Contact is a recurring issue in Court of Protection proceedings. I have been working in this area for eight years and my rough estimate would be that a dispute around contact (justified or otherwise) has arisen in around 30-40% of the cases I work on.
Where an adult lacks capacity to make their own decisions about who they see and how often, disagreements can arise between families and professionals about what contact is appropriate, safe, or sustainable. For families, restrictions on contact (e.g. limited hours of contact, contact only via phone or video-link, supervised contact only) can feel abrupt and disproportionate. It can also be interpreted as a ‘punishment’ for querying or complaining about their relative’s care.
This post explains how the Court approaches these cases, what the legal framework actually requires, and how evidence is scrutinised.
Where I have referred to ‘public bodies,’ this means the Local Authority, Integrated Care Board (ICB) or Health Board; whoever is the Supervising Authority that makes decisions about (and sometimes funds) a vulnerable person’s residence and care arrangements.
Capacity to make decisions about contact
Before the Court can make any decision about contact, it must determine whether the person (“P”) has capacity to make such decisions themselves. This cannot be assumed on the basis of assessments regarding capacity in other areas e.g. residence.
Capacity must be assessed for the specific decision, and sometimes the specific person, in question. I have seen cases where P is deemed to have capacity to determine contact generally, but lacks capacity regarding one individual. This may be where P has been particularly reliant on that person for a prolonged period of time and is unable to weigh up the impact of seeing that person on their wellbeing.
If P has capacity, P makes the decision, even if professionals disagree or would make a different choice. If P lacks capacity, the Court can then consider what contact is in P’s best interests. This is, of course, subject to the agreement of the person with whom contact is being considered – the Court cannot force a person to have contact with P if they do not consent, nor will they insist that P have contact if that is not what they want.
Best interests decisions are P-focused
If P lacks capacity to decide on contact, the Mental Capacity Act (s4) requires that decisions are made in P’s best interests. This means the decision must be centred on what is best for P – not what family members want, and not what is easiest for care providers.
Under s4(6) of the Mental Capacity Act 2005, the Court is required to consider, so far as is reasonably ascertainable:
(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
S4(7) of the Mental Capacity Act requires the views of of family, carers and professionals to be taken into account, if it is appropriate and practical to consult them. This does not necessarily mean considering what that person (e.g. a relative) wants to happen, but rather utilising their knowledge of P to help inform what P would decide.
The final decision must always be based only on what is best for P.
Care home rules vs Court-ordered restrictions
Restrictions on contact can occur in one of three ways:
The placement can impose their own rules;
The Local Authority/Health Board/ICB can apply to Court to restrict contact; or
The Court can order restrictions without such application.
I will look at each of these in turn, and then consider what evidence is required to authorise such restrictions and how this can be challenged.
Placement-imposed restrictions
Regulation 9A of the Health and Social Care Act 2008 (Regulated Activities) Regulations and the associated CQC guidance (link here) states that ‘Unless there are exceptional circumstances, service users whose care or treatment involves an overnight stay or the provision of accommodation in a care home, hospital or hospice, must be facilitated to receive visits at those premises.’
The starting position is therefore that contact should be facilitated. However, 9A4 states that ‘Nothing in this regulation requires a service user to receive a visit, take a visit out of a care home or be accompanied… where the service user lacks the capacity to give consent, where it would not be in the service user’s best interests.’
There is no specific definition as to what constitutes ‘exceptional circumstances,’ however it is suggested this may include, ‘to protect the person using the service, other people using the service, staff or people visiting, where there is a significant risk to their health, safety or welfare.’
Placements are therefore able to restrict contact if it is deemed in P’s best interests. However, the following is contained within the guidance to the Regulations:
‘Where a risk has been identified we expect providers to implement appropriate precautions to enable a visit to happen safely, rather than prevent visiting altogether.’
‘This should always follow the preferences of the person using the service, wherever possible, and their assessed needs. ‘
‘Providers must consider that any restriction to a person’s right to receive visitors is lawful, has a legitimate aim and is proportionate. ‘Proportionate’ means that there is the least restriction possible to achieve the aim.’
‘If there is a need for additional precautions or a restriction to be put in place, the provider should apply the most proportionate and least restrictive option.’
‘Providers should not apply blanket decisions or long-term restrictions. They should review decisions to restrict visiting regularly by working together with the people involved.’
In essence, if there are concerns about contact, then restricting contact should be a last resort and alternative measures should be considered.
Contact Agreements
An alternative measure may be agreeing a Contract of Expectations for both staff and the family, setting out what each party understands to be expected of them.
In Re RK (Capacity: Contact: Inherent Jurisdiction) (2023), the judge declined to authorise a specified contact arrangement as he deemed RK had capacity and did not want contact with her family, but he did recommend that a ‘supportive framework’ be implemented, as follows:
‘I do not feel it right that I should prescribe the precise terms of the supportive framework; it should nonetheless incorporate – so far as possible – the essential points raised by each of the parties.’
These included, although were not limited to:
R to be asked about contact with the family at key events in the calendar – birthdays / Christmas / Easter;
R will be supported by the key worker to integrate with her friends outside of the placement;
Updates to be provided to the family at intervals (three monthly) about progress with attempts to encourage R to have contact; and
A key worker shall be appointed to spend time with R and ensure that her family remain alive in her mind and that she is encouraged to think about her future involving them in her life.
If contact restrictions are implemented, the public body should be informed and consideration given to seeking Court authorisation.
Public Body and Court-imposed restrictions
The Local Authority/ICB/Health Board is able to restrict contact between P and their family (if P lacks capacity), but they should make an application to the Court of Protection to authorise any restrictions. The Court will be very critical if the public body does not make that application promptly.
The public body has a duty to consider how meaningful contact can be promoted if in P’s best interests. As above, the starting point will always be that P should be able to see the people important to them in as natural a way as possible.
When restrictions on contact may be justified
Article 8 of the European Convention on Human Rights protects the right to respect for private and family life. However, this right can be lawfully restricted if necessary and proportionate to protect the rights and freedoms of others – in this context, P. This means that Article 8 is not breached if limiting contact is necessary to protect P.
For example, in Re G (Court of Protection: Injunction) [2022] EWCOP 25, an injunction that restricted the family’s contact with P (amongst other things) was held to be lawful on the basis of evidence from numerous witnesses stating that P’s father had been hostile and intimidating to staff, and had tampered with medical equipment.
See also MB v PB [2022[ EWCOP 14, blogged about here. In this case, face-to-face contact between P and her husband had been prohibited, following allegations (and subsequently ‘findings’ – see below) of controlling and coercive behaviour.
The Court must consider Article 8 carefully, but a justified and proportionate restriction will not necessarily breach it.
Contact restrictions can take different forms: frequency restrictions, supervised contact, limits on location, or suspension of contact entirely. They may be justified in a range of situations, including:
Where contact causes distress or destabilisation For some people, particularly those with significant cognitive impairment, contact can lead to confusion, agitation, or behavioural deterioration afterwards. In A Local Authority v PB (2011), the Court permitted night-time restrictions because evidence showed P became more confused and unsettled following overnight contact.
Where contact undermines P’s stability or placement If family members are alleged to make significantly negative comments to P about the placement, this may cause P to demonstrate challenging behaviour, leading to the placement not being able to meet their needs. A move to a new placement, especially if unplanned, is a significant risk in itself. This may also apply where family members are said to be aggressive or hostile to staff, causing P distress and affecting the staff’s ability to meet their needs. See Luba Macpherson and her concerns regarding the care of her daughter.
Where there are concerns about physical risk This could relate to ignoring essential dietary rules, not following medical instructions, or behaviour which puts P or others at physical risk.
By contrast, in SR v A Local Authority & Anor (2018) EWCOP 36 , the Court refused restrictions on a husband’s contact where there was no evidence that contact posed a risk. The Local Authority were concerned that the husband had made comments that indicated he was in support of euthanasia and exhibited ‘distorted or grotesque thinking,’ (§18) but did not allege that the husband concretely intended to end P’s life. P had remained safe during extensive previous unsupervised contact. It was held by HHJ Buckingham that: ‘Whilst I accept that JR’s comments have given rise to legitimate anxiety on the part of the professionals, I do not consider that there was adequate investigation into the reasons why JR has made such comments and what he understands by the notion of supporting euthanasia, which from his evidence related to the right to self-determination and dignity… I have reached the conclusion that the restriction sought by A Local Authority is neither justifiable, proportionate or necessary.’ (§44 & §46)
Occasionally, assertions are made that P’s family are demonstrating ‘coercive or controlling’ behaviour and this can be promoted as a justification for restricting contact. The Family Procedure Rules 2010 in Practice Direction 12J define coercive behaviour as ‘being an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.’ A recent example is Caroline Grady, who was found to have acted abusively towards her mother – see previous blog here.
Unfortunately, terms like ‘coercive behaviour’ are sometimes used by public bodies in a vague context when family members believe they are simply being protective. Such allegations (and all others) should be properly particularised (i.e. details of specific events provided) and their meanings clarified.
Restrictions must always be in P’s best interests – and the Court will examine their basis
Contact limitations can sometimes arise where providers (e.g., a care home) misinterpret a family raising concern as hostility or risk or adopt a defensive or risk-averse position. This frequently feels like a punishment directed towards the relatives for raising concerns about the care that their loved one receives.
However, when the Court becomes involved, it will examine the actual basis for the restrictions. The Court will not impose or uphold limits as a punitive measure. Any restriction must be justified by reference to preventing harm to P, and must be proportionate to the level of risk. Where the evidence does not support restrictions, the Court will not endorse them and will remove or relax them.
Evidence and scrutiny
A restriction must be capable of being justified by evidence. Evidence might include:
care home records
incident logs
behavioural charts
phone, message or call logs
CCTV
medical records.
Sometimes decisions are made rapidly when concerns arise, before full evidence is obtained. The Court may agree to short-term protective measures while records, CCTV, call logs or incident reports are reviewed, but with the understanding that these are short-term only. Permanent or long-term restrictions will require proper evidence. There is no set form that this evidence should take, but it may involve the records set out above, witness statements, expert reports, etc.
Family members who are parties to proceedings will almost always be able to file their own witness statements and attach evidence to those, if required. The Court order will provide a set date for these to be provided. Family members who are not parties may also be allowed to provide a statement, but this is subject to the Court’s discretion and permission for this must also be contained within an order.
Evidence that can be filed by family members often includes correspondence with the public bodies that demonstrates reasons for lifting contact e.g. birthday cards showing an ongoing, loving relationship, examples of positive contact, etc.
Records
Families (and all other parties) are entitled to ask the Court to order that these records are disclosed in proceedings. They may assist in determining, for example, whether P truly demonstrates challenging behaviour after contact or whether there may be a different trigger. A care home or placement would need an exceptional reason for refusing to release records into proceedings, although it can be agreed for some parts to be redacted if necessary (e.g. if there are references to another resident).
The Court may determine that some records are not appropriate for involved family members to see, and this will be considered in each case. Sometimes an order is drafted that allows only P’s solicitor to see the records. This is almost always the case (in order, it is said, to promote P’s dignity and privacy) but this can be challenged by family members and reasons requested.
If concerns arise around the accuracy of the records, this can be challenged by raising the issues within a witness statement (which parties are generally required to provide at set intervals,, requesting additional records from a different organisation or by asking the Court to order that the author of the records provide a witness statement to explain any inconsistencies or errors. This is subject to the Court’s discretion and reasons/evidence must be provided as to why these courses of action are necessary.
Finding of Fact Hearings
The Court of Protection is also able to order a ‘Finding of Fact’ hearing. This is a relatively lengthy hearing where the Court will hear from relevant witnesses who will be questioned by the other parties. This allows the Court to decide ‘on the balance of probabilities’ (i.e. whether an event is more likely than not to have happened, often simplified to a likelihood of 51% or higher) whether a certain thing happened or not. This is different to, and much lower than, the criminal burden of proof which is ‘beyond reasonable doubt.’
For example, they may make a finding that a relative did or did not financially abuse P, or withhold their medication, etc. The allegation is then either accepted by the Court as fact or, if the finding was not made, the allegation cannot be relied upon further (see Abuse and coercive control? A fact-finding hearing and exoneration, where a relative was exonerated from the allegations made against her by public bodies.)
In essence, the Court may order a Finding of Fact Hearing if the disputed issues of fact are relevant to the decision as to what is in P’s best interests.
In essence, a Fact Finding hearing may be ordered where the issues in dispute are relevant to the decision regarding what would be in P’s best interests.
These hearings are quite rare in the Court of Protection when compared to Child Care proceedings and are only implemented when ‘necessary and proportionate.’ In Nottingham City Council v SV & Anor [2025] EWCOP 37, Lieven J stated as follows:
55. The facts which are sought to be found must have a direct impact on the welfare decisions that need to be made in respect of P. The fact finding must be “necessary” for the determination of those welfare decisions. The fact finding exercise must be proportionate to the issues that need to be determined. In determining proportionality, the likely cost to public funds, the time taken and the impact of delay on P are all relevant considerations.
In that case, it was deemed that it was not necessary or proportionate for a Finding of Fact hearing to take place, as all parties (including P) were in agreement with a proposed plan involving a Contact Plan and a gradual build-up of contact. It was also noted that (1) P would be fully protected by this plan, (2) a hearing would take two days of ‘the very limited time available for Court of Protection hearingsat Tier 2 level,’ and (3) the cost to public funds would be ‘disproportionate’, given all parties were publicly funded.
P’s Representative
Where P is a party to the proceedings, P will have their own solicitor. If there is a paid advocate, Relevant Person’s Representative (RPR) or Independent Mental Capacity Advocate (IMCA), usually the solicitor is contacted and instructed by them, after consulting with P if appropriate. Alternatively, if proceedings are started and there is no person fulfilling the role of Litigation Friend, the Official Solicitor (an independent organisation whose role is solely to promote the best interests of vulnerable parties) will instruct a solicitor themselves.
P’s representative is not instructed by any of the public bodies or the care provider, and is able to raise queries, test assertions, and obtain disclosure. Any evidence is therefore tested and evaluated by a person who has no ties to the public bodies, as well as the Court.
Dependent on the nature of the proceedings (i.e. under which section of the Mental Capacity Act 2005 they have been issued), P may be entitled to non-means tested Legal Aid, regardless of their financial circumstances. In other situations, their eligibility may be dependent on their income, capital and assets.
P’s wishes and feelings are also incredibly important. The Court is able to override these wishes, but they will always be considered under s4(6) of the Mental Capacity Act 2005. P’s views will be obtained by their own representative who is appointed for this reason and they will file a statement setting out their experience and interactions with P. If relatives disagree that P’s views are truly as set out in the statement, they will be able to explain in witness evidence why they feel this and how the accuracy could be improved e.g. if the visit took place without an interpreter present, which resulted in a language barrier.
What families can do if they disagree with contact restrictions
If family members believe a restriction is not justified or is disproportionate, they can:
ask the placement to provide written reasons
ask that relevant records are disclosed
keep a record of visits and their impact
request that concerns are put before the Court for determination
make an application to the Court directly.
Family members are not entitled to see the records of any P who is an adult, regardless of their relationship to P, unless there is a Deputyship or Lasting Power of Attorney for Health & Welfare in place or P has capacity to consent to this. The person in the role of the Relevant Person’s Representative (RPR) is expected to review the Care Plans, but other records are protected. As above, the Court can order disclosure of these records.
If the matter is not before the Court of Protection already, then, subject to Court permission, family members who are not fulfilling the role of RPR, Deputy or Attorney can make applications – they’re not wholly dependent on waiting for the LA or others with formal roles to make an application.
Legal Aid may be available for family members in Court of Protection proceedings about contact and welfare, although this is subject to means testing and examination of the merits of the case.
Conclusion
Contact decisions are complex because P’s Article 8 rights must be balanced with their safety and often it is not entirely clear at the outset of proceedings what is in their best interests.
The Court’s role is to step in when there is disagreement, assess evidence, and determine what arrangements genuinely promote P’s welfare. Restrictions must be necessary, proportionate, and justified. Where they are not, the Court can (and does) refuse or remove them.
Hanna Whitehead is an Associate in the Court of Protection: Health & Welfare Team at Ramsdens Solicitors LLP.
For many people, that question evokes an instant answer. The man at this centre of this case, A, is no different. For him, home is Spain, where he lived for approximately 33 years.
The problem is that he currently lives in a care home in Wales. Despite the fact that a circuit judge has found that A is habitually resident in Spain, and despite the fact that he clearly wants to return to Spain, that may not be an option for him.
Whether that’s an option, and how the legal complexities should be addressed, is an issue for Mrs Justice Morgan. On Tuesday 7 October 2025, I observed a remote directions hearing in this case (COP 20009483). Representing the local authority, Neath Port Talbot County Borough Council, was Victoria Butler-Cole KC. Representing A, via his litigation friend, was Ian Brownhill, who was also joined by Jake Thorold.
In this blog, I’ll explain the background to this case, and draw heavily on a previously published judgment in this case to explain what habitual residence means and why a judge concluded that A is habitually resident in Spain.
Next, I’ll explain some of the legal and practical complexities that Morgan J will need to deal with it at the next hearing.
Finally, I’ll share some personal reflections on what Morgan J described as “the well- recognised emotional human basic wish to go home”.
In this section, the references to other pieces of case law are lifted from the published judgment.
In his judgment, the judge explains that A was born in Wales but lived in Spain for approximately 33 years. He achieved residency there, which is due to expire in 2031. His wife, B, remains in Spain. His son, C, lives in South Wales.
In April 2024, C flew to Spain and A returned to Wales with him. C is unable to care for A at home, who now resides at D Care Home. He is unhappy there and wants to return to Spain.
The question for the court at this stage was to determine A’s habitual residence. At §8 of the judgment, the judge explains that “habitual residence is a question of fact to be determined by a wide range of circumstances of the particular case. It is not a legal concept”.
Knowles J, in Health Service Executive of Ireland v IM & Anor, set out seven key principles for determining habitual residence at §29 of her judgment. These principles include identifying the appropriate legal test as habitual residence being the “place which reflects some degree of integration by the child [and in this context adult] in a social and family environment”, the importance of the person’s state of mind, and the stability (rather than permanence) of the residence.
b)The expression “degree of integration” is an overarching summary or question rather than the sole, or even necessarily the primary factor in the determination of habitual residence. The court’s focus should not be narrowed to this issue alone as a question of fact [68] and [72].
Importantly, “the court must look not only at the terms of the authority conferred upon the person taking the decision [to move someone who lacks capacity] but also at their motives for taking that decision” (§32). In addition, the fact that the person thinks it is in P’s best interests “may not suffice to prevent the move from being wrongful”.
Schedule 3 of the Mental Capacity Act 2005only makes provision for the Court of Protection to exercise its power if an adult is habitually resident in England and Wales, if the adult has property there, the matter is urgent, or the protective measures are temporary or limited in effect to England and Wales. An adult will be treated as habitually resident in England and Wales if their habitual residence cannot be ascertained, they are a refugee, or they have been displaced as a result of disturbance in the country of his habitual residence.
