This was a short hearing about a long-running case[1] concerning a man in his twenties (MA) who has a learning disability and autism. Following an unpublished judgment by Hayden J back in July 2021, MA lives at a placement where he is deprived of his liberty.
In July 2022, the local authority sent a COP DOL11 renewal application to the court requesting renewal of MA’s deprivation of liberty under the Re X streamlined procedure[2], but there have been a number of delays – some due to a backlog of applications in the court system, and some caused (says the local authority) by his mother.
At the last hearing, on 23rd February 2024, seven weeks earlier (we blogged about it here: Judge declines to authorise a deprivation of liberty (for now)) the mother – who is also MA’s Rule 1.2[3] representative – said that she’d not received or had time to consider her son’s updated care plan or his Positive Behavioural Support plan. The observer wrote: “Given that MA’s mother had been unable to file a witness statement that reflected her views on MA’s current care, the judge declined to authorise the deprivation of liberty at this hearing. He listed the case again for a one-hour hearing at 2pm on Wednesday 27th March 2024.” So, this was that hearing held, as previously, before Deputy District Judge Reeder, sitting (remotely) at First Avenue House.
In an opening summary, counsel for the applicant local authority, London Borough of Haringey, Rebecca Hancock of Field Court Chambers, said that MA’s mother/ Rule 1.2 representative has now read the relevant documents and provided a statement in response which raises some issues which would be properly dealt with as s.16 Welfare proceedings, rather than a second or third go at dealing with this under the streamlined procedure. This includes the mother’s concerns about medication, support levels, activities and social stimulation, and contact between MA and his family.
The judge noted that “arrangements made in relation to family time didn’t appear to correlate with what was actually happening” and told counsel to make sure the new care and support plans were up to date. The court order of March 2022 required active review of family time every three months, but that hasn’t happened. On behalf of MA, via his mother/Rule 1.2 representative, Richard Alomo of No5 Chambers said that there hadn’t been any review of family time – but that this has now been provided for in the draft order, which (with both parties’ agreement) also reconstitutes the proceedings as a s.16 Welfare case. The parties have also agreed on what evidence needs to be before the court for the next hearing: my understanding is that it includes information about staffing levels, how waking night care operates, the current activity plan, and a review of contact arrangements.
I think the parties disagreed as to whether or not the judge should authorise MA’s ongoing deprivation of liberty in his current placement while the broader issues are considered. I haven’t seen the final order and I’m not sure whether the judge did or did not do so.
The parties also disagreed as to whether or not his mother should act as MA’s litigation friend in the reconstituted s.16 proceedings. The local authority thought the Official Solicitor should take that role, in part because of the possibility of a conflict between the mother’s strong views about contact with her son, and the need to act impartially as MA’s representative.
The judge said that the court “might now have reached the end of the road as far as the Re X procedure is concerned” given that “you had one stab at redoing it and things were still not in proper order”. He said he was “presently minded to reconstitute it as a welfare application”. He considered the question of whether or not the mother should be appointed as litigation friend, noting that the Official Solicitor is the litigation friend of last resort and that the mother had “conducted herself perfectly properly as a 1.2 representative at the same time as being MA’s mum”.
“The ability she’s shown to wear two hats is the same for a litigation friend. Nobody has raised issues or evidence to support her being prevented from being litigation friend. When talking about family time, she needs to be led by MA’s wishes and to support MA’s wishes. I can see nothing in the paperwork, nor has anyone pointed me to it, that would constitute a challenge that mother couldn’t meet wearing both hats. Unless there’s a compelling argument against it, then, I will appoint Mum as litigation friend for MA. If things reach an impasse, I can reconsider that position, but let’s hope that problem does not crop up.”
We hope to observe when the case is next back in court.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 500 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia. She can be contacted via openjustice@yahoo.com
Footnotes
[1] I discovered that other observers had actually watched this case – before first Williams J and then Cohen J – right back in the very first month at the beginning of our Open Justice Court of Protection Project in 2020. Here’s what Upeka de Silva says about it in June 2020 – in the very first blog post we ever published. “The case (listed as Case 13155577 Re: M), created a rollercoaster of emotions. It related to a contact order between a mother (the applicant), a brother (litigation friend) and a local authority care home in which P was currently residing. While there were Covid-19 related concerns in relation to visiting, the primary tension seemed to be about a breakdown in trust and cooperation between the mother who wanted to bring and share lunch with her autistic son and the care home who had refused her admittance for a period. It was heart-breaking to think this had to come to court. On the other hand, Mr Justice Williams maintained unwavering focus on what is right for P and preventing him being exposed to a toxic atmosphere. The hearing lasted an hour, an order requiring both flexibility and stability was granted, and I left feeling reassured that person-centred decision-making, an issue I feel strongly about, prevailed.” (Upeka de Silva, June 2020, One and a Half Remote Hearings in the Court of Protection) ( Also covered by David Haxon, July 2020 (before Cohen J) “A stop-start hearing”). There don’t seem to have been public observers (at least known to us) at the subsequent hearings before Hayden J
In July 2020, a woman identified in the judgment as “PC”, collapsed at home with a cardiac arrest. This was totally unexpected: she was otherwise fit and well (and only in her early 30s). Despite resuscitation from her family and then from the Ambulance service, her heart stopped beating for at least 30 minutes. She sustained severe generalised hypoxic brain damage.
It turns out, from later investigations, that she has “long QT syndrome”. This is an inherited heart problem that affects the heart’s electrical activity and can cause cardiac arrest (there’s an NHS page about the condition here). She wasn’t aware of this – and the NHS does say that some people with long QT syndrome don’t have any symptoms and don’t know they have this condition until something goes wrong.
PC had been a lively, active, fun-loving person who loved to walk outdoors, travel, and listen to music. At the time of her collapse, she’d been about to start studying for a biomedical degree
More than three years after her cardiac arrest, PC has been assessed as being in a disorder of consciousness in the lowest end of the spectrum of awareness (Minimally Conscious State minus [MCS-]). This means she is able to focus on and track objects or people in her environment. When subject to interventions that might be expected to cause pain (and sometimes spontaneously too) there is also facial grimacing, moaning and profuse sweating – but there is a question mark over whether or not she actually experiences pain. She’s unable to communicate or interact socially with anyone, including family members. She cannot show that she recognises people and is unlikely to be able to discriminate between them. She breathes on her own, but receives clinically assisted nutrition and hydration (CANH) via a tube into her stomach.
According to the independent expert, Professor Derick Wade, Consultant in Neurological Rehabilitation: “Almost all recovery seen after hypoxic brain injury occurs within 12 weeks, possibly with a few people improving a little over the second 12 weeks”. The medical consensus more than three years on is that PCs condition is permanent and there is no prospect of any improvement.
Like most people, unfortunately, PC hadn’t made any formal advance decisions about what she would want in this situation. Nor had she ever discussed what she might want with her family. As her sister said, “It never crossed anyone’s mind before to even speak about it because she was very healthy”.
So, it was up to those providing life-sustaining treatment – and now up to the judge – to decide whether or not continuing to provide it is in PC’s best interests.
This blog post is divided into two parts.
The first part (“I. Best interests and delay”) is largely based on the documentation received from the court[i]. Without it, we’d have very little idea of what was going on. It should provide a useful summary of the case as it stands at present – and since the case will be back in court in late April, it will provide useful background reading for anyone wanting to observe that hearing.
The second part (“II. The hearing”) deals with what actually happened in court on the day. It gives a sense of the challenges faced by observers, and also of the kinds of procedural issues the court has to deal with in addition (and prior) to hearing substantive weighty moral and legal end-of-life issues. For non-lawyers, we hope it conveys a sense of what lawyers spend a lot of time doing – arguing about reporting restrictions, searching for colleagues willing to act pro bono, and arguing for or against adjournments – all the messy business of law-in-action.
I. Best interests and delay
There seems to have been a delay in bringing this application to court – and indeed, a delay in considering whether or not continuing treatment was in PC’s best interests.
As far as we can tell from what happened in court, and from the documents we’ve received, PC was diagnosed as having a “permanent” disorder of consciousness in Spring 2021, following multiple testing and brain scans at the Royal Hospital for Neurodisability (RHN) where she’s an inpatient. However, there was no best interests meeting with relevant professionals and members of PC’s family until March 2023 (so two years after her MCS- became “permanent”). There was no explanation available to the court as to why this best interests meeting was so delayed.
The apparent failure of the Royal Hospital for Neurodisability to hold a timely best interests meeting for PC is especially surprising given the court had extensively criticised the RHN for delay in decision-making about another patient, ‘GU’, in June and July 2021 – so just a few months after PC was admitted to their long-term care ward.
The case of North West London Clinical Commissioning Group v GU[2021] EWCOP 59) concerned a 70-year-old man in a prolonged disorder of consciousness (‘GU’) who had been cared for in the RHN for many years. The (then) Vice President, Hayden J commented that the hospital (an acknowledged ‘centre of excellence’) was actually “a long way behind the curve” in engaging with up-to-date legal and professional standards. Reviewing the evidence presented in the independent report, and hearing from the family, Mr Justice Hayden considered it “highly likely” that GU had been subject by the RHN to treatment that was not in his best interests for some time. He also criticised the fact that the RHN were not party to the proceedings, commenting that “The hospital can’t be allowed to hide away from responsibility by not confronting decisions that need to be taken and then not joining legal proceedings”. We blogged about the case here: Clinically-assisted nutrition and hydration: Decisions that cannot be ignored or delayed.
In a supplementary hearing after deciding the substantive matter before the court in GU, the judge made a series of very powerful observations about the obligations imposed upon treating bodies to ensure proper consideration of whether continuing treatment is in a person’s best interests, and to take proper steps to secure timely resolution of any dispute. See our earlier blog post: “Burdensome and futile” treatment and dignity compromised: Poor practice at a leading UK hospital. We would have expected this case to have prompted the Royal Hospital for Neurodisability to ensure best interests decision-making for all patients in their care – including PC.
It was clear that the Official Solicitor had the same expectation. In her position statement for the PC case, the Official Solicitor referred back to the case of North West London Clinical Commissioning Group v GU[2021] EWCOP 59 and expressed a concern that “lessons may not have been learned, and significant delays in bringing cases of this nature to court are still occurring”. She further submitted that there should be “an independent review of the evidence disclosed by the ICB and RHND to ascertain whether the protocols and procedures in place to ensure timely best interests decisions are made for patients in PDOC are consistent with the Royal College of Physicians Guidance and are sufficiently robust to ensure that delays in cases of this kind will not be repeated”.
A documented best interests meeting for PC did not finally take place until nearly two years after her diagnosis of her condition as permanent, in March 2023. At that meeting all present agreed that it was no longer in PC’s best interests to continue with clinically assisted nutrition and hydration (CANH). The treating clinicians were all of this view, and so were the family. Her mother said that PC “wouldn’t want this life as she was independent and active” and her friend said “hand on heart she would want to go”. The position of the family was confirmed in a letter written by PC’s sister received in early April 2023. Their view at that point was that this was not a quality of life that PC would have found acceptable for herself.
An independent second opinion expert, Professor Derick Wade, also concluded that there was no prospect of improvement in PC’s condition and, after speaking to the family, he also came to the view that it was no longer in her best interests to continue CANH. After review by the RHN Ethics Committee in May 2023, it was agreed that CANH would be discontinued on 14th June 2023.
Then, following a visit from a cousin in early June 2023, both parents changed their position and stated that they now felt that CANH should continue.
In subsequent statements, this cousin stated that PC “was a fighter who held onto life very tightly”. Her view is that, whatever the medical evidence says, “we as her family will always have hope that one day [PC] will eventually heal; time is the best medicine”. She described looking into PC’s eyes and feeling that PC is saying to her “I want to live… do not let them take my life away from me…. I can definitely see in her eyes that she would want to continue living and having hope that one day her body, mind and soul will recover from this trauma”.
