Improving P’s quality of life pending a s.21A change in residence

By Celia Kitzinger, 28th October 2022

The person at the centre of the case (I’ll call him “Peter”) is a 71-year-old man who is held against his will in a care home that is not meeting his needs.  

It’s a Section 21A deprivation of liberty case (COP 13825795) before Her Honour Judge Buckingham, sitting (remotely) on 20th October 2022.

Peter was in court throughout.  He is “deeply unhappy”.  He conveyed his distress and frustration very articulately

Before moving to the care home,  Peter lived in a guesthouse by the sea, with support from a personal assistant, the (clearly wonderful) “Jennie”, described by the Official Solicitor as “a positive supportive influence to which [Peter] responded positively and willingly”. 

Apparently, the previous placement broke down for reasons associated with his alcohol consumption, which is why he is now in the care home.

A psychiatrist assessed Peter and reported that he had severe cognitive impairment as a result of alcohol damage and in February 2022,  the judge made declarations that Peter lacks capacity to conduct these proceedings, and to decide where he lives or what care he receives.  So he’s now deprived of his liberty in accordance with a Standard Authorisation.

But Peter hates the care home.

Since he’s been there his alcohol consumption has increased and from what I heard it sounds as though there’s been virtually no support available to him with managing his alcohol habit. He’s also smoking 20-40 cigarettes a day, which means nearly £200 every week spent on cigarettes and alcohol.

He is increasingly desperate to leave the care home and to return to the seaside town where he lived before.

There was a litany of complaints and concerns about his current placement, raised both by P in person and by the Official Solicitor on his behalf – all of which the judge took very seriously. They include:

  • Peter is not allowed to go out (or “access the community” in DOLS-speak) as often as he would like. His son suggests he’d enjoy museums, art galleries and the cinema, as well as the park, shops and sauna that he is occasionally able to visit. 
  • He doesn’t get the opportunity to exercise (“a rabbit in a cage gets more exercise than I do”).  He says he wants to go for brisk walks in the fresh air, do some jogging and swimming.
  • In part his lack of access to the community is because he’s assessed as needing 2:1 support – which causes practical problems due to staff availability and is tied up with funding issues.  (Peter tells the judge, “I have to ask permission to go across the road and it’s always ‘oh we’re too busy’ or ‘we’re short-staffed today’”).
  • So, Peter is confined to the care home for much of the time and there’s nothing much for him to do there.  Asked by the judge about what activities the care home offers, the social worker volunteers only cooking and baking, watching TV and a garden area to sit out in. As the judge says, “not a wide range”.
  • He’s lonely and bored. “Why take Jennie away from me and give me school-leavers, which some of these people are, who are only interested in watching Coronation Street and talking about their last boyfriend? They don’t give tuppance about me or anyone else in that building”, says Peter.
  • There’s some dispute as to whether or not Peter is receiving the alcohol allowance authorised by the judge, and how it is paid for.
  • Peter says items have gone missing from his room: expensive trainers, pinstripe suits, a watch (“even toothbrushes, would you believe!”).
  • Nobody will support him to go to the bank to withdraw money (he has a private pension), but without access to his account, “I’m penniless. I can’t even buy a bar of chocolate”.
  • There’s no chair in his room: According to the position statement by the Official Solicitor, “The Care Home refused to provide this stating it was not standard issue and they would not be able to provide one. The [LA] therefore confirmed they would pay for a chair however one has still not been provided”.

Peter uses the language of incarceration (his room is a “cell”; other residents are “inmates”) to underscore how strongly he feels about his deprivation of liberty. 

He asked the judge:  “What am I being charged with and what is the allegation because I’ve not been told.  I’m on an open-ended sentence. I’m now into 12 months and it’s still an open-ended situation and I haven’t been charged with anything.” 

The judge explained:  “As I said last time, this is not a criminal court. I’m not a criminal judge and you are not facing any criminal allegations.  I know it feels like prison to you, but you are not at your current placement because of any criminal charges. […]. I know it feels like a prison to you, and you’ve told me how despondent you are.”

The plan, as the judge explained to Peter, is to investigate whether and how he might be able to return to the town where he lived before, with an appropriate package of support. 

The judge was hopeful that this could include Jennie (and her partner Tony) as “Shared Lives” carers. Assuming it works out, there’s a 2-3 month checking process and some training before Jennie and her partner can become Shared Lives Carers.

At the hearing I watched, the lawyers were: Jill McCurdy of Ramsdens Solicitors, representing Peter (via the Official Solicitor); Simon Batt (the in-house solicitor representing the City Council, the first respondent); and Barbara Green of Spire Barristers representing the County Council, the second respondent). Peter’s social worker was also in court.  

Peter’s son and daughter, the third and fourth respondents, support his wish to move out of the care home. The son was present and spoke on behalf of both of them.

I’m not sure why Jennie wasn’t in court – or whether she’d been offered the opportunity to be present.  Given her past relationship with Peter as his personal assistant, and her possible future relationship as his Shared Lives carer, her involvement in court might have helped with sorting out the miscommunication and disputed facts of the case. 

The judge patiently worked through all the concerns, trying to untangle what the problems were on the ground and work out how to ensure things moved forward more smoothly. 

The hearing took nearly three hours – in part because a fire alarm went off in one of the advocates’ buildings, which meant the hearing was forced to adjourn for about half an hour. It continued until 4.50pm, with the judge reassuring Peter at one point that she had “plenty of time” to hear him out.

Supporting Jennie’s involvement with Peter

Let’s start with the positives”, said the judge, turning to the fact that the assessment process for Jennie and Tony had begun.  She wanted to know if the organisation assessing them had experience “in assessing people for supporting those with a chronic alcohol habit” and emphasised that Jennie and Tony would need external support.  It shouldn’t be allowed to fail for lack of external support.

Pending the completion of the assessment and possible move, Jennie is willing to visit Peter on a weekly basis for four hours, subject to funding being agreed for her to make such visits on an hourly personal assistant rate, together with travel expenses.  The local authority has agreed to fund this. 

The Official Solicitor supports visits from Jennie and Tony:  “such an arrangement would not only enhance [Peter’s] happiness and day to day living arrangements but would also serve to test out the potential placement by contributing to the assessment giving valuable insight into the viability of them as Shared Lives Carers”. (Official Solicitor)

But it emerged that, a few days earlier, Jennie had travelled from her home to the care home (some distance by train) to see Peter, “only to find she wasn’t allowed to go out into the community with him, despite the role she’s played in his life previously. How did that happen?”, asked the judge.

The social worker responded by saying that it hadn’t been agreed that Jennie’s visits to Peter should begin yet: “The discussion we had was about exploring the option, not about it actually being implemented at that moment in time. We have to follow the process.  We have a process.”   

There was disagreement about whether it had, or had not, been agreed, and who had informed whom – and the judge emphasised the importance of “better communication”.

Can that be done quickly,” she added, “because every day that Peter is left feeling, as his son says, ‘aimless and drifting every day’, it’s a vicious spiral in terms of him becoming less receptive to advice.”

There was also some uncertainty about the duration of the visits.  The son said that Jennie and Tony were willing to “spend six or seven hours on a quality day out” with Peter, even if they were only paid for four hours – but the judge made clear that these visits should be limited to  four hours for now “to allow that to bed down”, and the duration would be increased if the visits were successful.

Issues that need to be resolved and understood between everyone include: what time Peter will be collected, how much alcohol he’s already consumed by that point and how much he’s allowed to consume during the visit, how long he will be out of the care home for (a maximum of 4 hours), and what time he will return.

I’m disappointed that hasn’t happened already”, said counsel for Peter via the Official Solicitor.  “It’s what the previous order provided for, for a Contract of Expectations to be prepared.  I would ask [the social worker] to ensure that her communications are clear…. I invite a Contract of Expectations as a document everyone can share, including Peter himself”.

Alcohol consumption

At a previous hearing the judge had authorised alcohol consumption for Peter.  He was to receive 30ml of whisky (with lemonade) at one-hourly intervals, on twelve occasions, from 7am onwards each day – which amounts to between 84 and 90 units of alcohol per week (the recommended maximum is 14 units).

There was some confusion and disagreement about whether or not the local authority was responsible for buying Peter’s whisky.  Peter’s son thought that was so, on the grounds that alcohol was “medically required”. 

The judge explained the current situation to Peter’s son like this: “I was very reluctant to authorise this.  It’s a ticking time bomb to continue to provide alcohol at this level and it’s storing up problems in terms of liver sclerosis, heart disease, stroke etcetera.  But given the costs of care, your father would literally have no money to buy alcohol at all, which would put him at risk of seizures. On that basis I authorised the plan, and it was agreed that the costs of your father having that level of alcohol would be disregarded for the purposes of care. So, the local authority is indirectly funding it.  Their position is ‘we will not provide the funds for it, but we will not enforce our right to take funding from his assets when we would ordinarily be entitled to do so’.”

There has still been “no proper medical information” about Peter’s alcohol use.  The judge said: “A GP appointment hasn’t happened, and I don’t know why. There are mixed accounts of why it hasn’t happened.”  A referral to an organisation that supports people with drug and alcohol issues also hasn’t progressed.

There was also a disagreement about whether in fact Peter was receiving alcohol in accordance with the plan the judge had authorised. The care home says he is.  Jennie and Tony had reported he wasn’t – although their version likely comes from what Peter tells them and is not an independent account.  Peter’s son cited the Care Quality Commission report about the care home  from a couple of years ago and said he was concerned that the care home records are unreliable and inaccurate. Although the son was generally measured in how he spoke, he was very critical of the care home (and the social worker) – and the judge pointed to “a great deal of mistrust here between the family and the care home”. 

Peter’s son suggested that his father should be invited to sign and date the care home records: “it would give them more credibility”. The judge agreed that Peter could be invited (but not required) to participate in the care home records – and also that if there is any disruption in dispensing the alcohol that they should contact the social worker immediately.

There was also some discussion of obtaining an expert report on the matter of Peter’s drinking – and of addressing his back pain because “that means he uses alcohol as a mitigator”. It seemed agreed that “Jennie is the best chance of that engagement being successful”.

Money

The Official Solicitor reported that Peter is “preoccupied with the worry that he is owed money and he does not know where his money is going or how it is being spent. It does not appear that the [Local Authority] or the Care Home are acting in a way consistent with the ethos of the Mental Capacity Act by supporting [Peter] in a way which empowers him to access his own financial arrangements and have as much control as possible in respect of the same.”  It appears, said the Official Solicitor, that Peter’s efforts to engage with his own financial concerns have been “thwarted”. Not being able to access his funds “causes him daily distress and agitation”.

The social worker’s view was that he didn’t need to access his funds:  “I believe he fails to understand and appreciate there is no reason for him to do this given that [the LA] have been appointed as DWP benefit appointee”.  

The Official Solicitor says “this represents a significant misunderstanding of the situation”, since Peter has a private pension in addition to his state pension.

The judge asked how quickly Peter’s bank statements could be made available to him and there was a discussion about mini-statements from a hole in the wall, or bank statements online, and whether paper statements are still available and how to get them.

There was also talk of a capacity assessment for Peter’s ability to manage his own money, and the possibility of appointing his son (and maybe also his daughter) as Finance Deputies.

A chair for Peter’s room

It’s been promised. It’s on order.

Missing Items 

It’s important when someone raises a complaint that even if it is a misunderstanding on their part that it is fully investigated.  When Peter moved in there will be an itinerary of his possessions and it will, or it won’t, include expensive trainers, pinstripe suits and a watch.  And if they were on that list, what has happened to them?” (Judge)

Exercise and activities in and from the current care home

One way of enabling Peter to get out more, go for walks, swim etc is for him to be permitted to go out of the care home with 1:1 staff ratio, rather than the requirement that he has two members of staff with him at all times, as at present.  Another way is to leave the 2:1 in place but for the local authority to increase Peter’s entitlement to staff time.

Judge:  What power do I have if the care home say they are not prepared to let their staff go out one-to-one?

Counsel for the LA: The court has no jurisdiction.

Judge: So I could say 2:1 is not proportionate or necessary but then the care home would give notice.

Counsel for the LA: That’s the reality.

Judge: And then they’d say ‘good luck to you, if we give notice, finding somewhere else’!

Having explored the activities available to Peter inside the care home the judge said: “There aren’t many opportunities available for him here – cooking, baking, sitting in the garden, watching TV. There’s not much mileage in it.  It’s very much to Peter’s credit that he wants to exercise, when the rest of us are all encouraged to exercise more than we do.  It must be a priority. … Are there Personal Trainers who work with elderly people with cognitive impairments?”  Nobody seemed sure. 

Counsel for the LA suggested looking for alternative placements other than in the coastal area to which Peter wants to move.  But the judge wanted something done now. She asked the LA to “think urgently and laterally about how [Peter’s] circumstances can be improved.”

A new placement

The search for a new placement is ongoing

Peter:  If it ran smoothly and to course, what time scale are we looking at?  I’ve served 12 months now […] I’m working my time now. I could have put a brick through a shop window and I’d be home by now.”

The next hearing is in April 2023.

Reflections

Until I started watching Court of Protection hearings two-and-a-half years ago, I had no idea that hearings like this happened.  But they’re quite common.  

This hearing was labelled “CMH” on the listings: it stands for “Case Management Hearing”. Their purpose is to review the case, and check things are moving along towards what’s needed for the final hearing.  In case like Peter’s, where the protected party is unhappy in their place of residence, judges often use the opportunity to try to improve P’s circumstances in the interim.  

Case management hearings generally seem to involve less by way of complex law and legal argument, and more by way of judicial application of common-sense and  leadership skills. They try to get people to talk to each other, to try to get health and social services working together, to explore what needs to be done next, and generally to provide oversight of the way individual cases are being managed.  I wish it didn’t need a court hearing to do this, but the brutal reality is that it does.  The prospect of being in court and accountable to a judge seems to focus practitioners’ minds.  A lot of activity seems to take place in the day or two before a hearing to move the case along.

HHJ Buckingham did her very best to ensure that Peter’s quality of life improves over the next few months before the next hearing.

Given the lack of progress between the last hearing and this one, I don’t know how successful her efforts will turn out to have been.

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

When capacity for contact and sex do not align: Pragmatic decisions and judicial work-arounds

By Ruby Reed-Berendt, 24 October 2022

Having contributed to a previous blog on capacity to engage in sexual relations and the Supreme Court decision in A Local Authority v JB (Capacity to engage in sex: Nine responses to the Supreme Court Judgment in Re. JB), I was keen to observe a hearing on this issue to see the application of the law (and its direction of travel) since JB. 

I got the opportunity to do so on 18th October 2022 when Celia Kitzinger alerted me to a case which was being heard via MS teams in the Royal Courts of Justice (COP 13627568) before Mrs Justice Lieven.

In line with normal practice in the Daily Cause List for the Royal Courts of Justice, there was no information as to what the hearing was about (unlike hearings listed in the county courts where case descriptors are increasingly available).  However, Celia had observed and blogged about the case a few months earlier (“Grave concerns”) and recognised the case number in the RCJ lists.

At that hearing, the district judge (DJ Glassbrook) expressed “grave concerns” and said he was “unhappy” about the declaration he’d already made at an earlier hearing which (he said) could be interpreted as meaning that “if there is somebody who is new to P, she does not have capacity to go and sit with him or her in a café and have a brew, but can decide that a one-night stand is on”. 

At that point there was no “TZ-style care plan” in place, and there was a subsequent hearing (observed but not blogged by Celia) on 3rd August 2022, which further explored the issues based on a draft TZ-style care plan, but left DJ Glassbrook still unhappy.

“To say that she has no capacity to meet a stranger for contact, to have a cup of tea, but has capacity to meet a stranger for sex, is something that makes me scratch my head. And if that’s the parties’ position still, there a very easy answer. I’m going to pass it on. Because I have a problem with that.  If a High Court judge wants to make that decision, fine!” (DJ Glassbrook, 3rd August 2022, from Celia Kitzinger’s contemporaneous notes).

And so, this was the case now before High Court Judge, Lieven J.

THE HEARING

This was a short hearing – about 45 minutes from start to finish.

At the outset, the judge noted that some observers were present, and asked counsel for the applicant Local Authority (Lee Parkill of Cornerstone Barristers) to summarise the issues for our benefit. 

The case concerned a young woman (let’s call her Olivia) who spent time in a secure mental health unit before she turned 18 and now resides in a supported living placement with a three to one ratio of care (i.e. three carers providing care for one person). 

We were reminded that at a previous hearing in December 2021, DJ Glassbrook made orders that Olivia lacks capacity to conduct the proceedings or to make decisions about her residence, care, social media and internet use, as well as to decide on contact with others. She also lacks capacity to enter into a tenancy agreement. However, she does have capacity to engage in sexual relations. 

Olivia was not present at the hearing, but her best interests were represented by Jake Rylatt of Serjeants’ Inn Chambers (via the Official Solicitor). Her former foster-carer was also in court as second respondent, as too was a social worker (albeit not her ‘allocated’ social worker).

Capacity, contact and sexual relations 

The judge first dealt with DJ Glassbrook’s apprehensions about the state of the law:  

DJ Glassbrook has been very concerned about this case and whether the current state of the law really protects [Olivia]. And I must say, I have some concerns about the current state of the law, but that’s as set down by the Supreme Court and that’s not for me to go against[i]”.

The judge then made reference to another case which concerned capacity to engage in sexual relations, Hull City Council v KF [2022] EWCOP 33. She observed that, in that case, Mr Justice Poole had “found a clever way” to deal with a situation where there was an individual-specific concern. In the Hull City Council case, KF was considered to have capacity to engage in sexual relations in a general sense, i.e. she understood the act of sex, the requirements for mutual consent, the potential risks of pregnancy and infection, and the need to use protection. However, concerns arose about her capacity to have sexual relations with her partner, who had pleaded guilty to assaulting her (see Determining capacity for sex with her abuser). Poole J held that KF lacked capacity to engage in sexual relations with this particular person, having examined the risks in relation to him specifically, a risk which Lieven J considered to be “overwhelmingly obvious” in KF’s case. 

Returning to the current case, Lieven J noted that Poole J’s approach gave a “pragmatic way around the rather complicated way the law has developed in this field”, but that it wasn’t currently a relevant consideration for this case, given that neither party had identified any individual specific concerns in this area, although “there might be one in the future”.

The judge concluded these remarks by saying that “in light of the case law from the higher courts, I don’t think we have any choice but to go ahead with the TZ-style care plan solution”. She added that if Olivia were to get into a situation where KF-type concerns arose, a different order and care plan might be needed, but “that isn’t where we are at the moment”. So “really all I can or should do is look at that care plan and look at how it protects [Olivia] going forward”. 

The care plan

A TZ-style care plan is one that, in essence, aims to support the individual to develop relationships, including sexual ones, in a way that keeps them safe. The judge asked counsel to go through its key aspects so she could understand “where you are going with it”, highlighting at the outset “it would be useful to understand a little bit more about [Olivia]’s sexuality and her position in relation to wishing to have sexual relations.” She emphasised “I haven’t got a particularly good sense of [Olivia] at the moment. I appreciate she has serious mental health issues, but I haven’t got much of a sense about her relationship status, to use the youths’ terminology.”  

