A ‘closed materials’ hearing on forced marriage

By Celia Kitzinger, 1st March 2023 (revised 3rd March 2023)

This is the first time I’ve watched a hearing before Mrs Justice Theis since she became Vice President of the Court of Protection on 13th February 2023.

One of the last things the previous Vice President, Mr Justice Hayden, did before he stood down earlier this month was to publish the Guidance for the Court of Protection on “’closed hearings’ and ‘closed material’” (9th February 2023).  So, this must be one of the first Court of Protection hearings to deal with the matters covered in that Guidance since it was published.

This case (COP 13907545 on 28th February 2023) concerns a learning-disabled woman in her twenties (P) who has been subjected to an arranged marriage to which, as I understand it, she was unable to consent.   She is now living in a residential facility, and I gather that her parents would like her to return home.  They have agreed, following earlier court hearings, to take the necessary steps to end or annul the marriage – although that does not seem to have been progressed.

Her parents are parties to the case, and certain material has been redacted in their versions of the court bundle. They don’t have access to evidence that is available to the other parties. So there is ‘closed material’ at this hearing, defined as “material which the court has determined should not be seen by the party (and/or their representative)” (from the Guidance).

The hearing

It’s a hybrid hearing.

The judge, the two barristers, P’s father and his McKenzie Friend (who was also acting as the father’s interpreter) are all in Court 33 in the Royal Courts of Justice  – along with a couple of other people I take to be the instructing solicitors, and PA journalist Brian Farmer.

On the remote platform there are (the judge says) “at least three” public observers, and also people who have identified themselves to the court associate as P’s case manager, P’s social care support worker, and P’s social worker (amongst others).

Unfortunately, Cloud Video Platform (CVP) isn’t working well in Court 33.  Last week there was no sound at all audible over CVP from Court 43.   This time it seems to be a problem with two of the microphones – those used by the two barristers.  The judge herself comes across loud and clear.  The problem with the sound output from the barristers must be deeply frustrating for the people on the video-platform who are actually involved in the case, and trying to support P. 

Sally Gore of Fenners Chambers is counsel for Luton Borough Council, the applicant in this case.  The judge asks her to provide a summary for the benefit of observers, but I hear only snatches of what she says.  Despite trying two different head sets and turning my laptop volume up to maximum, her speech comes across as very faint, and – worse still – distorted, as though it’s coming from under water.  I can decipher odd phrases (“psychiatrist… capacity to marry… injuries to legs and feet ….paragraph 32 …. multidisciplinary team…”), but most of what she says is inaudible and she remains largely inaudible for the duration of the entire hearing.  The judge (whose mike is working beautifully) asks her at the outset for “a headline list of things I’m being asked to determine today” and I can’t hear any of her response – although I’m able later to reconstruct what the case was about from the short judgments made before lunch and at the end of the afternoon hearing. 

As the hearing progressed, counsel for the local authority remained barely audible.  Counsel for the Official Solicitor (Bethan Harris of Garden Court Chambers) was sometimes audible, but every cough in the courtroom, every rustle of paperwork, obliterated her voice.  Likewise, P’s father and his McKenzie Friend/interpreter were hard to hear, and making out what they were saying was further complicated by their accents as non-first-language English speakers. 

And so, for an overview of the case, I recommend reading the BBC article by Brian Farmer, who was in the physical courtroom: “Arranged marriage: Judge protects woman with learning disabilities”. 

Unusually, neither the journalist nor I were sent Position Statements for this case (I understand because they had not been anonymised) until three days after the hearing – which meant three days after publication of the press report and a couple of days after I published a first version of this blog post. Having now received the Official Solicitor’s Position Statement (sent at 11.56 on 3rd March 2023) I have updated accordingly.

My focus in this blog is (and was) on how the matter of  ‘closed materials’ was managed by the judge – because the judge was the one person I could hear perfectly. The most important change in this updated version of my blog relates to the application to redact. My initial impression, before I received assurances to the contrary from the two lawyers involved in the case, and then the Official Solicitor’s Position Statement, was that there had been no previous request from either the Official Solicitor or the local authority for permission to redact the documents shared with the parents. This is not correct. There had been a previous application and the court had already granted permission for the redacted documents to be filed, on an interim basis.

Closed materials

I was on the verge of giving up on this hearing due to the problems with the audio when I suddenly heard the judge raise the issue of “redaction”. She sounded a bit cross:

“I’m unclear at the moment from the documents I’ve got what exactly has been seen by the parents.  I understand that certain parts of the information P has given has been redacted because of her concern about certain information being shared with her parents?  [Yes] I don’t know what has been redacted. It hasn’t been highlighted in the document and I think that is unsatisfactory…. I don’t think that was raised at the last hearing. I don’t know how much there has been discussion with the parents outside court so they know what all this means.”

The problem seemed to be that the lawyers had redacted the bundle sent to the parents but provided the judge with only a non-redacted version (and, I think, a list of the redactions). The judge sounded frustrated by the challenge before her of identifying just what material had been ‘blacked out’ from the parents’ documents.

“I’ve got a 903-page bundle and I don’t think the redaction was brought to my attention. I need to be able to see clearly both what is being said in the open document and what’s being said that’s redacted.  […] I’m stating the obvious.  How on earth am I supposed to deal with this issue without seeing what these documents are. […] For me to understand it, I need to know what is being redacted and what isn’t.  All I’ve got is an unredacted version.  Maybe that ought to be a lesson learnt in relation to managing these proceedings, but let’s just get on with the hearing for now.”

A little later, the judge drew P’s father’s attention to the blacked-out lines and said “that’s called redaction”.  She explained that it had been done because P did not want her parents to know what she had said.  The father seemed to accept that in relation to his daughter’s statements, but was concerned that part of a doctor’s report had also been redacted.  

The judge said again “I can’t deal with the redaction issue until I’ve seen all the documents”, and then gave a short judgment dealing with other issues (appointment of an independent expert, continuation of the Forced Marriage Protection Order, and the date of the next hearing [9th June 2023)).  The court then adjourned for lunch.

After the lunch break (and I think after hearing another case between 2pm and 2.30pm), the judge returned – by which time another issue had also arisen: the Transparency Order (see below).  

On redaction, the judge  explained that she’d now looked through the documentation, and that the material that had been redacted in the doctor’s report was identical to the material that came directly from P herself.  It was the same information that P didn’t want her parents to know, either from her directly or conveyed “second-hand” via the doctor’s report.

The judge was obviously disturbed by what had happened. My impression was that it was not the redaction itself (since she had previously approved an application that material could be redacted) so much as as the manner in which the redaction had been done – without what she considered to be sufficient explanation of what had been redacted or why.  She said that normally:

 “… there should be complete disclosure, for very obvious reasons, but that has to be balanced with P’s best interests if there were disclosure and the impact that might have on her participation in proceedings.  I’m minded to permit these redactions at the moment, but make it clear there is going to need to be some very rigorous thought and scrutiny of that before the next hearing.  […] If anyone wants the redaction to continue beyond the next hearing, there needs to be an actual application.”

At the end of the hearing, she gave a short judgment concerning the closed materials.  

“There has been an application from the local authority and the Official Solicitor for certain information to be redacted from the document provided to the parents who are respondents in these proceedings.  The court has had the opportunity to view the material that’s been redacted. In considering whether the court should permit those redactions, it has taken into account the following matters.

  1.  It is an obligation of open justice that all parties should see the material all the other parties have seen
  2. I need to satisfy myself that a request to withhold information from a party is validly made.  What is said here is that it accords with P’s wishes that certain information is not shared with her parents. That reflects the level of anxiety she has if that information were to be shared with them, which could impact on her ability to participate in these proceedings – namely to speak frankly with her solicitor and those who care for her.
  3. I need to consider the best interests of P, and the greater the risk of harm by disclosing this material, then the stronger the imperative that this information should be withheld at this stage.
  4. If this material were not redacted then the parties would be on an equal footing and this is relevant to their Article 6 rights to a fair trial.
  5. I can take into account ‘necessity’.
  6. Both Article 6 and Article 8 rights are engaged and the court needs to consider the least invasive and least disproportionate measures.

Bearing in mind the stage this case is at, and where P is now, and the information the court has – and takes at face value – that not disclosing accords with her wishes, and that it would cause her anxiety if it was disclosed and impact on her ability to participate in these proceedings – and given that it’s understood and accepted by the parents that this is the reason this information is not being disclosed, I am persuaded at this stage that it is necessary and in P’s best interests that this information is not disclosed at this stage.  

But, as I’ve said, this issue requires proper and effective scrutiny, because it may become important information that may have an impact on the decisions the court is being asked to make.  So it may be that the pendulum will tip the other way in future.

If either the Official Solicitor or the local authority continue to want this information to be redacted and not disclosed to the parents, I shall want a proper application, and one that’s clear about the basis on which this information is redacted and also whether future hearings should be open to the public. I’m not suggesting they should not be but I want this addressed. And there’s going to need to be a direction that the court needs to be provided in advance with a bundle with the redacted material in it.  And it needs to be done in a way where the court doesn’t have to wade through an electronic bundle of 903 pages to work out what has and hasn’t been redacted.”

And that was the end of the hearing.

Reflections

I was concerned about two substantive matters in this hearing (in addition to the CVP failure already mentioned): the issue of ‘closed materials’ and the way in which the Transparency Order was addressed. I’ll discuss each in turn.

  1.  Closed materials

It was clear that the judge was having difficulty with a large electronic bundle and was struggling to make sense of what material was being withheld from two of the parties, or why that material in particular.

I have now read the Position Statement from the Official Solicitor and I can see that it covers the legal framework applicable to redacting court documents in some detail – with reference to the Court of Protection Rules 2017, to previous case law, and to the Vice President’s Guidance (included in full as an appendix).

The Guidance is clear.

 “The starting point is that, in principle, all parties (and, if not joined as a party, P) to proceedings before the Court of Protection should be able to participate in all hearings, and have sight of all materials upon which the court will reach its conclusions.” 

 A key reason for this (says the Guidance) is the principle of open justice, which “normally requires that a judge cannot read or hear evidence, or receive argument which is not before all the parties to the proceedings”.   

Derogation from the basic principles of open justice requires – as the judge made clear – proper and effective scrutiny.

23. In any case where the basis for withholding disclosure is identified as being necessary to secure the rights of P, the following staged approach applies to the court’s consideration (and hence to the matters which must be set out in any application for material to be closed):

  1. When deciding whether to direct that a party should not be able to inspect the part in question, the court should first consider whether disclosure of the material would involve a real possibility of significant harm to P;
  2. If it would, the court should next consider whether the overall interests of P would benefit from non-disclosure, weighing on the one hand the interest of P in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur;
  3. If the court is satisfied that the interests of P point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the other party in having an opportunity to see and respond to the material.  In the latter regard the court should take into account the importance of the material to the issues in the case;
  4. In all cases, the test for non-disclosure is whether it is strictly necessary to meet the risk identified by the court.

The problem here seems to have been with displaying the redactions (and the reasons for them) in a readily accessible form for the judge – and not any failure to engage with the fundamental principles of open justice. I’m not sure what deficits Theis J intended to reference when she refers to the need for “a proper application” for ongoing redaction (was there something ‘improper’ about the previous application?), but perhaps, in future, lawyers making applications to redact might find it worth their while to enquire of the judge how they would like information about the redactions to be formatted: as a list? as a set of paired documents, one redacted and one not? or some other way? As it was, it seems the judge was overwhelmed by the task of locating the information she needed – hence “it needs to be done in a way where the court doesn’t have to wade through an electronic bundle of 903 pages to work out what has and hasn’t been redacted“.

It is helpful to have a judgment about closed materials that is both principled and pragmatic to add to the existing case law and to the guidance. I have asked Theis J whether she will consider publishing it.

2. Transparency matters

At the outset of the hearing the judge announced: “Nothing is to be reported that in any way identifies the young person who is the subject of this hearing, and if anyone needs a copy of the Transparency Order they should contact the court”.

This is slightly odd – since my understanding is that it is the responsibility of the court to ensure that an injunction is served on us to protect P’s Article 8 rights, not up to us to decide whether or not we “need” to have an injunction served on us.  

Moreover, I doubt that most people would know how to “contact the court” to obtain the Transparency Order.  Writing to the Royal Courts of Justice email address, or to the Video Hearings Administrators who send out the links, is unlikely to result in a Transparency Order being sent, and few members of the public know how to contact the lawyers directly, or would feel ‘entitled’ to do so.

Journalist Brian Farmer, who was in the physical courtroom, obtained a copy of the Transparency Order during the lunch hour, and reported back to the court subsequently that there was a view from the lawyers that the ‘standard’ wording meant, or might mean, that we were prevented from publishing the name of  the local authority, Luton Borough Council.    

This was (to me) a surprising argument, since there was no prohibition in the Transparency Order, which was in the standard form, on naming Luton Borough Council.  

The Transparency Order says that we cannot publish “any information that identifies or is likely to identify where any person listed above lives, or is being cared for, or their contact details” (6(ii)).  (The “persons listed above” are P and her family members.) Naming the local authority does not  identify where these people live or reveal their contact details. As Brian Farmer put it, “if I’m stopped by the police and asked where I live and say ‘I live in the New Forest District Council’, that isn’t going to enable anyone to identify my address!”.

If there’s any risk that naming a public body would permit identification of P and her family, via jigsaw identification (i.e. in conjunction with other salient facts about the person, some of which may already be in the public domain, others of which are revealed in the course of a hearing), then someone needs to make an application to the court explaining how that is so (and undoubtedly it sometimes is so, albeit not as often as parties claim).  If the judge accepts that naming a public body runs a real risk of identifying P, then she weighs up P’s Article 8 right to privacy against the public’s Article 10 right to freedom of information and makes a decision about whether or not to ‘vary’ the Transparency Order so as explicitly to include the public body in the prohibited information.  I have been in court for scores of such determinations before dozens of different judges.

But in this case the lawyers didn’t seem to be making an application to vary the Transparency Order.  In fact, counsel for the local authority said they were “neutral” on the matter, and counsel for the Official Solicitor was “just being cautious”.  But both seemed to be suggesting that the wording of the standard Transparency Order might already imply a prohibition on naming the local authority.  If that were so, we’d never be able to name public bodies – since that is the standard wording!  As Brian Farmer said in court “I have never before come across an order like this interpreted in that way”.   

As it turned out, the judge did not accept the argument that naming the local authority was already prohibited by the Transparency Order, nor did she encourage an application to prohibit the naming of the local authority, and so we can name Luton Borough Council. 