Taken in the round, HHJ Richard Miller concluded that A’s habitual residence is in Spain (see §13 of the judgment). The judge considered that A did not have any intention to return to live in Wales when he had capacity, was integrated into life in Spain and had chosen to live there, he owned property in Spain, had a business and bank accounts in Spain, received healthcare in Spain, had obtained residency in Spain, and did not choose to leave Spain.
This meant that B and C “had no lawful authority to move A to Wales. He had refused to sign a lasting power of attorney […] His permanent removal from Spain was likely to be contrary to his wishes” (§14). However, and for the avoidance of doubt, “B and C did not act in bad faith” (§15).
In concluding the judgment, the judge commented that “consideration should be given to the appropriate Tier of judiciary to which this case should be allocated in future”.
Clearly consideration had been given to this because, when I observed the hearing in October, the case had been allocated to Mrs Justice Morgan (a Tier 3 judge).
2. The October hearing: Legal complexities and fitness to fly
Matters had moved on since the judgment. Counsel for the local authority told the court that enquiries have been made as to what options are available to A in Spain: “although he is said to be fit to fly with assistance there are no viable options from in Spain because he wouldn’t be able to afford privately funded care and the process for him to access publicly funded care is expensive …. It seems to us there isn’t any realistic way of him going back to Spain and unfortunately there aren’t any other care homes in the vicinity or close to his son. He is going to have to stay in his present care home even though he objects”.
This raises tricky technical and legal questions but, at this stage, the judge did not want to be side-tracked by this. She recalled a previous hearing (which I didn’t observe) in which the family had spoken about the situation in a “very affecting way….that is familiar to anyone in a family who found themselves navigating their way through inevitable deteriorating dementia…I would not want to be lost in what you [Counsel for the local authority] correctly identify as the technical and practical complexities.”
One of those complexities is under what legal mechanism the Court of Protection can authorise A’s deprivation of liberty in the care home. Another is that A has expressed a wish to go home to Spain but has also told his legal representatives that he does not want to return to Spain for an assessment or even to live in a care home. He wants to return to live at his previous home (somewhere that his wife told the court he has not lived for some years).
The judge was also keen to get into the issue of whether A is actually fit to fly. Counsel for A told the court that, “[C, A’s son] [says] his father can’t navigate through an airport, can’t navigate onto an aircraft…I think the medics have taken a narrow view on the concept of fitness [to fly] and one concern is the emotional impact of this man going onto an aircraft”. In other words, A may be medically fit to fly, but that doesn’t necessarily mean that the process of flying would be safe or in his best interests.
The judge therefore directed that further evidence about this matter be filed in time for a hearing in the first week of December. At this same hearing, the court will consider the legal complexities, and (hopefully) come to a conclusion as to A’s best interests.
3. The wish to go home
It seemed to me that this hearing was always intended to be a brief directions hearing. Indeed, given that the parties seemed to be in broad agreement as to the way forward, I got the impression that Morgan J had kept it in the list so she could reassure A’s wife and son that she was ‘keeping an eye on things’.
However, I was quite struck by the way that the judge addressed A’s expressed wish to go home. Here’s a brief exchange from my notes (we’re not allowed to record hearings so this is unlikely to be verbatim).
Judge: May I just ask you [Counsel for A] this. I don’t think I’m conscious of having seen a note of the visit yesterday. I wanted just to canvas this with you. The situation about wanting to go to Spain as expressed, and very firmly not wanting to go throughthe process of going to Spain for the purpose of being assessed for something that is not wanted – I put that inelegantly – is not a straightforward linear process for somebody whose thought processes, as I read the evidence, are affected by his illness. Are you able to help me with the link that [A] made in his head with the consequence of not wanting the process, if he still wanted the end result that is only possible by that process?
Counsel for A:My Lady I can’t and I don’t want to give evidence or offer a clinical opinion…I wonder whether it’s that straightforward desire to return home as we see so often in people with dementia. [A]’s home is Spain and I do wonder whether that’s at the core of what he’s saying…the level of his distress has not been as consistent but he has always been consistent about his wishes and feelings
Judge: And you’re not inviting me to make any further or other directions. I should safely treat it as the well-recognised emotional human basic wish to go home, in circumstances where home is understood and recognised as Spain?
Counsel for A: That’s right.
This has lingered in my mind far beyond the conclusion of the hearing.
What I mean when I say “home” can be contextual. When I was in Amsterdam for a few days in October, and I said at the end of our first day “let’s go home”, I didn’t mean back to the UK. I meant the apartment in which we were staying.
At the end of our visit, and when we were waiting in the airport, I said something like “I want to go home”. In that context, I did mean that I wanted to go back to the UK. In fact, I meant my own home, where I live. But as anybody who has ever flown into Manchester Airport will know, the process isn’t quite as fast as you’d hope, and getting to my own home was going to take some time.
This shifting meaning of home need not be contextual. I still refer to my parents’ house as home even though I haven’t lived there for years. In that instance, home isn’t the place that I live but a place with strong emotional connection (and I’m lucky enough that those emotions are positive ones).
If, hopefully a long time in the future, I find myself diagnosed with dementia and living in a care home, I rather suspect that any request to go home will have two meanings. In the first instance, it’ll probably mean wherever it is that I’ve made my home. But there’s a strong possibility that it’ll also mean my childhood home, where I lived for eighteen years, and where I first felt both physically and emotionally safe.
This strength of emotion has also been picked up on by the travel writer Jan Morris. At the very end of Trieste and the Meaning of Nowhere (my favourite of her prodigious output), she writes movingly about the places that have meant the most to her: “As for me, when my clock moves on for the last time, the angel having returned to Heaven, the angler having packed it in for the night and gone to the pub, I shall happily haunt the two places that have most happily haunted me. Most of the after-time I shall be wandering with my beloved along the banks of the Dwyfor; but now and then you may find me in a boat below the walls of Miramar, watching the nightingales swarm”.
Home is a physical place but can also be understood as a physical representation of emotion. In A Room of One’s own[ii], the political theorist Iris Marion Young makes the point explicit. Home, she says, is not just a place where we dwell “among things” but it is also a preservation of those things and those meanings. While it need not be a whole building (and here she was specifically concerned with nursing home) there is a need for “some individuated dwelling space […] a space in which one dwells among personally meaningful things”.
For many people with dementia, the emotional connection with home remains long after the dwindling of the memory that the physical space is no longer accessible. It can be distressing when care staff do not understand or are perceived of obstructing attempts to return to that place. But none of this changes the desire to be home, and none of this changes the possibility that the care home can become a place that one might see as home.
I know I’ll be unable to observe this hearing when it returns to court in the week commencing 1st December 2025. It sounds like A will not be able to go to the home he desires. But I do hope something can be done to turn wherever he is living into somewhere he might consider a home.
Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He is on LinkedIn, X @DanielClark132 and Bluesky @clarkdaniel.bsky.social.
[i]At §11 of HHJ Richard Miller’s judgment, this case is given the neutral citation number [2014] EWCOP 4. That is incorrect. The actual neutral citation number is [2014] EWCOP 43.
[ii]This is my favourite of Young’s essays, and in some ways can be seen as a continuation of House and Home (another essay by Young). Here she agrees with other feminist theorists that home is often constructed at women’s expense because of an expectation that they nurture the home so their children and husbands can develop their own goals and subjectivities. Home can also be a locus for violence. But she nevertheless disagrees that home cannot be a useful and meaningful concept. In both essays she suffuses philosophy with personal experience (in House and Home she discusses being removed from her mother’s care; in A Room of One’s Own she discusses her father-in-law’s move to a nursing home following a stroke).
The protected party (P) is a man with autism and a hoarding disorder. The Local Authority has deemed his property in need of urgent clearance and attempts to achieve this previously have not been successful because P has remained at the property and ‘progress was too slow to be meaningful. He resisted the removal of certain items and progress was extremely limited.’ At a hearing last month, the judge was asked to authorise P’s removal from his home – either by agreement or by force – to enable them to clear the property, assess the amount of work that is required to make the place habitable, and complete any necessary remedial works. At that hearing, the local authority made an application for a two-stage order: the first stage was for P to be “encouraged” to leave the property. Stage 2, contingent on Stage 1 being unsuccessful, was for authorisation of removal with restraint. The judge authorised only Stage 1 at the last hearing. (see Hoarding and best interests challenges for the Court of Protection by Claire Martin).
There was one feature of the 7th October 2025 hearing which was (intentionally) omitted in Claire Martin’s report of it and which we feel is important to report on now. There were actually two different versions of the judge’s order of 7th October 2025 – one for the public bodies (which referred to Stage 2) and one for P and his brother (which did not mention Stage 2). Both versions were discussed in a public hearing, and there was nothing in the Transparency Order preventing the observer from reporting this. Since the creation of two different versions of the order was clearly an attempt to withhold certain information from P (and his family), Claire (the observer) and Celia Kitzinger (the blog editor) decided together to wait until after P had moved – or been moved – out of his house to report on this. Celia says: “In effect, the court relied on us being responsible court reporters – but it would be wise to bear in mind in future that with an observer present in a public hearing, and no reporting restrictions to prevent disclosure, there is always a risk that information might be published and discovered by P and his family, contrary to the intentions of the court. I urge the court to amend the Transparency Order in cases like these”. She also comments: “I am not sure how the ‘two versions’ of the order really works in any event, given that orders from public hearings are themselves public documents (COP Rule 5.9). I would previously have advised family members that (unless they are specifically told otherwise) an order from a public hearing would be complete and accurate – but now I have to contemplate the possibility of redactions, even in orders from public hearings. I’m not sure this was properly thought through”.
Following the hearing observed by Claire, Stage 1 “persuasion” was attempted, but P refused to leave his home. Subsequently, Stage 2 was approved, on 14th October 2025 (we think without a publicly listed hearing). However, in the event, P left his home on the 20th October 2025 without the use of the authorised restraint plan.
The next hearing we saw publicly listed was on Monday 17th November 2025 (a bit sooner than had been anticipated, according to Claire Martin’s blog post). It was at 11am before Tribunal Judge Kaufman, and that is the one I observed and report on below.
Hearing of 17th November 2025
At the hearing, P was present, in the same room and on the same screen as counsel representing him (via the Official Solicitor), Mary-Rachel McCabe. The Local Authority (London Borough of Brent) was represented by Alexander Campbell. (P’s brother appeared not to be present at this hearing.)
For the benefit of those observing, the Local Authority provided an updated background since the previous hearing when the order for removal with restraint was approved.
On 20th October 2025, P moved out of his home without the use of restraint, and into a hotel in the local area (for the purposes of this post, let us call it Hotel A), which he was familiar with from a previous stay. This move had gone well – which, as the Judge clearly expressed toward the end of the hearing, was the result of the consideration and time put into the process in the previous two hearings.
However, the placement at Hotel A has had to come to an end. The reasons for this were not made entirely clear, the Local Authority referred only to ‘insurmountable logistical difficulties’ regarding payment.
As a result, P has had to move again, into another local hotel (I will call it Hotel B) at his own expense. The Local Authority has been searching for a suitable property since then and has now found a flat available for P’s use – but it is some distance away in another area of London. They have kitted this out with towels, pillows, a microwave and other items to make it habitable, and it has been available since 6th November 2025.
The Local Authority wants an order to move P into that flat, with the same transition plan in place as previously authorised. This includes the multi-stage order from verbal encouragement at first, progressing to restraint subsequently.
The Official Solicitor opposed this application as the flat is not in P’s local area, and he would find such a move destabilising. In addition, the property only has a shower, and P’s particular needs require use of a bath. Additionally, the Official Solicitor opposed the use of restraint for this move as disproportionate.
The Local Authority offered a number of arguments for why this move, although not ideal, would be in the best interests of P:
This accommodation is preferable to that of a hotel as it is more secure, particularly as P is currently self-funding at Hotel B. There is, therefore, a risk of a financial need to end the stay, or a risk that the property will become fully booked requiring P to leave at very short notice. At that stage and urgency, the Local Authority may find it difficult to find any suitable accommodation, or to purchase needed items to make the accommodation acceptable for P. The Local Authority is seeking more reliable accommodation.
There are also benefits to the specific property the LA has located. As a private dwelling, it is a more personal setting than that of a hotel. It will allow P to live independently as it has better facilities, such as a food preparation area and microwave.
If the Court agrees to order the move to the flat, the Local Authority will continue looking for a more suitable property in P’s local area. The Local Authority did recognise that for P it would be preferable to avoid multiple moves but stated that this is unavoidable as there is nothing better currently available.
The Judge asked Counsel to specifically address the evidence from the Mental Health NHS Trust (although not represented at this hearing, they were involved previously and both the Judge and Counsel for the Official Solicitor referred to and quoted from a written report provided by them) which stated that P’s specific needs meant moving out of the local area would be challenging.
LA: ‘If we had found somewhere in his local area, that would be what we were asking the Court to authorise today. But there was nothing suitable in the area. The evidence provided by the Trust recognises the benefits of P remaining in his local area, and whilst the Local Authority would not dispute these, the evidence does not suggest that living in a different part of London would be an absolute barrier to receiving the ongoing support and care. It may be more difficult but, in my submissions, those do not outweigh the benefits of more secure accommodation.’ [Counsel for the Local Authority]
The Local Authority emphasised that if P had to move out of Hotel B urgently, the accommodation found at that point may be even less convenient: this was a significant risk they wished to avoid.
Then the Official Solicitor provided the following reasons for why the move is unsuitable for P:
The primary reason is location. The property is a signficant distance from P’s local area. In fact, when looked up by the Official Solicitor, it is over an hour and 15 minutes on public transport – depending on the route – requiring two or three changes. P relies on local individuals, shopkeepers and his GP. He requires the stability brought by consistent routines. He has lived in the local area for most of his life.
Multiple moves are not advisable for P. Counsel for P stated: ‘P requires stability as much as is realistically possible. That position also reflects the conclusions of the doctor who diagnosed him, who stated a need for ‘scaffolding and structure.’ In other words, stability is important.’ The move from his home to Hotel A was possible due to his clear involvement in the process, careful planning and the fact the Hotel A was already known to him and in his local area. This is not true of the other property.
Additionally, whilst this is a less important factor, P has been unable to tolerate having a shower throughout his life and requires a bath.
The Official Solicitor recognised that asking the Court to effectively authorise the continued payment of Hotel B out of the pocket of P was an ‘unusual’ one, but pending the identification of more suitable accommodation, this was preferred. The Local Authority would then have to continue to search, and it was requested that the order include a particular responsibility of the Local Authority to update and communicate regularly with the Official Solicitor about available accommodation to ensure P could be involved in this process.
Additionally, the Official Solicitor was keen to request that restraint be removed from the order as an option for removal. The use of restraint had been discussed at length with regard to removing P from his own property urgently. However, Counsel described it as ‘disproportionate’ outside of that urgent and particularly difficult context. The proposed move from Hotel B is significantly different, and as it is a private hotel, there are some limits to the authority the secure ambulance service has to force entry, which had not been properly considered by the Local Authority.
Judgment
The Judge apologised to P for the disjointed and unsettled process of moving him out of his property. She expressed concern that these circumstances would not be putting him in a positive position to move forward from the clearance of his property. However, beyond answering yes or no to a question asked by the Judge regarding his planned attendance at an upcoming important appointment, P did not make any oral contributions expressing his own views at any point in the hearing.
The Judge also re-emphasised how unfortunate additional or gratuitous moves are for P and recognised that whilst hotel accommodation is deficient in many ways and it is concerning to think P will ‘remain in hotel accommodation for a long time’, the Local Authority plan itself involves possible further moves beyond the flat now under consideration, if a more suitable property is found.
The judge found, in conclusion, that the risks of residing in a hotel were not particularly weighty and she did not authorise the move to the property proposed by the Local Authority.
The Judge did order that the Local Authority file evidence about the continuing search for an appropriate property and must keep the Official Solicitor updated as to the efforts and outcomes of the search. This will be discussed at the next hearing.
Costs application against the Local Authority
Additionally, the Official Solicitor had made a costs application in the week prior to the hearing, for the costs arising from the additional work resulting from the failure of the placement at Hotel A.
Timelines for the Local Authority to respond to this cost application were set in the course of the hearing. The Local Authority wanted until the morning of Friday 21stNovember to respond to the application (over a week), on the basis that the individual who had received it was out of office at the time and their legal and social work teams were to be focused on finding accommodation for P. The Official Solicitor requested the Local Authority response and evidence at the end of the working day on Thursday 20th November. As stated by the Official Solicitor, these additional few hours would be important to ensuring they could respond fully. The Judge gave the Local Authority the timeline they requested, with the explicit direction that she did so to provide them additional time to make ‘extensive effort’ to find suitable local accommodation for P.
The application is set to be discussed in full at the next hearing, which was last confirmed to be listed for 11:00am on 25 November 2025.
Virginia Gough is a student at City Law School, currently studying the Bar Vocational Course following completion of the Graduate Diploma in Law. She is pursuing a practice in Family Law and Court of Protection. Her interest in mental capacity law and the specific challenges of advocacy for vulnerable individuals stems from her volunteer work as a Social Security Tribunal Representative, where she represents clients appealing decisions on disability benefits. She is a new contributor to the Open Justice Court of Protection Project, and this is her first blog post. You can connect with her on LinkedIn.
By Sandra and Joe Preston, Lorraine Currie, Alison Golding, Eleanor Tallon, Hilary Paxton, Mary Kadzirange, and Lucy Series (with an introduction by Daniel Clark), 21st November 2025
We’ll publish more about the case once the judgment is handed down, but that’s unlikely to be before early 2026 at least. While we wait, we thought it would be interesting to hear what people who had watched the live-stream or the recordings would decide if they were a Supreme Court judge. Shortly after the hearing, we issued an open call for contributions to answer that very question.
The answers we received to this question have been presented in no particular order, though I have tried to directly juxtapose responses that stand in contrast to one another. This approach brings to the fore how much variety there is. That’s to be expected because of the considerable diversity of people who have contributed. Where there are similarities, that’s entirely coincidental.
Open justice means that members of the public have access to courts and can watch hearings. That means the observers form opinions about what they see, opinions informed by their own unique expertise and knowledge base (professional and personal).
The question before the Supreme Court was whether the proposal from the Attorney General for Northern Ireland was compliant with the Strasbourg jurisprudence concerning the proper interpretation of Article 5 of the European Convention on Human Rights. For the most part, the contributors to this blog have chosen not to answer this question, and instead tend to focus on the broader issue of what they do (and don’t) want to change about DOLS.
First, Sandra and Joe Preston explain their view that the current approach to DOLS should change because, contrary to the view expressed by the Charities, repeated DOLS assessments are intrusive.
Second, Lorraine Currie says that she would “ease” the impact of Cheshire West but that, in her view, this ought to be done by a change to the Code of Practice rather than in the Act itself.
Third, Alison Golding engages in close interpretation of Article 5, and makes the case that there should be a high bar for assessing a person’s “contentment” with their living arrangements but a low bar for identifying an objection.
Fourth, Eleanor Tallon considers the Convention on the Rights of Persons with Disabilities. She thinks that the acid test should remain as-is but nevertheless thinks that the question of what being free (or not) to leave means in the context of the person living in their own private home or with family.