Mr Parkill summarised that the care plan’s purpose was to manage the conclusion of DJ Glassbrook’s order, i.e., that Olivia lacks capacity to decide who to have contact with, but has capacity to engage in sexual relations. The aim, he stated, is to support her to have contact with individuals, both in person and online, and to ascertain how care staff will support her in making choices. The judge’s questioning of counsel for the local authority revealed her focus on the specific risks for Olivia and whether there was evidence of this: 

Lieven J: Does [Olivia] have a history in engaging in risky sexual behaviours? 

Mr Parkill: There have been occasions of [Olivia] sharing photographs, but there has not been a presenting problem of her engaging in risky behaviour. 

Lieven J: So she may have problems in terms of safe use of the internet? 

Mr Parkill: Yes, that was the position of the expert, Dr Ince, last year and the social worker’s more recent assessment is that [Olivia]’s understanding has improved, but not to the point of capacity. The expert holds the view in time she will have capacity but she’s not there yet. There Is no proposal to impose restrictions on her use of the social media. The view taken is that to do so would be a backward step and would cause a degree of friction between her and carers, which would be very unhelpful. The amount of support she has provides the safety net to her to help her manage the risk.

Lieven J: And in the current care plan – I’m not criticising – you are not proposing to restrict her internet access or monitor access? You’re trying to get her to tell the care staff about what she is doing, rather than have checks on her internet use?

Mr Parkill: Yes. The aim is to develop the relationship with her carers – rather than impose restrictions which, naturally and understandably, she would react against. The plan then provides guidance about how to support her when she meets somebody in real life and where staff would be – would they be at a distance or with her… What needs to be worked out is how staff will make decisions about individuals if there are concerns, and how decisions will be made about restricting contact with an individual.

Lieven J: And the fact that [Olivia] does not have capacity to decide who to have contact with stems from the fact she is vulnerable and at risk of exploitation? Is this based on historic behaviour? 

Mr Parkill: I think it is based on her presenting a lack of appreciation of risks posed by other people.   

Lieven J: Not least because she has had wrap-around care throughout her childhood and young adulthood. This sounds great in theory [laughs], but young women like [Olivia] are open to exploitation. It’s well known, and I’m afraid a fair few have passed through my court. 

There was discussion about the types of activities which Olivia would be supported to undertake, both in person and online, to build relationships. The judge asked about contraceptive advice and was told that this, too, would be part of the plan. 

Mr Parkill mentioned use of online websites and in-person LGBT groups that she would be supported to attend. At this point the judge interrupted again: “This is what slightly confused me, and was why I hinted at the beginning that I wanted to understand her sexuality. Is that in order to be diversity-aware or something to do with Olivia herself?” Mr Parkill then clarified his understanding that it is because of Olivia’s views, but “I hesitate to paraphrase, as her intentions in respect of sexual partners are not entirely clear”. (Mr Rylatt later clarified that it was based on what Olivia had disclosed to her family – “she identifies as bisexual”.) 

Mr Parkill then went on to talk about online dating further: “Another strand of activity will be looking at websites she can access and giving her guidance about accessing those. We don’t want the plan to effectively operate as curtailing [Olivia]’s choice of sexual partner unduly, so we need to be cautious about restricting types of websites she can access.”  To this to the judge responded: “We also don’t want to be in the situation where care workers inadvertently support [Olivia] into a situation where she’s being exploited. The whole thing is fraught with difficulty“.

The intention was to prepare an Easy Read version of the care plan, once it was agreed, so that Olivia herself can understand it and appreciate what support (and what restrictions) she is subject to.

Further discussion of the care plan focused on what would happen if Olivia were to engage with someone who poses a risk to her, and what intervention would be required if this happened. The range of responses available (including police intervention as a last resort) was raised in detail by Mr Rylatt. The parties seemed to agree that if this were to happen, some intervention from her carers could be given: but if the local authority wished to restrict contact with an individual, the matter would need to return to court. This left open the option of a ‘KF approach’ (as counsel for the Official Solicitor put it), if one was needed (Hull City Council v KF [2022] EWCOP 33). It was also agreed that the care plan should be more explicit on this matter. The judge recommended, in addition, that contraceptive advice should form part of the care plan, which the Official Solicitor supported. 

On this basis, after checking that the care worker and Olivia’s foster mother had nothing to add, Lieven J agreed to endorse the care plan and make the orders. 

Residence

The judge then turned to discuss the matter of residence, which appeared to centre on the production of a tenancy agreement by a third organisation which was not Olivia’s care provider but was to act as the landlord. This was to be signed by the local authority on Olivia’s behalf, because Olivia lacks the capacity to enter into a tenancy agreement. It was not clear why there had been a delay in this organisation producing the tenancy agreement and they were not responding to requests for information.

The judge was clearly confused about the role of this third party, and had a discussion with Mr Parkill. (There had also been attempt at the earlier hearings before the District Judge to sort out this problem.)

Lieven J: I don’t quite get this. Is the city council in a contract with this organisation to provide care at this property? 

Mr Parkill: The care provider is a different organisation. 

Lieven J: So has the city council entered into a contact with this organisation to do something for [Olivia]? 

Mr Parkill: The contract is between the authority and the care providers who have bought the freehold. The care providers then contract to the organisation, who is the social landlord. 

Lieven J: Perhaps none of this matters, but I have become curious. Why has this organisation been brought in? Are they a registered social landlord? 

At this point the solicitor for the Local Authority answered: 

Solicitor: Yes they are the social landlord, and there would be a conflict if they were both care provider and social landlord. 

Lieven J: I suspect that is a cover for reducing the housing benefit. I can’t see why that would be a conflict.  

She then asked if there was any reason she should not simply make an order for the organisation to produce the tenancy agreement. Mr Rylatt expressed a preference for a further hearing, where the organisation could be asked to appear before the Court and give evidence on the tenancy. This was not something the judge felt was necessary, and she expressed concern about the potential for it to waste time and money: “Why are we having another hearing? We have far too many hearings in the Court of Protection – far too many ineffective hearings. I am not having another hearing just so this person can produce a tenancy”.

Mr Rylatt then suggested that another hearing was needed anyway to scrutinize and approve the care plan. The judge responded “I am not here to scrutinise care plans when everyone’s agreed, and there’s no point of law. I won’t fix another hearing. If the Official Solicitor thinks there should be one, then I will give her liberty to apply. Otherwise you can agree it and send to me“. To the suggestion that a hearing could be listed and then vacated, she replied: 

“Court of Protection cases are notorious for blocking up our diaries and being pulled at the last minute, and that is time which could be spent getting another child or another P through the court system. It’s also a way for money to be wasted, as lawyers are still instructed but the case doesn’t then happen. I would rather do it the other way round. So if I can persuade you to go away and sort it out and come back to court if you need to. But I would be flabbergasted if, once you’d had a proper discussion, agreement wasn’t reached.  How am I going to decide what is a safe website or not? How am I going to decide on the facts – or if the LA is being too protective or whether, to be frank with you, the Official Solicitor is being too cavalier and taking too many risks? That really has got to be one for the professionals to discuss. A clear timetable I can agree to, so this doesn’t get pushed into the long grass, but not another hearing.”

Mr Rylatt asked for permission to “restore the matter to court if it can’t be agreed” (granted) and confirmed that if agreement were reached, the care plan would be submitted to court. The judge concluded that this was a sensible way forward and ordered that the social landlord had 14 days to produce the tenancy agreement[ii].

REFLECTIONS

The judge’s discussion at the start of the hearing of the state of the law in this area demonstrated a level of disquiet about some of the contradictions which arise from the interaction between capacity for contact and capacity for sexual relations. Lieven J chose her words carefully (at one point apparently self-censoring with the comment, “I’m not going to say that because there are members of the public here”) but was clear that her hands are tied by the decisions of the higher courts and nothing could be done but look at the care plan. As she stated “I am not going to do something clever or say the Supreme Court was wrong or try to get around it“. She also identified that Poole J’s decision was a form of ‘work around’ for what was a difficult case and she was supportive of using a personalised approach to protect individuals from “exploitation” where risks became apparent.

To my mind, the need for judges to adopt creative or pragmatic approaches to reach decisions they feel comfortable with indicates that the state of the law is less than satisfactory. Based on this case and the KF case, it sounds as though this is the direction that decisions about capacity to engage in sexual relations may now be headed: a finding of capacity on a general basis, but with the opportunity for reconsideration where specific individual risks arise. An approach like this does allow for a level of personalisation for particular partners and concerns about Olivia being exploited. But it does also seem intrusive when it comes to Olivia’s ability to develop relationships, which, echoing my concern about the JB case, may now be dictated by her carers’ perception of risk – in this instance, what kind of partners might be risky ones. The opportunity to come back to court and scrutinise capacity again if such a relationship were to arise also means that Olivia’s capacity to have sex faces being questioned repeatedly: this was one of the reasons that, prior to JB, capacity to consent to sex was assessed on a general basis, as Baker J held in A Local Authority v TZ [2013] EWCOP 2322:

“To require the issue of capacity to be considered in respect of every person with whom TZ contemplated sexual relations would not only be impracticable but would also constitute a great intrusion into his private life” [§ 23]

Although we are not quite in this position of assessing Olivia’s capacity in relation to every potential partner, it seems to me that the approach taken in this case leaves open the option of examining her capacity on an ongoing basis, something that would not have been possible without JB and Poole J’s interpretation of it in the Hull City Council case.  

It was also interesting to see Lieven J take a clear position on what is good use of the court’s time and her approach of encouraging the parties, in the strongest possible way, to work through the issues and come to an agreement together. In a stretched public funding environment, such considerations are important, but it’s also worth considering whether this does offer sufficient safeguards for Olivia if no further check is taking place on the agreements made between the Official Solicitor and the Local Authority.

Whether the case will come back to court or not remains to be seen. 

Ruby Reed-Berendt is a PhD Candidate and Research Associate at Edinburgh Law School. Her research focuses on mental health and mental capacity law from a feminist perspective. She has previously blogged for the Open Justice Court of Protection Project (see: “Cancer treatment in the face of unknowns and expert disagreement“). You can check out her academic website to learn more about her work, and you can follow her tweets @rubyreedberendt

[i] All quotations are taken from contemporaneous notes made (separately) by Ruby Reed-Berendt and Celia Kitzinger, and cross-checked for accuracy after the hearing. While the quotations are as accurate as we can make them, it’s unlikely that they are 100% verbatim.

[ii] Editorial Note (by Celia Kitzinger): In view of our concerns about ‘closed hearings’, as discussed in a recent blog post, it is interesting to note that in this hearing Lieven J made a ‘without notice’ (or ‘ex parte’) order against an organisation not in court and not represented. She said so explicitly: “We have to give [the organisation] liberty to apply for discharge as it’s made ex parte”.  Hearings held ‘without notice’ to people/organisations who are subsequently effected by the orders and directions of the court are one (but only one) of the features I have identified of ‘closed’ hearings.  I realise now that I have seen other such orders made in other hearings, but without appreciating their significance at the time.  I suspect that such orders are not as ‘rare’ as has been suggested.


A ‘hypothetical’ marriage and a snowball rolling downhill

By Lorraine Currie, 20 October 2022

On 11th October 2022,  I observed a hearing (COP 13582321, via MS Teams) before Sir Jonathan Cohen sitting in the Royal Courts of Justice.

This was my first experience of literally dropping in on someone else’s life. 

I’ve previously attended a few hearings because of the involvement of the Local Authority where I worked as Mental Capacity Act (MCA) Professional Lead. For the past 15 years, my day job has been totally devoted to promoting the MCA and improving practice, particularly social work practice.  I’ve also written a Court of Protection protocol for that local authority and played a lead part in legal planning meetings for numerous Court of Protection applications: DoLS challenges, Judicial deprivation of liberty applications and welfare applications. 

I wanted to observe a COP hearing because I realise that my experience in this area is limited to the cases where I have been involved. I believe that I have helped to set a very high standard for the evidence that is required before an application to Court is made. I was keen to see a hearing relating to a case with which I’d had no involvement and to witness a hearing which may be about issues I hadn’t previously encountered. 

So, on a professional level I didn’t come to this cold but as an onlooker I found it strangely unnerving.

Gaining access

I followed the Open Justice Court of Protection Project’s very clear and helpful advice about how to observe. I emailed just after 8.00 a.m. and then when I received no response, I emailed again at 10.00 and eventually (after Celia Kitzinger sent emails on my behalf to the RCJ, to the video hearings administrator, and to the judge’s clerk), I received three email replies with the link at 10.30, 10.34 and 10.42 for the 10.30 hearing.

The hearing

This case (in my opinion) didn’t quite know what it was about.

It had a long history beginning back in 2020 when the local authority learnt that the young man at the centre of the case (P) planned to go to Pakistan and marry Z, who he would then sponsor to come and live in the UK.  P is in his 20s has a diagnosis of learning disability from early childhood and (more recently) autism.  At that point, P’s social worker was worried that P didn’t understand what marriage was and commissioned a formal capacity assessment, which confirmed that he lacked capacity to consent to marriage or sexual relations. This level of detail was not shared in the hearing but I was made aware of it later. During the hearing I was having to fill in the blanks.

There was a plan to provide sex and relationship education,  but the COVID-19 pandemic and a failure to locate educational providers intervened and so it was sometime later when an education programme to support capacity in relation to sex and marriage was completed. A newly appointed expert then assessed P again and said that P had still not gained capacity in these areas. 

It was stated that P lacked capacity in all other decision-making domains that had been assessed (including decisions about care and support, and internet-use), but that some further education may result in improvement in relation to some areas, but that education must be slow and at his pace. 

Subsequent to the expert report, P had a heart attack. This was something which no one apart from the Judge seemed to think was significant. 

Judge: And how does P’s unfortunate heart attack impact on all this? It happened eight days after [the expert] had signed off on his report – so where does that leave the report?

LA:  It doesn’t undermine the report in any way

Judge: No, I realise that a heart attack doesn’t make anyone’s functioning any better, but it may be that the young man [the expert] reported on is not the same young man who suffered this unfortunate event.  It may be that [the expert’s] view may be changed in the light of this heart attack. Or that may be completely wrong and it might have had no effect on P’s cognitive capacity.

LA: The court is not invited to say that P has capacity in any domain except the marriage one.

Judge: If it’s to be argued on P’s behalf that he does have capacity, how is the court to rule on it in the absence of an update from [the expert]. That’s my point.

LA: We can ask [the expert] to reassess him on that one point, consent to marriage, but we wouldn’t want to ask for reassessment across everything. We know from his parents that he found the process of assessment quite upsetting.

The Judge (and I felt the same) appeared to be somewhat puzzled as to why only two areas of decision making were singled out for the Court’s attention (marriage and sex) when five areas had been considered by the expert. 

Counsel for the LA seemed to think that these other areas in which P had been found to lack capacity were of no significance to the court because they were not disputed. They were, she said, not part of the LA’s application: the assessments had been carried out only to give a sense of P’s functioning. Capacity of internet use, she explained, had been added as an issue for the expert to report on  as it had become clear during the educational programme that this was an area of concern or ‘vulnerability’.

During all this to-ing and fro-ing, the parents of the young man sat in a quiet and dignified fashion listening to the comments. P himself was not present, but had a litigation friend (a friend of the family) who was.

It then transpired that P may potentially gain capacity to marry but is unlikely to gain capacity to engage in sex. This provoked a debate about whether marriage and sex were issue-specific or person-specific,  which counsel for the LA and the judge seemed to take a different view on.  They also disagreed about the implications of JB in the Supreme Court  last year (A Local Authority v JB (by his litigation friend, the Official Solicitor) [2021] UKSC 52.). When counsel for the LA gave an account of what the Supreme Court decided, the judge said, “I don’t think the Supreme Court said that at all”.  

The judge was also puzzled as to why he was being asked to make a ruling about capacity for marriage when there was no longer a proposed marriage partner, Z being “no longer part of future plans”. “Why is the court being asked to consider making what is a hypothetical decision?”, asked the judge, saying he thought he would “need quite a lot of persuasion” to do so, given that marriage is “a completely hypothetical issue at the moment”.

Eventually it became clear that the LA wished to implement safeguards or ‘protection’ for P in his best interests (e.g. in relation to social media use) and in order to do so would need to know if it was a decision he could make himself or whether in fact, he lacked capacity for this decision. The Judge was persuaded by this argument, but it led us to a much stranger place (in my opinion): the question of deprivation of liberty.

Counsel for the LA seemed to want, on behalf of the LA, consideration by the Court for specific restrictions only i.e., those which were or may be contested. She did not at any time consider, nor was she aware (she said) of the content of the care and support plan and therefore by implication any wider restrictions in it, which might amount to a deprivation of liberty. Counsel for P however, acknowledged it was very important to consider whether the restrictions as a whole amounted to a deprivation of liberty. 

I found it very odd that the full care and support plan had not been put to the Court but only what we might call edited highlights. Counsel for the LA said that “this isn’t a case where P is deprived of his liberty, so we don’t need the court’s authority on that”.  The judge responded (quite rightly in my view) by saying: “I simply don’t know if there’s a deprivation of liberty.  I mean, does he have a key to the house, can he leave when he wants, can he go out without an accompanying person? I simply don’t know what restrictions there are”. The Judge stressed that he understood the need for pathways but that these must cover the whole range of needs resulting in restrictions.

Even at this stage Counsel for the LA seemed to be surprised that (two years into proceedings) the Court wanted to now expand the issues and to see all the evidence about his care needs and the measures the LA think are required both to meet his needs and safeguard him.

So ultimately it seemed to me that 

  • The Judge was the person most concerned about delay
  • He was concerned that the timetable of events hadn’t been adhered to and wanted to “get this ship shape and make sure the next hearing is an effective one
  • A new significant health matter (the heart attack) had arisen and not been addressed in the reports
  • Some elements of care were giving rise to restrictions, but others had not been put before the court because of agreement about their necessity.

The Judge asked the parents if there was anything they wanted to say, and they gave their commitment to work with the doctor or anyone else to best support their son.  The judge said: “I’m very grateful and I’m sure he’s very grateful for all your love and support. It makes a world of difference!

Reflections

I was left with the overall feeling that this case had snowballed out of all recognition. Perhaps an initial panic at a proposal to marry had rushed them to Court when they were not properly prepared. I suspect this snowball will continue to roll as matters relating to deprivation of liberty are now attaching themselves to it.

I was shocked that there are still misunderstandings about the correct test for sexual capacity and more shocked that a LA could present one or two selected restrictions to a Judge in the hope they would be approved without a picture of the totality of arrangements being gathered. It seems that P lives with his parents, therefore this would require a so called ‘judicial dol order’ should the restrictions meet the acid test (complete or continuous supervision and control and not free to leave).

Taking the issue of capacity to engage in sexual relations first,  I think that I was shocked to hear the debate as to meaning and interpretation, discussed in Court. I would quite expect to hear argument as to capacity but not to interpretation at this level with Counsel and the Judge disagreeing about the Supreme Court decision. It made me wonder how P’s rights would be upheld if there was still such confusion. 

I was most shocked by what appeared to be a total lack of understanding by Counsel for the LA that all restrictions in a care and support plan must be seen as a whole to consider whether this gives rise to a deprivation of liberty. The idea of taking one or two restrictions for a Judge to approve when the Judge was in total ignorance about what we might call the ‘concrete situation of the individual’. From what I heard, it sounds as though the acid test is met – and yet this appears not to have been considered by the LA. Why have they not followed the re X procedure to take the arrangements to Court prior to issues of marriage arising? 