The mother says she feels “guilty” about the decision made at the previous meeting – which she sees as about “killing” her daughter. She wrote: “[PC] is my daughter and as her mother I cannot bear losing her as she is the reason I am alive. I fight every day for [PC]. I will commit suicide if [PC] dies...”.
Her father says he believes that “she is fighting” and will “come back to life”. He wrote: “Please do not stop her medications as she is our beacon of light… As a father, I want the best for my daughter and she deserves to live”.
Her mother told the solicitor that they are hoping for a miracle and that she would “prefer [PC] to give up on her body herself and pass away like that; I don’t agree with withdrawal of CANH”. She believes “if she is to let go herself it would be natural and not by the hospital”.
A friend of PC’s now opposes withdrawal of CANH out of concern that the mother “may not be able to cope mentally or emotionally with the consequences”.
Other family members, notably PC’s sister (and possibly her other siblings – this wasn’t clear) maintain their original position but have chosen no longer to be involved in the process.
Following the parents’ change in position in June 2023, a court application could – maybe should – have been made immediately.
Instead, further assessments were completed. They continued to show a low level of responsiveness, and no evidence of significant awareness. There seems to have been an increase in pain behaviours such as crying, grimacing, moaning and frowning. Despite pain medications and an antidepressant, PC often shows apparent distress in response to suctioning and at times when staff are handling her, e.g. washing her, or moving her into a wheelchair, and also sometimes these occur spontaneously. The clinical evidence is that she does not smile or display pleasure.
These pain behaviours are distressing for the nursing care team and to family members – some of whom do not visit because it is so distressing to observe. It was stated that between 1 August 2023 and 31 January 2024, PC was visited on 14 out of 184 days – mainly by her mother and sister. [Note: At a subsequent hearing, the number of visits was disputed – it seems visits take place without family members necessarily signing in and we think it was accepted that there have been many more visits than indicated here.)
An application to the Court of Protection was eventually made on 2nd February 2024. That’s 3 years after PC was diagnosed as having a “permanent” disorder of consciousness, and nearly a year since the original best interests decision was made that continuing treatment was not in her best interests.
The ICB (North Central London Integrated Care Board) is the applicant in this case (this is the ICB that commission PC’s care). The application is seeking a determination under the Mental Capacity Act 2005 that PC lacks capacity to conduct proceedings and to make decisions regarding her medical care and treatment, and that it is lawful and would be in PC’s best interests for those treating her not to continue to provide CANH and for her to transfer to a palliative care pathway.
The Vice President, Mrs Justice Theis (we think on the papers, i.e. without an actual court hearing) made directions in February to join PC as a party to the proceedings, invited the Official Solicitor to act as PC’s litigation friend, and gave directions to file evidence, including evidence from the applicant ICB addressing any delay in bringing the application. She also made a transparency order.
Having considered all the evidence to date, the Official Solicitor “with great sadness” and subject to hearing oral evidence from the family and from the medical experts, takes the position that the benefits of continuing CANH are outweighed by the significant burdens – especially the risk that PC may be experiencing pain. The Official Solicitor also raised a concern about “unacceptable delay” in bringing the application to court. Furthermore, said the Official Solicitor, “it remains unclear if the question of whether it is in PC’s best interests to continue CANH was considered at all in the period from 15 March 2021, when she was admitted … for long term care, and 8 March 2023, when the process of making a best interests decision was started”.
The hearing (COP 14034582) before Mr Justice Cusworth was listed for two and a half days, from 25th-27thMarch 2024 – but in the event it was adjourned just after half past two on the first day. It will be back in court on (some or all of) 24th, 25th and 26th April 2024.
II. The hearing
We didn’t know what this hearing was about in advance – Celia just happened to choose it as one to observe, and all the information in the previous section emerged later. Celia (after some delay caused by confusion about the transparency order discussed below) was eventually able to alert Jenny, who then joined from lunchtime onwards.
It was a hybrid hearing, starting at 11am on 25th March 2024. Counsel and the judge were in the physical courtroom, but some people, including one medical expert, were attending remotely via video-link. Hybrid hearings can be challenging for those of us on video-links – in particular it can be hard to hear what’s going on in the court, and we rely on someone to move the camera (or to set up additional cameras) to capture counsel, the judge, and any witnesses.
It was quite a disjointed hearing with several adjournments and with a muddle at the beginning which negatively affected transparency and open justice.
In summary, here’s what happened, under three hearings (1) Transparency issues; (2) Legal representation for the mother; and (3) Considering delay.
1. Transparency issues (Celia)
The applicant counsel – be-wigged, and distant to the camera so I had no idea who he was – gave a verbal description of the transparency order already made by Mrs Justice Theis (which observers had not been sent). He explained that the order protects (as usual) P and P’s family. It also protects the identity of the treating clinicians, which is less usual and which – when this restriction is applied – is often lifted at or shortly after the end of a hearing, or after the protected party has died.
Following counsel’s account, the judge said “during this hearing until the end when the transparency order can be reconsidered, there must be no reporting of what is going on in court”.
This was a very unusual restriction. We are normally free to blog, or otherwise communicate about hearings during adjournments and breaks in the hearing and before the judgment – and have done so frequently.
Counsel then offered to give an opening summary of the case but the judge said, “I don’t require any more detailed opening” – so that left me in the dark as to what the case was about.
This was all extremely frustrating because on joining the hearing, I’d noted that Professor Derick Wade had been named as someone available to give expert evidence – and this alerted me to the possibility that the case would concern someone in a prolonged disorder of consciousness, since that is Professor Wade’s area of expertise. But (a) I didn’t know that for sure since there was no opening summary; and (b) I couldn’t alert anyone else to this hearing since the judge had said I mustn’t report “what is going on in court”. I wanted to alert other members of the public that this might be a hearing of interest to people with family and/or professional interests in prolonged disorders of consciousness and end of life decision making (specifically Jenny Kitzinger, and the PhD student we both supervise, Rhiannon Snaith). What the judge had said meant I couldn’t do that, and I wasn’t sure whether or not this accurately reflected the transparency order made by the previous judge (Theis J) and if not, whether the judge had intended to extend the transparency order made by Theis J.
I sent an urgent email to the judge via the RCJ email address:
Attnt: Mr Justice Cusworth Please could someone send me a copy of the TO for this case. I had understood from what counsel said that it was in the usual terms except for including treating clinicians, but from your subsequent comment, the restrictions sounded far more draconian. I am concerned from an open justice perspective both not to breach the TO and also to ensure that it is not in fact more restrictive of reporting than it needs to be in the circumstances of the case.
I am also finding this case very hard to follow as there was no opening introduction (as recommended in the former President’s guidance). Nor have I been able to request Position Statements since I do not know the name of the male barrister and have had to guess which “Ms Watson” might be the female barrister.
I would appreciate your support with this matter since I know the judiciary does aspire to transparency.
The judge responded to the effect that he had not intended to extend the restrictions beyond those already in place in the order made by Theis J, sent me the Position Statements, and asked whether it would helpful for him to request a summary. Thank you!
By this time, though, the ICB had asked for a variation in the transparency order along the lines the judge had so fortuitously suggested, asking for “no blogging today until there’s greater clarity about the issues in this case”. As I still didn’t really know what the hearing was about (not having yet had time to read the position statements), I wasn’t in a strong position to oppose this. I did turn my camera on and raise with the judge the fact that I’d now contacted a couple of people to tell them about the hearing (Jenny Kitzinger and Rhiannon Snaith who have research interests in prolonged disorders of consciousness and end-of-life court decisions respectively). I also said that I’d like to be able to say something about the issues before the court on the Open Justice Court of Protection webpage under “Featured Hearings” (granted!). Given that, at that point, it appeared that the restriction on blogging would last for only a couple of days, and I wasn’t actually planning to blog in that time period anyway, I didn’t press the point.
Later, when it became apparent that the case wasn’t going to be decided in the next couple of days, and that it would be a whole month before it would be back in court, I checked back with the judge and was told I could write a blog – which is how this blog post became possible.
2. Legal representation for the mother
The ICB was represented by Rhys Hadden and PC was represented via her litigation friend the Official Solicitor by Claire Watson KC (both of Serjeants’ Inn Chambers).
The mother was in court, but unrepresented. She asked to be joined as a party to the proceedings and for the hearing to be adjourned so that she could find a legal team.
She was crying and her words were translated via an interpreter. She said, “I don’t want to lose my daughter like I lost my other daughter, otherwise I will kill myself”. Her other daughter, it transpired, had died by suicide
The judge was sympathetic but firm: “Is there a solicitor you have approached already – someone you want to instruct?”
“Right now there is no one”, she said, “but we can research and find”.
“How long do you think you will need to find a solicitor and instruct them and then come back to court?” asked the judge
“In shortest time as possible”, said the mother.
The judge expressed concern (“I don’t want this to be adjourned for a lengthy period”) and turned to counsel, both of whom opposed the application for an adjournment. Counsel for the ICB acknowledged there “has already been delay” and said “further delay is not in PC’s best interests”. In particular, the ICB “would not want instruction of further experts”. Counsel for PC pointed out that as the mother wasn’t a party, she’d not even seen the papers before the court until a few days ago. However, she said “the Official Solicitor feels strongly there must be a prompt determination and any further delay would be contrary to those interests. With a heavy heart and great sadness, we do not feel able to support an adjournment on this basis”.
The judge took a different position. Given, he said, the “extraordinary delay” there has been already, he “can’t help feeling a short further period of delay would not be disproportionate”.
The judge said he would rise to allow time to find out how quickly it might be possible for the mother to find a legal team and come back with the case; once he had a suggested time-line he would make a decision as to whether that was proportionate. Addressing the mother directly, he said, “What I’m at the moment NOT minded to direct is that you should instruct your own medical evidence because that would lead to a much longer delay”.
Counsel returned with the matter still unresolved and the court rose early for an extended lunch break. As counsel for the ICB said, any further delay should be “purposeful”. If there is no realistic possibility of legal representation for the mother, then there is no point in delaying further.
Resuming at 2pm, counsel announced that they’d found a colleague, David Lawson, willing to act for the mother pro bono.
3. Considering Delay (Celia and Jenny)
Having adjourned the substantive matter of whether or not continuing CANH is now in PC’s best interests, the judge suggested that the matter of “delay” in relation to considering her best interests over the years and months since her original injury could be addressed over the course of the remaining time already allocated to this hearing. Counsel were in court and doing it now would free up time next month.
Counsel for the ICB made the rather surprising submission that it wasn’t in fact necessary to spend any time considering the delay. This was because, he said, both the hospital (which, anyway, wasn’t his client and wasn’t in court) and the applicant (the ICB) accept there has been delay in bringing this case to court.
The Official Solicitor pointed out that “simply accepting there’s been delay doesn’t address the issue of WHY there has been delay. The Vice President said there should be evidence about why there was delay”.
The judge clearly shared the view put forward by the Official Solicitor and suggested that if the ICB was not ready to proceed today, then there were still two more days of allocated time for the hearing: “you could file tomorrow and I could decide on Wednesday”. Counsel asked for a longer deferment, pointing to the “risks of the court making findings against a non-party”. Although the Official Solicitor pointed out that Theis J had asked for an explanation of the delay back in February, so that the answer should have been prepared and set out in writing before the court by now, the judge decided that it would be preferable to have a careful explanation set out in writing and gave the hospital 14 days to produce something to be considered at the next hearing.
Delay in making best interests decisions about life-sustaining treatment for PDoC patients is a problem that we’ve been highlighting for almost a decade now[ii]. Over the course of the last ten years we’ve supported many families in cases reaching court and delays have repeatedly been challenged in hearings e.g. in 2016 Hayden J‘s final judgment highlighted the imperative to avoid delays that were not ‘clinically purposive’. Stating that “respect for a patient’s autonomy, dignity and integrity requires all involved in these difficult cases to keep in focus that these important rights are compromised in consequence of avoidable delay” (para.13 Cumbria NHS Clinical Commissioning Group v Miss S and Ors [2016] EWCOP 32).