Fifth, Hilary Paxton considers the role of external scrutiny, with a particular focus on the role of visitors.
Sixth, Mary Kadzirange discusses the relationship between safeguarding and deprivations of liberty.
Seventh, Lucy Series reflects on the passage of time since the hearing in Cheshire West (which she observed). Ultimately, she thinks that the robust safeguards needed for valid consent should be provided through legislation.
1. DOLS and intrusive assessments
By Sandra and Joe Preston
Three charities (Mind, Mencap and the National Autistic Society) acted as interveners in the Supreme Court case, represented by Victoria Butler Cole KC. At one point, in response to the Secretary of State’s observation that families find repeated DOLS assessments intrusive, the advocate said that the charities she represents “had not found this to be an issue”. This has certainly been an issue for us.
Joe’s mother has Alzheimer’s. Until recently, she’s been living in a care home where she’s been safe, cared for and generally content. Some of her behaviour was treated as “objecting” including saying she wanted to go “home” (she meant to the town where she lived as a small child), and occasionally banging on windows and doors (out of frustration at having to wait for staff to escort her inside and out). We both believed her objections were to the situation she found herself in – with diminishing cognition, and she was generally happy. The only thing that caused her real distress was the Deprivation of Liberty process itself – when someone from the Supervisory Body took it upon themselves to interrogate her as to where she would like to live. This could unsettle her for days at a time.
The first DOLS authorisation was issued in May 2021, valid only for three months “to ascertain whether P’s behaviour constituted an active and consistent objection to her placement”. This was the beginning of a period of short-term DOLS assessments involving 23 visits from 16 different officials and a s.21A court hearing, before remaining in her placement was determined to be in her best interests. We wrote about this in our previous blog post (A court hearing and 23 visits from 16 officials: Family doubt that ‘Deprivation of liberty’ is working in the public interest). We hoped that, after this court hearing, and a carefully worded order from the judge, that would be an end to repeated and disruptive short-term DOLS assessments and authorisations for her. Sadly this was not to be.
Joe’s mum has recently been admitted to hospital following a series of falls and is still there as her previous care home would not have her back. The hospital brokerage team has finally identified a nursing home that will take her and provide 1:1 support which she is currently assessed as needing because of her falls risk, dementia and delirium. On the DOLS front, the one that was extended at the CoP in June is now void and the Court Order which refers to her former care home is not quite the document it was in June. The hospital has put their own DOLS in place to cover her lengthy stay there, and as soon as she is discharged to the new nursing home she will require another DOLS being authorised. She is being placed there under the D2A process, so possibly only for 4-6 weeks, but it is too soon to second guess whether she will then need another DOLS or not.
We are leaning towards the AGNI/DHSC view and would question whether those with advanced dementia are actually deprived of their liberty under Article 5 – surely it is their illness that has deprived them of their liberty and if they require 1:1 care to keep them safe from harm and have no alternatives but to live in nursing placements identified for them by an Integrated Care Board do they need as many authorisations as Joe’s mum is now facing? She finds them distressing and intrusive, and as for us, we certainly don’t want our last days/weeks/months together taken up with DOLS bureaucracy, but instead to spend what precious time we may have left with her at the end of her life. In our view, DOLS for Joe’s mum is not just a waste of public money, it also actively causes harm and diminishes the quality of our family life.
Joe and Sandra Preston are the son and daughter-in-law of a P who was involved in Court of Protection proceedings. They can be contacted through the project email on openjustice@yahoo.com.
2. “I do not see how I could reach a decision”
By Lorraine Currie
I’ve been asked the question what would I decide to do if I was a Supreme Court judge in the Northern Ireland reference about valid consent.
From observation of the hearings, and putting myself in their shoes, rather than my own, I simply wouldn’t have enough information on which to decide anything. So many options were presented beyond the original reference e.g. Cheshire West was re-examined but not in any great detail, the question of valid consent inferred by the persons wishes and feelings was discussed, but so many relevant players were not represented. We heard nothing from the Dementia charities, we heard nothing from the likes of Social Care futures or a Gloriously Ordinary life who may have had a different take. We didn’t hear actual case studies of those negatively impacted by the repetition of DoLS and we didn’t hear from local Councils or DoLS Leads who could explain the burden of DoLS not only on systems but on the people at the heart.
Without a full and complete re-examination of DoLS in 2025 I do not see how I would reach a decision.
I sense that some of the Judges were definitely inclined to limit the impact of Cheshire West whilst others were totally oblivious to its reach and I would be one of those who would like to limit its reach.
I would probably allow the interpretation as requested by the Attorney General for Northern Ireland but in doing so, by in fact allowing a policy change in the Code not in the Act, I would be fully aware that this would open the doors to further challenges reaching the Supreme Court in regard to this interpretation.
I would also be concerned that (as a Judge) I would have no role in ensuring the necessary safeguards were in place. I would however see this as an opportunity to promote rights but I would then want to be fully involved in setting up a system of safeguards (in my normal role). It then might be that the easing of Cheshire West offered by the interpretation actually results in a second parallel and complex process of alternate safeguards.
Lorraine Currie is now a freelance Mental Capacity Consultant. She has over 30 years Local Authority experience, is a qualified social worker and in 2021 received the LGC Award for Outstanding Individual Contribution. Lorraine provides extensive training and is an Associate for the West Midlands Association of Directors of Adult Social Services (WMADASS) working on DoLS. Lorraine is on Bluesky as @lorrainecurrie.bsky.social.
3. Interpreting Article5
by Alison Golding
Firstly, Article 5(1)(e) does not apply to a person who is unable to make any expression of wishes through any means, such as a person in a persistent vegetative state, as their situation does not reach the criteria set out in the universal test in Guzzardi for there to be a deprivation of liberty: the tests in Guzzardi depend on the recognition by the subject that they have, even if only at a most minimal level, either bodily autonomy or the right of bodily autonomy. (Only a mental element is relevant here: a person with e.g. locked-in syndrome who is able to communicate has the ability to recognise and consent or object to their living circumstances and so be subject to restraint.)
Secondly, Article 5(1)(e) only applies if a person is “of unsound mind”: a person who has legal capacity to consent, or not to consent, to their living arrangements is not of unsound mind for the. purposes of Article 5(1)(e). This analysis explains Storck, Stanev and Mihailovs: a valid refusal or lack of consent excludes any lawful power for national authorities to confine in accordance with Article 5(1)(e), confirmed by the use by ECtHR of the legal term “consent”.
The test for whether a person can validly grant or refusal consent so as to take them outside the scope of Article 5(1)(e) is separate from a general test as to whether a person is “of unsound mind”, and depends on that person’s living arrangements and on whether they are consenting or refusing. A child living at home with caring parents, on reaching adulthood, may be able to relatively easily express by their manner and expressions that they are validly consenting to that arrangement. (In Cheshire West, the manner and expressions of MIG, living contentedly in the closest available arrangement to a caring parental home, might be taken to meet this standard.) The barrier for a person in an institutional arrangement expressing contentment to that arrangement is likely to be subject to a higher barrier for that expression to be treated as consent, and the barrier for their expression of objection to be valid lower.
Where the above analysis leads to a person not being within the safeguards of Article 5(1)(e):
(a) they are protected from DOL by the application to them of the safeguards of Article 5 as a whole,
(b) they still have the benefit of the protections in Articles 2 to 4 and 6 to 12, for which national protections other than DOL procedures may be required.
Alison Golding qualified as a Solicitor in local government. She then worked as a legal adviser in various UK Government Departments for 25 years until early retirement.
4. Valid Consent to Confinement through Wishes and Feelings: What Would You Decide?
By Eleanor Tallon
The requirement to provide information to enable a person to make an informed decision is a definitive characteristic of consent. The person’s right to withdraw consent without adverse consequences is another key factor. Therefore, my initial concern would be that changing the meaning of valid consent (in the context of confinement) risks placing health and social care providers in a state of uncertainty about the meaning of consent.
This could also erode responsibilities to support decision-making and gain informed consent for care and treatment. Further complexities, against a backdrop of uncertainties and misapplication of the MCA and DoL processes, would not be helpful.
The Attorney General claims that accepting positive wishes and feelings as valid consent would support the principle of Article 12, Convention on the Rights of Persons with Disabilities (CRPD), the right to enjoy legal capacity on an equal basis. Yet, the person’s wishes and feelings would only be accepted as valid consent if they agree to the arrangements. If the person subsequently objects, they would not be free to withdraw consent; they would remain objectively confined and deprived of their liberty.
To truly promote legal capacity, the person’s will and preferences would determine the decision, as far as that is practically achievable. This would apply in all areas of the person’s life so that their home and daily experiences reflect who they are and what they want, regardless of decision-making capacity. It’s not about constructing a fantasy that the person has legal agency to consent to their confinement, while removing that as soon as the person acts in opposition to those who really hold the power.
While I absolutely support the aim to embed the CRPD on the domestic level, it seems to me that this can be done in more effective ways than changing the definition of valid consent to confinement, such as through legislative reform, and incorporating human rights into practice cultures (focusing on the Reach Standards, Social Care Future and Gloriously Ordinary Lives as guiding initiatives is a good starting point).
Secondly, I would question how valid consent to confinement can be given by wishes and feelings. The person’s happiness in relation to their confinement would be difficult to quantify, and there are real risks of misinterpretation, susceptibility, coercion, and misrepresentation by those responsible for the person’s care. If the safeguards are removed because the person is deemed to be ‘happy’, as it stands, there is no clarity on what alternative safeguards would be available and no guarantee that the individual’s right to liberty would be protected by any other means.
It is not uncommon for the presumption of capacity to be used defensively by services and professionals to divert responsibilities. Similarly, the person’s proclaimed ‘happiness’ could be used as a mechanism to avoid the additional administrative and resource burdens for providers and authorities, which are warranted when the person meets the threshold for Deprivation of Liberty (DoL).
In terms of the acid test for confinement, as defined in the ‘Cheshire West’ judgment (2014), I would advocate that this remains. It provides clarity for care providers when identifying a confinement. If both arms of the acid test are met and there is no valid consent, this would trigger a referral for assessment under DoLS or the judicial authorisation process. A more nuanced evaluation will then be carried out by the Best Interest Assessor or the Court of Protection, while considering the concrete factors outlined in Guzzardi v Italy (1980) to establish whether a person is objectively confined.
However, I would urge more consideration around the second arm of the acid test, which is often misinterpreted. Not being free to leave is conflated with restrictions on leaving in the immediate sense (i.e., locked doors). Yet such restrictions would fall within the scope of continuous supervision and control. The relevant question to determine the second arm of the acid test is whether the person is unable to leave permanently, to live elsewhere.
Often, care arrangements within institutional-type settings will satisfy the objective test for confinement. Many people in care homes or hospitals are not free to live elsewhere because their care and residence are inextricable. If that is considered the legitimate, least restrictive option to meet their needs, then it can be deduced that they are not free to leave. Yet there needs to be a comprehensive appraisal of whether a person who lives in their own private home or with family is not free to live elsewhere. This type of scenario is the most disconcerting when considering the acid test for confinement, and I think it’s worth more thought around what being free to leave means in these contexts.
Eleanor Tallon is an Independent Social Worker, Expert Witness, and Best Interests Assessor. Eleanor is also an ESRC-funded Doctoral Training Pathway (DTP) student at the University of Birmingham. Her research focuses on the application of the Mental Capacity Act (2005) in private brain injury case management. Eleanor can be contacted via email eleanor@mcaprofessional.co.uk or through her website mcaprofessional.co.uk and found on LinkedIn or X(Twitter) @Eleanor_Tallon and Bluesky @eleanor24.bsky.social.
5.Looking forward to LPS
By Hilary Paxton
Where care and support works best, the provider would not be acting unilaterally. Any arrangements should be part of a care and support plan and be developed in the best interests of the person, based on a needs assessment and their preferred outcomes, and their wishes and feelings on how best to achieve the outcomes.
Whilst LPS is not yet in place and may be subject to further development, I support its aim to embed consideration of liberty and any arrangements that might affect it within a well-thought through response to needs etc. We will of course have debates about skill levels and capacity, but that aim should mean that the provider is only one agent in all this. This is about promoting wellbeing, including the prevention of abuse and neglect. External scrutiny is crucial to ensure there is then no abuse of power by an organisation or individual staff. External visitors (family, advocates, other professionals, clergy, visitors with pat dogs, theatre groups, singers, etc) to settings where care and support are provided all have a part to play to speak up if they see anything that appears untoward. This is not limited to people who may have an authorised deprivation of liberty. It is particularly important for people who do not have any visitors.
We of course, want to get the DoLS and the Court of Protection authorisation bit right, but this is only part of the story for people affected.
Hilary Paxton is a senior advisor at the Local Government Association.
6. Reflections on the post-Cheshire West landscape
By Mary Kadzirange
UKSC/2025/0042 has profoundly underscored the difficult and often uncomfortable tension that persists in the post-Cheshire West landscape. Whilst Cheshire West was grounded in the protective intent of Article 5 of the European Convention on Human Rights (ECHR), seeking to safeguard individuals from arbitrary deprivation of liberty, it has simultaneously placed professionals, families, and the state in an enduring ethical and practical dilemma. It sharpened the focus on protecting vulnerable individuals, yet in doing so, it expanded the scope of what constitutes a deprivation of liberty to such an extent that the boundary between necessary protection and unjustified restriction has become increasingly blurred. This tension is not merely theoretical; it is felt daily by practitioners striving to uphold both autonomy and safety, often within complex and emotionally charged situations.
AGNI highlights the continuing struggle to draw principled and workable boundaries between the state’s duty to protect and the individual’s right to self-determination, privacy, and family life. It raises difficult questions about what true liberty means for people living in care settings, and whether the systems designed to safeguard them have become too rigid or bureaucratic to respond compassionately and proportionately to real-life circumstances.
In practice, the challenge is striking a balance that neither leaves people unprotected nor subjects them to unnecessary intrusion or control. Safeguarding systems must evolve beyond compliance and formality to reflect nuanced human realities. If deprivations of liberty within homes or community settings are not properly authorised, people remain vulnerable; yet excessively procedural approaches risk alienating families and exhausting professional goodwill. Perhaps the path forward lies in proportionate reform, that ensures flexibility, transparency, and humanity, guided by holistic person-centred safeguarding legislation and processes that are further informed by future judicial clarifications, such as the anticipated 2025 Supreme Court deliberations, to recalibrate the delicate equilibrium between autonomy, protection, and proportionality.
Mary Kadzirange is a Registered Mental Health Nurse and a practising Best Interests Assessor She is the Mental Capacity Act lead within West Yorkshire Integrated Care Board’s safeguarding team, and is also Chair of the West Yorkshire ICB Race Equality Network.
7.Being careful what you wish for
By Lucy Series
Twelve years ago, on a grey October day in 2013, I listened to the first day of the Cheshire West Supreme Court and hearing (P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor). The courtroom was full of familiar faces from the world of the Mental Capacity Act 2005. The hearing was, as a barrister later commented, like a seminar with the brightest minds on one of the most challenging questions in mental capacity law: when is a person, who is not confined in a traditional ‘institution’, deprived of their liberty?
I enjoyed watching Lady Hale interject to correct barristers when they had misunderstood some aspects of mental capacity law and the underlying issues. I enjoyed conversations in the lunch break about what would convince the court that the current situation was untenable, that it was unacceptable that a man who had broken down the door of his care home to try and escape it, a woman who had capacity and was asking to live in her own home, and people like MEG and P in Cheshire West, who were being physically restrained and given sedating medications, were not considered deprived of their liberty when their behaviours indicated they were resisting aspects of their care.
Five months later I sat in my office with my friend and colleague at Cardiff University, Professor Phil Fennell[i], reading the Supreme Court’s judgment. We read Lady Hale’s ‘acid test’ of deprivation of liberty: a person is deprived of their liberty if they are subject to continuous supervision and control, and they are not free to leave, regardless of whether it is ‘normal’ for a person with their disability, or whether it is in their ‘best interests’. ‘A gilded cage is still a cage’. Deprivation of liberty must have the same meaning for a disabled person as a person without a disability, because this is the essence of universal human rights. To say otherwise would be to discriminate and deny safeguards that others would be entitled to in their situation. Phil turned to me and said ‘it’s a case of be careful what you wish for’.
Phil has always been wiser than me. This is what I wished for, more or less. I had worked in the kinds of places that P and MEG were being cared for, and some of what I saw was horrifying. I worked with an autistic man with learning disabilities, whose carers took him for walks with a rope around his waist – yet there seemed to be no ‘alarm bell’ that we could ring. The regulator had brought it up in reports, his social worker must have known, and yet it continued. People were confined to their rooms. Sedation, restraint and violence were routine, and went both ways between staff and residents, and between some of the residents themselves. Many residents seemed unhappy, even if they could not clearly articulate this because they did not use words to communicate. Not everywhere was like this, but when I read about P and MEG, this resonated.
So, what did I wish for when the Supreme Court revisited Cheshire West in Re Attorney General’s Reference? That the justices would have the level of understanding of mental capacity law, of the realities of social care, and the egalitarian human rights values that Lady Hale and other justices brought to Cheshire West. I would say that what I saw of the hearing – the first day, online – did not fill me confidence that this is the case. I feel quite worried, if I am honest, about how this will end. I was part of a brilliant WhatsApp group organised by the Court of Protection Open Justice Project – we watched the hearing together and have continued to discuss it. We share an anxiety that this ruling will leave people without the meagre safeguards the law currently entitles them to. Safeguards against inappropriate placements, excessively restrictive practices within settings, measures that restrict the rights and freedoms people could and should be entitled to. And anxiety about the way these populations were being constructed in some comments – not as bearers of rights, but as populations without the capacity for rights.
In the best-case scenario, what would I wish for? I stand by what I wrote (summarised here) that if we take seriously that people have a will, a meaningful subjective experience of the world, then this should be able to make a difference in terms of whether they are categorised as deprived of their liberty or not. The very concept of liberty only makes sense for beings with a ‘will’ – we don’t speak of depriving a rock, or a table or a teapot of their liberty.
I do not agree with the submissions from the Department of Health and Social Care that their subjective perspective is part of the ‘objective’ limb of deprivation of liberty. Logically, subjective experience must go to the subjective aspect of deprivation of liberty, because it is subjective. Objective is what is going on around the person, subjective is what is going on for them.
It is the subjective element that transforms confinement into deprivation of liberty. In everyday life people agree to things that could otherwise objectively amount to a deprivation of liberty, from the mundane (getting on a train, when you can’t get off until the next stop) to the experiences where the point is to be locked in (Escape Rooms). But they are not detained: they have consented.
I think the law should recognise that in some cases people’s subjective experience is of living in the place where they want to live, and being happy with their care arrangements (including any restrictions or supervision to keep them safe). This seems to have been the case for MIG, and for some others caught up under the ‘deprivation of liberty’ label at the moment. I believe we should create a legal framework that can recognise this as a legally valid consent for the purposes of Article 5 ECHR. If we do not, we risk reinforcing the same ableist stereotypes that allow others to say that ‘these people have no will, and therefore no liberty to lose’.