This does not bode well for the Liberty Protection Safeguards which will, unlike DoLS, encompass all settings. LAs need to scope the extent of cases they will need to authorise in the future and that includes those where there is total consensus that the arrangements are in the person’s best interests. 

The case will be listed to be heard again in December.   

Lorraine Currie is now a freelance Mental Capacity Consultant. She has over 30 years Local Authority experience, is a qualified social worker and in 2021 received the LGC Award for Outstanding Individual Contribution. Lorraine provides extensive training and is currently completing work with Neil Allen on the BIA to AMCP Conversion course.  She tweets @CurrieLorraine

A property and affairs application: Observations about P’s role and who should pay costs

 By Georgina Baidoun, 20 October 2022

from Courtel/CourtsServe listing

This was the first time I had observed a full day hearing.

In response to my request to watch it, I received the following email:

Please see the below response from Her Honour Judge Cronin.
“Could you say that we won’t start until 10 and I will need her to explain who she is before we start – this is an application for deputyship for property and affairs
.”

Rightly or wrongly, I interpreted this as suggesting that no-one would knowingly want to spend their time like this! Seeing a glimpse of the judge’s sense of humour during the hearing, I think I was right.

I explained that I had been a Deputy for Property and Affairs myself and duly received the link. 

The judge introduced me to the others in attendance as an ‘experienced observer’, which I am fast becoming, who was aware of the rules of confidentiality. (I was not sent a Transparency Order.)

The hearing

The salient details for me were as follows.

P had been hospitalized several years ago and, having been diagnosed with dementia, had been discharged into a care home as a result of arrangements made by the Local Authority (LA). 

The LA didn’t seem to have made any attempt to find out whether she had any family, although in fact she had four children, one of whom was the applicant in the case. They had all become estranged from her some 25 to 30 years ago, after she had divorced their father and moved 250 miles away with the intention of establishing a new life for herself. 

The applicant P’s son, represented by Ms Naima Asif of Pump Court Chambers, said that he had first decided to look for his mother in 2016 but had had no success. He was inspired to try again when another member of the family informed him that his mother’s brother had died intestate and someone was needed to register the death, sort out the arrangements for the funeral and deal with the estate, of which P was the sole inheritor. In the process of taking responsibility for these arrangements, it was suggested to him that he might find his mother by getting in touch with the LA of the area where she was last known to have lived. This quickly resulted in a reunion. She had not really known who he was but she is reported to be happy to see him when he visits and when he takes her on outings.

He had then decided to apply to become the COP deputy for his mother’s property and affairs so that he could act for her as executor to his uncle’s will and ensure she obtained the benefit of her inheritance. 

Unfortunately, the timing of his reappearance in his mother’s life had led the care home and the LA to suspect that he had only sought out his mother so that he might benefit from the inheritance himself.

The respondent was one of P’s daughters (daughter A).  She did not cast doubt on the applicant’s abilities or trustworthiness but thought she would be better suited to the role, or should at least be joined with him as co-deputy. She was not in court and had apparently failed to attend a previous hearing too. She had also not filed a witness statement, as ordered at the previous hearing.

The LA was not a respondent but was ‘in attendance’, and legally represented by Ms Emily Price of Deans Court Chambers. The applicant’s barrister asked why it was necessary for the LA to give evidence since it was not a party to the application and did not oppose it. I haven’t recorded the judge’s response but Ms Price went on to take a major role in the proceedings.

Also present was P’s social worker whom the judge described as being there ‘to assist the court’ in respect of P.

The LA did not oppose the application but was concerned about whether the applicant would be able to perform the role of deputy and whether he could be trusted. 

The judge considered the size of the uncle’s estate, which was now P’s inheritance, to be ‘limited’. The LA took a different view, comparing it with the assets of most of the people they dealt with. (I felt this was a significant difference in perspective which had led the LA to act in a way that I personally found to be disproportionate.) The LA had also had concerns that the applicant intended to move his mother to a care home closer to where he lived, which they believed would be contrary to her best interests, but the applicant had now assured the court this was not his intention. Furthermore, he was not applying to be a deputy for health and welfare and so would not have the authority to make such a decision (which the LA must have known).

The LA had suggested that P’s assets would be in safer hands if the applicant were to be joined by a professional solicitor as his co-deputy, at least temporarily. The applicant was resisting this because of costs, as he wanted to maximize the benefits that his mother could obtain from her money in terms of treats, outings and other extras not provided as part of the standard care home package. 

The LA’s concerns came mainly from the social worker and the care home. The care home had been asked by the court to file a statement but had not done so. However, they were reported to have said that there had been far fewer visits and contacts than the applicant claimed. The social worker was concerned about P’s response when she was formally notified of her son’s application to take over the management of her finances (recorded on form COP20A about which I have given my opinion in another blog. The response P gave to this news was quoted verbatim and was a combination of distrust and confusion, as might be expected from someone with the degree of dementia described by the social worker as well as by the applicant and one of his sisters (daughter B) who had also visited. This sister was present for the latter part of the hearing and gave evidence in support of the applicant. The respondent (daughter A) was not known to have visited or made any contact despite claiming she was best placed to act as deputy. 

The social worker expressed concern that, if the applicant succeeded in his application, ‘they’ would not know what was happening to P’s finances until ‘the money had run down’. Questioned by the applicant’s barrister, she professed to know that the Office of the Public Guardian would be requiring an annual report and agreed that this ‘reduced her concerns’.

The LA’s barrister spent a great deal of time rigorously questioning the applicant’s evidence about the length of time he was estranged from his mother, whether he had really tried to find her before he discovered she had inherited money, and whether he had in fact visited and kept in touch with the care home as much as he said. He had already produced in his written evidence photographs of his mother enjoying outings on which he had taken her and had provided the dates, but Ms Price insisted that he find the originals on his phone and hold them up to the camera so the dates could be verified. She suggested that, if he wasn’t able to visit P more than two or three times a year, he was unlikely to be able to find the time to act as deputy. The applicant said that he hoped to visit more frequently in future but that it was a round trip of 500 miles and he had a business to run. There were also problems with the prohibitions and uncertainties of arrangements for visiting care homes as a result of the pandemic.

Ms Price went on to challenge the applicant about exactly how he expected to spend money to improve the quality of P’s life, for instance whether he had explored how he would find a paid carer to take her on outings between his and his sister’s visits. She suggested that a paid deputy would be better able to perform the role, which I personally doubt given that the duties concern property and affairs, not health and welfare. I really had to wonder whether this kind of questioning was appropriate. She also suggested that the applicant taking on the role of deputy would not be in P’s best interests because it would exacerbate the difficulties that had arisen between the siblings as a result of his application.

Some of these questions were also put to daughter B who joined the later part of the hearing. She had also visited her mother and said she made regular phone calls to the care home to ask about her welfare, although the care home was reported to have said her calls were ‘infrequent’. After hearing her responses, the applicant’s barrister noted that daughter B would seem to be an appropriate person to join with her brother as deputy; daughter B had said she was prepared to accept that role although she was not joined in the application.

Ms Price’s closing submission on behalf of the LA reiterated concerns about the lack of regular visits and how this would make it difficult for the applicant to understand P’s ‘day-to-day needs’. She also referred to concerns set out in the respondent’s statement which, because of her non-appearance, were not part of the hearing. She expressed the hope that the respondent’s relationship with her mother might improve over time (but since she had not seen her for the best part of 30 years and her mother’s dementia was getting worse, this hope could at best be described as unrealistic in my opinion).

The judgment

The judge gave an ex tempore judgment to be followed by a written decision, if requested, within the next few days. I have been told that no such request was made and therefore there is no written decision.

She rehearsed all the details of the case and said it was clear from the evidence provided that P lacked mental capacity to manage her own financial affairs. 

She had considered the respondent’s view that she could perform the deputy role at least as well as the applicant but noted that the evidence she had supplied mainly concerned P’s health and welfare, which were not the subject of this application. The respondent had also suggested that the applicant might misapply some of P’s funds, but this had not been raised at the hearing and the judge did not consider it likely. 

The judge noted that the LA was not objecting to the application but had ‘properly raised a series of questions which had expanded as the day went on’. Her opinion was that most of these questions had been satisfactorily answered and that the safeguards that would be provided by the oversight of the Office of the Public Guardian would be ‘more than adequate’. Importantly for me, she said that she was ‘placing no weight on’ P’s response to being notified of the application.

The judge said she was not concerned about further breakdown of relationships between P’s children as a result of the application because this would have no impact on P herself or on the applicant’s performance of his deputy duties.

In response to the issues raised about the geographical distance between P and the applicant, the judge did not consider that these would affect the day-to-day management of her financial affairs, which would normally be done on-line by whoever undertook the task. The applicant was clearly a trustworthy and competent business man and had demonstrated his on-line competence by the way he had participated in the hearing. 

The applicant had a closer connection to P than either the LA or the respondent and could provide the ‘personal touch’ that neither the LA nor a professional deputy could provide. The judge proposed that daughter B who had joined the applicant for the hearing should also join him as deputy, and she agreed to this. The judge hoped that this would reassure the respondent as well as being advantageous for P in making it more likely that at least one deputy would always available.

Costs

The general rule is that the costs of deputyship applications should be met from P’s assets, although there are exceptions: for example, see another previous blog, which reports on a case where, unusually, an applicant had to pay costs in a Property and Financial Affairs case as a penalty for wasting the court’s time.

In the current case, as in the one previously blogged, the judge was asked to consider making legal costs the responsibility of the party who had opposed the application and whose lack of engagement thereafter had prevented a possible earlier settlement. The respondent had refused to engage with solicitors, failed to file a statement when required by the court and failed to attend two hearings. The applicant’s barrister considered the position taken by the respondent in asking to be appointed deputy had also been unreasonable. 

Interestingly, despite the obvious parallels with the previous case about which I wrote, this judge decided not to penalize the respondent for her conduct. She made it clear that her decision was not affected by the respondent not having been legally represented. Instead, she made her decision based on what was known of the respondent’s circumstances, which suggested she would be unable to afford even a part of the costs (for the applicant’s legal representation only, which amounted to over £14,000). Also, if she were asked to pay, it would only exacerbate the already strained sibling relationships. This was the only point of difference I could see between the two cases. 

Georgina Baidoun was the lay Court of Protection Deputy for her mother’s Property and Financial Affairs until her mother died last year. Because of the difficulties she experienced with several applications to the Court, and with the Office of the Public Guardian in connection with her annual report, she has retained an interest in these areas, including attending recent Court of Protection Users Group meetings. She is keen to share her experiences in the hope that she can help others who have to engage with these institutions with very little help or guidance. She tweets as @GeorgeMKeynes

Cancer treatment in the face of unknowns and expert disagreement

By Ruby Reed-Berendt, 18 October 2022

A man (MB) in his 30s has been in hospital (and deprived of his liberty) since May 2022 after his mental health deteriorated. Although there remains uncertainty as to the cause of his poor mental health, there is a working diagnosis of T-cell lymphoma of the nervous system. Newcastle upon Tyne NHS Foundation Trust seeks a declaration that he lacks capacity to make decisions regarding treatment of the suspected disease, and that it would be in his best interests to receive chemotherapy. 

By the time the case came before Mrs Justice Morgan (COP 1398600T) on 27th September 2022, there was agreement between the Trust and MB’s litigation friend, the Official Solicitor, that MB lacks capacity to make decisions about treatment for his lymphoma. The sole issue presented for consideration by the court is whether MB should receive two cycles of chemotherapy. Whilst this is not an entirely novel form of treatment, its proposed manner of delivery is. Due to the extreme changes in MB’s condition and his reported level of “emotional dysregulation”, it would need to be given in intensive care (ICU), with MB intubated, ventilated and sedated. The parties agree that treatment could not be delivered in a less restrictive setting and could constitute a deprivation of MB’s liberty. The full facts are set out in Morgan J’s judgment which is now available: Newcastle upon Tyne NHS Foundation Trust and MB [2022] EWCOP 43.

The hearing was carried out in a hybrid format (some parties were present in a physical court room and others joined remotely). I observed the case online across two days and heard evidence presented to court from:  

  • MB himself, who spoke with the judge in private at the start of the hearing, and “does not believe he has cancer or has ever had cancer
  • Members of MB’s family, who relayed their views via Miss Emma Sutton, counsel for MB via the Official Solicitor, towards the end of the second day. 
  • Six medical witnesses, whose evidence formed the bulk of the hearing. The six witnesses were consultants working in haematology/oncology, intensive care, and psychiatry. In each speciality, one witness worked for the Trust, and the other was an independent expert instructed by the Official Solicitor. 

Throughout the case, what struck me was the extent of uncertainty and unknowns in this case, and how “finely balanced” the decision was. It also meant that the expert evidence was far from unanimous, with numerous points of distinction, and each consultant came from their own perspective based on their past expertise, and their experience of interacting with or examining MB. These opinions were revealed through examination-in-chief and cross-examination, a process where counsel for the Trust and the Official Solicitor ask questions of the witnesses and seek to challenge their opinions. As the judgment outlines the facts in detail, in this blog I focus instead on how these views were drawn out through counsel examination.  

Diagnosis and prognosis 

The first major uncertainty surrounded MB’s diagnosis of T-cell lymphoma, which was the focus of the haematology evidence. It was described by Mr Rhys Hadden, counsel for the Trust, as a “best guess”, but no other alternative diagnosis was considered likely by the parties. On top of this uncertainty, T-cell lymphoma was described as very rare and especially within the brain. MB’s cancer was progressing much slower than most other cases and was seen as atypical and as such the witnesses were uncertain about prognosis.  

The first witness to give evidence was Dr Nicholas Martinez-Calle, consultant haematologist and an independent expert. In his evidence he emphasised that T-cell lymphoma was “rapidly growing and aggressive” and that having looked at the evolution of MB’s symptoms and the decline his in “psychiatric behaviour”, his view was that the condition would be lethal within 4-6 months if treatment was not given. Miss Sutton in her examination-in-chief pressed him on whether MB’s deterioration was actually caused by his illness: 

Miss Sutton: Could an alternative reason for MB’s mental health decline be that he’s been deprived of liberty and wants to go home?  

Dr Martinez-Calle: There is clearly an organic cause. Radiological imaging demonstrates there are changes in his brain that could account for his behaviour. The psychiatric manifestations are novel and a consequence of the lymphoma.  

This questioning was helpful in exploring the other causes for MB’s distress. Mr Hadden also pushed Dr Martinez-Calle in cross-examination on his view on MB’s prognosis, which also drew out the atypical nature of his progression:  

Mr Hadden: If MB’s current condition were not treated, you said the prognosis is effectively 4-6 months. What is your opinion based on? 

Dr Martinez-Calle: It is an estimation that is likely to be accurate. The survival of brain lymphomas if left untreated is normally very short, weeks probably. I am being conservative because I know the progression of the disease has been slow compared to what we are used to, but it is expected to continue progressing into sensitive aspects of the brain that will risk his life. Although the disease might not grow in volume, it might grow in sites that will cause rapid deterioration.  

The Trust haematologist, Dr X, was the last witness to give evidence and it was clear that she had reflected carefully on the evidence she had heard (she attended most of the second day remotely, so had the benefit of hearing from other witnesses). Based again on MB’s unusual progression, her view was different – and this was drawn out through Mr Hadden’s examination in chief: 

Mr Hadden: what is MB’s prognosis if the cancer is left untreated?

Dr X: It is hard to say. This is a working diagnosis of lymphoma causing damage to brain tissue. If we assume we are correct, we are dealing with a low-grade end, cells that divide slowly. I don’t think this is typical in any sense and it is clear from psychiatric assessments and history from family that he has been not well for 18 months, which is quite slow for T-cell lymphoma. So prognosis without treatment is likely measured in short years using what has already happened.  

Mr Hutton: We have heard evidence of psychiatric deterioration since hospital admission in May. Have you seen further deterioration?  

Dr X: I would say we have not. I would agree that his behaviour is different now. The question we are wrestling with is whether that is due to the disease or effect of environment and restrictions of liberty. I would concur there has been a change.  

Mr Hadden: So your view is different from that of Dr Martinez? 

Dr X: It is difficult. This is not typical and, normally, for nervous system lymphoma rapid deterioration is more normal. We just haven’t seen that and I’m inclined to think a slower prognosis.  

What both exchanges demonstrated just how uncertain things were for MB in terms of the impact of his illness on his life, and also how those assessing him evaluated his behaviour in different ways; where Dr Martinez-Calle saw deterioration caused by disease, Dr X was more open to alternative causes. 

The proposed treatment

The second uncertainty surrounded whether the treatment would actually work. Whilst the proposed treatment is effective in B-Cell lymphoma, it is novel and “one could call experimental” for this type of cancer. Mr Hadden also noted that approval was being sought for the initial phase of HDMTX and if successful “this won’t be the end of it” and active consideration will be needed as to what should happen next.  

A figure of 20% chance of success rate was referenced throughout the hearing and in the judgment, but each of the experts brought a differing perspective on what effectiveness and success would look like and how this figure had been arrived at. Dr Martinez-Calle stated the 20% was an “extrapolation” of the B-Cell lymphoma literature, and considered success to be “radiological improvement, survival and neurological improvement”. He also suggested that treatment would be useful in that it would help demonstrate whether the diagnosis was correct, as if it was not the treatment simply would not work. He certainly appeared to be the most optimistic about proceeding with the treatment and attempting more aggressive forms of chemotherapy after it. It was however clear that the 20% figure was by no means a certainty and may have been produced to assist the court more than anything else, as was drawn out in Miss Sutton’s cross-examination of Dr X:

Miss Sutton: The 20%, where did that come from?  

Dr X: You’ll appreciate this is difficult. I tried to estimate the incidence of this kind of disease as we don’t have a lot of data, about 1-1.5 cases per 10 million population per year. Even B-cell is rare (170 per year). We are in the realm of the case report here, and I am aware of 1 other case reported. We work closely as a team as you get a spectrum of views. So the 20% comes from the question of have we got the diagnosis right or wrong, if the treatment works or doesn’t, if there is brain recovery or if there is none. So whilst I’m confident the T Cells will die, the chances of that happening are 70-80%, whether that reflects in a better outcome is something we will find out.  I used the word “trial of therapy” in my statement and I would stand by that. It was a number put forward to give some idea to the court, but you are right that it is an opinion.”  

Miss Sutton also questioned Dr X on why she felt this treatment should be embarked upon now instead of waiting a little longer: 

Miss Sutton: Why not watch and wait if MB’s prognosis is in years?  

Dr X: The rationale is, what are we watching and waiting for? I don’t see a better window to do this. We need to decide that either there is a rationale for proceeding or that there isn’t. My worry about deferring the decision is it becomes less and less reversible. The caveat to that is if we have the diagnosis wrong, but as you can see from the papers we have had an array of experts and specialties give their opinion. 

Dr X noted that if the diagnosis is correct and the treatment works, the question was then how much brain injury was reversible. To her, “Success would mean arresting progression and improving cognition to some degree. Level of functioning, being able to recognise family, seeing how much support MB might need with everyday life even in a successful outcome.” She felt that if improvement lasted five years and MB could have an improved quality of life out of hospital, it would be a success. 

