Expert witness in Anorexia cases

By Ty Glover, 25th February 2024

I’m a Consultant in Eating Disorders Psychiatry, an Independent Medicolegal Expert and a member of the Royal College of Psychiatrists for over 25 years. 

My clinical career has been spent managing acutely unwell NHS patients in Independent Sector Hospitals, primarily patients suffering with severe Anorexia Nervosa but also those with acute forms of other mental health conditions. I have worked across the North of England and am currently providing Consultant input to Schoen Clinic’s acute Eating Disorders unit in York. I have 10 years prior experience of Acute Medicine, Anaesthesia and Intensive Care and am an ex-Fellow of the Royal College of Anaesthetists.  

My medicolegal career has developed almost exclusively in relation to Court of Protection  proceedings, mostly relating to Serious Medical Treatment, with only limited exposure to coronial work and civil litigation.

My medicolegal experience commenced, rather out of the blue, with a phone call one afternoon from a member of the Official Solicitor’s team, explaining the circumstances of an extremely unwell young woman in Wales, who needed an urgent independent opinion for a court hearing one week later.

That case turned out to be Re E (Re E (Medical treatment: Anorexia) EWHC 1639 (COP)) and led on to me receiving multiple instructions to act as an expert witness in relation, primarily, to capacity considerations in both severe eating disorders and other general mental health conditions.

I have since been instructed in Court of Protection proceedings on over 40 occasions and have given oral evidence in more than two dozen cases.

This blog post is organised as follow:

  1. Re E and Re L: Two key cases 
  2. Rare personal tragedies
  3. The Mental Capacity Act is a good teacher
  4. The words matter
  5. Everything changes

 1. Re E and Re L: Two key cases

In the first case, Re E, the end result of that Friday afternoon phone call, once I had had time to consider E’s history and records, it became clear that she had received little intensive inpatient treatment, despite suffering from severe Anorexia Nervosa for many years. When she had received treatment, she had made significant, if not sustained, progress.

At the time of my assessment, E was on an “end of life care pathway” and the family seemed to have accepted that she was drawing towards the end of her life.

In my opinion, there was no doubt that E lacked capacity to make decisions about care and treatment, specifically nutrition, due to the overwhelming and intrusive nature of her anorexic cognitions, which impaired her ability to weigh matters in the balance. Given the relative paucity (in my opinion) of treatment, it did not seem appropriate for a woman in her late twenties to be on an end-of-life care pathway when intensive treatment in a specialist eating disorder unit may well produce significant improvement – though I and another independent colleague acknowledged that the chance of sustained recovery was less than 30%. 

E was in fact treated against her will in her best interests, following directions from Mr Justice Peter Jackson (as he was then). The case was widely reported in the media, e.g. “‘As hard as it gets’: the case of anorexic E and the right to die”; “Anorexic woman should be fed against her wishes, judge rules”.

The second case in which I was appointed as an expert witness to the Court of Protection was Re L (The NHS Trust v L [2012] EWHC 2741 (COP)) and in that case the parameters were markedly different. L had been treated on numerous occasions in recognised centres of excellence with specialist eating disorder experience. Her resistance to treatment had been extreme and as difficult to manage as any case I have witnessed before or since. She had suffered numerous physical complications, often secondary to interfering with her feeding, including aspiration pneumonia, for which she had required intensive care treatment on several occasions.

At the time of my assessment L’s BMI was 7.7 and she was only prepared to accept 625 kcal per day, which was insufficient to sustain her life. Despite spending a significant period of time trying to persuade her that a slight increase (1 kcal per hr) in calorific intake would be beneficial, L continued to refuse.

Knowing that L had received extensive inpatient treatment (13 years out of the last 17 years of her life), there was no doubt in my mind that she both lacked capacity to make decisions about care and treatment, and also that it was no longer in her best interest to forcibly feed her against her will.

The judgment from Mrs Justice Eleanor King (as she then was) confirmed that feeding or treatment which was not in keeping with L’s wishes, was no longer in her best interests. Forcible or coercive feeding was then no longer an option and I understand that three months or so after that judgment, L sadly died. (This case was also reported in the media, e.g. “Anorexic woman not to be force-fed, judge rules”.) 

2. Rare personal tragedies

The young women in Re E and Re L share the similarity of addressing the relentless and torturous nature of severe Anorexia and fortuitously differ in that they represent, to some extent, extremes of the intensity and duration of treatments required in patients with such severe Anorexia.

E had clearly suffered from Anorexia for many years, but had been inadequately treated. L had similarly suffered with an extremely severe form of Anorexia, but had been extensively treated with absolutely no evidence that she was likely to make a sustained recovery.

Both of these individuals had suffered severe and lengthy psychological trauma from their anorexic condition. The impact on them and those close to them had been extensive.

Most patients with Anorexia are treated in the community. Those with the most severe forms of Anorexia require treatment in inpatient units, and usually comply with treatment, even though, for some, detention under the Mental Health Act is required.

To have been treated over many years with no apparent progress, and with continued resistance to any form of intervention is extremely rare.

It is vital that we remember, as with all chronic severe illnesses, that these illnesses primarily represent a tragedy for the individual involved and their families. Their appearance before the Court of Protection allows for a compassionate yet forensic analysis of the facts and opinions of those involved. What has been of particular note to me in my experience of the court, has been the sensitive, yet searching questioning that has focussed unerringly on the individual and what could be deemed to be in their best interests, once lack of capacity has been established. 

The court process has allowed thoughtful and considered weight to be placed on the views of family members whose lives have been deeply affected by their loved one’s illness, but who are also able to provide an intimate and often lovingly dispassionate view of the severity of the physical and psychological symptoms.

The Court of Protection has been, in my experience, both a challenging but also reassuring forum.  No stone is left unturned and no possible or future treatment is beyond consideration. Only the best interests of an often vulnerable and traumatised individual matter.

3. The Mental Capacity Act is a good teacher

It would be reasonable to say that my medicolegal work has been the most rewarding aspect of a long and broadly enjoyable medical career. The work is fascinating, challenging and sometimes exhausting but has undoubtedly been deeply rewarding in many ways both personally and professionally. 

It was initially difficult to accept the need to learn a new skill and read one’s own work critically but I have been very lucky to have been guided by very supportive legal colleagues, with a particular mention to the Official Solicitor’s team. 

One of the key changes, which I refer to later, is the precision of language expected by lawyers, and the expectation that all questions will be answered. As an expert you need to quickly understand the parties involved in the proceedings and try to understand each of their positions. Whether (as is usual) you are jointly instructed or instructed by just one of the parties, your duty is to the court, and you must be honest, objective and impartial. (See GMC guidance for doctors acting as a witness in legal proceedings). 

In terms of capacity, the starting point, if the presumption of capacity is to be rebutted, is whether there is  evidence that a  person cannot  understand, retain, weigh and communicate the information relevant to making the decision under examination (e.g. to consent to or  to refuse clinically assisted nutrition and hydration) and if not, whether their inability to do so is caused by their Anorexia (or other mental health) diagnosis.

Opinions regarding exact diagnosis, symptomatology and the impact of that symptomatology on the capacity process is the “core” of the case for an independent witness in the Court of Protection.  It is my practice to use recognised classification texts (ICD, DSM) with reference to specific symptomatology, preferably verbatim or from direct medical observation to confirm diagnosis. 

The information relevant to the decision that needs to be made (i.e., the information that an individual needs to be able to understand, retain and weight) is difficult to list in its entirety but the key components relevant to the decision in question should be identified. 

It is reasonable, and probably advisable, to document one’s thought process taking one or other point of view or diagnosis and thinking through the impact on an individual’s decision-making in comparison with what their decision-making would have been without the impact of their mental disorder. It is sometimes, but not often, easy to make such determinations. The comments of P, others in their close circle including family, clinical staff etc can help illuminate dilemmas when they occur. 

Before giving oral evidence, it is wise to fully reacquaint yourself with the key facts of the case and the key evidence on which you have based your opinion in relation to symptoms, diagnosis and capacity.

Although almost always asked for my opinion as to best interests, I believe that the role of the independent expert is less prominent in determining an individual’s best interests as their relationship with P is likely to be only recent and inevitably somewhat limited. My working rule is that best interests decisions are best left to those people closest to P personally and those clinicians closest to P professionally.

As well as being rewarding, my experience in the Court of Protection has changed my overall thinking in relation to mental disorders. 

There is, perhaps, a tendency for those involved in treating mental illness, particularly those individuals who lack capacity to make decisions in some domains, to take a paternalistic approach to many aspects of a patient’s care and lifestyle. This can involve insisting on certain treatment pathways being followed whether or not, in all those decisions, the patient has capacity to decide for themselves or, if they do not, whether the proposed treatment is definitely in their best interests. Continued consideration of many aspects of treatment (clinical observations, medication, whether to go on a walk) in terms of capacity leads, I think, to a more respectful and less judgmental approach.

The challenging analysis of my reasoning in court has led to consideration of and changes to my own practice. Two examples:

While working on a general adult ward, the ward manager and I noted that only decaffeinated coffee was available to the patients. I pointed out that there was no reason that patients with any form of mental illness, perhaps except Anorexia, would lack capacity to make the determination as to whether to drink caffeine or not. We agreed that we should presume all patients retained capacity to make that decision given appropriate advice in relation to stimulant effects, insomnia etc. That practice was stopped and both caffeinated and decaffeinated coffee were made available to all patients with appropriate advice as to the potential health benefits and risks of both.

The specific area which has been most affected is in my practice in relation to medication. Although there are many conditions which fundamentally alter a patient’s ability to make decisions about medication when they are in the throes of a severe mental illness, there are also many conditions in which capacity in that domain is unaffected. Anorexia, in my opinion, is one of those conditions in which capacity in relation to medication is very often, though not always, retained. There is, as yet, hardly sufficient evidence, in my opinion, that any medication has sufficient impact on Anorexia to insist that the patient should take it and enforce treatment against the patient’s wishes, though that opinion would likely be extensively debated by a body of my peers.