My biggest fear, however, is that ‘valid consent’ will be used as a shortcut, to avoid ‘formal’ assessments and independent checks on the person’s situation. One way this might happen is by treating subjective experience as part of the ‘objective’ limb of article 5. Care providers could treat someone nodding off in an armchair under heavy sedation, or someone cowed and institutionalised, as ‘happy’, and there would be no requirement to submit that judgement for external scrutiny. Nobody would check in on that, and the person and their family may not have the resources afforded by Article 5 to challenge this. That would be worse than where we are now. It would also insert new interpretive chaos into the system, we will be back to the days of councils having different rates of DoLS applications by several orders of magnitude.
Because of the weighty issues at stake here – the right to liberty – and because these are populations whose will is sometimes unclear or contested, there needs to be robust safeguards around valid consent in connection with article 5. My preference is that the Supreme Court says that these safeguards could only be provided through legislation (primary or secondary), properly developed and consulted on with stakeholders. That where a person lacks capacity there needs to be a robust regulatory framework for consent to be valid.
This reflects the requirements of article 12 of the UN Convention on the Rights of Persons with Disabilities, which recognises that everyone – no matter what their ‘mental capacity’ – should be supported and enabled to exercise legal capacity (make legally valid decisions). However, Article 12(4) also says that this must be subject to ‘appropriate and effective safeguards to prevent abuse in accordance with international human rights law… [ensuring] that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances’.
My view is that safeguards for valid consent should – at a minimum – require consultation with the person, and those who know the person well, and there should be a layer of independent oversight and regular review. It will require robust guidance on factors and indicators that preclude valid consent being given (e.g. restraint and sedation as part of care planning, guidance on how to interpret ‘challenging behaviours’). This could (I think) easily be built into the LPS processes and a revised Code of Practice. The system – after all – is supposed to be about protecting liberty, not just authorising taking it away.
Lucy Series is an Associate Professor in the School for Policy Studies at the University of Bristol. She researches and teaches mental capacity, disability rights and adult social care law and policy. She blogs at The Small Places. You can read her book – Deprivation of Liberty in the Shadows of the Institution – free of charge here (hyperlinked) or on Kindle. She is on Bluesky @thesmallplaces.bsky.social.
[i]Professor Phil Fennell is now an Emeritus Professor at Cardiff University. Before retirement he was a Professor of Mental Health Law. We worked together on a Nuffield funded research project on welfare cases in the Court of Protection. He is the author of Treatment Without Consent.
The writer and political salonnière Jeanne Marie “Manon” Roland was guillotined in Paris on 8th November 1793. Legend has it that her last words on the scaffold were, “O Liberté, que de crimes on commet en ton nom!”—“Oh Liberty, what crimes are committed in your name!”
Her warning has proved doggedly durable.
In our own time, the majority’s ruling in Cheshire West [2014] AC 896 has meant that, purportedly in Liberty’s name, tens of thousands of mentally disabled citizens now fall within the law’s definition of state detention.
I have long objected to the majority’s definition of liberty and its deprivation as statist, unrealistic and patronising. I remain astounded that Lord Sumption, of all people, should have joined the majority in their definition.
I have expressed my objection in a number of judgments[1]and in a fiery memorandum submitted to the Joint Committee on Human Rights, which was then considering the proposals to reform the deprivation of liberty safeguards. That memorandum is attached in the Appendix to this blog[2]. I’m delighted to give it another outing here in the light of the recent hearing in the Supreme Court on the reference from the Attorney General of Northern Ireland (AGNI) concerning the proposal to amend the deprivation of liberty safeguards applicable in the Province.
I have read the printed cases of the parties and listened to the submissions made by their counsel. I have also read the blogs on the Open Justice Court of Protection Project website.
Naturally, I was delighted that counsel for the AGNI, as well as counsel for the UK Secretary of State for Health and Social Care, considered that my pronouncements in a sequence of cases concerning the true meaning of the decision of the Supreme Court in Cheshire West were correct.
I read and listened very carefully to the arguments in support of retention of the unyielding, monolithic, absolutist “acid test” propounded in Cheshire West but I remain completely unconvinced. It is worth reflecting on what the phrase “an acid test” actually means. Back in the day, there was literally a chemical test for gold that used nitric acid (HNO₃). Nitric acid would dissolve base metals such as silver, brass and copper, but gold did not react. It was an infallible test. So it is now used rhetorically to describe any proposition that is said really to prove the truth of something. An acid test admits of no nuance. It admits of no discretion. It is entirely black-and-white.
It was as a result of this absolutist interpretation that I found myself listening to a completely anomalous position adopted by the Charities – namely that that the views of mentally disabled persons count for nothing in determining whether they are under state detention or not.
I do understand that it is only by shoehorning mentally disabled people into and through the acid test that they get some kind of assurance that the state will recognise their existence and consider their best interests.
And so, as always, it boils down to money. If the care of the mentally disabled was properly funded in this country, the Charities would not be in the crazy position of having to argue that mentally disabled people being looked after at home are in fact in state detention.
As to the actual legal question, I do agree with my fellow bloggers that it was quite difficult during the course of the hearing to keep one’s attention firmly focused in circumstances where there was no factual foundation to the case before the court and where the discussions seemed to have more in common with a philosophy seminar at All Souls College rather than a hearing in a courtroom.
However, I was (unsurprisingly) completely persuaded that the absolutist interpretation of the Supreme Court is not consistent with the Strasbourg jurisprudence and, therefore, given the terms of section 64(5), Cheshire West does not strictly bind courts of first instance.
I am sure that were the matter to be reconsidered in Strasbourg, the court would insist in each case that (a) an intense fact-specific analysis is undertaken and (b) before someone can be declared to be in state detention, they must be confined in the sense that they are not merely physically prevented from leaving the place in question but stopped from going to a real-life destination of choice. It is only by adopting this interpretation of the first component of Storck v Germany (2005) 43 EHRR 96(Stork 1) that one can avoid the absurd paradox referred to above. Such an interpretation would also give due respect to the intentions of the framers of the Convention who quite plainly intended Article 5 to apply to state detention in the natural and normal sense of that concept.
So, the patient in Ferreira, R (On the Application Of) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 plainly was not confined in the normal sense of that expression. The reason the patient could not leave was because she was insensible. The decision was so obviously correct that the Supreme Court declined permission to appeal. Similarly, Katherine in the Rochdale case [2014] EWCOP 45 was obviously not confined in that normal sense. She was scarcely ambulant. It was not going to be long before she was going to need assistance to move at all. To say that because she could just about make it to the front door meant that she was being confined under Stork 1 whereas in a few months’ time she could not do so and therefore would not be confined, is, with respect, completely ridiculous. And even if she could make it out of the front door, it was not for the purposes of going to a real life chosen destination. So, she wasn’t being confined in that sense either.
I am absolutely confident that Strasbourg would reach the same decision. I therefore hope that these Supremes will “clarify” the current test to conform with the suggestion I have made in the appendix and which I repeat here:
An incapacitated adult will be deprived of liberty if, and only if:
she is prevented from removing herself permanently in order to live where and with whom she chooses; and
the dominant reason is the continuous supervision and control to which she is subjected, and not her underlying condition.
Two afterthoughts
1. I do think that Celia Kitzinger was a bit hard on the Supremes in her blog post. I agree that it was a frustrating experience listening to the dialogue between counsel and bench neither of whom had any practical experience of administering the law of mental capacity. The fact is, however, that the Supremes have to work incredibly hard. They are given one reading day each week but that is often consumed by applications for permission to appeal; or in writing their own judgments; or in reading and suggesting amendments to colleagues’ judgments. It is for this reason that (so I am led to believe) one of their number in each case is normally chosen to be the Judge Rapporteur and who is then expected to make the running in submissions, with the others picking up the details as the case proceeds. The quality of the judgments of the Supremes when they emerge is always of the highest order, and often stands in stark contrast to the quality of judicial interrogation during the hearing.
2. At the time that I heard Rochdale I was completely baffled by the stance of the local authority which had applied to the court for a declaration that Katherine was deprived of her liberty. The consequence of this declaration would be, and was, to impose an enormous financial burden on Rochdale on top of the huge sums that they paid for the daily care of Katherine. One would have thought that Rochdale would have wanted to have been spared those additional expenses, thereby freeing up money for its numerous hard-pressed obligations. I had assumed that when I turned down the application Rochdale would have been very happy. But no, Rochdale appealed the decision and when I turned down the application a second time it appealed again. It’s almost as if it was determined to spend its money on the elaborate legal panoply that attends state detention rather than on other necessary things. Rochdale’s stance was not atypical. It is incomprehensible.
Sir Nicholas Mostyn is a retired High Court judge and was before that a barrister and QC specialising in big divorce settlements. He was diagnosed with Parkinson’s Disease in 2020 and launched the King’s Parkinson’s Charitable Fund with Professor Ray Chaudhuri in June 2024. Sir Nicholas has launched two highly successful podcasts, Movers & Shakers and Law & Disorder, with Baroness Helena Kennedy KC and Lord Charlie Falconer.
[1]Rochdale Metropolitan Borough Council v KW & Ors [2014] EWCOP 45, The London Borough of Tower Hamlets v TB & Anor [2014] EWCOP 53, Bournemouth Borough Council v PS & Anor [2015] EWCOP 39, Re CD [2015] EWCOP 74.
[2]In the printed case for the Secretary of State, it was stated that I had provided the memorandum following my retirement. That is not so. I provided it while I was a serving High Court judge. I do not think, however, this means that it carries more weight
APPENDIX
This is the written evidence from Sir Nicholas Mostyn in response to the three questions that the Joint Committee on Human Rights asked witnesses in the inquiry The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards (HC 890 / HL 161):
Whether the Law Commission’s proposals for Liberty Protection Safeguards strike the correct balance between adequate protection for human rights with the need for a scheme which is less bureaucratic and onerous than the Deprivation of Liberty Safeguards
Whether the Government should proceed to implement the proposals for Liberty Protection Safeguards as a matter of urgency
Whether a definition of deprivation of liberty for care and treatment should be debated by Parliament and set out in statute.
************************************
Thank you for giving me the opportunity of making this submission to the Joint Committee.
I will deal substantively only with the third question. My answer to the first two questions is yes, if (and only if) the law as pronounced by the majority in Cheshire West is affirmed as correct.
The work of the Law Commission in producing the report Mental Capacity and Deprivation of Liberty (Law Com No 372) was prodigious, but the unanswered question, the elephant in the room if you like, is: was Cheshire West correctly decided? The Law Commission did not grapple with this. Maybe it was too controversial. Maybe they were internally divided.
The Law Commission could have recommended that Parliament should reverse the view of the bare majority in Cheshire West (Lady Hale, and Lords Neuberger, Kerr and Sumption) and that the view of the minority (Lords Carnwath, Hodge and Clarke), and of both constitutions of the Court of Appeal in respectively P & Q and Cheshire West (i.e. Wilson, Smith, Rimer, Munby, Lloyd and Pill LJJ), should be reinstated. The high judicial voices in favour of the nuanced, comparative, fact-specific definition of deprivation of liberty in mental capacity cases are numerous and persuasive. It was adventitious that Lord Wilson did not sit in Cheshire West, as he had been on the Court of Appeal panel in P and Q. If that case had not also been appealed, and only Cheshire West had, we can safely assume that we would not be in the bureaucratic, artificial and resource-consumptive situation that we are now.
Under section 64(5) of the 2005 Act it is provided that “references to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the Human Rights Convention.” Yet, no case from Strasbourg has come close to saying that the case of someone of “unsound mind” (as Article 5 puts it) falls within the terms of that article if they are being looked after in their own home. It might be thought that if the narrower, more nuanced test were restored there would be a risk that the Strasbourg court would disagree with it, with the result that a cohort of incapacitated people would fall into a no-mans-land: outside the statutory definition but covered by Article 5 nonetheless. But it is surely vanishingly unlikely that Strasbourg would disagree with the narrower test: it is after all completely consistent with its jurisprudence, which mandates a fact sensitive approach and which looks at a range of factors such as the intensity of the restrictions in question. It is the majority view which is out of step. It is worth reflecting on Katherine’s circumstances in the Rochdale case (q.v.). In para 6 I stated: “Physically, Katherine is just ambulant with the use of a wheeled Zimmer frame. Mentally, she is trapped in the past. She believes it is 1996 and that she is living at her old home with her three small children (who are now all adult). Her delusions are very powerful and she has a tendency to try to wander off in order to find her small children. Her present home is held under a tenancy from a Housing Association. The arrangement entails the presence of carers 24/7. They attend to her every need in an effort to make her life as normal as possible. If she tries to wander off she will be brought back.”
I respectfully suggest that it is not only an abuse of language to suggest that she is in state detention, but also that it is impossible to imagine the Strasbourg court deciding that she was.
I confine my remarks to the case of the incapacitated adult (“P”). Space does not permit me to dilate on the complexities concerning the application of Article 5 to children. I do not dispute that in the case of an incapacitated adult the test of the Strasbourg court in Storck v Germany (2005) 43 EHRR 96, paras 74, 89, must be applied. Thus Article 5 is engaged if the well-known three components are present viz (a) confinement in a particular restricted place for a not negligible length of time; (b) a lack of valid consent; and (c) the attribution of responsibility to the state.
The test for component (a) as promulgated by the majority of the Supreme Court is a binary black-and-white one. It is simply this: is the protected person under continuous supervision and control and not free to leave? But such a one-size-fits-all test has never been enunciated by Strasbourg. As Lord Clarke put it: “The ECtHR has not held that there is only one question (or acid test), namely whether the individual concerned is free to leave. Its approach is more nuanced than that.” To my knowledge no other country has adopted the approach mandated by the majority in Cheshire West.
Since that decision I have attempted in a number of cases, within the bounds of the doctrine of stare decisis, to mitigate the more extreme ramifications of the decision. I have suffered a rebuke from the Court of Appeal, but I remain unrepentant. I am convinced that the decision is legally wrong and socially disastrous. It pits the state against families and costs hard-pressed public authorities vast sums, which ought to be spent on the front line.
It is to be noted that in the second and fourth cases I felt my hands were tied and that I had no choice but to declare that the protected person was in a situation of state detention. The fourth case was completely unreal. There the protected person strongly wanted the operation to remove potentially lethal ovarian masses yet because she lacked capacity I had to declare that she was deprived of her liberty during the operation. How much money did that case cost the state?
The problem with this hard-edged approach is that it begins to show serious signs of strain when it is tested by quite ordinary situations. In Cheshire West, in the Court of Appeal, Munby LJ considered a child placed with foster-parents, who had a child of their own. It would be absurd, he said, if the former were caught by Article 5 but not the latter. Yet, Lord Neuberger thought that the latter was so caught. Lord Kerr thought that foster-children would not be caught by Article 5 when they were “very young”, but not when they were older[1]. There are other conundrums, exemplified by the cases I have heard. Is it true that someone with a mental age of a very young child who wanders off is being detained by the state if she is brought back (the Rochdale case)? Or someone who is looked after in his home and who has never shown the slightest wish to leave (the Bournemouth case)? Or someone who is incapacitated but who fervently wants an operation to restore her health (Re CD)? Or someone intubated and sedated in hospital (to which I turn below)?
It is highly significant that in the case of Ferreira, R (On the Application Of) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 (26 January 2017) Arden LJ was not prepared to find that the intubated and sedated patient (“P”) was in “state detention” when she died in the ICU at King’s College Hospital. At [98] – [99] she held that the acid test should be interpreted to read as if the conjunctive adverb “therefore” was inserted viz: Is the protected person under continuous supervision and control and therefore not free to leave? Thus, she reasoned, a causative analysis has to be undertaken. Is the “real cause” that P is not free to leave the continuous supervision and control, or is it the underlying condition, for which the state is not responsible? If the latter, the acid test is not satisfied. But she stated: “It is quite different in the case of living arrangements for a person of unsound mind. If she is prevented from leaving her placement it is because of steps taken to prevent her because of her mental disorder.” I am not sure I understand the distinction. Even so, a pure application of Lady Hale’s black-and-white acid test should surely have led to the opposite conclusion. This suggests that some retreat from the absolutism of Lady Hale’s test has already begun.
I agree with the causative analysis and suggest that it should be applied across the board in all cases of mental incapacity.
The next issue is about the meaning of “freedom to leave”. I do not agree that this should mean merely the ability to walk off in a certain direction, which is what most people have interpreted Lady Hale to mean. However, in Re D (A Child)[2017] EWCA Civ 1695 at [22] Sir James Munby P stated that he considered that Lady Hale was using it to mean “leaving in the sense of removing himself permanently in order to live where and with whom he chooses” and not merely “leaving for the purpose of some trip or outing.” If this is adopted, then that too will represent a major inroad into the present very wide reach of the test.
My fundamental contention is that it should be put beyond doubt by Parliament that an incapacitated adult will only be deprived of liberty if, and only if: (a) she is prevented from removing herself permanently in order to live where and with whom she chooses; and (b) the dominant reason is the continuous supervision and control to which she is subjected, and not her underlying condition. This would do no more than put Storck (1) on a statutory footing and specify it in accordance with the recent authorities.
I would strongly reject any suggestion that were the test to be restored to its previous form that this would represent an erosion of the rights of the mentally impaired. I am a very strong advocate for the promotion of the rights of the mentally impaired. I would argue that to adopt this test would enhance and not diminish those rights. That is because it would implicitly recognise and promote the obligation of the state to secure the human dignity of the disabled by recognising that their situation is significantly different from that of the able-bodied, and to take measures to ameliorate and compensate for those disabilities. The new test does not do this. See London Borough of Tower Hamlets v TB at [57] and Bournemouth Borough Council v PS at [25]. I would suggest that this approach is consistent with, and gives effect to, the Public Sector Equality Duty as set out in section 149(1) Equality Act 2010.
It is a bitter irony that the huge volume of DoLs cases arising since the Supreme Court decision has meant that the rights of the mentally impaired are being eroded because only a minority who are deprived of liberty under the new definition will ever get an assessment at all (and even fewer within the statutory time limits). I gather that under the new regime there are around 220,000 DoLS referrals each per year and only about 40% are assessed. If you are compliant, in end-of-life care, and have a stable placement then you have virtually no hope of ever being assessed. Lord Neuberger once said: “sometimes I think that the only piece of legislation which is totally reliable is the law of unintended consequences”[2], and that is the case here, up to the hilt. A ruling designed to advance the rights of the mentally impaired has resulted in swathes of them being unassessed and this abandoned cohort will inevitably include many who on any view fall within Article 5.
There can be no doubt that were the definition I have proposed to be adopted there would be far fewer DOLs cases. In the Tower Hamlets case at [60] I stated: “At para 1 of my decision in Rochdale Metropolitan Borough Council v KW I referred to the very serious resource implications to local authorities and the state generally if periodical court reviews are required in such cases. Notwithstanding the arrival of the streamlined procedure recently promulgated by the Court of Protection Practice Direction 10AA there will still be tens if not hundreds of thousands of such cases and hundreds of thousands if not millions of documents to be processed. The streamlined procedure itself requires the deployment of much man and womanpower in order to identify, monitor and process the cases. Plainly all this will cost huge sums, sums which I would respectfully suggest are better spent on the front line rather than on lawyers.”