Dr Y, consultant liaison psychiatrist at the Trust also supported the treatment going ahead, focusing on the question of whether the damage to MB’s brain was reversible. This was brought out most clearly in cross-examination by Miss Sutton. When asked about the chances of recovery, Dr Y stated: 

We haven’t been able to do more detailed testing to work out what areas of functioning are affected. Dependent on this, global functioning might improve but won’t be back to pre-morbid function and likely there will be residual difficulties. Early symptoms include poor judgement (leaving cooker on, walking into the road without looking), they relate to frontal lobe atrophy and might remain. But memory might improve, as might functional tasks.”She however concluded it would be “unfair not to give him a chance”, with her focus on the aims of the treatment to not only improve his delusional beliefs, but also prevent “deterioration of a wider cognitive dysfunction and executive function.” Her evidence on quality of life was that if the treatment could allow him to function more independently it should be attempted.” 

The views of the intensive care specialists were more mixed. Dr Z, consultant anaesthetist at the Trust, supported treatment but emphasised the chances of success were low, again citing the 20% figure: 

I think he is in an extremely unfortunate position no matter what happens. If we don’t offer treatment, he is extremely unlikely to be better off, and much more likely to develop further problems and die. He is in a restricted environment already, the options he has will be more or similarly restrictive. If we do offer chemotherapy, chance of benefit is low but it is measurable. I think it’s less than 20% and his tumour may already have caused fixed deficit so I think that is his only chance. He probably won’t make a full recovery even with chemotherapy. I don’t think any of us are going into this with our eyes closed. We know doing nothing is an option and there is a spread of opinion in intensivists. The majority opinion is we should offer this trial, it is less likely to benefit him than not, but I feel it is in his best interests.”  

Dr Chris Danbury, consultant intensive care physician (the independent expert), took the opposite view, considering that the case was finely balanced but he felt that “we will probably do more damage to MB by admitting him to intensive care”. He focused heavily on the risks of admission to ICU and the potential mortality from infection. His emphasis was on MB’s quality of life, rather than its duration, and the lack of certainty in this case led him to conclude treatment should not proceed: “If I was more certain about the benefits of chemotherapy on his neurocognitive state, I would be more certain. My understanding of the imaging is it’s sufficient to explain symptoms, so I am not convinced the chemotherapy will make a difference.” 

The picture I gained from hearing these competing views was the complexity of assessing what benefit MB might derive from treatment, what his life would be like, and whether this made the risks worth running. Dr Danbury on the one hand was significantly concerned about the chances of infection in ICU and the impact this would have on MB’s quality of life. Dr X felt that even if there were “marginal gains” (as Miss Sutton put to her), that this still needs to be attempted. This chimed with Dr Y’s view that MB at least ought to be given a chance to get better. It was interesting to see in the judgment that the judge aligned with the latter view and adopted a human rights perspective to support her approach: 

“I accept that having the treatment may if successful prolong his life and that the starting presumption is protection of his life; that the right to life carries with it strong weight and that even and although the estimate of success is put at 20 % within the context of Article 2 EHCR that is not negligible. Even the most pessimistic of the evidence before me does not suggest the treatment is futile.”

§88, Newcastle upon Tyne NHS Foundation Trust and MB [2022] EWCOP 43.

One ITU admission or two? 

Whilst the parties agreed that the treatment would need to be take place in ICU, the witnesses also provided differing perspectives on whether both cycles should be attempted in a single ICU admission (i.e. up to 15 days of continuous ventilation and sedation) or two admissions of approximately 5 days with intubation and extubation (the placement and removal of a tube in an individual’s windpipe to administer drugs and oxygen) and the beginning and end of each of those periods (and a gap of 1-2 weeks between cycles). The delivery of treatment in ICU is considered to be particularly ‘novel’ and had not been attempted in the Trust before. The psychiatric and intensive care evidence focused heavily on what form of ICU admission was best, with the witnesses again offering slightly different perspectives. 

When it came to the intensive care specialists, Dr Z favoured two admissions based on MB’s youth and physical fitness, and Dr Danbury preferred a single admission based on an increased risk of MB experiencing Post-Traumatic Stress Disorder (PTSD) and delirium. To me, a key challenge here seemed that MB was not being admitted to ICU because he needed life-sustaining treatment: he was being admitted as a healthy young man in order to give chemotherapy under sedation, and for Dr Z, this changed the risk profile and pushed the discussion further into hypotheses and ‘unquantifiable’ risks. For example, when Miss Sutton pointed to Dr Danbury’s differing opinion, Dr Z responded: “It is not accurate to equate this patient to standard ICU admission. The question we should be asking are what the extra risks are for this patient of intubation/extubation.” 

Dr Danbury’s clinical focus however was on the psychiatric evidence and his concern that MB’s mental health challenges would be made more difficult by the intubation and extubation process. This led him to believe one admission would be preferrable if the treatment were to be attempted.  In spite of their disagreement, both recognised that there would be a ‘spectrum of views’ within their specialty and that there was perhaps no right or wrong answer. 

Whilst both the psychiatrists favoured one admission, their focus on the risks of two admissions was also slightly different, and the reasons for this came out through cross-examination when Dr O’Donovan, the consultant forensic psychologist (the independent expert) was questioned by Mr Hadden. The differing opinion on PTSD is reflected in the judgment, but another point which was discussed in the hearing was the potential damage to MB’s therapeutic relationship with his treating team, especially if he became aggressive and had to be restrained. Dr Y had previously given evidence that she was not convinced that MB recognised his clinical team and that she was “not sure therapeutic relationships are fragile”. This led to the following exchange with Dr O’Donovan which clarified why she considered this to be a risk: 

Mr Hadden: Dr Y was less convinced [about damage to the therapeutic relationship] as she was less certain he recognised his clinical team and he maintains the belief he works on the ward.  

Dr O’Donovan: It is important to look beyond the individuals and the environments. He does feel a degree of safety in that the episodes of distress are short. Whilst not being able to identify people by name, he feels on same level they are not complete strangers, because he responds quickly to the de-escalations that have been tried.  

The psychiatric evidence had a clear impact on members of MB’s family who attended the hearing, and when Miss Sutton conveyed their views, their concern for delirium came across strongly. This was hardly surprising given that both Dr Y and Dr O’Donovan viewed delirium as almost a certainty, but the family’s take on it was an important reminder about how hard this information must be to hear.

Concluding reflections

The assessment of best interests in this case appeared to be particularly challenging because of the number of uncertainties – the diagnosis, the chance of the treatment being successful, the manner in which the treatment will be delivered, the chance of recovery. The involvement of three distinct specialties with different expertise, drawn out through examination in court, provided the judge with a significant amount of information for her decision, even in the face of considerable ambiguity. Five out of six of the experts came to the conclusion that proceeding with treatment was the best course of action because it aimed to prevent further deterioration, and some of them did this through reference to what they would want for themselves, or for a family member. As Dr Martinez-Calle summarised: 

I try to look at cases where the patient lacks capacity and think what we would do if we could have a conversation with the patient and what we would say… It is what I would do in a similar case if they had capacity. The decision to treat is very clear, and the question for the court is whether the means we need to give the treatment are proportionate.”

As noted above, Dr Danbury did not share this view and felt if he had been approached by haematologists in his hospital, he would not offer treatment. He focused in particular on MB’s quality of life, because “this is not curable, so trajectory at the end is generally applicable but you are moving the time.” 

It was also clear that all parties felt the burden of the decision keenly. It seemed to me that the treating clinicians were grateful to the court process for allowing them access to independent expert opinion and an opportunity to “thrash things through”. I was struck by their compassion for MB and their evident wish to do the right thing for him, even if identifying this was incredibly difficult. The clinicians were also clear in their evidence that they would be happy to proceed in accordance with what the court determines and would be open to the options of one or two admissions to ICU. Here, I felt the hearing also served a purpose of not only making a decision, but allowing someone independent to make the decision instead of the treating team or the family. A potential anxiety or guilt over doing the wrong thing was conveyed clearly by Miss Sutton when she provided the family’s view:  “[Relative A]’s personal view is the treatment should be attempted and she would like him to try to have it. She wants no responsibility to be placed on her shoulders so she would have a guilty conscience.”

To this, the judge quickly responded that although she wanted to know what the family thought and felt, “it is a decision for me, not for them. Nobody is asking them to make a decision and it is not a decision for them to make.” 

Although I could not see how the family in the hearing reacted to her response (their cameras were turned off), I hope that her clear response offered them some of comfort. 

The medical evidence was discussed throughout the case, as was how to manage MB should he resist the treatment (e.g. with the involvement of a liaison psychiatry team in the acute hospital). It was notable that it was discussed at far greater length than the views of MB and the views of his family. This is perhaps unsurprising given the complexity and variety of medical issues, and that MB’s current views were not (based on the judgment) considered to represent his true views. Similarly, before the final witness gave evidence, the family were largely supportive of treatment going ahead. MB’s family members suggested that MB would want the treatment because he would want to live for his family, and it is this that the judge appeared to rely on when she ascertained that this would be his wishes if he had capacity (paragraph 89 of the judgment). However, I wondered if there could have been more opportunity to consider what MB’s views would be if he did have capacity in the oral hearing. I did not feel that any real picture was given in court of what kind of person MB was, his feelings about his family and other views which might be relevant to the best interests decision. 

In the face of all this uncertainty, the judge was left with an unenviable task of deciding what to do, and she came down in favour of treatment through a single admission to ICU. 

This may not be the end of court proceedings for MB.  If the treatment is successful (and if the success is quantifiable, which seems far from certain), it seems likely that the matter will return to court at some point in the future. Given the fine balance of this case, it may be impossible to ever know if the ‘right’ outcome was reached. 

My main hope is that MB’s family have been relieved of any burden they might have felt, and although the court process must have been incredibly hard for them to hear, they are able to enjoy whatever time they have left with him. 

Ruby Reed-Berendt is Research Associate and PhD Candidate in the School of Law at the University of Edinburgh.  She tweets @RubyReedBerendt

Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44

By Celia Kitzinger, 15th October 2022

Editorial Note: The Open Justice Court of Protection Project has issued a formal Statement about the case described here, and has also published an observer’s account of the first day of that hearing. The judgment is publicly available: Re A [2022] EWCOP 44.. These concerns are also covered in the BBC4 radio programme, Law in Action, where Celia Kitzinger speaks to Joshua Rozenberg (25/10/22).

It makes a mockery of transparency if members of the public are admitted to hearings in which information is deliberately withheld from us such that we then publish information that is not accurate or true. […] As a supporter and proponent of the judicial commitment to transparency and open justice, I am very disappointed that the decision of the court to conduct the proceedings in this manner has put the Open Justice Court of Protection Project in such an invidious position.” 

This is an extract from an email I sent to Mr Justice Poole on 21st September 2022, during the course of a hearing in the Royal Courts of Justice.  The hearing concerned a mother’s application for her daughter, a young woman with Primary Ovarian Failure, to return home and the judgment has subsequently been published: Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44).

We have described what happened in detail in a Statement from the Open Justice Court of Protection Project.

In summary, earlier this year, Dr Claire Martin and I co-authored a blog combining our observations of two earlier hearings in this same case (in May 2020 and April 2022), before Circuit Judge HHJ Moir. The case was subsequently referred to the more senior high court judge, Poole J, and it was the first public hearing before him that we observed in September 2022.  

At that hearing, Poole J revealed the truth behind the story we had reported – in good faith but, it turned out, with devastating inaccuracy.  

We had reported that the young woman at the centre of the case (A) had not received medical treatment for her Primary Ovarian Failure (POF).  We learnt in the September 2022 hearing that she had, in fact, been receiving medication for nearly two years.  

The fact that A was receiving medication for her POF was meticulously concealed (by order of the court) in the April 2022 hearing – because it had been decided that A’s mother and her legal team should not know of it.  This meant the observer was also left unaware that the treatment was being administered.

Decisions about A’s medication were made in a series of ‘closed’ and private hearings held in parallel with open hearings (including the April 2022 hearing we blogged about). Observers were unaware of the existence of these closed hearings – as was A’s mother and her legal team.

I have organised my reflections under four headings.

1.  Closed proceedings,  in which I report on what I have found out about closed proceedings and their use; 

2. Open hearings in Re A under the shadow of ‘closed’ proceedings, in which I consider how the April 2022 hearing we reported on was shaped by, and ‘under the shadow of’, the closed hearings of which we were unaware; 

3. Transparency,  in which I reflect on the implications of the decision to admit an observer to the  April 2022 hearing (and its aftermath)  for transparency in the Court of Protection.

4.  Moving forward – next steps in Re A: this is a note about the September 2022 hearing and the relevance of this case for open justice and transparency, moving forward. 

1. Closed proceedings 

Until the end of last month, I did not really understand that there were ‘closed’ proceedings (as distinct from merely ‘private’ ones) in the Court of Protection.  I think this is because ‘closed’ hearings are typically held in private, and listed as such (or not listed at all) so I have not had the opportunity to observe them and understand the distinction.  

Earlier this month, I made a public appeal via social media to Court of Protection lawyers with expertise in this area, and I also contacted several lawyers individually, asking whether they were willing to write a piece for the Project about ‘closed proceedings’ in general terms, so that what happened in this particular case could be understood in a broader context.  Nobody volunteered, and so I am attempting this myself.  If this effort from a non-lawyer inspires someone with the appropriate expertise to volunteer a better contribution, we will receive it gratefully (as I will corrections to what I have written here).

 “Closed proceedings” is the term Poole J used in the hearing, in his judgment and in the name of this case (and he used the same term previously, in Hull City Council v A & Ors [2021] EWCOP 60).

The components of  ‘closed proceedings’ (as exemplified by this case) include features of some other cases reported from the Court of Protection. These are: 

  • without notice’ or ‘ex parte’ hearings ( the terms are used interchangeably) i.e. a person affected or bound by an order that is made in the course of a hearing is not informed about the proceedings, and so is unable to attend the hearing. These are often ‘removal’ cases, i.e. where P is removed from the home of the person excluded from the hearing – because if they knew about the order they would, the court believes, frustrate it: see for example a description of one such case, and analysis of the ruling, by Alex Ruck Keene. There is some 2017 guidance on ‘without notice’ hearings from 39 Essex Chambers, which states that it is an “exceptional” remedy.
  • denial of party status, where family members have had notice of the proceedings, and have been discharged from party status (e.g. a case before Hayden J for which I think there is no published judgment, but which was heard by the Court of Appeal, In the Matter of P (Discharge of Party) AA [2021] EWCA Civ 512); or where they have applied for party status and been refused it (e.gRe KK [2020] EWCOP 64)
  • closed material hearings’ i.e. sensitive but relevant information is withheld from a party – or someone who would like to become a party. This was also a feature of In the Matter of P (Discharge of Party) AA  [2021] EWCA Civ 512.  The terminology seems to originate from the Justice and Security Act 2013, in the context of which the ‘closed material procedure’ refers to material which, if disclosed publicly, would risk harming national security: these hearings exclude even the claimant, who is represented instead by a Special Advocate.
  • The excluded (aspirant) party is not represented I haven’t located a Court of Protection case at which something like a Special Advocate was instructed to act in the interests of the excluded person – although one was used last year, apparently for the first time, in a Court of Appeal hearing referred from the Court of Protection. There’s been no mention of anyone having represented the mother’s interests in the closed hearings in Re A.
  • Private hearings – i.e. members of the public and journalists cannot attend. In the Court of Protection, this is most often the outcome of a balancing exercise between the protected party’s right to privacy and the public’s right to freedom of information. In hearings I’ve observed, I’ve also seen counsel argue, and judges accept, that best interests considerations can play a part.

In addition, in this case, but not in others I’ve found (which may just mean I’ve overlooked some):

  • Withholding facts of magnetic importance to ongoing ‘open’ proceedings – in this case about court orders and directions; their implementation; and their outcome for the mother in making her application to get her daughter back home and/or for increased contact with her.

These features can all involve,  to a greater or lesser extent, derogations from  the ordinary principles of judicial inquiry. 

In researching this case, I have learnt that, according to Lord Devlin (quoted below) these ordinary principles must be dismissed when they do not serve the ends of justice. What a weighty responsibility for judges that must be.  

In Official Solicitor v K [1965] AC 201 (at pages 237-238), Lord Devlin stated (at p. 238) that “the ordinary principles of a judicial inquiry” include the rules that:

“… all justice shall be done openly and that it shall be done only after a fair hearing; and also the rule that is in point here, namely, that judgment shall be given only upon evidence that is made known to all parties. Some of these principles are so fundamental that they must be observed by everyone who is acting judicially, whether he is sitting in a court of law or not; and these are called the principles of natural justice. The rule in point here is undoubtedly one of those … But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed: otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded.”

The case of Re A heard by Circuit Judge HHJ Moir does have “extraordinary” features and there may well be arguments for suspending ordinary rules.  However, they seem to have been more comprehensively suspended in Re A than in other comparable cases. 

I have not been able to find a case as extensively ‘closed’ as Re A – in which for more than two years a party to an ongoing case conducted in the ordinary way was ‘without notice’ of ongoing private proceedings, not joined as a party to, or represented in, them; not informed about orders and directions from those closed proceedings; and in which sensitive but relevant information directly pertinent to her application (to get her daughter back home) was withheld from her.  

In the case before Hayden (In the Matter of P (Discharge of Party) AA  [2021] EWCA Civ 512), the mother knew that there were closed proceedings, and so was able to appeal against her denial of party status.  By contrast, A’s mother knew nothing about the closed proceedings.

In the ‘without notice’ case before Poole J (Hull City Council v A & Ors [2021] EWCOP 60), the protected party’s son was informed of some of the orders the court had made against him within a few days of the judge making them. Another order was acted upon without his knowing about the hearing – his mother was transferred  from the home where she lived with him to a care home – but obviously he became aware of that as soon as it was effected.  By contrast, and in part due to the nature of the case itself, the covert medication order from the closed court was kept from A’s mother for two years (until after her daughter had achieved puberty).

In the judgment from the Court of Appeal In the Matter of P (Discharge of Party) AA  [2021] EWCA Civ 512, Lord Justice Baker (who wrote the main judgment) says that “The approach to be adopted to applications for closed hearings in the Court of Protection was the subject of a decision by Cobb J in KK v Leeds City Council [2020] EWCOP 64” – although actually when I look at that judgment, the points that Cobb J says need to be considered relate specifically to party status and not to the broader issue of “closed hearings” as exemplified by Re A.   They are:

“i) The general obligation of open justice applies in the Court of Protection as in other jurisdictions …;

ii) A judge faced with a request to withhold relevant but sensitive information/evidence from an aspirant for party status, must satisfy him/herself that the request is validly made …;

iii) The best interests of P, alternatively the “interests and position” of P, should occupy a central place in any decision to provide or withhold sensitive information/evidence to an applicant (section 4 MCA 2005when read with rule 1.1(3)(b) COPR 2017); the greater the risk of harm or adverse consequences to P (and/or the legal process, and specifically P’s participation in that process) by disclosure of the sensitive information, the stronger the imperative for withholding the same …;

iv) The expectation of an “equal footing” (rule 1.1(3)(d) COPR 2017) for the parties should be considered as one of the factors …;

v) While the principles of natural justice are always engaged, the obligation to give full disclosure of all information (including sensitive information) to someone who is not a party is unlikely to be as great as it would be to an existing party …;

vi) Any decision to withhold information from an aspirant for party status can only be justified on the grounds of necessity …;

vii) In such a situation the Article 6 and Article 8 rights of P and the aspirant for party status are engaged; where they conflict, the rights of P must prevail …;

viii) The judge should always consider whether a step can be taken … to acquaint the aspirant with the essence of sensitive/withheld material; by providing a ‘gist’ of the material, or disclosing it to the applicant’s lawyers; I suggest that a closed material hearing would rarely be appropriate in these circumstances.”

