking the boxes that the GP needs me to tick and I’m sent to an Eating Unit under the Mental Health Act. In the Eating Unit I undergo coercive feedings and suffer the despair and depression that brings. They keep you in there until you’re a higher weight and make you do whatever they want you to do. As my weight goes up, my despair and panic goes up. As soon as I’m discharged, I can’t cope at that weight and my weight goes down.

Judge: What does getting your weight up involve?

Pam:  There’s a menu plan, and if I don’t comply with that there’s the NG tube which I’ve been given forcibly because I wasn’t following the menu plan.

Judge: What is involved?

Pam: Six to eight members of staff – they hold your head, arms, middle and your legs, and then another member of staff forces- You’re restrained on a large bean bag and then they take the tube and with some force and effort insert it into your stomach and test it and then they put feed into your stomach while holding you down.  When they did it at [care provider] it took about an hour and a half.

Judge: Did you resist?

Pam: Yes.  And say you’re supposed to have 100mg and you only have 90mg, they give you the whole thing again

Judge: After they did it at [care provider] did you comply with the menu plan?

Pam: I felt I had no choice. I had PTSD from when I was forcibly NG-ed at [earlier care provider], so even though [this care provider] knew I had significant trauma, they put me through that NG now.  If I don’t follow the menu plan that they give me, then I go through the trauma of being forcibly NG-ed, so I’ve been following the menu plan only to avoid that horrendous experience.

Judge:  The treatment for anorexia [inaudible] difficult to understand and get the balance right. If you look back over the treatment you’ve received over 20 years and I were able to make you Professor of Psychiatry, what would you do?

Pam: I think when you are at the start of anorexia, if you can have full weight restoration the first couple of times – treated quite aggressively and, yes, forced NG-feeding, then I think they stand a really good chance. That’s when it’s not so ingrained. Over time, anorexia becomes more and more you. It becomes your new normal.

Judge: Why did that not happen in your case?

Pam: Uhm (silence) I don’t know the answer to that.

Judge:  Why is it too late now?

Pam:  I’ve been trying for the last 10 years or so, being pushed through different weights while being told “if you get to this weight, you’ll feel different” – and it hasn’t happened.  I was pushed to the dizzy height of 38 kilos, under which I felt I was suffocating and unable to leave the house.  Anorexia isn’t about thinness. It’s not about me wanting to look thin. It’s about how it makes me feel inside. It’s about being able to accept myself. It’s about being at peace with myself.

Judge: What is it about being – let’s be blunt – emaciated that makes you feel at peace with yourself.

Pam:  I feel that (silent)…. It…. It makes me feel safe in that…. (silent)…. I’m not taking up too much room in the world. 

Judge: Yes, I’ve heard quite a few women say “it makes me feel disappeared”.

Pam: It’s not that I’ve got a death wish.

Judge: No, I don’t mean that.  Invisible.

Pam: Yes.

[…]

Judge: As I read the care plan now, it is essentially to put you entirely in control of your own destiny.  Wrapped up in different words, but that’s what I read it to be.  When I look back on your prior history, I can’t see a time when you’ve been completely in control.

Pam:  I had an interesting conversation with a lady who’s recovered.  She left the Unit at a reasonably low BMI. What changed her was, all monitoring was off the table, but she said she was sat on the sofa watching her children playing in the garden and she thought, “you know what – I’d really like to play with my children”. And she gained weight.  Weight is at the forefront on my mind. There’s a constant fear that I’m going to get dragged back to the Unit again. If that fear’s removed and I’m sat at home, it’s a sunny day, I can hear people having fun, walking around having fun… It would come from me wanting to get a bit stronger to do that, or go see my mum, or go out shopping with my sister.  It would be coming from me, instead of all this constant anxiety […]. It’s almost terrifying because I don’t know what’s going to happen.  I just know that for the last 20 years I’ve been in and out of Units, none of which has helped in any way, and I would just like the fear and despair to stop now – the fear of being detained in a Unit and forcibly fed.  I would like to have some quality of life. I would like to do what might seem little things to people with a full life, but to me they mean a lot, and I would like to do those things in the comfort of my own home, and with some dignity.