I now employ an almost universally collaborative and consensual approach to medication wherever possible, explaining the benefits and side-effects of each medication and allowing the patient to make that decision when I am confident that they retain capacity to do so. This has led to a marked improvement in concordance with medication and much more informed and respectful discussions take place with no real and, as far as possible, no perceived pressure.

4. The words matter

As I pointed out during my talk at 39 Essex Chambers (on which this blog post is based), it is rather fatuous to attend a workshop primarily populated by lawyers, and make the point that words matter. This is a point primarily directed towards my medical colleagues, in relation to language, instructions, and the judgments passed down in cases of note.

Lawyers employ language much more carefully and precisely than we do as medics. We can all, in medicine, be somewhat haphazard and approximate in our language, as we are often working with people for whom shared jargon and shorthand language is a convenient and effective means of communication.

That mode of communication does not translate into the legal sphere. Careful and precise definition of terms, diagnostic criteria, symptomatology, and the impact of that symptomatology on an individual’s thinking are required to highlight the evidence for or against the continued presumption of capacity.

The most important domain in which I would emphasise my view that the words matter is in relation to the judgments.

As far as I am aware, almost all of the judgments, (with the notable exception of my first case,  Re E) have been to the effect that P lacks capacity in the critical domains and that it is now deemed not to be in P’s best interests for treatment to be given with which P disagrees.

That allows access to all forms of treatment with which P is willing to engage and may even allow for an increase in some forms of, say, community treatment. The judgments have not been that any patient should enter terminal care. No judgment in a case of Anorexia, as far as I am aware, has suggested that the patient be placed on an end-of-life pathway. The judgments have been directed solely towards a person’s best interests with the recognition that, on some occasions, and in some very severe cases, further coercive treatment is no longer appropriate, and according to the careful consideration of the court, treatment contrary to the person’s wishes is no longer in that person’s best interests.

This was accurately reported in the Guardian article about Re L: 

After hearing the evidence, Mrs Justice King ruled it would be in L’s best interests for medical staff to provide her with nutrition, hydration and medical treatment “in circumstances where she complies with that administration”.

She also declared medical staff should be permitted “not to provide L with nutrition and hydration” if she did not agree to it, and it was not possible to do “without the use of physical force”.

An order by the judge said “all reasonable steps” should be taken to help L, including the use of persuasion involving her parents and others “in whom she might have some trust”.

5. Everything changes

By ‘everything’, I refer to patients, clinicians, illnesses, and progress in relation to effective medications, therapies, and modalities of treatment.

As with all ‘best interests’ considerations, determinations are time specific and issue specific. Although it is reasonable to assume that patients with chronic Anorexia who lack capacity at one time are likely to lack capacity almost indefinitely, that is not always true. Also, a patient’s best interests are very likely to change over time.

Even chronic Anorexia waxes and wanes.

There may be periods when P is more amenable to intervention and those interventions might then be provided.

On other occasions, patients are often very resistive and forcible treatment may then continue to be deemed not in their best interests – with a watching brief and a minimisation of harm the only clear guidelines.

Further clinical models are likely to become available. Recent research suggests that with intensive psychological therapy and a bespoke program incorporating pre-admission and post discharge elements. recovery from Anorexia may reach 70%. The establishment and validation of these models warrants careful and ongoing consideration with the methods used analysed for their relevance in patients whose extremely severe anorexic conditions warrant consideration by the Court of Protection.

The other area which seems to be developing, most promisingly in my opinion, relates to what are commonly called psychedelic medications. Although still considered by some to be on the fringes of psychiatry, a recent presentation by Professor David Nutt at the Royal College of Psychiatrists’ Faculty of Eating Disorders Annual Conference suggests that the potential efficacy of these compounds is penetrating the mainstream. There may be transformative effects from psychedelic medication and this, as with many other aspects of treatment, bears ongoing assessment with continued potential for change.

As everything changes, so capacity assessments and best interests determinations must be dynamic and remain up-to-date, with careful attention being paid both to the changing individual and to the changing world in which they live.

Ty Glover is a Consultant in Eating Disorders Psychiatry and an Independent Medicolegal Expert, whose knowledge of this field draws from his experience over the last 12 years as an expert witness in numerous complex cases of serious medical treatment involving eating disorders in the broadest and narrowest sense of that term – as well as further experience as an expert witness in the Court of Protection in relation to mental health problems unrelated to disordered eating.

Note: This is both a summary and a development of a brief contribution I gave at a recent seminar entitled “Anorexia and the Court of Protection” held at 39 Essex Chambers, chaired by Ms Justice Henke. I am grateful for Celia Kitzinger’s invitation to reprise and develop the broad topics I covered in that forum. There is a link to the recording and materials from the workshop here: https://www.39essex.com/events/anorexia-and-court-protection

Inaudible in-person proceedings: A practical barrier to transparency and open justice

By Tim Sugden, 21st February 2024

It’s not open justice if you can’t hear what is being said in the courtroom.  

My experience is that this is a recurrent problem in magistrates’ courts – and now I’ve found the same problem in the Court of Protection as well.

My experiences in magistrates’ courts with Courtwatch London

Last year, after I noticed in a local newsletter that they were seeking volunteers, I became involved with the open justice project: Transform Justice – CourtWatch London

In all, from August to December I observed nearly 40 hearings (all in person) in a local magistrates’ court. A common theme that all volunteers expressed in our regular support meetings that they had experienced, across the three courthouses involved and in every courtroom and with every District Judge or panel of magistrates presiding, was the difficulty in hearing, and thereby being able to follow, the proceedings. In particular, the CPS and defence counsel were very hard to hear, but sometimes also too the magistrates/judges, witnesses, and other court participants.

The only occasion in all those hearings I observed when the microphones and speakers were switched on, came when an interpreter, standing in the dock with the defendant right at the back of a court, complained that she could not hear the legal submissions. Immediately the system was switched on, and the case proceeded without issue – but it left me wondering how many other defendants in the past have stood there wondering what those in front of them were saying about them.

I and other observers noticed in other courtrooms defendants in the dock and their family members and supporters sitting like us in the public gallery, also unsure and confused about what was being said. 

I am hopeful that one of the recommendations to be included in the project’s Courtwatch report, due out this spring, will be that the sound systems in each court room are by default switched on, for every case and every hearing – not just when someone might be sufficiently assertive, in such an intimidating environment, to request that they are.

My experiences in the Court of Protection

So, I was interested to discover whether inaudibility would be a similar issue in COP hearings, especially those also held in-person – although I have since learnt that it is a particular problem for  hybrid hearings (see “The silent courtroom”).

To date I have attended four in-person hearings:

  • Friday 9th February COP 13925655 HHJ Hilder sitting in court 24 at First Avenue House
  • Friday 9th February COP 13745918 HHJ Hilder sitting in court 24 at First Avenue House
  • Wednesday 14th February COP 14186802 HHJ Batten sitting in court 22 at First Avenue House
  • Monday 19th February COP 13059883 Judd J sitting in court 48 at the Royal Courts of Justice

As regards audibility at these hearings, it naturally helped that (at First Avenue House) they were held in smaller rooms than magistrates’ courts, with shorter distances between the sitting judge and the public gallery, so hearing what s/he says has not so far been, for me, a problem. The one hearing (COP 13059883) I attended at the Royal Courts of Justice was, by contrast, in a much larger room, and it was consequently harder to follow the discussion in any depth or detail, or to make out exactly what the presiding judge was saying at times.

However, even on the three occasions in the First Avenue House courtrooms, what counsel in the front row said was difficult to hear, adding to the other obstacles already present (having little or no background information on the case being heard, the use of legal terminology without explanation, etc). Too often, as had happened every time in the magistrates’ courts, it seemed to become simply a two-way conversation that counsel and the judge were having, with little consideration for the need for others in the room to be able to follow what they were saying. 

These difficulties highlight once more (as I see has been mentioned in previous blogs) the vital importance of having – in line with the former Vice President’s Guidance – a clear and coherent opening summary at the commencement of every hearing. As regards the two hearings I observed on 9th February: in the first, one was given, but in the second, an hour later before the same judge, one was not. No reason for this inconsistency was apparent or was offered.

In one hearing (COP 13925655), one person (it was not explained who she was) had joined remotely, and she complained very early on about not being able to hear – at which the judge turned to the screen and explained what she had just said. Then, however, the hearing just continued without anyone checking (as far as I could tell) that the remote participant could hear and follow the discussion. I felt very tempted to pipe up and say “turn on the mikes!” – but didn’t of course.

But maybe it would be a good idea for the suggestion mentioned above regarding magistrates’ courts, that the microphones and speakers be automatically switched on, to also be considered for adoption in Court of Protection hearings, in all courtrooms at whichever venue. I cannot see an argument against doing so, and it would surely help facilitate the process of transparency and open justice, including for family members and others sitting behind the front row of counsel.

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.

“Private” Hearings: An Audit

By Celia Kitzinger, 1 February 2024

The vast majority of hearings in the Court of Protection are open to the public – but almost every day there are also hearings listed as “PRIVATE”. 

My decision to take a closer look at “PRIVATE” hearings was made one Autumn day last year when I checked the listings and found almost a third (30%) of the county court hearings in Courtel/CourtServe were labelled “PRIVATE”. Of the 20 hearings listed, there were six “PRIVATE” ones: COP 13367644 in Bristol; COP 13991646 in Chelmsford; COP 14059132 in Pontypridd; COP 13925969 in Southampton; COP 13636214 in Torquay; and COP 14124499 in Worcester.

This didn’t look at all like a court committed to transparency. Had the listings been made in error? What was going on?

I sent enquiries to the different courts concerning each of the six hearings, asking whether it had been correctly listed. I also sent the list of six hearings to a senior service manager in His Majesty’s Courts and Tribunal Service (HMCTS) and asked her: “Are you able to check please whether they really are all private. If so, we are seeing a worrying rise in private hearings. If not, we are seeing a worrying rise in listing errors“. I later heard back: “I have contacted the hubs and they have all confirmed that the 6 cases as mentioned were directed to be heard in private.“ (In fact, the information she received turned out to be wrong: as I explain below, there’s now judicial confirmation that one of the six should have been listed as public.)