It is also curious that when I received the (unsealed) Transparency Order (dated 9 June 2023), I found that it has the name of P and both her parents on the front cover (as first, second and third respondents) and P’s name in the body of the document (1(a)). This is very usual. My understanding is that Transparency Orders are public documents and for that reason they are almost always anonymised – the main exception being when the order is not intended to prohibit reporting of P’s name. I’d been told that the reason that I wasn’t sent the Position Statements was because they had not been redacted to remove P’s names and the names of her family members – but I was sent this document which included all three names, which seems inconsistent.

Conclusion

This was the first time since the Guidance was published earlier this month that I’ve witnessed a ‘closed material’ hearing.  

I’ve been very concerned about the ethics of closed hearings, as I articulated in my submission to the COP Rules Committee (Closed Hearings: Submission to the Rules Committee). The experience of watching this hearing has left me heartened by the robust response of the judge. She was right, I believe, to say that there should be “a lesson learnt” about managing closed material in COP proceedings (i.e. that judges should give some thought to how they want redacted material displayed and presented to them) and that “rigorous thought and scrutiny” is needed before the next hearing to review whether and why ongoing redaction is ‘necessary’, and its likely implications for the future conduct of this case. I’m pleased that there is now Guidance in place and glad to see that it formed part of the Official Solicitor’s submission to the court.

Three final points:

  1. If there is to be a restriction on sending out Position Statements unless they are anonymised (a restriction not normally observed in the past), then please can lawyers prepare anonymised versions in advance of the hearing so that there is no delay in getting them to observers. As is evidenced by the difference between my first and my revised version of this blog post, Position Statements are crucial for understanding the proceedings.
  2. Transparency Orders (TOs) should always be anonymised – not least so that when (as happens in practice quite frequently) they are not sent out to all the observers, it’s possible for one observer to forward them to other observers who haven’t received them without breaching the order itself. As blog editor for this Project I quite frequently find myself needing to forward a TO that I’ve received but other observers have not, so that they can write blog posts with an understanding of the reporting restrictions; and, conversely, in relation to hearings I’ve not personally observed, I need to ask prospective authors for the TO from their hearings to assure myself that the draft blog submitted doesn’t breach the reporting restrictions.
  3. The ongoing problems with Cloud Video Platform in this (as in other) hearings will be addressed in my letter of concern to His Majesty’s Courts and Tribunal Service. It’s particularly unfortunate that there were difficulties with sound quality in this hearing since the court associate did check with us in advance that we could hear – and we could hear perfectly on whatever mike she was using at the time. I suppose the barristers’ mikes need checking in future as well. And perhaps when the applicant barrister begins to embark on her opening summary of the case, there needs to be a check then that everyone on the video platform can hear. I appreciate how enormously frustrating the difficulties with CVP are for everyone concerned (especially when MS Teams served us so well over the course of the pandemic).

In the end, this hearing reinforces my belief that open justice and transparency is a basic principle in the Court of Protection, shared by bar and bench alike. It’s ironic that it’s when things go wrong (with sound systems, anonymisation, and clarity in redaction) that commitment to this principle becomes most apparent to me. The challenge, as always, is to translate aspiration into practical reality.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project, and has personally observed more than 400 hearings since 1st May 2020.  She tweets @KitzingerCelia

Note: Quotations are as accurate as I can make them given that we are not allowed to audio-record hearings. They are drawn from touch-typed contemporaneous notes.

Capacity to litigate: A young woman with anorexia nervosa

By Celia Kitzinger, 28 February 2023

The white leopard – also known as the ‘snow leopard’ – is rare and elusive. There are no more than six or seven thousand left in the wild and their numbers are declining due to habitat loss, poaching and the impact of climate change (WWF)

But what does a white leopard have to do with the Court of Protection?

The hearing

The  hearing before Mr Justice Moor (COP 14028041, 24 February 2023) concerned a young woman with severe and enduring Anorexia Nervosa.  We’re not allowed to report her name.  She’s asked to be referred to as “Patricia” in any publicity about this case. Reporting restrictions also prevent us from naming the Trusts involved in her care[1].

This was a ‘directions’ hearing to deal with issues that need to be sorted out before the final hearing in a few months’ time.  

The court is being asked to decide whether Patricia has capacity to make her own decisions about treatment for her Anorexia Nervosa and –  if she doesn’t – then what treatment is in her best interests.

Patricia has also made a (purported) Advance Decision to refuse treatment (ss. 24-26 Mental Capacity Act 2005) specifying that she is refusing some treatments if she’s not able to make her own medical treatment decisions in the future.  The applicant NHS Trusts have asked for a declaration as to whether Patricia has (or had) capacity to make an advance refusal of treatment.  If she has capacity at the time that she made it, then it is binding on her doctors and she cannot lawfully be given the treatment she has refused.

But the key issue dealt with at the hearing I observed was not directly related to her views about medical treatment.  Instead, it was about whether or not Patricia has capacity to conduct this litigation, i.e., is she able to understand, retain and weigh information relevant to the court hearing, including deciding whether or not to appoint her own legal team, to take legal advice, to understand and make decisions based upon that advice, and to instruct lawyers during the final hearing.

In my experience of watching court hearings, it’s extremely rare for the person at the centre of a Court of Protection hearing to be deemed to have litigation capacity.  I’ve observed more than 400 hearings, and I’ve seen this only three or four times.

On the rare occasions when someone is found to have litigation capacity, it’s common for them to be found to have subject matter capacity too. For example, in Re SB [2013] EWCOP 1417 Holman J found that a woman with bipolar disorder had both litigation capacity and the capacity to make the subject matter decision (to terminate her pregnancy); and in Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6 Hayden J found that a woman with bulimia had both capacity to litigate and also  subject-matter capacity (to make her own medical decisions).

But it’s not automatic that people with litigation capacity also have subject matter capacity (or the other way around).   Capacity to conduct the legal proceedings and capacity for subject matter decision-making are two different things – and capacity assessors are required to assess them separately.   In principle it’s possible to have both litigation and subject-matter capacity, or neither, or just one and not the other.  

So, a person can have capacity to conduct the legal proceedings without having subject matter capacity, but in practice it’s rare.

As rare as a white leopard.

P’s capacity to conduct these proceedings

In deciding whether someone has capacity to conduct the proceedings (often referred to as “litigation capacity”), the court applies the same test as for any other capacity determination, i.e. s.2 and s.3 of the Mental Capacity Act [MCA] 2005.  Capacity should be presumed and a lack of capacity to litigate cannot be established merely by reference to a person’s age, or appearance, on the basis of their ‘condition’ (e.g. diagnosis).  

A person can be deemed to lack capacity to litigate only if it is established (on the balance of probabilities, and after attempts to help them have failed) that they are not able to understand, retain and weigh the relevant information for the particular application before the court (i.e it’s specific to this litigation in particular, not to litigation in the abstract – which is why ‘capacity to conduct these proceedings’ is a better formulation than the often-used ‘litigation capacity’).  This inability must be caused by “an impairment of, or a disturbance in the functioning of, the mind or brain” (2(1) MCA 2005).  A summary of the ‘relevant information’ that a person needs to be able to understand, retain and weigh (derived from previous case law) is helpfully provided by the 39 Essex Chambers Guidance Note “Relevant Information for Different Categories of Decisions” (September 2022)

In this case, the initial position of the treating Trust (represented by Sophia Roper KC) was that Patricia lacks capacity to conduct the proceedings.

But the Official Solicitor (represented by Michael Horne KC) accepted the findings of an expert assessment which found that Patricia does have capacity to conduct this litigation.  This means that Patricia should be free to appoint a legal team of her own choice (or to act as a litigant in person) and to conduct the litigation based on her own views, rather than having the Official Solicitor conduct them for her (based on their assessment of her ‘best interests’).  

In view of the expert opinion and the position taken by the Official Solicitor, the Trust said – pretty much right at the beginning of the hearing – that they “concede the issue of litigation capacity”[2].  

So, there was nobody before the judge arguing that P lacks litigation capacity.  

The judge said “I am entirely satisfied that I should make a declaration that P has capacity to conduct litigation in this case in relation to her medical treatment.”  He added quickly, “That does not mean that she has capacity in relation to her medical treatment”.[3]

I was surprised that he then added” “Mostyn made a judgment recently that this is as rare as a white leopard, but my experience is that this is not uncommon”. 

It may be, as Moor J says, that capacity to conduct the proceedings without capacity to make subject matter decisions is  “not uncommon”, but in that case the reality on the ground is not reflected in the published judgments (nor in my own observational experience). 

White leopards in case law

The judgment Moor J was referring to is Mostyn J’s decision in Re P [2021] EWCOP 27. 

Mostyn J disagreed with a psychiatrist, who reported that the P in that case (with paranoid schizophrenia) had ‘litigation capacity’ but lacked ‘subject matter capacity’ (whether or not to take antiretroviral medication to treat her HIV).  He said that “the correct decision by Dr Kemp [psychiatrist] about subject-matter incapacity should have led, almost inevitably, to an equivalent decision being made by her about P’s capacity to conduct litigation about that very subject matter…  I am not saying that differential decisions are impossible, but I am saying…. that such a case should be as rare as a white leopard.” (§39, Re P [2021] EWCOP 27, Mostyn J)

Mr Justice Mostyn outlined the capacity required in conducting proceedings.  It is, he said,  “a dynamic transactional exercise requiring continuous, shifting, reactive value judgments and strategic forensic decisions”.  The litigant “has to be mentally equipped not only to be able to follow what is going on, but also to be able figuratively to tug counsel’s gown and to pass her a stream of yellow post-it notes…”   – i.e. to be able to respond to what is happening in court by issuing ongoing instructions to her lawyer as events unfold (§31 Re P [2021] EWCOP 27, Mostyn J)

He concluded: 

…. it is virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about medical treatment, but yet has capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter. It seems to me to be completely illogical to say that someone is incapable of making a decision about medical treatment, but is capable of making a decision about what to submit to a judge who is making that very determination (§33 Re P [2021] EWCOP 27, Mostyn J)

Mr Justice Hayden has robustly defended the ‘in principle’ potential for litigation capacity without subject matter capacity (in Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6). 

But there are very few cases (at least, cases I’ve been able to track down) in which P has been deemed to have capacity to litigate the proceedings but does not have capacity to make the subject-matter decision(s) before the court. 

Here are those I was able to locate – with help from people on Twitter who responded to my call for such cases (thank you Sophy Miles, Nuala Kane, and others who communicated with me privately):

  • Re QR [2014] EWCOP 26 (DJ Batten) A 62-year-old woman with a diagnosis of paranoid schizophrenia has capacity to litigate – but not to decide where she should live 

And possibly this one:

  • NHS Surrey Heartlands Integrated Care Board v JH [2023] EWCOP2 (Hayden J) A man in his 40s with “Autistic Spectrum Disorder” had capacity to conduct these proceedings (as a litigant in person).  The subject matter before the court was the validity of JH’s Advance Decision to Refuse Treatment [ADRT] made five years earlier.  The need to establish the validity of the ADRT implies (though I don’t think the judge explicitly declared) that JH now lacks capacity to refuse treatment.  (We blogged this case: “‘Vindicated!’ The experience of P in the Court of Protection”.) 

If there are other cases readers are aware of, please let me know.

This case will be back in court on 19th April 2023. It will be interesting to see if Patricia is found to have subject matter capacity – to decide about her own medical treatments for anorexia nervosa.  If she does not, then this case will join those above as another white leopard case.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 400 hearings since 1st May 2023. She tweets @KitzingerCelia

[1] Reporting restrictions were dealt with appropriately both during and subsequent to the hearing.  The judge raised the matter of reporting restrictions and provided a brief summary of them within a few minutes of the start of the hearing.  He alerted observers (as far as I’m aware I was the only member of the public observing) to the fact that the Transparency Order protects the identity of the protected party, her family members, anyone with medical responsibility for Patricia, and (because of the risk of jigsaw identification) it also prohibits naming a country.  This verbal account accurately reflected the “subject matter of the Injunction” in the Transparency Order of 20 January 2023, which was sent to me by counsel for the Official Solicitor during the course of the hearing (with an alert that it may be amended). The judge added that it may also “possibly” cover the names of the three Trusts involved as well. Counsel for the applicant Trust made the case for adding their identities to the injunction (again, this was a concern with jigsaw identification) and the judge said he was minded to do so, but asked whether PA journalist, Brian Farmer (also present) and I, had anything to say on the matter.  We both did.  Brian’s view was that since he did not intend to write anything about this directions hearing, he was content with the order for now and would make submissions at the final hearing.  My view was that, since I was planning to write something about the directions hearing, I would like to name the applicant Trust (but not the other two).  The judge decided we should not be able to name any of the three Trusts, pending Patricia having the opportunity to appoint a lawyer to represent her own views on the matter.  Counsel for the applicant Trust then sent me the amended Transparency Order later the same day. In my view, this was all efficient and timely behaviour from everyone involved. Subsequent events which I cannot report here mean that I do have additional concerns about the current (and previous) Transparency Order, and Brian Farmer  and I will raise these concerns in advance of the next hearing.  I spell this out in detail since I tweeted, shortly after this hearing finished, about a different hearing, earlier in the same week, attended by two members of the public, expressing my concern about the way the reporting restrictions were managed in, and subsequent to, that hearing. That tweet was interpreted as referring to the hearing described in this blog post. I did not intend, in that tweet, to refer to this hearing. I apologise for creating a situation in which that misunderstanding occurred.

[2] We are not allowed to audio-record court hearings, so quotations in this blog post are based on contemporaneous touch-typed notes. They are as accurate as I could make them, but are unlikely to be 100% verbatim.

[3] The lawyer representing Patricia via the Official Solicitor up to that point then turned off his video and symbolically left the proceedings – reappearing only to make contributions to a discussion about  “transitional arrangements” for transferring information between the Official Solicitor and Patricia’s future legal team.

The silent courtroom: A remote hearing without sound – and why transparency matters

By Celia Kitzinger, 26th February 2023

On Wednesday 22 February 2023, I watched two and a half hours of a hearing before Mr Justice Moor in the Royal Courts of Justice  – without any sound, because Cloud Video Platform was malfunctioning. 

Cloud Video Platform (CVP) often malfunctions.  I’ve heard lots of judges complain about it during court hearings, as court staff have struggled to ensure that people attending or observing online can see and hear, or be seen and heard.

 A survey of 1,500 judges asked to express an opinion on video conferencing technology in use across Britain’s courts and tribunals found that most prefer using Microsoft Teams for remote hearings rather than the made-to-order video platform bought as part of a £1.2bn Ministry of Justice digitisation initiative.  