But it’s still the case that delay in best interests decision-making remains one of the main reasons family members approach us for help. In spite of positive changes it seems that some centres may be struggling with a backlog of cases where no best interests meetings have previously been held, and they may still be finding it difficult to conduct best interests decision-making processes in a timely manner, perhaps especially in the face of family divisions or fluctuating feelings. We also suspect that some centres caring for a great many PDoC patients may still be avoiding making best interests assessments all together – a suspicion in part informed by the fact that, as far as we can see, very few cases – or no cases at all – are reaching court from some centres which we know to have large numbers of PDOC patients. It is unlikely that these centres have no situations where there is disagreement about the person’s best interests, or where the decision is finely balanced. An important questions for us (and for the Official Solicitor?) is what is happening in these centres, who continue to maintain many patients in PDoC without ever triggering court applications about their best interests.
So, this all means that the next hearing for PC is not only significant for PC and her family, but may have wider implications for the care of other patients.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 500 hearings since May 2020 and written more than 100 blog posts.She also co-directs (with Professor Jenny Kitzinger) the Coma and Disorders of Consciousness Research Centre. She is on LinkedIn (here), and tweets @KitzingerCelia. She can be contacted via openjustice@yahoo.com
[i]We’ve received Position Statements from the applicant, the North Central London Integrated Care Board, (represented by Rhys Hadden of Serjeants’ Inn Chambers) and from the Respondent, PC by her litigation friend, the Official Solicitor (represented by Claire Watson KC also of Serjeants’ Inn Chambers), plus an “Agreed Case Summary and List of Issues”. The mother was joined at a party during this hearing: we have no written statement from her.
In a recent published judgment, it was found that EE has capacity to make decisions about sex and contraception ([2024] EWCOP 5). Her decisions may possibly be unwise ones (she’s said she wants to have a baby) but as the judge put it “however strong is the impulse to protect, the follies of the capacitous are not the business of the Court of Protection” (§50). The judgment poses challenges on the ground for the people caring for EE since the court also found that she lacks capacity to decide on contact with others, including her former boyfriend.
The hearing I observed on Wednesday 13th March 2024 (COP 13961414) was a case management hearing in the aftermath of that judgment to explore its implementation in practice, i.e. revisions to her care plan, including how she would be supported to make contact with people, and what staff would do if she decided that she wanted to have sex with someone. Not much progress has been made, so it was a short hearing.
I’ll report on the hearing in the third section below, but first I’ll say something about how to access published judgments, since that’s likely to be of use more generally to other people interested in the Court of Protection who may not have done this before, and then (second) I’ll summarise the published judgment, before describing (third) what happened in the hearing.
1. Accessing judgments
It is quite unusual for judgments in the Court of Protection to be published on an open access website, such as the National Archives (which is my preference for locating judgments) or BAILLI (which is useful for locating earlier judgments) Throughout the court system, one-in-five listed judgments are not published at all, though I suspect this number is much higher for Court of Protection judgments.
When we know something about a case before attending a hearing, this is usually because we’ve previously blogged about it or because somebody has previously observed and told us what that hearing was about.
However, we knew quite a lot about this case because – although we’d not previously observed it – a judgment had recently been published, and I was able to locate it.
When I saw the listing, I remembered that Mr Justice Poole was recently “on circuit” in Sheffield, and I had a feeling that I recognised the case number.
Having first used the search function on the Open Justice Court of Protection Project website (and found nothing, since we hadn’t blogged about it), I turned to the National Archives because I knew that a number of Poole J’s judgments had recently been published there. Unfortunately, the website does not have a function that allows searching for case numbers but I could narrow it down by setting a year limit of 2024, selecting Court of Protection judgments, and including the judge’s name. Below is a picture of my search.
I had to click into a few and, just as I was starting to think I was mistaken, I found what I was looking for. While it is not possible to search for case numbers, each published judgment does include the case numbers in the top right-hand corner. You can see it in this picture:
Although I’ve observed hearings where judgments have previously been published, I’ve not observed a hearing after the publication of a final judgment (at least, one that was also published and accessible to me). I thought (rightly as it turned out) that this would give me an opportunity to see how the work of the Court continues after a ‘final’ judgment.
2. The published judgment
The judgment was handed down on 8th February 2024, following a hearing on 29-30 January 2024. I will briefly summarise this judgment before turning to the hearing I observed, but you can read the full judgment here: https://caselaw.nationalarchives.gov.uk/ewcop/2024/5
EE is a 31-year-old woman who wants to have a baby. However, at issue was EE’s capacity to engage in sexual relations, to decide on contact with others, and make decisions about contraception.
Both parties agreed that EE lacks capacity to make decisions about contact with others. This is because of “her inability to use or weigh the risks that others pose to her […] recently she handed her smart phone to a stranger who had offered her money for it on the internet. She met him and he made off with her device without paying her for it. She had been unable to weigh the risks and benefits of this contact” (§29).
Both parties also agreed that EE has capacity to decide to engage in sexual relations. This is because to not do so “would exceed the practical limits to require EE to envisage the risks to her or her baby should she become pregnant following intercourse” (§26). In other words, there was certain information that EE did not weigh up but it would set too high a bar to demand that she must be able to weight it up before being assessed as having capacity.
The applicant local authority, Sheffield City Council, submitted that EE lacked capacity to “make decisions about whether to use contraception” whereas the Official Solicitor, EE’s litigation friend, submitted that she had capacity to make “decisions about contraception”.
When considering the issue of contraception, the judge was again clear that, “there are reasons to avoid setting the bar too high for capacity to make decisions about the use of contraception” (§43). The judge was not satisfied that pregnancy would bring too high a risk of physical or psychological harm to EE, and so this risk of hypothetical harm was not something she needed to be able to weigh up.
The judge concluded his judgment with the following. I think this is worth quoting in full because it serves as a helpful reminder to those who assess capacity on a daily basis.
“With respect to her [EE], although she has thought the matter through, many would think it unwise for her to try to conceive, but it is not for me to advise her, and it is certainly not the role of the Court of Protection to intervene in the autonomous decision-making of an adult who has capacity to make decisions about sex or the use of contraception, however unwise the court may consider the proposed decisions are. Many capacitous people make unwise decisions about sex and contraception, sometimes with awful consequences for themselves and others, but however strong is the impulse to protect, the follies of the capacitous are not the business of the Court of Protection” (§50, my emphasis).
3. The hearing on 13th March
On Wednesday 13th March 2024 at 9:30am, this case was back before Mr Justice Poole, who was sitting remotely ‘on circuit’ (via MS Teams) at Sheffield Designated Family Court. What was immediately clear was that there had been a change in the legal representatives. Pravin Fernando, of Serjeants’ Inn Chambers, now represented Sheffield City Council, and Hannah Bakshani, of St John’s Buildings, now represented EE (via her litigation friend, the Official Solicitor).
This type of change is unfortunately not unusual, and it makes judicial continuity (as in this case) all the more important.
Counsel for the Local Authority acknowledged that the matter had been listed “to consider the immediate steps in the aftermath of that judgment on the 8th of February”. There had been a number of incidents, including EE absconding from her current placement and the discovery that EE had an online bank account despite the fact that “the court has previously made declarations that EE lacks capacity to manage her finances”.
It also appeared that EE had been communicating with a man on the internet, who I will refer to as M. Counsel for EE explained that M “was the subject of a number of safeguarding concerns last year and, from memory, it was difficult to get to the bottom of who [M] was, how EE met [M], and what the relationship was”. Counsel for EE described it as “unfortunate he has now made a reappearance”, which struck me as somewhat of an understatement.
Of further concern was that, for some reason, a TZ care plan had not yet been drafted despite this being a month since the previous judgment was handed down. This was compounded by the fact that EE was being allocated a new social worker who was not yet fully familiar with EE.
As Celia Kitzinger explains in this blog, a TZ care plan refers to a case (A Local Authority v TZ) heard by Mr Justice Baker in 2014. Baker J had found that TZ, a 19-year-old man, had the capacity to engage in sexual relations but not for contact. There was therefore a need for a care plan to address how TZ could be assisted to form a sexual relationship without exposing him to harm.
Given that EE also has the capacity to engage in sexual relations but not for contact with others, it is quite clear why a care plan of this sort is required. To not do so could pose an undue interference in EE’s freedom. The judge made an Order that Sheffield City Council file a TZ care plan, and updated care and support plan, prior to the next hearing.
Finally, the judge raised the matter of whether this case strictly needed to be overseen by a Tier 3 (High Court) judge. The case was before Mr Justice Poole as a result of “the difficult issues about capacity” (in the words of the judge). Now that these issues were determined, could the case be reallocated to a Tier 2 (regional) judge? This would (at least in theory) make it easier to find a judge before whom the case could be listed.
While the parties agreed that a Tier 2 judge could oversee a TZ care plan, Counsel for the local authority stated (and Counsel for EE agreed) that “the intricacies of contact and social media issues” meant the case required the oversight of a Tier 3 judge. Mr Justice Poole agreed to keep the case allocated to him, particularly because he felt there would be benefit from some level of judicial continuity.
This case will return to court on Monday 10th June 2024, after the filing of further evidence.
Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He tweets @DanielClark132
More than a year ago, back in November 2022, assistant psychologist Catalia Griffiths watched and then blogged about a (remote) hearing before Deputy District Judge Reeder concerning a woman in her 50s who was in hospital with Huntington’s disease.
Many of the cases we blog about are just a ‘snapshot’ of a hearing at a particular moment in time. It’s hard to track cases through the courts. There’s no way of setting an “alert” to tell us when a case is coming back – and even though arrangements are sometimes made at the end of one hearing as to when the next one will be, these are often vacated or rearranged.
So when we happened to spot this case back in court again, we really wanted to know how GNK was doing and what had happened.
Thirteen months later, I watched the final hearing in this case (COP 1399280T) – which, as before, was heard by DDJ Reeder, sitting remotely at First Avenue House (listed as below)
The outcome, as the judge acknowledged, is not what GNK had said she wanted.
Background (from 2022)
Thirteen months ago, there had seemed a (remote) possibility that GNK might be able to return home. Although the judge was concerned that there was “a refusal by GNK to acknowledge her Huntington’s disease and a refusal to acknowledge the need for care”, he wanted the possibility of GNK moving back home to be properly explored. There were problems. Her home was apparently “significantly hoarded” and “not safe to get into”, and nobody appeared to know the financial arrangements for the tenancy.
Meanwhile the hospital trust wanted to discharge her to an interim placement, while the move home was investigated. The draft order asked for authorisation for physical and chemical restraint if required to make that possible, but without sufficient detail on what would trigger the use of restraint, or lead to escalation in restraint. This was something that concerned the judge greatly. It also troubled the observer/blogger, who had used restraint in her previous role as a support worker. The judge asked for the order to be amended.
That was pretty much all we knew.
The hearing on 29th February 2024
It was a short hearing because the parties had already reached agreement on a draft order but at an earlier hearing the judge had directed them to go away and just check that some additions to the standard authorisation would work on the ground, in practical terms (e.g. that there would be funding). This hearing was really only to approve that agreed order, with those additions now confirmed. As the judge put it, it was about “making sure the ‘t’s were crossed and the ‘i’s dotted”.
I learnt that about a week after the hearing Catalia Griffiths observed back in 2022, GNK moved to a care home (I don’t know whether restraint was needed to accomplish this) and she’s been there ever since. It provides 24-hour nursing case.
This hearing was to make final declarations:
1. that GNK lacks capacity to litigate, to make decisions in respect of her care and residence, to manage her finances, property and affairs and to terminate a tenancy and sign a tenancy agreement.
2. that it’s in GNK’s best interests to stay in her current care home, and to receive care and treatment there.
However, the Deprivation of Liberty Order is subject to a variation of the standard authorisation conditions, and those are what the judge wanted to go through.
One condition was that arrangements should be made for GNK to attend the church of her choice. This is a Revivalist church which is said to “place their members in a trance” and I understand that staff did not want to attend with her, so arrangements were to be put in place using agency staff if needed.
