Conditions on contact between mother and son: Missing P’s voice

By Celia Kitzinger, 9th June 2022

This was an urgent hearing to consider the issue of contact between Mrs M and her son.

Until the end of last year, Mrs M, who is in her eighties and has dementia, lived with her son at his home. Her son was her main carer.

She’s now living in a care home, and the local authority has made an application to place conditions on her contact with her son.  They want an order that he cannot remove her from the care home for any reason, and that his visits to the care home should be supervised by staff.

Clearly, something has gone very badly wrong.

The hearing

I watched this hearing (COP 1393210T before District Judge Charnock-Neal in Newcastle) on 27th May 2022 via MS Teams.

I had no idea what it would be about: it was listed (unusually for Newcastle) without any mention of the issues before the court[1].

from CourtServe

I learnt from the very helpful opening summary by Adrian Francis of Deans Court Chambers, representing the respondent local authority, that the case had begun as a s.21A appeal, with Mrs M as the applicant, represented by Jonathan Barker of The Richmond Partnership, via her paid Relevant Person’s Representative (RPR).   Mrs M objects to being detained in the care home and deprived of her liberty. This was supposed to be the first directions hearing to address that matter.

But instead, just a few days before this hearing, Durham County Council, the local authority that is depriving Mrs M of her liberty, made an urgent application seeking an order that “Mrs M is not removed from the care home for contact or any other reason by her son, and that their visits within the care home are supervised”.  

Mrs M was not in court, nor was there any mention during the hearing of whether she could or should have been.  

The son whose visits were the subject of the order (I’ll call him “Ali”)  was present, but not as a party to the case.  His two brothers were there too and all three were invited to address the court.

Some professionals involved in Mrs M’s care, including her social worker, were also visible on screen, but did not speak.

Although the respondent local authority lawyer (Adrian Francis) played a full role in the hearing, Jonathan Barker (for Mrs M) did not.  

If the hearing had been proceeding as a s.21A case, Jonathan Barker would have been representing Mrs M via her paid Relevant Person’s Representative (RPR).  But in the context of the new application concerning contact, he said he could not do this.  He made it clear from the outset that “the limits on the steps that the paid RPR might properly take on behalf of [Mrs M] are such that the paid RPR cannot act as Litigation Friend for the case as a whole or even in relation to potentially contested applications such as this”.  He said he could “do little more than adopt a neutral stance in relation to this application, pending the appointment of a Litigation Friend for Mrs M” (i.e. the Official Solicitor). However, he did point out (both in the written position statement and orally) that Mrs M’s wishes and feelings on the subject of contact are largely unknown and should rapidly be elicited and that her sons had not had any opportunity to respond formally to the evidence from the local authority. He also asked the court to issue the appropriate directions for the further conduct of the s.21A application, which was the only area in which he could act for Mrs M.

So,  Mrs M was effectively unrepresented in this hearing about the contact she could have with her son.

I was concerned that the local authority’s application was one that would interfere with Mrs M’s Article 8 right to respect for her private and family life (and of course the right of her son), but Article 8 was not raised in the hearing, nor was it mentioned in either of the position statements I was sent. 

Nor were Mrs M’s wishes and feelings about contact with her son much mentioned by the local authority – except for the claim that she was (or might be) upset by his behaviour – for which no evidence was supplied during the course of the hearing.

Overall, this was one of the very few hearings I’ve observed where I felt that the protected person at the centre of the case lacked a voice.  I got very little sense of Mrs M as a person, or what her views are about visits with her son.  

What I did learn about Mrs M came largely from Ali and his brothers.  Despite apparent rifts in the family that meant the brothers did not have much to do with each other (and one lives overseas), they came across as united in their love and concern for their mother, and their unanimous focus was on releasing her from the “prison” (as Ali called it) of the care home. 

Counsel for the local authority (Adrian Francis)

According to counsel for the local authority, the problem with continued contact between Mrs M and her son Ali, is that Ali has “exhibited challenging behaviour with professionals”, which is said to have “upset his Mum[2].

Ali strongly objects to his mother being deprived of her liberty and he objects to her receiving the prescribed medication, the antipsychotic risperidone.  He thinks this may be causing her harm, and has repeatedly suggested a “medication holiday” to test that out.

He first raised these objections at the end of 2021, when Mrs M was hospitalised under s.2 Mental Health Act 1983: she was said to be self-neglecting and to have delusional and persecutory beliefs. According to the local authority, “it is reported that [Mrs M’s] home conditions posed a significant risk to her and that she had taken to keeping a knife by her side, was hoarding and barricading herself into her home”.  Since she was “non-compliant at the point of admission”, she was subsequently admitted to hospital following the execution of a warrant for a Mental Health Act 1983 assessment.

Risperidone alleviated her symptoms, says Adrian Francis, and she returned home.  But once she got home, she stopped taking her medication and “failed … to co-operate with the package of care”.  She was recalled to hospital after only 4 days and on 16th March 2022, a Mental Health Tribunal upheld Mrs M’s detention under s.3 Mental Health Act 1983.  At some point (I’m not sure when) she was discharged from hospital to the care home where she now lives.

The local authority has a raft of complaints about Ali’s “inappropriate” behaviour.  In particular, he “has a history of persuading her not to take her prescribed medications”.  

The local authority filed evidence from Mrs M’s social worker explaining why it’s necessary to restrict her contact with her son to supervised contact only within the care home or its  garden. 

On 19th May 2022 (says the social worker, quoted by the local authority), Ali did not return Mrs M to the care home until 8.45pm, meaning she was not able to take her medication at the correct time. 

Ali took this mother to the local GP surgery and refused to leave until she’d been seen by a GP (says the local authority). There was also evidence about his behaviour in a statement from the GP surgery. He had “barricaded the doors open” and was “shouting in the reception area, in front of P and other patients, threatening to sue the surgery and saying that P has been ‘left to rot’ in the care home”. 

The local authority alleges that that Ali is telling his mother not to take risperidone and that her medication makes her breathless. After speaking with Ali, Mrs M has sometimes “secreted her medication” instead of swallowing it, “which could lead to her becoming acutely unwell”.

The local authority believes that “witnessing her son’s inappropriate behaviour” is or could be upsetting for Mrs M. They say that if Ali were to be permitted to continue to take his mother “into the community for contact visits”, it would lead to further disruption to her medication schedule.  Overall, his behaviour is putting his mother’s placement – where (says counsel for the local authority) she is “generally settled” – at risk.  

The local authority is not asking for a restriction on the number of visits (though they would need to be within normal visiting hours) but they want those visits to be supervised by a member of staff and to take place only within the care home or its garden.

Mrs M’s son, Ali

According to Ali, before the intervention of the state into their lives, and his mother’s compulsory treatment under the Mental Health Act, first in hospital and now in the care home, she had been “a fit, healthy, independent 85-year-old woman”.  But now “she’s in an absolutely horrific state”.  

He described, in a torrent of words and with obvious distress, how she had contracted COVID-19 in the hospital and was “battling for her life”. Now, in the care home, “the care home manager alludes to her being happy and taking part in things – she is not!  She’s clinically depressed.  She wants to be at home, in the garden. She’s fed up of being in prison.”  

Ali pleaded with the judge to consider Extra Care housing which had been “promised at the tribunal”.  

A previous decision that Mrs M should live in Extra Care housing was confirmed in the position statement from the local authority which says that:

 “whilst a best interest decision has in the past been made that she can reside in Extra Care housing […] the local authority’s up to date position is that given recent challenging behaviours by [Ali] and his undue influence upon [Mrs M] that [Mrs M] would not be safe in a less restrictive placement.  Hence at the present time the local authority considers that it is in her best interests to remain in her current placement and would oppose any move to a less restrictive setting.” (Local Authority Position Statement)

Ali denies persuading his mother not to take risperidone.  “At no stage did I tell her not to take medication – she did this of her own volition, because she’s an intelligent woman.  She has lots of capacity”.

He disputes the local authority’s version of what happened at the GP surgery, which he says is “based on false and misleading information”.  “There were no raised voices and no threats”, he says – and he wasn’t there because he wanted a GP’s appointment for his mother but “to chase up my concern that my mother was having breathing issues and nothing was being done.  She was diagnosed with heart failure less than two weeks ago – she didn’t have that prior to being sectioned.  She has kidney damage now, and she was fine prior to being sectioned. Dr A said she couldn’t rule out it being the drugs”.  Ali says he has health problems of his own and has not been vaccinated against COVID-19: “so I told the receptionist I was keeping the door open  with two small chairs in front of the door to keep an airflow in the reception area. It’s been put down I ‘barricaded the door open’. How do you ‘barricade’ a door OPEN, by the way?”.  He referred to “this nonsense about my behaviour” being “trumped up” and said to the judge, “if it was your mother, you’d be absolutely furiousMy mother is dying in that care home and nobody cares”. 

The judge stemmed the flood of Ali’s speech, and focused him on the specific issue of contact, by asking Ali a series of questions. She established that he normally sees his mother every day, arriving at the care home between 1pm and 2pm and taking his mother out for the afternoon, often until the early evening (about 7pm).  He described what they do together – going to the garden centre, buying plants and then going back to Ali’s house and spending some time in the garden. She sits with the cat on her knee, which she loves.  They watch films “upstairs, on a projector with a massive screen” and then buy fish and chips for supper on the way back to the care home.  Mrs M loves going out with him, says Ali, and is “in a great mood” by the time he takes her back to the care home: “and then next day she is depressed again”. 

Ali says that on the one evening he brought his mother back late – this is the occasion the social worker refers to in her statement as having interfered with Mrs M’s medication– he did so with permission.  “Me and my mother always told nursing staff what time we’d be coming back and that day we said, ‘we’ll be late back tonight – is 9pm alright?’ and they said ‘yes’ and now that is thrown back in our faces.  That’s what we were told and we stuck to it.  There’s lots of different staff and they don’t communicate.  You tell one staff member something at 2pm and when you come back there’s a different staff member and they don’t know what you’ve been told.  The first we heard about this time of return being a problem was yesterday. We never realised before.  This is massively unfair and a typical example of the tactics the family has experienced.  We’ve got solid proof they’ve lied at the tribunals – they’re making my mother suffer.”

The judge intervened a couple of times into this flow of words to try to focus Ali on the matter of contact: “this is useful information about the background to your mother’s care and I will need it in the future but I don’t have time this morning”; “What I’m dealing with today is just the application by the local authority about contact”; and “you will have the opportunity to put all this in a statement later”.   

One last point”, said Ali.  “I have never told my mother not to take her medication, but she shouldn’t be on anti-psychotics – they’re dangerous.  Please let her come back to her family.  Just give her her freedom back. She’s dying. She’s giving up on life.  Seven weeks without my mum getting out will kill her – it will knock her over the edge”.  

The judge then asked court staff to mute Ali.  This is only the second time I’ve seen a judge find it necessary to mute a family member in court.  I understand the time pressures and the need to focus on the matter in hand and I could see Ali’s desperation to get his point across, while the judge struggled to assert her authority, but it is (obviously) unfortunate to arrive at a position where someone’s contribution is closed down in this way. 

The judge then asked each of Ali’s brothers, in turn, for their input.

Second son

Mrs M’s second son (who lives overseas and whose contact with his mother is via frequent telephone calls)  said he agreed 100% with what Ali had said. “He put the case across perfectly and raised lots of valid points.  We’re talking about our mother.  We’ve seen her deterioration since they applied the Mental Health Act – the bottom line is that if you saw how she was before and how she’s deteriorated since going under the Mental Health Act you would cry your eyes out.”  There is, he said, “a massive difference between when she was first sectioned and now”.

He said he’d looked on the Alzheimer’s Society and Mind websites and read that “this is a massive issue today for care homes in the UK, with old people being prescribed anti-psychotics that they don’t need”.

He referred to what has obviously been a breakdown in communication between the professionals and the family – saying that the social worker was “fabricating evidence” and that the information she had provided to the court was “mistruth” or “speculation”.  “We’re not being obstructive or awkward. We’re concerned for our mother.  When we speak out,they classify us as obstructive and awkward”.

The judge asked specifically for his view on the specific issue of Ali’s visits (the focus of today’s hearing).  

If you take those visits away, you will basically destroy her.  Why is nobody concentrating on the positive side of those visits?”

Third son

Like Mrs M’s other two sons, the third son commented on the huge deterioration since Mrs M was removed from Ali’s care.  

He lives in the UK but at some distance from his mother, so his contact with her is mostly via telephone. Before she went into hospital, he says,  she was “solid as a rock” – he described how, in the year before admission, she had got a ladder, gone up into the loft and brought boxes down.  Now, he says, “she slurs her words” and is clearly unwell.  He too reports that she contracted COVID-19 in hospital (“she was on oxygen and everything and nearly died”) and although he’s not sure whether the risperidone is a problem or not (“I don’t know about that”) he’s certain that “there’s something not right somewhere about her medication”.

He refers to some kind of rift between the brothers – “there’s no relationship between me and my brothers – end of story – but I care about my Mum, and Ali should see his mother. He’s local to our Mum. Ali, really, no matter what, should see his Mum.  Ali 100% loves his Mum, no two ways about that“.

Clarifications and ‘interruptions’

The judge clarified what the local authority was asking her to do: “Nobody’s saying ‘no contact between Ali and your mother’.  The local authority is asking the court to put conditions on it, to make arrangements for that contact”. 

When one of the brothers (I think it was the second son) said at this point, “Judge, may I speak?”, I was surprised to hear the judge say: “Again I’ve been interrupted. This is unacceptable and you must allow me to speak or I will mute all of you.  This is not about stopping contact, it’s about whether it should be restricted or conditions put on it”.  

I was surprised because I don’t think the son had intended to ‘interrupt’ or that he intended any disrespect to the judge – rather the reverse, he was asking for permission to speak. This really wasn’t an ‘interruption’ (nor was the previous event the judge had so labelled) unless – as of course judges do! – you have a good grasp of the rules of the courtroom and the way in which speaking turns are organised in this specific context[3]. What I have seen in other courtrooms from other judges is an awareness that family members are not deliberately flouting the rules – they just don’t understand them. I’ve seen judges explain the rules to family members (along the lines of “This is a courtroom and there are rules for who can speak and in what order. So now I’m going to hear from X and then Y and then I will come back to you for anything you want to say”). I’ve also watched judges tolerate these sorts of infringements of court protocol with good grace, while still clearly remaining in control of the proceedings – and I appreciate the skill and expertise involved in being able to do that.  What I saw today is how difficult it is to establish your own authority as a judge in a gracious and confident manner when you have a full list, are obviously under time pressure and you are engaging with voluble family members determined to get across points that are not germane to the issue you need to decide, right now, at this hearing.

I understand that”, said the second son, referring to the judge’s clarification about the issue today being about arrangements for contact – not stopping contact.

Our concern is not just with restriction of contact – it’s type and quality of contact. She doesn’t want to be stuck in the care home.  She lives for going outside.  Taking her to the garden centre, or taking her to the park – that’s what my mother needs.  She needs that kind of stimulation.  Having to stay in the grounds of the care home with a member of staff sitting there supervising is not a natural situation.  She hasn’t got friends there. She’s depressed.  She wants to get outside and experience life with her son. If you close that off completely, that’s a horrendous thing for my mother – and I believe that will have a negative effect on her.”  (Second son)

Ali (who had been unmuted by this point) leapt in to support his brother’s observation.  “She’s on anti-depressants and could not take being confined, imprisoned, taken away from her natural life”.  He then launched into a series of other allegations and concerns.  He said the care home manager had “threatened” his mother, saying “’if you don’t take your medications, I’ll send you back to the mental health ward’; ‘if you don’t take your medications I won’t let you out.’ She can’t do that!”.  He said he’d asked for CCTV footage from the GP surgery which “will vindicate me completely”.  He said that the family was “not getting believed and professionals are believed. But professionals do lie – look at that policeman who’s been accused of raping women”.  

The judge intervened: “You will do me the respect, please, of allowing me to give my decision”. 

The judge’s decision

The judge outlined what the case was about and the submissions she had heard, the fact that three of Mrs M’s sons had addressed the court, and what they had said.

She said that she’d read a capacity assessment which makes it clear that Ms M has “health difficulties, both mental and physical” and that she found there was reason to believe, on an interim basis, that Mrs M lacks capacity to make decisions about contact with her son.  This means that the court can make a best interests decision about contact.

The judge said: “I make no order concerning contact between [Ali] and his mother to restrict him spending time with her, but I do put conditions on where that takes place.  That condition is that contact will take place in the care home, or in the care home garden, or in the community, provided that it is at all times supervised by a member of staff from the care home, a social worker, or another member of the local authority. This is to ensure, in [Mrs M’s] best interests, that she takes her medication on time, that her son or anyone else, does not exert influence over her to not take her medication, and that she’s not exposed to behaviour that may upset her.”

The judge said she had independent evidence from the GP’s staff that Ali’s behaviour was experienced by them as “disruptive”.  

I understand that emotions run high in families. I understand the motivation is [Mrs M’s] best interests. But I cannot allow her to be emotionally upset or cause harm to her mental health by any repeat of that type of behaviour. So, I am putting that restriction on contact.  This is a temporary restriction until the next hearing.”

She then addressed the sons to give some brief information to the sons about what they should do if they wanted to become parties to the proceedings, and explained that (parties or not) they could send written statements to the court (e.g., concerning “background about your mother, what you think would be good for her in the future, what your concerns are for her welfare”). 

She also explained to them the other arrangements she was making in the order: a s.49 order to assess Mrs M’s capacity, inviting the Official Solicitor to take on the role of litigation friend for Mrs M, provision for the social worker to provide a further report about options for Mrs M’s residence and care in future, disclosure of care records, and a schedule of dates by which each is needed with provision for the three sons to respond to the information.

The next hearing (to be listed for two hours, by MS Teams) is on Friday 29th July 2022 at 2.00 pm.

Comment

This was a painful hearing to watch, and must have been painful for some of the people involved, including of course Mrs M’s sons, and also the social worker who was the subject of some of their allegations, who sat silently listening.  (At one point, one of the sons asked why she was not responding to the claims they were making about her “mistruths“, and the judge explained that she would give witness evidence at a future hearing.)

The chasm between the three sons and the people caring for their mother felt unbridgeable – with effectively two different versions of reality. 

For Ali, his mother (despite her physical deterioration) has capacity to make her own decisions. The evidence presented by the local authority is that she does not.

For Ali and his brothers, their mother is deteriorating because of the risperidone; for the professionals, this is the very medication that will keep her well.

For Ali and his brothers, the restrictions on her liberty in the care home are harming her; for the professionals these restrictions are necessary to keep her safe.

Representing the local authority, Adrian Francis said that Ali “lacks insight into his mum’s degenerative condition and will inadvertently put her at risk”.   Ali says the professionals are lying. His mother is being ill-treated.  His brothers agree.

The very actions that, for Ali, are acts of love and care – questioning the value of risperidone and asking for a “medication holiday”, seeking medical attention for his mother’s alleged breathlessness – are (for the local authority) acts that risk causing her harm.  

When the local authority seeks to ensure that Mrs M gets her prescribed medication on time and backs off from the agreement to move Mrs M to an Extra Care placement (“on the basis of risk and repeated contact from son”), Ali sees them as keeping his mother in prison and depriving her of her liberty.

It’s clear that everyone wants the best for Mrs M, but that they have diametrically opposed views as to what that would be.  

There’s so much I don’t know about this case. I don’t know what precipitated Mrs M’s hospitalisation, or what her living conditions were like with her son.  I don’t know what treatments were tried prior to or instead of risperidone.  I don’t know how able Mrs M is to express her views, or to participate in decisions about her residence, care and contact. I don’t know what attempts have already been made to improve communication between Ali and the professionals.

Like the judge, I accept that Ali is motivated by what he believes is in his mother’s best interests. I think the professionals are too.

I kept thinking (perhaps naively) that better communication, perhaps with an independent expert in old age psychiatry at a round table meeting, or perhaps formal mediation, would be a better way of tackling this impasse. 

I also wondered whether, in addition to the issues of residence, care, and (now) contact, before the court, the question of Mrs M’s medication should be explicitly addressed, since this lies at the heart of Ali’s concerns about his mother’s care. Since watching this hearing I – like Mrs M’s three sons – have searched the internet for information about the use of risperidone for dementia and psychosis.  From what I read, it’s controversial.  I too would be concerned if it had been prescribed for my mother, and would be asking questions about non-drug methods as an alternative, about reducing the dose, about the side-effects and the cost/benefit analysis.  Probably I, too, would be seen as a “difficult” family member. Can Mrs M’s litigation friend, the Official Solicitor, when appointed, ask the judge for a declaration that risperidone is, or is not, in her best interests? Can Ali become a party and get legal representation so that this matter is properly addressed?

The judge’s decision departed from the order requested by the local authority in authorising visits between Ali and his mother outside the care home and its garden – so long as these visits are supervised. This was helpful, I thought, in recognising the value the sons say Mrs M puts on getting out and about and spending time at Ali’s home. But I don’t know if this will work in practice. I can’t quite envisage staff having the time to spend hours in the garden centre with mother and son, or watching films with them at Ali’s house. The practical issues involved in supervising visits in the community were not addressed at any point during the hearing. And, as one of the sons said, having someone supervising them at all times will inevitably affect the quality of the interaction.