Usually, when there’s a problem with CVP, judges wait 10, 15, 20 minutes while clerks or IT people (if they’re lucky enough to have any) try to fix it.  If that doesn’t work, I’ve seen judges (in all-remote hearings) switch to Microsoft Teams instead, or in hybrid hearings they’ve moved everyone to a different courtroom where CVP is functional.  It’s deeply frustrating for judges and a massive waste of court time.  HMCTS (His Majesty’s Courts and Tribunal Service) should be hugely embarrassed about this IT purchase.

Until this hearing, though, I’d never had the experience of a judge and two counsel simply deciding they were “content” to proceed despite the fact that the CVP audio system was entirely non-functional and nobody on the remote platform could hear anything from the court.  I’m not sure who everyone was on the CVP system, but they included at least three members of the public as observers, and someone identified as a Legal Director for an NHS Trust. (I hope they didn’t include P.)

Several of us explained, in the ‘messages’ box on CVP, that we couldn’t hear anything.  We were told that the judge knew that, but that he’d decided to go ahead with the hearing anyway.  I asked if there would be some attempt to fix the audio at some point and was told yes, so I remained on the platform in the hope of restored functionality. (One of the other observers left within an hour, another held on for nearly two hours).  But the CVP audio was never fixed, so I ended up observing about two and a half hours of silent court.  (I gather the judge assumed that I must be able to hear, since I remained on the platform – but his clerk most certainly knew otherwise!)

This blog is about what it’s like to watch (but not hear) the court in action.   What can you say about a hearing when you actually couldn’t hear a single thing?

Watching 

The hearing (COP 14053355) was before Mr Justice Moor in Court 43 at the Royal Courts of Justice.  It was listed as “hybrid CVP” and  For Hearing in Open Court”. 

To attend via Cloud Video Platform, all I needed to do is click on the link, once I eventually got it, and then answer questions about whether it can use my audio and video [yes] and type my name in a box. There’s helpful information for those who’ve never used it before on how to join Cloud Video Platform for a hearing here.   

After listening for a bit to “Waiting for the Conference Host to join” in a virtual waiting room, the screen springs to life and I can see the courtroom.

The courtroom

The Royal Courts of Justice (RCJ) is an amazing Gothic Revival building opened by Queen Victoria on December 4th 1882.  

When I’ve attended in person, I’ve first gone through airport style security – on a bad day that takes about half an hour –  and then walked through the stunning Great Hall, which is like a cathedral with a marble floor, majestic arches and stained-glass windows.  You walk the length of the Hall, turn left, along a corridor through several heavy wooden swing doors, out into a courtyard and turn right – and that’s where all the in-person COP hearings I’ve attended have been held, in the Queen’s Building, a disappointingly modern and rather undistinguished building at the back.  And that’s where today’s hearing is, in Court 43.

I don’t think I’ve been in Court 43 in person, but it looks very much like all the courts in the Queen’s Building (and county courts across England and Wales) that I have been in. The closest comparison I can think of is a slightly shabby, utilitarian, small university lecture theatre in an ‘old’ university, devoid of charm or gravitas. It has dark wood-panelled walls and paler wooden lecture-style seating – fold-down seats for the front two rows and bench-style seating behind that.   It would seat maybe 40 people at most when completely full (outside of covid restrictions).

Cables (for laptops, I think) snake across the floor.  There are five little bottles of mineral water on a table at the front (though several people have brought their own reusable flasks) and a pump dispenser bottle that looks like hand sanitiser to one side.  Paperwork is strewn over the available surfaces. The people in both the front and second rows all have laptops (or maybe one is an i-pad) and those I take to be solicitors are typing away during most of the hearing.

People who’ve not attended court hearings in the RCJ before sometimes imagine that observers sit in a raised public gallery like the Visitor’s Gallery in the House of Commons or the Public Gallery at the Old Bailey, where criminal trials are held – something like the dress circle in a theatre.  But no, in the RCJ observers just sit in the back row of a pretty flat room – though it looks from the video-screen as though the seating at the back in this court room is very slightly raised, with one small step up. 

The camera is angled from the front of the court – I would guess about level with and to the left of the judge. What’s on screen seems to me pretty close to a ‘judge’s eye view’ of the court.  The judge isn’t on camera (and I never see him). I can’t see anything of the judge’s bench (the raised desk at the front) or the front of the court.

This view on the video-platform is very different from the view I get in physical courtrooms, where I sit at the back of the court. My view is usually the back of everyone else’s heads, and across them (or through the gaps between them) to a distant judge.  The camera in this hearing is as if I walked to the front of the court next to the judge and turned around.  I can see everyone’s faces!

The people

There are seven people visible on screen: two in the front row, three in the second row and two in the third row.

It’s immediately obvious which ones are the barristers.  They’re the two in the front row – both wear wigs and gowns, and the male barrister (I can’t see the female one properly) is wearing a jabot – otherwise known as a ‘court bib’ or ‘neck doily’ – two rectangles of white linen, designed (in 1640) to conceal the collar of their shirt. 

“These pieces of linen were thought to be an essential component of upper class, male fashion in the baroque period, and were originally very wide and flamboyant.  By the 1860s, they had become two simple rectangles, which are still worn by barristers today; the two rectangles are even said to represent the tablets of Moses in the Old Testament.” (Scott Haley in Lawyer Monthly).  

Usually, the barristers introduce themselves and their ‘teams’ at the beginning of the hearing.  I don’t know if that happens today, since I can’t hear anything, but I think I recognise the female barrister anyway. She’s on the very far right of my screen with (mostly) only her right shoulder and right hand visible to me (when she gesticulates, which she does a lot). But on occasions when she’s still standing up but stops talking and gazes up (I assume at the judge) her face swings into view: small and fuzzy on the screen – but I think it’s Nicola Kohn (her last name is pronounced to rhyme with “John”, as I’ve heard her tell several judges in previous hearings).  I don’t recognise the male barrister.   

I email the court clerk and she helpfully provides the names of both barristers and the parties they’re representing:  Nicola Kohn of 39 Essex Chambers  is counsel for the NHS Foundation Trusts and Martin Westgate KC of Doughty Street Chambers is representing the person at the centre of the case (P).  

I don’t know (because I couldn’t hear the introductions and the court clerk doesn’t tell me) whether Martin Westgate is acting for P directly (i.e. in accordance with her instructions) or whether he is acting in her ’best interests’ as determined by a third party – most likely the Official Solicitor.  The latter is much more common, because (with rare and significant exceptions) P is almost always deemed not to have ‘litigation capacity’. 

It’s conventional for solicitors to sit behind the barristers they instruct – so I look at the second row.  There’s one young woman with long dark hair directly behind Martin Westgate (on the left of my screen)  so I take it she’s his instructing solicitor. And behind Nicola Kohn (on the right of my screen) there are two young women sitting next to each other  – also with black jackets and laptops – who I take to be solicitors instructing her (though I don’t know why there are two of them). 

In the third row there’s a man in a grey suit making notes in a black notebook (on the Nicola Kohn side of the courtroom) and then a couple of seats away from him, pretty much in the centre of the row, there’s an older woman in a black top with a white necklace, surrounded by a mass of paperwork.  Neither of them looks like ‘family’.

I look around the court, and on the video-platform, to see if there’s someone I can readily identify as P or P’s family members.  This is sometimes obvious online – for example,  when a couple attend on a single screen with a domestic backdrop (maybe parents of P?) or when someone is present from a hospital bed (P?)). Looking at people in a physical courtroom, I wonder about anyone clearly not ‘attached’ to the barristers and solicitors, or not dressed in traditional dark clothing, or people who appear anxious and distressed.  Are they observers?  Family members?  P themselves?   But everyone here looks as though they have a professional involvement in this case, rather than a personal one.  I get the impression that this hearing is happening in the absence of the person at the centre of the case (and their family) – and I wonder why. 

I don’t think anyone is observing the hearing in person as a member of the public.  I know that journalist Brian Farmer is not in court today.

The action

Watching this court hearing unfold in silence is a bit like watching an old-fashioned black and white movie. Everyone is wearing black, white or grey: the only colour is the sepia-toning of the lighter wooden seating.

I can see the barristers speaking – first one, then the other – and I try lip-reading, but am entirely unsuccessful.  

With nothing to hear, I pay attention instead to the small movements of the courtroom.

Counsel for P moves between his laptop and paperwork, on his left, and the wooden boxy laptop stand on his right, which he often uses to lean on when he’s standing up. He gesticulates quite a lot as he speaks: once he holds both hands in front of him at shoulder height, palms outwards (it looks like a ‘surrender’ gesture); on several occasions he chops the air with his right hand – maybe in beat with his speech, maybe enumerating his points?  Occasionally he does what lawyers call “turn my back on the court” (for which they ask permission of the judge): i.e. turn around to consult with, or receive information from, his solicitor seated behind him.  (Once she leans forwards and taps his back to indicate her wish to convey something.)

Counsel for the Trust is only half-visible (vertically) on screen for most of the hearing: she slides in and out of shot depending on where she’s looking. But I can see her repeatedly taking her glasses off (presumably when she needs distance vision to see in the direction of the judge) and then putting them back on again when she looks down at her laptop and the paperwork.  She gestures with her right hand (often holding her glasses). She hikes up her gown over her shoulders several times.  She connects her laptop to a power source.  She sips from a glass of water.  

Other people in the room have characteristic fidgets that I come to recognise.  One keeps pushing his glasses back up against his nose with a fingertip.  One repeatedly flicks back her long hair behind her right ear.  People get things out of their bags: a sweet, a tissue, lip salve, a mobile phone (briefly consulted and returned).  

It’s hard to concentrate, and not very rewarding to watch.  I intermittently move to my emails, or wander off to get a cup of coffee, or check out my social media accounts – still waiting, increasingly more in hope than expectation, for the restoration of sound.

Then, at around 15:40, something happens.  There’s a restlessness in court. Neither barrister is standing or speaking, and people are moving around.  The older woman in the third row back gets up and moves off-screen – but she’s not left the building (I assume) since her paperwork is still strewn over the surface near where she was sitting.  I think she’ll be back soon (maybe a toilet visit?).  Hands reach for the water bottles at the front, but I can’t tell whose hands they are: two of the five bottles are removed.  And now somebody new is in the frame. A young woman, dark suited like everyone else, but someone I’ve not seen before enters from the left of my screen and scoots down the row towards the man in the grey suit, past the place vacated by the older woman. She sits down next to the man and she seems to be engaged (briefly) in conversation with him.  Who is she?  So, there are actually eight people in court, not seven, as I’d thought (plus, of course, the judge and the court staff or clerk, who must be there too, though I can’t see them).

Five minutes later the court has settled, and the barristers are alternately speaking and typing again –  but the older woman doesn’t return.  

Then it dawns on me.  She must be a witness and she’s still in court but I can’t see her because she’s up at the front somewhere, and she’s giving evidence.   And that’s probably what the younger woman who’s suddenly appeared in frame was doing earlier.  So, what I’ve been watching hasn’t been submissions, and lawyers dealing with questions and interventions from the judge, as I’d assumed, but witnesses being sworn in, giving evidence and cross-questioned. Why wasn’t the camera on the witnesses?

It’s not that common to have the opportunity to observe witnesses giving oral evidence in the Court of Protection.  That’s what I should have been seeing (if anyone had thought to rotate the camera so I could see the witnesses on the stand) and hearing (if the audio had functioned as it should).

It all ends at about 16.30. The barristers whip their wigs off immediately. Then everyone is gathering up their bags and putting away their laptops and paperwork.  

Cloud Video Platform continues to run in the empty courtroom.  

After 10 minutes I exit the platform.  

What did I miss?

At 18.03, after the hearing was over, I was sent a Reporting Restriction Order (RRO) along with the Position Statement on behalf of the applicant Trusts – one Trust responsible for P’s obstetric care, the other for her mental health. 

The RRO tells me that the Court was asked to consider:

“(a) [P’s] capacity around her obstetric care and treatment; and 

(b) If [P] is deemed to lack capacity, whether it is in [P’s] best interests to have a planned caesarean section, to be undertaken under spinal anaesthetic.”

The RRO includes a schedule with P’s name, the names of three people with responsibility for P’s care, and the names of the responsible solicitors acting for the parties.  I google them – find photographs, match faces to names. 

The Position Statement tells me that P is 39 weeks pregnant and “suffering from first episode psychotic illness; requires a caesarean section to ensure the safest possible outcome for her and her baby and, in the view of all the clinicians responsible for her care, lacks capacity to conduct these proceedings and to make decisions regarding her obstetric care and support”. 

There is a disagreement about whether or not P has capacity to conduct proceedings and to make decisions regarding her obstetric care. The Trusts think she doesn’t; P’s own legal team think she does.  “As a result, live evidence will be taken in court and the two positions tested”.  That’s what was happening during the silent hearing.

I’m told that the hearing will continue on the following day – with submissions and an oral judgment. Unfortunately, I’m not able to attend, but I let other potential observers know – and both the journalist Brian Farmer and the medical law and ethics researcher Ruby Reed-Berendt were there on 23rd February 2023 (the latter having also sat through nearly two hours of today’s silent hearing).  Brian’s report is here (“Woman with mental health difficulties gives birth after judge approves C-section”)  and Ruby’s will follow shortly as a blog post for the Open Justice Court of Protection Project.

Transparency matters 

Three members of the public attempted to access this hearing on Wednesday 22nd February 2023: me and two academics working on medical law and ethics. It had been listed on the Royal Courts of Justice Daily Cause List as “For Hearing in Open Court”.  

It ran over three days – and for two of those days there were in fact observers present who could both see and hear the proceedings.  I understand that the hearing was moved to another court to enable remote access on the third day.

But on Wednesday 22nd February, when witnesses gave evidence and the court addressed the crucial question as to whether P did or did not have capacity to instruct her own legal team, and to make her own decisions about her obstetric care – on that date, Cloud Video Platform was malfunctioning, and the court did not delay the hearing to try to get it fixed or to move to another courtroom.

I understand that the court (and the lawyers) were desperate to get on with this hearing: it was obviously urgent given that P was 39 weeks pregnant.  I don’t think there was a conspiracy to exclude us.  But some people will think that.  The email inbox for the Open Justice Court of Protection Project is full of desperate correspondence from people who tell us they’ve suffered harm from this Court – including deception, exclusion, unfair treatment, and manifest injustice.  I am not immune to those communications – especially in the aftermath of the debacle concerning closed hearings and the new Guidance from the Vice President authorising the court to “cross the line from silence to active deception” as “a last resort” (§27(2)).