There were to be offers to go out into the community (e.g. to shops) without making this contingent on GNK having had a shower that morning (something she’s been refusing lately) as long as she is not malodorous and unkempt, and care home staff are to keep detailed and accurate records of all the times a trip in the community is offered and clearly record the reasons that this does not take place.
Arrangements are to made for care home staff to work closely with the expert clinicians from [Hospital] in order better to understand the care needs of a person with Huntington’s – and I think it had been agreed that the local authority would fund specialist training from the Huntington’s Disease Association.
The standard authorisation expires on 17 January 2025 and the applicant will be asked to undertake a new assessment prior to its expiry.
Reflections
Given the extent of the nursing care that GNK is said to need, it’s hard to see what else could have been done under the circumstances. The ‘additional conditions’ to the standard authorisation go some way towards creating positive benefits for GNK, given that she’s going to be living somewhere she said originally she didn’t want to be.
Finally, in terms of transparency, the judge was extremely helpful – ensuring that a summary was provided at the beginning of the hearing, and pointing out, when he asked counsel to go through the order, that they should do so “bearing in mind the observers haven’t seen it”. I’m grateful to Monika Kreel of TV Edwards Solicitors (GNK’s solicitor) and Sophie Caseley of Garden Court Chambers (GNK’s counsel) – both via the Official Solicitor – for the anonymised version of their position statement, which assisted my understanding.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 500 hearings since May 2020 and written more than 100 blog posts.She is on LinkedIn (here), and tweets @KitzingerCelia. She can be contacted via openjustice@yahoo.com
This is not a blog about anorexia, withdrawal of artificial/clinically assisted feeding, nor is it a blog post about the ethics of voluntarily stopping eating and drinking (VSED). Rather, it is an attempt to explain the circumstances in which the Court of Protection might become involved in a case where a person has stopped eating and drinking. This post sets out broad principles and should not be relied upon as legal advice. From the outset, it is worth noting that for many people, stopping eating and drinking is simply part of their dying process.
The call
Most of the cases involving fluid or food refusal which resulted in published judgments relate to patients with anorexia nervosa. However, there is a variety of different circumstances in which food/fluid refusal occurs. Calls to Court of Protection lawyers tend to occur in these three scenarios:
P has stopped eating and/or drinking and expressed a reason for doing so. That reason might be political (a ‘hunger strike’), or, might be an attempted means to cause a change in their wider care and support arrangements;
P has stopped eating and/or drinking with a view to ending their own life (this is often referred to as VSED);
P has stopped eating and/or drinking but has not given any reason and care/health staff are unclear what, if anything, to do in the circumstances.
In respect of which call is most common, it is, in my experience that P has stopped eating to either change their situation or in some form of protest. That protest is not always what we would consider to be ‘political’ – in fact that is relatively rare.
A right to stop eating and drinking?
You will not find an explicit right in a statute which says that a person is permitted, or entitled, to stop eating and drinking. However, it is recognised by the law that an adult cannot be compelled to eat or drink if they have capacitously decided not to do so.
A helpful starting point is what Lord Goff said in Bland [1993] AC 789 at page 864:
“…the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so.”
A person cannot therefore be forcibly fed (be it by enteral or parenteral fluids or nutrition), when they capacitously refuse. Baker J (as he then was) put it simply in Dr A [2013] EWCOP 2442 at paragraph 30:
“… if Dr. A. has the capacity to make decisions as to whether to take food and drink, he is entitled to starve himself to death if he so chooses. The question is: does he have the capacity?”
Trying the door handle
I recently heard Professor Paul Menzel, Dr Hope Wechkin and Dr Peter Reagan talk about the development of the Clinical Guidelines for Voluntarily Stopping Eating and Drinking in the United States. During their presentation, Peter Reagan spoke about one terminally ill woman who had commenced VSED and then stopped. He used the analogy of her trying the door handle: he said it gave her great comfort to know that she could end her life in that way if she chose. That analogy struck a chord with me as Ps who seemingly voluntarily stop eating and drinking, then start again, have been an issue of concern in some cases before the Court of Protection.
Often the court is concerned with whether the person is making a capacitous choice not to eat and drink. In those cases, the capacity assessment will be focused on whether the person is able to make a decision as to their hydration and nutrition. In the assessment, the relevant information is focused on whether, functionally, the person is able to understand, retain, use or weigh, the consequences of not taking fluid or food. If there is a functional deficit identified, the assessor then has to determine whether that is caused by a disorder of the functioning of the mind or brain. That can be a difficult assessment. One such difficult case was PH.
In this case, PH had a clear ongoing relationship with his treating clinicians, his lawyers and even the judge. Reading the blogs and the judgment, you will see how carefully his capacity was considered by the court. The court had a wealth of evidence in PH but that is not always the case.
In other cases, the issue of capacity has been more difficult or contentious:
In QJ a 87 year old man with vascular dementia stopped eating. In that case, P [QJ] did not answer certain questions put to him by his treating clinicians. Hayden J was keen to emphasise that the mere fact that someone has stopped eating does not mean that it should be concluded that they lack capacity to make that particular decision.
In this blog , there is a report of where Williams J heard evidence and argument of 3 days in respect of a woman who was admitted to hospital having fractured her femur and then refused to eat. The reasons for her refusal were not articulated, at least in the blog.
In Nottingham University Hospitals NHS Trust & Anor v RL & Ors [2023] EWCOP 22, Sir Jonathan Cohen was faced with the scenario where nobody could engage P at all. The protected party, RL, a life sentenced prisoner, was in hospital having stopped feeding himself. His treating consultant psychiatrist assessed that he was “suffering from depression, and described him as virtually stuporous and mute. When she last saw him, he did not even flicker his eyes when she put papers in front of him and was not willing to communicate his wishes in any way at all. She described him as presenting as ‘quite shutdown.’” When the Official Solicitor’s representative tried to engage with him, “he literally was not able to do so because RL would not come out from under the bedclothes; he remained completely invisible and would not engage in any way whatsoever.”
The other complicating feature that needs to be recognised when P stops eating and drinking is, that at some point, every P will lose the capacity to make decisions about their nutrition and hydration. Put simply, P will become unconscious or experience confusion or delirium with changes in the body’s chemistry and as organs shut down. At this stage, unless there is a valid and applicable advance decision to refuse treatment (ss. 24-26 MCA 2005), a best interests decision will need to be made. One of the matters to be considered in making that best interests decision will be a person’s previous wishes and feelings as well as their values and beliefs.
How the cases arrive in the Court of Protection
Just as in any other kind of case, matters involving a P who steps eating and drinking come to court when there is a dispute as to their capacity to make decisions as to hydration and nutrition, or, when there is a disagreement as to their best interests in this regard.
Whilst assessments in respect of P’s capacity to make decisions about to eating and drinking may be unusual, or practically difficult, the relevant law is relatively settled. This is reflected in the decisions above. The more challenging disputes will relate to P’s best interests.
The following issues need to be highlighted:
Unlike in the United States, there is no clinical guideline in respect of people who chose to voluntarily stop eating and drinking. Clinicians who are choosing to support this decision (they cannot be compelled to provide treatment) will likely want reassurance that the steps they are taking are lawful and comply with P’s capacitous (and uncoerced) wishes or that they are in P’s best interests;
Some cases have an abundance of evidence in respect of P’s wishes and feelings both before and after losing capacity to make a decision as to their hydration and nutrition. Not all cases do. In some cases, P simply stops eating and drinking and the explanation is unknown. It ought not be forgotten that P stopping eating and drinking can be simply a reflection of an untreated dental issue or the fact that they are approaching the end of their life in any event;
Section 24 of the Mental Capacity Act 2005 allows a person to make an advance decision in respect of specific treatment to be carried out or provided by someone providing, “health care”. It is untested as to whether that could include spoon feeding someone or providing them with nutritional supplements. There is at least an argument, considering the Court of Appeal’s decision in JJ, that it might. In that case, giving a quadriplegic person a boiled sweet equated to medical treatment;
Section 5 of the Mental Capacity Act 2005 does allow decision makers to conclude that a certain course of action is not in P’s best interests, even if that course (perhaps not to treat a particular injury, or not to escalate treatment for a disease) would lead to their death: An NHS Trust & Ors v Y & Anor (Rev 1) [2018] UKSC 46;
In any situation where a person is indicating that they want food and this is denied, it is likely to be very problematic for clinicians or carers following the decision of the Court of Appeal in Burke.
The wider context and the future
Later this year, on 31 May 2024, I will be speaking at the Medical Law and Ethics Discussion Group, Oxford University about how English and Welsh law handles people who stop eating and drinking as a form of protest. Earlier this year, I spoke at the 4th International Conference on End of Life and the Law “Ethics, Policy, and Practice” (ICEL4) at the S.J. Quinney College of Law at the University of Utah in Salt Lake City, Utah, U.S.A as to how our laws differentiate between patients and protestors in these circumstances. It is (I hope) a fascinating subject and one which is steeped in British legal history, going back to the Prisoners (Temporary Discharge for Ill-Health) Act 1913 (designed to deal with suffragettes on hunger strike) and beyond. But, in reality, it is representative of a very small cohort of cases that come before the court.
Much more challenging is how VSED fits into the wider public (and legal) discourse around assisted dying/suicide and whether it is seen as an adjunct to that argument or an integral part of it. Equally, there is alarm that the concept of mental capacity has been used in a way to deny treatment to suicidal patients and that some patients, simply due to issues with their communication or cognition, have not been able to access medical care for physical health issues.
Whatever the broader issues are in society, if P stops eating and drinking, careful thought needs to be given to their capacity and then (if appropriate) to their best interests.
Ian Brownhillis a barrister at 39 Essex Chambers who specialises in mental capacity, medical treatment disputes and wider public law, regulatory and safeguarding issues. Ian has acted in a number of food refusal cases in the Court of Protection and in a number of inquest/regulatory/safeguarding matters where a person has stopped eating and drinking.
It was listed as a committal hearing – an application by Barnsley Metropolitan Borough Council to send “DB” to prison.
It caught my eye because it wasn’t listed the way committal hearings are normally supposed to be.
The Practice Direction for Committal for Contempt of Court specifies that the name of the person alleged to be in contempt of court should be given in full. But it referred to this person only by the initials “DB”. And it says that, although the hearing is “public” there are “reporting restrictions”.
Who is “DB”? What has he done that the local authority is applying to send him to prison? And why is he at risk of being sent to prison effectively in secret, without the public knowing – or being allowed to tell anyone – who he is?
I was sufficiently alarmed by this listing that I wrote to the judge (care of the Leeds Court of Protection hub) in advance of the hearing, raising my concern about the discrepancies between this listing and the guidance in the Practice Direction (albeit that it permits of exceptions). I also asked for the link to observe the hearing.
The hearing
It was apparent from the outset that this case (COP 1406388T) has run into problems.
Counsel for the local authority, Rebecca Titus Cobb (St John’s Buildings) introduced herself and counsel for the protected party (Richard Borrett, Kings Chambers). She said that DB, the alleged contemnor, was not present, and was not represented.
At this point, I wondered if the court would actually proceed with the committal hearing and risk sending DB to prison in his absence.
The judge, Her Honour Judge Marson, didn’t seem surprised that DB wasn’t in court. I subsequently learnt that he had a track record of not attending hearings.
She did address at the first opportunity “the way this case is listed on Courtel” – i.e. my concern about the fact that DB had not been named in the listing. My understanding is that, initially, the intention had been to name him, but the judge had: “… become aware that the defendant can apply to court for non-disclosure of their name and I’m not able to identify that opportunity to have been communicated to DB[…] I don’t know if he would wish to make such an application. That I hope explains why the entry on Courtel was changed to initials, in the event that such an application was going to be made and needed to be determined. Otherwise, it would be otiose, because the information would already be out there”. The judge then checked with Rebecca Titus-Cobb, “Am I right that he hasn’t been notified?”. “I suspect that is right”, she replied. “I don’t know”.