I maintain that view. I have heard anecdotally that leading counsel for the appellant in the Supreme Court assured the justices that an increase in DOLs cases was not foreseen were the acid test proposed by him to be adopted. I venture that a different decision would have been reached if the justices could have foreseen the eventuation of the explosion in the numbers of DOLs cases, with its huge cost to the public purse.
I apologise for breaching the 1500-word limit. I would be happy to amplify my views should the committee find this of assistance.
The protected party at the centre of this case, LV, is a 20-year-old woman diagnosed with anorexia nervosa, autism spectrum disorder, severe depression, and anxiety. At the time of the first Court of Protection hearing, in early 2025, she was an inpatient on a ward in a specialist eating disorder unit (SEDU) of a university teaching hospital where she’d been for more than 2 years (and for a year before that on different hospital wards). She was detained under section 3 of the Mental Health Act 1983.
In February 2025, LV was very unwell. The Hospital Trust and the NHS Mental Health Trust responsible for her care made an urgent application to the Court of Protection. The case (COP 20011799) was heard in the Royal Courts of Justice by Mrs Justice Morgan. The published judgment reports:
“She is presently being fed twice a day using a Naso Gastric Tube. She has to be restrained for this. The process requires seven staff members. Since December of last year, this process has been largely ineffective in providing her with nutrition since she has developed the ability, at will, to regurgitate feed whilst it is being delivered and to purge by vomiting most, nearly all, of the remainder after delivery. In that time she has lost a further 15% of her body weight. Her body mass index is slightly over 11. The likelihood is that, absent effective intervention, she will die soon. It is difficult to predict when that may be, but the evidence before me is that a timescale of days or weeks is what is contemplated rather than one of months.” (St George’s University Hospitals Foundation Trust & Anor v LV [2025] EWCOP 9 (T3)).
The Trusts were applying for (i) a declaration that LV lacks capacity to conduct proceedings and to make decisions about her care and treatment and (ii) a declaration that it is lawful and in LV’s best interests to be admitted to an Intensive Care Unit for a period of feeding under sedation. This was seen as a “last resort” option – the consensus view being that if she stayed where she was, death would be likely in days or weeks, and that feeding under restraint was not in her best interests either as it would be very high risk because she pulls out tubes and lines.
Here’s how the option of feeding under sedation was described in the written evidence before the court:
Go to General Hospital and be admitted to ITU for feeding while intubated under general anaesthesia: She will be under general anaesthesia and fed while asleep. The list of medical risks are as listed below, derived from the best interests meeting from the ITU intensivists, gastroenterologist, and medical nutritionists at St George’s Hospital. The process would involve being put to sleep, then doctors inserting a breathing tube and then using a ventilator machine to take over breathing. She would then be kept asleep using medication and fed while asleep. The first concern is that while she is asleep, she will continue to lose muscle mass while sedated – this may be up to 10% a week. Explained this carries risk of critical illness myopathy, which would leave her profoundly weak, potentially unable to move her limbs, and this could be irreversible. Another risk was requiring a tracheostomy (a breathing tube in the neck), and that there is a chance she would require this in the longer term – this would leave her requiring a permanent placement in a facility able to accommodate this, which may be a neurodisability hospital. Another risk was that she would be at very high risk of infection, both a chest infection related to being on a ventilator, or from a line. This would carry risk of multi-organ failure and death. In the first week, there would be risk from being put to sleep, and also from her heart reacting to us starting to feed her. (§8 of the judgment).
The judge said it was “sobering against the backdrop of that level of risk, to reflect on the fact that the unanimous view of all of those treating and caring for LV is that it should be taken and is in her best interests to do so”. And that was the decision she made.
“I have thought long and hard about all of those risks and detriments as I weigh the balance. The point about the balance however is to look at what it is that falls on the other side. Here when I look at the other side, at what lies in the balance against all that is risky; all that which in other circumstances would be an intolerable affront to her autonomy, what I contemplate is her imminent death. At the moment twice a day, LV is subject to what, in other times and contexts, was called ‘force-feeding’. The means by which it is achieved, for all the empathetic approach and skill of the staff, is not so very far removed from the images which that phrase conjures up. Yet for all the pain distress and indignity of it (during all of which she is emotionally and physically present) it is achieving nothing. LV is starving to death.”(§57, judgment)
And so, the judge concluded: “I am satisfied that it is, in all the circumstances of this most unusual and troubling case, in LV’s best interests to undergo the proposed course of treatment” (§58).
Hearings observed
I observed two subsequent hearings in this case, both remotely and both before Morgan J: the first on 7th April 2025 and the second on 18th June 2025. There have been no further published judgments, so this report is an “update” on what happened with LV after the (only) published judgment in this case, and after the refeeding in the ICU that it authorised. As far as I know, there have been no further hearings since June 2025.
April hearing
LV had been woken up after nearly 7 weeks in the ICU. She had gained weight more quickly than expected and now had a BMI of 13.5.
The views of LV herself had not been canvassed by the Official Solicitor, or by the court, either at the February hearing, or at this one. The Official Solicitor, represented by Fiona Paterson KC had not been able to speak with LV earlier in the year before she went into the ICU due to how ill she was. She said now: “In terms of P being involved in her own case, I have invited her to speak with me over a video link. We’ve been guided by her parents because though happily LV came off the ventilator in the second week of March, she’s been receiving varying levels of sedation, and we don’t want to impose upon her until she feels ready, but have made it clear that we are happy to go on a link and wave at her and say no more, if only to impress upon her that she has her own representation.”[i]
The judge, who expressed repeated concerns (in the published judgment as well as at this hearing) that LV should not be treated as a child, and that her (albeit non-capacitous) views about treatment should be properly elicited, said in reply: “There is no reference to LV’s views being expressed in any reports from various clinicians, so I am much reassured by what you’ve told me”. She also wanted “disclosure of documents and reports about the involvement of this adult patient herself” in treatment decisions going forward. As Fiona Paterson said, however, “to keep calm and tolerate being fed, she’s needed varying levels of sedation and not been well enough to have a chat with someone new. We don’t want to get off on a bad start”.
It was agreed by the Official Solicitor and the applicant NHS Trusts (represented by Vikram Sachdeva KC) that LV should be moved to a Specialist Eating Disorder Unit (SEDU). LV, herself, had expressed a wish to move there. But this was complicated by several factors. First, only one SEDU was put forward as potentially being able to accept LV as a patient. Second, LV required two adjacent rooms, not one, to accommodate her needs. Third, LV’s acceptance to the SEDU was conditional upon improvements in her disordered eating and funding by an NHS Trust provider collaborative. Nevertheless, it was anticipated that LV would be in the SEDU by the end of May.
June hearing
At the time of the hearing on 18th June 2025, LV was still on the hospital ward, and her health was deteriorating both physically and mentally. She was ‘purging’ more frequently and her BMI was dropping. On discharge from ICU in early April, her BMI had been 13.5. By 1st May 2025 it had dropped to 12.2 (representing a loss of 3.4kg since her discharge from ICU). By 16th June, the Trusts (now represented by Victoria Butler-Cole KC) reported that LV’s BMI was 11.7 – very close to where it had been a few months earlier before admission to the ICU.
Things were not going well. The SEDU had not yet committed to giving LV a bed, and the provider collaborative had not yet agreed to fund whatever place the SEDU may offer. Morgan J labelled this, in no uncertain terms, ‘a dismal state of affairs’.
The new counsel for the applicant NHS Trusts, questioned whether the Court of Protection had any further jurisdiction in regard to LV’s care. Morgan J disagreed, emphasising the ‘unattractive’ consequences of ‘drift and delay’ and her unwillingness to “leave this young adult in circumstances where a decision could be made without the best information that can be obtained’“. The judge issued an order directing that the NHS Trust provider collaborative file a statement by 2nd July identifying:
Whether the SEDU had confirmed it would offer LV a place
What the conditions of the offer were, in terms of LV’s physical health and behaviour
The proposed dates of admission, or a fixed date by which that date would be known
Whether the provider collaborative had agreed to fund LV’s placement at the SEDU
If the provider collaborative has not agreed to commission the placement, an explanation for why it had reached that decision
If the SEDU had not made an offer, what the provider collaborative proposed to commission for LV instead.
This is clearly an attempt to bring some certainty and focus to the “chicken and egg” situation, as Morgan J called it, in which LV had found herself: the offer from a SEDU being conditional upon a change in LV’s behaviour, but a change in LV’s behaviour being very difficult to achieve without access to a SEDU. It is Morgan J’s attempt to exert enough pressure on the various parties involved in LV’s care so that LV might leave the hospital ward, where her health was likely to continue deteriorating. Indeed, it effectively encapsulates Morgan J’s repeatedly-expressed dismay and disappointment at “the ever-moving and uncertain responses to the core question that LV is asking, which is: ‘when can I go there”‘”.
The order states that if a place at the SEDU were to be confirmed and a fixed date for LV’s transfer identified, then in that case the hearing—scheduled for 11th July 2025 —would be vacated.
No hearing was publicly listed for this case for 11th July 2025. I hope that LV did, at last, find certainty and solace in a place at the SEDU.
[i]From notes made contemporaneously during the hearing, which (since we’re not allowed to audio-record hearings) are unlikely to be 100% verbatim, but are as accurate as I could make them, with the help Celia Kitzinger who shared her notes with me.
The protected party at the centre of this case (P) is a man who has significant hoarding difficulties. The Local Authority wants him to leave his home – either by agreement or by force – to enable them to clear the property and assess the amount of work that is required to make the place habitable. I think the plan is then for P to go back to live there, as he owns the house himself (it’s a home that he inherited).
I observed the 12-noon hearing below, in person, at First Avenue House in London (COP 14270384), before Tribunal Judge Kaufman.
Background
P is a man with diagnoses of autism and hoarding disorder. He has a brother who supports him, including with managing his finances, but things are very difficult as his brother is said to have health difficulties of his own. Finances are not part of this application – however, more on this later.
The issue for P is that the Local Authority (Brent) has deemed his property in need of urgent clearance (the specific risks said to be posed by hoarding at the property were not described at the hearing). Previous attempts (in September 2025) at clearance with an agency were of limited success (according to the clearance agency) because P remained at the property and ‘progress was too slow to be meaningful. He resisted the removal of certain items and progress was extremely limited.’ (PS from MH Trust).
P has a new CMHN (Community Mental Health Nurse) with whom he is engaging (he didn’t form a good relationship with his previous CMHN). He also meets with his GP, and he does have a good relationship with the person from the clearance agency (I will call him Doug). The CMHN, GP and Doug are working together with P to try to find a way to help him to allow his house to be cleared, with as little distress as possible. An ‘autism informed communication plan’ is being drawn up. It sounds like it’s all quite difficult and P both wants things to change in theory and is distressed at the prospect of it and resistant to it in reality.
A referral to specialist tertiary clinic has been made by the Mental Health Trust, for assessment and possible treatment of P’s hoarding – but the ICB has refused funding for this, and the Mental Health Trust is appealing this decision.
An expert psychologist, Professor Paul Salkovskis, has been approached to see if he’s available to assess P and make a report to the court (I am not entirely sure what he’s being asked to report on).
The hearing we observed was to decide whether (and the extent to which) to authorise the LA to clear P’s property without him being there, and (if authorised) where P should go in the interim.
The Hearing
P wasn’t at the hearing, although he was aware that it was happening, and his counsel (Asma Nizami via the Official Solicitor) said that P “did get in contact with [his solicitor] yesterday, making it clear he had been intending to send an email with points he wishes to make”, but that “he’s not had the time or the mental clarity to put it together, but he wants to put it together and wants it to be conveyed verbatim to the court. He’s not in a position at the moment [to do that] and he would have wanted to come to court today to speak to us, but 10am would be impossible for him at the time”.
Other parties in this case are the Local Authority (represented by India Flanagan) and P’s Mental Health Trust (Central and North West London NHS Foundation Trust, represented by Emily Campbell).
The Local Authority wanted the judge to authorise a two-stage clearance plan: Stage 1 is that P is told that the court has ordered him to vacate the property, and he (hopefully) agrees to go elsewhere whilst his property is cleared. Failing that agreement being reached, Stage 2 is that P will be removed forcibly, using restraint if necessary (by a company called Secure 24).
The Mental Health Trust and the LA were asking the judge to authorise both steps at the hearing. The Official Solicitor, acting for P, expressed disquiet about the lack of a detailed plan from the LA, should Stage 2 be required:
Counsel for P: We would invite the court to take a staged, a cautious approach. [P] is likely to be very distressed with the prospect of removal – there is evidence already that he was distressed at the end of September when [Doug] attempted to remove things. To put it concisely: Stage 2 is not fully thought out. If Stage 2 is to be considered by the court, a proper restraint plan is needed.
It’s not clear what staged, incremental approach the court is being asked to approve. At the moment, the clearance plan refers to ‘prone restraint’ being authorised. There is the potential that when [P] would be lying down face down, it would be extremely restrictive [Judge: …. and dangerous]. Exactly, and there is guidance from the Department of Health which rules it out in most cases.
In brief the terms the OS is not in a position today to approve the restraint plan, or prone restraint. It also refers to mechanical restraint, which includes handcuffs. [P has] no history of violence, security is not an issue, he’s not at risk of harm to anyone else.
Taking all these points into account, we would say the position [that is] in [P’s] best interests is solely to authorise Stage 1 at this stage, and it to be made clear to [P] that he is being asked by the court to vacate his property so that clearance can take place because the court has determined it’s needed, and it’s hoped that because [P] is a law abiding person who respects the authority of the court, that he will act in line with that. [counsel’s emphasis]
Counsel for P also expressed some reservations about the proposed interim place for P to live:
Counsel for P: The Local Authority [LA] is referring to a placement called [XX] as a ‘BnB’. But we have received an email from the LA today that summarises that it is NOT a BnB. It’s not open to the public and does NOT operate as a BnB, it’s not online, it’s just a semi-detached property, it does not operate as a public facing venture.
Judge: What is it?
Official Solicitor: It’s an emergency housing provider – there are 3 flats, A B C. One is privately rented out, the other two it seems are used by different clients for emergency housing. So …. hospitals and LAs referring clients with nowhere else to go. So, it’s misleading to refer to it as a BnB. […] What we would ask court to do is to step back and review whether this is the best place for [P].
Counsel for the OS went on to say that P had previously (2017-2021) stayed in a hotel, and that same hotel has availability, but the LA says that it doesn’t fund ‘private hotels’. However, she observed, “Whilst the LA says it doesn’t fund private hotels, there’s a contradiction because it’s willing to fund the so-called BnB.”
The judge adjourned the hearing for lunch whilst the LA sought pictures of the proposed ‘BnB’ accommodation. Counsel for the OS specifically asked to see the floor plan, and photos “covering the communal area and bedroom he would occupy”.
Given the earlier report that P wanted to express his views to the court but had not had the ‘time or mental clarity’ to send an intended email to the court, I did wonder why the OS hadn’t sent a legal representative to meet with P and provide a report on his wishes and feelings, especially since the case was long-running. As a result, the court was grappling with how to allow for some flexibility in where P goes to stay, should he be willing to leave his home, but not want to go the ‘BnB’. Options seemed limited, but the possibility of him paying himself for the previous hotel he stayed in, or (less plausibly) stay with his brother, were mooted:
Counsel for P: The way you’d phrase it is that it’s in his best interests to vacate and reside elsewhere either at [XX] or another suitable placement chosen by him and agreed by the LA. For example, he may say he wants to go to stay with his brother. That’s unlikely but could be an option he’d want to go with. We wouldn’t want for him to be said to breach the order.
Judge: I think that would have to come back to court, on the papers. I would not want him to be forced to go somewhere he didn’t want to go, if he felt somewhere else was more palatable.
It was clear from early on in the hearing that the judge was ‘attracted’ (her word) to authorising Stage 1 only, it being the ‘less restrictive alternative’. That was the order that the judge made.
Finances
A side-issue cropped up during the hearing – how P’s finances are to be managed. Although this is not part of this application (which is a Health and Welfare application), it became clear that P’s finances are not being managed properly for him. His brother tries to help. He has a pension that he doesn’t seem to be accessing and, worryingly, the LA had made an application to court for a deputyship order back in November 2024. It turned out that the judge (who has overseen this case throughout) hadn’t received the application.
The judge said “I am surprised this has been going on for a year, maybe it’s got lost in the system. They need to be sent so I can look at them. … If you can send me them again I can have a look now.”
Counsel for P said that the previous deputyship application was ‘deficient’ and was ‘paused’.
P himself does not agree that he lacks capacity to manage his finances. I don’t know whether a capacity assessment for finance management has been done.
When the judge received the application (during the hearing) she made an interim deputyship order for a panel deputy to be appointed. She said that, although the previous documents were ‘incomplete’, P and those with an interest in the potential appointment (P’s brother, his Social Worker and the Official Solicitor) had been ‘made aware of the application and there are no objections that have been brought to my attention to oppose the appointment of a panel deputy’. The judge directed that the panel deputy should make enquiries about P’s finances to ‘regularise’ the situation, and that it might be the case that P’s brother takes over the role in future.
Next Steps
P wants to have his voice heard by the court – this was emphasised by his counsel throughout the hearing.
When making the interim deputyship order for finances, the judge said “I also note that he did not accept that he lacked capacity. Given he hasn’t attended this or previous hearings I am going to make an INTERIM deputyship order and he can attend at the next substantive directions hearing. I am more than happy to hear from him his position on deputyship.” [judge’s emphasis]
I was quite surprised, then, when counsel and the judge were setting a date for the next substantive hearing (which will deal with the surveyor’s report on the state of P’s property and the works required, as well as updates regarding P’s finances) P’s own limitations and needs were given little consideration.
Judge: 25th November at 10am 2hours
Counsel for P: Is there any way it could be afternoon to encourage P?
Judge: 11 o’clock ….
Counsel for P: Unfortunately, 11 is same as 10, the earliest he could attend is 2pm. We will encourage him, but the reality is that …..
Judge: 11 o’clock on the 25th November.
I know from attending Court of Protection hearings regularly that judges’ diaries are very stretched and there seems to be little wiggle-room. However, ‘P’ is meant to be the centre of a case, and the court wants to hear from P, so making reasonable adjustments for P’s identified needs to facilitate attendance would seem fair and equitable.
I am not sure why P would find it hard to attend court in the morning, and his counsel had earlier alluded to him struggling to engage with the court, despite wishing and intending to do so. For whatever reason, it sounded like an afternoon hearing was likely to accommodate his needs. That wasn’t what was offered, however, and we have seen that the case has been listed at an earlier date, and still for a morning hearing, on Monday 17th November 11am, via remote link. If you’d like the link to observe email: courtofprotectionhearings@justice.gov.uk with the case number COP 14270384.
The case might have been back in court sooner, depending upon what happens when P is asked to comply with the court’s order to move out whilst his house is cleared. I didn’t spot the case number coming up again in the listings. I hope, whatever happened, that P can be supported through what is likely to be a very difficult period of time for him.