Here’s what I wrote to Counsel for the Trusts (and I gather it was shared with the judge):


I can see from the PS (which says that P is 39 weeks pregnant) why you would be desperate to proceed.  But I would have hoped (given the very serious decision being made, and the presence of at least 3 observers and the Legal Director of the NHS Trust on the link) that maybe 10-15 minutes could have been given over to trying to fix the problem with CVP, or move to another court.  That’s what’s happened in other cases, including urgent serious medical treatment cases. (For example, I’m personally aware of  three hearings before Hayden J and one before Poole J where judges have moved to a different courtroom because of CVP problems.)

Our experience as observers today was, of course, enormously frustrating.  A couple of people had rearranged their schedules to observe this case. We’re told that the judiciary is deeply committed to transparency and that it’s “a fundamental principle” in the Court of Protection – but it was abandoned very quickly today.  It didn’t feel as though our presence as observers was valued at all. Given a technical hitch, we were quickly dispensed with.  There was no formal attempt from the judge to explain or apologise: it was left to the poor member of staff who corresponded with us about what was going on. This episode has created some scepticism about the court’s commitment to transparency – not least because it relates to an area of the court’s work (court-ordered caesareans) which as you must of course know is already a source of some disquiet amongst members of the public, including childbirth professionals. 

We acknowledge, of course, that making the right decision in a timely fashion for P is the most important consideration for the court – but the ideals and principles of transparency in a democratic society are part of, and integral to, “making the right decision” for P. The presence of observers is supposed to protect P against the arbitrary use of state power and to keep the judge while judging under trial. Excluding observers without taking the time to fix or manage a technical hitch, so that a judge can get on speedily with ordering invasive surgery in our absence, is deeply concerning.  

I will be raising my concerns about the (very frequent) malfunctioning of CVP with His Majesty’s Courts and Tribunal Service, whose responsibility it is.  But in my view, a judiciary committed to transparency as a ‘fundamental principle’ needs to accept more responsibility for ensuring public access, despite the challenging conditions created by an embarrassingly expensive non-functional court video platform.  Two days later, I observed a (fully remote) hearing before this same judge conducted via MicroSoft Teams: it worked perfectly.

Open justice is an important protection and safeguard for the vulnerable person at the centre of the case. Decisions to impose draconian measures (deprivation of liberty, invasive medical treatment) should not be made in secret.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project.  She has observed more than 400 hearings since 1st May 2020.  She tweets @KitzingerCelia

Man lives for months in care home bathroom: “An egregious situation”

By Celia Kitzinger, 22nd February 2023

The man at the centre of this case is in his mid-50s and lives in a care home – or more specifically, in a communal bathroom of a care home. He “retreated” to the bathroom more than six months ago in July 2022  “where he has essentially remained and emerged on only limited occasions”.  

He has learning disabilities, autism with “unusually acute sensory needs”, and he “exhibits challenging behaviours”.  My understanding is that the bathroom is the only place he feels safe.

There was agreement in court that this is an unacceptable living arrangement for him: it’s a “horrible situation” (Sophia Roper KC, counsel for the man via his litigation friend, the Official Solicitor), “hugely regrettable” (Toby Kippax, for the local authority) and “an egregious situation” (HHJ Melissa Barlow).  

The hearing

The hearing (COP 14000147) was before Her Honour Judge Barlow sitting (remotely) at Bristol Civil Justice Centre on 9th February 2023. 

I was surprised to learn that it was not the local authority who made this application (back in late September 2022) but the man’s representatives who took the initiative and asked the court to do something about the situation. 

It was a very short hearing, basically because there was nothing for the judge to do at this stage. 

Counsel for P

Summarising the situation at the start of the hearing, counsel for “Brian” (my pseudonym for the man at the centre of the case) said that the position was that “after several months of first somewhat abortive attempts to consider alternative care homes, some delays in bringing the matter to court, and some going around the houses in the usual way” there is still no draft order before the court authorising a move for Brian to somewhere more suitable to live. 

This is, she said, “a very grim situation for him, and the Official Solicitor has been extraordinarily anxious about his position”.

A report from Independent Social Worker [ISW], Eleanor Tallon, has been “very helpful” and led the local authority and Integrated Care Board to search for “a much more targeted placement”.  One has been found which the ISW says is able to meet Brian’s needs.  

“There’s a lot of work to be done, and there’s an optimistic, positive and energetic team ready to start very soon on the adaptations required at the property – in particular installation of a bathroom.  There are some potential headaches, including asbestos, some of which can be safely left alone and some of which can’t. There’s a cautious estimate of 10-12 weeks for it to be ready for him to move into. Nobody is suggesting that this further wait is good, but nobody’s suggesting it’s other than the least worst option. A question that might occur to the observer is why hasn’t anyone thought about an interim move, and the answer is, we have, but that’s likely to make things worse and would precipitate a further decline.  We did briefly consider whether he could be moved before the building work is completed but that’s likely to cause disruption to the start of the placement.” (Counsel for P)

She added that the Official Solicitor’s view was that “lessons should be learnt from what has happened in the past”.

Counsel for the LA

“The LA’s position is that we absolutely recognise [Brian’s] situation is hugely regrettable but in terms of context, he’s lived here for 30 years, and he struggles with any change, even the smallest degree of change. The local authority was undertaking regular reviews and prior to his retreat to the bathroom there was no indication that it would be appropriate to change his placement.  Unfortunately, his retreat to the bathroom in July 2022 was unforeseen in terms of its duration.  He had retreated to the bathroom before, but it would be for a short period, and he’d come out after the unsettled period. The significant precipitating factor here is that he’s not come out – but before changing his placement it had to be something dramatic, given this is his home of 30 years and he finds change difficult.  Finding a placement where his sensory needs could be met and with a high quality of care was difficult.  However, we have now found somewhere for his single occupation. It’s unfortunate that it’s taken as long as it has, but it’s a complex process, and it’s certainly not for want of trying on the part of the commissioners.” (Counsel for the LA)

Judicial comment

The judge said that it wasn’t “what the local authority has done since it became involved” but rather the way the situation was allowed to continue beforehand that concerned the court and the Official Solicitor.  “It’s how when P retreated to the bathroom, and stayed there, it took such a length of time for any positive action to be taken… Everyone appreciates the difficulty of finding a new home, but whether those difficulties have been exacerbated by what has been allowed to come to pass….”.  

She ended the hearing on a slightly more up-beat note: “It’s not for me to investigate what went wrong. I’m not apportioning blame.  We are where we are.  This is an egregious situation and I’m glad something has been done about it”.

The next hearing is listed for 4th April 2023.

Reflections

I was told that counsel had not prepared position statements, so I was totally reliant on what I heard in court in reporting on this case. I did ask counsel for Brian for a previous position statement from one of the earlier hearings (there have been about ten) to enable me to get a better sense of the background to this case, but did not receive one. I am left wondering about how Brian and the care home have been coping all these months. For example, is he sleeping on the bare floor or have they moved a bed into the bathroom?  Does he come out for meals or eat his meals in the bathroom? Does the bathroom ever get cleaned? How is this working out for other residents who might want to use the communal bathroom?

This was a disturbing hearing to watch because it was abundantly clear that something had indeed gone badly wrong and – as ever in the Court of Protection – the focus is on putting things right, rather than interrogating the past. I often feel, as an observer,  that there are a lot of lessons that should be learnt from past failings (frequently involving delays) apparent in the management of many cases that come before the court. But in fact, I see little evidence that anyone does draw out such lessons, or that what has happened is analysed sufficiently to permit systemic change.  Perhaps there’s simply no slack in the system to allow for that.

I’m also disturbed by the way transparency was managed in this case. It was listed as a public hearing, and I was told at the outset that there was a transparency order “in conventional terms” (counsel for Brian) and was sent one with the usual restrictions.  A week later – after I’d asked whether an earlier position statement might be available to help me understand the background to this case –  I received subsequent correspondence suggesting that additional reporting restrictions might be sought, that go beyond those in the ‘standard’ reporting order I’d been sent. I requested further information – which I’ve not received a week later.

Obviously, I don’t want anything in the way I’ve reported this case to cause Brian harm (e.g. because people who don’t already know him and his situation might recognise him from this description, breaching his right to privacy).   

Equally obviously, I’m alarmed at the harm that has already been caused to Brian by the circumstances he’s been living in, and I want people who read our blog posts (who are predominantly professionals working with the Mental Capacity Act 2005) to know about what’s happened, and to be alert to the risk of such situations in future. That’s one of the few ways in which there’s at least some chance that  “lessons” can be learnt. 

I’ve written previously about both delayed and ‘retrospective’ transparency orders (e.g. here and here), pointing out their chilling effect on transparency in the Court of Protection. 

Celia Kitzinger is co-director of the Open Justice Court of Protection Project and has observed more than 400 hearings since 1st May 2020.  She tweets @kitzingercelia

Standoff about the appropriate expert: A pragmatic judicial solution

By Celia Kitzinger, 21 February 2023

Laura Wareham, 34, has been in hospital since April 2022 following an emergency admission. 

She has “a hugely complicated medical background”, including “autistic spectrum disorder”, “bipolar affective disorder” and “Bodily Distress Syndrome”. An independent expert  has found that she lacks capacity to make decisions about residence, care and support, medical treatment and contact with others (and to conduct these proceedings).

In August 2022, Laura was intubated, ventilated and very seriously ill.  She’s now stable but remains in the High Dependency Unit with 1-to-1 nursing care.  

Everyone agrees that she doesn’t require care in an acute hospital setting and hasn’t done for some time. Everyone agrees she should be discharged.  There is disagreement as to when she should be discharged, and where to – and an expert (Dr A) is currently at work to develop a care plan for her.

I can report Laura’s name, and the names of her parents, Conrad Wareham and Erica Wareham, because PA journalist Brian Farmer made an application to do so (and the family did not object).  I cannot identify the hospital where she is being treated, or any of the professionals involved in her care.

The challenge confronting the judge at this hearing was the involvement of someone I’ll call Professor X, an expert in infectious diseases.  Dr A, the expert who is working on Laura’s care plan wants to be able to draw on his  expertise.  Both the Health Board and the Official Solicitor support his doing so.  But Laura’s parents, and Laura herself,  very strongly object to Professor X’s involvement.  This was the ‘stand-off’ position at the beginning of the hearing.

Background

There has been conflict and disagreement between Laura Wareham’s parents and those caring for Laura for a long time. 

I observed an earlier hearing in this case back in August 2022 and blogged it (“I am fearful for my daughter’s life”: Serious medical treatment in a contentious case).  Brian Farmer also wrote about it: “Retired nurse tells judge her daughter ‘is not safe’ in Betsi Cadwaladr health board hospital’).

There was a subsequent hearing I did not attend, but which was covered by Brian Farmer.  He wrote:

“Consultant anaesthetist Conrad Wareham and his wife Erica, a retired nurse, outlined worries about the way their 34-year-old daughter Laura Wareham – who has mental and physical health problems – was being cared for by specialists working for Betsi Cadwaladr University Health Board, which is based in Bangor, Gwynedd.

He told a judge overseeing a hearing in the Court of Protection on Wednesday that they were worried about “interventions” planned by specialists and said the “organisation as a whole” had demonstrated it did not have the capacity to manage his daughter’s condition.

Mr Justice Francis made no criticism of specialists or the board, but said Dr and Mrs Wareham had been “interfering” with Miss Wareham’s treatment in a way that was “detrimental”.

“Judge criticises consultant concerned about how doctors are treating his daughter at Welsh health board”.

Hearing on 16th February 2023 

This case (COP 1397774T) has not had the benefit of judicial continuity:  it been before Cobb J and Francis J previously, and today it was before Arbuthnot J. 

The applicant Health Board (Betsi Cadwaladr University Health Board) was represented by Scott Matthewson of Serjeants’ Inn Chambers and Laura Wareham was represented by Ian Brownhill, via her litigation friend the Official Solicitor.  (Two barristers representing local authorities were also present but played a minimal part in the proceedings.)

Laura’s parents, Conrad and Erica Wareham were litigants in person – having had legal representation until that very morning (the legal team “abandoned us”, they said).  This had led to a confusing situation where an agreed draft order had been placed before the judge which was not in fact agreed by the Warehams.  The draft order included the involvement of Professor X in Laura’s care plan. The parents object to his involvement – and so, most pertinently, does Laura herself.

The judge remarked that she’d read the attendance note from the Official Solicitor’s representative who visited Laura in hospital.  “She was very upset when Professor X’s name was mentioned.  She used all sorts of abusive language, and threw something at a nurse – though the nurse had nothing to do with it”.  

Counsel for the Health Board recognised that there were problems with proceeding with Professor X given Laura’s views (“if she has no trust in one of the experts feeding into her plan, there is a risk of non-compliance with it”). But he pointed out that Professor X “won’t be meeting her”.  Professor X is only to be instructed to write a ‘desktop’ report about Laura’s susceptibility to infection. 

The judge asked if there is “someone else who could do what Professor X could do – he can’t be the only expert”. 

It turned out that Laura’s parents had already made a suggestion for different expert but it hadn’t been followed up – and it wasn’t clear whether or not the doctor they wanted was available to act in the required timescale, or whether Dr A agrees that he’s the type of expert he’s looking for.

Conrad Wareham explained that Laura’s concern “is not so much about meeting Professor X – rather she’s concerned about his input into a close friend of hers, that was extremely damaging. She’s very concerned about him having any involvement”.

But Laura’s legal representative supported Professor X’s involvement.

OS:  The most important thing is to get Dr A’s report as soon as possible.  It’s a concern that he has still to report.  We are of course concerned that Laura would be upset with Professor X’s involvement, but he will not be examining her or directing her future care and treatment. Considering those features, the Official Solicitor came to the view that the better thing to do was to get on, get the report done, get Laura out of hospital, and not delay matters further.

Judge: Even at the risk she’ll have no confidence in the report?  Suppose she doesn’t like the report and he’s said to have contributed to it, and she believes he injured or killed a friend of hers, or a friend of a friend.

OS: She might say “Professor X has his hands on it – I don’t want anything to do with it”, but we hope people will work together and explain the report to Laura.  And if the Health Board won’t obstruct [the family’s choice of expert] having some input as well, and he’s available, we say get on and get the report done.

Judge:  They raise the question why is an expert on infectious diseases required anyway.

OS:  She has a propensity to infection, which has been a central plank of the parents’ concerns during the history of this case.  And Dr A has been telling us this is the information he needs to help you to make a decision about Laura’s placement.  If Professor X is not able to be consulted, there is a risk of a report that simply says ‘for the following reasons I can’t give you a definitive decision’.