I remain troubled, too, that Mrs M’s voice was absent and that she was (in effect) unrepresented in a hearing that interferes with her fundamental Article 8 rights to private and family life.  I have no idea what she makes of any of this, or what she wants for herself.  

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


[1] The Transparency Order I was sent for this hearing includes an Order from the judge as to how the case was to be listed. “The attended hearing is to be listed as follows: (i) Where P should live (ii) Healthcare; (iii) Varying or terminating an urgent or standard authorisation under the Deprivation of Liberty Safeguards”. (§3 Transparency Order, 25th May 2022).  It was not in fact so listed – due (I am told) to “human error”. 

[2] All quotations from what was said in court are as accurate as I can make them.  However, we are not allowed to audio-record hearings so my quotations are based on touch-typed notes made during the hearing and are unlikely to be verbatim.

[3] For academic research on the peculiar speech-exchange system of the courtroom and the turn-taking organisation constitutive of the formal hearing, see J Maxwell Atkinson and Paul Drew (1979) Order in Court. Macmillan Press.  Lawyers may not appreciate how impenetrable this speech exchange system can feel to lay people  and how easy it is when you don’t know the rules to be heard as “speaking out of turn” or “interrupting” – an experience which adds to the alienating experience of the courtroom when there is no intention to offend.

Photo by Pawel Czerwinski on Unsplash

Bringing a very long saga to an end: A final hearing, transparency issues, and delays with a charging decision

By Paige Taylor, 8th June 2022

On 23rd May 2022 I watched a remote hearing (COP 13585739) before Mrs Justice Lieven. 

I am currently a Bar course student at the Inns of Court College of Advocacy, and I wanted to observe a Court of Protection hearing because I have an interest in mental capacity and disability law, particularly best interest decisions and the role of Lasting Power of Attorneys (LPAs). This stems from my experience as a young carer and LPA for my late mother, who experienced mental capacity issues following several strokes and a diagnosis of early-onset Alzheimer’s. 

This was my first attendance at a remote Court of Protection hearing as a public observer, so (although I’d observed remote hearings in other courts) I did not know what to expect. There were three other observers – including two mini-pupils.  

The hearing was listed to start at 10.30am but the clerk informed everyone that the judge’s previous hearing had over-run and it wasn’t actually called on until 10.56am.

While we were waiting online, before the hearing began, I was asked by the court clerk to identify myself as a court observer, as she established the identity of everyone on the video-platform.  

Once I had done this, Katharine Elliot, counsel for the applicant local authority was asked by the court clerk whether a Transparency Order (TO) had been put in place for the hearing, and she said that it had. But it was discovered shortly before the hearing began, that in fact there was no TO.

Pending the production of a formal written TO, Lieven J orally outlined the reporting restrictions, requesting that counsel for the applicant distribute copies to the observers as soon as possible. It has been 2 weeks, and I have still not received one!

The hearing was very short (17 minutes) and resulted in final directions and orders, bringing to an end a series of previous hearings in this case.  As such it probably wasn’t the best (or easiest) hearing for me to observe,  because there was a lot of background information from the previous hearings that I was not aware of at the time I was observing.

What was the hearing about?

It concerned the approval of final orders for P (the protected party, the person at the centre of the case) in relation to her residence, care and support. 

This was the final hearing in a case which was first brought by the applicant local authority, Kent County Council, in March 2020. The case has been overseen by Mrs Justice Lieven for just over 2 years. 

Hearings in this particular case were previously held in private. This was until a judgment was made in November 2021, allowing the public to attend the hearing, and for public and the press to report on it, subject to a Transparency Order maintaining the protected party’s anonymity. You can read the previous judgment here.

Shortly after the discussion of a Transparency Order, counsel for the applicant introduced the other parties and then provided a brief background to the facts of the case, which are summarised below.

Parties

The parties were:  the applicant local authority (represented by Katharine Elliot); P, represented via the Official Solicitor by Keri Tayler);  and the NHS Clinical Commissioning Group (CCG), who co-fund the placement and care package with the local authority  – but it had been previously agreed that they didn’t need to attend this hearing unless they disagreed with the local authority (which they didn’t). 

There was also a legal representative from the police force present (Isabella Crowdy), although the police force was not formally a party. She was there because there are possible criminal proceedings against P’s parents.

Facts of the case

The protected party, P, is a woman in her early twenties currently in the care of the local authority, and living in 24/7 supported living. She was removed by the police from her parents having suffered severe neglect and malnutrition.  As a result of her traumatic experiences, she has suffered both physically and mentally, and the multi-disciplinary team treating her is approaching her care based on working theories around attachment disorder, developmental delay, dissociation, anxiety, autism spectrum disorder and complex post-traumatic stress.

According to the previous published judgment, Kent County Council brought the substantive application back in March 2020, seeking declarations that it is in P’s best interests to continue to live and receive care and support at her current placement and for the necessary deprivation of liberty (DOLs) authorisation. 

In the course of proceedings, P has been found by the court to lack capacity in relation to care and residence, property and affairs and decisions about contact with her parents. P currently does not have contact with her parents (but this is subject to ongoing review). 

After Katharine Elliot’s summary, the judge said that it seemed that the parties had reached the point where final orders could be made concerning P’s residence, care and support (including a DOLs order) and contact with others, “because effectively P’s care has stabilized and nothing is going to significantly change in future”. 

Submissions

1. Counsel for the applicant

Counsel for the applicant agreed that final orders could now be made, noting that P’s presentation has improved and she has made “sustained improvements” in some areas, but “some difficulties” remain in others. 

Lieven J asked the applicant about the ongoing criminal investigation concerning P’s parents: ‘if [the] police did want to re-interview P or call her as a witness, who makes the decision on her behalf under the Mental Capacity Act?’.  Counsel for the applicant replied that there would need to be a mental capacity assessment of P, but that P would unlikely have capacity to give evidence or act as a witness in a criminal case. The judge accepted that, saying she simply wished to “guard against all eventualities”.

2. Counsel for P

Keri Tayler, counsel for P (via the Official Solicitor) also agreed that final orders could be made.  

Also, she asked whether the judge would be willing to write a letter for P (who wasn’t in court) “addressing her about these proceedings”.  This was so “there’s recognition for her that her case has been considered by the Court of Protection and that care has been taken over her circumstances”. The judge was “more than happy to do that”.

3. The legal representative from the police

Turning to the legal representative for the police force, the judge said (rather pointedly) “I feel almost exhausted by the issue of the charging decision  When we first met, you were saying February this year, then May, and you’re now saying perhaps June”.  Ms Crowdy corrected the judge: it would now likely be August.

This exchange relates to the judge’s remarks in her judgment of November 2021 about how long it was taking the police to decide whether or not to bring criminal charges against P’s parents.  Kent Police have been investigating this matter since August 2019 and the judge raised concerns about how long the process was taking at a hearing in October 2021, and again in her judgment on 4th February 2022.  She said:

[at 4] At that hearing I expressed my considerable concern about the length of time that it was taking the police and the Crown Prosecution Service (‘CPS’) to carry out an investigation of the matter and reach a charging decision. It was over 2 years since P had been found and yet there was no charging decision, and the police at that hearing informed me that they were hoping to make a charging decision in early 2022.

Having established that the police were not seeking anything more from the court, and that the parties were in agreement about the order, Lieven J ended the hearing, saying that it “brings this part of a very long saga to an end” and extending her thanks to P’s social worker (who was also in the hearing) “for her exceptionally hard work and commitment to P”.

The hearing ended at 11.13am.

Comment

There are four points I want to make about this hearing.  They concern: (1) my experience of gaining access to join the remote hearing; (2) P’s participation in proceedings; (3) my learning about the role of an Accredited Legal Representative (ALR); and finally (4) reflections on open justice and transparency in relation to this case.

1. Joining a remote hearing

The process of requesting to join this hearing as a court observer was incredibly straightforward. I emailed the court staff with my request to observe and provided them with my email and phone number. I received a reply from the listings officer 2 minutes later that my request had been forwarded to the relevant court staff, and I soon received a link to join the hearing on Microsoft Teams. What was particularly positive was that a second member of the court staff emailed me again to ensure that I had received the link for the hearing.  

Having sat in on remote hearings previously during the peak of the coronavirus pandemic, I see the benefits of remote hearings to open justice, such as providing accessibility to those who are unable to travel to court to participate in or to observe hearings. Despite this hearing not being held in person, the formality of it was upheld through the implementation of the transparency order, and the warning of committing a contempt of court if such an order was not adhered to. However, I do believe that the real solemnity of court proceedings can only properly be felt in person. 

2. P’s participation

I’m interested in the extent to which protected parties are able to participate in hearings about them, and there has been recent guidance about judicial visits from the Vice President of the Court of Protection (here).

Building upon the guidance provided by Charles J, Hayden J in his guidance stated that a judge meeting with P can achieve a number of important (but not exhaustive) objectives,  such as their participation in ‘best interests’ decisions as required by s.4(4) Mental Capacity Act 2005. Hayden J supplements the previous guidance by his predecessor by outlining the benefits to P of remote visits and remote hearings in incorporating P into the court process. He notes:

[at 3] “Judges have made remote visits to Care Homes, Intensive Care Units, private homes, and a variety of other venues where it has been possible to meet with P. Additionally, P has frequently been able to attend remote hearings where attendance in a court room would not have been possible.”

In this case, P’s direct involvement in this hearing was limited, as she was not in court.  Also, the judge reported that she had not met with P: it had been considered (by P’s legal representative) “inappropriate” for her to do so.  However, a concerted effort was made in order to inform P about her case by P’s counsel requesting Lieven J to write a letter directly to P. 

Although the judge visiting P would have been more personal, any method of communication with P is instrumental in upholding the right of P to know what is happening in her case, despite her not having litigation capacity. 

3. What is an ALR?

Something I learnt from the hearing was the purpose and function of an Accredited Legal Representative (ALR) which was made known to me when Lieven J asked Keri Tayler, (counsel for P) about whether,  following this case, the Official Solicitor would step down and P’s solicitor act as “deputy” for P. Counsel for P responded that P’s solicitor will step in not as deputy but as an ALR. 

From my research and understanding, an ALR is provided under the CoP rules to assist a person who lacks mental capacity to respond to applications before the CoP. The role of an ALR is defined by Rule 1.2(2)(b) of the CoP Rules 2017 as being “to represent P in the proceedings and to discharge such other functions as the court may direct”. 

Such ALRs, as the name suggests, have been accredited via the Law Society’s Mental Capacity (Welfare) accreditation scheme. An ALR can be appointed by the court of its own initiative or can be applied for by any person. The role of an ALR is similar that of a litigation friend/Official Solicitor and they are used to assist the court to narrow the issues of a case for the court’s determination. (There is more information about ALRs  here.)

4. Transparency and open justice

Lieven J in her 2021 judgment made the decision to open this case to public scrutiny (in line with normal COP practice), despite the objections of the three legal representatives involved in the case.

The local authority argued that if hearings in this case were to be made public it would ‘”risk that P would be able to be identified relatively easily because of the almost unique nature of the case and the initial press coverage relating to it’ (§15 of the judgment).

The Official Solicitor, on behalf of P took the same position, referring to “the deeply personal nature of the information before the Court of Protection and the likelihood that the case might attract media attention because it is at the ‘more prurient end of the scale’” (§17 of the judgment).

The representative for Kent police also argued that the hearing should be kept private and the press should not be allowed to make any public report upon it. Public reporting, said Kent police, “would interfere with the ‘integrity’ of any future trial” (§18 of the judgment), e.g. by prejudicing potential future jurors.

Lieven J in her analysis, outlined the important public interest in holding court hearings in public and allowing the press to report on them.  “The presumption”, she said, “should always be for open hearings unless there is a strong countervailing factor”.  In this case, there was a balancing act between protecting P’s privacy and Article 8 rights on the one hand, and “a potential impact on any future criminal trial” on the other. Lieven J concluded in this case that the balance came down in favour of allowing attendance, subject to an appropriate reporting restriction order.

This was to ensure Article 10 rights and the public’s legitimate interest in knowing what has happened in this case – in particular, how ‘it had been over 2 years since P was found and yet there was no charging decision’. 

One of the reasons why Lieven J decided to make these hearings public (after initially acceding to counsels’ requests that they should be held in private) was because of the delay in the criminal justice system relating to P’s parents.

[at 29] ‘There is a strong public interest in knowing how the criminal justice system, including the police and the CPS are operating. That is even more the case at the present time when it is known that there are very long delays in getting cases to trial, or even to reach charging decisions’.

[at 30] ‘I do think that the public has the right to know that in a case such as this it will have taken over 2 and a half years to even get to a charging decision. If there are charges brought, it is unknown how much longer it will take to get to trial. Delays in the system of justice, whether the police or the CPS, are a matter of legitimate public interest’.

To have hearings such as these made public is instrumental to open justice and to ensuring that the public is educated on the current state of the civil and criminal justice system. It also enables an accountability mechanism as to how the courts, CPS and the police are operating and how they ought to operate. 

I believe that Lieven J was prudent in her 2021 judgment, as when weighing up the risk to P if hearings were made public, she re-assessed P’s circumstances and concluded that although previously she had believed that:

P was likely to become much more engaged with the outside world and was at real risk of hearing and understanding any public comment which might have a negative impact upon her’, what had in fact happened was that ‘as time has gone by, the evidence suggests that that risk is not so great. In practice, P has engaged very little if at all with the outside world, never goes outside her accommodation and does not listen to the news or read any commentary’.

Lieven J’s analysis gave thorough consideration to P’s current circumstances and the public interest in this case. She justified her decision that with the lower risk of P being exposed to potential press reports, ‘There is a legitimate public interest in the fact that deeply distressing cases, such as that of P, happen in the UK and how they are dealt with by the relevant authorities”.

 I completely agree with Lieven J’s reasoning, as authorities (including local authorities in particular), should be subject to scrutiny in their response to child neglect. 

The judgment itself was reported by the media (without the “prurience” anticipated by the Official Solicitor) here: “Judge concerned over how long it has taken police to investigate ‘extreme neglect’ of teenager”.  From the media account, it’s also apparent that a Press Association reporter had been present at an earlier hearing and argued that the public had a right to know about the judge’s concerns and that  a report would not compromise any future trial. That seems to have been an important intervention for open justice.  

Overall, this was a thought-provoking first introduction to Court of Protection hearings, and I look forward to observing some more in the future – hopefully at an earlier stage in the proceedings.

Paige Taylor is a Bar course student at the Inns of Court College of Advocacy.  She tweets @paigepctaylor and you can also follow her on LinkedIn: Paige Taylor

Photo by Steve Johnson on Unsplash

“What good is it making someone safer if it merely makes them miserable?” A contested hearing and delayed trial of living at home

By Celia Kitzinger, 3 June 2020

The quotation in the title of this blog is (as many readers will recognise) from a judgment by  Munby J.  In full, the relevant passage reads as follows:

A great judge once said, “all life is an experiment,” adding that “every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge” (see Holmes J in Abrams v United States (1919) 250 US 616 at pages 624, 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable? I don’t think anyone cited this judgment, or the oft-quoted rhetorical question for which it is frequently remembered, in the course of the Court of Protection hearing I observed (COP 13744224, before DJ Beckley sitting at First Avenue House on 30th May 2022) – but it points to an important principle that lies at the heart of this case.  

(§ 120 Local Authority X v MM & Anor (No. 1) (2007))

Risk cannot be avoided completely.  There are risks in detaining someone against their wishes to keep them safe, including risks to their self-esteem, sense of agency and dignity.  And equally, there are risks to making a decision to facilitate a return home – particularly, in many cases, risks to their physical safety (Westminster City Council v Sykes (2014).

It is not uncommon for judges in the Court of Protection to decide that an outcome which presents significant risks to a person’s physical safety is still in their best interests, because it more closely accords with what the person wants.

This turned out to be one of those cases. 

A contested hearing 

I’d watched an earlier hearing in this case (also before DJ Beckley) on 3rd May 2022 – so just just under a month earlier – and blogged about it (with Anna) here.

T is in her nineties, a national of another European country, who moved to the UK as a young adult, married here but divorced over 20 years ago.  Her only child, a son died, and she is not in contact with her daughter-in-law or grandchildren. She has no other family, but does have a core of supportive friends who speak her first language, including M – who she also appointed with Lasting Power of Attorney (both for health and welfare, and for property and affairs).

There is no disagreement that T lacks capacity to make her own decision about where to live.  She cannot understand, retain and weigh the relevant information (s.31, Mental Capacity Act 2005) due to Alzheimer’s (“an impairment of, or a disturbance in the functioning of, the mind or brain”, s.2(1) Mental Capacity Act 2005).   She also has type 2 diabetes as well as hypertension, osteoarthritis and spinal fractures.  

Until August 2020, T lived in her own flat.  After hospital treatment, she agreed to be discharged from hospital to a care home to see if she would like it.  

It turns out she did not, and she started asking to go home within a few weeks.

Her attorney (M) approached the local authority (London Borough of Hillingdon) on 8th December 2020 to explain that T would like to return home. 

Counsel for P

Christine Cooper of Field Court Chambers (instructed by Amy Butler of Atkins & Palmer as T’s  Accredited Legal Representative) reported that T has been “clear and consistent in her desire to return to her home” for many months, and is now “extremely unhappy and distressed” about being compelled to live in the care home. There are also “serious concerns about the quality of her care” there, both from T’s legal representatives and from M as her attorney.  

Despite it being confirmed more than six months ago that T’s flat is suitable for her to return to, and M having identified a suitable live-in carer, very little has been done to progress a trial return home or to consider any other options for T (said counsel for the applicant).  Christine Cooper was very critical of the delays from the local authority, which has a “history of non-compliance” with orders, and had not prepared either the care plan or the transition plan it had been directed to produce for the court by the required deadline.  Consequently, “the situation today is that the court does not have all of the evidence that it would normally have when making a decision about a trial return home”.  Counsel for the applicant argued that, nonetheless, the court should make a decision today on the evidence it does have.  T’s diabetes is stable, her medication regime is not complex and she’s compliant with it, district nurses will visit her home twice a day to administer insulin and can be alerted to any issues by M or by the live-in carer.

Counsel was mindful of the risks but submitted that “the court should not adopt an overly risk-averse attitude” and should say, today, that the trial of living at home should go ahead.

Counsel for Clinical Commissioning group

The Clinical Commissioning Group (represented by David Muana) also took the view that T “can be managed safely in the community… This is not a complex or unpredictable presentation that can’t be managed in the community”. 

The Local Authority

The local authority considered the proposal for an imminent trial at home to be premature. 

In the words of counsel for the local authority, Thomas Boden, it is “reckless for a move to take place” because“it may leave some of T’s basic needs unmet”.  

The local authority raised a series of (what Christine Cooper called) “new hurdles” to T’s return home – including a request for a second carer to be identified in case of the illness of the nominated live-in carer, and “assurance of the competence and reliability of both M and the wider network of friends that it’s envisaged would step in to help T”.  They also raised an “artificially obstructive requirement” (Christine Cooper’s words) relating to the administration of direct payment.  With evident frustration, Christine Cooper said “it’s time for these obstructions – which have been a feature of the last six months – to stop getting in the way of T going home”.

For counsel for the local authority, a trial at home was, he said, “too great a risk to be borne”.  The local authority wanted more time to ensure that T’s blood glucose monitoring would be done correctly at home, and that carers would have appropriate training and experience.

The judge reflected: “I’ve got a close friend – we went on holiday last week, a group of us – he’s diabetic and he tested his blood sugar four times a day and it seemed quite simple.  Have I got that wrong?

Thomas Boden reiterated that the issue was not just how to take readings, but also knowing when action was needed on the basis of those readings – which might include offering T juice with sugar, or tea with sugar (“it’s those things the carer needs to be mindful of”).  

T’s close friend and attorney, M, was asked about her experience of testing T’s blood sugar levels and said: “T has suffered from diabetes for a long time.  I’ve been helping her, and the district nurse trained me to do the testing and it is not very difficult.  You prick the finger and put the blood in a small machine and measure it to see it if  is down or up.  When she was unstable with the sugar, we would call the district nurses or call 111. We approached it that way. It’s not difficult really”.  

Can’t they [M and the nominated paid carer] just tell the district nurse, who is going to be there twice a day?”, the judge asked Thomas Boden, 

The local authority was also concerned about T’s ability to move around her home – not just steps in and out of her flat,  but also “transfer” between seating and standing positions and using the toilet.  But Christine Cooper drew attention to the fact that a test with stairs at the care home had shown that T could walk up a flight of 8 steps, without support, rest for five minutes on a chair at the top, and then walk back down again. 

Counsel for the local authority said that he noted what had been said about “the need for this to keep moving” but that the local authority “cannot give firm timescales” – and they remained concerned that the direct payments had not been set up (so carers would not be paid), that “an ad hoc approach” was being take to T’s care being provided (in part) by her friends, that there was insufficient evidence that T’s blood sugar monitoring would be done correctly and remaining concerns about her mobility (citing an occasion when T needed support to get up from a chair, he said “a plan of care at home needs to be able to deal with T at her worst, not her best”).  The local authority remained of the view that more time was needed to prepare for a trial return home safely.