Transparency Matters
First Avenue House in London – the home of the Court of Protection – is geared up for public observers. Staff are unfailingly helpful in my experience, they have printed Transparency Orders ready to hand to you when you tell them which hearing you are there to observe, and they seem on top of changes to listed hearings.
This hearing started a bit late (around 12.30).
In the waiting area, Asma Nizami (counsel for OS) came to speak to us (I was observing with Amanda Hill my colleague in OJCOP) to explain the standard OS position on disclosure of Position statements (following the guidance from Poole J in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3) ), and I was very grateful to Asma Nizami for raising it in court.
Official Solicitor: Another issue – a matter that arose outside of court. The two observers from the Transparency Project have requested PSs. I don’t have instructions from the OS …. I am aware from a recent hearing, the OS position has changed as result of the Poole judgment. The OS has not been agreeing to disclose PS without an order from the court. The reason for that is because we don’t have evidence that [P] would agree that his PS can be disclosed to an observer. That leaves us – you can direct if observers ask court to direct this.
Judge: I have got the draft order I don’t know if there are significant changes to the draft or amended draft in process?
Oddly, the judge didn’t address the issue raised by the OS at this point, and counsel raised it again (thank you!) at the end of the hearing: “Before you rise – can I ask for clarity on the Position Statements?” (Official Solicitor)
The judge asked us to confirm we had received the Transparency Order (we had been given this as a paper copy by the court staff at First Avenue House when we arrived). She then ordered disclosure of PSs to us as observers. And that was that.
I received the Position Statement for NHS Trust Central and North West London NHS Trust) the day after the hearing and the PSs for the two other parties two days later.
Thank you to Asma Nizami for raising the request for the judge to direct that Position Statements should be provided to observers, and to all counsel for providing Position Statements following the hearing. It makes an enormous difference to our understanding of the case.
Being able to read the PS for the Mental Health Trust has been very helpful. This case has been ongoing since the 20th June 2024 and the PS provides crucial background information that I would otherwise not know. It helps me fully to understand the judicial process, making it accessible to me as a member of the public.
Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core team of the Open Justice Court of Protection Project and has published dozens of blog posts for the Project about hearings she’s observed (e.g. here and here). She is on X as @DocCMartin, on LinkedIn and on BlueSky as @doccmartin.bsky.social
The Supreme Court hears cases from across the United Kingdom on a vast array of different topics. The former President, Baroness Hale, had a unique insight into mental health and capacity law because of her academic background and experience as a judge of the Family Division. It is, perhaps, unfortunate that none of the current Justices have experience of sitting in the Family Division in England.[2] However, what is inevitable is that, in many cases before the Supreme Court, the Justices will not have the same intimate subject-matter knowledge as specialist lawyers and other professionals interested in the outcome. It is the role of the advocates to explain the necessary background – and in this case some of the leading advocates in the field of mental capacity law were instructed to present the arguments.
What made this case particularly difficult was the absence of a factual matrix against which to test and present those arguments. The vast majority of cases before the Supreme Court are decided on facts determined by a first instance judge. In other contexts, the courts have emphasised the importance of developing the law “on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true”.[3]
References on a point of law are a product of devolution. Under the Northern Ireland Act 1998,[4]and equivalent Scottish and Welsh legislation,[5] the relevant Law Officer may refer a “devolution issue” which is not the subject of proceedings directly to the Supreme Court. However, even in this context, the Supreme Court has said that “it is desirable that legal questions be determined against the background of a clear factual matrix, rather than as theoretical or academic issues of law”. It recently declined to determine a Northern Irish reference where the same issue arose in pending proceedings.[6]
“Devolution issues” include questions of whether a proposed exercise of a function by a Northern Ireland department would be invalid because it would be incompatible with Convention rights.[7] The question referred to the Supreme Court by the Attorney General for Northern Ireland was whether proposed revisions to the DoLS Code of Practice in respect of consent would be incompatible with Article 5.
It is understandable that the Attorney General for Northern Ireland would want the Supreme Court to determine this question before implementing the proposed revisions. Those revisions (a) conflict with the unchallenged assumption in Cheshire West that a person who lacks mental capacity cannot consent to arrangements that objectively amount to a deprivation of liberty; and (b) remove from the procedural protections of Article 5 the very people who are affected by the revisions (thus inhibiting the practical ability of those people to bring an effective challenge to the new regime).
However, many of the hypothetical arguments and postulated facts raised at the hearing concerned not the issue of consent on which the Attorney General sought guidance, but the wider issue of whether Cheshire West was correctly decided viz. the “acid test”. [8]That question was raised late in the day by the Secretary of State for Health and Social Care who does not have standing to refer cases directly to the Supreme Court himself and who could, at least arguably, have pursued the issue by intervention in a substantive case before the Court of Protection.
It remains to be seen whether the Justices will take up the Secretary of State’s invitation to revise the “acid test”.
Peter Mant K.C. and Nicola Kohn, both of 39 Essex Chambers were instructed (with Sarah Westoby of Leigh Day) on behalf of the AIRE Centre to intervene in this case: permission to intervene was refused by the Supreme Court. Peter acted for the local authorities in Cheshire West.
[1]A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 UKSC/0042
[2] Save for Lord Stephens who sat in the Family Division in Northern Ireland from 2008 to 2014.
[8] The so-called “acid test” is found at para 54 of Cheshire West: a person is deprived of their liberty if they are “under complete supervision and control… and… [are] not free to leave the place where [they] live…”
Over the course of three days (20th – 22nd October 2025), the Supreme Court of the United Kingdom heard a landmark case[1], the outcome of which will affect the lives of thousands of disabled people – specifically those with cognitive impairments including learning disabilities, dementia, brain injuries and mental health issues.
Judgment won’t be handed down for some time – probably during the first half of 2026 – and it will have significant implications for the way in which “deprivation of liberty” will be interpreted in the Mental Capacity Act 2005, and for the way decisions are made in the Court of Protection in future on behalf of those deemed to lack capacity in relation to residence and care. This outcome really matters to people with disabilities, and to their families, friends, and carers, to health and social care professionals, to lawyers working with the Mental Capacity Act, and to everyone who cares about equality and social justice.
This blog post is not about the substantive issues in the case – which are amply covered in our blog posts both in advance of[2], and subsequent to, the hearing[3] – though I’ve given a very brief summary below. Instead, my focus is on how open justice played out in relation to this case. Did it work? Did it achieve what the judiciary, who aspire to transparency, hoped it would? The verdict is mixed: the practicalities worked pretty well on the whole, but the experience of observing left a sour taste for many.
In Part 1, I report the good news: that there was a more-than-usual degree of transparency in relation to this hearing. The Supreme Court was most definitely open to the public (in person and via live-streaming, and a video-recording subsequently placed on the website) and the court has also made effective efforts to make its subject matter accessible (e.g via skeleton arguments members of the public can download from the court website, and an agreed “Statement of Facts and Issues”) and to help us understand the process (via a four-page paper handout provided to those attending in person). This was all really helpful (and much more transparent than our standard experience of the Court of Protection). The judicial aspiration for transparency was supported by the Open Justice Court of Protection Project, via blogging, and a contemporaneous discussion group, with more than 150 participants, which operated over the three days of the hearing, live, as it was taking place (and continues with sporadic discussion of relevant issues). That’s open justice in action.
The bad news (Part 2) is that many of those who watched and discussed the hearing – people with specialist expertise in the relevant subject matter (the Mental Capacity Act and Deprivation of Liberty Safeguards[4]) – are dismayed by what they saw. This was true, at least, of the majority of the 150+ people who participated in our WhatsApp discussion group. This is not (or not only) because they are concerned by what they characterise as the poor level of knowledge and understanding displayed by the judges (and by some of the lawyers) and disturbed by the disablist language and assumptions displayed. They also don’t think the judges have the requisite knowledge base to understand what’s at stake, and they don’t trust that the lawyers’ submissions will have been sufficient to help them. Having seen the public hearing, they lack confidence that the judgment (when it comes) will be the right one.
This is an ironic outcome of open justice – and one not much discussed in the published judicial enthusiasm for transparency, which seems predicated on the idea that once we, the public, get the chance to see what’s going on in court, we will admire and applaud it.
Open justice is generally represented as “a principle which allows the public to scrutinise and understand the workings of the law, building trust and confidence in our justice system” (Mike Freer MP, Parliamentary Under Secretary of State for Justice – my emphasis)[5]
Ensuring public confidence in, and respect for, the justice system has long been cited as a key justification for open justice: “… in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect” ( Lord Atkinson in Scott v Scott [1913] AC 417, at 463 – my emphasis)
According to Lord Neuberger, “public awareness of what happens in our courts serves to bolster public confidence in the administration of justice”[6] (my emphasis)
Lady Hale says “…open justice is there, not only to police the courts and the professionals who work in them, to ensure that they are doing their jobs properly, but also to reassure the public that they are doing so”.[7] (my emphasis)
The Chair of the Judiciary’s Transparency & Open Justice Board, Mr Justice Nicklin, says (in a published lecture[8]) that open justice is a means to an end, and not an end in itself: “it is a means to public understanding, scrutiny, and confidence”: its purpose is “the maintenance of confidence in the courts” (my emphasis).
But the outcome of open justice in this particular case has not been public confidence and respect, reassurance, or trust in the courts. Instead of bolstering public confidence in the judiciary (and the Bar), it’s undermined it. Watching the hearing was dispiriting and, at times, enraging. The overwhelming response to what happened in court is disappointment, anxiety and concern about what the judgment will bring.
We see ourselves as critical friends of the justice system. None of those involved in our Project is branding judges “enemies of the people”, imputing improper motives to the judges in this case, or seeking to impede the administration of justice.[9] Rather, in relation to this case, we are exercising a right of criticism. As was famously said: “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”.[10]
If any part of this commentary makes its way to a Supreme Court judge, I hope there may be some benefit for them in seeing themselves as others see them. It may be that they think us wrong-headed and misguided – but the observers’ views are held in good faith, and even if we’re all wrong, there is obviously a public relations problem. The challenge for the judiciary (and, it has also to be said, for the Bar) is to learn some lessons from what happened in this case and try to ensure that open justice in the Supreme Court in future does result in increased public confidence and respect and not – as in this case – the reverse. I reflect on what might assist that project at the end of this piece.
I’ll begin with a quick summary of the case (which goes by the catchy name “Reference by the Attorney for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998”), before moving on to the central issues: (1) Open justice in practice; and (2) Public experience of the proceedings. Then I’ll end with (3) Reflections
Summary of the case
The case addresses fundamental issues about the way the Deprivation of Liberty Safeguards work currently in England and Wales, and whether they can lawfully be changed.
The legal question at the heart of the case (raised by way of a reference from the Attorney General of Northern Ireland[11]) is whether or not it is permissible under Article 5 of the European Convention on Human Rights (the right to liberty and security) for the law to say that a person who lacks capacity to consent to their care arrangements can nevertheless give valid consent to those arrangements if they actively express positive wishes and feelings about the arrangements in place.
At present, following the 2014 Supreme Court judgment in Cheshire West [2014] UKSC 19, the answer to that question in England and Wales is a resounding “No”.
The Cheshire West judgment found that if a person lacks capacity to decide where they live and are cared for, and if they are subject to continuous care and supervision and not free to leave, then – if their living arrangements are ‘imputable to the state’ – they are said to be “deprived of their liberty”, even if they say they like where they’re living and appreciate the way they are being cared for. As Lady Hale famously put it in Cheshire West, “a gilded cage is still a cage”.
By contrast, if someone has capacity to consent to where they live and to the restrictions placed upon them, and does in fact consent, then – even if their care involves locked doors and windows and constant monitoring to keep them safe – that’s not a “deprivation of liberty”, because they’ve consented.
Many of the people currently detained in care homes and hospitals (more than 332,000 in England in 2023/2024 according to NHS statistics) lack the capacity to consent to arrangements put in place to protect and care for them. Because there’s no valid consent, this currently constitutes a “deprivation of liberty” – and that has legal consequences in relation to Article 5 of the European Convention on Human Rights (ECHR) .
The Deprivation of Liberty Safeguards (DOLS) are designed to ensure that the detention of people who lack capacity to consent to their residence and care arrangements is compliant with human rights. The arrangements must be the least restrictive possible, and in the person’s best interests. Although the concept of ‘best interests’ does take into account the person’s wishes and feelings, the fact that someone may be content or even happy with their care arrangements and positively wish them to continue does not in and of itself constitute “consent”.
The Attorney General is asking the judges to decide whether a non-capacitous person’s display or expression of positive feelings about their residence and care could be deemed to be “consent” – or whether that would breach Article 5.
So, if you have an impairment of mind or brain (such as a learning disability or dementia) that causes you to be unable to understand, retain or weigh information relevant to the decision about where you live and how you are cared for, can you ever be deemed to “consent” to your care arrangements? Might you ‘consent’, for example, by showing that you like the place and the people, and feel safe and cared for?
“Yes” says the Attorney General for Northern Ireland (AGNI) and two of the interveners, the Lord Advocate and the Secretary of State for the Department of Health and Social Security. Allowing “consent” under these circumstances would comply with Article 5 of the ECHR but also avoid imputing “deprivation of liberty” to people who are happy with their care – and thereby avoid unnecessary and expensive interference in the lives of disabled people and their families, with repeated assessments that can be distressing and intrusive. The UK government goes even further, arguing that Cheshire West was wrongly decided, and urging the court to overturn it. The Secretary of State argued further that some people who are currently deemed to be ‘deprived of their liberty’ – those incapable of consenting, who cannot form the will to leave, and don’t have the physical ability to do so (e.g. people in a prolonged disorder of consciousness) should not be caught by the Deprivation of Liberty Safeguards at all[12].
“No” say the Charities who are also intervenors in this case (Mind, Mencap and the National Autistic Society) and the Official Solicitor. Both the Charities and the Official Solicitor have intervened to argue that the concept of “incapacitous consent” is legal nonsense, in relation to the Mental Capacity Act 2005, and in relation to Article 5. A change to the law by this revision of Cheshire West would be unworkable in practice (they say), and would have the effect of denying safeguards to people who are vulnerable to harm.
1. Open justice in practice
Open justice takes work: as Mr Justice Nicklin has said, it’s “not self-executing”. In this Supreme Court case, the work was done both by the Court (and HMCTS) and by the Open Justice Court of Protection Project, and both were necessary to the successful achievement of open justice in this case.
The Open Justice Court of Protection Project is run by a core team of five voluntary (unpaid) members of the public (Daniel Clark, Amanda Hill, Celia Kitzinger, Gill Loomes-Quinn and Claire Martin: for more information about us see “Meet the Team”). Our goal is to support the judicial aspiration for transparency by observing hearings (the vast majority in the Court of Protection), blogging about them, and encouraging other members of the public to observe too. We amplify the reach of published court lists by posting them on social media and select out “Featured Hearings” for our webpage – sometimes adding a brief summary of a case or referring people to a blog post when we’ve watched earlier hearings in the proceedings. We also run regular webinars on “how to observe remotely in COP” and a WhatsApp group for observers, where people post questions and information about hearings they hope to observe. Finally, our “buddy system” provides support for people who would prefer to attend court hearings (usually remotely) in the company of an experienced observer who can help with access queries, explain the transparency order, and discuss substantive issues in the case, live, as it unfolds in real time[13]. Our buddy system can attract quite large groups of observers, depending on the case, but it’s often simply one-to-one.
The Supreme Court is much more open and transparent than the Court of Protection, so this case offered the opportunity for something much more extensive on the transparency front than we can normally achieve. Like the cases we normally observe in the COP, this case was heard in public, and it was possible to watch it in person or remotely, but there are some very significant differences.
Details about the hearing. Information about what the hearing was about was displayed on the court website months before the hearing, with a summary of the issues in the case. In the COP we usually only learn about hearings after 4pm the day before, and sometimes there’s no information at all as to what hearings are about. Where there is information, it is simply items selected from a pre-set list of “descriptors” (DOLS, s.21A, Appointment of Deputy, statutory will etc). This means, for COP cases, it can be hard for observers to plan ahead, select and to orientate themselves to cases. In addition to the advance notice and information about this case before the Supreme Court, I was impressed by the four-page paper handout provided to those who attended the court in person, which spelled out the issues, and provided key facts, plus a sketch of the seating plan at the judicial bench (so helpful in identifying the judges!), and the names of all the advocates so that we’d know who was speaking and on behalf of which party. (Identifying judges isn’t a problem in COP since there’s only ever one at a time, but discovering the names of the advocates in court and identifying who represents which party is often tricky in COP too.) The paper handout also gave the timetable for the three days – and I really don’t see why something like this couldn’t be provided to observers in COP hearings listed to extend over several days so that we can orient ourselves to the planned sequence of events.
The hearing was live-streamed and a public recording made available afterwards. The Supreme Court of the United Kingdom was created by the Constitutional Reform Act 2005 and it has broadcast its proceedings since its inception in 2009. Live-streaming meant we didn’t need to ask the judges’ permission to observe, or request an MS Teams or Cloud Video Platform link, with the risk of nobody answering our email, or responding too late. Also, watching a live-stream is more like watching television – there’s no anxiety about being addressed by court staff or even a judge (as happens quite frequently in COP), or broadcasting a private conversation to the court by accidentally turning our mikes on. We could dip in and out of the hearing without causing any disruption. I watched part of the live-stream on my mobile phone while sheltering under Westminster Bridge during a downpour on my way to the Supreme Court! The recording is now available to view on the court’s webpage (https://www.supremecourt.uk/cases/uksc-2025-0042) – which means people who weren’t able to watch it at the time (during the working day) or missed parts due to other commitments, can watch it later. I also used the recording to check the accuracy of my transcription in writing this piece – a luxury not available to me when I report on COP hearings. There are good arguments of course against live-streaming COP hearings and placing recordings on public websites – especially given that the protected party and their family are often involved – and I don’t rehearse those here.
There are no reporting restrictions. That’s because there’s no protected party at the centre of this case. Almost every COP hearing I’ve observed has been about the capacity and/or best interests of a particular person (“P”), who has the right to privacy. Reporting restrictions, in the form of a ‘transparency order’, are designed to ensure that observers can attend and report on the case without the risk of exposing the person’s identity. This Supreme Court case, by contrast, is an argument about a point of law.
