Can a judge discharge a Deputy without determination of wrong-doing? Statutory interpretation in action

By Celia Kitzinger, 12th January 2024

UPDATE: The mother/Deputy in this case appealed against the decision to a more senior judge (Mrs Justice Theis, Vice President of the Court of Protection). She lost the appeal. The reasons are set out in this judgment: CL v Swansea Bay University Health Board & Ors

I chose to observe this hearing because I’d been told it would be a “fact-finding” hearing of crucial importance in making future decisions about contact and residence for this family going forward.  Allegations against the mother of a young learning-disabled man would be investigated: the judge would hear evidence and make decisions about the facts.

But the hearing turned out to be completely different from what I was expecting.

Most of the hearing I watched was devoted to legal submissions about whether or not the judge had the power, in law, under the Mental Capacity Act 2005, to discharge a Personal Welfare Deputy (the mother) without having first made findings of fact about the allegations against her.  So that’s what I’m going to write about here.

Background to the hearing

This case (COP 13290314) has “been before the court for far too long”, said the judge.  There have been multiple hearings and it’s been “protracted, costly, and underscored by significant disputes”. There’s a 2185-page bundle of documents I haven’t seen, and this is the first and only hearing I’ve observed. What I’m writing about here is just a ‘snap-shot’ of one issue in a very complex and long-running case – and one that is causing immense distress to the mother.

This hearing took place over three days (5th – 7th December 2023) before HHJ Porter-Bryant sitting in Cardiff[1].  

The hearing was “hybrid” with most of the lawyers (and the parties) in court, and it had apparently been organised as such some time ago, despite having been listed as “in person” in CourtServe.  One of the barristers, Rosie Scott, joined remotely from her hotel room, having tested positive for COVID-19 the day before the hearing – but the plan to hold the hearing as ”hybrid” predated that. There were also a number of observers on the remote platform, including someone from Mencap Cymru.

  • The applicant was Swansea Bay University Health Board, with Rosie Scott of 39 Essex Chambers as counsel 
  • The young man at the centre of this case (LL) was represented – via his litigation friend – by Nia Gowman.
  • The mother was represented by John McKendrick KC  (a senior lawyer and part-time judge) with Anna Bicarregui as his junior.
  • The father was represented by  Kriti Upadhyay
  • Finally, Swansea City Council was a fourth respondent, but they were not in court.

The protected party (LL) is in his early twenties and has a number of diagnoses including learning disabilities, physical disabilities and ADHD.  There is no dispute that he lacks capacity to litigate this case, and to make decisions about residence, care and contact with others.  

At some earlier point in this case the judge had decided  “in the light of concern about the accuracy and validity of complaints raised against [the mother]”, to direct a fact-finding hearing which he hoped “would provide a basis on which care planning could move forward”.  He ordered the fact-finding hearing in a context in which the mother “felt attacked… she denied many of the allegations… She felt the matter needed to be resolved. She wanted to have her say”.  He said he had met with the mother outside of court several times and that he has no doubt about her love for her son or the pain she is suffering because of what is happening:  the “hurt and upset she’s felt over the last few years is palpable”.  He said he has “never lost sight of her love and determination to do all she can to get the best outcome for LL”.  

Preparations for a fact-finding hearing seem not to have gone well. Here’s how the judge described it.

“It had reached a stage where the Health Board and [the mother] were pulling as tightly as they could on either end of a rope. At the centre of this tug of war was LL.  Even with a finding of fact hearing, the risk was that the position of the parties would simply become more entrenched. Facts might not assist in making determinations for LL.  

The judge indicated that proceedings have recently become less adversarial.

One party needed to step forward to create some slack in the rope.  Realistically, that couldn’t be [the mother]….  The Health Board ultimately took that step forward and suggested to me at the last pre-trial review an alternative way in which this matter could be progressed.”  

That “alternative way” was for the parties to meet up outside court and try to agree “protocols” (rules for how they would behave) in advance of this hearing. 

Shortly before the hearing I observed there had been ten days of negotiations resulting in four protocols for: (1) medical appointments; (2) contact in the community; (3) Christmas contact; and (4) care planning and best interests meetings.  

The mother’s lawyer said: “the change in approach of the Health Board is appreciated; it allowed all parties to take a more future focused approach and concentrate on [LL’s] wishes and feelings and what is in [LL’s]  best interests”.   

The protocols have been agreed between the parties and they are (the judge said) “overwhelmingly in LL’s best interests”.  The judge made an order giving these protocols the authority of the court and “everybody must do all they can to avoid going back to the position we were in”. 

So, the outstanding issue for this hearing was the Welfare Deputyship.  

Deputyship: The issue before the court

A Deputy (s.16 MCA 2005) is someone the court has appointed to make decisions on behalf of someone who can’t make those decisions for themself. 

A Deputy is different from an Attorney (ss.9-14 MCA 2005), who is someone the person appoints themselves, in advance of losing capacity, as someone they want to make decisions for them. 

There are two kinds of Deputyship  – one for welfare and one for finance.  The most recent statistics I could find are from 2019, when a judge reported that each year about 375 new Personal Welfare Deputies are appointed, compared to an average of around 15,000 Property and Affairs Deputies (Re Lawson, Mottram and Hopton (Appointment of Personal Welfare Deputies) [2019] EWCOP 22).

In this case, a judge had appointed the mother as a Personal Welfare Deputy for her son in April 2019.  The Deputyship Order gives her the right to make a wide range of welfare decisions about her son including: where he should live and with whom, day-to-day care, including diet and dress, consenting to routine medical or dental examination and treatment on his behalf, making arrangements for the provision of care services, whether he should take part in particular leisure or social activities, and complaints about his care or treatment. There is no expiry date for the Deputyship – she holds it “until further order of the court”. 

The Health Board applied to the court on 8th October 2022[2] asking for an order to discharge (i.e. end) the Deputyship.  If the Deputyship were to be discharged, decisions would be made by the people caring for – or treating – LL.  His mother would still be consulted (as everyone who is “caring for the person or interested in his welfare” must be, by law, s.7(b) MCA 2005) but she wouldn’t have a formal role as “the decision maker”.  The effect of discharging the Deputyship would put the mother back in the usual position for the parent (or other relative) of an incapacitated adult as envisaged by those who framed the Mental Capacity Act (MCA) 2005. 

The Health Board considers it is neither appropriate nor necessary for the mother to have a special legal status as decision-maker for her son for a number of reasons, including that she doesn’t live with him (because the Health Board won’t commission a home care package due to its cost) and so cannot – as a matter of pure practicality – make day-to-day care decisions about (for example) his diet or dress or leisure activities.  She does not need to be a Deputy to submit complaints either.  The Health Board says they don’t have to prove to the judge that the mother has done anything wrong to give him a reason to discharge the Deputyship.  They say the law permits the judge to simply discharge the Deputyship on the grounds it’s not necessary and not in the best interests of LL.

The mother wants to continue to act as her son’s Deputy, although she is willing for some changes to be made to the Deputyship so long as she retains some meaningful care and support role – particularly in relation to medical appointments.  She believes that keeping a Deputyship role will be in her son’s best interests because she knows him best, having been his main carer for twenty years or so (until he was moved into care) and she has the most comprehensive understanding of his health needs going back over time.

Her lawyer argued on her behalf that the Deputyship could only be discharged if the Health Board presented evidence and convinced the judge that the mother had behaved (or intended to behave) contrary to her son’s best interests.  

In fact, the Health Board believes there is evidence that the mother has acted contrary to her son’s best interest.  They’ve already submitted “a voluminous list of allegations” against the mother, in what the judge described as “a wholly inappropriate document”.  Allegations seem to include the mother’s negative relationships with professionals, including “inappropriate behaviour” in medical appointments, intemperate language, raised voice, the manner of her engagement in care planning, issues relating to contact in the community,  and the way she raises and pursues complaints about her son’s care. 

If the mother’s lawyer is right that the Deputyship can only be discharged if the judge decides that these allegations are factually true, then there would have to be a fact-finding hearing. 

If the Health Board’s lawyer is right that a Deputyship can be discharged without findings of wrongdoing, then the judge can decide – in light of the fact that the mother doesn’t live with her son and has limited contact with him, as well as the obvious conflict between the parties – that the Deputyship is not in the LL’s best interests and he can simply discharge it.

A key question before the court at this stage, then, is whether the judge can discharge a Deputy without first determining that the Deputy has done something wrong. 

What does the Mental Capacity Act 2005 say about discharge/revocation of Deputyship?

The judge must act in accordance with the law – in particular, in this case, s.16 of the Mental Capacity Act 2005, which sets out the statutory law relating to the appointment and discharge of Personal Welfare Deputies.

Argument in court focussed on s.16(7) and s.16(8):

16(7) An order of the court may be varied or discharged by a subsequent order.

16 (8) The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy— (a) has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P’s best interests, or (b) proposes to behave in a way that would contravene that authority or would not be in P’s best interests.

The lawyer for the Trust (Rosie Scott of 39 Essex Chambers) based the application to discharge the Deputyship on s.16(7) of the Mental Capacity Act 2005.  She says it means that the Deputyship “can be varied or discharged by a subsequent order” – and the order to discharge it was the order the Trust was asking the judge to make.  The following subsection of the Act (s. 16(8)) gives two examples in particular, she said, of why a judge might decide to discharge an order – but they are just examples, and there are many other situations when a judge might decide to make an order to discharge a Deputyship.

Leading counsel for the mother (John McKendrick KC ) said the Trust’s interpretation of the statute was wrong.  He argued that s.16(8) of the Mental Capacity Act 2005 means that the Deputy must be found to have acted improperly before their Deputyship can be revoked – specifically that the Deputy has behaved (or proposes to behave) in a way that contravenes the authority of the Deputyship or is not in the protected party’s best interests.  If that’s the correct interpretation of the law, then the judge must hear evidence about the mother’s behaviour and only if he were to find (on the balance of probabilities) that her behaviour meets the conditions specified in s.16(8) could he lawfully discharge the Deputyship. The earlier sub-section of the Act (s.16(7)) says that judges can discharge “orders” – not that they can revoke the appointment of a Deputy.

So, both lawyers referred to the same section of the Mental Capacity Act 2005 (s.16) and focussed on the same subsections (s.16(7) and s.16(8)), and read out the same words from it in court.  But they interpreted the meaning of those words in different ways.

This is interesting because, at heart, it’s a dispute about what the law actually means.  When people say that a judge has “broken the law” (something I see a lot on social media), it’s often unclear what exactly they mean.  But here was a barrister in court arguing that it would not be lawful for the judge to discharge the mother from her role as a Deputy unless he first determined the “facts” and found that she had acted counter to her son’s best interests – which the judge was not proposing to do.

One difficulty with finding that a judge has “broken the law” is that it’s up to the judge to decide on the proper legal meaning of the legislation. It is always ultimately “for the court and no one else to decide what words in a statute mean”[3].  A judgment can be appealed – and if the appeal is successful, then there is a decision by a more senior judge as to what exactly the first judge got wrong.

My interest in writing about this hearing is in the way these two lawyers presented arguments about what the words in the statute (the Mental Capacity Act 2005) actually mean, and how the statute should be interpreted and applied in practice. I was watching “statutory interpretation” in action.

The conventional account of the work judges do is that (as the UK judiciary put it in “Rule of Law” video on UK Judiciary YouTube channel), “A judge’s role is not to make law, but to uphold and apply the laws made by Parliament. The laws must be interpreted and applied by the judges to different cases….”