It seems that DB has breached the transparency order designed to protect the privacy of the vulnerable person at the centre of this case EB, whose deprivation of liberty is before the court. For reasons that weren’t clear to me, DB is parking his car near EB’s previous placement with Court of Protection documents visible through its windows. He’s been doing this since mid-September 2023: one court order that he must remove this material had been apparently complied with (in October) but by November 2023 he had resumed displaying the material – and the local authority filed an application to commit DB for contempt of court.
There was then a hearing on 13th December 2023, which DB was aware of but chose not to attend. That hearing was adjourned until 9th January 2024 to allow time for him to apply for legal aid and get legal representation. Again, though he chose not to attend. This hearing, on 22nd February 2024 was yet another attempt to hold an effective committal hearing.
It failed – due to multiple procedural defects identified by the judge – defects which, she said, “have troubled me a great deal”.
The following is taken from the oral judgment
“Firstly, Rule 21.8(5) states that the defendant’s name will appear on the court list unless the court makes a rule that their name should not appear. I have for the first time this morning had the opportunity to read Esper (Esper v NHS NW London ICB (Appeal : Anonymity in Committal Proceedings)[2023] EWCOP 29). The defendant has never been informed of his right to have rule 21.8(5) considered, or to make any representations about that. It may be that if an application were made, there would be no merit to it, but I have not considered the merits of it. The procedural irregularity is that he’s not had that opportunity.”
Secondly, the form that purports to be the application for the committal is wrong. The local authority has not lodged a COP 9. They have borrowed a form, M600 from another jurisdiction. It is the wrong form.
Thirdly, this court directed the defendant should be personally served with a notice of contempt by 19th January 2023, setting out the evidence relied on by the local authority, with a separate list of allegations numbered and identified separately to make it clear what it was being said he’d done, and when, and why it breached the order. This was not done by 19th January, and no application to extend the time was ever made. It was filed and served on Tuesday this week, less than 24 hours ago. The notice of contempt filed on Tuesday has information presented in a manner which I consider to be confusing, using an “and/or” format which is insufficient to enable someone to identify which order they breached and when.
Finally DB has not participated in the proceedings but at no point has there been any consideration of a summons.
I have considered all of those defects and have had regard to Rule 20 of the Court of Protection Rules on appeals which states “The appeal judge shall allow an appeal where the decision of the first instance judge was […] unjust, because of a serious procedural or other irregularity in the proceedings before the first instance judge” (§20.14(3)(b)). I am satisfied there are procedural irregularities and any decision I may made is likely to be successful on appeal, so I am going to strike out and dismiss this application for its procedural defects. I am aware I can waive defects if I am satisfied this would cause no injustice, but I am not so satisfied. I therefore dismiss the application that is before me today.
I do not criticise parties for those defects in a context where there is, in my view, a need – an urgent need – for committal templates in the Court of Protection. Without them, the parties and the court are challenged by everyone’s best endeavour to comply with the rules. Clear templates are need to assist everyone.
I assume that if DB continues to display confidential material relating to the case in public, the local authority is likely to make a new application, and so we may see the committal case back in the listings in future.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 500 hearings since May 2020 and written more than 100 blog posts.She is on LinkedIn (here), and tweets @KitzingerCelia
By ‘Jean Louise’ (daughter of a current P), 24th March 2024 (with new postscript dded 14th April 2025)
I found the Open Justice Court of Protection Project’s website a few weeks ago due to an issue in my own family, the details of which I hope to share in due course, transparency orders allowing.
Jury experience in my twenties had piqued my interest in the workings (and failings) of our justice system sufficiently that over the years I observed several hearings from the public gallery of criminal and civil courts.
Despite pursuing a corporate career, my interest in the law didn’t fade, such that post early-retirement I studied a master’s in law and an LPC (acquiring a distinction along with heightened doubts of the efficacy of our legal system).
I was therefore not daunted by the formality of the court process itself, though I had never observed a virtual hearing before and law school had provided only a perfunctory nod to the functions and workings of the Court of Protection.
So, underprepared and imbued with the zeal of an absolute beginner (having only skim-read a few pages of the Open Justice Court of Protection Project’s fascinating content), I followed the instructions and sent off my first public observer request.
I discovered that getting to join a hearing was a cumbersome, time-consuming process with ‘hit and miss’ results, rendering it accessible only to people with the luxury of time. In the first few weeks of enjoying my new ‘hobby’ I dedicated time to it, though in reality I spent as many hours attempting to get a ‘Golden Ticket’ to observe hearings as I did in hearings themselves. Several of my observer requests were ignored by the court, other hearings were ‘vacated’ at last moment. At one point I suspected the court had decided my new hobby was verging on an unhealthy interest and that I had perhaps now had ‘enough-open-access-to-justice-thank-you-very-much’. I asked the Project’s view of my experience and was reassured to learn that in their experience approximately one in every three hearings gets vacated, sometimes because the parties reached agreement outside of court, other times due to the unavailability of required reports.
My observer attempts varied dramatically across the different regional courts, and even between staff within a single court, with responses on a wide spectrum. At one court, a staff member bent over backwards to help me understand the court’s mechanics and actively encouraged my interest in observing. At another court, a staff member (equipped with a tenuous grasp on the principles of open justice) seemed to interpret my phone call (to enquire whether my earlier emailed observer request had been actioned) as highly suspicious to the extent she hung up on me, leaving me with the distinct feeling she was about to ‘report’ my request (to join a hearing involving total strangers, discussing an issue I was not aware of) to someone more senior.
I observed my first hearing on Monday 29th January (COP 13868207 Re TW heard by Mrs Justice Theis). I didn’t capture notes at that hearing (or any of the six I attended subsequently), as I was too preoccupied with understanding the mechanics and etiquette of the hearing to feel equipped to offer any useful insight or observation about the substantive hearing.
I was surprised by the ‘last-minute’ nature of the organisation. The hearing was scheduled to start at 2pm but, after acknowledging my observer request at 9am, I had heard nothing more from the court. At 2.07pm, about to give up, I received the link for the hearing and was relieved to find everyone was late, not just me. At that first hearing I got to wield the observer’s power in relation to the Transparency Order (which luckily) I’d briefly read about on the Project’s website. Sounding more confident than I felt, I explained I hadn’t received the TO but could read and confirm my understanding of it quickly once I received it (which I finally did when it arrived at 2.22pm).
Based on my (admittedly very limited) observer experience, I was fascinated and appalled in equal measure by the execution and content of the hearings I observed. After most I was left with an unshakeable discomfort that significant decisions and outcomes were severely hampered by the incompetency and inadequacy of the social workers involved in the case (itself a symptom, in my opinion, of crumbling social care systems and the effects of austerity), and of the LA’s representing solicitors and counsel (I suspect due to an equally crumbling legal system).
In most of the hearings I watched, a significant amount of judicial time was dedicated to the rebuking of the LA and their legal representatives (or, less commonly, P’s representatives). These criticisms seemed justified, given almost all parties and their representatives revealed a disconcerting lack of understanding of the contemporaneous facts of the case, or status of the proceedings. As an unprepared observer it seemed my own confusion was often dwarfed by that of the multiple professionals involved (assumedly most if not all of them having acquired, and now painstakingly justifying, their lack of knowledge at the taxpayers’ expense).
A further concern I had after some hearings was the extent to which the voice of P (purportedly, ‘at the heart of the proceedings’) and P’s family, was absent, diluted or ignored during the hearing. This seemed to be so even when P was present. After one hearing I was left doubting why P was the subject of proceedings at all given she spoke to the court more knowledgeably, lucidly, and eloquently than many of the ‘professionals’.
At some hearings I was a sole observer, at others alongside co-observers. At each hearing I felt the observation was potentially having a material impact on the hearing or outcomes (which I found reassuring and uncomfortable in equal measure). Whether this feeling was justified, and if so to what extent it had a positive or negative effect from the perspective of the involved parties, is something I’m less sure of.
I wondered how I could practically (and legally) observe an unobserved hearing to test my ‘observer-effect’ theory. Last week an opportunity to do that presented itself in the form of a hearing in which my dad is the ‘P’ and I am a respondent. In time, I hope to learn from the Open Justice COP Project’s experience in seeking to lift the TO, enabling me to tell Dad’s story.
My notes of the hearings I’ve observed so far have all been too incomplete and inadequate to offer for public consumption. I’m hoping writing a good blog as an observer is a skill I can develop, allowing me in future to contribute a blog as a small token of my gratitude to the Open Justice COP Project for their enlightening work.
Having wondered after my first hearing whether I was the only person who would be interested in sharing perspectives of hearings observed with co-observers, a sort of real-life ‘book group’ equivalent for Court of Protection observers, I was delighted to discover that the COP Project have effectively just that, in the form of an observers’ WhatsApp Group and the arrangement of special group observations for high-profile hearings where 5-10 observers will discuss the hearing in real-time and later produce a group blog. Some great examples of these group blogs are: “Hunger striking for his identity”; Family witnesses in court: Four reflections on Re AH (A Rehearing), and Tampering with equipment.
Alongside these, I will continue to feed my new-found addiction by reading the material on the Project’s website and a selection of the full judgments of the Court of Protection in its first twenty years, and (where I am able to acquire a ‘Golden Ticket’), attend as many hearings as possible. Perhaps I’ll ‘see you in court’.
Postscript by Kim Dodd (the real name of “Jean Louise”), 14th April 2025
During the currency of my dad’s Court of Protection proceedings I experienced the Transparency Order (surely a misnomer?) almost as a weapon of war deployed against Dad and our family by the applicant LA. I was scared even to tell family members about the proceedings – leaving me and my sister in a situation that was almost impossible to manage and adding a layer of emotional complexity to an already dreadful situation.
Compared to many distraught families who want to talk about their experience of Court of Protection proceedings (both for their own benefit and that of others), I was more fortunate, in that the ‘duration’ on Dad’s TO was drafted such that it was discharged automatically on his death:
I believe many (most?) TOs state that they ‘have effect until further order of the court’. I don’t know how, or if, I would have found the strength to seek to vary that TO (via a COP9 request to the court and potentially another hearing to vary it assuming the LA opposed – which they I am sure would have done) while suffering indescribable grief after Dad’s death. Now I am free to tell Dad’s story, which he desperately wanted to be shared during the proceedings and which, I believe, is worth telling.
“Jean Louise” – whose real name is Kim Dodd – blogged under this pseudonym when she was involved in Court of Protection proceedings and subject to a Transparency Order preventing her from identifying herself as a family member of a protected party. Having retired early from her own corporate career, she has developed her interest in the law in general (particularly the law surrounding coercive control) and the Court of Protection.
By Amanda Hill, formerly known as ‘Anna’ 22nd March 2024
The first hearing I ever observed in the Court of Protection (COP 13744224) was on 3rd May 2022, nearly 2 years ago now[1]. It concerned a woman in her nineties (TW), in a care home following discharge from hospital after a fall. She wanted to return home and the judge authorized a “trial” of living at home.
Because it was the first case I had observed, TW’s story stuck in my mind and I often wondered what had happened to her. Celia Kitzinger observed a couple of later hearings in 2022, from which it seemed that the return home was working out well. But then this month, another member of the Open Justice Court of Protection Project core team spotted this listing (thank you Daniel Clark!).
Luckily I was free that morning, so now I was about to find out what had happened in TW’s life.
Before writing about this latest hearing, I will provide a brief summary of that first hearing and what happened in the two subsequent hearings blogged by Celia Kitzinger. I will then reflect on what this case shows about the COP and the importance of a strong advocate.