Skeleton arguments were posted on the court website and available to download six days before the hearing. This meant we could read them ourselves, and consider their arguments, before the case began – and for those who didn’t have time or inclination (they are lengthy and complex) Daniel Clark, the core team member who took responsibility for publicising the Supreme Court hearing, produced a summary of them[14], which turned out to be a popular option. In COP, advocates produce what are called “position statements” (effectively the same as skeleton arguments) and it is virtually impossible to obtain these in advance of the hearing. They are often referred to in oral argument, and indeed replace some of the oral argument that would otherwise be before the court, making it very hard to understand what is going on without disclosure of them. We are sometimes (but still only sometimes) able to obtain them within half an hour or so of the beginning of the hearing (but that doesn’t leave much time to read them). The barriers to getting them any earlier (especially in the face of the Official Solicitor’s now-routine refusal to disclose her position statement without being so directed by the judge) have been documented in other blog posts, and the whole issue of access to position statements has very recently (and helpfully) been addressed by Mr Justice Poole in Re AB (Disclosure of Position Statements)[2025] EWCOP 25 (T3). But we still have to email the court to request position statements, those requests quite often don’t reach the legal representatives before the start of the hearing, and we regularly encounter refusals to disclose the documents. Refusals are almost always over-ruled by a judicial order to disclose if an observer makes an oral application, but most members of the public are unwilling or unable to go through the process of challenging a refusal (as set out at §36(7) and (8) of Poole’s guidance). Even when parties don’t refuse to disclose, access to these court documents is routinely delayed by legal teams not having instructions from their clients (why don’t they anticipate that members of the public might attend public hearings and get instructions on disclosure in advance?) or by not having redacted or anonymised their statements in compliance with the transparency order (despite the guidance that “[p]arties preparing position statements should foresee that an observer at an attended hearing in public might request an electronic or hard copy and should therefore prepare suitably anonymised position statements which comply with the Transparency Order” (§36(2)). I appreciate why it isn’t possible to put COP documents on a public website in advance of the hearing, given the sensitive personal information they contain, and I also appreciate there has been a massive improvement in disclosure of position statements following Poole J’s judgment. But what a difference it makes to transparency to be able to download skeletons from a website and read them at leisure days in advance of the hearing!
This is a landmark case, affecting thousands of people’s lives: we had lots of advance warning about the hearing, no transparency restrictions, and lots of documents about the case available in advance, plus some experience of doing something like this before in the Supreme Court, albeit on a smaller scale.[16]
Amplifying open justice for the Supreme Court
Building on the opportunity offered by the Supreme Court’s much greater transparency, Daniel Clark, took overall responsibility for amplifying it. Some of the tasks involved (which make visible what it takes to make transparency a practical reality) were:
Asking the Court for easy (or easier) read version. Celia approached the Supreme Court about this, asking whether the case descriptor could be updated so that it was easier to understand. While the descriptor was somewhat simplified in time for the hearing, it was a long way from “easy read”. (Perhaps one of the charities will produce an easy read version of the judgment?)
Chasing skeletons. The Supreme Court’s Rule 42 states that skeleton arguments will be published a week before the hearing. After a bit of back and forth with the court, some of which implied that the court regularly doesn’t meet its own deadline, most of the skeleton arguments were published on 14th October 2025 – so six days before the hearing. Another was added two days later.
Answering questions from the public in advance. Some of the people in the WhatsApp group had experience of observing Court of Protection hearings, and so there were some questions about how we’d be able to watch this hearing given that we didn’t need to ask for links to be sent to us. There were also some questions about whether there’d be any reporting restrictions (no) and whether we’d need to ask for skeleton arguments (also no).
Coordinating blogs. Ahead of the hearing, we decided to publish a mix of explainer and commentary blogs. In the end we had a steady flow of blogs in the couple of weeks before the hearing, and these assisted discussion in the WhatsApp group.
Setting up the WhatsApp group. We wanted to ensure maximum reach and advertised the group widely on social media. We decided early on to ask participants to observe the Chatham House Rule so that people could speak more freely about their opinions and experiences. Only Daniel Clark, as organiser, has waived his anonymity.
Managing the WhatsApp group. This meant ensuring that everybody who asked for it was sent the access link, and as people joined throughout the three days, we made sure that useful information – links to the blogs, images of the handout provided by the Supreme Court, the link to the live-stream itself – was re-sent.
Updates. After the first day, one group member suggested that a summary of the day’s argument would be helpful. Daniel was happy to oblige, initially posting it on our homepage and then turning it into a blog post that he updated each day. As expected, people were dropping in and out of the hearing and the discussion of it, and Daniel’s updating blog meant that someone who missed (for example) the afternoon of day one could still have an idea of what had happened in time for the start of day two.
Daniel explains what motivated his work on this project.
“In a speech in June of this year, Mr Justice Nicklin, the Chair of the Judiciary’s Transparency and Open Justice Board, said that “open justice is not self-executing”. I agree. In terms of transparency, the Supreme Court was close to perfect – simple access, pre-published skeleton arguments, even a pre-published statement of agreed facts. As the Supreme Court had done its best for transparency, I felt we could build on that by making the hearing even more accessible and transparent via the WhatsApp discussion group. But I have to admit that this wasn’t all about transparency. A chapter of my PhD thesis is dedicated to DoLS, so I simply had to observe this hearing, and I knew that the group would be a great opportunity to share thoughts and questions. Now I just have to think about how my thesis, which will almost definitely be submitted before the judgment, can address this case.”
On 15th October 2025, four days before the start of the hearing, Daniel set up the discussion group. People began joining and introducing themselves soon after.
Many of the 150+ people who joined our discussion group have their own strong views about the deprivation of liberty safeguards, based on professional and/or personal experience. Group participants include social workers, DOLS and best interests assessors, COP lawyers, academics, healthcare professionals who work with the Mental Capacity Act (often as MCA Leads), and family members of people who’ve been assessed for DOLS.
We wanted to hear the arguments, and the questions of the judges, as they unfolded in real time, and to be able to discuss them with others who were also invested in the decisions that the Supreme Court will (eventually) arrive at.
This is open justice and transparency in action. And, as is usually the case in our experience, we can’t rely on journalists for that: we hardly ever see journalists in the Court of Protection, and I don’t know if there were any in observing in real time in the Supreme Court (remotely or in person).
Rather than learning about the Supreme Court’s deliberations at second-hand, filtered through the lens of the (relatively few) journalists who’ve reported on the case with heavy reliance on press releases and without attending the hearing, we wanted to have the experience of being there, in court, with the advocates, judges, and other observers – and to engage with the issues as they emerged.
In the run up to the start of the hearing
In the days prior to Monday 20th October 2025, the date for the hearing to start, Daniel used the WhatsApp group to highlight the blogs and the skeleton arguments.
On the Saturday, there was a surprise announcement from the government: it was launching a consultation exercise about the long-awaited Liberty Protection Safeguards. I posted that on the WhatsApp group too.
There were some sceptical responses about the timing of this announcement (at the weekend, just before the beginning of a Supreme Court case on the Monday) but one more charitable participant commented:
Early on the Monday morning, Daniel reminded everyone of the benefits of doing some advance preparation:
Quite a lot of people had joined the link over the weekend (and the numbers steadily increased over the course of the three days of the hearing). For many of us, there was a lack of clarity both about where the link would be posted and what time it would start. (The Court could usefully help with both of these issues in future.)
One contributor had been informed that the hearing would start at 10.30am, but another said one of the advocates had told him it would be 11am (which turned out to be correct).
And someone attending court in person (not me, I hadn’t arrived yet) had found the 4-page handout, and photographed it for people observing remotely. That was enormously helpful – but couldn’t it have been placed on a Supreme Court webpage please?
And while we were all waiting, people began to discuss the substantive issues of the case.
At 10.18am, someone spotted that the link to the hearing had been made available and posted it for all of us.
Then, on the dot of 11am, the court rose.
Access challenges
Participants observing remotely experienced problems with the volume – it was “very quiet” and sometimes “dips in and out”. Turning up the volume on our laptops helped. It was frustrating not to be able to turn on subtitles on the livestream (you can on the recorded version) and that raises access issues for Deaf people and those with hearing impairments. A few participants were also still looking for the link.
I was observing that day at the Supreme Court in person – and that was a generally good experience, that compared well with my experience of in-person observation at other courts. There was less of a queue than at the Royal Courts of Justice to get through the usual airport-style security. Staff were able to direct me to the right courtroom – and despite the warnings on the website, there was no objection to my using my laptop in the courtroom (many other people had theirs out too).
The main problem with in-person attendance was terrible sound quality on the first day. I simply couldn’t hear from the back of the court. When I complained to court staff, I was advised to sit in Court 2 which was live-screening the hearing from Court 1, but that would have rather defeated the purpose of being there in person. I also mentioned the problem to a couple of the lawyers (one of whom said she was struggling to hear too), and the following day it was somewhat improved – although even the judges occasionally had problems (Lady Rose to Lord Advocate: “I’m so sorry can you keep your voice up – I’m struggling to hear when you’re facing that direction”, 14:30 21st October 2025 morning session).
As always, the in-person court observer, sitting toward the back of the room, has a distant view of the judge(s) and can only see the backs of the advocates’ heads. It’s obvious from the online discussion (and, later, to me when viewing via the link) that remote screening provided a much more up-close-and-personal viewing experience. I missed the “side eye” from Lady Rose, and didn’t see Alex Ruck Keene apparently “bobbing up and down”. The advocates had their backs to me, and most of the time I couldn’t see the judges (and certainly not anyone in the row behind the judges) because the judges are not on a raised dais, the seating isn’t raked, and I was sitting behind people taller than me who were obscuring my view. I admired Lady Rose’s brooch (commented on in the chat) once I reviewed the recording but it was way too far away to appreciate in the courtroom! In terms of the quality of the observation (listening and seeing the court), the online experience is vastly superior[17].
Nonetheless, to be in the Supreme Court in person for a historic case –to be able to say “I was there on that day” (as someone put it) – “in the room where it happened!” (another responded) – was exciting and some of the remote observers expressed envy that I was able to be there is person. Another in-person observer shared images from inside the building (we weren’t allowed to photograph the hearing in progress):
Courts are public buildings, and this one (unlike most) seemed to function as such. It’s a minor tourist attraction, after visiting the Houses of Parliament and photographing Big Ben. During the time I was there over the course of two days, I spotted at least three different student groups visiting the lower ground floor exhibition and the café, and one group of about a dozen young people filed into the hearing and stayed for about 15 minutes before being led out again after experiencing the Supreme Court in session. The exhibition has short educational videos on continuous loop (e.g., on the separation of powers) and the illustrative cases are designed to appeal to public interest (e.g. treatment withdrawal, assisted dying, civil partnership). It’s less grand and austere than the RCJ, less ‘bureaucratic’ than First Avenue House, and not at all shabby and depressing like many of the decaying regional courts. I’d recommend a visit.
After the proceedings, people who’d missed observing at the time were keen to watch the recordings, and others wanted to listen again to particular parts. I made this slide (below) to help people locate particular speakers on the recording, and it may be useful to readers of this blog post too, in providing an orientation to how the hearing was organised.
2. Observers’ experience of the proceedings
The sense of excited anticipation that characterised the build-up to watching the hearing subsided fairly quickly once proceedings began. It became apparent that there was a significant gap between the observers’ professional and experiential knowledge about the Mental Capacity Act 2005 (and Deprivation of Liberty Safeguards) and the legal theory being discussed in court. The discussion group comments reflect increasing dismay – and commentary about the hearing cascaded out of our private WhatsApp group onto social media.
Social worker and experienced Adult Care Manager, Tilly Baden, who has ‘outed’ herself as a member of our Supreme Court observers’ group in her article for Social Work News, reports that over the course of the three days, observers “veered between disbelief and gallows humour. The collective feeling was one of weary frustration”.
“It often felt like an out-of-touch seminar on the theory of umbrellas while the rest of us were standing in the rain. There were points where you couldn’t help wondering whether some participants had ever set foot in a care home, spoken to a best interests assessor or even – *shock horror* – met a person actually living under restrictions. […] While the heavyweight legal parties flexed their procedural muscles, those who live and breathe the Mental Capacity Act were almost invisible. No frontline workers, no family carers, no advocates. Just a roomful of wigs[18]dissecting the philosophy of liberty as if it were a word puzzle rather than a lived experience.”[19]
This doesn’t tell the whole story of our experience, but it’s certainly a significant part of it. We were repeatedly surprised by what the courtroom actors appeared not to know about the way the current law works, in the daily experience of many observers.
The exceptions were undoubtedly Victoria (Tor) Butler-Cole KC (for the Charities) and Emma Sutton KC (for the Official Solicitor) – both of whom regularly appear in Court of Protection proceedings and have an excellent grasp of issues on the ground. Both pointed out that because of the way this case has reached the court – as a Reference – “you have no real-life examples of these hypothetical people who simultaneously lack capacity to consent to their care arrangements, but can nevertheless give valid consent to them for the purposes of Article 5” (Tor Butler-Cole’s words). Emma Sutton KC likewise drew attention to the absence of real people at the heart of this case and sought through evidence placed before the court to “bring the abstract to life”. Her “case studies” wove human stories with legal argument to make the case against the AGNI’s and SOS’s proposals, and humanised the issues with concrete examples of the dilemmas and contradictions that would be created if the AGNI’s proposals were adopted – cheered on by the observers in our discussion group. Both lawyers impressed observers with their clarity and the sense that they were in touch with how processes actually work. Their submissions were rooted in practical hands-on experience with DOLS in real cases.
But the overall experience of observers was that key players, the people with the most extensive input into the hearing – the judges, and counsel for the Attorney General of Northern Ireland (AGNI), counsel for the Secretary of State, and the Lord Advocate – did not really understand the way things work at present, and were not in a good position to appreciate the risks and benefits of the changes advocated in this case.
I’ll illustrate the concerns expressed by observers as they unfolded in the order in which submissions were given. In what follows, I’m not attempting to summarise the arguments of the parties (you can read the skeleton arguments on the UKSC website and the “summary” blog post for that), but rather to show how the public observers responded to what they were hearing.
The proceedings got off to a bad start when Tony McGleenan KC (counsel for the AGNI) introduced the case. He said: “The focus of the case is on the phenomenon of social care detention wherein many thousands of people with diminished mental capacity who are resident in forms of social care placements, which might be residential homes, care homes, assisted living placements or even in their own homes, are considered to be deprived of their liberty for the purposes of Article 5 of the Convention.” (05:30, 20 October 2025, morning session)
One observer immediately picked up on the omission of hospital care in considering DOLS (it was discussed by the court later).
One of the judges, Lady Rose (generally considered most ‘on the ball’ by observers) tried to unpick a different problem with the AGNI’s version of “the focus of the case”: the inclusion in his list of places of confinement to which Article 5 might apply of “in their own homes”. It doesn’t – at least not in England and Wales. Perhaps it does, she queried, in Northern Ireland.
Rose: This [DOLS] in England and Wales is for (pause) care home and hospital?
AGNI: Yup.
Rose: But are you saying this is the process in Northern Ireland, which I don’t think has that same distinction between deprivations of liberty in care homes and hospitals and other deprivations of liberty?
AGNI: The reach is wider in the Northern Ireland legislation.
Rose: Yes, so is this the process that applies in Northern Ireland more generally even if it’s not in a care home or hospital?
AGNI: Yes, the broad concepts apply in Northern Ireland, but I’ll show you there’s a greater reach. And there are some other material differences. That’s just to sketch the issue to the court. (13.07, 20 October 2025, morning session)
Lord Reed tried again, raising the question of the precise reach of DOLS in Northern Ireland, and indeed perhaps in England as well – rather a key issue for this hearing! It was Alex Ruck Keene KC (Hons) (ARK) – “junior counsel” for the appellant, who provided the court with the right answer.
Reed: Is DOLS applied more widely in England and Wales to cover cases like MIG and MEG, where someone isn’t in a care home?
AGNI: That’s what we understand to be the case, My Lord, yes.
ARK: (whispers to Tony McGleenan KC [AGNI])
Reed: So while this process refers to the care homes and hospital, it in fact is applied more widely, not just in Northern Ireland but also in England and Wales?
AGNI : Yes. Yes. That’s by way of sketch of the position, generally. Can I take you to the Northern Ireland statutory scheme which I-
Reed: (interrupts) You’re about to be corrected by your junior.
ARK: (more whispering to Tony McGleenan KC [AGNI])
AGNI: According to Mr Ruck Keene, outside the care home arena, there’s a court order procedure that’s required.
Reed: The Court of Protection?
AGNI: Yes.
(13:43 20 October 2025, morning session)
As observers commented:
I don’t want to give the impression that criticism of the court actors was the dominant theme of the discussion – it wasn’t. Most of the time people were seriously engaged in trying to follow the arguments and get to grips with how the alternatives that were being proposed to the current DOLS system, as defined by Cheshire West, would actually work.
There was some discussion of the alternative framework in Northern Ireland.
Some observers recognised the force of the arguments counter to Cheshire West raised in High Court judgments from Mostyn J and Lieven J – both of which were overruled in the Court of Appeal with what the AGNI described as a “fairly firm rebuke”. Some observers accepted that this has led to “an ossification of a line of authority that can’t be overturned” (AGNI, 1:35 20th October 2025 afternoon), which is why the issue is now before the Supreme Court as a Reference and not as an Appeal. Nobody suggested that the system is working well as it stands – but proposals for change need to be rooted in an accurate analysis of what the problems are and how to fix them on the ground.
Later, the comment from counsel on behalf of the Charities that there is no real evidence to suggest that people experience DOLS assessments as intrusive also attracted attention. People drew attention to blog posts from some family members who do[20] experience the DOLS process as intrusive, and to this post on X from Mark Neary which shows his son leaving the house to go shopping, buying his purchases and returning home – by way of lampooning the applicability of the concept to his son’s living arrangements. (Mark Neary was also referenced by the AGNI)[21]
Observers became increasingly frustrated at the lack of clarity and detail in the submissions from the Attorney General of Northern Ireland.
The language used to refer to people who may lack capacity to consent to their care arrangements was a recurrent concern that surfaced initially in the course of the Appellant’s submissions via a question as to whether a subcategory of people currently affected by DOLS – those unable to recognise any confinement and restrictions, incapable of forming an intention to leave, and physically unable to leave in any event – were actually “deprived of their liberty” in the sense required by Strasbourg jurisprudence. This line of questioning was quite confusing and would more properly have been directed to the Secretary of State (whose proposal it was to exclude them from the Deprivation of Liberty Safeguards) – and the terminology used was at best uninformed and at worst explicitly derogatory:
PVS, demented, catatonic people and ‘old dears’
Reed: I find it very difficult to understand in what sense a person who’s unable to form a wish to leave somewhere, and may also be physically unable to do so, can be said to be deprived of liberty at all. (puzzled tone)
Hodge: Yes, I was going to (laughs) raise that point. Is the Strasbourg jurisprudence saying that such a person is deprived of liberty?
Reed: I mean, if you have somebody in a persistent vegetative state[22]in the home, is that person being deprived of their liberty? Surely not. If they’re not, what about somebody who is so demented they’re effectively catatonic. Just spend the day in front of a television set. Is that person- In what sense does that person have any liberty which she can be deprived of?
AGNI: That’s why it’s important- I probably flashed across it too quickly, but when you go back to Guzzardi, Guzzardi[23] emphasises that what’s in play is physical liberty. That’s what Article 5 protects – physical liberty. So, if an individual is in a PVS state – immobile, unable to communicate – it’s difficult to see how there is a restraint or a deprivation of physical liberty in that context that engages the whole machinery that starts the process off. So, My Lords….
Reed: What about the old dear who is simply got out of bed in the morning, given a- washed, and put in front of a television until it’s bedtime. (Shrugs and shakes head from side to side as if in disbelief). I mean, what liberty does that person have to be deprived of?
AGNI: Again, on that analysis you significantly narrow the cohort of individuals who’d ever be caught by the Deprivation of Liberty Safeguards.
Reed: Well, that may be.