Usually there isn’t much argument in court about the correct interpretation and application of the statute.  In this case, the parties took opposing positions. It was a lesson in statutory interpretation.

How to do statutory interpretation

There’s a lot of public information about deputyships[4] – but only the wording of the Mental Capacity Act 2005 has the standing of statutory law, as an Act of Parliament passed by the legislature.

“Simpler” explanations made for public consumption paraphrase the statute in an effort to make the law more accessible.  But this rewording often introduces errors or inconsistencies, or results in ambiguities that are not there in the original statute.  Even judges are advised to avoid using alternative wording for statutes: they should “seek to avoid substituting one set of words for the set of words used by the legislature simply for the purpose of explaining what the legislature meant”[5].

In deciding their cases, judges will always use the statute – in this case the Mental Capacity Act 2005 – because (it is said) that wording reflects and embodies the will of Parliament.

But the will of Parliament is not always crystal clear from the words used, and it can sometimes be challenging to decide how they apply to particular cases before the court.  It’s commonly claimed that “the legal meaning of a statutory text is the meaning one infers the legislature intended to convey in uttering the semantic content of the text in the particular context of enactment”[6] (where “one” means “the judge”). 

Statutory interpretation is the subject of academic legal theory as well as part of the everyday practical craft of lawyers and judges, and it has been suggested (not necessarily to the detriment of the legal profession) that “the commentators’ grand theories contrast with the more ad hoc, fact- based reasoning of the practicing lawyer”[7].

There are some basic principles or  “rules” of statutory interpretation that judges are supposed to use to establish the legal meaning of a statute.  First they must start with the “plain meaning” of the words in the statute, presumed in general to be unambiguous. If there is any ambiguity, then the words in the Act must be read in the context of the Act as a whole, and if they’re still open to more than one interpretation, the meaning chosen should be one that fits the purpose of the Act. 

Here’s how A Dictionary of Law describes the rules.[8]

The principal rules of statutory interpretation are as follows:

(1) An Act must be construed as a whole, so that internal inconsistencies are avoided.

(2) Words that are reasonably capable of only one meaning must be given that meaning whatever the result. This is called the literal rule.

(3) Ordinary words must be given their ordinary meanings and technical words their technical meanings, unless absurdity would result. This is the golden rule.

(4) When an Act aims at curing a defect in the law any ambiguity is to be resolved in such a way as to favour that aim (the mischief rule).

(5) The rule ejusdem generis (of the same kind): when a list of specific items belonging to the same class is followed by general words (as in “cats, dogs, and other animals”), the general words are to be treated as confined to other items of the same class (in this example, to other domestic animals).

(6) The rule expressio unius est exclusio alterius (the inclusion of the one is the exclusion of the other): when a list of specific items is not followed by general words it is to be taken as exhaustive. For example, “weekends and public holidays” excludes ordinary weekdays.

(7) The rule in pari materia (on the like matter): when a prior Act is found to be “on the like matter” it can be used as an aid in construing the statute in question (R v Loxdale (1758) 1 Burr 445, 447 (Lord Mansfield); 97 ER 394).

(8) The rule noscitur a sociis (known by its associates): when a word or phrase is of uncertain meaning, it should be construed in the light of the surrounding words (Bourne v Norwich Crematorium Ltd [1967] 2 All ER 576 (Ch) 578).

“Interpretation, Rules and Principles of Statutory Interpretation, A Dictionary of Law

Ambiguities may occasionally be resolved by referring to external sources; for example, the intention (or purpose) of Parliament in regard to a proposed Act, as revealed by ministers during its passage through Parliament, may be discovered by reference to Hansard (Pepper v Hart [1993] AC 593 (HL). However, the House of Lords has ruled against the existence of an alleged social policy rule, which would enable an ambiguous Act to be interpreted so as to best give effect to the social policy underlying it.

Judges can also use other external aids to construction e.g., explanatory notes published with the Act, Codes of Practice, textbooks by legal experts, and published judgments showing how other judges – especially more senior judges in the Court of Appeal or the Supreme Court – have interpreted the same words. The court sometimes relies on the “settled practice” of the courts – i.e. the way courts have almost always interpreted the law in the past[9]). The Human Rights Act 1998 imposes upon judges an interpretive obligation to construe legislation  in a way that is compatible with the Convention rights, so far as it is possible to do so – and to make a “declaration of incompatibility” to signal to Parliament the importance of changing the law if a human-rights compatible interpretation isn’t possible.

In relation to older statutes, it is sometimes claimed that the law is “always speaking”, so that it is permissible to apply an ‘updating’ interpretation to the wording of the act to account for advances in (especially) medical science, and communication technology.  Words that seem quite straightforward at first glance can turn out to be problematic in unanticipated modern contexts. For example: 

  • “In the presence of”: Legislation requires that a valid will, must be signed “in the presence of two or more witnesses” (s.9(c ) Wills Act 1837) – but what exactly does that mean? Must everyone be in the same room, or – and this became an important concern at the height of the COVID-19 pandemic – can they stand in the garden and watch the person signing the will through the window; or can they be “present” to each other via a videoconferencing link? (For more information about how these questions have been addressed  – and some engaging history –  see the excellent blog posts by lawyers Charlotte John here and Barbara Rich here and here.)  
  • “Treatment”: The British Pregnancy Advisory Service (BPAS v the Secretary of State for Health [2011] EWHC 235) applied to the High Court for a declaration that misoprostol (the “abortion pill”) was not “treatment” as the term was used in the Abortion Act 1967 – with the effect that women would be able to self-administer it at home, rather than attend a “hospital” or “clinic” as required by the Act. At the time the Act was passed, the normal method of abortion was surgical.  So-called “early medical abortion” (the termination of pregnancy of up to 9 weeks) only became an alternative with the licensing of the relevant medication, which is administered on two occasions a day or so apart.  The primary concern of Parliament in passing the Act was to ensure that (surgical) abortions were carried out safely and in proper conditions, since the “treatments” administered were invasive and had potentially serious complications.  Parliament could not have had in mind, when it passed the Act, the new situation with twenty-first century “abortion pills”, and BPAS argued that the judge should apply an “updating construction” to ensure that the Act keeps up with medical science.[10]

It may be a “fairy tale” to claim that judges always act in accordance with these principles of statutory interpretation (especially in the hardest cases heard in the most senior courts) – but even the critics accept that “everyday life in the practice of the law often involves looking at a statutory phrase which has never been tested in court and applying the ‘literal’ rule, perhaps with a dash of ‘mischief’ or a ‘golden touch’”.[11]  I think that’s pretty much what I saw in this case – along with some (contested) appeals to the authority of previous judgments and the interpretations of textbook authors. 

The ’literal’ rule – plain meaning, unvarnished words and commonsense

All the lawyers in this case argued that the plain wording of the statute, “unvarnished”, exactly as written, was perfectly clear.  They just disagreed with each other about what it meant.

The Trust relied on s.16(7) to say the court could discharge the mother’s deputyship without establishing wrong-doing on her part.  

The mother relied on s.16(8) to say her deputyship could only be discharged if the judge found wrong-doing.

For the Trust[12], Rosie Scott quoted s.16(7):

s.16(7)An order of the court may be varied or discharged by a subsequent order.

This, she said, is “brisk and clear” and gives the court “a general power” to vary or discharge its own orders, including Deputyship Orders.  The court’s power is not limited to the matters set out in s.16(8): “there is no restriction within it that other subsections must be satisfied”.  She drew attention to the words, “may, in particular” in s.16(8): 

s.16(8) The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy—

(a) has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P’s best interests, or

(b) proposes to behave in a way that would contravene that authority or would not be in P’s best interests.

The word “may” (she said) is “empowering language – not restrictive. It is not equivalent to saying the court “shall only‘”.  

For LL’s mother (and Deputy), John McKendrick KC also focussed on the language of the statute – in particular the two words “order” (in s.16(7)) and “appointment” (in s.16(8)).  He too argued that that there was no ambiguity in the statute – although he did acknowledge that “the point of distinction between an appointment and an order is not necessarily something a judge would immediately alight on”.  His position was that “parliament has clearly set out a difference between orders and appointments” and that the two subsections are referring to different things.  On this reading, s.16(7) gives the court the power to vary or discharge orders – but not the power to vary or discharge a Deputyship appointment.

Given the great care the court takes when appointing a Deputy, said John McKendrick KC, Parliament has set out a higher threshold for varying or discharging these appointments.  Appointments can only be revoked if the Deputy has behaved badly as specified in s.16(8)(a) and s.16(8)(b). Those subsections of the Act clearly lay out the necessary pre-conditions that must be established before a Deputyship appointment can be varied or discharged. They are the “gateway” conditions that must be satisfied before a Deputyship can be revoked.

Counsel for the mother[13] said: “Plainly if Parliament had intended to grant an unfettered discretion to revoke a deputyship order there would have been no need to draft s.16(8). Section 16 must be read as a whole and in a common-sense manner.”

In response, Rosie Scott acknowledged the “interesting distinction” in the language of the statute, but pointed out that the way the court gives effect to the appointment of a Deputy is via an “order” – so if (as s.16(7) says) an “order … may be varied or discharged by a subsequent order”, then a Deputyship order may be varied or discharged by a subsequent order revoking it – and 16(8) simply gives two examples “in particular” of reasons why the court may decide so to do, giving the court clarity as to when it might choose to exercise s.16(7) without artificially restricting its powers.  

Finally, she argued that the court “must, by way of sheer common-sense, have the power to revoke deputyship in circumstances beyond those two examples” – for instance, where a Deputy wants to withdraw due to ill-health, retirement, change of employment etc.  “These circumstances would require the court to either vary the order or to discharge the deputy, but do not involve the deputy behaving in a way contravening their authority or acting not in P’s best interests or proposing to do so”. In such circumstances[14], clearly the deputy is removed for reasons that go beyond those specified in s.16(8).  

Construing the Act as a whole

The parties agreed that s.16 needed to be interpreted in the context of the Act as a whole – in particular s.16(3) which spells out:

 “The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests)” (16(3) MCA 2005).

Counsel for the Trust, Rosie Scott, interprets 16(3) – in conjunction with 16(7) –  as meaning that the Deputyship can be discharged if the court decides it’s not in LL’s best interests to continue to have his mother as his Deputy (and without evidence of her wrongdoing).

She also drew attention to what the Act says about the court’s powers to revoke a Lasting Power of Attorney. In s.22(4) it says that the court can:

 “(a) direct that an instrument purporting to create the lasting power of attorney is not to be registered, or (b) if P lacks capacity to do so, revoke the instrument or the lasting power of attorney”

But this subsection only applies:

“… if the court is satisfied

(a) that fraud or undue pressure was used to induce P—

(i) to execute an instrument for the purpose of creating a lasting power of attorney, or

(ii) to create a lasting power of attorney, or

(b) that the donee (or, if more than one, any of them) of a lasting power of attorney—

(i) has behaved, or is behaving, in a way that contravenes his authority or is not in P’s best interests, or (ii) proposes to behave in a way that would contravene his authority or would not be in P’s best interests. (s.22(3))

The grounds for revoking someone’s appointment as an Attorney (in s.22(3) (b) (i) and (ii))  are worded identically to the grounds for revoking a Deputyship (in s.16(8)) – but in the case of the Lasting Power of Attorney section, “they are plainly the ONLY grounds that give the court access to powers in (4) in prevent registration or revoke the instrument/LPA”.  So clearly it was possible (says the Trust) to draft the legislation in a narrow way to ensure that the court only had powers in certain circumstances, and that’s what’s been done in relation to Lasting Powers of Attorney.  But not in relation to Deputies, where s.16(7) gives a general power.