In her submission to the judge, Christine Cooper said: “I strongly urge you to resist the temptation from the local authority to kick the can further down the road”.  As she put it in her position statement, for someone in their nineties, time is of the essence.

The judgment

DJ Beckley said he was “very disappointed that rather than providing a care plan and transition plan for me to consider and hopefully endorse, instead we’ve had this hearing this afternoon”.

Referring to s.4 of the Mental Capacity Act 2005, he said that any decision he made must be in T’s best interests.  In so doing,  “the magnetic fact in this case is T’s past and present wishes and feelings”.  Her wishes, said the judge “are very clear, and have been clear for a considerable period of time, that she wants to return home”.  

The judge recognised that a return home “will carry with it some risks” but considered these manageable and acceptable when weighed against T’s consistent wish to return home.  

This reasoning has strong resonances with Munby’s judgment, quoted at the beginning of this blog:

The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness.

(§ 120 Local Authority X v MM & Anor (No. 1) (2007))

Finally, DJ Beckley recognised the huge contribution made by T’s friend and attorney, saying he was  “convinced that M is deserving of very great praise for the support she has provided for her friend” and is “confident that she and her friends will be able to provide cover” for any periods when the paid live-in carer is unavailable. 

He made the order in terms of the draft order filed by Christine Cooper, ruling that T will return to her property on 17th June 2022, and at the next hearing the next hearing, just short of three weeks later, he will “consider everyone’s views on how successful that’s been”.

I hope to attend the next hearing, at 9.30am on 7th July 2022, and will report back.

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

Photo by Andreas Haslinger on Unsplash

Treatment delay: “My son has got disabilities but that doesn’t mean he’s a nobody”

By Celia Kitzinger, 27th May 2022

A man in his 20s is losing his sight.  

The Trust thinks it’s likely that he’s developed cataracts and that this could be easily treated.  

His mother worries that it’s something more serious and has told the lawyers that her son’s birth father had a tumour behind his eye when he was in his 20s.

Proper investigation and treatment is needed – but although “in the usual course of events this would be straightforward”, it’s more complicated for this patient – and there seems to have been a delay of more than a year. 

I was watching a remote hearing before Mr Justice MacDonald (COP 13930317) sitting as a Court of Protection judge in the Royal Courts of Justice on 25th May 2022.  This case was in the “Urgent Hearings” list[1]

The applicant Hospital Trust was represented by Conrad Hallin of Serjeants’ Inn Chambers. Asked by the judge to introduce the case[2], he said that P has “severe learning disabilities, autism and ADHD”.  He said P “was born prematurely, was on oxygen for 18 months and had a stroke affecting the left side of his brain”.

Although, for most people, cataract surgery (if that’s what’s needed) is a straight-forward procedure, “given P’s presentation, it needs careful planning”.  He gave a brief description of some of the issues involved (e.g., giving a long-term steroid injection rather than reliance on eye drops post-operatively), although these are “still to be planned in detail”.  He envisaged “lots of other evidence” about the procedure being provided “after questions from the Official Solicitor and the CCG”. The draft order – part of which was read out in court – mentions physical restraint and sedation.

The judge intervened at this point to ask whether it was correct, as appeared from the papers, that there was “quite a long gap” between a best interests meeting for P at which this was discussed back in April 2021 and the follow-up best interests meeting “almost a year later” at the end of March 2022.  Perhaps, he enquired, this was a typo?  If not, “is there any particular reason why now, over a year later, this is a topic of discussion rather than action?

Counsel for the Hospital Trust confirmed that it was “not a typo”.  The patient had been referred to his GP about his sight loss in March 2021.  “We haven’t arrived at this position for a long time”. 

This speaks to the need, now, to keep a tight rein on the timescale”, said the judge.

The Trust representative agreed and said that 24th June 2022 had been fixed for an investigation (which was why the case was in the urgent hearings list, so that the relevant orders and declarations from the judge would be in place before then to allow the procedures to take place lawfully).

That will be 14 months since the best interests meeting at which it was decided that it would be in P’s best interests to carry out investigation and treatment for his sight loss. 

P’s mother was in court (unrepresented) and had some concerns about the proposed investigation and treatment.  

She asked about the use of restraint (to prevent P from rubbing his eyes post-operatively and to prevent ‘self-injurious behaviour’, which meant head banging).  

She was worried about a proposal (which apparently is not in the draft order) for giving P a COVID vaccination (he’s unvaccinated) at the same time as the surgery (“If he has the injection at the same time as his eyes, and he has side effects and is not feeling well, he gets frustrated and starts hitting his head – I’m very concerned about that”).  

On behalf of P, Rhys Hadden of Serjeants’ Inn Chambers, (instructed by the Official Solicitor) said: 

In terms of COVID, it is somewhat unusual for the Official Solicitor to say, when asked about one aspect of health care, ‘what about this other aspect of health?’.  But the conditions of surgery are having to be laid out with respect to his non-vaccinated status.  And it is having an impact on his day-to-day living: there are some concerns about restrictions on access to the community.  The two things [COVID-vaccination and cataract surgery] may not happen together, but we invite the CCG to set out when they should happen.”

It was also clear that P’s mother wanted the court to know how frustrated she was by the delay in addressing her son’s deteriorating sight.  She said that it had first become apparent in November 2020 and that she’d expected something to be done after the best interests meeting in April 2021.  She ran through a chronology of repeated delays: 

Then he said he wouldn’t be doing the operation, so then we had to wait again, and I was ringing, constantly ringing, PALS, the eye clinic, the doctor’s secretary, the appointments people, everyone.  We’re coming up to two years down the line and it’s only just come to you. It’s caused me a lot of distress.  He doesn’t understand what’s happening to him. All the time we’ve spent to get P to where he is now has gone down the drain. Something could have been done a long time ago.  My son has got disabilities but that doesn’t mean he’s a nobody.”

She asked the judge to “shadow this case” until P had received treatment.

The judge reassured her that the court would keep oversight of the case, with a next hearing fixed for 17th June 2022 in the Royal Courts of Justice. The hearing will be open to the public. If anyone would like to observe (I think you’d need to go in person – it’s planned as an attended hearing) and blog for us about the hearing, please let us know. (We’re happy to provide support.)

Comment

I listened to P’s mother (and to the judge) talking about the delay in investigating and treating P’s sight loss in the context of what research shows about health care for people with learning disabilities.  

The Convention on the Rights of Persons with Disabilities says people with learning disabilities have the right to the “highest attainable standard of health”, but there is widespread evidence that they experience inequities in access to healthcare (and worse outcomes).

The Confidential Inquiry into premature deaths of people with learning disabilities shows the lack of reasonable adjustments provided to people with a learning disability (especially in accessing clinic appointments and investigations) as a contributory factor in a number of avoidable deaths. This can also, clearly, contributes to a deterioration in people’s quality of life.  

In particular, research has painted a troubling picture of the quality of healthcare people with a learning disability have received (or not received) over the course of the pandemic, exacerbating already high levels of health inequalities. (For a downloadable pdf from Mencap here)

I hope P is able to have the investigation he needs following the hearing on 17th June 2022.

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


[1] The judge was dealing with several other urgent hearings on the same day. As a result, the hearing started late: it was listed for 10.30am but didn’t begin until 12.46 (and we all waited online for the judge).  The judge then called a lunch break shortly after 1pm, telling us to return at 2pm.  When I logged in again at 2pm, I received the standard message telling me that the administrator was aware I was in the waiting room and would admit me when the meeting began. I’m not sure when ithe hearing actually did begin again because I was automatically removed from the waiting room at some point and didn’t notice this at the time  – I think, as a result,  I missed about 15 minutes of the hearing, and I think that means I missed most of the advocacy from Rhys Hadden (counsel for P).  (This is my own fault, not the court’s.  I should have been paying better attention to what was happening on my minimised MS Teams link while getting on with another job!).  Events around today’s hearing illustrate how busy the judges are and how stretched the court system is.

[2] The parties – the Hospital Trust, P, P’s Mother and the Clinical Commissioning Group – had not prepared Position Statements. They had a substantially agreed draft Order (which I have not seen) for the judge to approve, and had apparently expected a short case management hearing. Contrary to expectation, the hearing became protracted by the need to fit this hearing around the judge’s busy schedule.  Not having position statements means I was dependent on what was said in court for my understanding of the case – I don’t have anything in writing.  Note too that I did not receive a Transparency Order (although the need for one was mentioned in court).  Again, all evidence of a severely over-stretched system.

Photo by Matt Artz on Unsplash

When family members apply to become parties: A hidden and “private” (but not sinister and secret) hearing

By Celia Kitzinger, 25th May 2022

This was an exceptionally opportune hearing to observe because (although I must have seen it many times before) I’ve never really paid detailed attention to what happens in court when the judge considers an application from family members to become parties to a case.

I wanted to be clear about the process of judicial deliberation on this issue because “Anna”, the daughter of a protected party in a forthcoming Court of Protection hearing[1], has made an application to become a party. She asked me what it would be like when the judge considered her application in court.

I wracked my brains.  I knew I had seen these applications discussed frequently in court, and mostly approved, but I couldn’t remember any of the details. I guess that’s because they simply hadn’t registered with me as ever having been controversial or difficult in any way.

So, I was very happy to discover, after I joined this hearing (COP 1388671T), before District Judge Dewinder Birk in Leicester), that it concerned an application for party status from family members – and as soon as I could, I cleaned up my notes and sent them over to Anna.

I’ll spell out what happened in relation to the family application in this blog, in case it’s of use to other family members who would like to be parties to a case.

But before I do that, I want to say something about why I asked to observe this hearing – and my frustration with the way it was listed, which was, sadly, typical of many listings.

So, Part A of this blog post is about the way this hearing was listed and how it exemplifies the way court lists undermine the judicial commitment to transparency.

If you just want to read about the hearing itself, go straight to Part B, “Family applications to be joined as parties”.

Part A. Listing this hearing: Problems for transparency and open justice

It’s extraordinary to me that the Court of Protection – a court with “transparency” as a central philosophical principle[2] – produces court listings entirely unsuited to delivering on its stated objectives.  

Here’s how this hearing appeared in CourtServe, the live court listings service that members of the public have access to (for free) to check on hearings.  

This court hearing did not appear in the Court of Protection lists.  Nor is it labelled as a Court of Protection hearing in the county court list in which it did appear (as a ‘hidden’ hearing).  That’s not remotely transparent.  If it’s not in the Court of Protection list (or at an absolute minimum, labelled as COP in some way) how will most people even know of its existence? It’s also designated “PRIVATE”, and omits any mention of the issues before the court, And (if all that were not deterrent enough) it provides incorrect contact information. (These failings are spelled out in detail below – where I also explain how common it is to find failings like this in the Court of Protection lists.)

If there were, as some commentators have claimed, a conspiracy afoot, from a “secret and sinister” court, to obstruct public attendance at hearings, this is a good candidate exemplar.

I don’t think there is any such conspiracy – and I did get to watch this hearing and am now blogging about it publicly.  

I accept that the judiciary is truly committed to transparency.  But it’s staggering to find – repeatedly, consistently, on such a wide scale and over the course of nearly two years – such a big gap between the judicial commitment to transparency and actual practice on the ground.

I’ve been writing publicly about problems with the court listings since August 2020 – and tweeting about particular instances, expressing my concern in talks before lawyers and judges, and sending written complaints to relevant persons and organisations.  Nothing much has changed.

The way this particular hearing was listed exemplifies a lot of the problems, and I tweeted about it the day before, after completing a systematic search of the listings to test and to document my (repeated) claim that there are serious problems for open justice with the way hearings are listed.  

Here’s the tweet I posted.  (It’s part of a long tweet thread  – no. 13 of what turned out to be 22 tweets-with-slides.)

In relation to transparency and open justice, there are four really serious problems with this listing, alluded to on the tweet above, and spelled out below. 

1. It’s a hidden hearing

First, and most serious of all, it was not in the Court of Protection list for 23rd May 2022. 

Members of the public who want to observe a Court of Protection hearing should be able to go to a single site where all the hearings are listed.  Then they can look down the list and decide which one they want to observe.

But over the time I’ve been systematically checking the listings, I’ve found that anything from a quarter to a half of the hearings don’t actually appear in the Court of Protection list.  Instead, they are scattered throughout CourtServe under the names of towns and cities or judges.  It’s extremely time-consuming to find them – there are literally hundreds of hearings! – and most days when I want to observe a Court of Protection hearing I don’t bother.  I simply go straight to the Court of Protection list – even though I know full well that only half the hearings may be recorded there.

This particular hearing was listed under a subheading under the top-level heading “Leicester” in the general county court lists.  These lists feature hearings very different from Court of Protection cases. Some of those I scrolled through were cases involving children, or divorce.  Others were small claims hearings and financial disputes. Asda supermarket was listed as a party in one.  Anglian Water Services was a party in another.  Clearly, I was well outside Court of Protection territory!  

There were 3 subheadings under “Leicester”, one of which was “Daily District Judges” (there was also “Daily Circuit Judges” and I can’t now remember what the third one was).  I clicked on all three subheadings in turn and scrolled down through dozens of listed hearings, looking for “Court of Protection” or “COP”. 

There was nothing listed as “Court of Protection” or “COP” under any of the three subheadings.  

But my eye was caught by this hearing (listed under “Daily District Judges”) because – even though it doesn’t say it’s a Court of Protection hearing – it “looks like” a COP case number. 

Not many members of the public know what a Court of Protection case number “looks like” but over the course of the last couple of years I’ve come to recognise the pattern.  Most COP case numbers consist of 8 digits – all numeric, none alphabetic (though P’s initials are often appended to the 8-digit number) – and during the time I’ve been watching remote hearings they’ve mostly started with 135, 136, 137 or 138.  (The most recently issued cases start with 139, and I expect to see case numbers starting with 140 before the end of the year.)

This one didn’t quite fit the pattern. It’s only 7 digits and there’s a T at the end.  But I also know that those numbers ending in T do crop up occasionally – I’d noticed and asked why back in May 2020.

Link to tweet

Nobody knew!

As I illustrated in a subsequent tweet, even eggs come with helpful keys to understanding the codes stamped on them. But for Court of Protection hearings, it’s just one of those mysteries.

Link to tweet

It was unusual for me to be looking for Court of Protection hearings outside of the COP list – I only do it once a month or so, so as to be able to document the ongoing problems in the (possibly quixotic) hope that this might result in change.

So, because of the way this hearing was listed, I normally wouldn’t have had the opportunity to observe it. I simply wouldn’t have known it was happening.  Nor would anyone else, except the people directly involved.

If another member of the public had been looking outside the COP list for a COP hearing (an unlikely scenario), I doubt they’d have recognised it as a COP hearing: my obsessive scouring of listings over the last two years has given me unusual powers!

So, I decided to ask to observe it precisely because it had been so well hidden in the lists – I was determined not to allow listing failures to consign it to obscurity.

Also, by asking to observe it, I’d find out for sure if it was a COP hearing or not

2. It’s a “PRIVATE” hearing

Way back in 2016, shortly after the  beginning of the Transparency Pilot Scheme, Mr Justice Mostyn said

 “I want to dispel the idea, which continues to be peddled by certain sections of the press, that the Court of Protection is a secret, sinister court which dispenses justice behind closed doors.”

Judge defends Court of Protection as not a “sinister secret court“, Today’s Wills and probate

It beggars belief that a court so determined to counter the impression of secrecy should label so many hearings “PRIVATE” – creating an entirely illusory impression of secrecy where in fact none exists.

I’ve been told that the word “PRIVATE” is a “legal term” and doesn’t mean that members of the public will be excluded. Members of the public can be (and in my experience are) admitted to almost all the hearings labelled “PRIVATE”.

I’ve spent a lot of time explaining to this to would-be observers – to their disbelief and bewilderment. Here’s a tweet from two years ago, again part of a thread about the day’s CourtServe listings.

Link to tweet

I think the small print at the bottom (check out the photo of the listing) about “Open justice” is designed to counter the impression created by the words “IN PRIVATE” – but it simply doesn’t work!

Why would anyone be surprised that the word “PRIVATE” has a chilling effect on open justice?

3. There’s no information about the issues before the court

As I said earlier, I didn’t know what this hearing was going to be about when I asked to observe it.  

That’s because no information was provided in the list about the issues before the court in this hearing: they are unhelpfully referred to as “MATTERS”.

Anyone who’s been following my Twitter feed – or @OpenJusticeCOP – will already know that the absence of information about what hearings are about is very common in Court of Protection listings – the norm, rather than the exception.  

There was a clear official statement, when the Transparency Pilot was launched more than six years ago now (on 29th January 2016) that descriptions of the issues before the court would be made publicly available in listings.  

Policy officials will also work with Her Majesty’s Courts and Tribunals Service to amend the way in which court lists are displayed, so that they provide a short descriptor of what the case is about, allowing the media to make an informed decision on whether to attend the hearing.

Available at https://www.judiciary.uk/wp-content/uploads/2015/11/cop_transparency_pilot_background_note_19.11.15.pdf, downloaded 24th May 2022

Nearly eighteen months later, this still hadn’t been achieved, and the judiciary seemed unsure about how to go about implementing it.  The (then) Vice President of the Court of Protection, Mr Justice Charles, said: 

It is recognised that it is important that cases are appropriately described when they are listed to provide information to the public at large of what they are about and when and where they will be heard. Comment on how this should be and is being done is welcomed.  As is more general comment on how the public and the media can make themselves aware, or should be made aware, that certain types of case are due to be heard…

(Mr Justice Charles, The Transparency Pilot, 20th June 2017)

It’s still the case that many (sometimes most) lists don’t have any indication of what hearings are about. None of those posted on the Royal Courts of Justice website ever does – and it’s proved enormously frustrating for health and social care practitioners, activists and educators who have special interests in observing hearings on particular issues.

For example, court-ordered Caesarean sections (and other court orders related to mode and place of birth) have been of particular concern for some midwifery groups and for the charity BirthRights, dedicated to “protecting human rights in childbirth“. These hearings raise key issues related to autonomy over our bodies and reproductive rights. But without advance information (sometimes sent to journalists but not to us!) about when these hearings are being heard, it’s unlikely that we’ll get to observe them and impossible to plan to do so. That’s a real problem for open justice, and creates exactly the impression the court wants to avoid – of a secret court ordering restraint and surgical interventions on resisting pregnant women. Check out my blog about one such hearing, where I make the point that: “it’s not sufficient for open justice to have to rely on reports from journalists. Media accounts are necessarily abbreviated versions of complex decision-making processes.  Journalists cannot be expected to engage with these issues in the same way as a consultant obstetrician, a specialist perinatal community mental health midwife, a feminist psychologist, or an expert by experience.  There are limits to the extent to which a journalist can act as the ‘eyes and ears of the public‘” (Agoraphobia, pregnancy and forced hospital admission).

Finally, simply in terms of encouraging the public to support the principle of open justice and perform the civic duty of observing hearings, I have to say that I find it hard to persuade or entice members of the public to give up their time to observe a hearing when I can’t supply them with any information about what they’ll see.  It’s like trying to sell theatre tickets without telling us which play is being performed.

4. The contact information is incorrect

Suppose a member of the public actually found this hidden hearing and recognised it as a COP hearing, understood that “PRIVATE” wasn’t intended to deter the public from attending, and was interested despite no information about the “MATTERS” to be addressed in court. Now they would need to send an email asking for the link. The obstacle course continues! 

The correct email address from which to request access to Court of Protection hearings is the email address for the Regional Hub with which any given court is associated.  The Regional Hubs are listed on a gov.uk webpage (here). 

For this court (Leicester), would-be observers should contact the Midlands Regional Hub, which has a Birmingham email address (courtofprotection.birmingham.countycourt@justice.gov.uk).  

But the list gives two email addresses in Leicester.  

Incorrect contact information is common when Court of Protection hearings haven’t been included in the Court of Protection list. 

On this occasion, in a spirit of enquiry, I emailed the two Leicester addresses, just to see what would happen.  

Usually, when I’ve (inadvertently) sent emails to the wrong addresses (as given on the listings), the outcome has been no response, or a very delayed response, after my email has been forwarded to the correct address – sufficiently delayed, in fact, that I miss the hearing.

I sent this enquiry to the wrong addresses more than 3 hours before the time the hearing was due to start.  I figured if I didn’t hear back (or got an inappropriate response), there was still time to contact the correct address.  I was pretty surprised to actually receive the link to observe the hearing a couple of hours later – just before 2pm (which was when I’d planned to resend the email to the correct address).  A clerk at Leicester had forwarded my request (marking it “URGENT”) to someone designated as a “CVP Court Clerk” (CVP = Cloud Video Platform) for DJ Birk that day, and that person had sent me the link. (Many thanks for the prompt actions of the people involved.)

These are not the actions of people determined to exclude the public!

When Anna read the draft version of this blog, she commented: “With regards to the wrong email address you noticed , one thing that occurred to me is that you are now well known in legal circles re COP cases ( I could tell this from attending the hearing with you!). Would an ordinary member of the public be given the hearing link so quickly, I wonder.”  I share that concern.  I think sometimes I get special treatment[3].  