I was alarmed to be told that 6/20 county court hearings on this single day (20th September 2023) had been directed to be heard in private. I wanted to find out more about “PRIVATE” hearings – like, how many are there, which judges are holding “PRIVATE” hearings, and why are hearings listed as “PRIVATE”?

I’m told there isn’t any internal audit or routine monitoring of private hearings. Nobody, it seems, can tell me how many hearings are held in private in a given month, or over the course of a year. Nobody can tell me definitively what percentage of hearings are held in private vs. public – or which judges are holding disproprortionately high (or low) numbers of private hearings, or the reasons judges decide to conduct proceedings in private. I am told HMCTS doesn’t have the resources – either in terms of staff or in terms of technology – to audit hearings in this way.

So, I’ve had a go at doing it myself – and I’m concerned about what I’ve discovered.

In summary:

About 10% of hearings are listed as “PRIVATE” – I’ve never again since that day in September 2023 seen as many as 30%. 

Only about half of the “PRIVATE’ hearings turn out to have been correctly listed as such. The other half have been incorrectly listed, and should have said they were public (this is of course a concern in its own right). So only about 5% of the total number of hearings are really “PRIVATE” – a much lower percentage than the alarming 30% that prompted my audit, but it still feels like quite a lot of private hearings for a court committed to transparency. 

I’ve some concerns that – despite the staff assurances that hearings have been correctly listed as PRIVATE – this might not actually be so. I don’t know how they check this. If all they’re doing is cross-checking an unpublished list against a published list incase there are discrepancies, the finding of no discrepancies doesn’t equate to evidence that a judge actually directed a private hearing. The error may go back further, only to have been reproduced in the unpublished list against which they are checking the information. Some of the responses do refer to judges’ orders – and even quote from them – but even that is open to question (see below).

And then there’s the question of whether the judges who have directed private hearings have done so correctly. I’ve not been able to locate any guidance for judges (or for the public) about the sorts of considerations judges should take into account when weighing up whether or not to make a hearing private. My own experience in the court leads me to think the following questions would be relevant. Has the judge balanced the relevant Article 8 (right to privacy) and Article 10 (right to freedom of information) considerations? Have they considered whether amendments to reporting restrictions (or even a reporting embargo or reporting ban) might enable the public to attend what would otherwise be a private hearing? Have they considered holding part of the hearing in private, but allowing the public to attend the rest – or if it’s necessary for a case to be heard in private for some hearings, could it be in public for others? These are all important questions for open justice. 

Of course, it may be that the 5% of hearings I’m told were correctly listed as private have in fact been directed to be heard in private by judges who have anxiously considered the matters I’ve raised above. I just don’t have any evidence to support that.

There are four parts to the rest of this blog post. In Part 1 I’ll give a brief account of how I carried out my audit. Then, in Part 2, I’ll show some of the hearings court staff tell me are correctly listed as PRIVATE and explain my concerns about that. In Part 3, I discuss the hearings that have been incorrectly listed as private when they are actually intended to be public – illustrating with one detailed example some of the time and effort it can take to establish this. I end (Part 4) with some reflections about the way forward.

1. Auditing PRIVATE hearings

Every weekday, lists of Court of Protection hearings are published on public websites: Courtel/CourtServe, the First Avenue House daily hearing list, and the Royal Courts of Justice Daily Cause List. Ideally, to do a systematic audit I would have looked at all these lists every day for (say) a month, each day counting the total number of hearings, identifying those labelled “PRIVATE”, and then writing to the relevant court staff to cross-check with them that the hearing had been correctly so listed.

I didn’t manage anything this systematic, but I did find 30 days from mid-September 2023 onwards when I had time to go through the lists and perform this task. It was time-consuming for many reasons, including having to decide which hearings to exclude from the audit (see below), dealing with the fact that some hearings on the list did not indicate their public/private status at all, and some provided contradictory information (that they were both public and private!). Then HMCTS staff were often too busy to respond to my requests for clarification and I found myself repeatedly and apologetically chasing up my enquiries. So, this isn’t as systematic and definitive an audit as I would like – but I think it’s indicative of what’s going on. And in the absence of HMCTS or anyone else having conducted a better audit, that’s all we have to work with.

A note on the hearings I excluded from my survey. Some Court of Protection hearings are not included in ‘transparency’ guidance and are not intended ever to be heard in public: these are “Dispute Resolution Hearings” (DRH), cases about a person’s property and affairs where there is a dispute between the parties. A DRH is a chance to see whether the dispute can be resolved without needing to go any further. It’s a hearing entirely in private and before a different judge from the one who would hear the case in the future if the case cannot be resolved. There has never been any intention to allow these hearings to be public and the court rules don’t give us the right to observe these hearings. So I didn’t include DRH hearings in my analysis. I also didn’t include “closed” hearings – which are much rarer, and which exclude not only members of the public but also people who are parties to the case (and their legal representatives if they have them). These people (often family members) are generally alleged to have caused harm to P e.g. via abuse, forced marriage, or coercive control (e.g. “Emergency placement order in a closed hearing “; A ‘closed hearing’ to end a ‘closed material’ case). There is judicial guidance saying that “given the very limited circumstances in which a closed hearing can appropriately be ordered, it is very likely to be the case that enabling public access would defeat the purpose of the hearing” (§19). I understand why DRHs and closed hearings are not usually open to the public. It’s all the other “PRIVATE” hearings I’m concerned about – not these. And then there are also hearings in the lists that we can’t observe not because they’re “private” but because there’s nothing to see: e.g. when the judge is making a ruling “on the papers”, or when judgments are handed down in the form of formally releasing a public document. I’ve excluded those as well.

2. “Correctly listed” PRIVATE hearings

There are lots of hearings that appear marked as “PRIVATE” (and they’re not DRHs or closed hearings), and when I check with the court staff they confirm that yes, it’s been correctly listed.  Like these in Bournemouth and Poole, and in Leicester, and the 9.30am hearing in Wakefield. 

This one in Bournemouth and Poole says it is “TO BE HEARD IN PRIVATE”. I checked with an administrative officer in Bristol (the regional hub) who confirmed “It is a private hearing“.  

This one in Leicester says “Private hearing – Not Open to Public”. I checked with an administrative officer in Birmingham (the Midlands region administrative hub) who confirmed “The matter was correctly listed in private“. There are two more of DJ Mason’s hearings in my data set: COP 13420797 on 13th December 2023, and COP 13783027 on 4th October 2023, both also confirmed as “PRIVATE’ by court staff: so DJ Mason is apparently directing quite a lot of cases to be heard in private.

The 9.30am Wakefield hearing just says “Private”. I checked with an administrative officer in Leeds who confirmed “The matter has been listed correctly as private“.

Sometimes, especially in the Royal Courts of Justice (RCJ), the words “in court as in chambers” are used to convey “this hearing is private”. This is pretty obscure, of course, to most members of the public – who don’t know that’s what this bit of legal jargon means. This RCJ hearing from 10th January 2024 is an example.

I checked this with the RCJ Listing Office, asking “Please can you confirm that this hearing is correctly listed as “in Court as in Chambers” (which I take to mean that it’s private and members of the public can’t observe)” and was told “This matter is to be heard in private“.

Usually the responses I get confirming the accuracy of the listings say nothing more than some variant of “yes it’s correct”. I don’t know what (if anything) the staff did to check that it was correct. A few refer to a judicial order or direction. For example:

  • COP 13726955 DJ Taylor (13 November 2023) The staff member quotes this: ““All hearings in this matter shall take place in private and by way of remote hearing pursuant to Court of Protection Rules 2017 r 3.1(2)(d) unless the court directs otherwise.”
  • COP 13990303 Rogers J (29 September 2023) “Regarding the listing of the hearing below, as per the Remote Order of District Judge MacCuish dated 14 September 2022, paragraph 1 states the following: ‘All hearings in this matter shall take place in private and by way of remote hearing pursuant to Court of Protection Rules 2017 r 3.1(2)(d) unless the court directs otherwise.’“
  • COP 13783027 DJ Mason (4 October 2023) “As per the Judge’s directions, all hearings for the above matter are to take place in private and by way of a remote hearing.”
  • COP 13939363 DJ Miles (14 November 2023) “I can confirm that the hearing has correctly been listed as private. The last directions order listing these proceedings reflects that.”
  • ·COP 1406338T HHJ Marson (13 December 2023) “In response to your email sent to Leeds County Court of Protection this morning, the courtel list has been done following the direction of the Judge.”

I’m not 100% confident that these responses confirming that the hearings are private by direction of a judge really do reflect a judicial direction in all cases. The first two in particular sound like the standard wording used in transparency orders for private remote hearings introduced in response to the pandemic when courts first moved out of physical courtrooms and onto remote platforms. The proviso was that hearings were private “unless the court directs otherwise“ and the usual practice was that, if a member of the public asked to observe, then the judge would “direct otherwise” without demur. This wording was routinely used prior to statutory changes with the amendments to remote hearings under the Courts Act 2003 and the Remote Observation and Recording (Courts and Tribunals) Regs 2022.  Subsequently, there’s been no issue with listing such hearings as PUBLIC, and maybe that’s what these judges should properly have done.  But I have no way of knowing for sure without direct communication from the judge.

Even supposing that these judges have anxiously deliberated the Article 8 and Article 10 issues and made carefully considered declarations for private hearings (and the more I think about this the more unlikely I consider it to be), there is no indication of the reasons why these (or any other) hearings are being held in private. Nor is there any indication that if I’m concerned about proceedings being held in private I might have a right to ask for more information or to challenge this. I don’t think I’m entitled to the reasons – although on one occasion which I’ll describe later, they were offered (and proved in fact to be incorrect) – but without them I can’t really do much to challenge a judicial decision.

It also seems to me that some of the regional hubs are holding a great many more private hearings than others – amounting to a sort of “postcode lottery” as to whether your hearing will be held in private or in public. For example, I have logged more (confirmed) “PRIVATE” hearings for the Bristol hub than anywhere else – though Birmingham isn’t far behind. (There are also many more “incorrectly listed” private hearings for Bristol than for the other hubs.)