I do not know whether or not the Circuit Judge considered all these points because her judgment with the order for covert medication has not been published.

In Hull City Council v A & Ors [2021] EWCOP 60, Poole J considered the importance of laying open the court’s processes and reasoning in making ‘without notice’ orders.

Without notice orders of the kind I have made in this application are exceptional and I consider [it] necessary to set out the reasons for making them in a published judgment, suitably anonymised to protect A’s identity. By previous orders the proceedings have been conducted in private therefore they were not open to members of the public. Nor did any journalist or blogger attend. It is important that when the workings of the Court of Protection are carried out in such circumstances and powers are exercised of the kind I have exercised in this case, the court’s processes and reasoning are at least subsequently laid open in a published judgment.” (§2 In Hull City Council v A & Ors [2021] EWCOP 60)

The barristers at the September 2022 hearing in Re A told the judge that they had subjected all of these issues to the most “anxious scrutiny”,  keeping their focus at all times on the best interests of the young woman at the centre of the case.  That may be so – and Poole J says he found this to be the case on reading the documents in the closed hearing bundle (§10 Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44).  If and when the judgment from the closed ‘covert medication’ hearing is published, we will be able to assess that for ourselves.

I am left with a lot of questions about ‘closed’ hearings and about the various derogations from the ordinary principles of judicial inquiry of which they are composed. 

  • I would like to know whether and how ‘closed proceedings’ are provided for in statute (other than via the ‘closed material procedure’ in the Justice and Security Act 2013, cited above).
  • Are there rules or practice directions relating to decisions about ‘without notice’ hearings,  or private material procedures, or denying party status to an aspiring party, or about running both open and closed hearings in parallel? I have not been able to find any.  Some Court of Protection lawyers (who’ve read the judgment) tell me they are concerned about this case.  Formal guidance and/or practice directions in this area would be helpful.
  • When the Court of Protection Transparency Pilot was launched, giving observers access to the courts to observe hearings (and when the Pilot  was subsequently integrated into the normal practice of the Court), was consideration given to how transparency would be managed in relation to derogations from ordinary principles of judicial inquiry?  It seems entirely possible that this was not considered because it was assumed that (as in Re A) closed hearings would be conducted in private (and that judgments would subsequently be published).  My guess is that it was never envisaged that the public would be admitted to an ‘open’ hearing under the shadow of parallel ‘closed’ hearings, such as the one before the Circuit Judge in Re A in April 2022.
  • Is there any systematic oversight and monitoring of the various elements of ‘closed’ hearings?  Is it possible to find out how many hearings are held ‘without notice’ or with ‘closed materials’ and so on?  What proportion of the judgments from such hearings are published and publicly available?  Can we obtain information from the court that will enable us to understand how, in practice, judges balance Article 6, Article 8, Article 10 rights and the best interests of the protected party when they make the challenging decision to depart from ordinary principles of judicial inquiry?

2. Open hearings in Re A under the shadow of ‘closed’ proceedings 

It is an unusual – possibly unique – feature of this case that both closed and open proceedings ran in parallel over about a two-year period.  

I am using the phrase “under the shadow of” to try to capture the effect of the closed proceedings (to which the mother was not a party) on the open proceedings in which she was involved.  

One effect of the closed proceedings was to render the open proceedings of lesser importance in terms of the outcome of the case, ‘overshadowed’ by the serious orders about covert medication in the closed hearings.  

The April 2022 hearing was made in the shadow of the closed hearing of 25 September 2020 when the covert medication order was made.

The process of conducting closed and open hearings in parallel obviously posed additional challenges.

As counsel for A’s mother said in court, it wasn’t just that the mother was excluded from closed proceedings and not told about orders and directions.

 “… it went further than that. It wasn’t just that there were closed proceedings – it was the nature of the proceedings where [Mother] did participate.  Representations were made, and advocates were operating and giving advice on the basis of information which was wrong.  And that raises, in my submission, quite serious public interest issues in proceedings where Mother was involved.  She did not know what was going onher legal representatives did not know what was going on, so the advice given was wrong.”   (counsel for mother)

As a result of the facts finally shared with the mother and her legal team at the September 2022 hearing, it was obvious that the mother had come ill-prepared to the court with her application for her daughter to return home. She was not on an equal footing with the other parties.

The mother’s application was prepared (both in April 2022 and again in September 2022) on a misconceived basis. It was never going to be effective.  Upon learning the true facts, the mother reluctantly – after some delay – withdrew her application.

Counsel for the mother described the position statement he had prepared for the hearing before Poole J as “otiose” (i.e. as serving no practical purpose, lacking effect, pointless, useless, futile). I haven’t seen this Position Statement, but it was clear from what was said in court that the problem was that it was based on a misapprehension about the true facts of the case.  Part of the mother’s argument for the return of her daughter was the claim that if A were to come home, she (the mother) could persuade her to take the medication she (falsely) believed her daughter was not receiving.  

One legal commentator pointed out:  “The party excluded from the closed proceedings litigated from a place of ignorance *engineered by the Court*.”   Another described the mother as “set up for failure here by not being privy to covert treatment”.

Counsel for the mother made some reference to the wasted costs of preparation. His client’s “complaint” he said, was that she had gone to “a whole series of meetings, spent money on lawyers, public money has been involved, and the result of those proceedings was – not a charade, perhaps, but certainly of very limited impact on the progress of the case.”  

It’s a disturbing and disorienting experience to read Claire Martin’s account of the hearing back in April 2022, given what we now know were the true facts of the case.

The hearing listed for 4 days in April 2022 was adjourned as ineffective – a situation which Claire Martin considered (without knowing the true facts at the time) “scandalous”, in part because of the costs involved.

She records that the Circuit Judge heard the case for two hours on 25th April 2022 and determined that the hearing could not go ahead, ostensibly because Local Authority evidence was not yet available concerning  A’s potential housing options, including the mother’s preferred option to have her daughter returned home – either to live with her, or to live in the house with a package of care and with specified contact arrangements.  Counsel for P’s mother was critical of the Local Authority for not having visited the mother’s house to assess viable options “It’s unsatisfactory, unhelpful but there we are”. What was needed, it seemed, was a witness statement from the Local Authority detailing their recommendations, and the mother’s counsel advanced the case that “the best option to get [A] to take her medications is at home with Mum”.

The judge heard the case again for about 15 minutes on 28th April 2022 simply to address re-listing the case.  At that hearing, counsel for the Local Authority spelled out the ostensible reason for the adjournment and what needed to be done before the next hearing, as detailed in the order:

“Information needs to be sought from [the Mother’s] landlord. The Local Authority needs to look at potential commissioning and whether option B [i.e. A living in the family home without her mother living there] is viable. […]  It effectively maintains the status quo [in relation to] residence and care. There is provision for additional 1:1 24hr support for A. … There is provision for [Mother] to set out her discussions with the landlord, and the usual permission for the Trust and Local Authority to provide evidence. Then relisting. All parties have agreed it, subject to your approval.” (quoted from Claire Martin’s section of our joint blog post, Medical treatment, undue influence and delayed puberty: A baffling case)

During the September 2022 hearing before Poole J, counsel for the mother compared his experience of this case with Franz Kafka’s The Trial “about someone who participates in a legal process, not knowing the nature of the legal case. That’s the position that [Mother] has been put in for the past two-and-a-half years.”  

In my email to the judge, I wrote that the observers “… (like the mother’s lawyers and mother) were misled by the court into believing that P was not receiving treatment.” When counsel for A’s mother (briefly) adopted the wording of my email, the judge made the (to me) unconvincing argument that the verb “to mislead” implies saying things that are untrue. Those who wrongly believed that A was not receiving treatment were simply “under a misapprehension”, said the judge.  (Most dictionaries include in their definitions of “mislead” omissions designed to create a false impression.)

Observers and commentators on social media have used terms like ‘charade’, ‘sham hearing’, ‘fake hearing’, ‘mock hearing’, ‘masquerade’, ‘show trial’ and ‘smoke and mirrors’ in relation to the hearings the mother was involved in, conducted under the shadow of the closed proceedings from which she was excluded.

In the hearing, Mr Justice Poole clearly recognised (without expressing a view about what had happened previously) the difficult position the mother and her legal team would face if parallel closed and open hearings were to continue.

I made the decision these closed proceedings should come to an end, and one of my reasons was anticipating this hearing, and your client’s Article 6 rights in this hearing.  It is not for me to say whether what was done previously was right or wrong.  The public interest in the issues you’ve touched upon are obviously significant. […] What’s very clear is, no doubt because of the court’s and the parties’ anxieties not to disclose the covert medication, the impression – both to observers who blogged about the case and (I can see from your Position Statement) to counsel – was that no medication had been given, raising the legitimate question: why is A in this placement if she’s not benefitting from medication? There was more than one reason for A to be in the placement, but medication was a key issue.  So, there was a misapprehension, because there could be no mention of the covert medication in the open proceedings.  I am not an appellate court, nor am I enjoined to hold an enquiry into what has happened.”

3. Transparency

What happened in this case strikes at the heart of the work of the Open Justice Court of Protection Project.   

It’s very unfortunate that the manner in which this case became public knowledge was via a blog post based on a misapprehension of the facts – necessitating a Statement correcting those facts.

It was, as Mark Neary tweeted, in response to our Statement, “a bad day for transparency in the Court of Protection”. 

The Vice President has said that “[t]ransparency is central to the philosophy of the Court of Protection” and – in setting up our Project with the aim of “supporting the judicial commitment to transparency” – we have taken him at his word.  Despite the challenges of translating that philosophy into practical on-the-ground reality (particularly in relation to listings and access), we believe that overwhelming majority of judges do support transparency.

It’s been said that the presence of observers at public hearings “maintains the public confidence in the administration of justice” (Lord Diplock in Attorney-General v Leveller Magazine Ltd: HL 1 Feb 1979). But there are obviously challenges in maintaining public confidence when the ordinary principles of judicial enquiry are discarded (to use Devlin’s terminology) and when – as in Re A before HHJ Moir – observers can watch only open hearings without any knowledge of the closed hearings running in parallel.

In this case, neither public confidence in justice, nor transparency, has been served by admitting an observer to the hearing. Rather the reverse.

My view, and that of Claire Martin, is that no observer should have been admitted to the April 2022 hearing. It must have been obvious to counsel and to the judge (if they had given it a moment’s consideration) that the observer would not be able to write an accurate account of the case. In the alternative, if the court was of the view that there would be value to a subsequent report from a public observer, admission should have been contingent on full disclosure of the facts from the court, along with the issuing of a Reporting Restrictions Order preventing the observer from publishing anything about covert medication, and perhaps a publication embargo on publishing anything at all.  (I’ve experienced similar reporting restrictions and embargos myself in other hearings.)

Insofar as the best interests of the protected party collided with the principle of transparency, and were irreconcilable with it, it seems obvious to me that transparency should have given way – as it has in other cases.  

This view is shared by many others who have blogged for the Project (e.g. “I’m confused as to how the decision was made to hold a public hearing when certain (very important) facts were known to a few people. It was inevitable that any report would be misleading – as those who had all the facts must have known” Daniel Clark).

The suggestion has been made that excluding an observer might have alerted counsel for the mother that something was awry:  “… if I was acting for a party and the judge specifically determined that a hearing take place in private, and then excluded observers… then I’d probably wonder why – which might have led me or my client to wonder if there were things happening we were not told of… not easy” (Ben McCormack)

If the observer was in fact admitted for that reason, she became (as Daniel Cloake suggests in his blog post covering the first day of the hearing), “some kind of prop to add an air of legitimacy to an otherwise compromised application“.  

However, I’m not sure that this was the case.  An earlier hearing in Re A before HHJ Moir (in which the mother was a party) indicates on the first page of the judgment that it was held “in private”, so I can’t see that holding a subsequent hearing also in private would have raised any particular suspicion.  I don’t know why an observer was admitted, but I suspect it may have been done without much consideration of the implications.  I wonder whether more thought might have been given, and a different decision made,  if a journalist had applied to observe the hearing.

The reverberations of admitting an observer to this hearing (without properly briefing her and serving a Reporting Restrictions Order) are far-reaching and deeply unhelpful both to us as members of the public and to the Court of Protection itself.

It’s caused those of us actively running the Open Justice Court of Protection Project to doubt the value of our work.  Not only did we publish a misleading account of a case but also it was an account which promoted the version of events the court wanted the mother to believe – thereby making us complicit in the court’s act of omission without our knowledge or consent (which is part of what I meant by referring, in my email to the judge, to the “invidious” position we’d been placed in). 

Our blog post could also have (inadvertently) jeopardised the whole endeavour in which the court was engaged in pursuit of A’s best interests, because it raises the matter of covert medication.  Claire Martin wrote: “ I don’t know whether or not the options of covert medication (or restraint to ensure treatment) have been considered. (They may have been considered in one or more hearings that we missed).” There is no evidence that the mother in this case read our blog post – but had she done so, this could surely have alerted her to a possible scenario in her own case.  The court should never have created a situation in which this could arise.

This whole episode has led to scepticism, from journalists and from the public, about the court’s professed commitment to transparency:

When details are hidden rather than being subject to reporting restrictions, it shakes the confidence of observers and reporters in the whole system” (Tristan Kirk, journalist)

How can I trust that any hearing I attend isn’t tainted by having secret, covert hearings going on ‘underneath’ the ones I observe?’ (Louise Tickle, journalist)

Since publishing our Statement (four days ago at the time of writing), we’ve received emails and direct messages from more than a dozen members of the public recounting what they say are very similar ‘deceptions’ in Court of Protection (and Family) cases involving their own family members.  Whether or not their accounts are accurate, our report has obviously tapped into some deeply seated fears and anguish about what has happened in other litigation.  One solicitor said of the Re A judgment “I hope it doesn’t lead to additional litigation in other cases trying to flush out closed proceedings/covert medication – this is I fear a very real risk”.

Family members involved in Court of Protection proceedings often tell us that they believe that having an observer present will ensure that the judge “behaves himself” and “doesn’t do anything wrong – because you’ll be watching!”  We know they have found some comfort from having someone independent and impartial as a witness to their story.  They’ve reported that the judge was “fairer” to them because observers were there and commented that, without observers,  judicial unfairness is “unlikely to be found out”.  (see How being watched changes how justice is done: ‘Insider’ Perspectives). And in writing about our Project, we have often quoted Bentham” “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial”.

In future, we will have to tell P and their family, when they approach us asking for someone to observe their hearings, about our experience in this case.

In my view, in this particular case, the court made a mockery of transparency by placing an observer in a situation where information was deliberately withheld such that it was entirely predictable that anything we published would be inaccurate and misleading.  That is why I wrote to the judge in the terms that I did.  That is why, when I was invited to speak to the judge after counsel for the Trust vigorously disagreed with the content of my email (“Nobody was misled”; “There was no mockery”) and expressed “disappointment” with its “tone”, I told the judge that I wanted to reassert rather than retract those statements.  I’m dismayed that our time and (unpaid) labour in support of the judicial aspiration to transparency was so little valued, and that our commitment to accuracy and fairness in reporting was so casually sabotaged.

Poole J said (in response to concerns expressed by counsel for P’s mother): “I am not an appellate court, nor am I enjoined to hold an enquiry into what has happened”. My own view is that there should certainly be “an enquiry” and some guidance should be created  (in consultation with journalists and members of the public) to ensure that these damaging events are never repeated.  

The issue relating to transparency as it arose in this case is very specific. It does not reflect a wholesale problem with having public observers in court, and I would be sorry to see the judiciary interpret it in that way.  It’s about the need to ensure that on the (exceptional) occasions when the ordinary principles of judicial enquiry are discarded, considerations of how transparency should be managed are properly addressed.  It may often be most appropriate, in these cases, to hold hearings in private.  

From the case law I have read, it’s clear that closed hearings (or the constituents thereof) are exceptional and the subject of anxious consideration.  Other options are explored first.  ‘Without notice’ hearings are a course of last resort. I am broadly reassured to read the judgments about these cases (including appeals against them).

I am also reassured that Court of Protection lawyers (some of whom are as disturbed as I am by what’s happened) tell me that they’ve never come across a case like this before – which I take to be a good thing. Nobody has volunteered information about other cases involving ongoing parallel open and closed hearings over years (or even months). 

4.  Moving forward – Next steps in Re A

Overall, my experience of the September 2022 hearing was positive. In my view,  Poole J conducted a challenging hearing with grace, skill and acuity.  

The judge’s decision to end the closed hearings, to make public that A has been and is continuing to be, covertly medicated, to publish a judgment, and to arrange for publication of (so far, one) of the Circuit Judge’s judgments is a positive step for transparency in the Court of Protection The judge also alerted journalists to the September 2022 hearing (though none came) and he actively supported my request, and a later request from Claire Martin, to observe the hearing (after we’d been alert to its importance by Daniel Cloake) – including by moving proceedings from one court room to another (thereby slightly delaying the start of the second day of the hearing) so that I could attend via video-link.

In the face of the damage caused by this whole episode, Poole J’s conduct of the hearing gives me some confidence that it is possible to repair the harm, and to move forward positively.

There are very serious issues of public concern arising from the decisions of the Circuit Judge who oversaw this case for more than two years before it reached Poole J in September 2022.  They include: deprivation of liberty; administering medication contrary to a person’s wishes and without their knowledge; draconian restrictions on contact between family members; and the right to a hearing at which all parties are provided with the same information.  The human rights protections of Article 5 (right to liberty), Article 6 (right to a fair trial), and Article 8 (right to respect for private and family life) are all engaged.  Publication of the judgments from the closed hearings (specifically those relating to covert medication) is now essential for public confidence in the court.

At the end of the September hearing, Poole J authorised continuing covert medication as “justified, necessary and proportionate at present”,  but wanted to establish an “exit strategy” and a move towards a situation in which the young woman (“A”) voluntarily takes the medication she’ll need for many years to come. 

He left open the question of whether or not she should be told (and if so, by whom) that she’s been covertly medicated to achieve puberty (“remarkably, she’s not asked questions about her bodily changes”).  He also gave some directions about contact between A and her family members, with a proposal for gradually increasing the mother’s contact with her daughter, and re-introducing face-to-face contact, subject to ongoing monitoring and review. 

These plans will be reviewed at a hearing (in open court) on 15th November 2022.

For an update on what happened on 15th November 2022 see: No ‘exit plan’: Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44

For Celia Kitzinger’s submission to the Court of Protection Rules Committee dealing with lessons to be learnt from this case, see: Closed Hearings: Submission to the Rules Committee  

Celia Kitzinger is co-founder and co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project.  She has observed more than 360 hearings since 1st May 2020.  She tweets @kitzingercelia

“I have to tell you something which may well come as a shock”, says Court of Protection judge

By Daniel Cloake, 12 October 2022

Editorial Note: The Open Justice Court of Protection Project has issued a formal Statement about the case described here. This is an observer’s account of the first day of that hearing. The judgment is publicly available: Re A [2022] EWCOP 44. We subsequently raised concerns about the court’s decision to admit observers to the hearing that resulted in the misleading blog post: see Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44. These concerns are also covered in the BBC4 radio programme, Law in Action, where Celia Kitzinger speaks to Joshua Rozenberg (25/10/22).