The different words used in the Act about revocation in relation to Deputies and revocation in relation to Attorneys show, says the Trust, that Parliament intended Deputies and Attorneys to be treated differently – with a much wider scope for the court to revoke Deputyships (which are created by the court in the first place) compared with revocation of the Attorney role (which is created by the protected party).  “This distinction is consistent with one of the key goals of the legislation  – that is the protection of P’s autonomous decision-making.  P must have been directly involved in the creation of an LPA but may not have been involved in the appointment of a deputy.” (Trust)

Counsel for the mother also drew on an analysis of the Act as whole to argue that throughout s.16 there is a distinction drawn between “orders” and “appointments”.  Both orders and appointments are referred to in ss. 2, 5, and 6 (always orders first and appointments second)  – thereby treating them as different things.

(2) The court may—

(a) by making an order, make the decision or decisions on P’s behalf in relation to the matter or matters, or

(b) appoint a person (a “deputy”) to make decisions on P’s behalf in relation to the matter or matters.

…and..

(5) The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).

… and…

(6) Without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P’s best interests, even though no application is before the court for an order, directions or an appointment on those terms.

“The point hasn’t been argued in any other cases, but linguistically it must be right”, said counsel for the mother.  “The language of s.16 shows that Parliament has clearly set out a difference between “orders” and “appointments”, and the test for varying or discharging orders (16(7)) is different from the test for revoking or varying the powers conferred on a Deputy (16(8)).  Because very careful consideration has been given by the court to appointing a deputy, the test for revocation is a heightened test.”

External aids to statutory interpretation

(a) Explanatory notes

Counsel for the Trust referred to §69 of the Explanatory Memorandum to the Act as supporting the position that the court can discharge a Deputyship order. It reads as follows:

“The court can always vary or discharge its orders and subsection (8) provides that it has power to take away or alter a deputy’s powers if the deputy is overstepping his powers or not adhering to his best interests obligations.” (Explanatory Notes s.16 MCA 2005) 

Counsel for the mother said this “takes matters no further”.

(b) Case law

The case law is largely about decisions to appoint a Deputy and there’s relatively little about the principles involved in discharging one. 

The lawyers looked at what published judgments they could find to see whether other judges in earlier cases had relied on 16(7) to discharge deputies (i.e. discharged them simply on the grounds that discharge was in the best interests of P) or whether they’d invoked 16(8) (i.e. discharged them on evidence of wrong-doing).

Counsel for the Trust and counsel for LL pointed to 

  • Long v Rodman and Others [2012] EWHC 347 (Ch) – the judge said: “Power to vary or discharge the order appointing Mr Long is conferred by section 16(7) of the Mental Capacity Act 2005. Since decisions under the Act must be made in the best interests of the patient (see section 1(5)), the ultimate question must be as to what is in Mrs Rodman’s best interests.”  
  • EXB v FDZ & Ors [2018] EWHC 3456 (QB)-  the judge likewise says: “Any order or direction made under section 16 ‘may be varied or discharged by a subsequent order’: section 16(7). It follows that the court can revisit its order, particularly if there is a material change of circumstances.” (§40)[15]  Counsel for LL said: “there’s no suggestion of any wrongdoing whatsoever in that order: if the court can only vary or discharge a deputyship if s.16(8) applies, then the court has no power to do that”. 

In his position statement, counsel for the mother cited EB v RC [2011] EWHC 3805 (COP) in support of the proposition that “the relevant powers for the purposes of revoking or altering a deputyship are narrower than the discretion that informs a decision to appoint a deputy in the first place”. This judgment sets out principles based on a Court of Appeal decision in New South Wales, including: “The burden of proof is on the person seeking a change in the status quo”, and “It is normally necessary for the person seeking the change to show some reason why the court should remove the existing deputy and appoint someone else in his or her place”.

Counsel for the Trust pointed out, however, that in removing RC as deputy (and replacing him with IB), “the judge doesn’t invoke s16(8): see §47” (which reads: ‘I am going to allow IB’s application to be appointed as his mother’s deputy in place of RC, as I believe this is in EB’s best interests”).

Judge: Yes, thank you.  So, it’s just the best interests test applied, rather than a finding of poor behaviour.

Trust:  Absolutely. There are several cases like this one where the judge finds revocation in P’s best interests without finding that RC has behaved badly. There are no such findings. 

(c) Published authorities – Heywood and Massey

Counsel for the Trust said that the Trust’s view of s.16(7) was borne out by published experts: “This is also how s.16(7) is interpreted by authorities Heywood and Massey[16] (written by Master Lush and David Rees KC, members of Rules Committee)”.

Judicial Decision

The judge will “give a formal judgment in due course” as to the proper statutory interpretation of the Act in relation to discharge of Deputies – but he announced his decision at the end of the submissions on the first morning of the hearing.  In his judgment, the proper interpretation is that revocation of a Deputy appointment can be made on the basis of P’s best interests, and without evidence of wrongdoing by the Deputy.  

According to the judge, it is “wrong to draw a distinction between an appointment and an order – if there is a distinction, it is a distinction without a difference. Any appointment is made pursuant to an order.” Moreover, “the case law is not such as to lead me to determine that s.16(7) is not an appropriate means by which deputyship can be discharged” he said.  He referred to the need for “an agile and responsive court” which is able quickly to make orders promoting P’s best interests, and “it would not be consistent with that if the court could not discharge an order when the situation required it”. 

Having decided that the law does permit the court to discharge a Deputy in the protected party’s best interests, and without having to prove that the Deputy did anything wrong, he then gave an oral judgment in which he discharged the mother as Deputy. He also refused permission for an appeal (on the grounds that it had no real prospect of success) and refused permission for a stay on the discharge of the deputyship pending the outcome of permission to appeal from a Tier 3 judge. 

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 490 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia

Acknowledgments: With thanks to all the advocates in this case for their Position Statements, and special thanks to Rosie Scott whose eloquent exposition of statutory principles inspired me to write this piece, and who also sent me typed up notes from her oral argument. 

Footnotes

[1] I watched the morning of 5th December 2023 – which was wholly devoted to the matter of the Deputyship – but was unable to attend during the afternoon.  On 6th December, the hearing didn’t start until 12 noon (the parties were meeting outside of court instead) and the day consisted entirely of the judgment about the Deputyship and then arguments about permission to appeal and then delaying (“staying”) the discharge of the Deputyship pending the outcome of an appeal to a more senior judge (also refused).  On 7th December, there was a short afternoon hearing (only) devoted to making arrangements for the next hearing in March 2024.  As usual, we are not allowed to audio-record hearings, so my notes are based on contemporaneous touch-typed notes which are as accurate as I could make them but are unlikely to be verbatim.

[2] I’m not sure why the discharge of the Deputyship hasn’t already been decided and this matter is being heard more than a year after the application.  Maybe because there was an earlier decision to ‘fact find’ about the mother’s alleged wrong-doing as a necessary precursor to making a decision about the Deputyship?

[3] Black-Clawson International Ltd. v Papierwerke Waldhof-Aschaffenberg A.G. [1975] A.C. 591, 637 (Lord Diplock).

[4] For example, the government’s own webpage (“Deputies: Make decisions for someone who lacks capacity”) and explanations from the Alzheimer’s Society (“Deputyship for people living with dementia”), Mind (Mental Capacity Act 2005: Deputies), The Challenging Behaviour Foundation (“Deputyship”), Mencap (“Appointees, deputies, and power of attorneys”) and other bodies.

[5] E.W. Thomas (2005) The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles.  Cambridge University Press (p. 267)

[6] R. Ekins, “Statutes, Intentions and the Legislature: A Reply to Justice Hayne” (2014) 14 O.U.C.L.J. 3 quoted p.37, Bailey, D (2022) “Settled practice in statutory interpretation”, Cambridge Law Journal 81(1): 28-49)

[7] Eskridge, WN & Frickey, PP (1989/1990) “Statutory interpretation as practical reasoning”, Stanford Law Review 42: 321-384.

[8] I’ve never heard this much Latin in an actual courtroom!  These rules also seem to assume an infallible and omniscient legislature.

[9] “…where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without risk of it being upset by a novel approach” (LJ Carnwath in the Court of Appeal, quoted in Bailey, D (2022) “Settled practice in statutory interpretation”, Cambridge Law Journal 81(1): 28-49. Bailey’s article explores the uses to which the “settled practice” principle is put, and the weight assigned to it.)

[10] Greasley, K. (2011) “Medical abortion and the ‘golden rule’ of statutory interpretation’, Medical Law Review, 19(2): 314–325. Parliament has subsequently changed the law to permit both mifepristone and misoprostol to be self-administered at home.

[11] Simon Lee, Judging Judges. London: Faber and Faber: Chapter 2, and the quotation is p. 18.

[12] On behalf of LL, via his litigation friend, Nia Gowman agreed with the Trust that the “ordinary reading” of s.16 made it  “very clear” that   “… whilst there are two specific circumstances under section 16(8) MCA 2005 where the Court can remove a deputy, the Court’s power to do so is not confined to these circumstances…”. There is “no ambiguity” in the statute.

[13] The father was separately represented by, Kriti Upadhyay. His counsel agreed with and endorsed the legal framework on Deputyship as outlined by John McKendrick KC for LL’s mother.

[14] For an example of a Deputy wishing to withdraw, see Re A {2002] 1 WLR per Hayden J

[15] John McCormack KC objected that this was not the “ratio” of the judgment (i.e. part of the reason for the court’s decision).  “That’s true,” said Rosie Scott, “but it’s very persuasive. This is a knowledgeable judge – and Ms Butler-Cole, now KC, was acting as advocate to the court”.

[16] I haven’t read it – but if anyone’s interested it costs £963.84 on Amazon.

A ‘closed hearing’ to end a ‘closed material’ case

By Celia Kitzinger, 18th December 2023

M is keeping something private from her parents. She doesn’t want them to know what it is.  

The lawyers in court all know what it is.  So does the judge.  But observers like me haven’t been told. 

And her parents still don’t know.  The court papers shared with them have been heavily redacted.

So,  this is a ‘closed material’ hearing – meaning there’s material before the judge that has not been shared with one of the parties (the parents).

This is a problem for the court because all parties in a case are, normally, supposed to have access to the same information. It’s part of what’s meant by ‘equality of arms’.

This is absolutely clear from the Vice President’s Guidance in February 2023:

“The starting point is that, in principle, all parties (and, if not joined as a party, P) to proceedings before the Court of Protection should be able to participate in all hearings, and have sight of all materials upon which the court will reach its conclusions.” §6 Guidance for the Court of Protection: Closed hearings and closed material.

Background

This is the third hearing I’ve watched in this case[1] (COP 13907545) at which Mrs Justice Theis  has had to consider what to do about the ‘closed material’ – and from what I’ve already heard of the case, I can absolutely understand why there might be aspects of M’s life she doesn’t want her parents to know about.  

I’ve heard the summary from the local authority (Luton Borough Council) about M, who is in her late 20s with “a mild learning disability”: “It is believed that her parents forced her to marry her cousin. M was previously living at home with her parents, who kept her locked in the house when they found out she is talking to a male friend”. 