Background (from 2022)
Back in May 2022, TW was a woman in her early nineties, who had dementia and diabetes. She had no contact with remaining family members, but was supported by a long-term friend (M) who – like TW– was not a first-language English speaker. M also held Lasting Power of Attorney for both Health and Welfare and for Property and Finance for TW. TW had lived in her own flat until May 2020, when she had a fall and was firstly admitted to hospital, and then subsequently to a care home. But she desperately wanted to return home. Her attorney (M) approached the local authority on 8th December 2020 to explain that T would like to return home. At the hearing I observed in May 2022, she was still at the care home she didn’t want to be in and the hearing was to discuss arrangements for her to have a trial living at home. TW’s counsel, Christine Cooper, called the situation a “Kafkaesque nightmare”. M made an impassioned plea for her friend: “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.”
In the following hearing on the 3rd June 2022, there were still ongoing discussions about the arrangements for TW to return home and whether it was in her best interests to do so. The blog Celia wrote stated that “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.” He ruled that TW would go back to her flat on 17th June 2022 and at the next hearing he would “consider everyone’s views on how successful that’s been”.
At the hearing on the 9th July 2022, TW had finally returned home and none of the parties were disputing that it was in TW’s best interests for the trial of living at home to continue, even though there were still issues around funding and managing her care. At the time of the hearing, TW was actually back in hospital but the plan was that she would soon be discharged back home. A final hearing was listed for 31st August 2022.
Yet, here we were with another hearing in March 2024, with the same case number. What had happened to TW in the meantime and why was her case back in court?
The hearing on 11th March 2024
I received the link to the hearing very soon after requesting it first thing Monday 11th March. I was able to gain an understanding of the latest situation because His Honour Judge Beckley asked TW’s counsel Jamie Mathieson to provide a summary for my benefit (as a public observer, and in line with best practice in accordance with guidance from the former Vice-President of the Court of Protection, Mr Justice Hayden). I also received the position statement from Jamie Mathieson that same day, after I requested it following the hearing, which complemented what I had heard in court.
There were a number of people in court apart from the judge and TW’s counsel. There were solicitors representing TW and the local authority (LA) , although not counsel for the LA, and TW’s social worker. M was also present, and unlike the first hearing I had observed, this time she had her camera on. She had clearly become used to participating in COP virtual hearings and didn’t mind her face being shown.
The situation since the last hearing is as follows: TW is now nearly in her mid-nineties and has been assessed as needing 24 hour care. She had lived in her flat for a year until mid-2023 and it had worked well until various problems became too difficult, including using the stairs. So she moved to a care home in August 2023. She was living there, and COP proceedings had nearly concluded, when concerns were raised by her Accredited Legal Representative (ALR) and by M that her care was not as it should have been. For example, the home was not using bedrails to protect her from falls and they were not facilitating enough access to the community. Her best interests were being investigated when she had a serious fall on the 29th December 2023, resulting in her being hospitalised with several fractures. We also heard during the hearing that she had contracted Covid while in hospital.
Despite being assessed as fit for discharge since mid-January 2024, as of 11th March, she is still there. Her counsel said that, “to use the colloquial term”, it is now a case of “bed-blocking”. The issue is that TW’s ALR and M have both ‘lost confidence’ in the care home. In fact the LA has subsequently conducted a safeguarding investigation and found that TW’s fall was caused by neglect. As the position statement sets out, the home did not have enough protections in place to prevent TW from falling. So the LA also does not feel it would be in TW’s best interests to return there.
Jamie Mathieson’s summary for me turned into his oral submission to the court. He explained that following weeks of delays resulting in TW spending longer in hospital than she should have done, things had moved very quickly in the week before the hearing and a new placement at a different care home had been found. They had assessed her and said that they could offer her a place. TW wants to leave hospital but does not want to return to the original care home so a new placement would be broadly in accordance with her wishes and feelings. A new order was being sought to approve the new placement. An outstanding issue was that there needed to be an updated transition plan and an interim care plan, which included how to manage the risk of falls. The social worker had agreed for this to be prepared in 24 hours and the plan was for TW to be discharged to the new home by Thursday 14th March.
Once TW had moved to the new care home, there would have to be a new s.21A appeal (to authorise her deprivation of liberty.) There would be risks around social isolation. Although TW had lived in the UK for many years, she was an EU national and English was her second language. As her Alzheimers has advanced, she has largely reverted back to using her birth language. Her flat is in the process of being sold and M is hoping to use some of the funds for one to one care with a carer who speaks her language. The s.21A appeal would be at a final hearing. So, in summary, all of the parties were agreed about the next steps.
The judge spoke next. He said that the suggestions in the draft order were “sensible and straightforward”. He said that he was disturbed to hear about her fall at the care home and the safeguarding issues. He was pleased that a new place had been found for TW. He then asked M to speak.
M started by saying that TW was upset that she was still in hospital. She asks why she is still there and that she is a “prisoner” there. M said that she was working but had made time for the hearing. She said that she could go and get TW’s belongings and prepare her room at the new home. She wanted to reassure her that she will have company and someone she knows when she arrives.
The judge thanked M for her help and asked if TW’s belongings were still at the previous care home. M replied that they were, and that she would go and fetch them. She also raised the point that one issue to be resolved was the risk of falls. In hospital TW had not had any falls. But in her time at the care home she had fallen three times. She said “I don’t blame anyone, accidents happen but something was wrong”. The judge replied that the bed rail was an issue. She also fell when unsupervised, getting up from a chair. So the new care home has to minimise the risks of falls. He agreed that it would be good if the sale of TW’s property could provide funds for a birth-language speaker to help care for her.
M then stated that she hoped the sale of the property did go through, to cover outstanding debt for the “taxman” and the solicitors. But there would be enough funds left over to cover her care.
The judge then asked the LA’s legal representative to speak. He stated that he agreed with the submission of TW’s Counsel and also thanked M for her support.
The judge then outlined his conclusions. He stated that it was clearly in TW’s best interests to leave hospital and move to a new care home, although the risk of falls needed to be minimised. He thanked the LA for their commitment to preparing a transition plan and new care plan within 24 hours (to enable the discharge from hospital). The judge approved the draft order and hoped that TW would be able to leave hospital and move to a new care home on Thursday.
There then had to be agreement on the next hearing, which would be to approve the s.21A appeal, and after some discussion it was agreed that this would be a one hour virtual hearing at 3pm on the 7th May 2024. After about 30 minutes, the hearing was over.
Reflections
TW and M
It was interesting for me to re-read the first blog that I had written in light of this new hearing. There were echoes. Once again, TW had been admitted to hospital after a fall, once again she was somewhere that she did not want to be and once again M was fighting for her friend. But in the meantime, TW had spent 12 months living back in her home, as she had wished. Reflecting on what M had said in the quote above from that first hearing, that TW “understands that, in later days, she probably won’t be there”, that point had clearly been reached in mid 2023. At least the COP had facilitated her chance to live in her home once again. I hope that she finds peace of mind in her new care home and is cared for well.
One aspect of this hearing that stood out for me compared to the first hearing I observed was that apart from Judge Beckley, none of the participants were the same – except for M. The legal representatives had all changed and there had been no social worker at that first hearing. But M was still there, fighting her friend’s corner. She had clearly been involved throughout the intervening years. From the things that were said during the hearing, she had been involved every step of the way, including at round table meetings. It seemed as though she had been an integral part of every discussion and had raised concerns about her friend’s care at the care home. Each of the legal representatives, for TW, for the LA and the judge, thanked her for her time and effort. It brings home the fact that whilst professionals can cross paths with a P at various times, their attorneys, usually friends or family members, are a constant in that person’s life. I reflected on what Celia had written after that first hearing we had observed together:
“…..we should appoint as attorneys people who not only know and love us, and know our wishes well, but people who 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).”
And also what Judge Beckley too had said during that first hearing:
“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”.
The choice of who we ask to act as our Lasting Power of Attorney is very significant. And it is not a role to be undertaken lightly. Clearly TW had made an excellent choice.
The tone of the hearing
The tone of this hearing was very different to the first hearing I had observed back in May 2022. That had been quite combatative, as P’s counsel and the LA had not been in agreement as to next steps for TW. In that first blog, Celia Kitzinger had described the “occasionally clearly critical (or even acerbic) nature of the exchanges”.This had delayed TW’s trial of living at home. In stark contrast, this hearing was conducted in a spirit of agreement, as is more usual for a COP hearing. The COP proceedings were positive in trying to esure the best outcome for TW and had indeed been called upon to intervene both by her ALR and M, her LPA.
Changes in COP listings
Back in 2022, Celia had written this about s.21A (deprivation of liberty appeals) hearings being listed on Courtserve: “….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.”
Since becoming a core team member of the OJCOPP in June 2023, I am now routinely involved in listing COP hearings on X (Twitter), on the website and now on Facebook too. I would say from my experience that the majority of COP cases listed include either the terms “s.21A” or “deprivation of liberty”. So that is a major change in how cases are listed in two years.
That previous hearing listing had also said: “PRIVATE HEARING NOT OPEN TO THE PUBLIC”. Today, the wording used is mostly along the lines of: “Public Hearing – With Reporting Restrictions” (although a blog was recently published about hearings still wrongly being listed as private here.)
All listings tend to carry a notice along the lines of “Open justice is a fundamental principle in our courts and tribunals system, and will continue to be so as we increase the use of audio and video technology.”
Remote hearings are very common, making it easier for members of the public and professionals to observe the COP in action. The OJCOPP now run monthly webinars supporting people who want to observe. Whilst initially COP hearings went online because of the pandemic, many hearings are still online, and in my opinion it has had a real benefit for open justice.
Conclusion
Much has changed for TW since that first hearing I observed in May 2022. The COP has had a positive impact on her life, enabling her to spend 12 months living at home and now ensuring that she can hopefully be discharged from hospital to a care home that will care for her well. The tone of this hearing was very different to that first one, everyone agreeing and working together to ensure that TW’s best interests are acted upon. It was a very positive example of the COP in action. It was also a positive example of open justice. And it allowed me to observe what a good friend and attorney M has been to TW.
Anna was the pseudonym of a woman whose mother was a P in a Court of Protection s.21A application. Since March 2025, Amanda Hill is allowed to reveal that she is Anna, because the Transparency Order covering her Mum’s case has been varied (changed). Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is a core team member of OJCOP. She is also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She is on LinkedIn (here), and also on X as (@AmandaAPHill) and on Bluesky (@AmandaAPHill.bsky.social).
On 13th March I observed a remote hearing (COP 14200743) before HHJ Beckley, which concerned the deprivation of a 16-year-old’s liberty.
In the Introductory Notes I was sent prior to the hearing (NB : receiving this document was extremely helpful – if only we could be sent something similar every time!) it was stated that the protected party, P. “… has been diagnosed with 2 genetic conditions that cause brain malformations.Those malformations mean that (P) is developmentally delayed across all areas and requires significant levels of support to ensure that his needs are met. On occasion, (P) can display challenging behaviour.”
P is a looked after young person, the subject of a Care Order, and has been placed since 2020 in a small residential unit.
The Notes stated that P’’s social worker believes that he cannot make meaningful decisions about where he should live and what care he should receive there, and that remaining in his current placement is in his best interests. They also stated:-
“Because of his developmental delays, [P] would likely struggle to meet his own needs (personal hygiene, eating & drinking, taking medication) without the help of staff in the placement. He would be vulnerable if he went out into the community unaccompanied because he would not appreciate potential hazards (eg, traffic). He might also be targeted/exploited by others. [P] is therefore not allowed to go into the community unless accompanied by staff.”
The local authority, the applicant, were therefore applying for an order under the Deprivation of Liberty Safeguards to authorise them, and the staff at the placement, to restrict P’s liberty there, in terms of the continual monitoring of his behaviour and movements, and their possible interventions.
Evidently the local authority had initially asked the court to deal with the application without a hearing. However, having reviewed the papers, HHJ Beckley decided that a hearing was necessary because:
a. [P] would shortly be transitioning to adult social care.
b. [P]’s care plan envisaged the use of restraint as a last resort.
c. [P] should be independently represented.
The hearing itself was very brief and it appeared that representatives for the local authority (Graeme Harrison) and the Official Solicitor (Arianna Kelly) had liaised closely beforehand to come to an agreement on these issues. The judge requested that the final versions of the Orders, with some additional information, be filed, and set a date in early June for a further hearing.