I’m baffled as to why the lists so frequently get the contact information wrong – or omit it altogether.

Let me show you some other examples I’ve tweeted about over the years.

For a while, the court seems to have been using a template requiring people submitting to the listings to complete their own Regional Hub email address. They weren’t doing it – and the email address kept appearing as COPhubemail (which was intended, presumably, to signal “fill in your own COP Hub email address here“)!

Then there was a week or more when First Avenue House in London was displaying the wrong email address (there’s an errant ‘s’ that’s crept into the middle of it) – so would-be observers kept contacting me to say their emails were bouncing back.

Recently, I discovered from a systematic search that 20% of CourtServe entries omitted contact information altogether (again this tweet is part of a thread which covers listing problems on 14th March 2022).

I’ll return to these listing problems in my “Final Reflections”.

Part B: Family applications to be joined as parties

This was the first attended hearing in the case and the first at which P was represented.   

The two existing parties were the applicant local authority (represented by Mark Kamlow) and the protected party (P), represented by Lauren Crow of MJC Law, her Accredited Legal Representative (ALR).

P’s mother and grandparents were there (attending together from a single location) and they all wanted to be joined as parties. 

I later learnt from the Position Statement on behalf of P that these family members oppose the local authority’s application for a declaration that it’s in P’s best interests to move from her grandparents’ home to supported living accommodation.  P herself also consistently says that she would like to remain living at home with her grandparents.  But the local authority is concerned about the quality of the care she receives there.

There were issues to discuss and orders to make in addition to the question of family representation, and these were dealt with first.  

The most significant was appointment of an independent consultant psychiatrist to complete a capacity assessment of P (a teenager with spina bifida, hydrocephalus and “learning difficulties”) to see to what extent she is able to make her own decisions.  Obviously, the court has no jurisdiction to tell P where she must live unless it’s determined that she lacks capacity to make this decision for herself.

The only existing evidence on capacity is over 18 months old and relates solely to P’s capacity to conduct legal proceedings.  There is no evidence of P’s capacity to make decisions about where she lives, the support she receives, who she has contact with – or about her capacity in relation to financial matters and whether (should it become relevant) she can sign her own tenancy agreement. 

In addition, there were some third-party disclosure orders and timetabling matters to  sort out (and the need, since I was observing the hearing, for a Transparency Order).

The two legal representatives were agreed as to the “general direction of travel” in relation to these substantive issues.

The judge also asked each of the legal representatives for their view on party status for the family members.

For the local authority, Mark Kamlow said: 

We are content for them to have party status. This will enable them to participate as actively as possible and allow them to see the expert reports and comment on them. Hopefully it might assist in terms of seeing solicitors and getting them their own legal representation.”

For P, Lauren Crow said: 

 “We have no objection to them being joined as parties, but there will need to be some slight redrafting of the expert instruction to ensure they are not responsible for the cost of that.”

(Expert instruction is usually shared equally between parties but it’s common for family members who are parties NOT to have to pay their ‘share’ of this.)

Having established all this, the judge turned to the three family members.  She had previously greeted them at the beginning of the hearing, checked they could hear everything, and said that she knew they had applied to be joined as parties and she would deal with that shortly.

Now she checked that they understood what was involved.  “If you were parties, you’d need to attend all future hearings, and will get the papers. Is that what you would want?”.  All three said yes.  

The judge then said, “Well, I have no objection, because you are obviously very much a part of P’s life and need to know what’s happening.  So, what the court will do today is make you parties, alright?“.  They all said “yes“.

Then she checked their position on the other declarations and orders the court was going to make today.

Judge: We are going to gather some information. One piece of information is the expert report. Have you got anything to say about that?

Family: No.

Judge: We are also going to get further information about P from her medical records – anything you want to say about that?

Family: No. 

Judge: Then we’ll come back after all that information’s been gathered, and you’ll be able to read all the information that’s been gathered, and the court will hear from you about what you think of it. Are you happy with that?

Family: Yes.

There was then some discussion about the time and date of the next hearing, and whether it should be remote or in person.  The family had requested an in-person hearing and this was agreed.  The next hearing (a ‘case management hearing’) is planned  for 19th October 2022 at 2.00pm before DJ Mason in person in Leicester County Court.

Lauren Crow said she would “explore with P as well whether she would like to attend” (she wasn’t at this hearing).

Finally, the judge addressed the family, asking “Anything further?  Is there anything you’d like me to explain about the orders I’ve made today, or anything else you want to raise?“. They said no, and the judge ended by saying that the local authority legal representative would be in touch with them to provide them with the documents for the upcoming hearing, and would also try to help them to find legal representation.

So that was straightforward!  And typical of the sort of thing I now realise I’ve seen many times before.

Often, family members are named as respondents from the outset of a case (and confirm a wish to be formally involved), so there is no judicial determination as such. When they are not so named, but wish to be joined as parties, there are some “rules” and case law to assist the judge’s decision[4].

Rule 9.13(2) Court of Protection Rules 2017 is the test for joinder of any party.  It says simply: “The court may order a person to be joined as a party if it considers that it is desirable to do so for the purpose of dealing with the application.” 

Case law helps with understanding what might count as evidence that joining a party would be “desirable”.   Simply being a family member doesn’t give rise to  an “entitlement” or “right” to be joined as party but if joining that person would to help to ensure that P’s interests and position are properly considered,  then it would be “desirable” to join them (Re KK,  [2020] EWCOP 64).

A judge making a decision about joining someone as a party is supposed to balance the pros and cons in the particular circumstances of any given case – and joining a family member who knew P well before P lost capacity could be beneficial in enabling the judge to better take into account the protected party’s wishes, feelings and preferences.  

(Bodey J in Re SK (by his litigation friend the Official Solicitor) [2012] EWHC 1990 (COP) (‘Re SK’)

I shared all of this information, along with my notes from the hearing itself, with “Anna”, the daughter of a protected party in another case, so that she would understand the basis on which a decision would be made about joining her as a party in her mother’s s.21 case.  Anna’s response was heartfelt:

 “Gosh, thank you so much for this information. I feel quite daunted by this process of joining as a party, on top of everything else to do with the case, and knowing more about it is really useful and reassuring for me.” (Anna)

For Anna, the situation is a little more complicated because (as she said in her original blog post), her sister holds lasting power of attorney for their mother (both for Health and Welfare and for Property and Finance).  Anna tells me the local authority’s solicitor has put pressure on her sister (however unintentionally) to become a party – instead of (or as well as) Anna – and her sister is now worried that the judge will insist on this, despite the fact that all four of P’s adult children, including P’s LPA, believe that Anna is the right person to be a party in the case and is best able to represent the views of the family.  The issue of the relationship of LPAs and party status in hearings is (as Anna says) something solicitors (and health and social care professionals) need to be sensitive to in dealing with families.  She asked me to feed this back through my blog.

All in all, this was a really valuable hearing for me to observe – both for my own legal education, and (indirectly, through me) for Anna as a court-user for whom this information is of immediate practical relevance. I just wish I had known what the hearing was about in advance, and I could have invited Anna to join me and witness it at first hand.

Final Reflections

Many people who contact the Open Justice Court of Protection Project believe that the court is deliberately obstructive of open justice.  I understand why it can feel like that.

It takes an effort of imagination to realise that problems of transparency are caused not by deliberate intent, but because of systemic failings in the necessary infrastructure needed to support open justice. Open justice fails despite the judicial commitment to it.

It really isn’t the case that the lists are deliberately designed to discourage us from observing hearings.  It’s just that – very often – they have that effect.

Having attended this hidden and “private” hearing, I can’t detect any reason why anyone would have sought to exclude me: there was nothing ‘secret’ or ‘sinister’ about it at all.

There’s a maxim called Hanlon’s Razor[5] which appears in different versions, including: “Never ascribe to malice what can adequately be explained by incompetence”.  Without wishing to be heard as accusing the Court of Protection of incompetence, I have found this a useful maxim to bear in mind in my dealings with the court.  The most likely (parsimonious) explanation for failings in open justice is because – in large part due to chronic under-resourcing of the court service –  the daily court listing service hasn’t been updated, as had been proposed, with the advent of the Transparency Pilot. And staff haven’t been trained in what’s needed, are overwhelmed by their workload and don’t get to read emails in time.  It’s perhaps surprising  – and testimony to the good intentions of court staff, lawyers and the judiciary – that we get to observe as many hearings as we do!

But good intentions are not enough.  

The inadvertent exclusion of the public is as damaging for open justice as if it were done deliberately.

The reality is that sincerely-held and lofty ideals of open justice depend upon mundane and tedious everyday details like adequate listings and responding to emails in a timely fashion.  

It’s glaringly apparent that the listing system wasn’t set up in an outward-facing user-friendly way for members of the public.  It needs a thorough overhaul.

What if there were an official public-facing Court of Protection page on a gov.uk website explicitly welcoming observers to attend hearings and explaining how to understand the lists and what to do to get to court?

What if the lists included information about what hearings were about – including user-friendly descriptors like “Family application to become parties” or “Caesarean-section” – to attract court-users with particular (personal or professional) concerns?

What if there were an official gov.uk page for the Court of Protection with some Q&As answering questions like Anna’s “How will the judge decide whether or not someone can be a party to a case”?  (This is especially important of course given the large number of litigants in person.)

Then we might have a truly transparent Court of Protection – both improving access and knowledge of the way the court works for members of the public in general, and more particularly for those involved in Court of Protection proceedings.

What we need to figure out is how we can all work together to get there from here!

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She has observed more than 300 (remote) Court of Protection hearings since 1st May 2020. She tweets @KitzingerCelia


[1] You can learn more about Anna (not her real name) and her mother’s case in the blog she and I co-authored after watching a s.21A hearing together.  Check out “A section 21A hearing: Impressions from a veteran observer and the daughter of (a different) P in a s.21A case”.  One of the points I make in that blog is that it’s fairly easy to find a s.21A hearing for members of the public who wish to observe them, because (a) they are common cases; and (b) they are often heard at First Avenue House London, which operates the only court listing service which routinely and systematically lays out the issues before the court (see “Court of Protection Daily Hearing List”). Bear in mind, however, that, despite its name, this list covers a small percent of the total number of Court of Protection hearings across England and Wales.  For a comprehensive listing, you must use CourtServe. And that many members of the public do not know what on earth a “s.21A” hearing would be about – my first response to contact from Anna was to ask whether (based on her description of the case) she had heard the words “section 21A” and then to describe to her what that means!

[2] “Transparency is central to the philosophy of the Court of Protection”, Hayden J (Vice President of the Court of Protection), 4th May 2020.

[3] Like everyone else, I often receive no response to emails asking to observe hearings and recently had occasion to complain to the staff at the Royal Courts of Justice after a failure to respond to an email (originally sent at 05:35am and resent at 10.20am) asking for a link to observe a hearing before MacDonald J listed for 10.30am on the same day (18th May 2022).  I received an apology but missed the hearing.  On the next occasion I asked for a link from the RCJ I was sent the same link three times over the course of an hour by three different people (one of whom subsequently followed up with an email checking I’d received it). (Thank you!)

[4] Many thanks to the lawyers who responded to my tweet asking “Court of Protection lawyers – are there rules about when/whether family members of P can formally become ‘parties’ to a case? Or case law? Is it a judicial decision? What needs to be considered + why might it be opposed? Relevant links welcome! Thank you.”  Many thanks to lawyers Emma Sutton and Ben McCormack, from whom I received helpful and informative answers within the hour citing Rule 9(13)(2) and the case law, respectively. Thank you also to Eleanor Bulmer, who subsequently drew my attention to Practice Direction 9B, Rhi Jones (who drew attention to the matter of costs) and Molly Fensome-Lush who contributed her experience: “The only case I’ve had where a family member wanted to be joined and wasn’t was where P herself vehemently opposed it and spoke to the judge directly to ask him to refuse the application”.  Legal Twitter at its best!

[5] The maxim is attributed to many different people (including David Hume, Ayn Rand, Napoleon Bonaparte and Goethe).  The Wikipedia entry says that Hanlon’s razor became widely known as such in 1990 after its use in the Jargon File, a glossary of computer programmer slang, though the phrase itself had been in general usage years before.  Its name is inspired by “Occam’s razor”  and (probably) by the computer programmer Robert J Hanlon, who publicised the principle. Both Occam’s razor and Hanlon’s razor refer to heuristics designed to prune sets of hypotheses by favouring parsimony. 

Photo by Ricardo Gomez Angel on Unsplash

A section 21A hearing: Impressions from a veteran observer and the daughter of (a different) P in a s.21A case

By Celia Kitzinger and Anna (Daughter of P), 9th May 2022

Anna (not her real name) contacted the Open Justice Court of Protection Project towards the end of April 2022, saying that she’d been asked to attend a s. 21A directions hearing about her mother (in a care home, with Alzheimer’s) and was finding the Court of Protection process “opaque”.   She didn’t know how it was possible for her mother to have made an application to court given that her mother knows nothing about it, or what her own role as a daughter was supposed to be (as “interested person” or “party” – what’s the difference?). When asking for information from the lawyers representing her mother, she’d been told to seek independent legal advice.  Could she watch a Court of Protection hearing, she asked, and see for herself what was involved.

Fortunately, there are lots of s.21A hearings to choose from in the Court of Protection, although only First Avenue House London and the Newcastle hub routinely include this descriptor in the listings.  

I offered to observe with Anna, so that we could discuss it afterwards.  

On the day we’d chosen to observe a hearing, there was one before District Judge Beckley (at First Avenue House), listed like this:

3rd May 2022. 10:30am District Judge Beckley
COP13744224 T v London Borough of Hillingdon 

Section 21A Deprivation of Liberty, Decisions relating to P’s care and residence

TO BE HEARD REMOTELY

PRIVATE HEARING NOT OPEN TO THE PUBLIC
Time estimate 2 hours

I’ll give a summary of the case, and describe what happened in court and my views of the hearing  and then Anna will describe her impressions of the Court of Protection, based on her observation, relating it to her own experience..

The hearing – Celia 

The hearing began with the judge restating that the hearing was “private” (as listed) but that the rules permit him to admit observers and to specify that there is no contempt of court if we report the proceedings so long as nothing is published that discloses the identity of the person at the centre of the case, where they live, or those caring for them.  (This is an approach to remote hearings that seems to be adopted uniquely by judges at First Avenue House: judges at every other Regional Hub simply disapply Practice Direction 4C, make the hearing ‘public’, and issue a Transparency Order.)

Christine Cooper, acting for the applicant (T) via her Accredited Legal Representative provided a helpful summary of the case.

It concerns a woman in her early nineties who has dementia and diabetes.  She has no contact with remaining family members, but is supported by a long-term friend (M) who – like T– is not a first-language English speaker. 

Importantly, M holds Lasting Power of Attorney for both Health and Welfare and for Property and Finance. (There’s a very helpful blog post by Alex Ruck Keene on “Powers of attorney, care homes, best interests and deprivation of liberty”, which covers the legal issues concerning deprivation of liberty when the protected party has a attorney.)

Until August 2020, T lived in her own flat.  After hospital treatment, she agreed to be discharged from hospital to a care home to see if she would like it.  

It turns out she did not, and she started asking to go home within a few weeks.

Her attorney (M) approached the local authority on 8th December 2020 to explain that T would like to return home.

Court of Protection proceedings were issued a few months later, on 22nd April 2021. (I don’t know why it took nearly five months to issue proceedings) 

It’s now more than a year since proceedings were issued.

According to counsel for T, it’s been confirmed that T’s flat is suitable for her to return to and M has identified a suitable live-in carer, but “very little has happened to progress a trial return home or to consider any other options for T”.  

Counsel for T said that, “the return home was considered feasible quite some time ago.  The difficulty turns largely on funding issues”.  Later she said, “It’s a terrible tragedy that one of those rare cases where a return home is a feasible action is being hampered by funding issues”.

As I understand it, the issue is that since T was found ineligible for Continuing Healthcare Funding, she’s been considered a “self-funding” resident at the care home, with M having commissioned her placement.  She now owes tens of thousands of pounds for the care she’s received at the care home she doesn’t want to be in, and has “exhausted her liquid assets”.  Her flat (since she’s not living in it and it is mortgage-free) is considered by the local authority to be a capital asset from which she is expected to fund her own care (e.g. by selling it or via equity release). 

Counsel for T challenged this characterization, saying that T is a temporary resident of the care home, who intends to return home, and as such her home must be disregarded in any assessment of her assets.

She was placed there by the NHS as a means of getting her out of hospital. Nobody chose this placement for her. She was put there for an assessment and then left there. It was a short-term expedient in which she’s got trapped by some Kafkaesque nightmare”.

The position taken by counsel for T is that, given the circumstances, T should not have to fund her care, but that in any case “at this stage the most important thing it to get the trial at home done, and if it doesn’t work out, then it will be straightforward as the flat will have to be sold”.    

If the trial of living at home is successful, however, there will be an issue of how her care at home will be funded – at least after the first month, which the local authority has now agreed to fund, on a trial basis.  

The right to a “speedy” decision

Schedule A1 of the Mental Capacity Act 2005 was drafted so as to meet the requirements of Article 5(4) of the European Convention on Human Rights.  

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. (European Convention on Human Rights)

Section 21A is supposed to provide the detained person with the means of obtaining that speedy review – but in practice (at least in my experience of watching s.21A hearings) it could rarely be called “speedy” (see: Inspired by Bournewood: A s.21A challenge and delay in the court and Delay in a s.21A challenge to the capacity requirement).

In this case, says counsel for T, “despite no less than 5 sets of directions having been given by the court, T has not had a speedy review of her detention in circumstances where it is entirely possible that she could have returned home some time ago”.

Concerns about quality of care

Not only is there a concern about delay, but also the quality of care she’s received at the care home has caused serious concern to her friend and attorney (M) and to her legal representatives.  

Nobody at the care home speaks T’s native language. There have been problems relating to hearing aids, dentures, spectacles, and T has sustained serious injuries in two falls at the care home.  M reports that T’s swollen legs are not elevated as they should be and that T has sometimes been left in dirty clothes, without having had her hair done. She says T is very sad.

Counsel for the local authority (Thomas Boden) made clear that the local authority does not accept these concerns and there is no evidence of safeguarding issues.

It is disingenuous,” said counsel for T, “for the local authority to say there were no safeguarding issues, when it decided not to undertake an investigation”.

How the judge engaged with the problems: time and money

The judge maintained a firm focus on ensuring that T gets a trial of living at home as soon as possible.  He addressed the practical steps required in pursuit of that aim.  He made no findings of fact regarding the quality of care at the home, nor did he pursue the matter of alternative care homes.

He set up quite a tight timetable by which the local authority and clinical commissioning group need to provide specified information, including a care plan and transition plan, detail about how T’s diabetes will be managed at home, and issues relating to a problem with entering and leaving the flat now that T’s mobility has declined (there are steps).  The local authority asked for 21 days (“due to work load capacity and time available to staff”) but were granted only 14 days to provide information – with a requirement that “a senior officer within social services” must provide an explanation to the court if this direction is not complied with.  

The judge decided against an order (proposed by counsel for T) that an social worker should be appointed to urgently seek another care home for T because “I don’t want to derail our planning for a return home by talking about alternative care homes”.  I got the impression that he very much ‘cut to the chase’ of the issue, which was to get T home as swiftly as possible.

This was so even though the local authority will not keep her place at the care home open to cover the eventuality of the trial of living at home failing.  

Acknowledging that nobody can order the local authority to reserve T’s place, counsel for T arrived at the view that “if that results in her going to a different care home, maybe that’s a good thing”.

It is not within the power of the judge to order the local authority to keep the placement open, but counsel for the local authority indicated that it would be within the judge’s powers to direct the attorney to do so (i.e. M). Presumably this would mean that M would have to pay the care home charges (out of T’s assets) for the month-long trial while T is living at home.

Counsel for T reacted to this suggestion with exasperation: “M has exhausted all T’s liquid assets.  You can’t direct the attorney to do something that can’t be done.”

If there were sufficient funds”, said the judge, “that would be a practical option, but if there’s no funding available for M to do that, it’s not a realistic option for me.  If the money’s not available, I can’t order her to do that”.

Counsel for the local authority then asked the judge to order M to set out the funding position under different scenarios.

Counsel for T responded with incredulity.  “We’ve been around this loop at the RTM [Round Table Meeting] on Friday…. M is a longstanding friend, doing a sterling job of supporting T in the face of circumstances where I think a lot of people would have given up.  She’s not an expert, she’s got no financial training, she’s not legally represented.  It simply isn’t right to try to ask M to go and obtain financial advice and legal advice and then second guess the outcome of the local authority’s decisions….  At this stage the most important thing is to get the trial at home done”.

The judge declined to make any such order.

The judge said he would need to “squeeze in a hearing outside of normal times” to ensure this case was heard in a timely fashion.  It’s listed for a next hearing at 9.30am on 7th July 2022 (as a remote hearing).  There was also a deadline set for filing a COP 9 form, setting out when the trial at home is going to take place- and if that target deadline isn’t met then there will (also) be an earlier hearing on 30th May at 3pm. 