She’s now living in a residential nursing home while she receives rehabilitation for serious injuries sustained when she jumped from her first-floor bedroom window, while she was living at home in December last year. 

She’s currently in the process of getting divorced from her cousin, and the court is expecting to receive a Nadra Card providing final confirmation of divorce under Sharia law.  She’s also the subject of a Forced Marriage Protection Order.

At the July hearing, there was some attempt to deal with the closed materials by supporting M to tell her parents whatever it is that she’s currently concealing from them.  The Official Solicitor’s view was that it’s “important to give M the tools to discuss the information currently withheld… We have been in discussion with the care home to see who would be best placed to support M with this”.  

The local authority view, back then, was that “to litigate, the parents are going to need this information”.  

The judge also emphasised the need to have “open discussion with the parents, and at the moment, we can’t”. She said: “The redaction issue needs to be grappled with before the next Case Management Hearing, with a view to the redactions being removed, so there can be meaningful discussion with the parents” – and in particular “the redaction issue needs to be dealt with before any placement options are approved by the court”.  

At that point, it was not clear that residence was something that M had capacity to decide for herself, and the court was contemplating what options might be in M’s best interests, including returning home, a Shared Lives placement and a supported living placement.

Hearing on 17th October 2023

From the opening summary provided by Katie Scott of 39 Essex Chambers on behalf of the local authority (Luton Borough Council) , it was clear that M has still not told her parents the private information.  They are still receiving redacted copies of court documents.  

The local authority was seeking an order from the court to sit in private to consider the application for permission for the applicant and the Official Solicitor to continue to provide redacted documents to M’s parents.  “The court will need to consider what material is being redacted and whether it meets the legal test”, she said – and she added “the parents will need to be absent”. 

“So what is being requested is for me to have a hearing without the parents and in private to look at that issue”, said the judge. That’s a request for  a “closed hearing” – i.e. a hearing which one of the parties is excluded from.

The judge mentioned the Guidance by Mr Justice Hayden on closed hearings and closed material hearings and said:  “I think I’m going to have to have a hearing in private so I can understand what the redacted material is and the competing issues I’m going to have to balance”.

So, at that point, I had to leave the hearing (and so did M’s parents).

When I rejoined, counsel for the local authority was talking the judge through the Order.  If there was any ‘report back’ to the parents – there surely must have been! – I had missed it, as I was dependent on somebody to tell me when the “closed hearing” ended so that I could rejoin the link.  That was frustrating.

What I pieced together, though, from what I heard – and from the Order I requested and received shortly afterwards, was this.

The only issue now before the court is M’s care and support needs – because she has been found to have capacity to make decisions about where she lives and who she has contact with (and everything else).  So, all the information in the bundle in relation to decisions that M has capacity to make are “historic”, and should be removed from the bundle for future hearings.  This includes the documents that have been redacted.

Once the redacted documents (which, it seems, relate to where M lives and who she has contact with) are removed, all parties will have access to the same material.

The parents won’t get access to the information M doesn’t want them to know “because it is not relevant to the decisions made by this court”.   And, going forward, all documents are to be “provided in their entirely to all the parties”. 

M is now fit for discharge from her rehabilitative residential care facility and may have been discharged by the time of the next hearing.  As she has capacity to do so, she will decide for herself where she will live.  (Another capacity assessment will be carried out as to whether M can make a tenancy agreement, considering the guidance provided by DJ Batten at §101 in LB Islington v QR [2014] EWCOP 26).  Care will be provided for her in the setting she chooses in accordance with her best interests –  and those arrangements will be reviewed by the Court at the next hearing. Insofar as they may constitute a deprivation of her liberty, that would require authorisation of the court.

At the next hearing, the court will consider any remaining issues under dispute, the Forced Marriage Protection application, and whether another hearing (a four-day final hearing currently listed for February 2024) is actually needed.

Reflection

It was interesting to me that a hearing based on “closed materials” was averted without actually informing the excluded parties about what the closed material contained.  The parents still don’t know what it is their daughter doesn’t want them to know.  All they’ve been told is that, since she has capacity to make her own decisions about where she lives and who she has contact with, that information isn’t relevant to the decisions the judge has to make – so it’s no longer part of the material before the court.  It’s an interesting outcome, and one I don’t think is explicitly contemplated in the Guidance.

I don’t really understand why this decision was only reached at the third hearing at which the redacted material was considered, since declarations of M’s capacity  – including her capacity to make decisions about where she lives, who she has contact with, and her capacity to engage in sex and make her own decisions about marriage – were made by the court on 19th October 2022, i.e. before the issue of redacted material was before the court.  I think there may have been some dispute about capacity, but that doesn’t seem to have been pursued. Or perhaps the relevance of the redacted information has been reassessed?

It’s good for M’s autonomy, of course, that the court has respected her wish for her parents not to know some aspect of her private life. I think there may have been some attempts to persuade her to tell them – but nobody has forced her, or gone behind her back to let them know. If I were M, I would feel positive about this.

But I suspect it is difficult for M’s parents to know that there’s something M isn’t telling them – something known (apparently) to the care home staff, as well as to the lawyers and to the judge.  And now – unless or until M tells them – they will probably never know.  It might feel like a sleight of hand that the court has found a way forward that obviates the pressure to share that information.  I wonder if they will feel confident that the judge – who knows this information – won’t take any account of it in arriving at whatever decisions she needs to make going forward.

When I look back at what was said in earlier hearings, it seemed that some people (including the judge and the Official Solicitor) felt it was important for M to share this information with her parents.  Acting for the local authority, Sally Gore of Fenners Barristers said at the last hearing that the local authority needs to build a good working relationship with the parents going forward and  “that is undermined by the fact that the parents know there’s information we have that we’re not sharing with them”.  That’s now going to remain the case. And I commented at the last hearing that the judge “seemed somewhat frustrated […] by her impression that “M believes she can keep these matters secret forever””.  But now she can!    The technical legal implications of M not sharing this information seem to have been fixed – but I wonder about the personal, social and familial implications of it all.

It’s hard to know what to make of all this because I don’t know what the closed material is all about – but it leaves me somewhat concerned that there’s an unresolved issue lurking in the background of this case, which may yet cause problems for M.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 490 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia

[1] The first was on 28 February 2023 (“A ‘closed material’ hearing on forced marriage”): on that occasion, PA reporter Brian Farmer also observed the hearing and wrote about it (“Arranged marriage: Judge protects woman with learning disabilities”).  The second was on 27th July 2023 (Closed Material Hearing: A ‘forced marriage’ hearing before Theis J): the judge said then that a key issue to be resolved before the final hearing concerned redacted material in the court bundle.

Older lady “very sorely let down” by local authority with “multiple failings”

By Daniel Clark, 17 December 2023

The person at the centre of this case (COP 14072451) is an 84-year-old lady, currently deprived of her liberty in a nursing home. She is unhappy with the situation and is objecting to her placement there – which has led to an application under s21a of the Mental Capacity Act 2005.  

Despite these proceedings beginning earlier in 2023, the local authority (Hertfordshire County Council) has failed to produce the evidence that the court ordered they provide. 

This hearing was before His Honour Judge Beckley (sitting remotely, via MS Teams, at First Avenue House) on Friday 14th December, 2023. People present at the hearing were: Rebecca Handcock, of Field Court Chambers, representing SS via her litigation friend, the Official Solicitor; Umar Kankiya, representing the respondent local authority, Hertfordshire County Council; and the protected party’s new social worker. 

Background to this case

I am extremely grateful to Rebecca Handcock who gave a very detailed opening summary of this case, which greatly helped in following the hearing. She also provided me with a copy of her position statement.

The lady at the centre of this case was referred to by her first name during the hearing and as SS in court documents. I have chosen to refer to her as SS in this blog because I feel this is the only appropriate way of acknowledging her personal identity without further taking away any control.  

She formerly lived independently in the community, with the support of carers and a cleaner for around seven years. This “reportedly was not working well”, her living conditions deteriorated, and she moved (in 2022) to a care home for a one-year period. As a result of a development in her care needs, SS then moved to a nursing home, which is the placement that she is currently objecting to. 

SS is registered blind as a result of Macular Degeneration, has a number of health conditions, and is diagnosed with both Depression and a Personality Disorder (the type was not stated). SS receives the support of two staff for assistance with personal care “because she can be resistant”. As a result of mobility issues, she has a specialist wheelchair that makes accessing the community very difficult. 

SS has three children. One is a respondent in the proceedings but has so far only submitted the paperwork expressing a wish to be joined as a party. For a while, this son was the only child with whom she was in contact, though it now seems another of SS’s children has begun to initiate contact. 

With regards to the current placement, SS has told her representatives “that she’s unhappy in the placement, that she’s lonely, that she wants to visit shops, that she wants to make friends… She’s offered activities in line with the general activity programme but she declines”.  

She is also Jewish and keeps a kosher diet. However, because the home is not a specialist Jewish placement, she eats only ready meals and pre-packaged foods. It is also “not clear whether she has been offered access to a Rabbi”. 

At the last hearing (which I believe was in September 2023), the court had sight of a s49 report from a doctor, who’d assessed SS’s capacity. The position statement on behalf of SS says that the parties and the court “agreed that it is defective”. I won’t list all of the problems with the capacity assessment (the position statement lists six) but the primary reason is that it does not identify “which of SS’s diagnoses constitutes an impairment of disturbance in the functioning of the mind or brain for the purposes of the diagnostic test in respect of SS’s capacity”. Furthermore, it does not specify how SS has been assisted in her decision making, and seems to suggest that her understanding of the fact that she resides in a nursing home but would rather be at home is in and of itself evidence that she is unable to understand the relevant information. 

It was agreed that the parties could ask further questions of the capacity assessor who wrote the report. There has been no response from the Trust since then and it turns out that it’s not clear whether the Trust ever actually received the request for further clarification. While Counsel for SS sought an order that the request was re-sent, she was clear that “we don’t intend any criticism of him [the report author] or the Trust”.

The Official Solicitor had also asked for details on how the home had facilitated SS’s celebration of Hannukah but this has not been forthcoming. However, it was understood, following pre-hearing discussions, that they had put up decorations to mark the celebration. 

The “multiple failings” of Hertfordshire County Council

It was becoming clear to me at this point that this hearing was pretty much a re-run of the previous hearing. There was, according to Counsel for SS, a “tranche” of evidence that had been asked for from the local authority. This includes, but is not limited to:

  • Details of the activities that SS is offered
  • Details of the cultural activities which can be offered, including a visit from a Rabbi
  • An update on a referral to wheelchair services
  • The results of a search for an alternative placement which is either specifically for the Jewish community or which has a significant number of Jewish residents.

It had been expected that this evidence would be filed by the end of October 2023. It was now mid-December, and it still had not been filed. 

Counsel for the local authority apologised for what he described as “multiple failings”. He explained that there were, in essence, two reasons for these failings. 

On the one hand, he explained that he “dealt with a few personal issues around the time the information was to be due, so I took my eye off the ball”. It is, of course, inevitable that personal circumstances can interfere with work: lawyers, like everybody else, are not robots. However, as the judge rightly pointed out, there needs to be a system in place whereby a local authority’s legal department can ensure cases are covered. In essence, this is a system failure, and the judge was assured that procedures have now been put in place to prevent this happening again. 