Reflections
It was interesting to me to witness such unanimity and such overall acceptance (without it being overtly stated) that this was a matter that needed to be dealt with in a legal arena, as the last occasion in which I had to deal directly with a DoLS matter myself the landscape had been quite different.
This was a few years ago when I was employed by a local authority (not the one in P’’s case) as an Independent Reviewing Officer (IRO), tasked with monitoring and reviewing the care plans of looked after children and young people. One of these young people (T), who was aged 16-17 and had Down syndrome, had lived with long-term foster parents for many years.
Due to his assessed vulnerability – very similar to that described in relation to P, above – they routinely restricted his liberty. For example he was only allowed to go out on his own for the very short walk to the local shop and back when the family were staying at their caravan near the coast, and never at all when they were at home in London. This was entirely appropriate and correct, and indicated the carers’ loving concern for T’s welfare. No-one – including T himself whose views I and an independent advocate would always separately seek before and during his review meetings – disputed this course of action. But it had no basis in law, only in good practice! And so, in my professional role I started to query this.
Since the Adoption & Children Act 2002, amended by the Children & Young Persons Act 2008, IROs have had the right (nay, the obligation) to challenge the local authority on behalf of or in respect of the children / young people they review. Local authorities have had to put in place a Dispute Resolution Protocol to enable IROs to move up the management line with their concerns if they are not satisfactorily addressed. My professional opinion, having read up all I could on DoLS, was that the local authority who having a Care Order for T were his corporate parents, were acting unlawfully in formulating or agreeing practices restricting his liberty (compared to those enjoyed by non-disabled young people of his age) without it being considered through due legal process. Questions about ‘best interests’ were only relevant up to a point, as they did not override the fundamental principle that T had rights as an individual that needed to be respected and upheld.
At every stage of the Dispute Resolution Protocol, right up to involving the Director of Children’s Services, I was told that a DoLS assessment and referral were unnecessary, as there was (as I have said) no disagreement from anyone as to the need for such measures to protect T. The Legal Department of the local authority were consulted and gave the same response, that the local authority had Parental Responsibility for T and so had the authority to make these decisions.
Fortunately, the final stage of the Dispute Resolution Protocol, as required under the 2002 and 2008 Acts, stipulated that an IRO could, if all earlier stages had been exhausted, refer the case directly to the Legal Team at the Children and Family Court Advisory & Support Service (CAFCASS) and through them to consideration by their specialist lawyers. So I did – and they came back to support my view and to flatly contradict the local authority lawyers.
In the end, the impasse was resolved by I and CAFCASS giving the local authority a deadline to complete the various parts of the DoLS assessment, or otherwise a formal S118 referral would be made to the family court for final resolution of the dispute … and they finally relented and did as required with minutes to spare.
So, being reminded in P’s hearing of all these hurdles that I’d faced previously, and seeing the evident unanimity about the applicable principle and the correct procedure in the consideration of P’s case, was an interesting contrast – although, upon reflection, I would have liked the opportunity to ask P’s IRO how far they might have been involved in the process to get to this stage, and whether they too had had interminable arguments along the way with Children’s Services managers who couldn’t seem to grasp that a disabled young person might actually have an inherent right to age-appropriate levels of personal liberty that could only be curtailed by careful, sensitive, due legal process.
Tim Sugden retired in 2022, after a career in children’s services, to devote his time to providing accommodation and support to refugees from Ukraine.
“The first thing I need to decide,” says the judge, “is who is acting for Mrs P”.
It turns out there’s a difficulty. Two legal team have turned up in court, both purporting to represent the protected party.
Mrs P (who has a – disputed – dementia diagnosis) considers that she has capacity to conduct proceedings. She’s instructed a solicitor and there’s a barrister (Matthew Wyard) who plans to represent her in court today.
A different judge (DJ Russell), had made an order declaring that there was reason to believe that Mrs P lacks capacity to conduct proceedings. The Official Solicitor has accepted the invitation to act as a litigation friend for Mrs P, and Yogi Amin is in court to act on her behalf.
The case (COP 14187074) was heard remotely before HHJ Beckley, sitting at First Avenue House on 17thJanuary 2024.
The applicant local authority (represented by Oliver Lewis) has applied to court to establish whether or not there has been coercive control exerted over Mrs P by her daughter and two other family members (Mrs P’s daughter’s partner and P’s ex-husband). In the interim, they want the Lasting Powers of Attorney (held by the daughter) to be suspended, and all contact between Mrs P and these three family members to be supervised.
Mrs P– an elegantly dressed woman in her late 70s – was present in court throughout. So were Mrs P’s daughter (a litigant in person) and her partner, and P’s ex-husband.
Mrs P has prepared a witness statement, with the help of a firm of solicitors, which says that she does not lack capacity, that her daughter and her daughter’s partner “have done everything possible to help me in my old age” and that she wants her daughter to continue to act as her attorney. She disputes claims of coercive control and says an assault her daughter is said to have made on her is a “false allegation”.
The judge said he proposed to hear first from Yogi Amin “as to why I should continue to invite the Official Solicitor to act on Mrs P’s behalf” and then hear from Matthew Wyard “on why he should be able to act on the direct instruction of Mrs P”.
“Does anyone object to that?”, the judge asked. “No? I’m not seeing any looks of horror”.
Proposed representative for Mrs P via the Official Solicitor (Yogi Amin)
Yogi Amin outlined the process that had led to the involvement of the Official Solicitor.
There had been two separate sets of reports as to Mrs P’s capacity: one commissioned by the local authority and carried out by social workers; and the other commissioned by Mrs P’s daughter and carried out by the treating psychiatrist, Professor F. Only the report commissioned by the daughter expressly purported to assess Mrs P’s “legal capacity”.
Mr Amin raised concerns about the way the latter report came about, and what information was made available to Professor F when determining the question of Mrs P’s capacity. He expressed concern that Professor F’s assessments were carried out without the permission of the court or the agreement of the parties.
The Official Solicitor’s view is that interim orders should be made under s.48 to record that there is reason to believe that Mrs P may lack capacity to make decisions on all relevant issues before the court, including litigation capacity. This would mean that the Official Solicitor would then act for her in court as her litigation friend.
Proposed counsel for Mrs P with direct instruction (Matthew Wyard)
Mr Wyard pointed out that capacity must be presumed. The local authority, he said, “has not provided any evidence to rebut that presumption whatsoever”.
He pointed to four capacity assessments in the court bundle, none of which relates to litigation. He said that the social worker responsible for carrying out the capacity assessments was “relatively junior”. The local authority’s position “appears to be that because they’ve assessed Mrs P as lacking capacity in other domains, it follows that she must lack litigation capacity. But the tests for litigation capacity and other types of capacity are not synonymous, and litigation capacity is a separate matter”.
The capacity report commissioned by the daughter is by a Consultant Psychiatrist of 21 years standing who is recognised under the Mental Health Act 1983. He found Mrs P to have capacity in all subject matter domains and also found that she had litigation capacity.
The instructing solicitor, Mr Fielding of Fosters Solicitors, had also assessed Mrs P as having litigation capacity.
Local authority (Oliver Lewis)
The position of the local authority, said Oliver Lewis, was that they wanted to “protect Mrs P and uphold her autonomy and health and safety”. They were not motivated by a wish to take over control of her life. This was an issue because the assessor appointed by the daughter had concluded that Mrs P had “legal capacity” based on the following analysis:
Legal Capacity
We talked about the role of the solicitor, and she said if she had to have a solicitor, she would accept this. She just wants to be given a chance to present her side of the situation with regards to care. She does not want to move out of her home, and she does not feel her family should be removed from her.
We talked about the fact that there is an application for the state to take over control of her life and she did not want this, and she was happy with the current arrangement. There appeared to be no fear or coercion that I have been able to elicit in her. (quoted from Professor F’s report in the position statement from the local authority)
Oliver Lewis saw this as mischaracterising the application of the local authority. He argued that the appointment of the Official Solicitor was “a protective measure” in the context of “very strong evidence spanning three years of coercion and control primarily by her daughter”.
Mrs P (who lives in her own home with live-in care, separately from her daughter) has said she sometimes feels scared and that her daughter is a “bully”. A social worker has documented various distressing instances including the daughter…
denying her mother prescribed pain relief
shouting at her mother
refusing to leave her mother’s home when asked
Installing a camera system in her mother’s home against her wishes (now removed by police)
threatening to put her mother in a care home and have her dog put down
throwing food over her mother. A carer took a photograph of Mrs P immediately after this incident, the police were called and arrested the daughter, bailing her on condition that she does not contact her mother by any means. (This bail condition has now expired.)
It was shortly after the (alleged) food-throwing incident (in late September 2023), that the local authority made an application to revoke the Lasting Powers of Attorney held by the daughter (both Health and Welfare, and Property and Finance) and also to ask the court to consider the question of contact between Mrs P and the other two family members.
The daughter’s partner and ex-husband have since visited Mrs P and allegedly pressured Mrs P to get rid of her care team, and to tell the police she wants her daughter to come back. According to the local authority, there is “a coordinated campaign by the three family members to undermine the carers, and persuade Mrs P to forget or discount the emotional and physical abuse that she has suffered at the hands of [her daughter].”
The local authority is concerned that the assessor appointed by the daughter “doesn’t seem to have considered what this case is actually about…. There is no evidence that he discussed the actual substance of the hearing with Mrs P at all”. Moreover, there’s lots of evidence that what Mrs P says to medical professionals and to the police when she’s on her own with them, is quite different to what she says when her daughter is present. The position statement from Oliver Lewis documents a string of comments from Mrs P such as: “I just want my daughter to stay away from the house”; “I don’t want her coming round screaming and shouting, but I do miss her. The trouble with [Daughter] is she has no patience with people who are not 100%” and “If [the live-in carer] leaves, [Daughter] will come here again and bully me”.
The local authority considers that the capacity assessment arranged by the daughter, and the subsequent appointment of a legal team for Mrs P independently of the appointment of the Official Solicitor, are “examples of [the daughter] coercively controlling and manipulating her mother”. The local authority disputes the finding of “legal capacity”. They say that where there are well-documented examples of coercive control and where P has a diagnosis of dementia, there is sufficient evidence to give the court reason to believe on an interim basis that P lacks capacity in all the disputed domains.
Daughter
The daughter said she believes “100% that Mum has capacity”. She explained that her mother had been very ill a few years ago (“she had multiple organ failure and nearly died”) and that the dementia diagnosis had been made in that context when she was “very frail”. Since then, her levels of cognition have improved.
She said, “Obviously I love her very much, and I believe in her”.
Mrs P
After hearing from the other parties, the judge turned to Mrs P in person.
Judge to Mrs P: Being in a hearing with people you’ve not met is very difficult. There’s two very different accounts being put forward to me, which I’ll have to decide between. [The local authority] have given me two witness statements prepared by your social worker, plus comments made by medical staff when you were in hospital, and from the police force, and from your live-in carer. And if those statements are right, you’ve been subject to very bad behaviour on the part of your family.
Mrs P: No!
Judge: On the other hand, Mrs P, I’m told you have capacity to make decisions, that the Alzheimer’s diagnosis from just over two years ago – that thankfully your mental ability has improved. You have minor cognitive difficulties but can decide where you live, what care you receive, who you have contact with and that you have capacity to appoint people as Power of Attorney and tell solicitors how you want your case to be put.
Mrs P: I do have capacity to make up my own mind. I live in my own home. My daughter helps. She doesn’t control me. If I ask her opinion about anything it’s between mother and daughter. I don’t know what else to say to you. She’s been very good to me. I go to church and am very positive in my outlook.
The judge then said he thought there was reason to believe that Mrs P lacks capacity to conduct the proceedings.
Mrs P: That makes me so angry, because I do have capacity. What I listen to, I take in. And I can respond coherently to other people.
Judgment on capacity to conduct proceedings
Here’s what the judge said, as accurately as I could get it down at the time.