And some individual judges seem to hold more private hearings than others. In the Bristol region that’s HHJ Cronin, DJ Miles, and Recorder Roper KC. In Birmingham, HHJ Plunkett and DJ Mason lead the field. There might be good reasons for this. Maybe they are hearing more cases than anyone else, so have a higher number of “PRIVATE” hearings but the same proportion of them. Maybe these judges are hearing particularly challenging cases with sensitive fact patterns. Maybe they just happened to have hearings listed on days I happened to be checking the listings. I don’t know. 

Really, we need someone in the justice system to collect this sort of data systematically and determine whether there’s in fact any inexplicable geographical disparity relating to private hearings and any disparity between judges. There shouldn’t be. That’s not how justice should work.

3. Incorrectly listed public hearings (appearing as PRIVATE when they should appear as PUBLIC)

On any given day, about half of the hearings listed as “PRIVATE” aren’t in fact intended to be private at all. The judge has (I’m told) made no such direction. In response to my enquiries I’m told that these apparently private hearings are actually listing errors.

Here are some examples.

It’s not just Bristol of course. The Birmingham hub has apologised for incorrectly listing hearings as PRIVATE (including COP 14059558, DJ England; COP 13809271, COP 13924116  + 12844123, all DJ Gibson; and COP 13180943, HHJ Clayton). The Manchester hub told me they’d incorrectly listed three hearings before DJ Gray (COP 14005566 + COP 13935068 + COP 13452391) as “PRIVATE” when they should have been public. From Leeds I got an explanation that COP 14125957 before DJ McLaughlin was actually supposed to be public not “PRIVATE” as listed. And First Avenue House incorrectly listed what should have been public hearings before DDJ Chahal (COP 12051835) and – on two separate occasions in December 2023 – before DDJ Atreya (COP 13979630 and COP 1199687).

Event in the (relatively) well-resourced Royal Courts of Justice, hearings are sometimes incorrectly listed – though this is much less common, and this example is from before I started my audit, in May 2023. This hearing before Mr Justice Hayden, which says “in Court as in Chambers” (meaning “PRIVATE”) should have been listed as “in Open Court”.

On enquiry about this hearing before Hayden J (early on the morning that the hearing was due to commence), I was told that it had been incorrectly listed, that actions were in train to correct this, and that I was welcome to join the hearing. The court clerk even sent me the video-link, and other observers also gained access and one of them blogged about the case (“”A lively personality” in a complex medical case“).

All these incorrectly listed apparently PRIVATE hearings are a public relations disaster for a court concerned to display itself as open and transparent. They double the number of hearings that appear to be private on the listings, and they have the practical effect of making public hearings into private one – because including the word “PRIVATE” on a court listing obviously dramatically reduces the likelihood of a member of the public asking to observe it. 

Lawyers I’ve shared my data with have expressed surprise that so many hearings are listed as private. They tell me they’ve not been involved in private hearings very much at all, not for ages, not ever, they’re very rare. Presumably this is because they don’t know that the hearings they’re involved in, which they know to be “public” (because they have the transparency order in the bundle) are de facto actually “private” because that’s how they’ve been listed.

I don’t think the incorrect listings are part of a conspiracy to exclude us. They often have that effect of course, because we don’t find out they’ve been incorrectly listed until after they’re over. But I accept the explanations I’ve been given that these incorrect listings are as a result of “oversight“, “internal error“, “confusion“, and (often) “identify a training need“. I have alerted my HMCTS contacts and they tell me they are now addressing this. 

One example of how a public hearing came to be incorrectly listed – and the work it took to establish this

Here’s an example of how this “confusion” manifested itself in one case – and I’m very grateful to the judges concerned for taking the trouble to root out the problem. I suspect this sort of problem (and others like it) is far more common than is widely acknowledged, but it takes judicial commitment to open justice to track down the issues.

On 20th September 2023, the fateful day that launched my auditing exercise, one of the 6 “PRIVATE” hearings was COP 13991646 before DJ Molineaux, sitting in Chelmsford. On that day, staff from all six hearings got back to me – and to the HMCTS senior service manager I was in contact with – to say that all six hearings were correctly listed as PRIVATE. The hearing before DJ Molineaux was no exception. I logged it (as did the service manager) as a correctly listed PRIVATE hearing. 

But things didn’t end there. The email I received confirming that the hearing was PRIVATE was unusual in giving a reason for this decision: “This matter was listed in private for all hearings as directed by the Judge as Protected Party is a minor.” 

This surprised me because I’ve observed a lot of COP hearings before and since concerning protected parties who are minors, and we’ve blogged some of them (e.g. Moving towards transition from children’s to adult services” ). I checked with some lawyers and was told “there’s nothing in any of the transparency stuff which draws a differentiation between those below or above 18, which suggests that there has not intended to be any difference in such cases“. So I wrote to the judge (forwarding the email claiming that the hearing was private because the protected party was a minor) and pointing out that “I appreciate there may be other reasons for deciding to hear this case in private, but am concerned that the reason given … is not sufficient“.

My email was passed to the lead judge for the region, HHJ Owens, who took the time to relay a response back to me. She was clear that simply because a child was involved was not a reason for a decision to be taken that COP proceedings would be held in private, but that in this particular case that there had been an initial direction for the proceedings to be in private because it appeared that there were or had been linked Children Act proceedings, and Section 97 of the Children Act 1989 makes it a criminal offence to publish any details that would lead to the identification of a child involved in such proceedings. There were also concerns (she said) about abruptly removing the protection of privacy guaranteed in the previous jurisdiction as the child moves into the COP, such that time was needed to consider welfare matters related to this. This all sounded appropriate to me, and I was reassured to know that the declaration requiring a private hearing had been properly considered.

Then, about an hour later the same day, I got another message from HHJ Owens, who had now liaised with DJ Molineaux (so two judges were involved in sorting this out). She told me that “the proceedings were in fact directed to be in public subject to a transparency injunction following review by the allocated judge quite some time ago, but there seems to have been an uncorrected typo on an order issued in August this year which referred to the proceedings being in private because they were remote“. The advocates, she said, were using an old template. 

So COP 13991646 turned out to be not – as I had previously been told (twice!) – a correctly listed private hearing, but an incorrectly listed public hearing.

Just a note for the conspiracy theorists out there – there was no cover-up! I believe that the court staff who told me (and their senior service manager) that the hearing was private were reporting accurately what they – falsely as it turned out – believed to be the case. I believe that in her first email to me, HHJ Owens also told me what she believed to be true. And if there had been any conspiracy to keep the hearing secret, she need never have sent me that second email, correcting her earlier statement that the hearing was private. The judicial candour, and the time and commitment it took to investigate this matter, is very reassuring. The error, of course, is not!

4. Reflections on the way forward

The judicial aspiration to transparency is obviously not met when there are private hearings. Of course sometimes transparency has to give way to other compelling human rights considerations. But that’s not what I’m seeing here. I’m seeing a mess – with lots of hearings wrongly listed as PRIVATE when they shouldn’t be.

I don’t want to deny or underestimate the huge progress the Court of Protection has made towards transparency in the last decade. Until the end of January 2016, all COP hearings (with very few exceptions – notably serious medical cases and committal hearings) were heard in private. That was the general rule, the default position. This was effectively reversed with the introduction of the Transparency Pilot (subsequently incorporated into normal COP procedure) in January 2016, which made the vast majority of hearings public with reporting restrictions – and this became the newly established default position. At the beginning of the pandemic, when hearings moved out of physical courtrooms to telephone and video hearings, the (then) Vice President, Mr Justice Hayden, made transparency one of his priorities. Unfortunately, the Coronavirus Act 2020 did not extend to the Court of Protection the broadcasting rights afforded to other courts. This meant that remote Court of Protection hearings had to be labelled PRIVATE, but the Vice President’s guidance said that this was with the proviso that if a member of the public (or journalist) asked to observe a hearing, then “active consideration” must be given as to how to acheive this. And in practice, we were regularly admitted to hearings labelled private: the Open Justice Court of Protection Project was set up towards the beginning of the pandemic (June 2020) and has published hundreds of blogs about the hearings we watched over the next two years. The frustration we faced, given that the public were regularly admitted to “private” hearings back then, was the deterrent effect the label had on members of the public who - perfectly reasonably! – didn’t understand that “PRIVATE” didn’t mean we couldn’t attend. (See my detailed discussion of the state of play regarding “private’ hearings up until June 2022 in my blog post for the Transparency Project here: “”Why are so many Court of Protection hearings labelled ‘Private’?”).

The situation now is different. Everything changed with the amendments to remote hearings under the Courts Act 2003 and the Remote Observation and Recording (Courts and Tribunals) Regs 2022. Court of Protection hearings can now be listed as PUBLIC without falling foul of any statutory provisions. So when they say PRIVATE, it’s reasonable to believe that private means private. Which is why it’s disturbing to find that at least 50% of the time, it doesn’t. And I really don’t know what’s going on the other 50% of the time, but I’m not fully convinced that private really means private then either – or that it should do. The one and only occasion that the judiciary launched (at my instigation) a proper investigation into why a hearing had been labelled private, eventually yielded the discomforting outcome that an “uncorrected typo” had resulted in a public hearing being incorrectly listed.

I’m only a public observer. I don’t have the powers to investigate the problems, or what is causing them, or how they might be sorted. What I can do is point out something of the extent of the problems and ask HMCTS, lawyers and judges to do something about them.  

I’m sure there’s a training need (there always is) and I’m sure someone will tell me about a new system or snazzy computer fix which will make everything better. Maybe. 

This really needs a systems-level solution. But one simple change you could all make right now is to check how your hearings are listed in CourtServe (or First Avenue House or on the RCJ website) the afternoon before the day of your hearing (and get them corrected if they’re wrong). Because that’s what we’re looking at when we’re thinking about observing a hearing, and what we see there will determine whether or not we believe your hearing to be open to us to observe. And if it says PRIVATE, we probably won’t try to come along and observe it.