The judge then asked whether Dr A had been informed of the problem and consulted as to whether there was an alternative expert on infectious diseases who could do the job for which Professor X had been his first choice. He has not: “he’s on holiday at the moment and we have been reluctant to disturb him”.  

Judge:  The job of Dr A is to make sure Laura leaves this hospital as soon as possible. He wants to work jointly with someone else and Laura is very strongly against Professor X.  Explain that the confidence of Laura and her parents will be fatally undermined by Professor X’s involvement. Ask him  if there is someone else who can fulfil that role – reviewing what needs to be done without needing to come in and see Laura. Is there anyone else he can suggest?  If he has an idea about someone else who can do it, the Health Board is to approach that person and see if they’re able to do it and turn around this piece of work. I do think confidence in the report by this adult patient and her parents is an important feature of this case.

After prompting by Conrad Wareham, the judge further directed that Dr A should be asked whether the family’s proposed expert could also be of assistance.

This seemed to me a wholly pragmatic and sensible solution.

There are further areas of dispute concerning (amongst other matters) where Laura is ordinarily resident, and so which local authority bears statutory responsibility for her; whether or not Laura has capacity to make her own medical decisions (raised by her mother who objects to the expert report finding that she does not); and whether and how face-to-face contact between Laura and her parents can happen, given that in-person visiting arrangements have been suspended at the request of the Health Board due to her mother’s behaviour towards health care staff.   These will no doubt be aired at future hearings.

The next hearing is listed for 22nd February 2023 before Mrs Justice Arbuthnot.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project and has personally observed more than 400 hearings since 1 May 2020.  She tweets @KitzingerCelia.

Review of court-authorised insertion of a PEG tube contrary to her wishes: Has it “all worked out” for EJ?

By Upeka de Silva, 15 February 2023

The person at the center of this case is EJ – a 27-year-old woman diagnosed with rapidly deteriorating Functional Neurological Disorder (FND). She attended A&E on crutches reporting decreased mobility in her legs in April 2022, was admitted as an inpatient, and became rapidly worse so that now she is bed bound and consistently unable to move her body from the neck down.  In August 2022, the progressive FND began to affect her ability to swallow.  She initially accepted insertion of a nasogastric tube, but when it came out in October 2022 she refused to have it reinserted.  She is unable to feed herself.

EJ has a working diagnosis of “Mixed Personality Disorder”, has auditory hallucinations, and her mood dysregulation has raised suspicions of complex Post Traumatic Stress Disorder. She’s been an inpatient in hospital since April 2022.

I observed and blogged about this case before, with my colleague at Compassion in Dying, Jemma Woodley, back in December 2022 ( “It will all work out”).  At that point, EJ was strongly opposed to a feeding tube.  She’d been receiving nutrition and hydration through a naso-gastric tube against her stated wishes.  She’d been chewing through them or dislodging them by violently shaking her head.  In court, she said: “I don’t want a PEG. I don’t want an NG tube, thank you. Or a PICC line. I want to go home, ideally today. It will all work out – it’s about a positive attitude – fake it till you make it.”

At that earlier hearing, the applicant Trust (Lewisham & Greenwich NHS Trust) had applied for a declaration that it is in EJ’s best interests to have a PEG (a percutaneous gastrostomy) placed under general anaesthetic, to deliver nutrition and hydration (and medications) directly into her stomach.  The judge (Sir Jonathan Cohen) found that EJ did not have capacity to make her own decision about feeding tubes: she didn’t understand the consequences of refusing treatment and didn’t want to die. Rather she was positive that “things will work out”, without any clear idea how that would come about. So the presumption in favour of life-sustaining treatment weighed heavily in the judge’s considerations.  He found insertion of a PEG to be in her best interests. 

The judge ordered that the case should be back in court (before him) for a review in a few months’ time. He said, given that EJ is “strongly opposed” to the course of action he has ordered, “I think the court owes it to P to consider the matter”.  

We appreciate the complexity of the case, and the challenge of making decisions that would result in the death of someone who doesn’t want to die, but as we recorded in our last blog, we were really concerned about “ the trauma of her autonomy being overruled, and the loss of trust in professionals and in her own agency” from this judgment. We left the hearing wondering: “Will EJ adapt to her life with a PEG? Will the medications she’ll be receiving through it help with her psychiatric illness? Will she be retraumatised and feeling defeated? We worry about counting on resilience and psychiatric medication to make up for the loss of autonomy.” (“It will all work out”)

On 14 February 2023, the review hearing took place (COP 14017521 before Sir Jonathan Cohen).  I was hoping our questions would be answered.

The Review Hearing (14th February 2023)

Since the last hearing, a PEG had been successfully surgically placed under general anaesthetic.  Initially everything seemed to be going well, and EJ was steadily gaining weight.

Then, on 13th January, EJ chewed through her PEG tube despite formal 1:1 supervision being in place. The tube was repaired without any complications but on the 17th of January, nursing staff noted that the PEG feeding tube had been “cut” in three places and it’s understood that EJ had been able to cut or bite through the tube. It’s not been repaired, so EJ isn’t receiving nutrition.  She gets fluids through an intravenous line.

 At a best interests meeting at the end of January 2023 (after establishing that EJ continues to lack capacity to make medical decisions), doctors discussed the impact on EJ’s mental health of continuing to remain in hospital, and the effect of compulsory treatments in maintaining the “schema of her helplessness”.

Given the impact medical interventions have on EJ, the Trusts (both the Hospital and the Mental Health Trust) have decided that the reinsertion of the PEG would not be in her best interests and is exploring discharge options. This was the focus of the current hearing, which was largely concerned with timetabling matters so that further evidence is obtained about EJ’s short and long-term treatment and care so that the judge can make some discharge decisions at the next hearing.

Despite having received a position statement, it was not easy for me to follow the discussions and decisions being made – I wondered if EJ felt the same.  

According to my notes: 

  • The judge confirmed that the future insertion of a PEG or nasogastric (NG) tube would need court approval (and he did not pre-approve it)
  • It was agreed that the Integrated Care Board (“the ICB”) would join these proceedings as a party, as they would be the authority responsible for EJ’s care (including funding it) if or when she’s discharged from an acute bed.
  • It was agreed that an independent expert opinion would be sought to review EJ’s case and report on diagnosis, prognosis and recommendations on proposed treatment plans.
  • Some further reflection was to take place regarding EJ’s deprivation of liberty and the application of the Mental Health Act 1983 as opposed to the Mental Capacity Act 2005.

EJ’s Wishes and Feelings

Counsel for the Official Solicitor representing EJ’s best interests (Rhys Hadden of Serjeants’ Inn Chambers), noted that EJ now says she would prefer to die than be discharged to a neuro-rehabilitation placement.  She also wants to leave hospital and return to live in the community but her previous rented accommodation is no longer available, and she doesn’t currently have a “home” to be discharged to. 

When Sir Jonathan Cohen invited EJ to ask questions and checked in with her about her understanding of what was happening, I was reminded once again of how strong willed she is.

In response to whether she would want to speak with the Official Solicitor, she said, “NO! I do not want to speak with them and will not need to do so.”[1]

In response to whether she understood what was decided, she said, “I was not listening. It is super boring, but I’m cool with it. There’s no need to repeat it”.

In response to whether she had any final questions, she asked, “Do I need 1:1 supervision? They are very annoying”.

In response to confirmation that there will be no supervision, no PEG and no naso-gastric tubes, and that this will remain so as long as she stays hydrated, she exclaimed “What a day –  thank you – don’t worry, I’m hydrated as hell!”

Next steps

Another (hybrid) hearing is expected to take place in approximately three months when EJ’s short and long-term options for her treatment and care will be explored with the help of independent clinical experts. 

EJ will by then have been in hospital for more than a year – a long time to spend feeling like you aren’t being listened to. 

However, the regular reviews make me feel optimistic that EJ will remain at the heart of any and all decisions about her treatment and care.

I hope to report back in a few months time on how it’s all working out.

Upeka de Silva is the Policy and Advocacy Officer at the charity Compassion in Dying.  Upeka tweets @de_upeka and the charity tweets @AGoodDeath

[1] Quotes based on contemporaneous notes as recording is not allowed. They are as accurate as I could make them but unlikely to be 100% verbatim.

A challenging capacity assessment and a professional witness in court

By Josie Seydel and Claire Martin, 19 February 2023

Editorial Note:  A psychologist gave professional witness evidence at this hearing about P’s capacity to make decisions relating to care and contact. The two observers who’ve co-authored this blog post are also psychologists.  Listening to his evidence, they have come to opposite conclusions about P’s capacity.  In this blog post they explain why, and discuss the challenges posed by fluctuating capacity and the balance of protection and autonomy.

UPDATE: The judgment was published on 10th March 2023. You can find out what the judge decided here: A Local Authority v PG & Ors [2023] EWCOP 9

On Thursday 2nd February 2023, we observed the final hearing in the case Josie had  observed and blogged about earlier: COP 13825449 before Mrs Justice Lieven (see “Uncertainty about capacity for contact – and the inappropriateness of using the inherent jurisdiction” for an overview and discussion of the last hearing). The hearing was held over MS Teams and lasted for a little over 2 hours.

The case concerns a 34-year-old woman, P, who was described as having “a diagnosis of moderate intellectual disability, an autistic spectrum condition and recent diagnosis of EUPD” (emotionally unstable personality disorder). She resides in supported living accommodation with 24-hour care (reported as 2-to-1 care during 15 hours of daytime and 1-to-1 care for 9 hours at night), where she has lived since August 2022; prior to this date she lived, with carers, with her mother. The issue before the court was P’s capacity to make decisions around care and support and contact with others.

The parties were: 

  • the applicant local authority, represented by Mark Bradshaw (Some social workers also attended); 
  • the protected party at the centre of this case, P, represented –  via her litigation friend, the Official Solicitor – by  Eleanor Keehan.  (P was also present in the hearing, watching the court process with her mother, and she appeared on screen a few minutes after the formal start of the hearing:  “Oh there’s [Name] – hello!” said the judge)
  • P’s mother, represented by Sophie Allan
  • The Integrated Care Board (with silent status in this hearing)

The parties agree that P lacks capacity to conduct legal proceedings, and to make a tenancy agreement.  They also agree that she has capacity to make decisions about her residence.  

There is disagreement or uncertainty about her capacity as to decisions about some or all of the care and support she receives (especially in the community). There is also disagreement about capacity for contact decisions (excepting family). 

Dr K, P’s former clinical psychologist, had provided a detailed s.49 report which had led to some confusion and disagreement as to whether or not P has capacity to make these decisions (it seems he said that she did, but there were “apparent inconsistencies”). 

A question of hearing the case under the inherent jurisdiction had been raised by the LA in the previous hearing, but subsequently withdrawn. Instead, the question as to whether or not P has the capacity to make her own decisions in relation to care and support and contact was now before the court, and Dr K was present as a professional witness for cross-examination. 

A total of three reports from Dr K had been submitted to the court between March 2022 and October 2022. Further, following a psychiatric inpatient admission in November 2022, P has had an additional diagnosis of EUPD, from a clinician other than Dr K, but no reports were mentioned (or requested) in regard to this.

P was sitting with her mother for the hearing, initially visible on screen but then the camera was turned off and we were told this was because of ‘bandwidth’. (Claire’s notes read:  “P and her mum sitting together in a room, both with coats on and P herself looks a bit fed up, head in hands then chin in hand. Perhaps just waiting patiently.”) The judge said that she was “keen that [P] should be able to hear me” and clarified with Eleanor Keehan (counsel for P) that she could. 

P was not given an opportunity to speak during the hearing, which surprised us. As a result, we did not get any real sense of P as a person, her likes and dislikes, her own thoughts and concerns and what she thought of all of this. There will be a lot of information and processes to which we are not privy though, as observers, and P might have felt included in other ways. All we really learnt about her wishes in this hearing was that she wants to ‘be with people and make friends’. 

Dr K’s Evidence: Our perspectives

Josie

Dr K was affirmed and declared that he had no amendments to make to his assessments and that they represented his true and professional opinion. Counsel for the local authority took Dr K through his evidence and then counsel for the Official Solicitor cross-examined him. 

I found this process somewhat frustrating as it felt laboured and a little fruitless. 

I struggled to ascertain whether there was an actual difference between Dr K’s opinions regarding P’s capacity in relation care and support and her capacity in relation to contact in the community. Dr K’s analysis of P varied and sometimes contradicted itself. 

At one point Dr K agreed that P “lacked capacity at all times and in all contexts”. However, he also said that when P is calm and collected, as she was during their assessments at home in her living room with her mother present, she “recognised risks and could communicate reasoned understanding of situations and actions she could take to keep herself safe” and “passed all the tests on risks, vulnerability and appropriate behaviour” – but he said that these were of a “time specific nature”. He felt that the effects of her autism made her more susceptible to coercion and that she therefore “struggles to employ skills that are otherwise there when she is calm and stable”, which would therefore suggest that P’s capacity fluctuates. 

Mrs Justice Lieven sought clarification, asking: “So your answer to that is, just that not only she lacks capacity when out and about. You said she lacks capacity for all things at all times. Is that your evidence?” To which Dr K responded “Yes, she might sit at home and know to say ‘I don’t want you to come out with me’ but wouldn’t have skills to keep herself safe.” And later “Even when functioning at her best, I still have concerns about her ability to make decisions about care needs in the community even if she’s not in the community at that time.” 

I was becoming more confused, as was the Judge who periodically stated “I’m really confused Dr K, sorry” and“You lost me somewhere there”. I also recalled that at the previous hearing it had been remarked that an assessment of P, made in March 2022 by Dr K, came to the conclusion that P ‘had the capacity to be aware of the risks’ of her contact with strangers – however this did seem to be contradicted by the claims he was making here.  

Although this is clearly not an easy case, I did think it was a little bit of an understatement made by the Judge towards the end of the hearing when she commented that his evidence seemed to “shift in nuance and slightly vary.”

In the process of cross-examination and the exploration of several different and hypothetical scenarios involving P (her capacity to consent to care, her levels of emotional dysregulation, her use of alcohol and her social interactions with others in the community, etc.) more confusion than clarity seemed to occur. Mrs Justice Lieven interjected another astute comment that this was a “classic case of lawyers meeting clinicians, particularly psychologists and psychiatrists. Life just isn’t as simple as lawyers would like it to be. What I’m getting from your evidence is how complicated it is. We can’t dissect P’s mind to get at every instance. Things change depending on different variables. Is that right?”.