I’m going to set out how I’ve made the decision I’ve made…. What I’m being asked to decide at this stage is effectively whether I have reason to believe that Mrs P lacks capacity to litigate – to tell solicitors what they should be doing on her behalf in these proceedings.
I remind myself of s.1 of the Mental Capacity Act 2005 – the most important part of the Mental Capacity Act, the principles I have to apply as a judge of this court. (The judge read out the following text.)
Then I turn so s.48 of the Mental Capacity Act 2005. (The judge read out the following text.)
The test of me having “reason to believe” that P lacks capacity has been considered by more senior judges than me, and I need to follow what they say in relation to that.
Mr Justice Mostyn in An NHS Trust v P [2021] EWCOP 27 said, in a nutshell, that if someone lacks capacity to make decisions about a particular subject, for example where to live or what care to receive, then – Mostyn said – “it is virtually impossible to conceive of circumstances … [where they would have] capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter”.
Mr Justice Hayden, the (then) Vice-President in Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6 says he doesn’t think Mostyn would want his words to be afforded as much weight as they have. He says:
It is necessary to reiterate that the test remains that in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 1 WLR 1511, endorsed in Dunhill v Burgin [2014] UKSC 18; [2014] 1 WLR 933. The essence of those judgments is to confirm, unambiguously, that capacity to litigate is addressed by asking whether a party to proceedings is capable of instructing a legal advisor “with sufficient clarity to enable P to understand the problem and to advise her appropriately” and can “understand and make decisions based upon, or otherwise give effect to, such advice as she may receive”. It follows that the issue of litigation will always fall to be determined in the context of the particular proceedings…. (§24 Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6)
In this case, not unusually (as people have said) the assessment carried out on behalf of the local authority on Mrs P did concern subject matter – where she should live, what care she should receive, whether to revoke to LPAs, and contact – but it didn’t assess Mrs P in relation to her capacity to litigate. It was on the basis of those assessments that DJ Russell found, on the basis of s.48, Mrs P also to lack capacity in respect of litigation.
Mr Lewis for the local authority says I shouldn’t overturn that decision.
I disagree, to the extent I think I should reconsider for three reasons – with no disrespect to DJ Russell. First, I have now been provided with Professor F’s capacity assessment. Second, Mr Fielding of Fosters Solicitors, who is an experienced solicitor, considers, having spoken to Mrs P, that she has capacity to litigate. Third, I’ve heard from the parties in this hearing. DJ Russell didn’t have the benefit of any of those things.
I have to walk a very fine line between two contesting accounts that have been put to me.
On the one hand I have the account by Mrs N, Mrs P’s social worker, which sets out (I emphasise that I’ve not made any findings but which sets out) very bad behaviour that Mrs P has faced, and set out both in the witness statements and in the accounts given by Mrs P to her live-in carer and to hospital staff, that Mrs P at times has felt controlled by her daughter, and has suffered harm – serious harm – from her daughter. I have seen the photograph exhibited in Mrs N’s witness statement of Mrs P covered in food and read the account given that food was poured over her by her daughter. That is bound to be impactful on anyone making decisions such as the one I’m making now. I bear in mind the point made by Mr Wyard about the social worker’s lack of experience, but I find her reports to have carefully considered what information needs to be understood, weighed and communicated in relation to each subject matter.
On the opposite side, if Mrs P has the capacity to make decisions, then I have no right at all to be making decisions on Mrs P’s behalf. And I understand absolutely the concern – indeed the anger – Mrs P expressed to me about the fact that she has to sit here on a Wednesday morning with her life being discussed by various people she doesn’t know. I have read the report by Professor F, which I have to say I don’t find very compelling. It does not clearly and systematically go through the tests that s.2 and s.3 of the Mental Capacity Act require. I give more weight to the statement prepared by Mr Fielding, and a great deal of weight to Mrs P’s daughter and to Mrs P herself.
Having taken all those factors into account, and in particular that what Mrs P has said to me contrasts with what she has said to her social worker and to medical professionals on other occasions, I have come to the conclusion that I do have reason to believe that she lacks capacity to make decisions in relation to this litigation.
It is likely to be complex litigation. There are allegations against her daughter that are denied. The fact that Mrs P’s own account has varied over time makes it more complex. So, for the purposes of s.48 of the Mental Capacity Act 2005 I do think I have reason to believe that she lacks capacity to litigate, so the Official Solicitor should continue to act as her litigation friend. But what is absolutely clear is that the first step is to ensure that further capacity assessments are carried out by an independent expert. Also, the cost of instructing that expert must be borne by the local authority as Mrs P isn’t getting legal aid, and it would be wrong that the daughter should contribute to the cost of that independent expert.”
Next steps
There was some concern about the appropriate way forward from here. The local authority argued for a fact-finding hearing in advance of a capacity assessment – because if it were to be found as a “fact” that her daughter is exerting coercive control over Mrs P, that needs to be amongst the “relevant information” that Mrs P would need to be able to understand, retain and weigh in making (capacitous) decisions about contact, care and residence.
Until the “factual” basis (or otherwise) of this allegation is established, capacity assessment is challenging because, said Oliver Lewis, “the capacity assessor will have to put to Mrs P two different accounts, and would have to conclude speculatively e.g. ‘if there was coercive control, then Mrs P has capacity to decide on X, but if there was no coercive control she lacks capacity’”.
The judge did not accept this argument. “The converse is a fact-finding hearing with Mrs P represented by the Official Solicitor and evidence given by [the social worker], and then if after that there were to be a finding that Mrs P has capacity to litigate, she would then have wanted a very different position put on her behalf. She’s telling me today that she doesn’t accept the allegations against her family members. It can’t be right to proceed in that way”.
The judge ordered a one-day capacity hearing as swiftly as possible – which turns out to be 25th April 2024. This will address Mrs P’s capacity to make decisions across all the relevant domains.
The judge asked Mrs P’s daughter, and the two male family members, to give an undertaking that they would only have contact with Mrs P with a carer present. After some discussion about which carer (not the one who’s made allegations of abuse), they reluctantly agreed to this. The daughter said: “I am scared to death – I’ve never harmed a hair on my mum’s body. It’s wicked. It’s brutal”. They were also asked to undertake not to use threatening or intimidating words or behaviour with the carer or with Mrs P.
Daughter: (sounding shocked) I never have!
Judge: Let me say very clearly that I’ve made no findings of fact, so I’ve not decided whether what is said in those statements is true or completely false. Your response is to tell me you never have, and never would. It would be helpful if you told me though that you wouldn’t.
Daughter: I would not, and I wouldn’t dream of it. […]. Mum’s human rights have been taken away. Is there anything we can do to protect Mum’s human rights? She’s 79 – there isn’t that much time left. Why is this happening to our family?
Judge: I am being asked to decide whether Mrs P is being treated terribly badly by her family or whether – as your position is – that you are a loving family.
The daughter was also asked to agree not to use the LPA for Health and Welfare pending the next hearing about capacity in about twelve-weeks’ time. She reluctantly acceded to this, but was concerned about what would happen “if Mum became ill, delirious between now and then” (the judge said a collective decision would be made and if people couldn’t agree it would come back to court). She was worried about the length of time this was all taking, given that she has a report in hand from a “respected geriatric expert”.
Mrs P intervened at this point.
Mrs P: I just need to say something. I’ve known Professor F for three years. He’s looked after me. I’m sure he knows about my mind and how things are going. I need someone to be on my side in this.
Daughter: Well done Mum! (All three family members clap their hands.)
Judge: (to family) This is not a theatre performance. Applauding is not appropriate and is disrespectful to this court. (to Mrs P). I’m sure he’s doing a good job as your clinician, but I have two different views about your capacity. Although I’ve made a decision contrary to what you’ve told me you want, that doesn’t mean I discount what you say. But what you’ve said to me today is very different from what you’ve said to your social worker and care providers in the past.
Mrs P: Right, but that’s been when I’ve been poorly. And health care workers misinterpret what I say.
After confirming the date for the next hearing, the judge ended with a final exchange with Mrs P.
Judge: Thank you for talking to me and making your views clear. I hope you do recognise why I’ve made the decisions I’ve made today – even though you’re not happy with them.
Mrs P: I will mull it all over. Thank you very much indeed.
Reflections
So, for now, Mrs P, who believes she has the capacity to instruct a lawyer, has been denied the right to do so – despite the fact that the solicitor she instructed also believes she has capacity to do so, as does her daughter, and as was found to be the case in a capacity assessment recently conducted by a consultant psychiatrist.
Instead, the legal team appointed to represent her best interests is instructed by the Official Solicitor. It will take account of her “wishes and feelings” but no more than that – and can act lawfully advance a position that runs directly counter to her wishes and feelings.
On the face of it, this would seem to be in violation of Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD) which – somewhat controversially – guarantees for disabled people “equal recognition before the law” and affirms that states “shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”.
Mrs P is being treated (at least on an interim basis) as lacking capacity to instruct a lawyer on the grounds that her social workers have found her to lack capacity to make decisions about where to live and receive care, and what contact to have with others, which in turn has led a district judge to decide that there is reason to believe she lacks capacity to litigate in relation to these matters. HHJ Beckley has looked at the question again in the light of new information, but arrived at the same decision – most especially in view of the complex nature of the proceedings involving disputed allegations of coercive control and abuse, and Mrs P’s own apparently inconsistent communications about her daughter’s behaviour.
One of the problems for Mrs P, according to her social workers, is that she is unable to remember instances of abuse. If reminded of them she says she does not think her daughter would behave like that now – notwithstanding that the last instance of abuse when she said that was only 10 days earlier.
Perhaps more could be done to support Mrs P in exercising her legal capacity (Article 12(3) CRPD) – maybe talking with a solicitor with the support of an independent advocate to help her to remember the difficulties she’s experienced with her daughter in the past, and to think through the implications for the future and what safeguards she might like to put in place. Perhaps this will be done between now and the next hearing. Perhaps at the next hearing she will be found to have the capacity to instruct her own legal team.
The problem here is that a vulnerable older woman with dementia (or, at least, cognitive deficits) is potentially being controlled and manipulated by family members. In finding her (provisionally at least) to lack capacity to make her own decisions about contact and about litigation, the court is seeking to protect her from what she now says she wants, which seems to be unrestricted contact with the very people accused of abusing her.
Of course, there are people who apparently have capacity to make their own decisions who repeatedly return to people who abuse them – sometimes hoping the person will change, sometimes believing that, despite the abuse, the benefits of the ongoing relationship outweigh the costs. A finding of “lack of capacity” protects Mrs P from the right to make that kind of unwise choice.
In fact, the local authority has made clear that even if Mrs P is found to have subject-matter capacity, they will continue to try to protect her from her family members. They will apply to do so under the “inherent jurisdiction” of the High Court. In Re SA (2005) EWHC 2942 (Fam), Munby J held that, even if a person does not have an impairment of mind or brain, the inherent jurisdiction can be used in relation to an adult who is unable to protect themselves from harm because (for example) they are subject to coercion or undue influence and therefore disabled by another person from making a free choice. That decision affirmed the existence of the “great safety net” of the inherent jurisdiction (a term coined by Lord Donaldson in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1) in relation to all vulnerable adults
There is a delicate and challenging balance between protecting those at risk and respecting their autonomy, but it’s hard to believe that Mrs P’s autonomy is maximised, or her human rights as a disabled person are best protected, by leaving her in the coercive control of her daughter (if that is factually the case). If it isn’t, then there is serious interference with her right to make her own decisions and her right to family life.
The problem at the moment is that the court simply doesn’t know.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 500 hearings since May 2020 and written more than 100 blog posts.She is on LinkedIn (here), and tweets @KitzingerCelia
Note: As always, this blog post is based on contemporaneous touch-typed notes, but as we are not allowed to audio-record hearings, I doubt it is 100% verbatim. It’s as accurate as I could make it under the circumstances.
Promoting Open Justice in the Court of Protection 