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

Two law students’ first observation of a COP hearing

By Kei Yong and Isabella Treston, 31 January 2023

As two students studying the Bar Practice Course and Masters of Law in Liverpool, we were given the opportunity to attend remote hearings in the Court of Protection as part of our Masters. Neither of us had previously attended or known a lot of information regarding the Court of Protection. This experience allowed us to gain further insight into not only the court but also as to how it operates. 

The hearing we observed (COP 14116349) was in the Royal Courts of Justice, via MS Teams, in front of Mr Justice Keehan at 2pm on 17th of January 2024. 

Mr Sebastian Elgueta of Garden Court Chambers, represented the applicant Local Authority. The respondent, P was represented  – via her Litigation Friend, the Official Solicitor – by Ms Olivia Kirkbride, of Serjeants’ Inn Chambers. 

Aside from them, there were other people present in the hearing, namely, the instructing solicitors, P’s mum (who is also a party to proceedings), P’s social worker, the social workers’ manager and another public observer. 

In a previous instance, we found ourselves in a situation where we were not provided with the link to access a hearing we had requested to observe. Per the instructions on the website, at approximately 6pm on the 16th of January 2024, we had both emailed the correct email address asking for the link to the 10:30am hearing the following morning. At 10:00am on the 17th of January 2024 we were sent an email saying we would receive the link shortly, but this did not happen. As a result, we called and sent further emails in an attempt to receive the link. Ultimately, we received the link after speaking with several people, at 10:55am. We felt that we would have missed too much of the case, and therefore requested the link for the hearing at 2pm instead. Fast forward to our recent request, and we were pleased to receive the link for this hearing promptly. While we appreciate the opportunity to witness legal proceedings, we believe there is room for improvement in the communication process surrounding access to hearings.

In this hearing, we were not given an opening summary, contrary to the guidance from the former Vice-President of the Court of Protection. The absence of an opening summary in this hearing raised concerns, as it left us without a foundational understanding of the case, making it challenging to navigate the case and hindering our ability to fully grasp the implications of the hearing. We believe the opening summary is not merely a procedural formality but a fundamental pillar of open justice. It serves as a crucial guide and assists public observers in the hearing in understanding the intricacies of the matter; an integral element to promote transparency and accessibility within the legal system.

The order that the Local Authority seeking was to transport P from her current residence (at her grandmother’s house) to a care facility where she had previously resided for a period of respite. Prior to this period of respite, P had lived with her mother. This decision was agreed upon by the local authority and the Official Solicitor at a pre-hearing meeting. Earlier in the week, P met with a representative of the Official Solicitor, and she expressed her excitement about moving back to the care facility where she lived before. 

Although P is ‘non-verbal’, the Local Authority mentioned that from P’s facial expressions, they were certain that P was looking forward to moving back to the care facility.  However, there was no evidence called before the court to assist the court with this decision making. The court merely relied upon the statement provided by the Local Authority. This led to P’s mother showing strong objections to this order. She expressed that this was not her daughter’s, P’s, wishes or feelings. P’s mother further argued that P would not have reasonably understood what the situation was and begged the court not to make the order.

We found that there were potential issues with access to justice in this case. The mother of P stated that she had a solicitor, but was still waiting on legal aid, thus leaving her with no representation. She explained that she felt as if she had not been given a chance to defend herself, saying that “I haven’t gotten a chance to speak for myself”. The setting of the court and the use of legal jargon, put P’s mum, a litigant in person in a disadvantageous position. This left an impact on both of us, as we naturally felt sorry for a mother who was facing being further separated from her child. 

Another issue raised by the mother was that it was her opinion that the Local Authority had been lying and misleading the court. Specifically, there was a suggestion she may have breached a previous injunction, made by Mrs Justice Arbuthnot, which prohibited her from seeing P. The mother insisted she had not breached this order and was therefore confused. Further, the mother stated that her daughter was not in danger and that the Local Authority were also lying about this.

It was an extremely emotional case, with the mother crying and pleading with the judge not to make this order. However, we thought that the judge, Mr Justice Keehan, handled this situation very well. Mr Justice Keehan was empathetic, stating that he understood how she felt, and took his time explaining certain points which the mother did not understand. The judge emphasised that he was making this order as it was in the best interest of P’s welfare, and that it aligned with P’s own wishes and feelings. Mr Justice Keehan further explained to the mother that she would be able to object to his decision, through an application to re-list the case which he would be willing to consider at a later date. This would allow him to evaluate the situation once P had been moved to the care facility.  

Finally, Mr Justice Keehan stated that the updated care plan should be sent to all parties by 4 pm on the 17th of January 2024 (same day as the hearing) and asked for the Local Authority to clarify the plan for P’s move. Local Authority representatives confirmed that the move would occur on 18th January 2024 at 11am and that a vehicle suitable for a wheelchair had been organised. 

After this hearing concluded, we reflected upon the decision, as to whether we thought it was the correct decision, within the eyes of justice. Although we would require more information regarding the background of the case, and why P was specifically being transferred, we formed the view that it was the correct decision. Mr Justice Keehan took P’s welfare into account as well as considered that P had made it clear that she was excited and happy to move. Although it must have been a tough choice to make, we believe it was the correct one. 

Overall, despite the issues with the link and the lack of an opening summary, we both found the experience of being a public observer within the Court of Protection to be a positive one. Being able to gain insight into how such a court operates was an interesting change from our experiences attending the Liverpool Crown Court. Further, as this was our first time attending a court hearing remotely, it was interesting to see how technology has developed within the legal world. 


Kei Yong is an international student from Malaysia, currently pursuing the Bar Course and LLM at the University of Law and aspiring to become a barrister.
Isabella Treston is a BPC LLM student, studying in Liverpool. As an aspiring criminal barrister, she has an interest within access to justice and the Court of Protection.

A disappointing failure of open justice: DJ OmoRegie says no

By George Palmer, 29th January 2024

I was very excited to learn that I could shadow Celia Kitzinger as an observer at a remote hearing (via cloud video platform) at 10 am on Friday 19th January 2024.   

I’m a third-year law student at the University of York intending to go into a career within Clinical Negligence law as a barrister. The competitive nature of the legal profession excites me, and I look to continuously push myself to achieve my best within, and outside of, my studies. I have always found healthcare law, which takes something so subjective and personal, such as a patient’s mental or physical health, and attempts to turn it into an objective matter and problem for barristers to debate over, and judges to determine, incredibly fascinating. And I feel that being a barrister, rather than a solicitor, gives me the best chance to make an impact on the decision-making process concerning these patients and individuals. 

I’ve previously observed and blogged about my first COP hearing last year (“Assessing and Treating Leg Ulcers of A Resistant Patient”), and I was keen to observe another hearing.

Here’s how it appeared in the listings.

That morning, we both sent emails asking for the link for the hearing (Celia at 08:23 and me at 09.17).  

We then both (separately) received emails with the Transparency Order attached, and were copied into an email to Kent County Court asking for the link to be sent to us.

On reading the Transparency Order, Celia raised an issue with it, because it stated that no information was to be released which “identifies or is likely to identify that: … (c) M[edway] C[ouncil] are parties to these proceedings…”

Celia explained to me that Transparency Orders which prevent observers (and everyone else) from identifying public bodies involved in Court of Protection hearings are – as a general rule – unacceptable in terms of open justice.  She told me:  “It’s important for public bodies (paid for with our taxes) to be identified and held accountable for their behaviour to the public. That’s an important principle of open justice.”

Celia sent an email asking for the TO to be varied (see Appendix below), and was told that the request would be considered at today’s hearing. (And the judge subsequently said he would vary the order.)

However, neither Celia nor I had received the link by the listed start time of the hearing. Celia told me she had emailed with a reminder that she’d not received the link at 09.51 and then again at 10.17, saying that both she and I had requested the link and asking whether the hearing was starting late. 

Eventually, I was sent a link at 10:23, setting out instructions on how to join the hearing and the password for logging in. However, once again I was met with disappointment when I tried to join the hearing and was left in an empty waiting room for 15 minutes.

When Celia joined the hearing, she emailed to tell me two things: first, the hearing had been going for almost half an hour, so we’d missed half of it.  The second thing was (said Celia) that the judge reported not having seen my email requesting access and said that he was therefore not able to admit me to the hearing. What he must have seen was Celia’s email naming me (and giving my email address, but not forwarding my email, since she didn’t have it)  and saying that I too wished to observe the hearing.

I don’t really understand why the judge couldn’t admit me, but Celia advised me to send another email immediately (which I did) hoping that it would reach the judge.

However, after another email, I was then told at 10:47 that I would not be allowed access to the hearing as ‘the judge did not receive a request from you to join the hearing and has not approved you joining the hearing’. 

Disappointed, I was left unable to join the hearing, without a sufficient explanation by the court as to why my emails were not passed across to the judge.  Celia has written to the court staff involved requesting a full explanation of what went wrong, both for me, and in terms of her being admitted so late.

I was gutted at the missed opportunity to observe what I was later told was a highly interesting hearing, which I’m sure would have furthered my knowledge of the legal system as a law student. 

This is disappointing from a personal perspective – and it’s even more disappointing  but to know that the profession I hope to join has failed in open justice – both by initially issuing an injunction concealing the identity of a public body (a decision reversed in response to Celia’s request) and then by denying me access to a hearing despite having made a request in the correct format in a timely fashion, and despite Celia advocating on my behalf.

Public hearings should be accessible to all members of the public who want to attend.   If we’re not admitted, despite appropriate and timely requests,  they should not be referred to as ‘public’ at all.  

George Palmer is a third-year University of York Law student and aspiring Clinical Negligence barrister. He hopes to commence Pupillage in 2025 and one day become a leading barrister in his chosen field.

Appendix: Letter requesting variation of reporting restrictions  (by Celia Kitzinger)

19 January 09:10am 

Dear DJ OmoRegie

Request to vary Transparency Order COP 13887885

I have received the Transparency Order for this hearing, dated 23rd June 2023 and made (I think) by HHJ Coffey.  It says on the front of the Order that I have the right to ask for it to be varied or discharged and I am exercising that right here.