During submissions from the lawyers, in which they were continuing to grapple for a distinct delineation of P’s capacity across various different situations, Lieven J steered the hearing back to a coherent focus, stating:  “we can’t have a situation where P has capacity for 5 minutes and then lacks capacity for the next 5” with “smaller and smaller decisions, more and more lawyers, but not better care” and adding that it “leaves carers wide open to assault and unwanted detention claims”.

 Similarly, to the previous hearing I felt this Judge really placed P and her needs back into the centre of the case, and acknowledged the complexity of the situation, and the vulnerability this was potentially placing P’s carers in. Whilst perhaps the Judge was at this point unable to achieve clarity, she certainly achieved direction, navigating the team and reminding them of the objective.

Claire

The court went straight into questioning and cross-examination of the clinician (a clinical psychologist, Dr K) who had provided the court with Section 49 reports. These reports had been provided last year, so were not up-to-date reports on P’s capacity. Dr K did make this point during questioning. 

I found myself getting very, very confused about what was, exactly, Dr K’s evidence regarding P’s capacity to make decisions about her care and support, and about contact with others.

A key issue was whether capacity was different when she was ‘calm’ to when she was ‘heightened’. As Lieven J said though, “I can’t have her having capacity for 5 minutes and then not for the next 5 minutes. That’s not do-able for people looking after her.”

Below are some extracts from questioning and evidence given by Dr K during the hearing: 

Extract 1

MB [Mark Bradshaw, Counsel for the Local Authority]: The area I want to ask questions about are concern about what would happen if [P] refused her care and support. [I want to] focus on times when – times of high arousal – [referred to as] ‘heightened state’ in the papers, of anxiety. Is it fair to say that [P] has difficulty executing when in heightened state?

Judge: Executing what Mr Bradshaw?

MB: Executive function – to make a decision about risks.

Dr K: I would say that she would be able to communicate her decision. However she would frequently struggle to understand, and retain and weigh up or use the information at the moment of making the decision. She knows what she wants, but she struggles to understand underpinning factors. [my emphasis]

MB: You describe a test – a 20-item multiple-choice test [assessing the] risks of being exploited and abused. You thought [P] had a good understanding of this? Is that right?

Dr K: At the point of the assessment – calm, unintoxicated, yes.

MB: Different in a heightened state of anxiety?

Dr K: Yes. 

Extract 2

MB: … You discussed three scenarios with [P]. When with an unfamiliar group of male peers and they want her to join them without her support worker; when they want her to get into their car; and having sexual contact. You give an account of P’s responses. Your conclusion … you say she ‘demonstrates a good level of insight into her support requirements’. 

Dr K: That’s right

Extract 3

MB: What do you consider to be other potential triggers for states of heightened emotion?

Dr K: They are varied. For example, she sees emergency vehicles and believes the police are after her. If she sees them from her home, she thinks people are watching her such as ‘that’s the judge in the car outside’. She gets anxious about where she is going to live, it’s on her mind frequently. Peaks and troughs of anxiety. She might become anxious about passing someone in street, do they pose a danger or not? A range of things, difficulties understanding the minds of others, due to ASD and learning disability. [Things are] misinterpreted, [she] perseverates and finds it difficult to move on. 

MB: Do you consider there are times when at placement [i.e. her home] when she would lack capacity to make decisions about her care and support?

Dr K: The assessment concluded that she lacked capacity at all times in all contexts. She lacks skills to keep herself safe in the community at all times. …

MB: Do you consider when at home she lacks capacity regarding care and support?

Dr K: I’m finding it hard to process…

Judge: [clarified] So, the answer to that is that not only does she lack capacity when out and about. You said she lacks capacity for all things at all times. Is that your evidence? [Judge’s emphasis]

Dr K: Yes, she might sit at home and say I don’t want you to come out with me, but she wouldn’t have the skills to keep herself safe. 

MB: And when heightened at home?

Dr K: Yes. It’s more obvious when she’s heightened. 

So Dr K seemed to be saying, at first, that P can show ‘good insight’ and then later gave evidence that she ‘lacked capacity at all times in all contexts’. Later he spoke about specific occasions of assessments from other colleagues from the Crisis Team (who had been out to attend to P in the community when she had been thought to be at risk). 

This next long exchange was interesting. It starts with Mark Bradshaw asking Dr K if he had mentioned P’s use of alcohol in his reports, and develops into a consideration of how anyone’s actions, if likely to be construed as ‘unwise’, can be differentiated from a person with and without capacity to make those decisions: 

Extract 4

MB: Have you referred to this [alcohol] in your report?
Dr K: I don’t recall, no.
MB: If I can be as straightforward as I can be, it is the LA’s contention that P lacks capacity whenever she is in a heightened state. What do you say to that?
Dr K: I think there is some variation to her decision-making in a heightened state. In my previous clinical experience, she’s been in the community denying support, the team met with her and she was able to communicate her opinion. For example, saying “I just want to be with people and make friends”. There was no suggestion that she was making an incapacitous decision.  It may have been unwise. 
MB: How to identify this? Is it visible?
Dr K: I don’t think it’s always visible, but shouting, refusing contact, raised voice, walking at pace. It’s only in conversation you can tell if she’s retaining capacity.

Judge: You lost me somewhere there.

Dr K: I’m finding it really hard to come down one side of the fence or the other because it varies so much depending on who she is with, what’s happened, whether she’s had alcohol. There are nuances. It’s so variable. 
Judge: Okay, I get that. That makes sense to me.
MB: I would stop at that point.

At this point I had made a note wondering why Dr K had not discussed fluctuating capacity in his report. His oral evidence was that it is very difficult to assess, definitively, whether P can demonstrate mental capacity for care and support, and contact, decisions. He now seemed to be saying that sometimes P did retain capacity, and sometimes she didn’t. Yet earlier in his cross-examination, he had said that CD “lacked capacity for all things at all times”. Josie had recorded at the previous hearing that the s.49 report had found that P had capacity around strangers (i.e. contact decisions). I was confused. It seemed to me that an independent expert witness report was required.

Lieven J then turned to Eleanor Keehan [EK] inviting her to ask questions of Dr K.

Extract 5

Judge: Back to you Ms Keehan
EK: Dr K,  I appear on behalf of P via the Official Solicitor. In relation to contact with others, one of the areas to be assessed, I want to clarify your view. When she is in a calm state at home, she has capacity to make decisions as to contact with others?
Dr K: I would agree.
EK: So that’s baseline. At baseline she has capacity for contact with others. 
Dr K: [confused by term baseline]
Judge: Forget baseline  – that’s a confusing term.  When she’s at home, with mum, and no triggers, calm, in those situations she’s likely to have capacity about contact with others?
Dr K: Yes
EK: One time, when you saw P in the community when she was in a heightened state, you said there was no reason to believe she was making an incapacitous decision. 
Judge: Are you referring to the report?
EK: No. My notes from Dr K’s oral evidence. You went to her in the community, in a heightened state, and had no reason to believe she was making an incapacitous decision.
Dr K: Not me. That was my colleague – P was in a heightened state, making what might be construed as an unwise decision, but was able to state why: she could explain her reasons.  But other times, she’s not been able to do so.

Returning shortly afterwards to the issue of alcohol:

Extract 6

Dr K: I remember an MDT meeting involving the social worker who was discussing examples of times when P was in the community, behaving in unwise or dangerous ways making her vulnerable, and alcohol was a factor. And then she wasn’t outlining the pros and cons of her situation to others, or showing that she recognised there was a degree of risk.
Judge: Can I just butt in for a moment? I am struggling Dr K. I suspect most people don’t weigh the pros and cons in the same way when they’re out drinking alcohol as they do sitting home in the living room. How am I supposed to assess whether that’s a lack of capacity?  How is this is related to her capacity, as opposed to other capacitous adults? [Judge’s emphasis]
Dr K: I am finding it hard myself to disentangle, which is perhaps why it’s coming across like that to others. It’s hard to disentangle – it’s not clear cut. 
Judge: I understand that, I’m not being critical, but I have to make a decision.

There was then a long exchange between Eleanor Keehan and Dr K trying to clarify his evidence about (a) whether P is unable to keep herself safe at all times; and (b) whether capacity rests on when ‘functioning at her best’ or when ‘in a heightened state’.

Lieven J then intervened in a way that was exceptionally helpful (to me!) to clarify the mire that the barristers had got into with Dr K. I was feeling so confused at this point about what decision was being discussed, the relevance of whether P was at home or out and about, and the influence of her location on when professionals must have assessed her to displace the presumption of capacity and therefore enable a best interests decision to be made (and a coherent care plan to back that up). 

Extract 7

Judge: This is a classic case of lawyers meeting clinicians, particularly psychologists and psychiatrists. Life just isn’t as simple as lawyers want it to be.  What I’m getting from your evidence is how complicated it is. We can’t dissect P’s mind to get at every instance. Things change depending on different variables. ….   I’m getting a picture of P being quite calm at home, less so in the community. My focus must be on decision-making – when she’s faced with an actual DECISION, does one of the stresses come from having to make a decision? ‘Am I going to go off with this bloke or not?’ Or is she OK about making those decisions if heightening factors aren’t there? [Judge’s emphasis]
Dr K: The act of making a decision can be stressful, for example where to live was very difficult for a range of reasons. Trying to balance her own and her mother’s needs, balance what services are telling her. She’s someone who values relationships with others, and she can struggle wanting to please everyone.

Judge: That’s helpful. In my position – I don’t know her – I’m trying to think this through with you. Thank you. Let’s proceed to submissions. P’s situation can’t be that unusual – [being] OK at home, and not, when stressors are around. How …. does any of the case law help me? Section 3 of the Mental Capacity Act; how much of the time does this have to be met to find someone doesn’t have capacity? 

Closing Submissions (Claire)

Mark Bradshaw (MB) – Counsel for the Local Authority

MB: I would say this is a classic case of fluctuating capacity. If that’s right, then what’s been referred to [in case law] is a longitudinal approach ….
Judge: What does that mean?
MB: The PWK case. It’s classically similar in my submission. When becoming anxious, the position is different. I have set out what I would submit to be the ratio of the case essentially. … [then referring to the PWK case] Significant periods of time when the person is lacking capacity. Accepting that the person might have capacity at times, but significant periods when they don’t. It reflects the difficulty Dr K has had.
Judge: I’m not sure the MCA is about the theoretical capacity to make decisions. It seems to me that the critical moment is when the person has to make the decision. … the Mental Capacity Act is about the actualmoment you are making the decision to get into that bloke’s car? Isn’t that right? [Judge’s emphasis]
MB: I think that must be right
Judge: But have any other judges looked at it that way?
MB: I can’t bring to mind. 

Lieven J appeared to be wrestling with a real dilemma between protecting P and upholding her autonomy. She said:

 “The last thing I want to do is intrude on P’s autonomy a millimetre more than I need to do to keep her safe. But I can’t say she has capacity for five minutes and not for the next five minutes. That would be impossible for the poor people looking after her. I am not attracted to this. We do have to make the Mental Capacity Act work. We’ve already gone down the line of making smaller and smaller decisions. It leads to more and more lawyers, but probably not better care.  I’m going to need more persuading that she has capacity when calm and not when she’s not. It leaves carers wide open to assault and unlawful detention claims.”

The gist of Mark Bradshaw’s final submission was that the case was ‘finely balanced’ (a phrase I have become very familiar with as an observer in the COP): either that there isn’t ‘sufficient evidence to displace the presumption of capacity’, or that ‘sometimes P does lack capacity for these decisions and therefore a longitudinal approach should be applied’. 

Sophie Allan – Counsel for P’s Mother

Sophie Allan’s closing submissions were that P’s mother takes a position “aligned with the local authority; she wants to keep P safe’.  She supports the view that P lacks capacity for care and support decisions, especially when out in the community. She argued that contact with third parties was ‘more difficult’, but that her reading of the evidence ‘in the round’, was that she had reached ‘the inevitable conclusion that decisions, for example getting into cars and houses of strangers, are likely to be incapacitous rather than unwise.”

Eleanor Keehan – Counsel for P (via the Official Solicitor)

Eleanor Keehan, in contrast, submitted that Dr K’s evidence was, in fact, that P was (even at times of being ‘heightened’) able to understand, retain, weigh and use relevant information. This submission was based on the information from Dr K’s colleague. She argued that being dysregulated ‘does not cause incapacity’. She suggested that alcohol is a factor but that ‘there are many people every day who make unwise decisions because of alcohol’. A persuasive point, in my view, was a concern that a declaration of lack of capacity for these decisions would be ‘raising the bar far too high for P as opposed to other people’ and that ‘It is my submission that intoxication can affect anyone’. Eleanor Keehan stated emphatically that there was a risk, with P, of ‘misguided paternalism’ and a consequent erosion of her autonomy. 

Mrs Justice Lieven appeared uncomfortable and said that “parts of your evidence do not accord with what I wrote down”.  She acknowledged that the application was a ‘complicated case on the ground” but said “I’m not going to make a judgment based on what Dr K said and then have you tell me that I wrote it down wrong”.  She emphatically wished to be clear: “I don’t want to be in the Court of Appeal for not understanding the evidence”.

Lieven J directed the three barristers to write down for her an agreed version of what Dr K’s evidence was in relation to P’s capacity to make decisions about care and support, and contact with others.  

Reflections

Josie

On my own reflection of this case, from my perspective as a psychologist, I have been left wondering what the outcome may be for P and have some concerns. 

Although Dr K reported having met with P over 20 times, aside from several assessments and a mention that he felt he generally had a ‘positive relationship’ with P, there was no mention in his oral evidence of any specific therapeutic support that had been undertaken. 

I do not believe that a judgment about P’s capacity to decide about her care and support, or her contact in the community should ignore the possibility that she might be able to develop insight, skills and benefit from education regarding these issues.

I wonder if a behavioural analysis has ever been carried out with P (not ‘on’ her)? This would give some indication as to her triggers to anxious and/or dysregulated states, her thoughts arising from this, any behavioural interventions or strategies she or carers have tried that might assist her to cope without putting herself at risk, and what may be reinforcing problematic behaviours. We already know, for instance, that traffic can trigger P’s anxiety, but also that her anxiety (and rumination) can cause her to lose awareness of risks around traffic. The common factor here is anxiety. 