Rose: Well, how are they treated at the moment? Are the people posited by my Lord, Lord Reed, treated as if…
AGNI: There’s a deprivation of liberty.
Rose: They are treated as deprivation of liberty cases. And your proposed revised guidance wouldn’t affect that?
AGNI: Not in the cases where there’s an inability to express any wish. It wouldn’t necessarily affect that.
Hodge: Well then it comes back to the question, is there Strasbourg jurisprudence which supports bringing these people within Article 5?
AGNI: Not expressly, My Lord.
Hodge: Well on what basis is the domestic law, given that it’s tracking jurisprudence on Article 5, applying a deprivation of liberty regime to them?
Not long afterwards, Lord Stephens referred to people who are “drugged up” and “suffer from Alzheimer’s”; Lady Rose raised a question about a hypothetical person “chained to the sofa” to stop her from leaving (1:14); and then Lord Reed summoned up “the bedridden person who is physically incapable of leaving the hospital”. In the afternoon of the same day, counsel for the AGNI referred to “catastrophic dementia” (1:38) and the theme of “catatonic” dementia[24] was picked up on the last day of the hearing by Lord Sales[25].
I recognise that this focus on the permanently unconscious, catatonic, catastrophic, seriously demented and bedridden was designed to test the proper scope and limits of the concept of “deprivation of liberty” in Strasbourg case law – and it goes to the heart of one of the issues before the court. But the language used was ill-advised and contrary to guidance put out by the relevant charities and professional bodies[26]. It felt discourteous to the people the judges were referring to, and it evoked a visceral response in many observers that made it impossible to focus on the substantive issues at stake. In a blog post afterwards, Mental Capacity Consultant, Lorraine Currie[27]said she was “horrified”. On X, Court of Protection and Community Care specialist solicitor Zena Bolwig said she also “recoiled at the language used a number of times”. On LinkedIn, consultant clinical psychologist, Dr Catriona McIntosh found it “shocking” [28]and a legal professional with more than a decade of COP experience responded to say she was “taken aback”. Also on LinkedIn, the open justice legal commentator, George Julian, said “after watching 1.5 days of the case if I were a Supreme Court judge I’d like to think I’d have a word with myself about my internalised ableism and how readily prepared I am to demonstrate that to anyone watching. Some of the language and phraseology I found eye-popping“. Our discussion group members were frankly appalled.
The next morning, while people were waiting for the hearing to start again, there was this exchange:
A little later in the proceedings, Lord Reed tried to shed light on how best to address the matter and said, “ I mean one way of putting it is to ask whether a person who lacks autonomy is capable of possessing liberty, within the meaning of the Convention.” Again, I appreciate that this is a “way of putting it” that goes to the heart of the question before the Court, but it didn’t go down well with the observers.
It was reassuring to see Emma Sutton KC (for the Official Solicitor) address Lord Reed’s point (as she put it) “head on” on the final day of the hearing. My understanding is that, under the circumstances, this was a “brave” thing to do, and it was commented on by COP solicitor, Jess Flanagan, on LinkedIn.
Here’s what Emma Sutton said: “I’d like to address the point, head on, raised by Lord Reed on Monday – I think it was – that people with significant cognitive impairments do not have liberty to lose. And I would invite the court to be extremely cautious before reaching that conclusion, having regard to the universality of rights. But perhaps more importantly, that requires a type of medical approach that P has no subjective experience of the world at all – and that’s an extremely difficult conclusion to reach, but for unconscious or minimally conscious states, so the cases of Ferreira and the case of Briggs.” (1hr 10mins and 34 seconds, Wednesday 22nd October 2024).
By the end of the AGNI’s submissions on the afternoon of the first day, observers were deeply frustrated and concerned too about the practical implications, which were discussed in advance of the beginning of the second day’s proceedings.
The Lord Advocate[29], who spoke on the second day, did not help matters. She is the principal legal adviser of both the Scottish Government and the Crown in Scotland for civil and criminal matters that fall within the devolved powers of the Scottish Parliament. Her submissions were experienced as muddled and confusing. She was trying to read from a text, but was frequently interrupted by the judges who, like us, seemed also not to be able to follow her line of argument – and, as some of the observers commented, the judges’ sometimes rather sharp interventions felt “uncomfortable” and “like a grilling”.
After the Lord Advocate, the counsel for the Secretary of State for Health and Social Care[30] made confident submissions but she was not (said the observers) always correct – and the judges remained (they thought) “confused”.
As counsel for the Secretary of State was speaking, the observers found themselves shouting the correct answers at the screen, or wanting to raise their hands to provide accurate information.
Counsel for the Secretary of State was followed by Victoria Butler-Cole KC for the Charities, By around half way through her submissions, the observers were losing patience with the judges again – especially at the point at which first Lord Stephens and then even more painfully, Lord Hodge, appeared not to be aware of the Mental Capacity Act’s definition of “capacity” as requiring an ability to “understand, retain and weigh” information relevant to the specific decision that needs to be made (1:30-1:31:34). Counsel explained it all, without a hint of impatience – while observers were posting palm-to-face emojis and asking “How do they NOT know the functional test?!”, “Oh god. They are being taught the MCA”; and “Surely this lack of knowledge and understanding should preclude them making a decision?”. Some of us tried – either then or later – to put a positive spin on what looked like judicial ignorance. Maybe they were just wanting to put the facts and the law “on the record”. Maybe some of Lady Rose’s questions (like her enquiry about what exactly a “care package” is, at 1:06:50) were designed to ensure that her fellow judges were exposed to the information she thought they needed, but she already knew? Maybe they’ll “catch up” with what they should have known before after the hearing?
3. Reflections on open justice – the outspoken comments of public observers
So, coming back to where we started: “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”.[31]
It took a lot of work from the Open Justice Court of Protection Project to support members of the public to observe this hearing (“I would not have known how to watch if it wasn’t for you”) and to support informed engagement with the case – via blog posts introducing the issues before the court and by hosting a public forum for discussion. Observers were mostly health and social care professionals working with the Mental Capacity Act – plus some lawyers and some (like me) family members of people who lack capacity to decide about care and residence. There was an expectation that watching the case would be educational and improve practice: a couple of participants told me they had negotiated Continuing Professional Development points for the exercise. We were excited by the prospect of watching “the brightest legal minds in the country” (as one participant referred to them) address the problem of DOLS. But overall, watching the Supreme Court in action left people “shocked”, “disillusioned” and “devastated” about the workings of the justice system in this case. For example, in emails to me after the hearing people said this:
“I was utterly shocked by their complete ignorance of the basics. It felt rude and disrespectful to thousands of vulnerable people that they had not bothered to read something on what the MCA is before commencing their involvement in life changing decision-making. I expected evidence and questions to fine tune their knowledge, not for it to be addressing the basics I would be covering with my students.”
“I feel very disillusioned with the quality of the court’s understanding – both the advocates and judges…. It’s interesting to contrast this with the debates in Parliament over the Mental Health Bill – where the level of in-house understanding and expertise is so much higher. I guess that’s why people say that Parliament, not courts, should legislate for these serious matters”.
“As a social worker of longstanding, a BIA and manager of a team undertaking COMDOLS, I was quite devastated by what we heard at the SC last week. The depth of the misunderstanding by some of the judges about MCA basics, about the reality of the lives lived by those who meet the acid test, and about the limitations of our depleted and exhausted care system hurt to hear.
With my work hat on, I have seen too frequently the restrictions that have become invisible, the management strategies where convenience rules, and the damage to rights caused by unchallenged “custom and practice”.
With my home hat on, I have seen my father this summer spend 6 weeks in hospital after a fall, followed by 16 days in a nursing home with no DoLs – not because he didn’t merit this but because the overstretched DoLs team did not get to him. And so, his door was shut because he kept wandering, his walking aid was kept the other side of his room and his bed lowered so that he did not get up for the toilet when unsupervised. I have seen my son (who now has excellent care with a great provider), prevented by previous providers from drinking so he didn’t wet the bed while seizing, and restrained using techniques not recorded or subjected to BI and prevented from entering certain areas of his accommodation.
The system is overwhelmed, we all agree. But fixing it must not be achieved through watering down the protections that are so vital for those they are designed to safeguard. The voices of professionals working with the MCA every day were missing last week just as were the voices of Ps and their families.”
The comments above are not attributed to individuals because most people feared professional repercussions – from employers perhaps, or from judges before whom they may be making submissions in future as advocates or giving evidence as expert witnesses.
Open justice, says the Lord Chief Justice, “requires those present at a hearing to be able to discuss, to debate, and to criticise what was said and done by the parties and the judge, and even the judgment”[32]But it’s remarkable how few of the lawyers, scholars and experienced practitioners in this field feel able and willing to put their names to explicit criticism of what they’ve witnessed or to respond, frankly, in public, to what judges have said. Without feedback of the sort in this blog post, I suspect that the lawyers and judges would have no idea how the public responded to what they saw in the Supreme Court – and therefore no opportunity to repair the damage, e.g. by addressing these issues in the published judgment and by finding ways to avoid these criticisms on the next occasion.
The judges (and some of the lawyers) need to know that they (unintentionally, I’m sure) displayed what many observers experienced as discourteous and uncivil attitudes to people with disabilities, and a rather cavalier approach to the day-to-day realities of these people’s lives, and the lives of their families and those who care for them. I hope that this blog post enables them to see themselves as others see them and thereby perhaps to generate for themselves some ideas about how to create a more positive image of the court in future.
Even if they think our views of what went on in court are wrong, or muddle-headed or the result of our misunderstanding the proceedings – still there is a problem that needs to be addressed. That’s because open justice, the purpose of which is to build trust and confidence in our justice system, has had the opposite effect in this case. Instead of bolstering public confidence in the judiciary (and the Bar), it’s undermined it. Open justice has backfired, and this should be of grave concern to the court.
We recognise that there are only 12 Supreme Court judges to hear all the cases that come before the court, and that they can’t be experts in everything. On the basis of this hearing, there’s a shared view that we desperately need a judge with experience of the Court of Protection (or Family Division) in place before another case relating to mental capacity or DOLS reaches the Supreme Court. Lord Richards is retiring in June 2026 but the vacancy has been advertised for someone with “substantial experience in equity and corporate law“. We hope that the next vacancy can be reserved for someone from the Court of Protection or Family Division.
Until then, we ask these judges – who are highly educated (6 of the 7 have Oxbridge degrees) and highly paid (their annual salary is £254,274) to explore what it would take to create a better impression on the public. One suggestion might be more pre-hearing preparation. In a lecture on “working methods of the Supreme Court”[33], Lord Burrows says that he usually spends “about a day” in advance of a hearing reading “key documents”, followed by a brief (15-minute) discussion with fellow justices to discuss “procedural matters and our preliminary view of the case”. In an area of law in which none of the judges has any prior experience, this doesn’t sound nearly enough!
We don’t want grandstanding from counsel, or judges playing to the public gallery – but we do think they need to be a bit more aware of the values and principles that members of the public bring to hearings (whether or not they share them) and conscious of the subject-specific knowledge and experience that informs us (of which they may know little or nothing).
For our observers’ group, the experience of open justice in the Supreme Court has backfired and the Court now needs urgently to consider what they can do build public confidence in the justice system.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 600 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)
[1]A Reference by the Attorney General of Northern Ireland of a devolution issue under paragraph 1(b) of Schedule 10 to the Northern Ireland Act 1998 UKSC/2025/0042
[4] For the avoidance of doubt (as lawyers like to say), I don’t include myself in this group. I know a lot about facilitating and developing open justice in the Court of Protection, but not very much about the daily processes whereby capacity assessments, best interests assessments and other decisions are made, or the way in which the Mental Capacity Act 2005 is implemented outside of the courtroom itself.
[9] Making harshly critical and offensive comments out of court about judges used to be a criminal offence in England and Wales, called ‘scandalising the judiciary’. It was abolished by Section 33 of the Crime and Courts Act 2013.
[11] Under the Northern Ireland Act 1998, a “devolution issue” (including whether an Act of the government of Northern Ireland would be invalid as breaching the rights protected by the ECHR) may be referred to the Supreme Court for determination. The question referred to the Supreme Court on this occasion arises in the context of the provision of care and treatment for persons with cognitive impairments, and how their rights to liberty and security – under Article 5 of the ECHR are safeguarded. “The Attorney-General considers that the proposed revisions to the Deprivation of Liberty Safeguards Code of Practice (the ‘Code’) would adopt an approach to the scope of Article 5 which would differ from that outlined by the Supreme Court in the case of P v Cheshire West and Cheshire Council & Anor [2014] UKSC 191; [2014] AC 896, but which would nonetheless satisfy the requirements of Article 5. Accordingly, the Attorney-General seeks confirmation that the Minister of Health would have the power to issue the revised Code.” (from the very helpful leaflet about the case made available to people attending the Supreme Court in person).
[12] This is based on the argument (sometimes referred to as “the Ferreira Exception” although the case law therein referenced applied only to people in ICU and this is a significant extension of it) that “the true cause of their not being free to leave is their underlying illness”, not state detention. (R (Ferreira) v H M Senior Coroner of Inner South London & Ors (2017) EWCA Civ 3 (Court of Appeal) (Arden and McFarlane LJJ, Cranston J)
[13] The experienced observer and the novice(s) watch on their own laptops at home and communicate via WhatsApp in a separate confidential group set up specifically for that hearing and only open to observers once they confirm receipt of the transparency order (to ensure compliance with it).
[17] On the other hand, someone who was in the physical courtroom when I wasn’t there said that at least one of the judges had nodded off to sleep during the submissions. That wasn’t apparent from the recorded version, because the camera provides only a distant view (if any view at all) of those who are not speaking, and zooms in on whoever is making submissions and the judge responding to them.
[18] Neither the judges nor the barriers were wearing wigs (not required in the Supreme Court since 2007) but “wigs” remains a common synecdoche for judges (and barristers) as a potent symbol of their authority, much as does the gavel – something never used in English courts.
[21] Mark Neary’s objections to the use of “deprivation of liberty” was also cited by the AGNI. At 1hr 10 mins: AGNI refers his son as being “back home doing what he likes to do and king of his castle” and says that Mark “finds it very difficult to square that with the idea that he is “deprived of his liberty’.”
[22] This term is largely superseded these days by the umbrella term “prolonged disorder of consciousness” [PDOC] which would also have been the better diagnostic concept to invoke in this situation (since I suspect that the use of “persistent” was inspired by Airedale NHS Trust v Bland [1993] 1 All ER 821, a case in which the patient would now properly be referred to as in a PDOC). It’s a minor point, and judges can’t be expert on everything, but it grates nonetheless – because it’s not just language that’s at issue, but a body of knowledge which the judge, inadvertently, shows she doesn’t possess, and that knowledge has implications for the arguments being made. The structure of court hearings doesn’t permit of the opportunity for correction or education.
[29] The Lord Advocate is Rt Hon Dorothy Bain KC and she was representing herself (with Ruth Crawford KC and Lesley Irvine) (starting at 1:40:50 on the recording of 20th October 2025, afternoon session, and continuing the next day, 21st October 2025, until 1:42:30).
[30] The Secretary of State for Health and Social Care was an intervener, represented by Joanne Clement KC (with Zoe Gannon). (starting at 1:42:40 on 21 October 2025 in the morning session and continuing in the afternoon until 1:01:32).
Those familiar with Court of Protection hearings may have heard judges mention at the beginning of a hearing that they have already received a draft of the order being sought. This can be either an order that has been prepared by a single party and sets out what order they would be seeking the court to make at the hearing and can be used as a starting point for discussion; or in the alternative it can be an order that has been prepared jointly between the parties and represents their agreed position. Occasionally if an agreed order is lodged in enough time before the hearing, the judge may agree that the hearing is no longer be required, and this is one of the reasons why hearings are sometimes vacated (see: Last-minute vacated hearings in the Court of Protection).
Orders prepared by a single party can create the impression that one party is pre-empting the judge’s decision before the case is heard, potentially undermining the right to a fair trial, not only for P but for others involved. There may also be a perception that this step is unfair to others who are involved, particularly where this includes lay parties who are themselves not legally represented.
Unlike adversarial settings such as criminal proceedings where parties have opposing goals, the Court of Protection operates collaboratively. Everyone involved is striving for an outcome that will be in P’s best interests, although they may disagree on what that outcome should be.
Filing draft orders before hearings is not about ambushing the other side or influencing the judge. It is a procedural requirement. Lawyers must follow the Court of Protection Rules and Practice Directions, which is the literal rulebook for these cases and how they should be managed. Practice Direction 3B to the Court of Protection Rules sets out that when the application is first filed it must contain a draft of the final order sought (paragraph 2.3(1)(a)) and furthermore that when a final management hearing is to be heard that a draft order should be filed in advance (paragraph 2.6(2)). Practice Direction 4B also sets out what documents should be filed with the court in advance of a hearing, specifying that this should include what directions are sought (paragraph 4.3).
One might ask why this is necessary. Should it not simply be up to the judge to decide what order to make after hearing from everyone? There are certainly occasions where that happens, particularly when the parties cannot agree on what should happen next.
In practice, in most cases the parties will have exchanged evidence and correspondence, often over several weeks, and should hopefully have an understanding of the issues, any gaps in the evidence, and what they believe the judge should be asked to do. By way of example:
P is in a care home but owns their home and wants to return to it. The evidence does not say what state the property is in, or whether any adaptations might be required. Those representing P may therefore state that what is needed now is evidence to deal with those things, so there is a good picture of how a return home would work. The judge is asked to order someone to visit the home and write a report in plenty of time before the next hearing, and parties are to be invited to a RTM to consider the findings and come to the next hearing with what they think the next step should be.
It is common for a meeting between the parties to take place shortly before the hearing, sometimes even an hour beforehand, to try to reach agreement on the way forward or at least to identify the issues the judge needs to determine. That meeting by default would involve everyone who is joined as a party to the proceedings. If agreement is reached as to what should happen next by way of filing evidence and other directions, the parties will prepare a draft order for the judge to consider. When this is sent to the judge it is clearly marked as being agreed between the parties.
It is important to recognise that an agreed order does not bind the judge to approving it. Any draft order is simply a starting point, and the judge may have questions about the timescales or otherwise want to have some explanation provided as to why they should approve the order that has been supplied. It certainly is not axiomatic that a judge will approve an order simply because it is agreed between those who discussed it and drafted it.
Where agreement is not possible, each party may submit their own version of the order they are seeking. This helps the judge understand the extent of disagreement and the arguments that will be made.
Ultimately, the purpose of lodging draft orders is to assist the court in managing the case efficiently. While they may reflect consensus or competing positions, it remains the judge’s role to decide what is appropriate after considering all the evidence and submissions.
Draft orders are procedural tools designed to support the court’s decision-making, not to pre-empt it. In the Court of Protection, where collaboration is central and all parties aim to work towards an outcome that is in P’s best interests, these draft orders help to clarify positions and streamline hearings. The judge remains the final decision-maker, and any draft order is only ever a proposed way forward for them to consider.
David York is a Chartered Legal Executive in the Public Law and Human Rights Department at Irwin Mitchell Solicitors.
Promoting Open Justice in the Court of Protection 