I note that the subject matter of the Injunction (§6) is any material or information that identifies or is likely to identify the protected party at the centre of this case (JX) and their family.  Unusually, however, this TO also prohibits identification of the public body in this case: at least, I assume that “MC” (§6c) is Medway Council, as named on the face of the Order.

As far as I can tell from the TO itself (which is my only source of information about this case), this protected party appears to be making a s.21A deprivation of liberty challenge against Medway Council.  It is not obvious to me why Medway Council’s identity should be protected in this case.  In general, it’s important for public bodies (paid for with our taxes) to be identified and held accountable for their behaviour to the public.  That’s an important principle of open justice.  In practice – and I’ve now observed more than 500 Court of Protection hearings – it’s very unusual for us to be prohibited from identifying public bodies.

I am asking for the TO to be varied to permit me to identify the public body in accordance with my Article 10 rights to freedom of information.  

I understand that JX has possibly competing Article 8 rights to privacy and that the court may already have conducted an Article 8/Article 10  balancing exercise to determine whether there is a risk of broader identification of  JX if the public body is publicly identified.  But I am also aware that there is often poor practice in drafting TOs and that it may  in fact be the case that no such balancing exercise has been done, and that the protection of the identity of the public body has slipped into the wording of the Order by default, without being properly considered by the judge.  Unfortunately, I have seen this many times. 

When I have raised this kind of concern previously, the judge has usually asked counsel at the beginning of the hearing to make submissions as to whether there are good reasons for the identity of the public body to be protected.  If it is said that there are such reasons, I have often been invited to respond before the judge makes a decision on the matter. If – as is usual – there are no such reasons, the judge simply varies the TO there and then and asks for a new version to be drafted.  For open justice reasons, it is important that the matter be dealt with in a timely fashion so as not to delay publication of the name of a public body if in fact publication *should* be permitted.

Thank you for your attention to this matter.

Yours sincerely

Celia Kitzinger

“Unusual restrictions” for a 17-year-old

By Claire Martin, 25th January 2023

This hearing (COP 14169995 before DJ Glassbrook, sitting at Northampton County Court on 5th January 2024) caught my eye in the CourtServe list because it mentioned “unusual restrictions to which the protected party is subject”.

Unfortunately, despite requesting them,  I’ve not been sent the parties’ position statements, so I don’t have much detail about the case.  

I think the parties had asked for the judge to make decisions ‘on the papers’ (i.e. without the need to come to court and hear evidence). However, DJ Glassbrook said in his very helpful nutshell explanation of why the case was in court that  “as will become apparent, restrictions to which he is subject are unusual and therefore in my view it needs particularly careful scrutiny of those provisions“. 

The protected party in this case is a young man, 17 years old . He is currently on Section 17 leave (which means he is detained under the Mental Health Act 1983) and is living in what the judge described as “bespoke” accommodation in a care home. He has been living in “an institution” since the age of six. The judge said that “interaction with his peers has not happened for years, however you classify peers“, and that “for a long period, interaction with anyone has been through a doorway – and my impression is pharmacological restraint as well, though detail is not clear. He tends to live in padded rooms“.

This was sounding very alarming and I was wondering why this person could not be in the same room with anyone at all.

The judge then said: “For reasons that are anything but clear he is not even allowed to turn over the channel on TV. To my mind those are unusual restrictions … My job of course is not to try and upset everything but most definitely is to consider those restrictions and to consider whether they are necessary and if there is anything less restrictive that would suffice for this young man”. 

I really have very little detail to form any kind of view on this case, and the hearing was mostly about setting directions for the next hearing, information required and who from. 

Savannah Laurent represented the Local Authority. She said that recent “updating instructions” suggest fewer restrictions that the judge described, such as P had “recently gone into the kitchen and poured his own cereal“, suggesting that he might be subject to a less restrictive regime in the home than in hospital. She went on to say that the Local Authority has agreed to provide an updated care plan, PBS (Positive Behaviour Support) plan and an updated EHCP. None of those documents was available for this hearing. 

DJ Glassbrook reiterated, understandably in my view, that he could “only go on the paperwork that I have got“, going on to say that it was clear that P’s bedroom was “padded out“, and that he received 4:1 staffing, describing that as “extraordinary, literally” and further that P had been: “… subject to significant pharmacological intervention. I saw mention that he’s had so much benzodiazepine that he may now be dependent upon it. This sort of thing is ripe for asking questions at the very least”. 

There was some discussion between the judge and counsel about who had primary statutory responsibility for P (the Local Authority or the hospital where he was under a section of the Mental Health Act) and about who could provide what information, and by when. The possibility of deputyship for P’s health and welfare was also mentioned by the judge. P’s grandmother was joined as a party (I think she might have been on the Teams call but I am not sure) and it was helpfully acknowledged that P’s family will have views and wishes in relation to P’s care and treatment, which I don’t think were known at the time of the hearing. 

P was due to be reassessed under the Care Act as an adult, but the social worker he has met will soon be leaving. The judge commented on how there been “a turnover of social workers for a while” and asked that P be allocated a social worker who is not likely to be leaving. 

Nia Gowman,representing P via the Official Solicitor, asked for the court order to include a request to the treating hospital that the outcome of an upcoming mental health tribunal is provided to the court (Judge: “Yes“) and that the Local Authority evidence should give information about how P is getting on in his current care home. 

Finally, Nia Gowman raised some concern about the wording of the restrictions that the court is being asked to authorise. She reiterated that 4:1 care is still in place and that P is not able to leave his room. The judge added to this, asking that the draft court order made it clear that: “The restrictions are unusual and will require unusual scrutiny and whatever is authorised at the moment is done on an interim basis, given we don’t have a great deal of information. The court will be expecting to look in detail at what these restrictions are. I’d like that recording please”. 

This was a short hearing, forty-eight minutes, and I thought the judge was given very little information to form any view at all, even for the interim court order. I don’t know whether this was anticipated and planned, and that parties had all discharged their duties fully in readiness for the hearing. This could have been the case. Regardless, as the judge emphasised, the restrictions to which P is subject remain, and remain “extraordinary“. P has just moved to a new home and will be subject to these restrictions for at least another three months. I assume that he must have been deemed to lack capacity to make his own decisions about residence and care (since it seems that best interests decisions are being made on his behalf) but I don’t know what impairment or disturbance in the functioning of his mind or brain has been diagnosed, or what his needs are, what he would like for himself (or how he communicates his preferences) or, indeed, anything about him! None of these things were mentioned in the hearing.

It would obviously have been helpful to me as an observer to have been provided with a fuller summary of the case and/or the position statements: without it, this case is less than transparent. 

The case is due to come back to court the week beginning 21st March 2024. 

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

Judge approves P’s conveyance (against his wishes) to a care home – and tells lawyers to “just stop!” routinely anonymising public bodies in draft Transparency Orders


by Daniel Clark, 22nd January 2024

It is not unusual for the Court of Protection to hear cases in which a “conveyance plan” needs to be approved. These are plans about how a protected party (P) will move from A to B and are an integral part of keeping P safe while also promoting her or his best interests. You can read more about them in this blog by Ian Brownhill: How we get there: Conveyance plans in the Court of Protection.   

In this case (COP 1418851T) the protected party, who I will refer to as Mr J, is an 81-year-old gentleman who has a diagnosis of mixed-type dementia (Alzheimer’s Disease and Vascular Dementia). He has not been engaging with his carers, and his physical and mental health have both deteriorated. 

As a result, the local authority applied to the court for declarations that Mr J lacks capacity with regards to his residence and care, that it is in his best interests to move from his home to a care home, and that the conveyance plan designed to achieve that is in his best interests. 

This blog is split into two parts. First, I will discuss the substantial matter before the court. Second, I will discuss how I made an application to vary the Transparency Order in this case, so that the local authority could be identified. This certainly a “win” for open justice, and I was impressed with how matters were handled by the judge. 

This case was before District Judge Geddes, sitting remotely from Leeds Combined Court, on Tuesday 19thDecember 2023, at 2pm. The applicant local authority, Wakefield Metropolitan District Council, was represented by Aaqib Javed of Spire Barristers. Mr J was represented by his Accredited Legal Representative, Robyn Mayoh of Switalskis.

Mr J’s daughter was also present at the hearing, as was his social worker.

Matters before the court

Mr J was diagnosed with mixed-type dementia in 2017, and had been detained under section 2 of the Mental Health Act in 2018 following an increase in agitation and verbal aggression, as well as expressing thoughts of suicide. He was discharged from hospital and, after a brief period of reablement, was living independently at home. 

He was re-referred to social services in 2021, whereupon a care package of one call a day was initiated. However, Mr J did not accept that he needed to be supported by carers, and he often became frustrated. At the time of the hearing, he was said to present as “dishevelled” (a word repeated during the hearing and in the local authority’s position statement), had been wearing the same clothes for a couple of weeks, and was unshaven. However, the social worker is quoted in the local authority’s position statement as writing that, “[Mr J] was always a well-dressed and smart man and would be distressed if he understood how he is currently living”. 

Mr J is strongly opposed to moving to a care home because of his experience of his wife dying in one. There had been some talk about Mr J moving to a care home closer to his daughter but these plans did not go ahead. This was so that the local authority could consider less restrictive options.

Mr J’s Accredited Legal Representative (ALR), who visited him prior to the hearing, told the court that Mr J “wishes to remain where he is”. He recognises that there are door sensors in his property but he believes these are “part of a police conspiracy” – it was also explained that Mr J believes he is part of an undercover police operation, and had gone to town in the early hours of the morning in an attempt to meet with the Chief Constable. As she came to the case late in the day, his ALR had not had time to formulate a full position. However, while she did not endorse the order sought, she also did not oppose it. 

Mr J’s daughter told the court that her brother is now scared of their dad because, after an occasion when Mr J was returned home by the police, Mr J threated his son and had “him up against the wall”. She began crying while addressing the judge, and I cannot even begin to imagine the pain and heartache that this family must be feeling.