I have to tell you something which may well come as a shock” is a sentence that no mother would wish to hear, and certainly not from a judge when at a hearing in an imposing courtroom at the Royal Courts of Justice. 

What was revealed was a shock to me too. 

This Court of Protection hearing concerned her 23-year-old daughter (‘A’), whose identity is protected by court order. In 2019, A was removed from her mother’s care against the wishes of both of them, and now resides in a placement. The daughter has had only telephone contact with her mother ever since.

At this in-person hearing before Mr Justice Poole, held over three days (20th– 23rd September 2022),  we were helpfully told as background that the daughter has been diagnosed with mild learning disabilities along with Asperger’s syndrome, epilepsy, vitamin D deficiency, and primary ovarian failure (POF). 

It’s the POF that was a key consideration in 2019: the judge explained that the daughter had not received treatment for the condition, which meant she had remained prepubescent, even at the age of 20. Left untreated, her POF would “have had profound consequences for her physical and mental health“. 

Evidence given to the court three years ago by a Dr X in support of treatment was described in the June 2019 judgment of Her Honour Judge Moir: 

Dr X became quite emotional when he was giving evidence before me. He told me that the likely success of the treatment was 100 percent. There is no failure rate. He told me it transforms a child into a woman. He said it is the basic human right of every girl to blossom into a woman and he found it inconceivable that it should be blocked. He said failure to treat it was unthinkable and it should have been done five years ago.“ (§79 Re A [2019] EWCOP 68)

The reason for the lack of treatment was said to be because the mother was exerting ‘undue influence’ upon her daughter. HHJ Moir said: 

Sadly, I find that [Mother] has been so obsessed with her own wishes, views, and fears that she is being blinded to the obvious and risk-free advantages to her daughter of encouraging her to undergo the treatment and has, instead, failed to encourage her daughter to engage with the treatment or has actively dissuaded her daughter from doing so. Thus, the prospect that [Mother] will in the future support her daughter and positively encourage her to engage with the treatment must be extremely limited. Sadly, it is difficult to reach any conclusion other than [Mother] would prefer A not to “grow up” for want of a better description, that she would prefer A to remain the same, dependent upon her mother, and isolated within her mother’s sphere without any outside influence or interference.“  (§88 Re A [2019] EWCOP 68)

The judgment concluded with a number of orders and declarations as to the daughter’s best interests including that it was in her best interests “…to undergo treatment in accordance with the recommendations of her treating clinicians” and “…to continue to reside in residential care“ (§112 Re A [2019] EWCOP 68)

The mother subsequently issued an application for her daughter to be return home and/or for extended contact between them. This came to be considered in April 2022 before HHJ Moir sitting in open court. 

Dr Claire Martin covered these proceedings and contributed to ongoing coverage of this case on the Open Justice Court of Protection Project website (see: “Medical treatment, undue influence and delayed puberty: A baffling case“).

Dr Martin reported, no doubt fairly and accurately, submissions made on behalf of the mother that: “The basis on which the application is being brought to court again seems to be that P is still not being adequately cared for (she is not receiving the recommended endocrine treatment)”.

Dr Martin (quite rightly in the opinion of this humble mouse) criticised the Court of Protection by concluding that she was: “…quite baffled as to why it was two years later and P is still not receiving the treatment she needs for her primary ovarian failure.

Indeed. Which brings us to 20th September 2022 and the first day of Poole J’s hearing of the mother’s application.

The mother was represented by Mr Mike O’Brien KC who, as subsequently described in the written judgment, “had understandably prepared written submissions on the issue of residence and contact“. 

No doubt a considerable amount of time and effort had gone into preparing for this hearing and much discussion and legal advice had surely been generated since the daughter had been removed from her mother’s care. One ponders the expense to the public of these proceedings. 

After Mr Justice Poole gave an introduction to the case came the words, “I have to tell you something which may well come as a shock“. 

It turns out that a parallel set of proceedings, held completely in private, had commenced over two years ago. Poole J had himself held one of these hearings the week before. The history of these closed proceedings is laid out in the now published judgment: 

On 25 September 2020, the HHJ Moir held a closed hearing on the Trust’s application for A to be covertly administered hormone treatment for her primary ovarian failure, no notice having been given to [Mother] or her legal representatives. [Mother] was not made a party to the application. At that hearing [HHJ Moir] approved a covert medication plan in respect of the hormone treatment. A had been refusing such medication. The Judge found, again, that A lacked capacity to make decisions about such treatment and remained very concerned that [Mother]’s influence was causing A to refuse the medication. [§4 Re A [2022] EWCOP 44]

Mr Justice Poole said of these closed proceedings in his written judgment: 

It was very evident … that the most anxious consideration has been given to this very difficult and troubling case by all the parties to the closed proceedings and the Circuit Judge. At all times A’s best interests were the foremost consideration.“ [§10 Re A [2022] EWCOP 44]

When informing the mother that her daughter had been covertly medicated for the past two years, the court also made an injunction against her. This stated (amongst other things) that she “shall not by any means whatsoever… inform [daughter] she has been covertly medicated” or “discuss any aspect of puberty” with her (see §48(ii) Re A [2022] EWCOP 44]

The court was concerned that if the daughter were to find out about the covert medication there would be a “significant risk that [daughter] may reject food or drink, or the current placement would break down“.

The good news is that the covert medication plan has been deemed a success. Poole J summarised it in his judgment thus: 

The evidence demonstrates that [the daughter] is clearly benefiting from her residence at Placement A, both as a result of the support and care she is receiving, and the medication administered to her. She is enjoying benefits for her physical and mental health. Dr X reports that her socialisation and behaviour have improved “gratifyingly”. Some of the benefits of the medication that has been covertly administered have already been achieved and could not be reversed“ ([§20 Re A [2022] EWCOP 44)

The reaction of the mother was relayed to the court after a two-hour adjournment. “If you need more time, of course I’ll be accommodating for that” the judge had reassured her, and her legal team.

Mr Mike O’Brien KC explained his “client’s reaction to what My Lord has been able to disclose today” was that she was “really happy” to hear the treatment had been a success, although a “completely reasonable” series of questions arose. 

Is she totally well? Is she happy? Are there any side effects? What is she like after she receives the medication? Is she sleeping alright? Is there any effect on her cognitive thinking? How is it given? If she was at home, could it be given at home?“ 

On the assumption that things have been going well”, Mr Mike O’Brien said, the mother does not object to the covert medication continuing. 

Mr Mike O’Brien also submitted that the mother was “unhappy with what she regards as some disrespect for herself” by “not being told what was going on for the past two years“. He said the mother “does not seek to tell” the daughter what has been going on, and ultimately does not wish to be the person to tell her either. We were told he had “clear instructions” on that point. 

Concerns were raised about the health of A’s grandparents. The Grandad, said to be nearly 90, “is in a very poor state” and the mother “doesn’t know how long he has left“. The Grandma “has very serious health problems as well” and the “time they have left [to see their Granddaughter] is a matter of great concern to the mother“.

The mother was said to be very keen to ensure a face-to-face visit could be arranged soon, and a date in October, holding a special significance to the family (A’s birthday), was conveyed to the court. “She doesn’t think it would be a problem in terms of the physical changes that have taken place” but “she doesn’t know if [daughter] would raise the matter with her. “ 

To allow time for the mother and her legal team to digest the documents from the closed hearings “our initial thought is we go over until tomorrow at 2pm“, said Mr Mike O’Brien.

Given that what was revealed in the hearing was contrary to what had been previously reported, I contacted the blog editor for the Open Justice Court of Protection Project, and made her aware that an issue of transparency had arisen. I am pleased that Project members were able to cover the subsequent days of the hearing and make their own representation. I don’t intend to duplicate their coverage of the remainder of the hearing, which will be posted shortly.

Thoughts on transparency 

The idea that a blogger was allowed to attend the hearing in April 2022, and seemingly not be discouraged from reporting on what ultimately was a sham hearing I find astonishing. 

The notion that an observer can be used as some kind of prop to add an air of legitimacy to an otherwise compromised application belongs in a TV drama. It does not belong in a court that is trying to shake a reputation of being ‘shadowy’ and ‘the most secretive court in Britain’ (The Telegraph, 16/10/2016) 

In 2013 the late Christopher Brooker wrote about The sinister spread of justice behind closed doors” in “the mysterious and secretive Court of Protection“ (Daily Mail, 23/04/2013)

It’s a real shame to see the successes of recent years towards greater transparency and open justice in the Court of Protection tarnished in this way. 

Daniel Cloake is a blogger and news gatherer with a keen interest in Open Justice and the niche and the nuanced.  You can read his many other blog posts on his own site“The Mouse in the Court”.  He tweets @MouseInTheCourt

Statement from the Open Justice Court of Protection Project concerning an inaccurate and misleading blog post

UPDATES: We subsequently raised concerns about the court’s decision to admit observers to the hearing that resulted in the misleading blog post: see Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44. These concerns are also covered in the BBC4 radio programme, Law in Action, where Celia Kitzinger speaks to Joshua Rozenberg about “Secrecy in the Court of Protection” (25/10/22): see also Joshua Rozenberg’s blog, “Open justice at the Court of Protection?“. We have now blogged about a subsequent hearing in this case (on 14 November 2022): No ‘exit plan’: Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44.

The Open Justice Court of Protection Project very much regrets publication of a blog post which we fully accept was inaccurate and misleading.

The blog post by Celia Kitzinger and Claire Martin,  Medical treatment, undue influence and delayed puberty: A baffling case,  published on 2nd May 2022, reports on two hearings we observed before circuit judge HHJ Moir concerning a young woman with primary ovarian failure.  We wrote that: 

…. since the court authorised removing her to the care home more than three years ago, P has not been treated for her primary ovarian failure.  It is entirely unclear to us why she has been left untreated, since this was a key justification for depriving her of her liberty in the care home (against her will, and that of her mother) and for restricting and then stopping contact between mother and daughter.”  

We described ourselves as “surprised, and dismayed, by the apparent lack of progress over this 23-month period” and said we were “baffled as to why … P is still not receiving the treatment she needs”.  

We accept that these statements (and similar statements made in promoting the blog on Twitter and Facebook) were incorrect.  

We can now put on record that, at the time of the April 2022 hearing reported in the blog, the young woman at the centre of the case (now to be referred to as “A”) had been receiving medication to treat her primary ovarian failure for more than a year.  This medication was administered covertly (via her food and drink), without her knowledge and without the knowledge of her mother, or her mother’s legal team.  We did not know this.

The facts are as reported in the judgment by Mr Justice Poole: Re A [2022] EWCOP 44.  This judgment was handed down on 7 October 2022, but was not available on a publicly accessible website until today (11th October 2022).

In brief (from the judgment):

On 25 September 2020, HHJ Moir held a closed hearing on the Trust’s application for A to be covertly administered hormone treatment for her primary ovarian failure, no notice having been given to B [A’s mother] or her legal representatives.  B was not made a party to the application. (§4 Re A)

“Under the covert medication plan A was to be offered her hormone treatment in tablet form each time a tablet was due, but if she refused it, it would be covertly administered.  The plan would be known only to a limited number of healthcare professionals and carers. A did refuse to accept the hormone treatment and so covert medication began to be administered at the end of 2020. A has continued to refuse the treatment and so covert hormone treatment medication has continued since then… (§5 Re A)

“The Open Justice Court of Protection Project published an online blog about this case on 2 May 2022 entitled, “Medical treatment, undue influence and delayed puberty: A baffling case.  One observer had seen the hearing on 26th May 2020, another the hearing on 25th and 29th April. When comparing the hearings, both observers were “dismayed” and “baffled” because over a two year period of separation from her home and her mother – a separation that appeared to be for the primary purpose of administering endocrine treatment that A was not likely to receive at home – A had still not received endocrine treatment and there was an application for her to return home ‘in the hope that (after all this!) her mother will then be able to persuade her to have it’. The observers were wrong – A had been covertly administered the medication – but they were not to know that having only observed the open hearings in this case and, like A and members of A’s family, being unaware that covert medication was being administered and that A was benefiting from it. (§9)

Re A (Covert Medication: Closed Proceedings) [2022] EWHC 2487 (COP)

In the judgment Poole J subsequently refers to our blog post as having conveyed “false information” (§73).  It was “based on only partial information – through no fault of the authors” (§84). He says:  “due to there having been open and closed proceedings running in parallel, the blog authors for Open Justice [sic] had inadvertently misled their readers” (§68) 

We are grateful for Poole J’s observation that:

“… the Open Justice Court of Protection Project is an important project that makes a significant contribution to transparency and public understanding of the workings of the Court of Protection. They feel that the proceedings in this case have undermined their work.” (§68)

Re A (Covert Medication: Closed Proceedings) [2022] EWHC 2487 (COP)

This short statement is made as rapidly as possible after publication of the judgment in order to correct the false impression we conveyed in the blog post, and we will now also add a note to the original blog post (linking to this statement) to avoid readers being misled in future. 

We first learnt the true facts of this case during the open hearing before Poole J of 20-22 September 2022, but have not been able to make corrections sooner because a Reporting Restriction Order prevented us from reporting on the covert medication until the judgment was published (for reasons given in §84 of the judgment).

We will now investigate how it came about that an observer was admitted to a public hearing in which a salient (‘magnetic’) fact of the case was meticulously concealed (by order of the court), leading – surely inevitably – to inaccurate reporting.

We believe (as Celia Kitzinger said to Poole J in court) that the conduct of proceedings in this case has undermined the work of open justice and transparency in the Court of Protection. We plan to blog about these concerns, and about the hearing before Poole J, at a future date.    

Celia Kitzinger, Gill Loomes-Quinn, Claire Martin, and Kirsty Stuart are members of the Core Group of the Open Justice Court of Protection Project. For more information about the Project, and our individual contributions to it, see the “About Us” page on our website.

Access to the community for P: a s.21A deprivation of liberty hearing

By Anna (daughter of a P), 27th September 2022

This case concerned P, who is in a care home, but who must want to leave as this is an appeal made by him under Section 21A, challenging his deprivation of liberty.

I am particularly interested in Section 21A applications as my mother is a P in such a case, and it can be hard for families to understand the process involved. 

I deduced from what I heard in court that this was a Directions hearing to approve orders, including obtaining a Section 49 report[1].

The hearing was listed on the First Avenue House daily hearing list as follows: 

Tuesday 20th September 2022 3pm

DJ Eldergill 

First Avenue House (remote) 

COP 13978517 DJ -v- London Borough of Barnet

Section 21A Deprivation of Liberty 

Directions, 1 hour, Remote 

I knew from previous times that I should send an email to courtofprotectionhearings@justice.gov.uk to ask to observe and, if necessary, call 020 7421 8718 in the event of problems. 

The hearing proved fairly easy to access. I sent an email to the court asking to observe. I then received a reply asking me to confirm my reason for wanting to observe the hearing. I replied that I was a party to a Section 21A appeal involving my mother. I also stated that I was involved with the Open Justice Court of Protection Project

I didn’t receive a transparency order but I was sent an email asking me to confirm that I understood that I should not publish anything that might enable P to be identified, or where P or family members live, without the permission of the court (which I could ask for); that I would not record the hearing in any way, and finally that I would not to share position statements or other documents without the court’s permission (which I could ask for). Otherwise, I could be held in contempt of court. I wrote back to state that I understood, but also to confirm that I understood “record” to be by sound or video, as I would be making notes by hand. I didn’t hear back so I assumed that was OK (especially as I had done it before). I chased the link 10 minutes before the hearing. 

I received the MS Teams link only 5 minutes before and I think that this was because it was doubtful that the hearing was even going ahead.  

I joined the meeting, which was already attended by five people (including the clerk). The clerk opened the meeting and the hearing began when Judge Eldergill joined. He checked that the necessary people were present and stated that an observer was attending (me) and that I knew what the restrictions were. I think I heard that he asked if P was joining, but was told no. Everybody had their cameras on, except me. The judge then started the hearing. 

I gathered from what Judge Eldergill said at the start that the parties had been in some discussions before the hearing. The hearing would probably only last 10 minutes – I imagine that this was why there was no background to the case given to me as an observer, as it wouldn’t have been an appropriate use of time. The judge explained that he had read the Position Statements and the hearing could have been vacated but for the fact that he wanted a discussion about a particular point, which was access to the community for P. He then asked about this. 

Counsel representing the Local Authority (I assume, as it wasn’t clear who was who) explained that the care home has been in lockdown for two weeks due to COVID (implying that normally residents who were capable could leave the home to go into the local community). He explained further that P was sociable, but on his own terms.  He liked participating in musical events at the home and liked going into the garden. 

Judge Eldergill stated that P had mentioned wanting to be able to go to a restaurant (and there was also some mention of P being able to go to a bank). He referred to Paragraph X (of the Position Statement) which stated that the Home was concerned about P going out alone because he was at risk of absconding. However, the judge raised a point about the seemingly low likely risk of this happening, given that at another paragraph, it stated that P uses a Zimmer frame and so clearly has mobility issues. 

The solution suggested by the Home was that they should take P out and the Judge was concerned about care home staff time and how practical this suggestion was. He then asked whether there should be an amendment to the draft order to ask or require (I’m not sure which) staff to take P out. The Judge continued that the Court could attach conditions to the order re Section 21A and this would be the type of thing that would be attached (and so suitable wording should be agreed). 

Counsel for the Local Authority suggested something along the lines that “the Home will support P going into the community”. 

The Judge suggested that he wanted something more specific. 

Counsel for the Local Authority explained that the home was big, with its own café and a big garden. It was also very close to local amenities. 

The Judge proposed that a program of outings could be agreed which would take them through to the next hearing in December. 

Counsel representing P (I assumed) wanted the order to enable some flexibility but agreed that in principle it was a good idea to amend the order, outlining how P should have access to the community. 

The Judge then referred to the fact that P has been recorded as stating that the home “feels like a prison” and that he “was a prisoner”. So, he wanted to improve P’s situation in the time period before making a final decision (about the Section 21 A appeal).  It was agreed that the Court wants access to the community for P to be specified in the main order. 

At this point the judge asked if somebody could talk to P’s brothers about taking P out from time to time in order to reduce the pressure on the staff in the care home. He then went on to state that the background was a bit vague but that it seemed as though P might prefer to be in….  I didn’t quite catch the exact words but it was some sort of sheltered / supported accommodation (rather than a care home, I think, was the implication). Therefore, a point should be added to the order requesting the S49 report, to obtain information about whether P could become disorientated and therefore what the appropriate type of accommodation should be. 

The Judge then spoke to me directly to say that he was leaving the hearing and I should leave at the same time, to enable the parties to continue their discussions. 

My observations 

Although this was a short hearing, and technically about wording in an order, it established an important principle and was useful to me in various ways. 

First, as in my mother’s case, the Judge was clearly concerned that steps were taken straight away to improve the quality of life of P rather than waiting for another hearing. P wanted access to the community and the judge wanted to ensure that this could start happening as soon as possible. 