Judgment

Mr Justice Hayden gave an oral judgment in court – no written judgment has been published.  I’ve captured it as best I can here. As always, we are not allowed to record court hearings so this is based on my contemporaneous touch-typed notes.

For twenty years, nearly half her life, Pam has lived with the burden of this condition. In 2011, such was its progression that she was diagnosed with osteoporosis.  She has a long and enduring history of self-induced vomiting and laxative misuse and weight manipulation.  During the course of this short hearing, she gave evidence before me.  As I said to her when she was in the witness box, I found her to be a compelling and articulate advocate – on her own behalf and further, given that this is a condition which the Court of Protection encounters with some frequency, she added greatly to the sum of my understanding and thereby served a purpose for other women in her circumstance.  

Pam is one of three sisters.  Her older sister, Annie, has been interviewed by the Official Solicitor, and during the course of that interview it was clear that she had some considerable insight into her sister’s condition.  Plainly to some degree she’d had problems of her own, which she’d overcome, and throughout her statement was her own almost palpable distress at the prospect of losing her sister – something which I suspect she’ll have lived with for some time, although it becomes more real for her in these proceedings.  The two sisters are obviously close, and although Annie finds each of the available options for her sister to be unattractive in some way, her prevailing wish is that those concerned with her care should not, as she puts it, “give up on her”.  I hope that the declaration I’m going to make shortly will do nothing of the kind. Its objective is different altogether from the anxieties reflected in Annie’s interview. 

I have mentioned Annie’s feelings because hers is the only discordant voice at this stage as to what in the future is in Pam’s best interests.  Those treating her, and the expert instructed to provide a second opinion, have all been able to agree today.

Pam has never in all those 20 years of treatment achieved a body weight above 38kg.  When her weight has been increased during the course of hospital admissions, it has a powerful impact on her sense of well-being. In the witness box, and given a moment or two of hesitation to reflect, she told me her condition is not about wanting to be thin: it’s about wanting to be at peace.  And she finds peace by making herself feel unobtrusive and small. And she agreed with me when I used a word I’ve heard used by other women with her condition – “invisible”.  It is not easy, as Dr Pelosi foreshadowed, to understand the psychology of this – why she would wish to feel invisible or slight.  But in many ways that scarcely matters.  It is that which is the driving force.

Pam has been a hospital inpatient, under s.3 of the Mental Health Act, since June last year.  Recently she has been on s.17 leave and that has allowed her to visit her home…. Those tentative steps back into what we might call the ‘real world’ have, I’m told, gone reasonably well.  

There is a care plan before me with the essential aim of restoring to Pam control, absolute control, over her condition.  The stated aim of the plan is to maximise her autonomy in the community.  Palliative care, as it is termed, is intended to manage her symptoms – and care is available to provide her with support when or if she chooses to engage. 

It would be wrong to think of what has gone before as failure, but the alternative regime has had its own burdens – and saying that doesn’t come close to doing justice to Pam’s lived experience.  The alternative of imposing treatment – in particular force-feeding Pam – is properly described within the documentation as ‘abhorrent’.  I accept that subjugation to that force would be corrosive of her dignity.  More than that, I’m entirely persuaded that such a course would be likely to render life for Pam so traumatic as to be simply unacceptable to her. In blunt terms, if the choice was death or force-feeding, she would rather choose to die. I have no doubt about either the sincerity of that view, or the strength of it.

Mr Damian Cullen, one of the lawyers with the Official Solicitor, met with Pam on 13th March and did some creative and sensitive work. Pam told him that she believes there were three options to be considered.  First, a community care plan which would, in her terms “stop the merry-go-round”; second, for the merry-go-round [of admission-discharge-readmission] to continue; and third, full restoration of her weight.  In relation to that third option, Pam said if that were to happen, it would bring about her death much quicker.  On the last occasion Pam was subject to force feeding, it was necessary for her (weighing something like 30kg) to be restrained by six people while she was forcibly fed for an hour and a half and resisting throughout.  She described herself as having suffered PTSD from this episode.  Manifestly, and entirely understandably, that episode of prolonged coercion has factored heavily into her decision-making processes in relation to her treatment.  If that is so, it caused me to wonder, despite a heavy and recent professional consensus to the contrary, whether she had capacity to take treatment decisions for herself.