By this point in the hearing, I had a good impression of the difficulties that Mr J was facing but this was mostly framed in the negative: what Mr J cannot do rather than what he can do; what he is like now rather than what type of man he has always been. Mr J’s daughter, on the other hand, made it clear that his current presentation is radically different to how he has previously lived. 

She explained that “he does trust everybody, anybody on the street, he’s such a friendly chap”. She felt this exacerbated his vulnerability but it was also clear that Mr J has always been a very sociable man. She described him as an “elegant gentleman” who “loves to laugh and talk and dance. There’s no life for him at home now…He’s lonely, he wants to talk to people”. Mr J’s daughter supported the local authority’s application, and it’s easy to see why – hopefully, a care home will provide Mr J with the opportunity to socialise, and do what he enjoys. 

The judge gave a brief ex tempore judgment in which she stated that, “I am going to order pursuant to section 16 that it’s lawful and in his best interests to be conveyed from his home to a placement…and authorise that conveyance plan as much as it amounts to a deprivation of liberty, and for him to reside at the placement and receive care there”. 

This case will return to court at 12noon on the Tuesday 26th March 2024, where proceedings will likely be re-constituted as a s21a challenge. 

Transparency matters: Naming Wakefield Metropolitan District Council

Ordinarily, we have to request the position statements of the parties after a hearing. Sometimes, if we recognise Counsel when we join the video platform, we can email them before the hearing starts, and hope they see the email in time. 

Unusually, I didn’t have to do either of these things because I received the local authority’s position statement from a court administrator, who sent it prior to the hearing. This was very helpful and meant that I had a good grip of what had been going on and what the local authority’s position was before the judge had even joined the video platform. 

I also (unusually) received the Transparency Order prior to the hearing starting. A Transparency Order is a legal injunction designed to allow the reporting of Court of Protection cases while also protecting P’s privacy. This usually entails (as the Order for this case did) prohibiting the publication of anything that may identify the protected party (P), where they live, their carers, or their family. 

It is usual that public bodies can be identified: after all, they are funded by the taxpayer and cannot be held accountable in that local area if nobody knows what they’ve been doing. It would also usually be very difficult to identify somebody simply on the basis of knowing the local authority in which they live.

However, the Transparency Order included in the list of the information covered by the Injunction that, ‘a Local Authority is a party to these proceedings’. This is very unusual. It says on the front page (“the face”) of a Transparency Order that “any person” has “the right to ask the court to vary or discharge the order“. I therefore wrote to the judge to do just that, using a fairly standard form of words we’ve developed over many previous challenges to Transparency Orders which prohibit the identification of public bodies[1].

By this point, I already knew which local authority was involved in this case because Wakefield Metropolitan District Council was named as the applicant local authority on the front of the order prohibiting them from being identified. This is not good practice. A Transparency Order is a public document, and any person or organisation whose identification is prohibited should be appropriately anonymised in the Transparency Order (so, P’s initials rather than P’s full name, and “A Local Authority” rather than its name).  That hadn’t been done correctly here – and it’s an error we’ve come across before in Transparency Orders in other cases. 

I regularly share Transparency Orders with another member of the public, Celia Kitzinger (a core team member of the Open Justice Court of Protection Project who acts as our blog editor). This is because she needs to be sure that I have not included information  covered by the Injunction because she too would be in contempt of court for publishing a blog post that breached the Transparency Order. As it stood then, I wouldn’t be able to send Celia the Transparency Order for this blog post because to do so would be to breach it.

As it happened, I didn’t need to worry about that. The judge had read my email asking for the Transparency Order to be varied to permit identification of the local authority, and she addressed it within the first few minutes of the hearing. Below are my notes of what she said: 

“Before we go any further, I’m not sure whether the message was relayed [to Counsel] that there had been a request to vary the Transparency Order, quite rightly because it’s wrong, or at least appears to be wrong, in that it includes…a prohibition on revealing information that Wakefield is a party to these proceedings, which shouldn’t have been included ordinarily. Does anybody object to me varying [that section] to that draft order? [nobody objected] Okay…I put out a plea to practitioners again – just stop doing it. It’s always difficult for it to be picked up when gatekeeping draft orders and the more that are right, the less time we have to spend on them when there’s much more important things to be thinking about including the actual facts of this case.”

I was very pleased with this decision, and the way it was dealt with so quickly. I was quite struck that not only did nobody object to it being varied but that the other people on the video platform looked genuinely surprised that the Transparency Order had prevented identification of Wakefield in the first place. 

For me this demonstrates that, when Transparency Orders prohibit the identification of a public body, it is quite possibly the case that this has been included without much thought for the implications. In other words, it isn’t part of a deliberate conspiracy to keep those public bodies hidden from public scrutiny. As we’ve said before[2],  this degree of inattention to the details of Transparency Orders has a negative effect on open justice.

To write to a judge and ask for a legal document to be amended can (at least first time) be quite anxiety-provoking. This feeling is made worse when you know nothing at all about the case (which is quite common). It’s not surprising that most members of the public don’t feel able to do this. It’s therefore especially important that the practitioners who draft and review these documents do so with a view to checking that they meet the judicial aspiration for open justice. Without this, there can be a detrimental effect on transparency – even in the absence of conspiracy.  I was  impressed with the judge’s plea (or, perhaps more accurately, direction) to “just stop doing it!” She is, of course, quite right that P needs to be at the centre of the court’s thinking: including public bodies in a Transparency Order when there is no need to do so means that valuable court time is taken up addressing this issue.

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.

[1] For some examples of previous challenges to Transparency Orders and examples of how we write to the judge to ask for orders to be varied, see these blog posts. “”; “I am very concerned … that the current situation is not tenable”: High-risk behaviour and questions about jurisdiction”  “‘What God has put together, let no man put asunder’: A s.21A challenge and the limits of Power of Attorney”

[2] See for example paragraphs 25-27, “Anxious scrutiny or boilerplate? Evidence on Transparency Orders”

“An awful state”: Self-neglect and mental capacity

By Ian Brownhill, 17 January 2024

The description of a person being found in “an awful state” is one of the most common phrases than an adult social care lawyer will read. It is a description that has no legal meaning but is often a sanitised portrayal of someone who has been subject to significant neglect.

Whilst the neglect of a person by paid carers, or family members, tends to attract the most significant media attention, there are significant numbers of individuals who are self-neglecting.

What is self-neglect?

Self-neglect is not defined in the Care Act 2014 or the Mental Capacity Act 2005. Often, documents referring to self-neglect are focussed on either hoarding, or, substance misuse issues. However, issues in respect of self-neglect are much broader.

The definition in the statutory guidance which accompanies the Care Act is that self-neglect:  “covers a wide range of behaviour neglecting to care for one’s personal hygiene, health or surroundings and includes behaviour such as hoarding”. 

How significant is the issue?

In a national review of Safeguarding Adult Reviews, self-neglect was the most common category of abuse of all cases, featuring in 45% of such reviews. In 2023, Torbay and Devon’s Safeguarding Adults Board published a thematic review in respect of self-neglect. Within that review[1],as a “Learning Theme”, the executive summary states (at 3.3):

Was mental capacity considered?  Mental capacity did not receive adequate attention. In several cases involving high-risk decision-making, no capacity assessments took place and no attention was paid to the possible loss of executive function, which on the evidence of the individuals’ behaviour (including long-term alcohol use) could well have been a feature. There was an over-reliance on assumptions of capacity and on the concept of lifestyle choice. It appears that staff struggle with application of the Mental Capacity Act 2005 in practice.

This is not an issue which was particular to practice in Devon. Rather, it is an issue which social care lawyers and safeguarding professionals are able to identify across the country. A review of the Open Justice Court of Protection Blog, provides some examples (e.g.  ‘Refusing to engage’: A first hearing).

Mental Capacity and self-neglect

There are three, commonly expressed, phrases around mental capacity and self-neglect which demonstrate a problem:

  • “They won’t participate in the assessment so the presumption of capacity applies.”
  • “They discharged themselves against medical advice, that was an unwise decision, there’s no evidence as to their capacity.”
  • “They have no diagnosis, so there was no reason to assess their capacity.”

The presumption of capacity is designed to protect our autonomous decision-making ability. It is not intended as a shield for inaction. The fact that an individual who is self-neglecting is not engaging with professionals does not mean that those professionals have discharged their duties towards that individual.

A lack of mental health diagnosis often means that a person’s capacity to make a relevant decision won’t be assessed. Likewise, an unwillingness to engage in an assessment is treated as justifying a position that a person has capacity in respect of a particular decision. This is a fundamental misunderstanding as to how the law works:

First, we do not assess a person’s mental capacity to make a decision because of a diagnosis. Rather, it is necessary to consider whether there is something about a person’s decision-making (or lack of it) which causes an assessment to be necessary. That assessment of a person’s capacity will consider their functional ability to make decisions first (as per the decision of the Supreme Court in JB) and then move to consider, second, whether any functional deficit is caused by a disorder of the functioning of the mind or brain.

That disorder of the functioning of the mind or brain does not require a specific diagnosis. The wording of s.2(1) MCA 2005 itself does not require a formal diagnosis (for further discussion see the decision of MacDonald J in North Bristol NHS Trust v R [2023] EWCOP 5)

Second, the fact that a person will not, or cannot, engage in an assessment of their mental capacity does not necessarily mean that the person has capacity to make the relevant decision. The most robust capacity assessments do not rely just on what a person says during an assessment but on what they do, or have done in their lives. In Nottingham University Hospitals NHS Trust & Anor v RL & Ors [2023] EWCOP 22, Sir Jonathan Cohen was faced with a situation where P was described as being, “virtually stuporous and mute.” Despite this, clinicians and the Court were able to come to the conclusion that RL lacked capacity to make decisions as to his hydration and nutrition. 

Third, it must be recognised[2] that there is a group of individuals who do not engage with professionals because they are prevented from doing so due to the control or constraint imposed by a third party, or, because they have been subject to indoctrination or threats. In these situations, proper consideration needs to be given to whether the inherent jurisdiction of the High Court should be invoked in order to give that person space to make their own decisions and engage in assessments.  