This raised another point about the practicalities of this happening, and how much time the care home staff would have to do this. As well as being concerned for P, the judge was concerned for the care home staff’s time too. I hadn’t fully appreciated before my mother’s case, now reinforced by this one, that the Court of Protection can make orders requiring Homes to take residents out into the community, as well as making other adjustments as appropriate.  How this can be organized and monitored to ensure it happens is another matter, as I have learned from my mother’s case. 

Second, it was interesting for me that the judge raised the possibility of the family going out with P. It sounds a reasonable request. However, I know from my experience that a lot already falls on families and it can be hard to draw a line between the State and the family providing support and care. Families are strange beasts and there can be many reasons why a family’s role can be limited. 

Third, the judge was concerned to support P’s autonomy. In this case P was quoted as saying that the care home is “like a prison” and this reflects the exact words my mother uses and it made me realise that it is an expression that Courts must hear all the time. My mother’s case is unique, as are all cases, but I’m learning that there are similarities that judges must come across frequently.  

Finally, I was struck again by the spirit of cooperation between the parties present, and Judge Eldergill doing his best to ensure that P’s wishes were at the heart of the discussions and accommodated in the best way possible. 

Anna is the daughter of a woman who is currently a P in a Court of Protection s.21A application.  She’s not using her real name because she wishes to protect her mother’s privacy, while also hoping that other families can benefit from reading about her family’s experience.  She hopes to blog in future about the hearings as the case progresses through the court.


[1] Through section 49 of the Mental Capacity Act 2005, the Court can order (most typically) the NHS body responsible for the area where P lives to produce a report even if it isn’t a party to the Court proceedings. A section 49 report is often considered as an alternative to a report by an independent expert. Whilst reports by independent experts can be obtained by the parties at private expert rates, no provision is made within section 49 in relation to fees or expenses incurred by the body directed to produce the report, and so the cost is therefore borne by the body directed to produce the report. See “What is a section 49 report?”

Medical treatment for people with learning disabilities: Telling Robert Bourn’s story and the challenges of ‘transparency’

By Celia Kitzinger, 21st September 2022

The BBC has a story it wants to tell in a forthcoming Panorama programme.  

It’s about Robert Bourn, a man with a learning disability who was diagnosed with cancer.  

The story is about the challenges in getting appropriate medical treatment for him – and the disparities in healthcare that mean that people with learning disabilities are often less likely to be treated.

But, until today, I couldn’t tell you whose story it was. When I first blogged about Robert and his mother Sharon, more than 18 months ago, when the case was last in court, I had to use pseudonyms.

Initially, I couldn’t name Robert, or his mother Sharon Bourn, because they were covered by an injunction preventing anyone from identifying Robert or any member of his family as involved in the Court of Protection[1].  

What’s in a name?  

In a  much-quoted passage from the Supreme Court case, Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors ([2010] UKSC 1), Lord Rodger says:  “What’s in a name?”  ‘A lot’, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature.” Without the names of the people involved, a story can become “austere, abstract … devoid of much of its human interest”.  In the criminal context,  “a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial … On the other hand, if newspapers can identify the people concerned, they may be able to give a more vivid and compelling account which will stimulate discussion” (§64 & 65).

And so, in preparation for the Panorama programme, the BBC (represented by Claire Overman of Doughty Street Chambers) had made an application to vary the Transparency Order (issued by Lieven J, dated 27thJanuary 2021), so as to enable them to identify Robert Bourn, and his family, and the hospital at which Robert was treated[2] in their documentary. 

The BBC’s case was in court on 16th September 2022, before Mr Justice Nicholas Francis.

Counsel for the BBC described what the programme would be about:

… the BBC seeks to explore, through a number of case studies, the quality of care and life saving treatment options received by people with learning disabilities.  This is an under-reported topic that gives rise to important public interest concerns, not least given that ‘according to NHS figures, 1,200 people with a learning disability die from an avoidable cause every year’….” (from the BBC’s Position Statement)

Counsel for Robert Bourn (Parishil Patel KC of 39 Essex Chambers, instructed by Sharon Bourn as Robert’s litigation friend) described it like this:

The BBC ‘wishes to explore, through the telling of [Robert]’s and his family’s story’ issues of “crucial public importance, namely that their experience brings into sharp focus important questions concerning the equality of medical treatment, and in particular the impact of learning disabilities on a patient’s prospects of receiving live-saving treatment’.”  (from the Position Statement filed on behalf of Robert Bourn).

It’s important to be able to name Robert and his family (said the BBC) in order to tell his story in “a meaningful and identifiable way” – the same way that the other families in the programme, who’ve not been part of Court of Protection proceedings, can tell their stories as identifiable, named people.

An anonymised version of the story would lose much of its human impact, and is not in accordance with the family wishes….  The family’s Art. 10 rights do not simply encompass a right to tell that story, but also to tell it in the way they wish (that is, identifiably)…. One advantage of doing so is to allow the family’s story to resonate with the general public.” (from the BBC’s Position Statement)

Sharon Bourn, as litigation friend for her son, strongly supported the BBC’s application.

She agrees with the public issue of raising awareness of inequality of access to medical treatment for persons with learning disabilities.  She recognises the powerful impact of identifying Robert and the family in any reporting. She considers that Robert, if he could communicate his wishes, would agree.  Further, she explains how Robert benefitted from learning about Ian Shaw[3] who was in a similar position to Robert and whose story was reported by the BBC. Lastly, she does not consider that there would be any (detrimental) impact to Robert by his naming and broadcasting in the proposed programme.”  (from the Position Statement filed on behalf of Robert Bourn).

Since I am naming Robert Bourn and his mother, Sharon Bourn, in this blog post, it must already be evident that the judge gave permission for them to be publicly identified.  But this blog is not really about what the judge decided but about the judge’s reasoning in making the decisions he did about transparency, and the process by which he made his decisions.  

So, I’ll first give a brief account of Robert Bourn’s story, and why it’s an important story for the BBC to tell (and for all of us to hear), and then describe how the hearing unfolded.  I’ll explain how the judge came to the decision that Robert Bourn’s family could be identified, and why the judge did not permit identification of the treating clinicians, or the hospital in which Robert was treated. I’ll end with some “Reflections” on the hearing.

Robert Bourn’s story

Two years ago, in September 2020, Robert Bourn was diagnosed with testicular cancer.

He underwent surgical removal of his left testicle but by the end of the year it had become clear that the cancer had spread to his lymph nodes and he was diagnosed with “metastatic germ cell cancer”.  This type of cancer has a high cure rate, with chemotherapy.

Robert also has Fragile X Syndrome and a learning disability – along with “atypical severe autism, dysphagia and … limited verbal communication”.  Everyone agrees that Robert  doesn’t have capacity to make his own decisions about medical treatment (s. 3 Mental Capacity Act 2005).  This means that decisions have to be made for him in his best interests (s. 4 Mental Capacity Act 2005).

The initial response of his treating team, says his mother, was to say there were no treatment options. Comfort measures only were proposed and a palliative care referral was made.

In an earlier blog post, based on an interview with Robert’s mother, I quoted her description of what happened between her and the Robert’s doctor:

I asked the doctor, ‘So what’s next?’.  The doctor dropped his head and looked at the floor and said, ‘There’s nothing we can do’.  I said, ‘Pardon?’ – not as in I haven’t heard you, but please bloody explain yourself.  He kept looking at the floor and saying, ‘there’s nothing we can do’.  So, I said again, ‘What’s next?’ – meaning, what kind of treatment? He said, ‘He’s got twelve months’. To say I lost it is an understatement.  I was screaming, crying, punching the walls with my fists.  The learning disability nurse sat there like a rabbit in the headlights saying, ‘I’m so sorry’. Well, ‘Sorry isn’t what I want!’ I begged him, I put my hands before my face in the prayer position and I begged him to help my son and he kept saying ‘There’s nothing we can do’.  The day the doctor said he couldn’t do anything and my son had 12 months left to live, it was a case of we either accept it, or we do something about it. I’m not really one for saying, ‘Oh, okay we’ll do what you say’.  The Mama Bear instinct kicks in.  I wanted to see what else could be done.”

There are parallels between Robert Bourn’s story and that of other learning-disabled adults who’ve been refused treatment.

The BBC publicised Ian Shaw’s story in July 2017. As in Robert Bourn’s case, his doctors had decided not to treat his cancer: he also has “learning difficulties, autism and epilepsy”. According to one expert, It is difficult to escape the suspicion that this [i.e. Shaw’s learning disability and autism] has somehow influenced the doctors’ decision (Irene Tuffrey-Wijne, Professor of Intellectual Disability and Palliative Care). 

After seeing the BBC report, a psychiatrist, Dr Julian Wilson, asked to be put in touch with the family.

Knowing that testicular cancer is one of the most treatable cancers that there is, I was surprised that a decision had been made not to provide treatment and I wanted to understand what that was about…. My concern was that perhaps judgements were made about the quality of life that he has because of his severe learning disabilities and because of the physical impact of how the cancer has spread…  I’m also clearly aware that providing cancer treatment for someone with the problems that Ian has is a real challenge.  It is really difficult to give the best possible treatment to somebody in that situation, but my view is those challenges can be overcome.”

Following Dr Julian Wilson’s intervention, Ian Shaw received treatment and the BBC  reported in December 2017 that he was doing well. 

Sharon Bourn learned about Ian Shaw when someone posted these BBC reports on her social media page. She  remembers feeling “shocked” when she read the story: it was so similar to what was now happening to her own son and (via Kirsty Stuart, her solicitor at Irwin Mitchell) she made contact with Ian’s mother and got a second opinion (paid for by the Trust) from the doctor who’d treated Ian.  Finding Ian Shaw’s family, and getting solicitors involved, was “the light at the end of the tunnel”.  

It’s in part because she found Ian Shaw’s story so important in enabling her to advocate for her son that she wants now to be, like Ian Shaw’s mother, in a position to help others, which means making her story public and ensuring their family story (and name) is known.

Why Robert Bourn’s story is “of proper public interest”

The phrase “of proper public interest” is taken from an earlier Court of Protection case, PH v Brighton and Hove City Council [2021] EWCOP 63 (§29(i)).  That case, heard by HHJ Carolyn Hilder, concerned a (successful) application from the BBC to name Tony Hickmott, an autistic man with learning disabilities sectioned under the Mental Health Act in 2001 and detained in a specialist hospital for almost 20 years.  In that case, the applicants made the case that: “The wider public interest in highlighting Mr Hickmott’s case as an example of an endemic issue concerning inappropriate confinement of individuals with learning disabilities is a matter which needs to be publicly aired” (§18 PH v Brighton and Hove City Council [2021] EWCOP 63).  

Likewise, in this case, Robert Bourn’s story is an example of “endemic issues” that arise in relation to medical treatment decisions for people with learning disabilities, and this is “a matter which needs to be publicly aired”.  

There was no debate in court about this – the judge readily accepted (as did all parties) the public importance of Robert Bourn’s story and the need for it to be told. It seemed also to be accepted by all parties that identification of Robert and his family was necessary for the story to be told in ways that would most engage public interest.

My own research turned up the Confidential Inquiry into Premature Deaths of People with Learning Disabilities (CIPOLD) which found that nearly a quarter (22%) of people with intellectual disabilities were younger than 50 years when they died, compared with about 9% of the general population. 

Some of these deaths are described as “avoidable”, i.e. they wouldn’t have happened with good quality health care.  Avoidable deaths were much more common in people with intellectual disabilities (37%) than in the general population of England and Wales (13%).  

According to  Professor Irene Tuffrey-Wijne, author of “Living with Learning Disabilities: Dying with Cancer” there are “unconscious biases” which lead to health inequalities faced by people with learning disabilities. 

She says of Ian Shaw: “I’m sure doctors and nurses all want the best for their patients. Nobody will have looked at Ian and thought, consciously, ‘What’s the point of this man’s life? Letting him slip away is the kindest thing, surely.’ But there are undoubtedly unconscious biases, putting people with learning disabilities at risk.”

Her research finds: “delays and omissions of care, in particular delays and omissions of basic nursing care (for example, unmet nutrition needs) and delays and omissions of medical treatment (for example, treatment not given because of perceived inability to cope with or consent to treatment or because of staff assumptions about the patient’s quality of life).” (p. xvi, Scientific Summary)

The CIPOLD found that contributory factors to premature deaths included problems in advance care planning, failings in adherence to the Mental Capacity Act, living in inappropriate accommodation, failure to adjust care as needs changed and carers not feeling listened to. 

Two of the CIPOLD’s important recommendations are:  

7. People with learning disabilities to have access to the same investigations and treatments as anyone else, but acknowledging and accommodating that they may need to be delivered differently to achieve the same outcome.


15. All decisions that a person with learning disabilities is to receive palliative care only should be supported by the framework of the mental capacity act and the person referred to a specialist palliative care team.

CIPOLD

The Open Justice Court of Protection Project has reported on several other cases concerning serious medical treatment for learning disabled people. We covered the case of the teenager, William Verden,  who was initially not offered a kidney transplant, but received one after his mother advocated for him, leading to a Court of Protection ruling that a kidney transplant was in his best interests.  He is said to be doing well (“Autistic kidney-row teen’s transplant ‘a success’”). Our blogs include: “ Is a kidney transplant in his best interests?” and  “Listen to him, listen to his mother: The William Verden hearing”.  

There can be (as Dr Julian Wilson says) “challenges” in providing medical treatment to people who cannot understand what is happening or find it impossible to “co-operate” with medical procedures.  

There are some people with learning disabilities who communicate their resistance to  treatment, showing or saying that they do not want it (e.g. “Surgery for scoliosis when P indicates he doesn’t want it”; “Medical treatment, undue influence and delayed puberty: A baffling case“; “Capacity and elective caesarean”).  When we’re deemed to have capacity to make a medical decision – i.e. we can understand, retain and weigh the information relevant to the decision that needs to be made –  we can of course refuse treatment (even if we die as a result).  But when someone refuses treatment without understanding how it would help them, or what the consequences would be of not having treatment, then they are deemed not to have capacity to make the decision for themselves and that’s when others must make ‘best interests’ decisions on their behalf.  When these cases come to court, the judge often rules that treatment is in the person’s best interests, despite their expressed resistance to it.  (Similar issues arise in relation to people with mental health issues, e.g. “Endoscopic dilatation against P’s wishes?”)

In sum, Robert Bourn’s story is important because it has resonances with the stories of many other people with learning disabilities (and some with mental health issues) who, for a variety of reasons, do not receive the same high quality health care offered to other people. Robert Bourn, Ian Shaw, and William Verden are three people whose stories exemplify (as the BBC says) “an important public interest concern”.  

Use of their names and identities brings their stories to life in a way anonymised versions could not.  

The hearing on 16th September 2022

At the beginning of the hearing Mr Justice Francis, who had read the parties’ Position Statements and was (broadly) aware of what the BBC was requesting, said that he understood there was “a large measure of agreement” between the parties and commented that the application was “not that remarkable or dramatic anyway”.  

He was asked to consider whether the Transparency Order should or should not permit: (1) naming Robert Bourn and his family; (2) Naming the treating clinicians; and (3) Naming the hospital.

1. Naming Robert Bourn and his family

 It was pretty clear from the outset that the judge would give permission for the Bourn family to be named, as the BBC was requesting.  Nobody opposed this and the judge signalled early on that he understood the public interest in the case and was inclined to vary the Transparency Order in part because “this is a case with a happy outcome… it would be a very different case if we had a patient who was deteriorating or even dying …  this is not a case where publicity is likely to jeopardise any ongoing treatment”.

The judge also acknowledged that Sharon Bourn had been assisted by Ian Shaw’s story (“she was in contact with Shaw’s family and it was able to help her… and Mrs Bourn would wish to be able to help others?”) and that “the parties reached agreement about treatment, and if agreement had been reached without coming to court there would have been no reporting restriction”. 

These seemed salient considerations to him – whereas the BBC’s claim that “respect for Article 8 rights is baked into the editorial process” and the production team “will follow a ‘duty of care’ procedure” did not seem particularly to reassure him: “I can’t sit here and say ‘oh well, with the BBC it’s bound to be alright’, can I![4]

2. Naming the treating clinicians

On the day of this hearing, the  names of the treating clinicians were already publicly available, and had been for some time.  The previous judge,  Mrs Justice Lieven had included them in her judgment back in January 2021 and the judgment was on public websites such as BAILII.   That judgment still appears on BAILLII  (The Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bourn (Rev1) [2021] EWCOP 11) but it’s now redacted and the names of the treating clinicians removed: they’re now Dr X and Dr Y.  

It’s pretty unusual for judges to make orders that information already in the public domain should be removed, but I have experienced this in an earlier case.  When I successfully challenged a Transparency Order preventing me from referring to P’s nationality, the judge – in an effort to avoid jigsaw identification – ordered that other information about P (specifically, the number of children he had fathered) should be redacted from a Court of Appeal judgment that had already be published on a public website (see He’s Polish: Challenging reporting restrictions).

It was counsel for the Trust who argued for the new restriction on naming the treating clinicians.  The BBC was not applying to name them and I think counsel for the mother was neutral on the matter.

In making a decision about naming clinicians, Mr Justice Francis, the judge in this case, referred explicitly to the fact that he had been the judge in the case of Charlie Gard – a sick baby whose life-support was withdrawn in Great Ormond Street Hospital.  This case  was reported very widely internationally (e.g. in this BBC report – and here’s the judgment).  

Francis J referred several times to the Charlie Gard case (sometimes by name, sometimes obliquely) in the context of abuse and “vilification” of clinicians.  It had clearly affected him deeply.  

Media reports at the time make clear how badly clinicians were affected by public hostility to them.  Under the headline “Charlie Gard: Death threats sent to Great Ormond Street staff”, the BBC reports that police had been called after families were “harassed” and “unacceptable behaviour” was recorded in the hospital.  The hospital was exposed to a “shocking and disgraceful tide of hostility and disturbance,” and “thousands of abusive messages have been sent to doctors and nurses whose life’s work is to care for sick children”.

In his judgment on the Charlie Gard case, Mr Justice Francis wrote: 

It has sadly come in to the public domain recently that some of the staff at that hospital have been subjected to serious threats and abuse. I made it clear before, and make it clear now, that I am completely satisfied that these fine parents have nothing whatever to do with those threats. Each and every man and woman working at Great Ormond Street Hospital is dedicated to the treatment of sick, very often desperately sick, children. These surgeons, physicians, doctors, nurses, ancillary staff, technicians and all others working there are dedicated to the pursuit of excellence in the treatment of sick children and it is in my judgment a disgrace that they should have been subjected to any form of abuse whatsoever and it is to be condemned.”

(Francis J, §16 Charlie Gard judgment). 

It seemed clear to me that the Charlie Gard case influenced his approach to today’s decisions.

He asked several times if the BBC was asking to name clinicians and was reassured that they were not – albeit (as counsel for the BBC reiterated) “the BBC wishes to put on record it doesn’t accept that responsible reporting would necessarily lead to violation of clinicians’ Art. 8 rights.  It accepts that sometimes this can be so, in particular cases where treatment issues raise strong feelings, but not as a general principle”.  