A common feature of Autistic Spectrum Disorders is a difficulty with sensory processing that can often lead to feelings of overwhelm and anxiety. However, any person, regardless of diagnosis, may well have their cognitive ability and executive functioning impaired when emotionally dysregulated or distressed:  “a narrative review of the literature revealed that anxiety, whether self-reported or experimentally induced, is related to poorer performance across a wide variety of tasks.” (Moran, T. P. (2016). Anxiety and working memory capacity: A meta-analysis and narrative review. Psychological Bulletin, 142(8), 831–864)

The Position Statement from P’s mother, which I first saw after the hearing itself, described a number of high-risk behaviours such as: P leaving the house at night and not returning for several hours, going ‘missing’ and staying in strangers’ houses overnight, kissing strangers in the street, P reporting having sex with strangers in exchange for drugs or alcohol, and making allegations of assault and sexual assault, all of which were noted in her Positive Behaviour Support Plan. They are also behaviours that cause P’s mother profound concern and anxiety that something catastrophic might happen if P is not protected. In addition, the Position Statement mentions an increase in alcohol use, to a daily basis, with concerns for P’s physical health. These would be highly concerning behaviours regardless of a person’s capacity.  I still wonder whether, in P’s case, this reflects a lack of capacity or simply unwise decisions?  Mr Justice Hayden, in London Borough Tower Hamlets v PB, reminds us that:

“The professional instinct to achieve that which is objectively in P’s interests should never influence the formulation of the criteria on which capacity is assessed”. 

Neither anxiety, emotional dysregulation or risky behaviours in themselves constitute lack of capacity. In ‘A Local Authority v RS,  Mr Justice MacDonald also emphasises:

“…the importance of not conflating a narrative account of risky decisions/unwise behaviour with a lack of capacity – there must be detailed and meaningful analysis of capacity by reference to the criteria set out in the MCA. When assessing P’s capacity, it is necessary to carefully consider the diagnostic and functional tests for capacity and the causative nexus between them.”

Which returns me to the three criteria of understanding, weighing and retaining information. It was agreed that when ‘calm and collected’, certainly in relation to her care and support in the home environment, P had a better ability to understand, weigh and retain information.  This implies that, although it may be fluctuating and situationally dependent, P does (sometimes) have capacity. In addition, from the previous hearing, I understood that P had become more stable in her mood and related challenging behaviours since living in supported accommodation – so to me this indicates that P also has the ability to improve her capacity when she has the appropriate support and in certain contexts. I would therefore suggest that there is a good argument that P does have the capacity to consent to her care and that this could be considered as an advance statement of wishes or, which could be employed when P’s capacity fluctuates to a level, perhaps agreed by her, that causes her to lose capacity in a way that puts her or others at risk. In addition, therapy, such as DBT (dialectical behavioural therapy), for example, could empower P, and her carers, with a wide range of skills such as distress tolerance and emotion regulation, to help manage her labile moods and resultant challenging behaviours and thus, potentially increase her ability to make capacitous decisions. This does however, put an inordinate amount of responsibility for carers to assess moment by moment a “complicated case on the ground” (as it was described by Lieven J) and may well risk leaving them “wide open to assault and unwanted detention claims”, which is far from ideal.

I cannot say that I am satisfied by this conclusion. It feels one of cool logic rather than precaution. I am applying my understanding of the MCA and MCA guidelines, albeit limited and inexperienced, (as this is only the second case I’ve ever observed) and from the angle of preserving P’s autonomy.  I am aware that an alternative route (such as a ‘longitudinal approach’ as outlined in Cheshire West  may be more protective and appropriate. However, on the basis of the evidence of Dr. K’s assessments and based on the information provided and considered in my observations – and despite the serious risks to her safety, despite the anxiety of P’s mother and despite the potential litigation against carers – I would conclude that P has capacity  – because I have not heard anything said in court about a clear causal link between an “impairment or disturbance in the functioning of the mind or brain” and P’s inability to make decisions because of this impairment, and the MCA is clear that “A person must be assumed to have capacity unless it is established that he lacks capacity.”

Claire

This is probably the most confusing hearing I have ever observed – certainly, in terms of what evidence was being presented to the court. I was left with many more questions than answers. 

My reflections focus on what is ‘relevant information’ for a capacity assessment, potential practice effects, the notion of fluctuating capacity and thoughts about the upcoming judgment.

What is ‘relevant information’ for specific decisions?

Dr K at times mentioned the ‘relevant information’. I wondered what relevant information he had understood to be important for the assessments he had carried out. 

39 Essex Chambers has published a really helpful Guidance Note called “Relevant Information for Different Categories of Decisions”. The guidance states: 

“Starting with the information set out here means that is not necessary to reinvent the wheel each time they come to consider whether a person can make one of the types of decision covered. If professionals start with the information as potentially relevant (or irrelevant) they will be doing so on the basis that they will be following a path adopted as appropriate by the courts”

In this guidance note is information on relevant information (and what is not relevant information) for assessments looking at capacity to make care and contact decisions. 

Thinking back to Dr K’s evidence I can see why it is perhaps hard to ‘come down one side or the other’. As Lieven J said, though, she is in the (in my view, unenviable) position of ‘having to decide’. 

P could ‘explain’ things at times; but I am wondering whether she really understood the real world meaning of what she was explaining. Especially because, from the accounts of the support workers and her mother, P’s actions were often inconsistent with her explanations. It made me wonder about possible practice effects, and Dr K’s assertion that P often wants to please others.

Practice effects and hoping to please? 

I am not sure how many times, overall, P has been assessed for capacity for care and contact decisions. In the hearing, three occasions were mentioned, all last year. 

Dr K also described P as ‘someone who values relationships with others, and she can struggle wanting to please everyone.’ I wondered whether it might be possible that P has learned what kinds of answers are being sought in an assessment, either in the knowledge that others might afford her more freedom, or in an attempt to try to please the assessor. 

Several goes at something and learning what happens following certain answers could be described as a ‘practice effect’: a change that is a result merely from the repetition of a task. 

Although the focus (see Section 2: 21) of the Mental Capacity Act is decision and time specific, it also stipulates “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself”. There is something ‘magnetic’, as lawyers often say, about being able to follow through from what you say to what you do. A useful article, “When mental capacity assessments must delve beneath what people say to what they do”, tries to marry the assessment process with the real world. The authors say: 

“In our experience, and based on research we are undertaking, we have found that many professionals in the health and social care sectors have artificially created a ‘rule’ that suggests ‘material time’ means only considering a person’s capacity to make a specific decision at the time of the conversation with the person. This means they do not always consider observational real-world evidence from families, carers or professionals as part of the capacity assessment, even when this may be applicable to the decision in hand.”

Could it be possible that the ‘material time’ for P is not necessarily when she is ‘calm and collected’? 

Fluctuating Mental Capacity? 

This possibility brings me to Mark Bradshaw’s suggestion of fluctuating capacity. I have read a lot more about the concept of fluctuating capacity recently. The NHS website information on the Mental Capacity Act says: 

“Does the impairment mean the person is unable to make a specific decision when they need to? People can lack capacity to make some decisions, but have capacity to make others. Mental capacity can also fluctuate with time – someone may lack capacity at one point in time, but may be able to make the same decision at a later point in time.”

The notion does concern me somewhat – as Lieven J said, she had concerns that ‘having capacity for 5 minutes and then not for the next 5 minutes’ might leave the ‘door open to unlawful detention claims.’

The new draft MCA Code of Practice including Liberty Protection Safeguards includes the following on fluctuating mental capacity: 

“While capacity is time-specific, for repeated decisions it may be appropriate to consider the broader time over which the decisions need to be made. If a person is only able to make the decisions at limited periods of the time over which they need to be made, it may be appropriate to proceed on the basis that they lack capacity.”

The draft code gives several examples when fluctuating capacity might be considered. I think it must be very difficult for carers on the ground to work with fluctuating capacity, and for people themselves, who are subject to a judgment or decision that they lack capacity due to fluctuating states of mind, to feel a sense of control in their lives. The balance between protection and autonomy seems at its greatest tension when fluctuating capacity is present. 

Judgment

Mrs Justice Lieven is in a very difficult position. I think an independent expert assessment of capacity for care and support, and contact, is needed. I understand that the applicant Local Authority requested this and it was declined by the Judge. I think, without it, the three counsel will have a challenging job attempting to summarise, coherently, evidence about P’s capacity, on which Lieven J must rest her judgment. 

What is ‘unwise’? What is ‘incapacitous’?  My sense, for P, from the evidence provided and her mother’s concerns – and the clear difficulty Dr K had in coming down on one side or the other – is that evidence that would “displace the presumption of capacity” is variable.  In real life P’s ability to understand, retain, use and weigh consistently, at the moment the decision is being made, fluctuates – and knowing whether or not capacity is present on any given occasion is nigh on impossible. 

I don’t know how much of the time Section 3 needs to have been met (as queried by the judge) to declare a lack of capacity for these decisions. But if  P  were to be allowed to make care/support and contact decisions herself, I have an inkling that it might end very badly for her. I’m not persuaded that, ‘at the material time’ she would be ‘unwisely’ but capacitously choosing those bad outcomes. 

Could her ‘wishes and feelings’ (though not determinative) be worked out with her when she is not ‘heightened’, in relation to different scenarios – like an advance statement – of what she would (ideally) like for herself in those imagined future situations? The starting point might be her wish to be with people and having friends (her stated wish). How can we make this happen safely?  As Lieven J said: “The last thing I want to do is intrude on P’s autonomy a millimetre more than I need to do to keep her safe.”

The judgment will be handed down soon and we will add the link to this blog. 

Josie Seydel is a Chartered Counselling Psychologist, Dialectical Behavioural Therapist and Mindfulness Teacher with a background in a diverse range of settings including: primary care services, eating disorders services, women’s prison services, adolescent in-patient services and private practice in London’s financial district. She tweets @JosieSeydel76

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 group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin

Forced Marriage Protection Order

By Celia Kitzinger, 16 February 2023

The young man at the centre of this case (M) is 24 years old and has been diagnosed with moderate learning disability and “autistic tendencies”.

Back in August 2020, M’s mother told social workers that she had found a ‘suitor’ for her son in Pakistan, and that she planned to take him there to be married in a couple of months’ time.  

There were concerns that M might not have capacity to make his own decisions about sex and marriage, and the local authority’s subsequent assessments found that he didn’t.  

So, on 12th October 2020, at a closed court hearing  (that is, one that the mother wasn’t informed about in advance and didn’t attend) a judge in the Family Court made a Forced Marriage Protection Order as an interim measure.

A week later, at another hearing she was invited to attend, his mother confirmed that she was planning a marriage between her son and a woman in Pakistan: she was “very candid” and was “not hiding her intentions”.  As a result,  the Forced Marriage Protection Order was renewed and it’s been renewed six more times since then. (I believe that M’s passport was also confiscated at that time.) 

In November 2020, the local authority made the application to the Court of Protection to consider M’s capacity to marry and consent to sexual relations and to ask the court to make declarations under the Mental Capacity Act 2005. Things then stalled somewhat, in part due to the fact that M’s mother has not been able to obtain legal aid (despite great efforts made to help her) and partly due to her illness: she is very seriously ill with a brain tumour and has a life-expectancy of only 12 months.  She’s consistently said that she’s not forcing her son to marry, but that it’s his right to do so, and “If he does not get married, he will live alone for all his life”.

I watched a previous hearing in this case before a different judge (Lieven J) back in April 2021 – a hearing which the mother had been unable to attend as she was in hospital at the time. (His aunt was looking after M at her own home.) At that hearing, the judge authorised an independent expert report on M’s capacity and ordered that an Urdu interpreter should be in court for the next hearing.  

According to s. 27 Mental Capacity Act 2005, nobody can make a decision to marry on behalf of someone else. (Other so-called ‘excluded decisions’ include sex, divorce, and adoption)

The judge back in in April 2021 explained to M’s aunt and other family members present at that hearing that:  “normally with decisions for someone in this court, the first question is ‘do they have capacity?’ and the second question, if they don’t, is whether what’s being proposed is in their best interests. But with marriage it’s a bit different. If he doesn’t have capacity, he can’t enter the legal contract of marriage, so we don’t get to a best interests decision.” 

The hearing of 8th February 2023

By the time of this hearing before Mrs Justice Arbuthnot (COP 13682498) on 8th February 2023, the aunt was looking after both M and M’s mother.  All three attended the hearing remotely, M’s mother as a litigant in person from her bed.

It was a hybrid hearing and I was observing remotely.  Counsel for the represented parties (Zimran Samuel for the applicant local authority and Abida Huda for M via his litigation friend the Official Solicitor) were in a courtroom with the judge in the Royal Courts of Justice in London.  M’s mother, aunt and M himself were attending via video-link from a bedroom in the aunt’s home. The interpreter was attending via a different video-link:  she provided simultaneous interpretation of what was being said in the hearing via a telephone link with M’s mother.  There was serious noise interference on the line and the interpreter kept having to ask the mother to repeat herself, and the judge kept having to ask the interpreter to repeat herself. 

The local authority had made an application to the court for a declaration that M lacks capacity to make his own decisions about sex and marriage, based on the independent expert evidence now before the court. The local authority asked the judge to make a Forced Marriage Protection Order. These applications were supported by the Official Solicitor.

The only difference of opinion between the local authority and the Official Solicitor was about whether or not M’s passport should be returned.  The Official Solicitor was concerned that there might be some emergency situation back in Pakistan (e.g. M’s grandmother becoming ill) and M would need to travel at short notice for a valid reason – so there should be some provision for getting his passport back without having to make a court application to do so. An added complication was that the passport was due to expire in April, so there was an issue about whether the local authority would renew it for M, or whether it could be returned to M’s aunt so that she could do it.  The judge was very concerned to ensure that the passport was renewed and would be ready for travel if needed.

The expert assessment ordered by the court had found that “M does not have the capacity to make decisions about the conduct of these proceedings, capacity to consent to marriage and capacity to consent to sexual relations”.  It originally found that “all practicable steps have been taken to support M to make a decision”, but the Official Solicitor raised some additional questions, on the basis of which the expert concluded that it is “possible” that “further work over a period of 18-24 months on his communication and understanding of more complex language and concepts” might make a difference.  So, the plan is that the Forced Marriage Protection Order should be in place for two years (only), while this educational work is undertaken (by a Speech and Language Therapist).  At the end of that period M will be reassessed to determine litigation capacity as well as capacity to consent to marriage and sex.

The possibility that M might gain capacity if he was provided with support and education had been considered in the early hearing I observed in April 2021 but Lieven J had considered that “it may be an impossible mountain to climb”.  In this hearing, Arbuthnot J also seemed not to think it likely that M would be able to gain capacity: reflecting on the educational programme, she said: “Hopefully it will bring M to a point where he will no longer lack capacity in relation to those things. That is the hope. Who knows whether it will work out”.