I have heard from Dr Pelosi and from the lead clinician. The nature of anorexia is that it comes to overwhelm almost everything else. That, in simple terms, is what Dr Pelosi and [treating clinician] were saying.  […]

The care plan is at pains to highlight the distinction I’ve been grappling with – that is to say between palliative care, and a diagnosis of dying and the management of the dying process.  This plan is not motivated by an objective to minimise Pam’s care at the end of her life. It is motivated, as I’ve emphasised, by giving her choices for herself.  To choose, I suppose, in effect, whether to live or die.  Because while she may not have sufficient insight into her condition to have the capacity to make decisions about treatment, she is entirely aware of the risk of dying. On this point I do not have any doubt at all.  She is manifestly an intelligent woman. She has – until she was unable to work – an impressive employment history, doing an important job she clearly enjoyed….[…] She finds solace and comfort in her hobbies: cross-stitching, cryptic crosswords, and a keen fascination with modern Russian history.

I asked Pam if she thought the care plan which offered to put her in the driving seat for her own future stood any chance of working in terms of enabling her to establish an eating regime that gave her body sufficient to live on and her mind and brain sufficient to achieve….  She told me she’d spoken to another woman in her circumstances who, when presented with similar options to her, was free to take up responsibility for her own care.  Pam identified the motivation for this woman – seeing her children playing in the garden and wanting to be part of that.

I found her analysis of her own situation cogent, reflective and impressive. In essence, she does not know – as she told me – what the future holds.  But that there are options for the future, and that she recognises that, is plain.  

For all these reasons, I have no hesitation at all in endorsing the care plan.  I consider it to be lawful and in Pam’s best interests to receive treatment, including feeding and weight restoration, ONLY, I emphasise, in accordance with her wishes, and for her to be treated in accordance with the care plan of 26th March.

I have not found it necessary to read the law and the legal framework into the judgment and I don’t propose to overburden it with that.  […]

It does not follow that when a judge is satisfied that the presumption of capacity has been rebutted that it is automatically incumbent on the court to take decisions for the protected party…. Sometimes it is in the best interests of the protected party to take decisions for themselves, even when they cannot weigh all the factors into the balance in the way the capacitous can.

I do not underestimate the challenges of the future and take this opportunity to wish Pam the very best.  This judgment removes a sword of Damocles she believes to have hung over her head for many years.  

Transparency matters

The hearing ended with a brief discussion about the rather draconian Transparency Order applying to this case (made by Mrs Justice Theis on 9th February 2024), which prohibits reporting the name of the applicant NHS Trust, as well as the names of not just professionals but organisations caring for Pam “or involved with the planning, arranging, commissioning, reviewing, regulating and/or monitoring [Pam’s] care”.   I had emailed counsel about the terms of this Transparency Order during the course of the hearing and was told it was under discussion. 

Clearly recognising Hayden J’s commitment to transparency, Nicola Kohn raised the matter of the Transparency Order with the judge by saying, “Not to tilt at windmills, but it provides for the anonymisation of the Trust and Cygnet”. 

As expected, Hayden J responded robustly. “We go in this court to enormous lengths to seek to dispel the canard of secrecy…” he said, referring to “the litter of anonymisations” which reinforce the “spectre of secrecy”.  The judge ordered that the Trust, the care provider, and the expert (Dr Pelosi) should all be named (but not the treating clinicians).  He added: “I don’t think the medical profession should shrink away from this conclusion, which is progressive and patient-focussed and one they should be proud of”. 

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] We’ve  also blogged about anorexia cases here: 

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