On the other hand, counsel for the local authority also explained that the other reason for these failings is that “there has also been a change in the social work team”. SS was allocated a new social worker (it was unclear why) and counsel for the local authority was “notified of that after I was chasing up the information.” This spoke to “miscommunication that’s occurred within our team with regards to cascading information”. 

The judge was keen to know whether there was immediate handover between the two social workers or whether there was a period when SS had no allocated social worker. SS’s current social worker explained that “there was a brief period where there would have been a gap”. When he was allocated the case, there was a gap while he got up to speed – though he stressed the home would have been able to contact the social work department if there were any concerns. Thankfully, the social worker has had some involvement with SS in the past and has met her recently.  

The judge acknowledged that local authorities are facing “severe strains…but…someone as vulnerable as [SS] should not be left without a social worker…. This is an 84-year-old very vulnerable lady who has been very sorely let down by the local authority in this case”. 

The judge made an order that, in the main, repeated the contents of the last order because of the relevant evidence not being provided on time.

Reflections

I was very concerned by this case. The judge did note that the home itself is pleasant, that SS is able to access the grounds, and that she does not have any complaints about the carers. However, it remains the case that in failing to provide the evidence they were ordered to provide, the local authority have perpetuated a situation in which SS is unhappy. 

I also find it unacceptable that SS is a Jewish person who, it appears, has not even had access to a Rabbi. Unfortunately, this is not particularly surprising. When working in care, I had to advocate for a Catholic resident to have access to a Catholic priest rather than the Anglican priest who frequently visited residents. This should not have required any level of advocacy. Religion is an integral part of a person’s identity, and a person should be able to experience and express it regardless of where they live.

I am also concerned at the thought of how many other people are in a situation similar to SS, stuck in a situation that makes them unhappy in a local authority that is not appropriately responsive. This is not a case where individuals are at fault. Rather this is the fault of rigid systems that are underfunded and understaffed. As ever, it is the most vulnerable who suffer. 

This case is listed to return to court on Wednesday 13th March 2024, at 10:30am. 

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.

Counselling and support needed for family members in the Court of Protection

By “Hope”,  13 December 2023

Although I’m involved in a Court of Protection hearing myself, as a Litigant in Person, this was the first COP hearing I’ve observed involving another family.

The hearing was “Public with reporting restrictions” and could be watched either in person or (as I did) via a cloud video platform. Both parents were in court as Litigants in Person (LIPs).

First of all, I want to thank the Open Justice Court of Protection Project for encouraging me to join the hearing to understand how hearings are conducted, and how each hearing is different, which will assist anyone like myself who is acting as a Litigant in Person. I was nervous initially to join, as I feared due to being under COP proceedings myself, that I might not be allowed to join, or that it would be held against me in some way.  

I’ve had to write this blog post anonymously because a Transparency Order is preventing me from identifying myself as the relative of someone who is a protected party (P) in a Court of Protection hearing. 

Experience with requesting link 

I followed the Open Justice Court of Protection Project guidance on requesting the link for the hearing. I had emailed the Newcastle COP where the hearing was being held, at 11:20 am, I thought it might be too late or I may be a nuisance in requesting quite late.

However, to my surprise, I received a response by 11:39 am with the Transparency Order. Shortly after, I received an email from the Court Clerk, who provided me with instructions for joining the hearing. 

Unfortunately, I had several technical glitches attempting to join via Safari and Google Chrome.  I nearly gave up as I thought it might look bad if I joined late. However, the court clerk noticed me drop in and out and reached out and encouraged me to download the ‘Infinity Connect’ app. This process took 5 minutes, and it was very easy to use once downloaded. I entered the log-in details –  and here I was as an observer to the hearing. 

The pain of a litigant in person

With any Court of Protection case, P must be at the heart of the matter before the judge. 

Whatever decisions are made in the best interests of P will determine their life.  The judge must make these decisions in accordance with the Human Rights Act 1998, the Equality Act 2010, and of course the Mental Capacity Act 2005. 

My understanding of the Mental Capacity Act 2005 is that we must always act in the best and least restrictive way to ensure P has the best possible life and care they rightfully deserve. 

One would hope the shared goal would be to find a peaceful ground between parties – particularly the family member in dispute, which in this case is P’s mother, who strongly believes her daughter is being mistreated by the professionals supposed to be caring for her.  This requires the care professionals to understand, show empathy and compassion, actively listen and work together in the best interests of P. In my own experience, attention became focused on the family in dispute, and P’s best interests, P’s health and P’s well-being was overshadowed.  

Sometimes things can go very wrong, which has happened for P and P’s Mother in the case I watched. 
Listening to P’s mother, I felt an instant deep pain and sadness. I heard a mother’s voice, who was in great pain, who’d clearly been battling for years and had been feeling unheard.

A mother’s instinct is to care for and support their loving daughter. What I saw was a very desperate mother, who wanted to be heard and wanted a better resolution to help her daughter. 

P’s mother is Russian, and English is her second language. It’s known through Russian culture, that mothers are very passionate about their families and protectors of their children, and there’s no doubt that we saw this through listening to P’s mother, who sincerely wants the best for her daughter in care and is desperate to have her mother and daughter bond back. 

Her passion was very expressive through her emotion and strong which I believe years of battle also, had exacerbated the emotion to a high tension, where P’s mother is desperate for the judge to listen and acknowledge he heard her.  She often felt unheard and expressed her disappointment at being cut off. 

As a born British, my personal experience in Court of Protection proceedings has been very overwhelming with the legal system and court process. Being in court is already nerve-racking, but to find yourself facing allegations against you – including very unkind ones where you’re accused of not acting in the best interests of your vulnerable disabled family member who you wholeheartedly love, and have cared for through a labour of love, the pain you find yourself in is very deep and intense. 

There’s also the other factor, which is reading many negative allegations about you by the Local Authority Social Care staff and Care Home, of those who are meant to work collaboratively towards a shared goal – which is the best interests of P.

Then as a Litigant in Person, it involves navigating through the court process, writing your Witness Statements, preparing evidence, spending hours, sleepless nights and without a life, as the whole focus becomes the proceedings where you are desperate to defend yourself, so you can have a life with your most loved person, P.  Not forgetting all the legal terminology and abbreviations of words and law references. It’s a minefield. 

With approaching 2 years since my proceedings started, I still struggle to process what has happened, and why and to understand the jargon. So, I cannot imagine how it feels to P’s mother, who is not only trying to navigate through very complex proceedings, where she has felt let down and watched her daughter suffer helplessly but also finds herself navigating the process in a language she is not fluent in. I thought she was very brave.  I know I would not survive if I had to talk in court when I did not understand the law or speak the language.

It’s a very lonely and isolating world for a family in these proceedings, particularly as you are surrounded by parties who are against you. The focus becomes the ‘fight’, where the human perspective can be forgotten. In this hearing, P’s mother’s feelings and well-being were not a priority.  But COP is not about who wins.  It is meant to be about the best interests of P, but in this case it seemed focused on defeating the mother.

Supporting ‘P’s Mother 

I wanted to reach out to P’s mother and offer her my care and support. I knew what she needed to hear, which was that her voice does matter and that many of us in similar situations in the Court of Protection understand her pain. I wanted to help her to ground her emotions, and guide her with a breathing exercise. I did reach out on social media and let her know she was doing amazing considering the situation, and that to remember to take a few deep breaths, when emotions kick in. I explained that the judge needed to hear her as a mother and understand the facts, as we know emotions can get the better of us, and sometimes what we are trying to say can get lost when the emotions take over, which we know can then negatively reflect our position and allow the other party to use against us.

One thing it’s important to highlight is that in Court of Protection proceedings, there is sadly often a lack of care and support for the family members. We understand P is the most important person, and COP hearings are about P’s best interests. However, in complex proceedings where a family member becomes the target, the hearing also becomes about P’s family. But P would not want their family to be forgotten or experience distress for simply being a devoted loving mother, who is trying to be their voice.

It seems as though each professional is backed up and genuinely has each other’s support, including witnesses such as Social Workers and Care Workers. However, for P’s family it’s a different experience: they are completely alone and isolated, almost foreign bodies in the hearing, and they are fighting to be heard and wanting to be part of P’s life and best interests. 

Through my own experience and reading blogs by the Open Justice COP Project, it deeply saddens me and worries me that the mental well-being of a family can be left unsupported. There are many aspects of suffering, and feeling suicidal, due to the numerous allegations of which you even struggle to defend yourself in COP proceedings.  You are left feeling unheard – as you’re told COP only cares about P.  As a family in dispute, you’re a tiny person who is helplessly almost begging to  be heard to clear your name and be part of P’s life.

Families are left on their own, with no support, financially burdened and forced to act as litigants in person. There’s endless documentation, statement filing and many other admin, that already is overwhelming but as a LIP and family member, you find yourself being scrutinized in a way professionals are not, and you then question the fairness, transparency and justice of the proceedings.  With all this, your right to private life and your career are put on pause as you have little capacity for normal life.

My hope and desire is that one day the well-being of family members acting as litigants in person can be taken into consideration. We are forced into these proceedings with accusations, due to  choosing a path to be part of our disabled vulnerable loved one’s life.  We want to genuinely act in the best interest of P and have positive relationships with professionals who want the best interest of P. 

I have experienced a lot of negativity from social care professionals, which made me feel unsafe.  I was left traumatized after some hearings and spent days in bed, not knowing who I could talk to. I genuinely don’t think professionals have any idea how we feel. As Litigants in Person we have to put on a facade to stand strong in the face of adversity, but inside we are truly shattered and suffering, and we want a professional to talk to us on a human level.  

Our mental health needs to be prioritised by the COP. There needs to be a human level of understanding of the significant impact proceedings can have on us, and how we are left at the end of the hearing with no support or anyone following up on us or checking on how we are coping. Professionals need to understand the life-long trauma proceedings can cause to family members.

I believe the Court of Protection should offer free post-hearing counselling – or that a psychologist should be involved in the proceedings to offer support to help us engage with such a difficult painful process. 

I hope that anyone who faces proceedings as a Litigant in Person (or even legally represented) remembers that you matter too.  Your ‘voice’ matters. Remember to practice self-love and remember to reach out when the going gets tough.

And for anyone in a professional position, whatever the dispute, remember that P’s family matters to P, and they would not choose for their family to go through such pain. We should not be at war between Social Care and Family as P needs us all to help them live the healthy and happy life they deserve.  

So I end this with sharing an abundance of peace, that my biggest wish and desire is that humanity will prevail to act in the best interests of P, where they can have their families close by and be cared for lovingly. 

“Hope” (a pseudonym chosen to reflect her feelings) acted as a litigant in person during a very complex Court of Protection case and hopes that one day COP can improve the experience for families and give priority to family well-being and mental health – which will ultimately have better outcomes for P’s best interests.

Mastectomy against her wishes, family concerns and a Trust penalised for delay

By Celia Kitzinger, 11 December 2023

The woman at the centre of this case (GH) is 52 years old. She’s was diagnosed with breast cancer back in March 2023,  but she doesn’t believe she has breast cancer and is refusing all treatment for it. She has a diagnosis of schizoaffective disorder.

I missed the beginning of the hearing, which started shortly after 3pm on 26th September 2023, because it didn’t appear in the published court lists for that day. This was because Sandwell and West Birmingham Hospitals NHS Trust had made their application for an urgent hearing too late for it to be included in the day’s listings. 