In response to this point, Francis J immediately referred to “hideous recent cases where people have been camping outside hospitals, chanting the names of nurses and consultants and making their lives an absolute misery”.  He said that “people who work for the NHS are entitled to be protected from that”.  Counsel for the BBC said (again) that they accepted this in particular cases, “but not as a general principle” and (again) that they were not seeking to name the Consultant Oncologist or Critical Care Consultant responsible for Robert Bourn’s treatment.

Counsel for Robert Bourn (Parishil Patel KC) raised the question of whether the clinicians could be named (notwithstanding the fact that the BBC was not actually seeking to name them) on the grounds that in fact the previous judicial decision (by Lieven J) had been that there was no reason to prevent anyone from naming them – although due to an oversight from counsel, this had not been reflected in a revised Transparency Order:  “You can go behind the judgment and keep the Transparency Order, even though that wasn’t the intention of the judge. Maybe that is the course you wish to take. But I’ve set out in my position statement that it is a matter for the court to determine if there is to be derogation from the open justice principle.”  

In his Position Statement, counsel for Robert Bourn points out that “whilst the BBC do not seek to vary the RRO” (the Reporting Restriction Order) to permit identification of Robert’s treating clinicians, “it is of course a matter for the court to determine whether any rights asserted by the clinicians are strictly necessary as to amount to a derogation of the open justice principle“. The Position Statement continues:

The court will have in mind that usually the restriction of reporting on their [the clinicians’] identity in any order is to ensure that P’s identity (and right to privacy) is not compromised. That is not a proper basis now upon which to continue the restriction (even if it were the case previously). Further, there does not appear to be any separate article 8 basis that would give rise to the need for continued restriction: see Charlie Gard [2017] EWHC 1909 and Alfie Evans [2018] EWCA Civ. 805.”

(§22 Position Statement on behalf of Robert Bourn)

The judge’s response was: “I have to make sure those working in these very difficult cases don’t face vilification in the media for doing their job”.

Parishil Patel KC said that this was of course accepted in cases such as Charlie Gard and Alfie Evans[5], but “the risk of harm must be based on some pretty clear evidence”.  No evidence of risk of harm had been presented to the court in this case.

Counsel for the Trust, Emma Sutton of Serjeants’ Inn claimed that naming clinicians “on the facts now” – given the “different landscape” of the Panorama programme (not anticipated at the time Lieven J made her judgment)  – would “inevitably cause them huge problems”.  

So you’re saying it’s obvious there’s a risk?” asked the judge.  “Absolutely”, she replied. “Whilst it is accepted that the BBC documentary does not set about to vilify clinicians, and is about open debate regarding whether those with learning disabilities are treated as second class citizens –the real risk is that it will become about specific clinicians, and that’s inappropriate, and not the objective which the BBC set out to achieve ”.  

She read out parts of a judgment in another case (Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2021] EWHC 1699 (Fam)) heard by the President of the Family Court.  In Abbasi, the parents of two children who had died (while the case was under the jurisdiction of the High Court) sought permission to be released from the reporting restriction orders, so that they could speak publicly about their experiences and, in doing so, be free to identify NHS staff who were involved in caring for their children.  The applications were refused.  The trust had submitted witness statements about the risk of harm caused if the reporting restriction orders were to be relaxed.  Points they made, read out and commented on by Emma Sutton for the Trust (the same Trust, Newcastle upon Tyne Hospitals NHS Foundation Trust) included:

  • Naming staff will be detrimental to the hospital staff and the hospital’s ability to deliver care to children;
  • Concern as to the invasion of privacy into the private lives of staff;
  • Experience from other cases demonstrates that, once named, staff may become vulnerable to physical attacks and/or personal attacks in social or mainstream media;
  • The experience of previous cases and wider research indicates that publicity is likely to have an adverse impact on the mental health and wellbeing of staff;
  • The two hospitals concerned are busy regional/national centres for paediatric care and both are teaching hospitals. Any step which may significantly destabilise the staff is likely to have a detrimental impact upon the many children and families who depend on these hospitals to provide care for very sick children;

These (she said) “are generic points accepted by the President in relation to the same Trust” and they readily translate from paediatric care (in Abbasi)  to adult care (in relation to Robert Bourn).  

Counsel for the BBC repeated that the BBC was not seeking to name the treating clinicians.  

The judge called a short recess to read the Abbasi judgment.

3. Naming the Hospital

The only significant disagreement between the parties was about naming the hospital at which Robert Bourn was treated. The BBC wanted to name the hospital.  The Trust opposed it, on the grounds that naming the hospital could lead to identification of the individual clinicians involved in Robert’s care.

Parishil Patel KC reported that there were 27 clinicians and 17 medical oncologists in the Trust meaning “there is no risk of identifying particular clinicians if the hospital is named”. The judge asked how many oncologists were based in the particular hospital in which Robert Bourn was treated (given there are apparently 16 hospitals in the Trust) and nobody knew.

Judge: “I don’t want to be pedantic – well, perhaps it’s the job of the judge to be pedantic, but I don’t want to be difficult about this.  Everyone agrees the Trust can be named, but the BBC wants to name the hospital.  If there were only one treating clinician in that hospital you probably wouldn’t support me naming the hospital, because it would be naming the clinician, but if there were 17 it might be different. So, I need to know how many oncologists there are at that hospital, don’t I.”  

The judge suggested someone could “make a call right now” to find out and suspended the hearing: “as soon as you know the answer, get me back in”.

Ten minutes later, after recalling the judge, counsel for the Trust reported a number which meant (she said) “a real risk of jigsaw identification”.

Counsel for the BBC said “I still maintain it would take a very determined member of the public to locate the person and then to take action against them.”

Believe me”, said the judge, “there are plenty of very determined people out there.” He made comparison (again) to cases he was familiar with in the Family Division (including cases where people had sought to uncover the names of sexual abusers).  Given that the information is “publicly available on websites” and “it’s not about rummaging about in dark corridors”, he thought it “doesn’t take much of a genius” to identify the clinicians.  

There was some backward and forward on this: the websites don’t specify the oncologists’ specialities; nonetheless, said Emma Sutton, “my instructing solicitors were able very easily to identify them on the website”; could a phone call to the hospital uncover the information?; if Panorama indicated the gender of the consultants (as opposed to deploying “the grammatically irritating use of ‘they’” [Judge]) that would add to their identifiability… and so on.  

Parishil Patel KC reiterated that there was no evidence of risk to the clinicians to counter the Article 10 right to freedom of information (for the family, for the press, and for the public).

Judge: I don’t know what the programme is going to say. I infer there’s going to be some criticism, and that means I’ve got to consider whether the identity of the treating clinicians should be protected.

Counsel:  To put it a different way: is it necessary in order to avoid the risk of a person being targeted to restrict his or her identity. You have to ask if it’s strictly necessary.

Eventually the judge came up with what he described as a “compromise solution” – to make the more restrictive order (that the hospital can’t be named) at the moment, “and if, when the programme is more or less put together, they feel it just doesn’t work, I give them liberty to apply for a variation and at that later stage view the programme and it might be possible for me, or Mrs Justice Lieven, to vary the order”. 

Claire Overman (for the BBC) took instruction on that point (her client(s) from the BBC were seated in court behind her).  The subsequent exchange seemed to me quite awkward:

Overman: My client suggests perhaps the way forward is to include the hospital in the reporting restrictions, but with permission to the BBC to apply to vary that in future, but not with that conditional on showing the programme.

Judge:  You mean I might put it on You Tube?

Overman:  No.  We just think editorially that’s difficult.

Judge: We do have the ability to keep secrets up here on the bench. 

As Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457, 474 § 59, “judges are not newspaper editors” – nor are they documentary editors: the threat to journalistic independence posed by revealing a programme to a judge in advance of broadcasting it is clearly (as I heard it) the red flag issue for the BBC, which the judge in this exchange seemed not to grasp, being oriented instead to the need to keep the unfinished programme ‘secret’. 

Judgment

The hearing ended with a short oral judgment.

Oddly (to me) the judge began by saying that Robert Bourn’s story was “a good news story – he has recovered from his cancer: that’s the overwhelming part of this case we should all be concentrating on”.  I was a bit surprised to be told what aspect of the case I should be concentrating on – and I don’t suppose the BBC (or the family) much appreciated this, since the Panorama programme is obviously not going to concentrate on telling a heart-warming recovery story about Robert, but rather (as the BBC submission makes clear) to use his story as a case study to explore inequalities in health care.

The judge then referred to the Transparency Order made by Lieven J as being “in the usual terms” – by which I took him to mean, based on the template available on the judiciary website here.  In fact, this template refers explicitly to the identity of P and of P’s family members,  but not to clinicians’ identities, as the subject matter of the injunction.  I assume that the draft order presented to Lieven J at the last hearing did include clinicians (because she specifically said that it should not),  in which case the draft order was not in fact “in the usual terms”, and since it was not subsequently amended in line with Lieven J’s decision that clinicians can be identified, there no extant Transparency Order “in the usual terms”.

The judge then said that Lieven J “broke her order herself by referring to the names of the treating clinicians in her judgment”.  I believe this to be factually incorrect.  I was at the previous hearing and heard Lieven J say that she was “not inclined to anonymise the treating clinicians” and was “very unconvinced” that this was necessary. She did not break her own order.  She never made an order restricting the publication of clinicians’ names.

After the judgment, when counsel for the Trust was discussing the need to remove Lieven J’s judgment from public websites and amend it by redacting the clinicians’ names in the light of the decision the judge had just made, Prishil Patel KC alerted the judge to his error.  He said of Lieven J, “She didn’t make a mistake. She intended to name the clinicians”. The judge accepted this, remarking “You forgot to amend the TO” – which is, I believe, the accurate version.  

So, this point did get cleared up in the end, but only, it seems, after the judgement, when the judge accepted the correction.   During the course of the hearing, the judge seemed not to be fully aware of the fact that he was inclining towards a decision to impose more restrictive reporting requirements (in relation to the clinicians) than those decided on by Lieven J.

The judicial decisions were as follows:

1. Decision on naming the family

The judge accepted that “to give the full picture to the viewing public they [the BBC] need to personalise it” and decided in favour of  “Robert’s right to full unrestricted reporting”, which the family wholly support, removing the prohibition (imposed by Lieven J) on identification of Robert Bourn and his family.

2.  Decision on naming the clinicians

My impression, right from the beginning of the hearing, was that the judge was never going to allow the clinicians to be named. As the BBC was not asking to name the clinicians, this wasn’t specifically addressed in the judgment, but the judge’s view of the absolute necessity of protecting clinicians’ identity was apparent when he addressed the matter of naming the hospital at which Robert was treated.

3.  Decision on naming the hospital

The decision was that the hospital could not be named because it might lead to identification of the treating clinicians.

In accounting for this decision, the judge returned again to the case of Charlie Gard, referring to “the appalling conduct” of some members of the public in that case (and in the Alfie Evans case).  He commented “A number of my judicial colleagues were surprised when I restricted the identity of the clinicians treating Charlie Gard, because it was not common practice to do that then.  I’m not saying ‘well done me!’, but what a good thing that order was made.  It’s hard to know how the public is going to react….” (Judge).

He then relied on the Abbasi case (referred to him by Emma Sutton for the Trust) and read out two paragraphs from the judgment:

The manner in which social media may now be deployed to name and pillory an individual is well established and the experience of the clinicians treating child patients in cases which achieve publicity, such as those of Charlie Gard and Alfie Evans, demonstrate the highly adverse impact becoming the focus of a media storm may have on treating clinicians. The need for openness and transparency in these difficult, important and, often, controversial cases is critical but can, in the judgment of the court, be more than adequately met through the court’s judgments without the need for identifying those who have cared for M with devotion since September 2019.” 

(§62 Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2021] EWHC 1699 (Fam))

Why should the law tolerate and support a situation in which conscientious and caring professionals, who have not been found to be at fault in any manner, are at risk of harassment and vilification simply for doing their job? In my view the law should not do so, and it is wrong that the law should require those for whom the protection of anonymity is sought in a case such as this to have to establish ‘compelling reasons’ before the court can provide that protection.”

 (§96 Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2021] EWHC 1699 (Fam))

With regard to a “possible compromise”, the judge reiterated: “If, when the programme is in the latter stages of being concluded, those with editorial control say this simply doesn’t work without naming the hospital, I’m not ruling out the possibility that I would – or Mrs Justice Lieven would, if it came to her – amend the order to permit naming the hospital.  So, I invite those drafting the order to include that I give the applicant liberty to apply to vary the Transparency Order”. 

The judge ended the hearing by thanking Sharon Bourn for coming to court, and saying that he’d watch the Panorama programme when it is aired.

Reflections

I appreciate that, as an observer, I don’t have access to all the information that was taken into account by the court.  Although I have the Position Statements for all three parties (thank you to counsel for sending them), there’s a lot more information in the court bundle.

Nonetheless, the judge seemed to me to take a relatively cursory and ‘light touch’ approach to transparency issues, certainly compared with other hearings I’ve observed concerned with whether identification of P and/or hospitals and/or treating clinicians should be permitted or not. I have to say I expected more in-depth analysis, evaluation and balancing of the Art 8 and Art 10 issues involved in this case.

The judge’s decision to permit naming of family seemed pretty much a fait accompli right from the beginning of the hearing, presaged by his description of the request as “not that remarkable or dramatic anyway”.  It did strike me that he gave minimal consideration to what exactly Robert’s role would be in the Panorama programme (presumably he’ll be filmed, though I don’t think this was explicitly stated?) and to the effect on Robert.  

 A friend I discussed this with expressed serious concern about the invasion of Robert’s privacy: “if it were me” he said “I wouldn’t want to appear in a programme about my testicles”.  

The judge did check that “if Robert had capacity to consent to being named, he would do so?” (to which counsel for the BBC replied: “That’s the evidence of his mother, yes”). But as  I’ve said several times in the context of disputes about COVID-19 vaccination, I’m inclined to be sceptical of counter-factual claims about what a never-capacitous P would or would not decide if they did have capacity. Their putative wishes have a remarkable tendency to align with whatever position is taken by the person articulating them. (Check out the section on  “Refusing Covid vaccination for a person who has never had capacity to refuse for themselves” in “The politics of the pandemic in the Court of Protection”)

The relatively cursory consideration of Robert’s wishes and feelings about his forthcoming media appearance (and any details as to what it will involve) contrasts markedly with other hearings I’ve observed in which P was identified by name (e.g. “Waiving anonymity to promote care home visiting rights: Michelle Davies Part 1” and the William Verden case).

The question of whether or not the clinicians could be identified seemed to me to be driven by the judge’s evident concern to protect them from possible “vilification” without any evidence at all that this was a realistic risk.  I wondered why the treating clinicians had not submitted any evidence about the perceived risks to them of being named: in the absence of that, counsel for the Trust had to resort to concerns raised by different clinicians involved in an earlier case involving young children, which I don’t consider comparable.

The judge’s reiterated concerns with the (undoubtedly awful) experiences of clinicians in relation to Charlie Gard and Alfie Evans did not seem relevant to this particular, and very different, case.  The pro-life groups that orchestrated media campaigns and whipped up public outrage by using inflammatory language about “murder” in these two cases (and many others involving treatment withdrawal from babies and young children) have not been involved in Robert Bourn’s case.  

A better comparison is with the case of William Verden – who was also initially refused life-saving medical treatment (a kidney transplant) but subsequently received one after the Court of Protection ruled it was in his best interests to do so – and is apparently recovering well. Despite the fact that the hospital is named (the Royal Manchester Children’s Hospital) in media outlets, there have been no reports of “vilification” of staff, nor any witch hunt against those responsible for William’s care.

The judge’s remark to counsel for the BBC that he was “hardly likely to give you more than you’re asking for” (i.e. permission to name the clinicians, since the BBC were asking only to name the hospital) seemed to me problematic.  First, because  the previous judge had intended that the clinicians should be named and named them in her judgment. A decision to prevent naming of the clinicians reversed the previous judgment – admittedly (as counsel for the Trust said) in the new context of the Panorama programme and the huge exposure that entails: I don’t think the fact that he was reversing Lieven’s decision was fully addressed or the reasons for the divergent decisions properly explored.  Second, because there is something unattractive to me, as an advocate of open justice, in the proposition that a judge would limit his consideration of transparency to matters on which he is specifically petitioned, thereby permitting the least possible information to enter the public domain. If transparency is (as the Vice President says)  “central to the philosophy of the Court of Protection” then judges should surely take the initiative (as did Lieven J) in considering whether it is really necessary to restrict the publication of particular information.

I recognise the very significant concerns expressed by Francis J on the basis of his experience in the Charlie Gard case.  I think a different judge might well have made a different decision – or at least arrived at the same decision in a different way, giving more explicit consideration to Article 10 rights of freedom of information.  I was surprised –  and a bit disappointed – not so much with the outcomes of this hearing , but with the process by which those outcomes were reached. Neither the decision to allow the family to be named (at the cost of Robert’s right to privacy), nor the decision to forbid publication of the names of the treating clinicians (at the cost of the public’s right to know who they were) seem – to my mind – to have been sufficiently evidenced or robustly argued. I suspect the BBC will be back in court asking for a variation to permit naming the hospital.

Watching this hearing was a salutary experience, graphically illustrating both the challenges of transparency, and the importance of  “making disabled lives visible” both within and beyond the Court of Protection. 

Postscript: I’ve had to delay publication of this blog post for two days while waiting for Lieven J’s judgment naming the clinicians to be removed from public websites and redacted to remove their names.

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


[1] For more information about so-called ‘Transparency Orders’, which are pretty much routine and automatic in the Court of Protection, see my blog post, “Transparency Orders: Reflections from a public observer”.  I have no record of actually ever having received a Transparency Order to cover the hearing on 27th January 2022, but the judge ran through it at the beginning of the hearing, emphasising that we should not identify P, or his family, or where they were living.

[2] To clarify: the BBC did not apply to name the treating clinicians – which was prohibited by the Transparency Order.  However, during the hearing before Lieven J (which I attended) Lieven J had in fact given permission for them to be named, and subsequently named them herself in her published judgment.  In court, she said she was “not inclined to anonymise the treating clinicians” and was “very unconvinced” that this was necessary (quoted from my contemporaneous notes on 27th January 2021). In the words of counsel for Sharon Bourn,  “the intention of the judge was that the clinicians should be named, and that the hospital should be named”.  However, a mistake was made (for which counsel took responsibility): the Transparency Order was not amended so as to reflect the judge’s decision.

[3] The url links inserted into quotations are mine and do not appear in the original documents.

[4] The judge could also reasonably have pointed out (but did not) that varying the Transparency Order to permit publication of the name of Robert Bourn and his family as requested by the BBC would mean that not just the BBC but anyone else who’d observed the hearings could now refer to the family by name – including (obviously) me. 

[5] On Alfie Evans: “….we cannot conclude this judgment without recording our dismay and concern at what we have been told have been the consequences of what has taken place at the hospital in recent days. These matters have not been the subject of any court determination. However, if true they are alarming. We were told that some members of the hospital staff could not get to the hospital because of road blockages; that staff, patients and family members were upset and frightened by what was taking place; that a group supporting the parents went into the Paediatric Intensive Care Unit to the concern of staff. If these events have taken place it is not difficult to see how they would impact negatively on the treatment being provided to patients at the hospital” (from §66 Alfie Evans judgment in the Court of Appeal)

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