The view of T’s friend and attorney, M

T’s friend and attorney, M, was not a party to proceedings, but the judge treated her as having “an  important role” and asked whether she would like to address him.  She spoke with some passion (bear in mind her first language is not English):

I am appalling the long time it’s taking [the local authority] to decide T can go home, since she decided in her second week at [the care home]. It’s her will to be at home.  She understands that, in later days, she probably won’t be there, but at the moment she’s distressed to be in that place where she’s not happy at all.  I can’t describe how she’s feeling. Please allow her to trial home for her own peace of mind in the latest years of life.”

Later, M acknowledged with a sigh that she wasn’t an “expert”.  “It’s the first time in this situation. I want to help my friend. I’m not familiar with the court. I’m thinking of T’s dignity and peace of mind.  I just want her to be happy and have peace of mind”.

I was pleased to hear the judge check M’s understanding of how things were going forward and thank M for the role she has undertaken so far as T’s attorney.  “The role that people who agree to be attorney for people who lose capacity is a very significant one”, he said. “My thanks to you for undertaking that.  There is recognition from the judges of the Court of Protection for the work undertaken by attorneys.  And I hope you’re reassured that T will be having a trial of living at home as she wants in the very near future”. 

Comment

I was pretty horrified by this case, and dismayed that T should have been deprived of her liberty against her wishes for such a long time, despite the fact that the Court of Protection has had oversight of this case for more than a year. I wondered if Anna would be as concerned as I was with the delays in addressing T’s wish to return home.  I was pleased that the judge behaved impeccably in terms of his focus on T’s wishes and feelings, and attempted (albeit late in the day) to facilitate her return home as soon as possible.

It was also lovely to hear the judge thank M, and express his appreciation of the work carried out by people acting as Lasting Power of Attorney for people who’ve lost capacity. That must surely have felt supportive to Anna, whose sister has Power of Attorney for their mother.  I was alarmed by the challenges being put in the way of T’s friend and attorney and empathized with her position.  I think few people would expect to take on a task of this magnitude when agreeing to act as an attorney for someone, and there seems to be little support available for attorneys in this sort of situation. This is of some personal concern to me since I am a nominated attorney for four different people in the event that they lose capacity in the future, and have also appointed close family members as attorneys in the event that I lose capacity.  For any attorney it would be hard work to have to deal with the position taken by this local authority – and it’s a reminder that we should appoint as attorneys people who not only know and love us and know our wishes well but people also have the stamina, strength and skills to stand up to challenging behaviour from public authorities (and/or – as I’ve seen in other cases – from professionals).

I would add that the interactions between the two lawyers in this hearing was (for obvious reasons) rather less “collaborative” than at most Court of Protection hearings I’ve observed – and I worried that Anna might feel I had misrepresented the “inquisitorial” nature of the proceedings, given what I experienced as the occasionally clearly critical (or even acerbic) nature of the exchanges.

Finally, I tend to put myself in the role of the protected party and think “what if that were me?” and then figure out whether there is anything I can do now, while I still have capacity, that could protect me against ever finding myself in P’s situation.  My personal response to many hearings I observe is to tweak my Advance Decision to Refuse Treatment, or write an email to my attorneys that they can use as evidence of my wishes and feelings.  But there are some circumstances it seems very difficult to avoid.  In this case, T seems to have done all the right things – not least by appointing someone (her friend M) to make decisions on her behalf, both in relation to money matters and in relation to her health and welfare.  But the law doesn’t permit M to just remove T from the care home and bring her home (which is what I would want M to do for T in this situation, and what I would want my attorney to do for me).  I would wish my own attorneys to make all decisions for me in the event that I lose capacity.   But that’s not possible.  The state both withholds from attorneys the right to make decisions relating to deprivation of liberty, and also dictates the basis on which attorney’s decisions must be made. 

My experience as a first-time observer – Anna

When I first received an e-mail inviting me to attend a Section 21A COP hearing relating to my mother, my first reaction was anger (how have we got this far without the family being directly consulted?) and panic. What was the process? How would the family be involved and our voices heard? What was this secretive Court of Protection (COP) that was going to be involved in making fundamental decisions about my mother’s life? 

As a brief background, my elderly mother, who has Alzheimer’s, has been placed in a residential care home by social services, with the complete agreement of her children. This includes my sister who is her LPA* for both Health and Welfare and Finance and Property, and is a decision that we still support, as we fundamentally believe it is in her best interests.  

My mother has, however, not accepted the decision and when asked officially, says that she wants to leave the care home. In order to protect her human rights, she was appointed an RPR* after a DOLS* assessment. Following which the Official Solicitor appointed a solicitor to represent my mother, who has now filed court papers. This happened in a period of around six months, with no involvement from the family.

The case is officially “my mother vs the Council”. “vs”. What images did that conjure up for me? Crime, guilt and innocence, barristers arguing in front of a stern judge, in an imposing court room. “I rest my case, milord”. Waiting for a verdict that would have huge implications, with her family on the sidelines or even maybe not able to participate at all, silent spectators to a life-changing decision. 

Neither of the solicitors in the case could explain much about the process, and advised us to seek our own legal advice. Of course, we knew this meant incurring costs, which we wanted to avoid. I frantically started to try to find out more, going down internet rabbit holes looking for information about this type of hearing. 

And that’s how I came across the Open Justice Court of Protection Project website. I sent them an email. Celia Kitzinger, co-founder of the Project, got in touch which set off a train of events leading to me observing a hearing, within a very short space of time. Celia gave me a lot of invaluable advice, including about the nature of the COP. Very importantly, she explained that it was not an adversarial court but an inquisitorial one, with parties providing evidence that would enable the court to make the best decision for the individual. It is largely a collaborative process, with parties working together. 

I asked Celia if she could help me apply to be an observer of a hearing in order to learn directly about how it worked. I would not have had the first clue how to do this but she guided me through it, figuratively holding my hand, even to the extent of observing the hearing with me.

 The process started with Celia finding a Section 21A hearing. She sent the court an email the evening before asking to be an observer, and forwarded the email to me so that I could send an identical request. 

On the day of the hearing, I received a link to the hearing, which was being held on Microsoft Teams. It was a bit off-putting to read in the header: “TO BE HEARD REMOTELY, PRIVATE HEARING NOT OPEN TO PUBLIC”, the capital letters seemingly shouting that I wasn’t allowed to attend. However, Celia had reassured me in advance that that this message referred to the fact that only people who had been sent an official link could attend. 

Nobody asked me who I was or why I wanted to attend before sending me the link. That said, maybe the fact that my request e mail was identical to Celia’s indicated that I was known to her and therefore an acceptable person! The email included a link to a document, a Directions Order, with a previous date, which I quickly skimmed through to give me more information. This included information relating to the confidentiality of the hearing for all people attending, therefore including me as an observer. 

I logged on nervously ten minutes before the hearing was due to start. Celia had warned me to keep my camera and microphone off. When I was admitted, I saw a couple of people already waiting, some with cameras on and some not, and gradually more people joined. At the allotted time, the court clerk welcomed the attendees and waited for a late joiner. 

This hearing was not the first in the case and therefore the lawyers were familiar with each other. When the late joiner arrived, the court clerk notified and admitted the judge. 

There were seven people in attendance in total, three representing P*, including her LPA, one each representing the local authority and NHS (other respondents named), the judge, the administrator and two observers, myself and Celia. The LPA was not an official party to the case and she choose to keep her camera off. 

After initial greetings, the judge started by saying that there were two observers to the hearing, naming us. He addressed us directly, stating the private and confidential nature of the case, and asking us to indicate by silence that we had understood the law we had to comply with. I was slightly relieved not to have to speak, but would have done so if necessary.  

The judge then suggested that it would be useful to have a quick précis of the case to date to help us. I was really surprised by this, as I was aware that this would take up valuable time, but P’s counsel did this and it was indeed useful. Especially for me with a view that I would be involved in a Section 21A case in a few weeks’ time. The hearing proper then began. 

It lasted for an hour and a half. Each party was asked to speak in turn and various issues were addressed and returned to. The judge also invited P’s LPA (and friend) to speak at certain appropriate points. She was not a lawyer and I felt that a great deal of care was given to making sure that she understood where necessary and could make her feelings known. This was in spite of her not being an official “party” to the case. 

I found the judge very sympathetic and humane, and it was clear that he only had P’s best interests at heart. He was also sympathetic to the huge strains that the local authority was under, especially because of the pandemic, and also the NHS. 

P’s counsel was very good at bringing the court’s attention back to the fact that P is an individual person, trapped in what she called a “ Kafkaesque nightmare”. Everybody treated each other with respect despite their disagreements.

 Some time was spent trying to program future hearings, and dates by which further evidence had to be submitted in order to achieve those. The judge was consulting his diary during the hearing and working backwards. It made me appreciate both the demands on the time of legal professionals and the slow wheels of the legal system, even in this case for which it had been established that time was of the essence. 

The space for the hearing, being a virtual one, created an environment which I thought was probably better than being in a physical courtroom.  I liked being able to observe with the camera off and I felt that it created a certain informality, which made it less of a stressful experience. When at one point one of the attendee’s connection dropped, the hearing was paused to allow them to rejoin and it wasn’t a big issue. I could also see the participants’ faces during the hearing – if it was a physical courtroom, I would have been at some distance, looking at their backs and probably struggling to hear. I am pleased that the hearing about my mother will be a virtual hearing – it also makes it easier for me to attend.

At the end of the hearing, the judge authorized the two observers to have access to the position statements of P’s counsel and the local authority, provided the parties agreed. P’s counsel immediately said yes, and asked Celia (who then appeared briefly on camera) to send it to me, as she didn’t have my contact details. The Local Authority counsel said they would seek instructions (and have not sent their position statement). On reading the position statement of P’s counsel subsequently, it helped me understand further what had been discussed during the hearing and was therefore very useful. In an ideal world, it would have been helpful to have read this before the hearing, but I don’t know if this can always be accomplished. 

So, what have I learned? 

First, I have learned that having an LPA in place does not mean that the LPA can make all the decisions for a person no longer deemed to have capacity – and that those decisions they do make must take account of the person’s wishes and feelings.  The judge made that very clear. In law, an individual with dementia still has views that need to be listened to and taken account of, even if a family, who knows a person and cares for them, thinks they know best. The Court of Protection is the last shield of protection for an individual. Whilst now understanding more about why this legal protection is in place, it does make me question the ultimate value of an LPA for Health and Welfare, as I had assumed it meant that the LPA could make all the decisions in the best interests of P when they were deemed to no longer have mental capacity to make their own decisions. And I wonder how many LPAs fully understand the limitations.  

Second, this experience has really helped me to understand how the Court of Protection works and helped to demystify the process. I was particularly impressed by the care and attention given by the judge to helping make the experience accessible to a lay person, whether it be the LPA or P or myself as an observer. And I was pleased to hear him pay tribute to T’s LPA. I know from the experience of my family that my sister has had to spend a lot of time and energy supporting our mother as her LPA, in addition to her time spent supporting our mother through the care she provided before our mother was admitted into residential care. The COP process is a step that we hadn’t anticipated having to go through, and it shows what a commitment being an LPA is. 

Finally, I won’t comment on my thoughts as to the exact circumstances of T, as I don’t think it would be appropriate. I was more interested in observing the process. That said, it was difficult to hear the details, especially how long it was taking for a satisfactory outcome to be achieved.  I would add that in our case, the whole family is happy with the care being provided to our mother and she does seem happy at the home, even if she doesn’t want to accept it will be the place where she spends the rest of her life. Like many elderly people with dementia, she is fighting her infirmity, and wants to keep the flames of hope alive. 

Observing this case has given me more confidence about my involvement in my mother’s case, when I will probably be a party, at my request, and thus an active participant. The Open Justice Court of Protection Project has certainly helped shed a light on what had seemed an opaque aspect of the justice system. I am much more reassured about the process and certainly my anger has been assuaged. I would thoroughly recommend a family member involved in a similar case to observe a hearing if possible.  It is truly enlightening. 

As for me and my family, we still have a long road ahead but at least we can see it more clearly. 

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She has observed more than 300 hearings in the Court of Protection and hopes to observe future hearings relating to Anna’s mother when they reach court.  She tweets @KitzingerCelia

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.

*There are lots of initials to learn when involved in a case like this. LPA = Lasting Power of Attorney; RPR = Relevant Person’s Representatives;  DOLS = Deprivation of Liberty Safeguards; P = Protected Person

Photo by Jeremy Wong on Unsplash

Challenges in observing a (remote) hearing at Swansea Civil Justice Centre: Capacity for contact and sexual relations

By Celia Kitzinger, 6th May 2022

I had no idea what this hearing would be about.  I picked it at random because I had an hour free at 10am on the morning of Friday 22nd April, and thought I could profitably use it to perform my civic duty of supporting open justice in the Court of Protection.  

Here’s how the hearing was listed on CourtServe.

IN THE COURT OF PROTECTION WALES

YN Y LLYS GWARCHOD CYMRU

REGIONAL LEAD JUDGE HHJ CROWLEY

Y BARNWR ARWEINIOL RHANBARTHOL HHJ CROWLEY

Sitting at Swansea Civil Justice Centre

Yn eistedd yn Canolfan Llysoedd Sifil Abertawe

Friday, 22 April 2022

Dydd Gwener 22 Ebrill 2022

Before District Judge Taylor

Gerbron Barnwr Rhanbarth Taylor

Amser Cychwyn/ Start TimeManylion yr Achos / Case Details
10:00AMCase number 13738017 Re P to be heard via CVP – T/E 1  hour Rhif yr achos 13738017 Ynghylch -CR gwrandawiad trwy CVP – Hyd 1 awr 
from CourtServe

Access issues

When there was no response (by 9.40am) to my emailed application to observe the hearing (sent as requested in CourtServe to CardiffCOP@Justice.gov.uk, which is the email address of the Wales Court of Protection Regional Hub), I phoned to ask for the link to be expedited, and was told “you’ve come through to Cardiff”.  I explained I knew that, and that I was following the normal procedure for requesting access to a Court of Protection hearing in Wales.  The man who’d answered the phone said he’d transfer me to someone – it rang and rang, nobody picked up, and eventually it clicked back through to him again.  He tried a different number, and this time a woman answered who said she’d phone Swansea and let them know, and that she had already forwarded my  email to Swansea (as had I, while waiting on the phone).  I finally received the Cloud Video Platform link at 10.03am.

When I joined the hearing, I found it had not yet started.  The judge appeared a few minutes later and apologised to counsel for the late start, saying that she’d received a request to observe the hearing that had come via Cardiff and had to be referred on, and that this had caused a delay.

I was very pleased that the judge took open justice seriously enough to wait a few minutes to enable a member of the public to observe – but troubled that there didn’t seem to be a shared understanding about how members of the public are supposed to access hearings.  

Descriptors of issues before the court

As is commonly the case for hearings in Wales, the CourtServe entry for this hearing doesn’t include any description of the issues that will be before the court.  Compare it (for example) with this entry from the Midlands Region, which lists the issues as “P’s capacity regarding her ability to make decisions relation to care, residence and contact” and “Best interests regarding residence and contact, and consideration of whether expert evidence is required”.

from Courtserve

My understanding is that listings are supposed to convey this sort of information in the interests of transparency,  so that members of the public have a fair idea of the sort of issues that will be before the judge, and can make an informed choice about which of the twenty-plus Court of Protection hearings that take place every day they wish to attend. 

Some Regional Hubs (in particular the North-East-North Regional Hub, based in Newcastle) are very good at doing this – to the extent that I’ve created a hashtag #BeMoreLikeNewcastle.

I understand from having attended a number of Court of Protection User Group meetings around the country that other Regional Hubs are working on hard on this: I’ve noticed improvements in listings for the North-East-East Regional Hub (based in Leeds) – though I’ve yet to see any descriptors of issues before the court for Hull County Court (which is part of this Regional Hub).  And (as the listing above shows), the Midlands Regional Hub (based in Birmingham) is also making good progress towards transparency with listings.

I look forward to improvements in Wales.

Opening Summary

There was no opening summary to this case.

Counsel for the applicant, Rebecca Harrington (representing P via her litigation friend) simply launched into the case by saying: “A further s.49 report[1] on capacity is required for contact with others and for engaging in sex.  It’s increasingly important because P has formed a relationship and is also accessing the community independently at times….”.

It was disappointing not to have an opening summary.  I did not know at the time – and I do not know now – anything about P’s age, her wishes and feelings in relation to any of the issues before the court, or the history of the case.  I know only that she has a learning disability (apparently newly diagnosed). 

I assumed, at the time, that there might be a problem with getting through the hearing in a timely manner and that t the delay in sending me the link (and the judge’s willingness to wait until I had joined) meant there was now some time pressure on the proceedings.  In fact, however, the whole hearing (for which an hour had been allocated) was over in 11 minutes – so there would have been plenty of time to provide a case summary.

And, of course, the issues before the court could (and should) properly have been listed in CourtServe (e.g. modelled on the Midlands entry, something like “P’s capacity regarding her ability to make decisions in relation to contact and to engage in sexual relations”), and the opening summary should expand on that entry, with enough information about P and the history of the case to enable an observer to follow the proceedings.

Capacity to engage in sexual relations

Case law on capacity to engage in sexual relations has developed significantly over the last year, in particular via the judgment of the Supreme Court in A Local Authority v JB [2021] UKSC 52.

There’s been a lot of public interest in this case, and we’ve blogged about it several times as part of the Open Justice Court of Protection Project (e.g. “Capacity to engage in sex: Nine responses to the Supreme Court Judgment in Re. JB”; Capacity (and sexual relations) in the Supreme Court: Reflections on A Local Authority v JBCapacity to Engage in Sexual Relations: A forthcoming Supreme Court hearing).  

The Supreme Court affirmed that capacity for sex includes the requirement that P must understand not only that s/he can consent to or refuse sex, but also that a potential sexual partner must likewise be able to consent, and must actually consent, before and during the course of sexual activity.

Members of the public – especially those working with people who may lack capacity to make their own decisions –  are often interested to observe hearings related to their professional concerns.  There is no doubt that the application of case law in relation to capacity to engage in sexual relations is one such concern.  Listing the fact that this issue was before the court would have provided an incentive for observers to attend the court, and thus support the judicial commitment to open justice.  As it was, I was the only observer, and I had attended serendipitously.

I learnt later, from the position statement on behalf of the local authority (represented by Dafydd Paxton) something of the detail of this case.  It seems that P had “developed a significant attachment to a male resident, D, who also has additional needs” and that she “has expressed a desire to have sexual intercourse with him”.  Staff had assisted the couple to spend time with each other, including supporting them to go out on a date to a bar: P was helped to prepare her hair and makeup and pick a dress.  This was an event that seems to have meant a lot to P and she’s been keen to show professionals photographs of the evening.  

The local authority, in consultation with placement staff, has formed the view that P has the capacity to engage in sexual activity with D and an action plan to support them to have a romantic relationship, whilst also providing suitable safeguards, has been formulated.

Up until shortly before the hearing, the local authority had taken the position that there was sufficient evidence before the court to make a final decision on P’s capacity for contact and sexual relations with no need for further assessments or reports.  There were already reports from the allocated social worker, a consultant psychiatrist and a clinical psychologist.

However, counsel for P via her litigation friend took the position that an updating assessment of P’s capacity to engage in sexual activity was necessary, given the Supreme Court judgment.  (I assume that the original capacity assessment for P must have preceded it.)

As it turned out, by the beginning of the hearing the local authority was now content for further capacity evidence to be obtained.

Apologies that our position changed after submitting the Position Statement. We recognise that’s not ideal, but our client department reflected on the helpful Position Statement from the applicant[2] and has taken further legal advice, which is the reason for the change of position.  We agree that it’s necessary to have another s.49 report.  Our principal concern was the delay, but we accept that without it there might be a gap in the evidence at the final hearing”. (Dafydd Paxton, counsel for the local authority)

The judge asked, “Does the case need reallocation to a Tier 3 judge, given the capacity for sex issue?”. 

Neither counsel thought this necessary.  “The issues are not especially complex,” said counsel for the local authority, adding: “We also understand that P’s relationship with D has cooled, so it’s not such a pressing matter – although of course, given her access to the community, there is the possibility of other relationships”.  He also emphasised that “judicial continuity is worth its weight in gold”.

District Judge Taylor ended the hearing by saying she was pleased that P has “settled with the change in accommodation” (I believe this case started as a s.21A application because P had been expressing a desire to leave the placement.). She agreed with counsel that there was a need for a s.49 report (re capacity for contact with others and engaging in sex).  

The next hearing is listed for 10am for 2nd September 2022.

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

POSTSCRIPT (16th May 2022)

On 11th May 2022 (5 days after posting this blog), I received the Transparency Order and a Position Statement from Counsel for P.

The Transparency Order is in the usual terms and nothing in my blog post had breached it.

The Position Statement provides a little more information which sheds light on why the matter of P’s capacity for sexual relations is before the court. There had been a report from Dr L (dated 13th August 2021, with an addendum of 7th October 2021) which concluded that P “does not have capacity to engage in sexual relations“. More recently, the social worker (in a statement dated 21st March 2022) had set out her view that P does have capacity for sexual relations (but she makes this claim without having carried out a formal assessment of P’s capacity). There is, therefore, conflicting evidence before the court in relation to P’s capacity to engage in sexual relations.