Their application was for a declaration that GH lacks capacity to make decisions about breast cancer surgery and that it would be lawful and in her best interests to sedate and anaesthetise her and to perform a right mastectomy and axillary node clearance the following day.

The judge declined to conduct the full hearing under these circumstances and listed the case (COP 14152696) to be heard on 28th September 2023, which is when I observed it, remotely, before Mr Justice Poole.  

The Trust was represented by Conrad Hallin and GH was represented, via her litigation friend the Official Solicitor, by Claire Watson KC.  

GH was not in court herself.

The witnesses in court were: Mr Mirza, a consultant breast surgeon; Dr Aziz, a consultant psychiatrist; and GH’s father and son.

The full judgment has been published (GH (Mastectomy: Best Interests: Costs), Re).  

Based on observing the hearing as well as reading the judgment, there are three aspects of this case I want to comment on: 

(1) Treatment contrary to a person’s wishes

(2) Family views

3) Delay.  

 1. Treatment contrary to a person’s wishes

The woman at the centre of this case believed that she had “absolute control of her bodily integrity and there are no others who can overrule that” and although she’d been offered the opportunity to talk to the judge she had refused (said Claire Watson KC) asking “who the hell the judge was to force her to have an operation”. 

She’d written to her treating surgeon saying she wanted no further conversations about treatment AND no further appointments.  She said she’d “rather die” than have surgery.

In principle, as the applicant Trust acknowledged, an adult person of sound mind is entitled to make decisions to refuse treatment even if their life is at risk as a result.  This has been settled in law for a long time:

“The principle of self determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so…” (Lord Goff in Airedale NHS Trust v Bland [1993] AC 789)

But two common circumstances in which adults can have treatment imposed on them without their consent are (a) if they are found to lack capacity in relation to that treatment under the Mental Capacity Act 2005, and (b) if they are detained under the Mental Health Act 1983 and the treatment falls within the permissible treatments of s. 63 (or s.58).  

This application was brought under the Mental Capacity Act 2005.

The Trust’s position was that GH lacked capacity to make her own decision (ss. 1-3 Mental Capacity Act 2005) and that treatment was in her best interests (s. 4 Mental Capacity Act 2005). 

Capacity

The applicant Trust submitted (and the Official Solicitor acting on behalf of GH accepted) that GH lacks capacity to make her own decisions about treatment for breast cancer.  

This is because she has delusional beliefs. When GH  discussed the breast cancer diagnosis with her doctor, she said that the lump in her breast was due to black magic from a relative or a neighbour and not breast cancer.  She believes that all the cancer tests were clear but that the hospital has not disclosed this to her.  She believes that wider agencies, including the government and the NHS, are involved in a conspiracy against her so that they don’t have to pay large sums of money she is owed in compensation.  These beliefs make it impossible for her to understand and weigh up the consequences of the decision to have or not to have surgery. 

And so (in the absence of any valid and applicable advance decision to refuse treatment) it falls to others – in this case, the judge – to make a decision in GH’s best interests.

Best interests

In deciding what is in GH’s best interests, the judge must take into account GH’s values, wishes, feelings and beliefs.  She’s been “unwavering” in her insistence that she doesn’t want treatment.  Clearly, since she believes she doesn’t have breast cancer, she doesn’t feel any surgery is needed to manage it.  (In many cases, there is evidence of what the person would have wanted in this sort of situation  when they had capacity to make these sorts of decisions, but in this case nothing was offered, so I assume the family didn’t know.)

But ‘best interests’ goes beyond simply what the person says they want or don’t want, to consider the situation in the round.

There’s the value placed on human life – including Article 2 of the European Convention of Human Rights. One study found the median survival for patients with untreated invasive breast cancer was 2.7 years. 

Without surgery there is a high risk of progression to fungating cancer, i.e. the cancer erodes through the skin causing ulceration and pain.

Surgery might save her life but about 40% of people who have her type of cancer do get recurrences – and there are both general risks (bleeding, infection, pulmonary embolism) and risk of complications specific to breast surgery (nerve damage, skin necrosis, shoulder stiffness, and psychological injury due to removal of the breast).  

The position of the Official Solicitor at the start of the hearing was that it was a finely balanced case.  “The most obvious and significant benefits to GH in undergoing the proposed surgery are the prolongation of her life and the prevention of progression to fungating cancer. However, there are a number of disadvantages… including the likelihood that she will suffer a worsening of her mental health and the risk that the surgery will not be curative”.  The Official Solicitor wanted to wait for evidence to be tested in court before stating her position.

The evidence was explored in court via cross-examination of the two witnesses.  Much of this is covered in the published judgment. What stood out for me was the detail and specificity of the questions and answers provided.  I’ve never had the opportunity for this kind of careful discussion of the pros and cons of treatment when I’ve been faced with my own dilemmas about whether or not to go ahead with a recommended treatment.  I’ve felt doctors have simply recited the information required to ensure “informed consent” and then rushed swiftly into reassurance. They’ve been taken aback when I’ve raised the possibility of no treatment.  The discussion I witnessed in court represented the gold standard for informed decision-making.  It’s very much what I would like for myself when I have to make medical decisions of my own. It’s somewhat ironic that, because I have capacity to make my own decisions, I – unlike GH’s representatives –  can’t get access to the experts for long enough to answer with the requisite degree of care and attention.  

The dilemma underlying this case is one I have seen many times before in the Court of Protection.  

Many protected parties in the Court of Protection say they don’t want the medical intervention that is recommended for them – or (if they can’t communicate verbally)  indicate refusal through resisting attempts to deliver the treatment.  Sometimes the court finds that it isn’t in their best interests to have treatment – even if they might die as a result.  

In other cases, the court rules that even though the person says they don’t want the medical intervention it’s in their best interests to have it anyway.  This might involve sedating the person, physical restraint and/or covert medication to enable medical professionals to treat the person against their wishes[1]. These cases are all very fact-specific.  There is no general rule that people who lack capacity to make decisions for themselves should or should not receive treatment that they say they don’t want.

2. Family concerns

It can be very upsetting for families when a much-loved family member is risking death by refusing a medical treatment.  Family members may try to persuade or cajole the person who lacks capacity into agreeing to the treatment, and feel dismayed when that doesn’t work.  Sometimes the patient will become angry or frustrated with their family – accusing them of siding with the professionals and trying to coerce them into something they don’t want to do. 

Introducing the case at the beginning of the hearing, the applicant said  “her son didn’t want to be seen to go against her wishes”.  GH had been determined to manage her own medical decisions – for example in March 2023, although the son had come along to the clinic with her, GH would not agree to him being involved in the discussion about treatment options and told him to wait outside.  Later, the son avoided engaging with professionals, saying that it’s difficult for him to participate in discussions about his mother because she believes he is plotting against her.  As a result, GH’s family hadn’t really understood much about the risks and benefits of treatment by the first day of the hearing.  Following the short hearing on 26 September 2023 in the urgent applications court, a best interests meeting involving members of GH’s family – her father, son and sister – was convened, and they were given more information, after which they said they supported the proposed treatment plan.  In the judgment, Poole J says: “I do understand that GH’s son had previously been reluctant to be involved in any decision-making for fear that his mother would consider him as conspiring against her, but every effort should have been made to involve family members before the urgent application was made” (§43).  (The involvement of a person’s family in this way is of course dependent on a firm finding that the patient lacks capacity to make that decision for themselves.)

In the hearing itself, the judge made sure that the family members had the opportunity to ask questions of  the two medical witnesses if they wanted to (they said not, because “it was resolved in the best interests meeting”.  He checked the son had understood that “the Trust is asking me to authorise treatment … against the wishes of your mother” and asked for his view on this.  “Yes”, the son said, “I’ve been listening to all the information and what could happen if she doesn’t have it, and I think it [treatment] is the best course of action”.  He agreed that he was “worried about her reaction” but said “I think it’s in her best interests to have surgery, even given that”. GH’s father was very upset (and crying) but he, too, thought it was “best to go ahead with this surgery” – adding “I do feel she will be cooperative with the doctors”.  This was also, apparently, her sister’s view – although she wasn’t present in court. 

The judge made an oral ruling saying that he was satisfied that it was in GH’s best interests to undergo mastectomy and axillary node clearance and that he would make the declarations sought.  Surgery was planned for the following day.

3. Delay – a costs order against the Trust

Somewhere near the beginning of the hearing on 28th September 2023, the Official Solicitor raised concerns about what she described as the “unexplained and inexcusable delay in bringing this matter to court”.  

Given that GH’s general practitioner first “raised a red flag about breast surgery and capacity” back in May 2023, it was “not obvious” (she said) why the application to the Court of Protection was delayed for so many months.  Also in May 2023, there was an email from the community psychiatric nurse to the breast surgeon caring for GH relaying advice from the legal team at the mental health trust that the matter would need to be brought to the Court of Protection. Why didn’t that happen until September 2023?  

Delay is a concern recurrently addressed by judges in the Court of Protection[2].  Obstetric cases are so frequently delayed – leaving court decisions about caesarean sections or place of birth until at (or even past) a woman’s expected date of delivery – that guidance has been produced to try to avoid delays (Keehan J in NHS Trust v FG [2014] EWCOP 30). 

In this case, delays were occasioned (said the Trust) by a consultant going on long-term sick leave, and by initial uncertainty as to GH’s capacity, difficulties obtaining evidence from busy consultants over the summer vacation period, exacerbated by industrial action by consultants, and by challenges associated with GH living in the community. 

The judge was very concerned about the effects of the delay. Here’s what he says in his judgment.

In the present case, the lateness of the application has:

  1. Undermined the role that the OS [Official Solicitor  should play in the proceedings. The importance of this should not be overlooked. The OS represents the interests of GH. The OS needs time to consider the evidence, meet GH and ascertain her wishes and views, probe the evidence, ask questions, seek independent expert evidence if necessary, liaise with GH’s family, and form a view of GH’s capacity and best interests. The OS does not have unlimited resources and has responsibilities in many other cases.
  2. Placed the court under considerable pressure to find precious time, on a very urgent basis, to hear the application. There was no opportunity to give directions in relation to evidence other than within a very short period from 26 to 28 September 2023. An application of this kind is very unlikely to be determined within an hour. The urgent applications list will often have six or more cases, sometimes several more, to be heard within the day. If an urgent application can be avoided it should be avoided. This application only became urgent because of the delay in making it.
  3. Risked undermining open justice – this application did not appear on the list on September 2023 because of the lateness of the application. Hence, those who might have wished to observe this important application did not have advance notice of what might have been a substantive hearing on 26 September.
  4. Caused disruption to the surgeons, clinicians, and staff at the Trust because the planned surgery on 27 September 2023 had to be postponed and hastily re-arranged.
  5. Contributed to a delay in treating GH. The need for surgery was known at diagnosis on 2 March 2023. The surgery took place nearly seven months later. A key performance standard for NHS England is for a 62-day period between referral and treatment for cancer (the target being for this standard to be met in 85% of cases). For a person with capacity who had refused adjuvant chemotherapy but consented to surgery (which is effectively the corresponding position for GH following my decisions above) the target date for surgery (the first line of treatment in those circumstances) would therefore have been in late April 2023, about five months before the application was made. 
§61 GH (Mastectomy: Best Interests: Costs), Re

The judge made an Order that due to the extra work and undermining effect of the late application, the applicant Trust (Sandwell and West Birmingham Hospitals NHS Trust) must pay 80% of the Official Solicitor’s costs.