As a litigant in person, M’s mother addressed the court – but noise interference, and the fact that she and the interpreter often talked over each other, made it difficult for me  to understand what was being said. The judge had to ask several times for clarifications.  Here (as best I could capture it) is part of their exchange: 

Judge: Thank you for joining. This matter has been going on for a year and a half and various Forced Marriage Protection Orders have been made on an interim basis, and I’m being asked to make a final order today, for two years from today. And I’m told that M has been seen by experts, and that he – what we say ‘lacks capacity to conduct proceedings’ but perhaps more relevantly to you, he can’t agree or consent to marriage. And nor can he care for himself. And what they plan on doing is having some work with him, to help him understand what might be involved in marriage or agreement to marriage, and so educational work would take place for 2 years. […] Would you agree with the doctors who say M doesn’t have capacity to consent to marriage?

Mother: Yes, I know my son is slow in learning but I want him to get married.  I can’t leave him like this. He’s my son.

Judge: But at the moment all the doctors say he can’t agree to marry. He doesn’t understand what it means really.

Mother:  When he was in college, he tried to make a girlfriend ((there was a lot more said here in Urdu but I wasn’t able to understand the translation))

((later))

Judge: She needs to understand, this order, the Forced Marriage Protection Order is not forever. It’s for 2 years whilst this work is being done with your son so he understands more what marriage will involve.  Does the mother understand she can’t force or encourage him to get married – for two years?

Mother: I agree with it.

Judge: This is a very serious order and if you force or encourage or tell M to get married in any ceremony at all, you could get into trouble. Do you understand that?

Mother: I will not ask him to get married then, for two years.

Judge: Good. And also she cannot remove, or allow or encourage anyone else to remove M from England and Wales for two years. Do you understand?

The mother will be sent an Urdu translation of the Forced Marriage Protection Order.

Reflections

According to the most recent statistics, over the course of 2021 the Forced Marriage Unit gave advice and support in 53 cases concerning marriage for someone with mental capacity concerns – more than half of them male, and about half involving marriages in Pakistan. 

Listening to the mother’s interaction with the judge, and understanding her reasons for wanting her son to marry (she wasn’t ‘forcing’ him, she was acting in his best interests by arranging for companionship and care), I was struck by the huge distance (ethical and cultural) between her position and the law.  

According to internationally-recognised forced marriage expert Mindy Mahill, the situation for this mother and son is not unusual:

[M]any parents want their children who have capacity issues to be looked after once they have passed away and they do not want the burden of them being looked after by their siblings. For this reason, they are taken ‘back home’ and married.  In many communities this is not looked upon as ‘wrong’ and is accepted that the family have done this in the best interests of their child. It can be said that some families do not even know that it is ‘forced marriage’ and a criminal offence. 

Forced Marriage Convictions: A view from the police

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 390 Court of Protection hearings since May 2020.  She tweets @KitzingerCelia

Is she detainable under s.3 Mental Health Act? Two Trusts disagree and a placement is in jeopardy

By Celia Kitzinger, 13 February 2023

The teenager at the centre of this case had a traumatic childhood, involving neglect and abuse. She has “suicidal ideation” and a history of harming herself and other people. 

Until recently (for the last year or so) she was living in a secure children’s home.  Counsel for the ICB (Integrated Health Board), David Lawson) said there were “difficulties in providing care and involvement in the criminal justice system”.  It also appears that she was restrained for lengthy periods – sometimes hours.  

On her eighteenth birthday (when she would have had to leave the children’s home), she was detained in hospital under s.2 Mental Health Act [MHA] 1983 but then self-discharged on 11 January 2023, after being assessed to have capacity to make this decision herself.  She left, only to be returned by the police the next day under s.136 [MHA] 1983.  Another assessment found that she did not meet the criteria for detention, following which she left the placement again, was picked up by the police, and spent the night in custody.  She was then re-admitted under s.2 MHA 1983 – and that detention expires on Monday 13 February 2023.  The hospital is very clear that she does not meet the criteria for detention under  s.3 MHA, and will not make an application for this.

The case is in the Court of Protection because there is reason to believe that she lacks capacity under the Mental Capacity Act 2005 to make her own decisions about where she lives and the care she receives.

When I logged on to the video-link to observe this hearing (COP 14036761, before Mrs Justice Theis, 10thFebruary 2023), I knew that a placement was urgently needed for after the weekend, and I expected to hear that it was all sorted.  I’d attended an earlier hearing in this case just last week and blogged about it here: “Approving discharge arrangements”), At that stage, just a few days ago, everyone was optimistic that there was a placement for her, and it was just a question of making final arrangements. It even seemed possible that the hearing would be vacated, if the parties could agree everything between themselves.

So I was surprised and saddened to find that everything had fallen apart in the last 24 hours.  

The hearing

The parties to this case are now:

  • the applicant local authority, represented by David Lawson, of Serjeants’ Inn Chambers
  • the young woman herself, represented via her litigation friend, the Official Solicitor (Benjamin Harrison, also of Serjeants’ Inn Chambers) 
  • the Trust of the hospital where she is currently detained (Avril Rushe of No. 5 Barristers Chambers), and which proposes to discharge her (“the discharging Trust”)
  • the receiving Trust which would be responsible for providing care when she moves to the new placement (represented by Olivia Kirkbride) (“the receiving Trust”)

The key difficulty that has arisen is with the provision of therapeutic care.  

The discharging Trust says that the criteria for detention under s. 3 MHA are not met and that continuing to detain the patient is causing her harm.  The receiving Trust says that those criteria are met and that discharging her into the community will cause harm. This difference of opinion only became clear in a meeting the day before the hearing.  This is, as counsel for the young woman at the centre of the case said, “very regrettable”, not least because she’s been given “mixed messages” about whether and when she will move out of the hospital.  The procedures followed (he said) are “not in line with NICE Guidance”.  If it had been clear last week that the receiving Trust was not going to provide therapy, then the hearing last week would have followed a very different course.  The judge has asked for a submission on how this situation has come about, and what can be done to make sure it doesn’t happen again.

The psychiatrist from the receiving Trust has reviewed the papers and reached the clear view that in her opinion this patient is detainable under s.3 MHA and that there’s a need of intensive therapeutic support that can’t be provided in the community.  The treatment needed, says the psychiatrist, can only be provided on an in-patient basis: what’s needed is a s.3 order and a placement with in-house support, i.e. transfer rather than discharge.  There are no services that the receiving Trust can or will offer in the community.  In their view, they cannot keep this young woman safe in the community.  

The discharging Trust had spent some time looking for other last-minute placements.  None were immediately available. Of those approached, some had already said no – concerned about the “aggression” (their word) and their ability to manage that.

The ICB was now asking for an order that, if discharged from detention under s.2 MHA 2005, the young woman will remain in the same placement (for the time being) detained under the Mental Capacity Act 2005.

The discharging Trust supported this position and said that since the receiving Trust was unable to provide care in the community, they would provide this care themselves via a community bespoke package (involving a specialist life-skills pathway and Dialectical Behavioural Therapy which, according to one doctor, she “absolutely requires”).  They need some time to put this package together, but hope to have it ready in a couple of weeks.

The receiving Trust reiterated that they cannot provide services that would meet this young woman’s needs (“so it would be an unsafe discharge”).  They have therefore declined the referral.  They are not accepting automatic transfer of this patient in six months’ time, but will assess, at that point, whether her needs can be safely met by their team.

The judge adjourned for two hours to allow the parties time to consult on, and rework, the draft Order they wanted her to approve.  I wasn’t able to rejoin in the afternoon, but I understand that the order remained in broadly the same form as was being fleshed out all morning.  The patient will remain in hospital upon the expiry of her s.2 detention on Monday 13th February and her ongoing detention will be authorised by the Court of Protection under the Mental Capacity Act 2005, while plans are put in place to secure therapy for her in the community.

The judge will hear the case again at 10.30am on 6th March 2023 (for half a day), when the court will consider any updated plan for a return to the community.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project.  She has personally observed more than 390 hearings since 1st May 2020.  She tweets @KitzingerCelia

Validity of Lasting Power of Attorney: Observing my first Court of Protection hearing

By Libby Crombie, 10th February 2023

On Tuesday 7 February 2023, finding some unexpected free time on my hands, I made a last-minute decision to observe my first hearing in the Court of Protection (COP 13890632, before DJ Gilmore at Coventry Family Court, via MS Teams).

I am currently studying the Barrister Training Course and following attendance at an education weekend in January this year, I was directed to the Open Justice Court of Protection Project. I am interested in practising in family law. Therefore, being aware both practice areas complement each other, I wished to expose myself to the Court of Protection. This morning, I decided to go onto twitter and see if there was anything I could observe today. Luckily for me, there was! 

I was a little apprehensive to join as I didn’t know too much about the Project beforehand. What I was most nervous about was the process of joining the hearing itself. I was unsure whether I was emailing the right place and whether I was even allowed to join. However, a lesson I’ve taken away is that as long as you follow the wonderful instructions that the Project posts, you are doing the right thing and you will be welcomed into the hearing with open arms. 

Prior to the hearing I was forwarded the Transparency Order and the Position Statement from the Office of the Public Guardian (the applicant in this case). Although I wasn’t sure if there had been a mix up, it turns out these documents were meant to be sent to me. I felt quite special! 

Top tip for those observing a hearing for the first time – be prepared to occasionally respond to questions from court staff and the judge. It’s nothing scary. They are just administrative style questions to ensure you can see and hear everyone clearly and have access to the required documents. I wrongly assumed beforehand that I would sit in the corner with my camera and microphone off for the whole hearing. Being involved in some way however did make me feel like I was really a part of the hearing, and that my attendance was valued in some way.

There wasn’t an opening summary of the case, but the listing stated that the issue before the court was: “Directions required for OPG’s applications to revoke LPAs for P&A and H&W and appoint a Panel Deputy to manage the property and affairs of [P]”. (To unpack this: OPG = Office of Public Guardian; LPA = Lasting Power of Attorney; P&A = Property and Affairs; H&W = Health and Welfare.) 

The hearing began in the absence of the respondents (three family members of the person at the centre of the case, who purportedly held the roles of Attorney or replacement attorney) –  because, it turned out, they had not been served with the directions order. 

The court was immediately faced with a dilemma – should the hearing be adjourned or should the hearing continue? DJ Gilmore concluded that she was satisfied she could make directions in this case without prejudicing the respondents, as the order sought was essentially an order for evidence to be served. Considering that an adjournment would create unnecessary delay to proceedings, DJ Gilmore continued the hearing. 

The hearing progressed by DJ Gilmore going through the draft order filed by the OPG with him (and with the interim deputy who was also in attendance), making amendments where necessary.

The key issues in this case are two-fold:

  1. Whether the Lasting Powers of Attorney are valid?
  2. If not, who should be the deputy for finance and property?

The question as to whether the LPAs are valid arises from a concern as to whether the donor (P) had capacity to execute them within ss.2 and 3 of the Mental Capacity Act 2005. 

The protected party (P) is a man in his 30s who lives in a supported living residence. In November 2020 he made LPAs appointing his parents to manage his financial affairs and his health and welfare (with his brother and uncle as replacement attorneys). The local authority raised concerns about his capacity to make these LPAs. (For information about what a person needs to be able to understand, retain and weigh in order to make an LPA: see §16, The Public Guardian v RI & Ors [2022] EWCOP 22.

The case had already been heard previously before another judge who had suspended the LPAs and appointed an interim deputy. A Special Visitor had also been appointed (a medical practitioner with expertise in assessing the retrospective capacity of people with neurodevelopmental challenges). In this case the Special Visitor had concluded.:

  • P has a diagnosis of ‘mild’ to ‘moderate’ intellectual (learning) disability;
  • P lacks the capacity to manage his [property and financial affairs], deal with the concerns raised, revoke his LPA or make a new LPA; and
  • P did not have the capacity on 15 November 2022 to execute the LPA in question.

The validity of the LPA is the primary issue to firstly be determined at a final hearing, which was set for a few months’ time. 

The judge directed that the family should be asked: “Do they contend that P had capacity within the meaning of ss. 1 and 2 of the Mental Capacity Act to execute the LPA on 15 November 2020. If so, they should set out their evidence, supported where possible by contemporaneous documentary evidence”.  If the judge decides (in accordance with the professional advice above) that P did not have capacity to make an LPA, and that he lacks capacity now to manage his own affairs, then it will be necessary to appoint a deputy. That could be either a family member or a professional deputy (e.g. the interim deputy appointed by the court).   DJ Gilmore also directed that P’s participation in these proceedings should be facilitated “to the extent that he wishes to participate”.

Mr Thomas Francis of 4-5 Gray’s Inn Square Chambers, counsel for the OPG, raised concerns about financial mismanagement by family members, and asked for this to also be considered at the final hearing, when considering who should be appointed as deputy. 

DJ Gilmore commented that the draft order, which required the respondents to respond to allegations of financial mismanagement did not make it very clear exactly what those allegations were, and asked the OPG to set them out more clearly. It seems there was a large outstanding debt, and family members were, the deputy said, not responding to requests for clarification or explanation about P’s various bank accounts. There was also (said counsel for the OPG) a concern about a reduction in the number of days per week that P was attending day activities, with a suggestions that this is to reduce financial expenditure – although it was agreed that P has capacity to make his own decisions about activities, and he’s said he doesn’t wish to attend 3 days a week. The judge reworked the order to read: “The allegation is that it’s alleged that for reasons of finance, you decided that P should attend the day activities for two days a week instead of three days a week. Please address whether this is correct. If not, why not? If it is correct, please explain your reasons”. 

The final hearing should be in person on Thursday 13th April 2023, starting at 10:30am. There was a discussion about whether it should be in person or remote, and the challenges of online hearings were mentioned with the judge concluding that it would be “prudent to list it in person – to avoid connectivity problems”. I personally was happy to see the court decide to have the hearing in person – as a bar course student, in-person advocacy is what it’s all about! However, the convenience of holding online hearings is also something that shouldn’t be lost.

Having the opportunity to attend this hearing was invaluable. This has given me confidence to join more in the future, observing other areas of Court of Protection work. I was unaware until recently that Court of Protection hearings could be observed by the public. This is an area of the law that we are unlikely to observe during a mini-pupillage, so the work done by the Open Justice Court of Protection Project is extremely beneficial for those with an interest in this practice area. It’s impossible to know whether you truly like something until you see it in practice. Today’s hearing really helped to confirm my interest in the Court of Protection. 

Libby Crombie is a Durham University LLB graduate and current Bar Practice Course Student at the University of Law (Liverpool),  Gray’s Inn Uthwatt Bar Course Scholar. 

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