Dr L had also reported that P has capacity in relation to contact with others, but the local authority has imposed restrictions on contact between P and D, and restrictions on the timing and location of sex between them. It wasn’t clear what the lawful basis for such restrictions could possibly be if, in fact, P has capacity for contact and capacity to engage in sexual relations.

On behalf of P, the applicant was seeking an order for a further s.49 report specifically to consider P’s capacity in relation to contact and engaging in sexual relations.


[1] See “What is a section 49 report?”

[2] I requested the applicant’s position statement but have not received it. I have also not received a Transparency Order in relation to this hearing and am working on the assumption that the ‘standard’ wording applies.

Photo by Anton Darius on Unsplash

Capacity to make a Lasting Power of Attorney

By Clare Fuller, 3rd May 2022

I wanted to observe this hearing because it was listed as being concerned with the validity of a Lasting Power of Attorney.

Here’s how it appeared in the Court of Protection list for First Avenue House in London:

Midday
20thApril 2022
Deputy District Judge Kaufman13628180 CC -v- The Public Guardian and NRC, Directions, LPA ValidityDirections1 hourRemote
Daily Cause List, First Avenue House

This is an area I work in as a Lasting Power of Attorney Consultant and advocate for Advance Care Planning.  It’s important to me because I believe in the value of a Lasting Power of Attorney in Advance Care Planning and have seen first-hand the challenges when this is not in place.

What is a Lasting Power of Attorney?

Lasting Power of Attorney is a legal document that enables someone to nominate a person or persons to act for them if they ever lose the capacity to make decisions for themselves. 

The person making the Lasting Power of Attorney is referred to as the donor. The person (or persons) appointed to act for them are called attorneys. 

Capacity to make decisions can be lost through a deteriorating long term health condition or a sudden accident or illness. 

Making a Lasting Power of Attorney can be recognised as part of normal life planning.

When a Lasting Power of Attorney is drafted there are key decisions to be made, important information to be included and safeguards maintained; one of these is ensuring that the donor has capacity to make the Lasting Power of Attorney.  

The Office of the Public Guardian publishes resources to help people to understand how mental capacity to make a Lasting Power of Attorney is assessed (see  LP12 Make and register your lasting power of attorney).

Assessing mental capacity.
To work out whether someone lacks the mental capacity to make a decision, you need to answer ‘yes’ to these two questions:Do they have a mental or brain problem that stops their brain or mind from working properly?Is that problem causing them such difficulty now that they are unable to make this particular decision at the time it needs to be made?Being ‘unable to make this particular decision’ means that the person can’t:understand relevant information about the decision that needs makingkeep that information in their mind long enough to make the decisionweigh up the information in order to make the decisioncommunicate their decision – this could be by talking, using sign language, pictures or even just squeezing a hand or blinking
LP12 Make and register your lasting power of attorney: a guide

The Office of the Public Guardian supports the Public Guardian in carrying out the legal functions of the Mental Capacity Act 2005 .  

Within the Mental Capacity Act 2005, section 9(2)(c) makes explicit that a person must have capacity to execute a Lasting Power of Attorney and section 9(3) says that An instrument which purports to create a lasting power of attorney, but does not comply with this (and other requirements) confers no authority.

The question of a person’s capacity (or otherwise) at the point when he executed his Lasting Powers of Attorney was the matter at issue in the hearing before Deputy District Judge Kaufman.  The Public Guardian was represented by Elizabeth Calladine, and the father of the young man who’d made the Lasting Powers of Attorney was in court as a litigant in person. 

The hearing

As is commonly the case in the Court of Protection, with its clear commitment to open justice, the judge asked the applicant solicitor (Elizabeth Calladine) to “set out a brief background to the case for the benefit of [the observers]

A man in his 30s (P) executed two Lasting Power of Attorney (LPA) documents on 7th October 2019, one for Health and Welfare and one for Property and Finance. Both appointed his mother as his sole attorney.  It became clear, later in the proceedings, that at the point he executed these LPAs, he had recently suffered a brain injury in some kind of accident. 

The Public Guardian has brought proceedings to cancel these LPAs as not having been validly created – although they have no objection to P’s mother continuing to support P and make decisions with and for him, and don’t believe that it’s necessary to appoint deputies.[i]  

The Pubic Guardian’s position is that the donor (i.e. P) “lacked capacity to create the lasting powers of attorney for property and affairs and health and welfare dated 7 October 2019 pursuant to  section 9(2)(c) of the Mental Capacity Act 2005  (MCA)”.  This means that “pursuant to section 22(2)(a) of the MCA  the requirement for the creation of a lasting powers of attorney has not been met” and so “under Schedule 1, paragraph 18(a) that the Public Guardian cancels the registration of the LPAs”. 

We learnt that P’s mother has said she doesn’t object to the application made by the Public Guardian and consents to the order that the LPAs will be cancelled.  

However, P’s father (F) has filed an objection stating he feels P is capable of making his own decisions.

This hearing represented the first meeting between the Public Guardian and P’s father.  Elizabeth Calladine said she had “tried to make arrangements earlier but maybe due to the bank holiday it had not been possible to sort it”.

DDJ Kaufman suggested an opportunity for Ms Calladine to talk privately with F “to see if agreement could be reached” and what actions would be most appropriate next. 

DDJ Kaufman explained the evidence the court had so far was from the Special Visitor from the Local Authority who had completed a Deprivation of Liberty for P during which he was identified as not being capacitous. “Obviously,” she said, “you know your son well, and that is very important, and we would listen to your views carefully”. 

Ms Calladine and F agreed to talk privately with a period of twenty minutes set by DDJ Kaufman for all to reconvene.

Following private discussion

After twenty minutes the hearing was reconvened with what appeared a positive outcome. 

Ms Calladine acknowledged the “really productive” time spent talking with F and clarified that the basis of F’s objection was not the matter of retrospective capacity (for the LPAs completed in 2019), but instead the current capacity of P. 

We heard that that P “has come back so much following the accident”, with areas of improvement including moving from a specialist unit to an assisted living facility and the ability to manage his own personal care. 

We heard that when the Special Visitor had previously seen P, he was unable to retain information (a key component in a capacity assessment), but that this had now improved. Further examples of P’s improvement were cited as his ability to participate in the passport application process for a recent holiday to Turkey. 

Agreement was reached between Ms Calladine and F that the LPAs created in 2019 were probably not created validly (due to P’s lack of capacity at that time), but that there’s a strong possibility that P might have capacity to make LPAs now. 

Ms Calladine requested directions for a further (up-to-date) capacity assessment for P, to be conducted (if possible) by the same Special Visitor, as P had previously got on well with her.

DDJ Kaufman responded by acknowledging the “extremely positive progress” made.  She said, “It’s important that everyone is very aware that capacity is time-specific, which means he may not have capacity at one point, but that doesn’t mean he’ll never have it in the future”.  

Invited to say anything else he wanted to, P’s father said that “at the time the last capacity assessment was done, he’d just come out of the coma, after 9 months.  He’d been moved from pillar to post. It’s very different now”.  He recited some of his son’s recent achievements – going on holiday, making decisions about what he wants to eat, and what he wears, describing this progress as “a massive change”.  He said that physically P was still struggling, “but mentally it’s lovely for us, the change is so much”. 

Next steps

The concluding part of the hearing focused on clarification of next steps before a final hearing (or perhaps an agreed order) – including the requirement for a fresh capacity assessment.   

DDJ Kaufman closed the hearing by acknowledging that P is “lucky to have a very supportive and involved family”.

My understanding is that the existing LPAs will be cancelled (since nobody is disputing the Public Guardian’s submission that P lacked capacity at the time that he made them).  But if he is now found to have capacity to make LPAs, he will be able to re-make them in the same terms (or different ones if he prefers) now. 

Reflections

Listening to the hearing I reflected on three key points of learning.

  • Firstly, how capacity can change over time and why reassessment is so important. 
  • Secondly the importance of planning ahead: it is impossible for any of us to know if and when a sudden accident may happen.
  • Finally, capacity can follow an upwards trajectory. We are often used to a downward trajectory (e.g. for people with dementia). To hear of an upwards post-brain-injury trajectory felt particularly heart-warming. 

Clare Fuller RGN MSc is a registered nurse with a career dedicated to Palliative and End of Life Care. She is an advocate for proactive Advance Care Planning and provides  EoLC Service Improvement and bespoke EoLC Education. Clare hosts Conversations About Advance Care Planning. She is also a  Lasting Power of Attorney Consultant and director of Speak for Me LPA. Connect with Clare on Twitter @ClareFuller17 


[i] A deputy is someone who has been authorised by the Court of Protection to make decisions for someone if they lack capacity. It may be necessary to appoint a deputy for someone who has not made a Lasting Power of Attorney or when the authority of attorney has been revoked. In essence, Attorneys are appointed by the person themselves in a Lasting Power of Attorney application before they lose capacity  and Deputies are appointed by the Court after capacity has been lost. There are significantly more costs in applying for Deputyship than for a Lasting Power of Attorney (and they are rarely granted for Health and Welfare).  Deputyship applications can also be a more lengthy process.  A further difference is the requirement of a Deputy to submit an annual report to the Office of the Public Guardian, something not required of an Attorney.

Photo by Alina Grubnyak on Unsplash

Medical treatment, undue influence and delayed puberty: A baffling case

By Celia Kitzinger and Claire Martin, 2nd May 2022

The protected party at the centre of the case is a woman in her early twenties who has not experienced puberty, because she has not been provided with the recommended medical treatment for her “primary ovarian failure”.

She has diagnoses of “mild learning disability” and “autism spectrum disorder, namely Asperger’s syndrome” which cause her to lack capacity to make her own medical decisions.  (She also has epilepsy and – at least at the start of the court case –  had a vitamin D deficiency). 

She was removed from her mother’s care in April 2019 and placed in a care home in order to ensure that she receives appropriate medical treatment which the local authority says her mother is preventing her from having by dint of exerting control and undue influence over P. (Her mother denies this.)

The treatment focus for the court is particularly on P’s primary ovarian failure. Without treatment, they say, there are significant health risks, including premature death (see: “Primary ovarian insufficiency in adolescents and young women”; “What are the treatments for premature ovarian insufficiency?”).

There was mention at some point during the hearing that someone from the Turner Syndrome Support Society had visited P and discussed treatment for pubertal induction with her.  The website has very useful information (some of it written for girls and young women) about oestrogen treatment and how to manage it.

Back in May 2020, the Official Solicitor stated unequivocally that treatment “should commence as soon as practicable and without further delay”. 

However, it seems 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 have observed two hearings in this case (COP 13236134), both before Her Honour Judge Moir. We know there have been many other hearings as well. The first hearing we observed was on 26th May 2020 (observed by Celia Kitzinger).  The second was on 25thand 29th April 2022 (observed by Claire Martin).  When we shared information with each other about the hearings we’d (separately) observed, we were surprised, and dismayed, by the apparent lack of progress over this 23-month period.  

We’ll provide some background information (based on a Case Summary, helpfully provided by counsel at the hearing on 26th May 2020) and then each of us will give an account of the hearing she observed [1].

We are “baffled” (as the title of this blog post conveys) because it was absolutely clear at the hearing in May 2020 that the local authority, P’s social worker and P’s endocrinologist were strongly committed to ensuring that P should receive endocrine treatment, and this was endorsed by the Trust and by the Official Solicitor. Although we haven’t seen the judgment, we’re almost certain that this must also have been the conclusion reached by the judge.

Medical treatment was, as the social worker put it in May 2020, the “bigger concern” that weighed against P’s (and her mother’s) Article 8 rights to family life.  It justified not only removing P from her home but also instituting a total ban on contact between mother and daughter for a six-month period. 

But nearly two years later, it seems that endocrine treatment has not been given, and there is discussion of P returning to her family home – either with or without her mother in residence there too – in the hope that (after all this!) her mother will then be able to persuade her to have it.

There will be another hearing in this case, this time before a Tier 3 judge in the Royal Courts of Justice, in June or July 2022.  We hope to be able to observe it, and perhaps matters will become clearer for us then.  We are left with many questions and uncertainties about the case at the moment.

Background: The court’s decision of 18th June 2020

P lived at home with her mother until 9th April 2019 when she was conveyed to a residential placement following an interim authorisation by the Court.  

The local authority had started legal proceedings in the Court of Protection following two safeguarding alerts raised by the NHS on P’s admission to hospital having suffered epileptic seizures on 13th September 2017.  Hospital staff had noticed that P had not undergone puberty and reported that P’s mother appeared to exert a domineering influence over her.

Final judgment regarding her place of residence, deprivation of liberty and care and treatment, was handed down on 18th June 2019.  (Neither of us observed this hearing).

Based on the evidence before it, the court made findings including that:

  • P lacks capacity to conduct proceedings and to make decisions about where she should reside, about her care and support needs, about her medical treatment and about her contact with others
  • P has a diagnosis of primary ovarian failure, the treatment for which is sex hormone replacement therapy
  • Receiving the treatment would have no adverse impact on P
  • Without treatment, the long-term prognosis for P is “extremely bleak” – with an increased risk of osteoporosis, facture risk and an increased risk of premature death through stroke and cardiovascular disease.
  • P’s mother was not accepting of this medical advice, continuing to press for a second opinion, despite the evidence being that there is no range of medical opinion on this issue
  • The court could have no confidence that P’s mother would encourage or support P to take the requisite medication or to keep hospital appointments
  • P’s mother preferred P not to ‘grow up’ and to remain instead dependent on her and isolated without any outside influence or interference
  • P’s mother exhibited no motivation to support P to develop a sense of identity separate from her and showed no inclination to assist P to achieve any growing independence
  • P’s mother was resistant to the idea that P should progress, cease to be like a young girl, or achieve any independence
  • The court had no confidence that P’s mother would facilitate and support any care or treatment plan.

By order of 18 June 2019, the court made final declarations that P lacked capacity to make all the relevant decisions and that it was in her best interests to reside at Placement A and to receive care and support, including treatment for her epilepsy, her  ovarian failure and her vitamin D deficiency.  It was also declared in P’s best interests to have supervised contact with her mother and her grandparents, and a schedule of contact was appended to the order.  

At a review hearing on 17th December 2019 that contact was reduced.  Contact was still to be  supervised and to cover only approved topics of conversation.

Hearing on 26th May 2020, by Celia Kitzinger

The hearing I watched (remotely) on 26th May 2020, before Her Honour Judge Moir sitting in Newcastle, was listed as a review hearing.  I  wrote a brief summary of the case shortly afterwards in this blog post for The Transparency Project. Here I’m writing a fuller account based on contemporaneous notes from the hearing.

By the time of the hearing, P had been living at Placement A for about a year – and my understanding is that this is some geographical distance from her family home.

During her time at Placement A,  there had been a “significant decline” in P’s engagement with her epilepsy treatment and she had not attended any appointments with her endocrinologist. She was not receiving sex hormone replacement therapy. 

The court was informed that she also has “low mood” (which all therapeutic options so far have failed to ameliorate). She neglects her personal hygiene, intermittently refuses to eat and drink, and is refusing to engage in any social activities and is spending increasing time in her room.

The local authority (with the support of  P’s social worker, P’s epilepsy clinician  and  P’s endocrinology clinician) was seeking a further order by which all contact between P and her mother was to be suspended for an initial six-month period.  This is said to be “essential for P’s physical, emotional and social wellbeing”. Contact between P and her grandparents could be maintained (twice a week) but subject to supervision.

During this six-month period, it was proposed that there would be ongoing MDT consultation reviews to monitor and review any health and welfare concerns.

The Official Solicitor and Trust were both broadly supportive of that position. 

P’s mother opposed it. She wanted P to return home.

Most of the full-day hearing was occupied with hearing from two witnesses: P’s social worker, and P’s mother.  Here is a flavour of the oral evidence from each of them

1. Social Worker

The social worker was cross-examined by counsel for P’s mother, counsel for the NHS Trust and counsel for P via the Official solicitor.  I have selected some salient extracts from each cross-examination.  Her core position was that P’s mother has “hindered” P’s engagement with staff seeking to support her with endocrine treatment and that cessation of all contact between mother and daughter for a six-month period was essential.  According to the case summary I was sent,  P is refusing to engage with her social worker, “pulling her bedclothes over her head and/or pretending to be asleep when she visits”. 

Counsel for P’s Mother (Natalia Levine)

Levine:  It seems to me that the local authority has been quite quick to assume wrong-doing of family members rather than seeing the problem as lying with the placement and restriction of contact.  P wants to return home, doesn’t she?

SW: Yes.  But she doesn’t understand the full range of issues that led her to be conveyed to Placement A.

Levine: She’s been nearly a year now at Placement A.

SW: Yes.   We’ve been trying to engage with her the best way we can, but it’s been trial and error. It takes time.  Contact with [P’s mother] has sometimes hindered the approaches that staff have tried to take. 

Levine: Right, but what has happened in real terms is that P’s presentation has deteriorated.

SW: Yes.  There have been concerns about self-care and neglect. We are trying to address them with health education and communication.

Levine: The amount of contact she is able to enjoy with family members has decreased since April last year and she has also deteriorated over that time.

SW: We’ve stuck to the schedule of agreement.

Levine: She’s having less contact with her family, and her condition has deteriorated.

SW: Yes, but there are small pockets of progress.  She will engage with some staff quite positively.

Levine: The order sought is a huge infringement of P’s Article 8 right to family life.

SW: P has a right to a long and healthy life in her own right.

Levine: Does it ever cross your mind that the problem is not the family but the placement?

SW: The placement provides opportunities for P and a well-informed community team.

Levine: Do you not agree that just because a placement on paper looks like it can meet the needs of someone, that doesn’t mean it can do so in practice?

SW: I get what you’re saying, but the risks of returning P home outweigh the benefits.

Levine: As I see it, there’s a breakdown in trust between P and some of the staff members.

SW: Unfortunately, those incidents have occurred because of [Mother’s] involvement and influence.

Levine: Do you not think that if a placement was found closer to where P was originally from, it might open up the opportunity for her friends to visit.

SW: There’s a paucity of specialist residential facilities (goes on to explain)

Levine: P does feel isolated due to geography – that should be a huge incentive to explore alternative placements, and also the difficulties with staff members.

SW: A new placement wouldn’t solve the issues with the family. It wouldn’t change the dynamics that any staff team would have with [Mother].

//

Levine: Has P had any contact with individual friends?

SW: No, she didn’t want to engage with that at all.  Some effort was made […] but [Mother] has been reluctant to provide information about P’s friends to staff.

//

Levine: (If the no-contact order is approved) are you going to return to court to reinstate contact if P continues to deteriorate, or what?

SW: We accept that P will be upset at a no-contact position, but we have to prioritise a long-term health condition, so we would expect a six-month review.

Levine: You have a 21-year-old whose presentation has deteriorated over the last 12 months and you say, ‘we’ll have a six-month review and we’ll monitor it”.  If she stops eating and drinking as much as she is now, and refuses medication, what are you as a local authority going to do about it?

SW: Our bigger concern is her longer-term health.  It’s not about ignoring those issues.  It’s about working with P to support her.  Her going home, or to another placement, won’t address the bigger issue of her not accessing the endocrine treatment.

Levine: Who is going to tell P about the order of the court today?

SW: Normally that would fall to me, but as she’s not engaging with me that could be someone else.  If she doesn’t choose to speak to me, it will be others in the community team.

Levine: What is she going to be told?

SW: We’ll prepare some easy-read information and think about the most person-centred way of dealing with this.

(This segued in a discussion of the COVID-19 restrictions – which were quite new at this point: there was mention that they “could  last until Christmas”.)

//

Counsel for the NHS Trust (Joseph O’Brien QC)

O’Brien: When the court gave a judgment in June last year, Her Honour found that  [Mother’s] interaction with P was stifling her opportunities to experience quality of life.  Have you seen anything to support that [Mother] has taken those words to heart and changed her behaviour at all?

SW:  No.  There have been only two occasions when she’s worked with staff to support P: one to help her agree to washing her hair, another time to facilitate her taking medication. It’s the exception rather than the rule.

//

O’Brien: Is it right that contact is used as an opportunity for [Mother] to influence P.  (Reads out message from Mother to P from Para. 41 of the records):  “I love you P and you are beautiful. Don’t let them break you.  Stay strong and don’t let them tell you what to do”.

SW: Yes, that’s a bit of a concern. There’s a statement there to tell P not to work with staff.  

//

O’Brien: In February of this year, you were of the view that contact should remain as it is and you were worried about the serious impact that terminating or suspending impact between [Mother] and P would have on P.  But the passage of time has convinced you that the balance of evidence has shifted.

SW: Yes.

O’Brien:  It’s significant in your view that P should engage in endocrine treatment that is valuable to her quality of life.  When you look at the balance sheet of probability, do you believe that endocrine treatment is more likely to take place with [Mother] continuing to have contact with P or not.

SW: It’s less likely if [Mother] has contact.

Counsel for P via the Official Solicitor (Sam Karim QC)

OS: How is P at the moment? You say she’s not eaten for a while and her fluid intake is not good and that she hasn’t changed her clothes for a while.