I hope this will act as a deterrent to delay in other cases. 

Postscript

There’s a postscript to the judgment reporting that the mastectomy was performed early in the week following the hearing.  No restraint was required and GH was compliant. The tumour was operable and she’s seemingly recovered well from the operation. There were no signs of any adverse impact on her mental health. The judge wished her well for the future.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 490 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia

End notes

[1] For some other cases we’ve blogged about involving application to conduct investigations/administer treatment contrary to P’s wishes see these blog posts.

[2] On delay, see for example: 

Warrant for arrest of P’s mother

By Amanda Hill, formerly ‘Anna’ , 7th December 2023

This has been a long and difficult case, blogged about recently here). I’ve not observed a hearing in this case before  – but I’ve read a blog about the previous committal hearing here. 

In brief, at the previous committal hearing the judge determined that Mrs Liovbov Macpherson (Luba) had breached a court order by posting videos and other information relating to her daughter (P) on social media.  

As a result, he’d imposed a custodial sentence of 28 days, suspended for 12 months. 

Today’s hearing was the result of an application by Sunderland City Council to consider whether she had breached that order again.  

This hearing only lasted for 10 minutes but it could not have been more dramatic. 

I will first describe gaining access to the hearing, then describe what happened in the hearing, and finally end with some reflections about what I saw.

Gaining access to the hearing – using the new Video Hearings Service

The hearing (COP 13258625) was listed as an in-person hearing at Middlesborough County Court at 9.30am on Thursday 7th December. It appeared on Court Serve as follows: 

Normally if a person is a defendant in a committal hearing, their name should be listed in full.  It is a fundamental principle of open justice that people should not face the risk of being sent to prison anonymously. This didn’t happen here – as you can see above, just the initials ‘LM’ are used.

Defendants are ordered to attend committal hearings in person –  so the hearing was listed as an attended hearing. I don’t live in Middlesborough so I knew I would only be able to observe if a remote link became available. However, I saw the Open Justice Court of Protection Project post on X/Twitter, which said that a link might become available.  So, I sent a request to observe to the court the evening before, just in case it was possible to observe remotely.

The hearing was scheduled to start at 9.30am and at 9.27am I received an email from the court with the Transparency Order (TO) explaining what I was and was not allowed to publish. It also said I would receive a link to observe the hearing as soon as possible. This made me optimistic that I would be able to observe. 

However, at 9.46am I received another email saying, in summary, that a committal hearing must be attended in person so there would be no link. However, if the defendant was allowed to attend remotely then I would be sent a link to observe. I gathered from this that the defendant had asked to attend remotely and so I decided to wait. And I waited. 

I don’t know at what point I would have given up waiting, as I didn’t necessarily expect to hear back from the court. But at 10.16am I received a standard email from HMCTS Video Hearings confirming the hearing and telling me that the hearing would start at 10.20am (so only 4 minutes later) and with instructions to sign into their website. 

It turned out to be their new Video Hearings service  (instead of MS Teams or Cloud Video Platform as usual) which – although I’ve watched a dozen or more hearings – I’ve never used before.  It came in a separate email with a hearing link with my user name and password to log on to the site. I must admit I panicked a little bit as I was unfamiliar with the system and I only had 4 minutes to join. It wasn’t easy to do quickly. I had to automatically change the password and then there was a compulsory camera and microphone check. By the time I was admitted, it was 10.26am. I was relieved to see that the hearing hadn’t started and I was in a waiting room. 

I was surprised and a bit worried that my camera and mike were automatically on (we are normally required to have them off when we observe hearings).  But there was a “message video hearings officer” chat and a human at the other end (I assume) who helped reassure me that I could turn my camera off (which I did) and I would be able to mute myself when the hearing started. There was a screen informing me the hearing was about to start, so I waited again. I could see that Luba was connecting and disconnecting. I wondered how she felt about the joining process, given what was at stake for her. The screen then turned yellow saying the hearing was delayed. 

Eventually, at 10.45am, the court room camera came on, pointing to the empty judge’s chair. I could hear some talking, and they mentioned that this was a new system to replace (I think) Cloud Video Platform. A clerk then spoke to me directly to ask me if I could see and hear, and I unmuted myself to confirm that I could. Then I switched my mike off and waited again. 

At 10.52am Luba finally joined again and appeared on camera. I thought she seemed subdued and anxious, sometimes putting her head in her hands and drinking a lot of water. Her mike was on. She was alone and unrepresented. Two other observers joined the hearing. 

At 10.57am the judge arrived and the court rose, nearly 90 minutes after the scheduled start time. 

By 11.07am, 10 minutes later, it was all over and an arrest warrant had been issued for Luba. 

The hearing

The only people who appeared on screen were Luba and the judge. It was slightly disconcerting to see Luba on screen twice – both on the video-platform itself, and on the judge’s screen as well. I imagined she could see herself too. 

After asking the observers to let the judge know verbally if they had not received the TO (nobody spoke) for the vast majority of the short hearing, only Luba and the judge spoke. As they were the only people on camera, it almost felt as though I was watching a discussion between two people, rather than a formal hearing in a courtroom. This added to the intensity of proceedings.  In other cases I have observed remotely, multiple cameras have been used and it’s been possible to see the barristers (and sometimes witnesses) in court as well. 

This is a summary of what happened[1]. 

After informing Luba of the advocates who were in court but off camera, (Joseph O’Brien as a Litigation Friend for Luba’s daughter and Simon Garlick for the Local Authority), the judge asked Luba why she was not attending in person. She replied: “I have left the country for my own safety” and the judge asked her to tell him about that. 

She said that she had left England because she was worried that she would be sent to prison for a crime she hadn’t committed or be put in a psychiatric hospital. 

“Yes, there was an abduction attempt to put me in a psychiatric hospital. I made a report to police and your court but it was completely ignored and not investigated. Also, I know that I will be in prison for no crime committed, and this is the reasons I left England.”

The judge told her she was facing very serious charges and he didn’t understand why she wasn’t there in person.

She said that she had applied for political asylum and she couldn’t leave the country (she was in) because of that. She said she had been very badly treated in England and mentioned prison again. He asked if she was referring to the previous committal hearing and she confirmed this. 

The judge replied that the committal proceedings were a lawful process and that she needed to  attend to admit or deny a breach of the Order.

Luba said:  “You are well aware I have been set up to fail. You have all the documents that show that from Dr Oliver Lewis, top barrister from Doughty Street.” (my note – Oliver Lewis represented Luba at the last committal hearing).  “But you ignored all of the documents provided to you in regards to breaches of Art 6 (my note: the right to a fair trial) and the setup for fair, trauma-informed treatment. This is exactly what we’ve been victims of. You know that criminal solicitor that was appointed to me was set up. She sat at the hearing far away from me – and I could not hear what she was saying and at the end of hearing she said that I accepted that I had breached the Order. The orders are unsafe”

The judge said that he was not reopening the earlier committal hearing. He said it was alleged that she had reposted the original posts and links to the recordings that she had been given the suspended sentence for. “Yes, I did”, said Luba.

The judge said that by failing to attend court in person, and putting him in a situation where he decided to establish a video-link, she had caused disruption to other families who had important cases listed to appear before him that day. He gave her a choice: he would adjourn the hearing until the 19th December 2023 and she could appear in person, or “if you tell me you are not prepared to attend in person then I will issue a warrant for your arrest”. 

Luba replied “Yes, but I have explained I have asked for political asylum. I have no passport, I cannot leave this country”. The judge said that she had provided “no evidence of that whatsoever”. 

He asked again: “Will you attend on the 19th December?”

Luba replied that she was sorry, she could not: “I have applied for political asylum. I have no documents. I am stuck here now. I can attend via Zoom. That’s all”.

The judge then said in that case he was going to issue a warrant for her arrest “so that you will then be arrested and brought before the court since you choose not to bring yourself before the court”.

Luba asked “But how can you arrest me when I am out of the country and have sought political asylum?”

The judge replied that he had seen no evidence for that and that “it seems on the face of it an extremely eccentric position to take after living in England for so many years”.  

Luba replied that she had submitted evidence to (I didn’t catch this word but it sounded like the name of an organisation) that she had left England because she had been “punished and persecuted for six years for no crime committed, just for trying to protect my daughter who has been badly treated and abused”. 

The last few sentences got a bit confusing as the judge and Luba were talking over each other. 

The judge said that all these matters “have been raised by you in previous hearings – appealed by you and dismissed, refused,  as without merit” to which Luba retorted: 

 “The Court of Protection is a corrupt court”.

 “You have on more than one occasion shown a dismissive attitude to the court and left me with no option”, said the judge.  He asked counsel if they had anything to add and they said no. 

The judge gave his final word. He was making an order for an arrest warrant for Luba and that concluded the hearing for today. 

And with that the camera was switched off, for me – and for Luba too I imagine. 

Reflections

I found this a difficult hearing to watch. It ended with a mother separated from her daughter, a mother who cannot return to England without being arrested. She feels that the system is failing her and she has been a victim. It’s not hard to see why she feels that way. 

I know from my own experience (here) that it’s difficult for family members to navigate the Court of Protection, although my own experience was nowhere near as dreadful as this. 

On one side, the courts applying the law as it stands and on the other a family member representing herself, in a foreign country, communicating in a language that is not her native language, fighting “the system”. 

I believe that the Court of Protection works well when families feel that they have been listened to and treated fairly, whether they agree or disagree with the outcome. Luba clearly feels that that isn’t the case here. 

I was struck by the judge using the word “eccentric”. He has previously used the word “bizarre” in another hearing. That made me feel slightly uncomfortable. Until one has been in the position of Luba, how could we know how we would act? It probably doesn’t feel eccentric to her. If she had acted differently, gone along with “the system” would the outcome have been different? Should families have to do that? And what about P, the person at the centre of this case? She is now, for many reasons, separated from her mother. As Celia Kitzinger wrote in her earlier blog, “This is a tragic and seemingly intractable case”.

Anna was the pseudonym of a woman whose mother was a P in a Court of Protection s.21A application.  Since March 2025, Amanda Hill is allowed to reveal that she is Anna, because the Transparency Order covering her Mum’s case has been varied (changed). Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is a core team member of OJCOP. She is also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She is on LinkedIn (here), and also on X as (@AmandaAPHill) and on Bluesky (@AmandaAPHill.bsky.social). 

[1] I don’t touch type and we are not allowed to record proceedings. I have captured as much as I could, given the speed at which I type

British Sign Language, Capacity, and Transparency

By Celia Kitzinger, 5th December 2023

Matters exercising the judge in this hearing, on Tuesday 5th December 2023, were:

  • British Sign Language: Most of the time P is being cared for by people who can’t communicate well with her, as she’s profoundly deaf and a British Sign Language (BSL) user, and they can’t use BSL.
  • Capacity: Convincing evidence about P’s capacity across a range of decisions was missing, despite the fact that the judge was being asked to make final decisions that she lacked capacity
  • Transparency: I had asked the judge to engage with this after observing a previous hearing in May 2023 and this was his first opportunity to do so with the parties.

This is the second hearing I’ve observed in this case (COP 12446297 before HHJ Godwin). I blogged about the previous hearing, in May 2023, here: P loses bungalow option due to assessment delays  – and described it as “a thoroughly depressing hearing”.