Self-neglect and powers of entry

A perennial problem in self-neglect cases is accessing the person who is not engaged with services but who is, apparently, living in difficult circumstances. 

Here, the law of England and the law of Wales diverge. Section 127 of the Social Services and Well-being (Wales) Act 2014 provides the Magistrates’ Court the ability, in Wales, to provide a power of entry if there is reasonable cause to suspect that there is an adult at risk in an address and entry is necessary to assess that person for safeguarding purposes.

There is no such power in the Care Act 2014. The lack of explicit power has led some professionals to the position that they must wait until a power may be used under the Mental Health Act 1983 (or alternatively by the police under PACE, or the Fire Service under the Fire and Rescue Services Act 2004). This is incorrect.

The Court of Protection can make orders which allow entry into a person’s home if there is evidence that the person lacks capacity in some respect and that such entry is in their best interests, for example to complete assessments, or provide assistance. 

An awful state

Some people will choose to live a lifestyle which does not accord with societal expectations or norms. Some people will choose not to access healthcare or comply with the advice of professionals with whom they come into contact. This is a facet of decision making, we all make unwise decisions sometimes: to skip the gym, miss a routine appointment or fail to eat our five-a-day. 

But some people are unable to make decisions about their care and support, or their medical treatment. Those people require best interests decisions to be made on their behalf to avoid significant harm. In cases where people may be significantly harmed it is important that it is robustly and legally established whether they are able to make their own decisions. If we do not do so, then there is an awful state of legal literacy. 

Ian Brownhill is a barrister at 39 Essex Chambers and a member of the Open Justice Court of Protection Project’s advisory team. He has blogged here before e.g. How we get there: Conveyance plans in the Court of Protection. He tweets @CounselTweets and threads @CounselThreads 

Footnotes

[1] https://www.devonsafeguardingadultspartnership.org.uk/document/thematic-safeguarding-adults-review-self-neglect/

[2] You can listen to Ian speak to independent social worker, Mark Caulfield about this issue here https://www.39essex.com/information-hub/insight/everyones-business-episode-2-five-mistakes-safeguarding-adults

Our New Facebook Page!

As you know, a big part of our work is bringing together the various listings of hearings you can observe before the Court of Protection each day and making them accessible to members of the public who may want to observe the court in action. We rely heavily on social media to do this, and until now this has meant either this website or Twitter (now ‘X’). However, we don’t want to have all our eggs in one technological basket, so we are working on expanding our social media presence.

We are delighted to tell you that we now have an up to date Facebook Page that is updated daily with details of listed hearings you can observe, along with some of the blog posts we publish (though the best way of keeping up to date with the blog remains subscribing and “following” it via this website).

You can head over to our new Facebook Page – here

We’d be so grateful if you would head over there, follow us and share our Page and content with your own networks. We rely on you – our supporters – to help us raise awareness of the importance of open justice, and spread the word about the role of public observers in the Court of Protection.

See you there!

Photo by Kenny Eliason on Unsplash

Covid and expert evidence: Vaccination is NOT in P’s best interests

By Celia Kitzinger, 14th January 2024 (updated 10th February 2024 after approved order was made)

It’s been a while since I’ve observed a contested hearing about COVID vaccination in the Court of Protection[1], and I was assuming they’d all worked their way through the system by now.  

So, it was a surprise to log on to this – randomly selected –  hearing (COP 14055966, 18th December 2023 before District Judge Spanton sitting remotely at Horsham County Court) and to find it concerned an unvaccinated protected party. 

She’s is in her early thirties, with a learning disability, “autism spectrum disorder”, and epilepsy.  

There’s no dispute that she lacks capacity to make a decision about COVID vaccination for herself – so a decision must be made in her best interests. 

The position of the Integrated Care Board (ICB) – based initially on the evidence of the (now former) GP – has always been that it is in her best interests to be vaccinated. 

When her mother disagreed, the ICB made an application to the Court of Protection in February 2023 for authorisation to provide the COVID-19 vaccine and subsequent boosters. 

Nearly a year later, the matter is still unresolved.

The ICB is concerned because the protected party in this case falls into a group of people defined by the Joint Committee on Vaccination and Immunisation (JCVI) as high risk: she is on the Learning Disability register, and she is in a long-stay residential care setting.

The parents oppose vaccination. Their daughter has already had COVID (back in December 2020). She experienced only a mild illness.  

In May 2023, a Harley Street test confirmed that as a result of that previous infection she now has T-cell immunity to COVID-19.  

The parents have asked for a jointly appointed expert immunologist to give evidence about the risks and benefits of vaccination at this point, for their daughter in particular with her specific diagnoses and likely side effects, her known T-cell immunity and previous experience of infection, and in the context of the decline in severity of the virus from the time at which she was first infected to the present-day Omicron variant, which has a much lower infection fatality rate.

The hearing

The ICB was represented by Rebecca Blackwood.  

The protected party, LC, was represented via her litigation friend the Official Solicitor by Helen Curtis.

The parents were represented by Francis Hoar of Field Court Chamber – a barrister we’ve watched before in vaccine-related hearings (e.g. “Cross-examining a GP in a COVID-vaccination hearing”).  Francis Hoar has made quite a name for himself in relation to COVID-19, not just as a barrister representing the views of his clients, but also in publicly articulating his own views (e.g. in an article and a blog post challenging the legality of lockdown restrictions). He has acted in a range of COVID-related cases in other courts including R (Dolan) v Secretary of State, in which the Court of Appeal decided in December 2020 that lockdown regulations were within the government’s statutory powers and did not breach the European Convention on Human Rights. He has since acted in judicial reviews of regulations imposing travel regulations and mandatory vaccination of care home and (subsequently) NHS workers and of the lawfulness of child vaccination policies; and in a successful High Court appeal against the GMC’s restriction of the freedom of expression of a GP (see the BBC report here: “Hampshire GP’s Covid social media ban was wrong, court rules“)

The main focus of this hearing was the parents’ application for a jointly appointed expert immunologist.

The mother had previously made a virtually identical application in March 2023 and then again, jointly with the father, in September 2023.  The judge, District Judge Spanton, had adjourned the application pending reports from LC’s new GP (the previous one having retired) and from LC’s treating neurologist.  Those reports were now available.

The new GP says that it’s in LC’s best interests to be vaccinated – based simply on the ‘Green Book’ and JCVI’s recommendation that those who’ve previously had COVID-19 still benefit from vaccination.

The treating neurologist says that advice as to whether it’s in LC’s best interests to receive the COVID-19 vaccination “is not within the remit of a general neurologist”.  She said: “I would respectfully suggest that the Court of Protection seeks advice from virology/immunology/infectious diseases experts …”.   

These two reports don’t seem to have progressed matters much since the last hearing of 8th September 2023 – hence the parents’ renewed application for an expert opinion.

On behalf of the parents, Francis Hoar opened the case for appointing an expert:

Francis Hoar:  The treating neurologist has given evidence that the questions raised are outside her remit.

Judge:  It rather occurred to me you said that would be the case at the last hearing. And I said, “No, no, we surely need to hear from the neurologist”, and you might be tempted to say, “ I told you so!”.

Francis Hoar:  Not at all.  I thought it was a very resource-aware decision on your part.

There followed some discussion about whether or not an expert was really “necessary” – which is the test for appointing an expert under the COP rules (15(3)). The ICB suggested that it wasn’t.

Judge:  On the last occasion, the court said a neurologist was needed and so she was consulted. And she responded and said, “well actually, I can’t answer that question – you need an immunologist”.

Rebecca Blackwood: It’s not whether Dr A [the treating neurologist] says you need expert evidence. It’s whether you say it’s necessary.

Judge: But the court formed the view it was necessary to get a neurologist to answer these questions and the neurologist said, “you need an immunologist”.

Rebecca Blackwood: It’s whether you need it. The court may like to have it – but it’s whether you need it.

Judge: I understand the point. I was looking at it as a logical point-by-point stepping stone.

Rebecca Blackwood: The ICB questions whether expert evidence is necessary for the court. 

The Official Solicitor (representing LC) shared the ICB’s scepticism about the need for expert evidence, arguing that the court could reach a best interests decision without further evidence, but took a more “nuanced” position.  She acknowledged the “caveat” of Dr A, as the treating neurologist, in recommending consultation with an immunologist as a means of “keeping – if I may characterise it this way – an arm’s length distance…”.  This, she said, “does provide the court with some leeway for finding that the immunology expertise is in fact necessary…”.

The judge decided that it was necessary to instruct an expert – considering it both proportionate and necessary to do so, especially considering that “the report itself is going to be obtained swiftly, it’s not intrusive to LC … [and] the court had formed the view that a neurology report was necessary and has regard to the neurologist’s view that an immunology expert is necessary to assist the court. The court does not follow that advice blindly but considers it is in the best interests- sorry, it is necessary for an expert to be appointed”.  He ruled that the cost should be borne equally by the OS, the ICB and the two parents, with each party paying a quarter.

The hope was to get everything in place for a hearing on 19th January 2024 (11 months since the ICB determined vaccination to be in LC’s best interests). In fact, as it turned out, the hearing was vacated (i.e. it didn’t happen) because agreement was reached outside of court and the agreed Order was approved by the Judge.

Given that the hearing had been vacated, I requested a copy of the approved Order so that I could find out what had happened. We’re entitled to the approved order for any public hearing under under COP rule 5.9 which says: “(1) Subject to rules 5.12 and 4.3(2), a person who is not a party to proceedings may inspect or obtain from the court records a copy of any judgment or order given or made in public.“ I was grateful to be sent it in a timely fashion.

What I discovered from the approved order was that it turned out that the expert report had concluded that it was not in LC’s best interests to receive the COVID-19 vaccination and subsequent boosters. Nobody objected to that assessment, so LC will not be vaccinated – and that was the end of the proceedings.

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

[1] We’ve published many previous blog posts about COVID vaccination, including: On not allowing the strong views of family members to prevail: A COVID-19 hearing; Covid vaccination contrary to parents’ wishes; The politics of the pandemic in the Court of Protection; Covid vaccination and a Christmas visit; Cross-examining a GP in a COVID-vaccination hearing.