SW: Since that statement she has been eating and drinking – but I don’t believe she’s showered or changed her clothes.

OS: What steps have you taken?

SW: We’ve provided easy read reminders of self-care – it’s as I said a bit of a trial-and-error approach.

OS: How long has this been happening?

SW: It’s been happening the last 9-10 weeks, but prior to that there have been earlier periods when she’s done this.

OS: What do you think is the cause?

SW: A range of factors.  Her mood.  Contact with [Mother].

Asked about restrictions on visits by P’s grandparents, the SW said this too was “so they don’t undermine the care team with negative comments about the professionals”.

2. Mother

P’s mother said it would be “cruel” to stop contact between her and her daughter.  She maintained that she had assisted staff to encourage P to take medication (contrary evidence was read out in the form of a message from mother to daughter saying “don’t let them tell you what to do”).   She believes P has capacity to make her own decisions (including about medication and sharing information with staff. Her statement that if her daughter had been at home, she’d have been taking the endocrine treatment by now was a “surprise” to the court because (said counsel for the Trust) it had appeared that the mother herself opposed endocrine treatment without a second opinion from another expert.  The mother’s explanation that the second opinion was (and had always been) part of an attempt to persuade her daughter to take the medication that she herself was already convinced her daughter needed was treated with considerable scepticism by counsel for the Trust, whose cross-examination of the P’s mother was characteristically robust.  

Counsel for P’s Mother (Natalia Levine)

Levine: You know that the local authority application is to restrict your contact with your daughter so you would have no contact with her at least for six months.

Mother: I disagree with it strongly. It’s cruel. It will have a devastating effect on my family, particularly my daughter.  Restricted contact has made my daughter retreat to her bed and become seriously depressed. She’s become more depressed and withdrawn.

P’s mother gave examples of times when the care home had contacted her for assistance to persuade P to take medication (“and she took the medication within 5 minutes and they’d been trying for hours and hours”), and she described saying to P, “why don’t you have a bath, why don’t you freshen up?”.

P’s mother was very clear that she wanted her daughter back home, where “she saw her grandparents every other day, she was always outdoors, she was happy, she had her dancing” and was able to see her friends. 

She said: “You’ve all had my daughter in care for over a year now, and all that it’s done is she’s depressed.  I’m sure you didn’t intend for her to be locked up, but she is. The less she’s seen of us the more it’s damaged her – and the depression went along with that”.

Ps mother also stated her belief that P would take sex hormones (“medication for her development”) if she were able to come home:  “That should have been sorted.  This has all prevented her taking that medication. My daughter is a maternal sort of girl. She’s already lost that year of taking these tablets. She could have been taking these for a whole year, if she’d been at home”.

Local Authority (Jodie James-Stadden)

Stadden:  You would say, would you not, that P’s decision not to go to medical appointments and not to get showered or change her clothes – those are decisions she has made for herself?

Mother: I think they are a result of her circumstances. (Cites P’s “depression and general unhappiness”; and P’s neglect of personal hygiene is because she dislikes “people peeking in on her in the shower”). It’s not the case she’s made a conscious decision. She’s worked out a way to cope with the misery that she’s in.

Stadden: Your counsel says you remain of the view that your daughter has full capacity to make decisions for herself?

Mother: Yes.

Stadden: You still reject the decision that Her Honour made last year that your daughter does not have capacity?

Mother: I think my daughter has capacity.

Stadden: And you are adamant that your daughter’s behaviour at the placement has nothing to do with you at all.

Mother: Absolutely not. My daughter has started to repeat bad language and she’s become more inward. This is not my daughter – she’s usually happy and free-spirited.

Stadden: Isn’t the truth of the matter, Mrs P, that throughout the time your daughter has been at this placement that you’ve tried to undermine the staff in their efforts to engage her.

Mother: Absolutely not.  I’ve tried to work alongside the staff.  I’ve offered information about her dancing and I’ve offered to take her dancing shoes down, but she has decided she doesn’t want to do that.

Stadden:  But you heard [the social worker] say earlier that you have shown a marked reluctance to give staff details of your daughter’s friends.

Mother:  I reject that.  I asked my daughter, “is it okay if I give staff your friends’ details?” and she said, “no, absolutely not”.  She’s 21 years old and I think it’s up to her as an adult whether she gives those details out.

Stadden: So you’re saying the only reason you haven’t given those details out is because your daughter told you not to.

Mother: Absolutely.

Stadden: Part of the reason for your daughter being in her current placement is to encourage her to be more socially integrated and less isolated.

Mother: Of course.

Stadden: Why haven’t you then encouraged your daughter to give details of her friends to members of the staff to promote her building on those friendships and becoming more socialised?

Mother: I think it’s very unfair of you to say that. I’ve spoken about this many times with my daughter. I have encouraged it. I do want my daughter to be more sociable. 

Stadden: There are no records of you saying ‘come on then, let me give them X’s phone number’

(Mother says she’s mentioned it several times)

//

Stadden: There’s been no progress with treating P for primary ovarian failure since she’s been in this placement.

Mother: Exactly! And if she were at home she’d have had it.

Stadden: There’s no evidence of you ever having positively encouraged your daughter.

Mother: Yes I have!  I’ve always told my daughter, ‘take all of your medication’.  Why is everyone saying everything negative about me when I’m her mother, and I love her.

//

Stadden: You say you’ve done your best to get your daughter to engage, but there’s no evidence in terms of telephone records of that – but there are notes saying you’ve tried to undermine your daughter’s placement. For example, telling your daughter the staff were breaking the law by not allowing her to have contact with you when she wants.

Mother: I think I said she was entitled to two telephone calls.

Stadden: There are other things you’ve said and done that aren’t permitted by the contact schedule, but you’ve gone ahead. Like the diary.

Mother: Yes, let’s discuss the diary please.

Stadden: ‘Don’t let them tell you what to do’ – now, that’s not encouraging your daughter to engage and comply with the staff, is it?

Mother: It was all meant to boost my daughter’s morale. Usually, she’s so free-spirited and happy. It was all meant in a positive way.

Stadden: How is ‘don’t let them tell you what to do’ a positive comment to your daughter?

Mother: Because it’s good when my daughter makes up her own mind.

Stadden: The contact schedule says not to undermine – by action, words or comments – the care staff or the approach they take to her. Surely that comment is undermining?

Mother: By ‘them’ I meant ‘anybody’. Why would you take it I meant ‘staff’?

Stadden: The schedule also says you shall not raise or discuss with her returning to live with you. Yet you just recently said to her, haven’t you, that you’re trying to get her home.

Mother: She’s so depressed. What’s wrong with her coming home?

Counsel for the NHS Trust (Joseph O’Brien QC)

Counsel for the Trust focussed on statements the mother had made – apparently for the first time in the course of this hearing – about accepting the need for her daughter to have endocrine treatment.  “Everyone who has been involved in this case,” he said, “may be as surprised as I am to hear that you now think this treatment is essential for your daughter.”

P’s mother said this had always been her view.  Her previous insistence on a second opinion was not, she said, because she herself doubted the need for her daughter to have endocrine treatment, but because P did.

It was that my daughter needed to hear it from someone else… I knew it was essential. It was about what was the best way to convince P, nicely, and sugar-coated, to take the treatment, and not in a negative or psychologically and emotionally distressing way.” (Mother)

Joseph O’Brien read out a passage from the previous judgment to the effect that P’s Mother “does not accept” the expertise of the treating clinician who had recommended the treatment, and asked, “are you saying the judge misunderstood you?”.

Mother: I think I was misunderstood, yes.

O’Brien: When did you realise you had been completely misunderstood by everyone in that court?  […] You are making up all of this in order to support a return home, and you do not believe your daughter needs this treatment.  This is a ploy by you, Mrs P, to try to persuade people that you believe this treatment is necessary in order to get your daughter home.  You know that is not what you believe.  What have you done by way of contacting Dr A and asking “Doctor, how can I progress this treatment for my daughter?”

Mother: I object. I haven’t contacted Dr A but we do have letters with appointments for my daughter to go.

O’Brien: No, this is the way for you to get her home, so she doesn’t have this treatment.  Okay – what about this. How about arranging an appointment at SH?

Mother: Why do we have to go to SH?

(O’Brien leans back in his chair, closes his eyes, and shakes his head from side to side in a display of incredulity)

O’Brien: Why, oh why, oh why can you not see that that would be the way forward?

//

O’Brien: Why has it taken you until now to tell us that the premise of this case and the premise of the judge’s findings were completely wrong?

Mother: I think I told my solicitor.

O’Brien: You’re making this up, aren’t you?

Mother: No, I am not.

O’Brien: You are fabricating a story that – on any basis of the judgment given last year – this treatment is not necessary until I get a second opinion that tells me it’s necessary.

Mother: That’s not true. I object.

O’Brien: So serious is your suggestion now that you have been misunderstood completely, that this shows a level of deviousness that you cannot be trusted in terms of contact. […] I am going to give you again the opportunity of accepting that your position last year was that treatment wasn’t necessary, without a second opinion.

The judge intervened.

Judge:  When did you reach the opinion the endocrine treatment was necessary for your daughter?

Mother: I’ve known the treatment was necessary. It was just the most sugar-coated way of getting her to accept this.

Judge: Why has a year gone past when you’ve not sat her down and told her she needs the treatment. You’re her mother – why have you not made the effort?

Mother: P’s attitude is ‘I don’t want to talk about it’. And also the very limited contact time. There’s so much P wants to say and wants to get off her chest.

Official Solicitor (Sam Karim QC)

Karim: The independent expert said that P has a mild learning disability and Asperger’s.  Do you accept those diagnoses?

Mother: No, because we have two psychological reports that say otherwise, including one who knows P well – and he’s older and has kids himself.

Karim: Last year you said one of the reasons you wanted a second opinion was because of lies.  Is that still true.

Mother: I don’t know why Dr A said that P had no uterus and no ovaries. The fact is that she does have these parts that Dr A said she didn’t. This was the most distressing thing to my daughter. You can understand why this would be so distressing to a girl of that age, and family is paramount and she is very maternal.

//

Karim: You gave a view about why you think P is not taking the medication in relation to epilepsy.

Mother: I don’t know why she’s not taking the medication for epilepsy.

Karim: “You are beautiful. Don’t let them break you.  Stay strong and don’t let them tell you what to do”. What does that mean?

Mother: I just meant what I said before, to boost my daughter’s confidence to be her own self and make her own mind up.

At which point the judge intervened:

Judge: What does, “don’t let them break you” mean?

Mother: We knew how depressed she was. It meant, “don’t let them get you down

Judge: “Don’t let them get you down” and “don’t let them break you” are two different things aren’t they.

Closing submissions

For the local authority, Jodie James-Stadden said:

P’s eligible needs have not changed. The issue is that there’s been no progress. [The social worker] has very openly and properly identified a number of different reasons as to why P isn’t engaging, and why she’s neglecting her self-care and refusing to have anything to do with the staff, and certainly the treatment, and now declining even to have anything to do with the epilepsy treatment. […]. The basic premise for [the social worker] is that [P’s mother] is adversely influencing P from engaging positively with the professionals charged with her care.  This was the issue from the outset.  We have no confidence that she’d comply with a community team. She doesn’t accept that her daughter doesn’t have capacity despite the court having made a final declaration on that.  Home didn’t work. The placement didn’t work.  The placement with reduced contact didn’t work. She encourages her daughter to (to use her own word) “protest”.  This can only be addressed by removing this adverse influence for the time being to allow some positive relationships to be built, to make some progress with the education that needs to follow to persuade P that she should engage with treatments for her own health and well-being.  In terms of an alternative placement, that’s not a viable option at the moment. This is a specialist provider in supporting people with a learning disability and autism.

Judge: No progress has been made. The indications are that P is not happy.  Why should we persevere with this placement under those circumstances?

Stadden: Because she would not make any progress at home.  She would not be socialised if she were to return home, and she would not receive the treatments. Bar the dancing class and the odd trip to [a shopping centre] with her mother and friends who are either significantly younger, or [name] who is her mother’s age, she has no peer group.  The issue is how to make her daughter happy where she is.

For P’s mother, Natalia Levine said:

It’s a very draconian step to stop contact completely between family members. It directly impacts on their Article 8 rights and the court has to be sure it’s the right course of action.  The court can’t know that in this case. It’s quite clear that P’s presentation has deteriorated over the last few months, and so has her contact with her family. She’s clearly very unhappy. […] She’s a young lady who wishes to have significant contact with her family members. For her to be told that she is to have no contact with them for six months, with no plan backing that up, is surprising and concerning. […] [P’s mother’s] view is that P’s position in that home has become untenable, and trust has broken down, and that’s why an alternative placement should be looked for.  She could move more locally, meet her friends, have a less restrictive placement.  [P’s mother] acknowledges it’s unlikely that P will be allowed to return home, though that is her ultimate aim.  In the meantime, she would like to keep contact with her daughter, maybe even increase it, to encourage P to engage in the process.  If you are minded to grant the order the local authority seeks, I would urge you to reconvene this hearing in 2 months’ time, to monitor the deterioration and reconsider.

For the Trust, Joseph O’Brien said:

When, in June of last year, you gave a judgment, you made a significant order that it was in P’s best interests to have treatment for her primary ovarian failure and for her epilepsy […] You said that if P was in the care of her mother then, as we know occurred before, the administration of medication will not be supported, or indeed occur.  […] The advantages of treatment are significant and fundamental. It is 100% effective, without risk. It ensures a normal life expectancy and no death by serious fracture or cardio-vascular disease.  The disadvantage is that it is against P’s wishes – however she has not been able to form an independent judgment. Those findings in your judgment are as valid today as they were 12 months ago.  What we have seen over the last 12 months is little engagement with the endocrine treatment, and  continued concerns about the way in which [P’s mother] seeks to influence her daughter as to whether this treatment should take place.  Be in no doubt, Your Honour, that the phrases that were used in the diary were, we submit, designed to continue the line of resistance developed by [P’s mother] and imparted to P to encourage her not to engage.  It is of considerable worry and concern to the Trust to hear the evidence of [P’s mother] today, which completely rewrites the history books.  If she’s right that she’s always supported this endocrine treatment, you may well wonder this: ‘what on earth was I hearing evidence about for days last year?’  And it really was quite staggering to hear her say ‘I have supported this all along’.  It elevates her lack of credibility to new levels, Your Honour.  And that is really important, because Ms Levine makes a case that you should have trust in [P’s mother] to promote her daughter’s interests.  And you can’t have trust in that.  If she’d come along and said, ‘I was wrong’, we’d all have to stand back and say, ‘Let’s have a look at this again’.  She doesn’t.  She says when she was articulating a case for a second opinion, she wasn’t: she’s saying she knew it all along.  That, Your Honour, strikes at the heart of the question of trust.  How can you honestly trust her to promote P’s welfare when she’s totally unwilling to recognise what her case was last year. That is sinister. That shows a level of formulating a case in order to derail the very treatment that is so necessary to her daughter. We respectfully submit that that evidence reinforces the local authority’s case as to why you should stop the contact.  […]. All of it, Your Honour, points towards a failure on [P’s mother’s] part to genuinely and honestly accept that this treatment is necessary. It is part of a game plan to get her daughter back home.  And if she goes back home, there is no prospect of this treatment ever taking place.  That’s because she doesn’t accept that her daughter lacks capacity to make her own decision.  So, when Ms Levine talks about Article 8 rights, I endorse that, and so does the Trust. But the Article 8 right we talk about is a right the hallmark of which is the right to develop as a young lady should, and not be faced with cardio-vascular disease at thirty or forty, or unnecessary fractures to her body. The right to flourish.  [P’s mother] seeks to undermine, totally, the need for this medical treatment, and that is compelling in terms of the outcome of this case. It’s not draconian. It’s absolutely vital to ensure that this young lady develops in a way that promotes her health.

For the Official Solicitor, Sam Karim said:

P’s mother has not been positively supporting P to take medication. The explanations from her are not plausible.  So, is stopping contact necessary, proportionate and justified?  P isn’t having fluids, isn’t dressing, isn’t showering, is plainly unhappy.  But it’s more than about social needs.  It’s about the primary ovarian failure. It’s a fundamental right. This engages her Article 8 right to develop into a woman, to go from the pre-puberty stage into adulthood.  And this continuing delay exacerbates the risk of coronary heart disease and osteoporosis, and it will reduce the efficacy of treatment when it commences.  The longer this situation continues, the less chance there is to mitigate the risks and ensure the proper efficacy of the treatment.  The question for you is whether complete cessation of contact is necessary, proportionate and justified.  If you approve the order sought by the local authority, we suggest a three-month review process.  In terms of the Official Solicitor’s position in respect of ovarian treatment, that is a treatment that should commence as soon as practicable and without further delay.

The judge said she would hand down judgment on another occasion. I was not present at that occasion and I am not aware of a published judgment on the case. 

I didn’t expect to learn any more about what had been decided for P and her family.  I assumed, given the (apparently) universal agreement in court that P should have endocrine treatment for her primary ovarian failure, that this would have been arranged, one way or another, within weeks of the hearing in May 2020.

I was shocked to learn from Claire Martin, who observed the hearing nearly two years later, that this has apparently not happened, despite the view of her endocrinology clinician that there are serious risks to P in failing to receive the treatment, “which risks become ever greater to mitigate as time progresses”.

Hearing on 25th & 28th April 2022, by Claire Martin

This hearing caught my attention when looking in CourtServe because it was listed for four days as a contested hearing – which sounded interesting.  When Celia saw the case number, she realised that it was a case she’d seen before and sent me a summary of what had happened at the previous hearing she’d observed.  

The applicant this time was P’s mother (who I am calling M, with new counsel – she’s represented this time by Michael O’Brien).  She’s applied for P to return to her family home, either in the sole care of her mother (Option A), or in her family home (without her mother living there) with a 24-hour package of care (Option B). 

I think that P is still unhappy living in the care home and that she has still not been receiving the medical treatment deemed in her best interests at the previous hearings, and she remains at high risk of medical complications as a result. The reason I say ‘I think’ is because I deduced this from the hearing, rather than it being stated explicitly. There wasn’t an opening summary of the case and its history, and I have not seen the Position Statement for any party (despite requesting these).

The exchange below is what leads me to believe that a) P is still not settled in the care home and b) she is not taking her medications (‘nothing is happening at the moment’). From this I deduce that, because of this situation (if I am correct), M has brought this application, and it is being considered. Otherwise, if P was settled or at the very least taking her medications, why would the court even consider the application (given the previous ruling that it was M who was stopping her taking her medications)? 

Judge: [P] herself doesn’t want option B. She wants to live with her mum.

M O’Brien: She wants to live with her mum, who’s put it forward as an option for the Local Authority. It has been raised at the advocates’ meeting. The Local Authority still hasn’t made a decision about whether it’s wiling to fund it. Option A would cost less – a package of care would have carers coming in but would not be 24/7 care.  

Judge: Is that the case you want to put forward? 

M O’Brien: M is anxious to get on with this but also wants … if it’s the case that Option A is considered by Local Authority, then the best option to get her to take her medications is at home with Mum. 

Judge: The Local Authority is suggesting a period of 6 months of supervised contact. [M] hasn’t taken up telephone contact for some time … I would like to know if M would cooperate with the Local Authority, and whether in fact she IS behind the provision of medication for [P].

M O’Brien: Mum says she’s passionate about getting [P] to take her medication now. The best thing would be if she can convince her within a 12-week period to take it – she thinks she can. Mum very much fears that nothing is happening at the moment and that’s detrimental for her daughter. As far as phone contact is concerned, she appreciates the Local Authority wants an evidence base. She’s concerned. She hasn’t spoken to her daughter for TWO YEARS (last time was May 2020). That’s a very long time with nothing happening. She is now very upset and very passionate the medication needs to be sorted, and is convinced that if she’s in a secure environment with mum that’s the only way to do it.

So, M is now saying that returning home to her care is the only way to ensure that P will receive the treatment. The previous ruling (in 2020) was predicated on accepting the argument that the only way to ensure P received  her medication was to remove her from her home and significantly restrict contact with her mother. 

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) and P’s mother is proposing that she is the only person who will be able to persuade P to take it.

Right at the start of the hearing, Counsel for P’s mother said that he wanted to raise the issue of ‘whether this hearing can be effective’. He said that the Local Authority had not visited M’s house to assess viable options for the application for P to move back home, and that this evidence (along with any proposed funding package) was necessary for the hearing to proceed. He was critical of the Local Authority for being unprepared: “It’s unsatisfactory, unhelpful but there we are”. 

There had been several delays that morning before the hearing started. It was scheduled to start at 10.30am but the hearing did not get underway until 12.04pm. Statements by counsel suggested that they had been working away in the background to try to resolve the issue of the Local Authority visiting and assessing the home environment, prior to starting the hearing. Given that the application was expressly for P to return home, I was surprised that this assessment had not already been completed. 

The hearing on 25th April lasted two hours and was then adjourned until Thursday 29th April, which was a planned short directions hearing to agree the interim court order and establish dates for a final hearing. This hearing had been a planned four-day final hearing, and for all concerned, this situation did indeed seem ‘unsatisfactory’.

At the same time, given that the court order from a previous hearing in 2018 stipulated (medication issues aside) that it was not in P’s best interests to live with her mother, I was confused about the basis on which this application was made, and what had changed. 

Joseph O’Brien QC (counsel for the NHS Trust) addressed this matter when invited to offer submissions for the hospital Trust: “Option A [P living at home with her mother] is out of the picture on Best Interests grounds. [There is a] recasting of the findings you made at the original hearing with no evidence as to that change”.  I think by this, he meant that M was ‘recasting’ herself as willing and able to facilitate medical treatment for P, despite the court finding, at a previous hearing, that she had actively discouraged her daughter from accepting the recommended treatment.

Given that the original findings had stated that the court had no confidence that P’s mother would facilitate and support any care or treatment plan, I wasn’t sure what had changed to suggest she took a different position now. 

On behalf of the Trust, Joseph O’Brien QC suggested that no evidence had been submitted to demonstrate that her mother had changed her view in relation to helping P accept and receive the required medical treatment. 

The findings at the previous hearings had been quite damning of P’s mother: that she had “exhibited no motivation to support P to develop a sense of identity separate from her and showed no inclination to assist P to achieve any growing independence”, and “P’s mother preferred for P not to ‘grow up’ and to remain instead dependent on her and isolated, without any outside influence or interference”.  

Notwithstanding all of the above, all parties agreed that, given that the application was for P to return to the family home, Local Authority evidence was needed about what the potential options were in the form of a witness statement detailing their recommendations. 

I formed a strong sense that this application would not have been countenanced had P’s current care arrangements and relationships been successful at ensuring she received the necessary medical treatment (the main reason she was taken into Local Authority care in the first place). 

I am 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. 

Jodie James-Stadden (Counsel for the Local Authority) stated:

The Local Authority has been asked if they would commission a package of care – but for the Local Authority, as things stand, this is hypothetical. The transfer, finding a home …. into P’s name, is not in the Local Authority’s gift. It will require [P’s mother] to have a dialogue with [housing company] which has not been achieved. There is confusion about with whom the responsibility lies. If [housing company] say they wouldn’t consider it, then it’s not on the table. ….. Not the happiest outcome this week.”

Sam Karim QC (counsel for P via the Official Solicitor) focused on the lack of contact between P and her mother: 

I have urged my learned friend for [M] to partake in telephone contact which has been offered since last year – it is proposed as a stepping stone. The Official Solicitor has found it hard to reconcile why she hasn’t.”

Judge: Yes, it has been on offer for 6 months plus. 

Karim: I would urge her to reconsider it. She has had no contact. 

M O’Brien: I would respectfully suggest that Your Honour reads the Position Statement.

As I wasn’t sent the Position Statement, I’m not sure what Counsel for M meant at this point, but he went on to say that any contact between P and her mother is likely to be emotional and that P herself is likely to ask whether she can go back home to live, at which point the call would be ended by the person supervising contact, since that is a topic that (by court order) is not allowed to be discussed. 

Reluctantly, Judge Moir agreed to adjourn the final hearing. 

A brief resumption was agreed for Thursday 28th April 2022 at 12 noon to set out the plan for the final hearing, which is likely to be before a Tier 3 judge, probably Mr Justice Poole, in June or July 2022.

The Local Authority will now visit P’s mother’s house on 26th April 2022 and there is a proposed meeting between her and P’s case worker. P’s case worker will be providing a witness statement and recommendations to the court for P’s care, based on her assessment. 

Reconvening on 28th April, Judge Moir said: “I have received a document from [the case worker]. It’s the only document I have had, since Monday. I have made extensive enquiries as to when the matter could be listed before Mr Justice Poole. It is not easy.” 

It was clear that finding mutually convenient times for all concerned, that fitted with the availability of a (specified) Tier 3 judge, was extremely difficult. The whole system seems tightly stretched. 

Jodie James-Stadden confirmed that the order before the court was the same as the one brought on Monday 25th April, and that this hearing was merely to address re-listing of the case. She helpfully (certainly for me!) summarised the current position in relation to the case: 

“Information needs to be sought from M’s landlord. The Local Authority needs to look at potential commissioning and whether option B [P living in the family home without her mother living there] is viable. The order also records the Local Authority’s continued offer to M for telephone contact with P, and that M continues to decline that offer. It effectively maintains the status quo [in relation to] residence and care. There is provision for additional 1:1 24hr support for P. … There is provision for M 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.” 

Judge: Mr M O’Brien?

M O’Brien: Your Honour, the position for [M] hasn’t changed – she wants a hearing as soon as possible. The main purpose of now was to get that date, but the court is not able to get it. I have nothing to add really. On behalf of M, she wants a hearing as soon as possible – if Mr Justice Poole can’t do it, perhaps we can look at other Tier 3 judges for a more reasonable date. 

There was a lot of discussion about whether an alternative judge would be possible, or whether the FDLJ (Family Division Liaison Judge) was preferable, what dates were in the offing and whether a sooner date could be offered by a different judge. None of this was resolved at this hearing. 

The judge concluded the short (15 minute) hearing thus: 

Right. There’s nothing further we can do this morning, I will approve the order that’s been sent through.”

Reflections

I was astounded that a planned 4-day final hearing had to be adjourned almost immediately. My observations of the court system (connected only to the Court of Protection admittedly) have been that the pressures on the system are immense. Court time is precious. Four days set aside in everyone’s diaries should not collapse at the very start of a hearing. 

I wasn’t sure whether the condemnation of the Local Authority (by counsel for M) for coming unprepared to the hearing was fair or not. Given that it was decided that the Local Authority should assess the home environment, his criticism seems well-founded. At the same time, I have some sympathy with the Local Authority position that any assessment is ‘hypothetical’, since the current court order is that P should reside at the placement and should not live with her mother.

I am now interested in such situations: if a court order has been made, can parties who are unhappy with the outcome persist in bringing the case back to court? Or was the application allowed because (it appears) that placing P in the care of the Local Authority has not resulted in the (medical) outcome that was the principal aim of the court order? I am also aware that there are likely to have been additional hearings between the one observed (by Celia Kitzinger) nearly two years ago and the hearing I observed in April 2022, and those hearings may well have resulted in additional directions and orders that have influenced what happened today.  (That’s one reason why the parties’ Position Statements would have been so helpful in understanding this case.)

I am reminded of one of the first hearings that I attended as an observer (blogged here). That was about a man with dementia and the application was to medicate him covertly in his best interests, which the judge approved fairly swiftly. I am not advocating one way or the other here, but notice that it was ruled that it was in the best interests of a man with dementia to be medicated covertly, and yet P in this case does not seem to have received court ordered medical treatment for two years, and 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).

The discussion at the hearing alluded to care staff being unable to ‘persuade’ P to take her medication and P’s mother submitted (via counsel) that she herself (when she initially had contact) had tried to persuade P to take it. I don’t know the logistics of the specific medication that P needs to take. I just found it curious that the reason P was removed from her mother’s care was to facilitate a necessary and urgent medical regime, and this has not happened. For two years. 

Leaving the issue of medication for P’s condition aside, it is clear from submissions from all parties that P has not thrived where she currently lives. I came to this conclusion primarily from what was omitted in submissions, rather than what was included. I strongly suspect that, if P were thriving or at least successfully taking her medications, counsel for the Local Authority would have said so. Evidence (in 2020) from the social worker outlined the same situation at that time (when P had been living in the home for one year). Whilst safeguarding concerns were borne out in the court decision in 2019 to move P out of her mother’s care, it would seem that what has transpired since is that (at least where P is living now) Local Authority care has not been successful, either for expediting medicine delivery or, equally importantly, for P’s psychological wellbeing more broadly. 

My heart sank a little reading the evidence from the social worker in 2020, referring to ‘trying to address [self-care and neglect] with health education and communication’. Clearly, I do not know the details of what and how approaches were tried with P, but I thought the omission in all discussions (that I am aware of) missed the key point that P has lost her main attachment figure (whatever is thought about the quality of care that P’s mother provides). 

I would suggest that (if submissions by counsel for the Trust are correct such that P was utterly emotionally enmeshed with her mother) taking her away from that relationship without careful attention to P’s attachment needs and how to work with that as a focus (at least initially), would be devastating for P. ‘Health education’ and a focus on actions and behaviour would miss the relational trauma that being wrenched out of her family home and key attachment relationship would have brought (as I said, regardless of the safeguarding issues attached to that home environment). The reports of P retreating into herself, neglecting herself and refusing to socialise would support this possibility. 

I am left with two over-riding responses. First, this is a very, very protracted situation for P, not only in terms of the delay in her receiving court-mandated and necessary medical treatment, but also (according both to M and the Local Authority) P doesn’t seem to be adjusting to and engaging with carers at her placement. She was reported to not be washing, not socialising, not eating well and not ‘engaging’ at the 2020 hearing. Her mood (perhaps unsurprisingly if she is living somewhere she does not like) was said to be suffering. The implication at the 2022 hearing (though it wasn’t discussed in detail) was that the situation was the same, which was why M had brought the application. In order to want to look after oneself, get washed, get dressed, join in with life, we all need to have hope. I am wondering whether P has lost hope for herself. Psychologically, it seems difficult to justify P remaining where she is after this length of time. 

Second, the forced adjournment of the case seems scandalous in terms of public expenditure. If the application for P to move home has been made and accepted (notwithstanding the previous judgment that P should not live at home with her mother) then surely the parties should have prepared evidence to submit in relation to the application? This evidence was not ready. It didn’t seem to me that any public body was being held accountable for that. Conventionally, costs are not apportioned to parties in the Court of Protection. I have been reflecting on whether this seems fair in this case, when parties have not prepared adequately for a hearing, causing loss of court time, and the huge costs associated with that. 

We hope to be able to report on the case from the Open Justice COP project when it comes back to court in June or July 2022. 

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

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


[1]  We are not allowed to audio-record court hearings ao direct quotations from the hearings we observed are taken from contemporaneous notes made at the time. They are as accurate as we can make them, but they are unlikely to be entirely verbatim.

Photo by Mourizal Zativa on Unsplash

Treatment against his wishes but in his best interests (without direct evidence on litigation capacity)

By Celia Kitzinger, 29th April 2022

Although his wishes and feelings are not to have this operation, those wishes and feelings are based on delusion… I give less weight to his views for that reason.[1]

So said Mrs Justice Arbuthnot at a hearing on 28th April 2022 concerning a man in his late 50s (Mr SH) with schizoaffective disorder, Type II diabetes and gangrenous toes on his left foot.

He is refusing surgery because he doesn’t think he needs it.  

It was reported in court he’d told the Official Solicitor’s agent that he is firmly opposed to surgery.  He said that God has already healed his foot and that the blackening of his toes as a result of necrosis is simply dried blood which will dissipate.  He also said that doctors are lying when they say that he needs treatment.

It’s not unusual for the Official Solicitor to take a position contrary to the views of the person at the centre of the case in the Court of Protection. People deemed to lack mental capacity to conduct their own litigation proceedings do not have the freedom to instruct their legal team to present their position for them.  Instead:

The current practice in the Court of Protection looks to the litigation friend not to represent P in any conventional sense but to instead identify and relay P’s wishes and feelings, investigate and assess the available options, and present what the litigation friend considers to be in P’s best interests”. ( “Litigation Friend or Foe”).  

In this case, the position of the Official Solicitor (Debra Powell QC) did not reflect Mr SH’s  views (opposing surgery).  Instead, she said that it was in Mr SH’s best interests to have the treatment proposed, even if sedation and force have to be used to take him to hospital and to enable the surgery to be performed.

If you’re deemed to lack litigation capacity, this can have a devastating impact on the way your lawyer presents your case in court – especially when the subject-matter choices you make are considered by others to be unwise.

The hearing

The hearing was originally listed to start at 2.00pm – but I received an email telling me it would be delayed until 2.30pm and in fact it didn’t begin until 3.10pm.  The judge apologised, saying that her previous hearing had run over.  We didn’t end until about 5.30pm. 

After Mrs Justice Arbuthnot talked observers through the requirements of the Transparency Order, counsel for the Trust provided a very helpful summary of the case, which segued seamlessly into an opening submission.

The TrustNageena Khalique QC,

The applicant Trust was seeking an order to enable it to perform surgery under general anaesthetic to improve the blood flow to Mr SH’s foot (angioplasty), and to remove dead tissue (partial amputation of the left big toe, and the second toe, plus debridement of the remaining toes on his left foot).  

Mr SH has “enjoyed a reasonable amount of independence and mobility”, said Nageena Khalique QC, but now, due to the pain in his foot, he is no longer able to do things that matter to him – including “getting out and about” and “going to the shops”.  He’s been in considerable pain, and although he didn’t want to go to the hospital emergency department, he went just a week ago (admittedly, after staff said the police would be called if he didn’t get in the ambulance) and it was found on examination that the blackened skin now extends over a larger area than on previous examination two months ago, meaning that the gangrene is progressing and he risks further spread, leading to a possible need for below-the-knee amputation, or even possible sepsis and death.

There seems no doubt but that this clinical treatment stands the best chance of saving Mr SH’s leg, and hence his mobility.  But he believes that (without treatment) his leg will get better and “in two or three weeks I’ll be running on it”. 

The evidence is that his decision-making ability is affected by “an impairment of, or a disturbance in the functioning of, the mind or brain” (2(1) Mental Capacity Act 2005) which means that he is not able to understand, retain, or weigh information relevant to making the decision (s.3 Mental Capacity Act 2005).

His mental health problems are long-standing.  He began attending psychiatric care in 1995 and has had a number of inpatient admissions, most recently for 6 months ending in June 2018 when he was discharged to the current mental health home where he’s settled. He is “largely compliant and responds well” to the anti-psychotics he’s prescribed, but has some “residual, treatment-resistant psychiatric symptoms” which include religious delusions.

Mr SH believes that he can free people from sin.  When he suffers from tremors he believes these are acts of God. The Trust’s position is that Mr SH lacks capacity by reason of these “religious, grandiose, delusional, symptoms”.  Nageena Khalique QC said: “he’s unable to accept that his toes are poorly or that he needs any treatment for them, and has an unshakable belief that God will make him better”. 

Mr SH also has a fear of the Hospital where the Trust wants him treated as his mother died there following infection and sepsis due to a retained swab that had been left in situ after an operation.  This, said Nageena Khalique QC, is an “understandable fear”, but she emphasised that “the primary driver [behind his refusal of surgery] is his delusional thoughts and his belief that God will heal his toes”. 

If, as the Trust believes, Mr SH lacks capacity to make a decision for himself, then a best interests decision needs to be made on his behalf.  

It is clear that the angioplasty, amputation and debridement would produce the best clinical result.  A consultant surgeon has written a witness statement to that effect, and was standing by to give oral evidence.  

Surgery would enable Mr SH to regain his mobility and hence enhance his quality of life, and thereby also improve his psychological health (according to the consultant psychiatrist witness statement). 

It’s unlikely Mr SH would resist, or require restraint for the surgery to be carried out – he has, after all, complied previously with staff telling him to do things he doesn’t want to do. But if restraint were to be required, the consultant anaesthetist (another witness) has offered to visit Mr SH in the care home and ensure it is carried out by someone other than his regular careers (so that they do not lose his trust). 

Of the available options, the Trust position is that a general anaesthetic on just one occasion, enabling all the surgery to be carried out at the same time, would be in Mr SH’s best interests – and far better than doing nothing (which is what Mr SH wants), or carrying out the surgery in two stages (first the angioplasty, then the toe amputation and debridement) – necessitating two separate general anaesthetics.   Nobody is proposing a below-the-knee leg amputation at this stage, although that was likely to be the outcome in the future if no treatment was delivered now.

Finally, Mr SH’s brother had been consulted and agrees with the Trust’s position.

Litigation Capacity

There followed an awkward discussion of the fact that – as it turned out – Mr SH’s capacity to litigate these proceedings had not been assessed.  The consultant psychiatrist who assessed Mr SH’s subject-matter capacity (i.e. his capacity to make decisions as to medical treatment) did not properly assess his litigation capacity: “she candidly says she didn’t discuss litigation in any detail”.  

Lacking empirical evidence (from a capacity assessment) that Mr SH does not have capacity to instruct a lawyer himself, Nageena Khalique QC drew on ‘in-principle’ arguments from case law.  This boiled down to the claim that since Mr SH lacks subject matter capacity, he is “highly unlikely” to have litigation capacity.

She read from Re P [2021] EWCOP 27, in which the judge (Mostyn J) quoted from an earlier case (Sheffield City Council v E [2004] EWHC 2808 (Fam)) in which  Munby J stated: 

Whilst it is not difficult to think of situations where someone has subject-matter capacity whilst lacking litigation capacity, and such cases may not be that rare, I suspect that cases where someone has litigation capacity whilst lacking subject-matter capacity are likely to be very much more infrequent, indeed pretty rare. Indeed, I would go so far as to say that only in unusual circumstances will it be possible to conclude that someone who lacks subject-matter capacity can nonetheless have litigation capacity.”

Mostyn J then said (and was quoted by Nageena Khalique QC): 

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

The suggestion was that this ‘in principle’ argument – that since Mr SH lacks capacity to make a decision about medical treatment, it would be illogical to imagine that he has capacity to conduct litigation about that medical treatment – obviates the need for anyone to conduct a capacity assessment with Mr SH to determine whether or not, in practice, he has litigation capacity.  It can simply be assumed that he does not.

The judge accepted this argument, saying “there should perhaps have been an earlier consideration of litigation capacity, but it is quite obvious what the answer is to that”.

On the one hand I was quite disturbed that Mr SH’s lack of capacity to conduct legal proceedings was simply deduced,  without empirical evidence.  But I also strongly suspect, given what I heard, that had empirical evidence been sought, the same answer would have been reached – and an adjournment for a few weeks  to get that evidence before returning to court would have left Mr SH at risk of his gangrene spreading further, and mean that more of his toes might need to be amputated. It was a pragmatic but uncomfortable solution – and not one I would want to see adopted frequently by the court.

The Official Solicitor: Debra Powell QC

The judge turned next to counsel for Mr SH whose position was effectively the same as the Trust’s.

Debra Powell QC began by checking that the formal requirements had been met such that she could act as Mr SH’s litigation friend (i.e. that Mr SH could be deemed to lack litigation capacity) and the judge confirmed this.

Debra Powell QC  had previously stated that she had no questions for the witnesses – three of whom were on the platform: a consultant vascular surgeon, a consultant anaesthetist, and a consultant psychiatrist.  She described their witness statements as “very thorough”, said they “canvass all the issues”, and concluded that “the evidence is clear and cogent that this is the least restrictive option – and the only option that provides him with a realistic option of keeping his leg”. 

The decision, she said, was “obvious”:  “from a medical point of view there’s no doubt about his medical best interests, but the quality-of-life issues are overwhelming”.  

She reiterated that Mr SH’s opposition to surgery is based in delusional beliefs: “(1) that God has already healed his foot – he says the black is dried blood (but it’s because the tissue is dead); and (2) he’s convinced – and uses colourful language to express the belief – that doctors are lying to him.

This contrasts (she says) with opposition to surgery expressed by some other Ps in other hearings who’ve expressed “a firm and consistent view that they would rather die with 2 legs than live with one”.  Mr SH’s wishes and feelings are “important”, she said, but “shouldn’t take precedence”.   

A comparison can be made with another case in which the judge authorised treatment contrary to the patient’s wishes.   

This was not a man who had expressed a wish to die, rather than have this treatment. This is a man who has consistently maintained, and I consider genuinely believes that he would get better without treatment. Unfortunately, that possibility is entirely irreconcilable with the medical evidence.” (Hayden J, §25 Pennine Acute Hospitals Trust V TM [2021] EWCOP 8))

She ended by saying:

There is no evidence that he’ll suffer psychological harm from having the procedure done against his will.  He may be angry and upset and to some degree distrustful afterwards, but that needs to be weighed in the balance  against what would happen if his foot deteriorates.  

So in my submission this is the least restrictive option, giving him the best chance of a longer life and  the best quality of life.  The best interests decision comes down in favour of surgery as soon as possible.”

The judgment

There was a break of nearly an hour while the judge “gathered her thoughts” and (re)read the paperwork before delivering an oral judgment.

Her judgment added a little more detail from the court bundle of evidence about the extent of Mr SH’s refusal to accept treatment and his refusal to attend hospital for appointments on several occasions. 

She ran through the evidence for his not having the capacity to make the decision for himself about medical treatment for his legs, saying much the same as the two lawyers.  

Her judgment on best interests, too, relied heavily on what the lawyers had said. 

She concluded:

“It’s in his best interests to undergo the angioplasty, amputation and surgical debridement as a single planned surgical admission which gives the best chance of preserving his lower left limb which will enable him to do the things he enjoys and maintain a significant quality of life not too dissimilar to his current lifestyle. Although his wishes and feelings are not to have this operation, those wishes and feelings are based on delusion… I give less weight to his views for that reason.  It is lawful, necessary, proportionate and in Mr SH’s best interests  to make the declaration sought and to approve the order.”

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


[1] We are not permitted to record Court of Protection hearings. Quotations are based on contemporaneous touch-typed notes and although they are as accurate as possible, they are unlikely to be entirely verbatim.

Photo by How-Soon Ngu on Unsplash

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