At this hearing there was some good news. Despite the title of my earlier blog post, based on a report from the advocate for P during the hearing, it turned out that P had now moved into the bungalow it was thought had been lost to her.  And she’s “very happy” with her new residence, which she’s “decorated and furnished it to her taste” and she’s engaging in “a range of activities” and “everything is going well”[1].  

The parties were the applicant Local Authority (represented this time by Hannah Meredith-Jones) and P (represented via her litigation friend by Clare O’Shea).  They had agreed a draft order for final determinations and invited the court to conclude the proceedings.  

That didn’t happen, due to the judicial concerns raised above.  

1. British Sign Language

There seems to have been no concrete progress on this since the last hearing.

Back then, on 31 May 2023, the judge expressed his concern with ensuring that people could communicate with P, but it turns out that still – six months later – most of the people interacting with her on a daily basis are not able to use British Sign Language (BSL) “with the result that she feels frustrated”.   This is because “staff did not attend for tuition and their registration was terminated” (said the judge). 

The following exchange took place.

O’Shea (for P): Staff weren’t missing courses because of being lackadaisical but because for example they were on night shifts prior to the mornings of the course. This particular course has a strict ‘two-strikes and you’re out’ policy, so there’s no point trying the same course again because the same thing will happen. We’ve been looking at using an online course, but that would effectively mean staff doing training in their own time. Staff must be trained in BSL – everyone is aware of that and we need to sort this out.

Judge: The local authority here have a duty, don’t they, to meet her needs as a person who is profoundly deaf. And to have her looked after for most of her waking hours (and when she’s asleep) by people who can’t communicate with her is not meeting her needs.  This has been going on now for 12 months. It needs to be addressed.

The British Sign Language Act 2022 recognises BSL as an official language of England, Scotland and Wales – the same status afforded to Welsh and Scots Gaelic. The Act means that the government must promote BSL and make it easier for people to use it in their dealings with government agencies and public bodies. The Equality Act 2010 also covers BSL users because it imposes on service providers a legal obligation to make reasonable adjustments in communicating with them; and where BSL is their first or only language, those adjustments will very often be the provision of BSL interpreters. Figures from the British Deaf Association suggest 151,000 people use BSL in the UK, 87,000 of whom are deaf. It’s pretty shocking that the local authority (which I can’t name, see [3] below) is failing P – and also presumably other deaf people in care in its geographical area – in this way.

2. Capacity

I was dismayed – and so it seemed was the judge – to find there was also no progress on an expert capacity assessment.

The most recent assessment of P’s capacity to make her own decisions about care, residence, litigation, contact and internet use was a year out of date at the last hearing – and the judge described it as “fairly perfunctory”.  At this hearing, the capacity evidence was a year and a half out of date because nothing further has been done.  

This is surprising given that, at the May 2023 hearing, Ms O’Shea reported that the capacity evidence had“been sort of parked”  pending a decision about a possible move to a specialist deaf placement which then  hadn’t materialised: she was (she said then) “kicking myself for not progressing it”.  The judge encouraged her to do so and she replied:

O’Shea:  Your Honour, I absolutely hear you loud and clear. I will make an application for an independent expert report.

Judge:  The sooner that application is made the better.

O’Shea:  I will go back through my file. I did a search previously.  I will look for an expert who can assist with the capacity assessment first….

So, six months later, I expected an updated capacity report.  So did the judge. But there wasn’t one.  

Instead, the parties had put in front of the judge a draft Order inviting him to conclude the proceedings, which included a declaration that P lacks capacity to make all the decisions under consideration.  This was submitted to the judge without the expert report that Ms O’Shea had undertaken to commission.

“This is frankly not something I am prepared to do” said the judge, “without there being recent capacity assessments.  So there we are.  That’s why I’m not prepared to release this matter.”  He referred particularly to actions P had taken when she’d received a sexually inappropriate message on social media. She had spontaneously blocked the person who sent it to her, taken a screen-shot of the message, deleted it, and then reported it to one of her carers. “ In the light of that recent event, I’m concerned to be asked to make a final declaration that P lacks capacity in relation to making decisions about relationships, contact with others, internet and SIM cards – and to make this final declaration without a recent expert capacity assessment. It’s not acceptable and I’m not prepared to do it”. 

He asked both lawyers why there was no expert capacity assessment.  It seems from what they said (quoted below) that neither of them considered it necessary, despite the judge having made a direction for expert capacity evidence to be obtained.

Meredith-Jones: The local authority is saying that capacity assessments may well intrude on P’s life. She’s settled, she’s happy.

Judge: That may be the case,  but a final declaration of the Court of Protection that she lacks capacity is also likely to intrude into her life. 

O’Shea: There was previously a direction for expert evidence, but at the time – this was wholly my error – I understood my client to be in receipt of legal aid, but in fact she was privately funding, and in terms of the financial impact on P in proceeding with any expert evidence, there would be a financial impact. She is now receiving legal aid but would be liable to make a contribution of several thousand pounds. The primary goal of identifying suitable accommodation has been achieved. The bungalow has been secured for her despite seeming to be in jeopardy at the last hearing and-

Judge: Funding has never been drawn to my attention until today. The local authority is asking for final declarations about capacity under s.15 and the court isn’t satisfied with the evidence.  […] It’s not for the parties simply to say “oh this is going to be an expensive exercise and we’ll just ask the court to make a final declaration that she lacks capacity”. That is not the way in which this matter should be resolved.

O’Shea: I can only apologise to the court.

Judge:  It just beggars belief that the court could be asked on the one hand to agree a capacity assessment in these fields is required, and then to ask the court to make final declarations without those assessments being done.

O’Shea: I hear you loud and clear. I can only apologise.

Judge: It must be a matter for the court to determine how funding is to be dealt with and the court should have been approached earlier.

O’Shea: I apologise once again. P will have to pay her half of the expert report.

Judge:  Unless the local authority take a different view, and in light of the way this matter has been dealt with, they may take a different view…

O’Shea: There were other factors at play. It isn’t felt she’s prejudiced if we’re now to proceed with an expert report. She’s now more settled and not dealing with the move. The litigation friend was very mindful of the situation with capacity. The litigation friend is not disputing capacity. The parties agree on the capacity evidence  – but it’s the court’s decision so we will progress with commissioning an expert.  The Legal Aid agency will expect me to provide a number of quotes.

Judge: Wasn’t there someone identified previously?

O’Shea: Dr B, yes, who may still be available and we will get a costing and get that sorted.  I will reiterate to legal aid that expert evidence is seen as necessary.

Judge: I previously indicated that there’s a s.48 reason to believe she lacks capacity but making final declarations under s.15 is quite a different matter.  And in light of her approach to the social media incident, I think particularly an up-to-date assessment is required.

O’Shea: It may be that there is someone suitable within the local authority-

Judge: That’s unlikely. Enquiries were made previously as to who was available to conduct assessment in BSL. In light of her deafness, it’s got to be someone who can communicate with her and assess her properly, and I can’t see that anyone in the local authority is in a position to do that.

3. Transparency

I almost didn’t get to watch this hearing because there was what the court staff referred to – when I enquired – as “a typographical error … on the production of the list”.  The case number for this case is COP 12446297, but it had been listed as COP 12446897 (so one digit was different). This meant that it didn’t come up when I searched for it using an electronic search facility, and so I wasn’t sure it was happening without correspondence with the court to check. It’s a small thing, and undoubtedly an error that’s easy to make, but it’s devastating for open justice and nearly stymied my attempt to follow up on this hearing. 

There were other transparency issues too.

I’ve reproduced below the letter I sent to the judge (via the Cardiff court staff) shortly after the hearing of  31 May 2023.

It’s a measure of the serious commitment of the Court of Protection judiciary that, at the beginning of the hearing on 5th December 2023 (the 3rd August hearing having been vacated), the judge addressed the issues I had raised.

First, he asked the applicant to provide a brief summary, as recommended by the (former) Vice President of the Court of Protection. This was very helpful.  

Then he asked both lawyers to address the matter of why the Transparency Order prevents me from naming the local authority.  Their accounts for why it was (in their view) necessary involved communicating new information about P’s life which I hadn’t known before (and which I’ve decided it’s best not to report here, though I don’t think the Transparency Order prevents it).  There is a particular concern to keep her current address out of the public domain.  Both lawyers were clear that naming the local authority might lead to identification of P’s place of residence – although Ms O’Shea referred to this as “a long-chance risk … in the albeit unlikely event of an individual trying to identify where she lives”.  I can understand their concern and I understand why the protection of P’s Article 8 privacy rights should be a key factor – notwithstanding that the wording of the standard Transparency Order (as used in this case) does not contemplate “long-chance risks” or “unlikely events” relating to the identification of P, but rather prohibits publication of anything “likely to identify” P or where P lives.

I was perturbed however that Ms O’Shea seemed to be of the view that there were no Article 10 (freedom of information) rights to counter-balance P’s Article 8 rights. She said there was “no pressing reason why the local authority should be named” and “no positive indications” for naming this public body.  

Had I been invited to address the judge (I was not) I would have pointed out (as I did in my email) the presumption that public bodies should be identified unless there are reasons to the contrary. Naming them is the default and there shouldn’t need to be a search for “pressing reasons” or “positive indications” for naming them. The fact that they are public bodies, paid for by our taxes, and accountable to the citizens of a democratic country, is sufficient in and of itself.  In this case in particular, though, I think in fact there is a positive indication for naming the local authority – which is that it’s been the subject of judicial criticism at both hearings and there is evidence that it is failing to meet its obligations under the Equality Act 2010. That positive indication should, in my view, have been set in the balance against the Article 8 privacy rights of P and the risks she faces if her accommodation is identified.

Having heard the positions of both lawyers, the judge made the decision to maintain the Transparency Order in the form he had originally issued it (i.e. to prevent me from naming the local authority).  I can see there is a basis for this decision, and it’s important that – due to my intervention – the arguments for and against transparency have been aired in court. It’s not simply a ‘default’ bit of secrecy (such as I’ve witnessed in some other hearings e.g. Varying reporting restrictions to name Kent County Council in “shocking” delay case ).  Nonetheless, in this kind of weighing exercise, there are costs whatever decision is made – either costs in terms of risks to P’s privacy and safety or costs in terms of public accountability. Given the decision that the judge made, I’m concerned that the public  – particularly those living in the geographical area it covers – cannot know that this local authority has been criticised by the judge and that it (and the relevant Health Board) is implicated in a case of delay in providing accommodation, suitable carers and an adequate assessment for a disabled person. The cost of avoiding any possible risk to P’s address being discovered (as a consequence of publicising name of the local authority) is that the local authority evades public accountability.

In his brief judgement, HHJ Godwin made clear that he was conducting an Article 8/Article 10 balancing exercise based on the information available to him (which is much more than the information available to me). I am not suggesting the judge’s decision was wrong and I don’t intend to appeal it. I am, however, reflecting on some problems I experienced with the way the lawyers approached the matter and with the inevitable consequences of decisions like this in terms of public accountability.

I hope to be able to observe the hearing in February 2024 and report back on developments.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 490 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia

[1] Quotations from the hearing are as accurate as I can make them on the basis of touch-typed contemporaneous notes.  We are not allowed to audio-record hearings, so I’m unlikely to have got everything entirely verbatim.

Transferring P to a different hospital: No longer a best interests decision

By Rhiannon Snaith, 30 November 2023 

Having read a blog post about a previous hearing in this case (‘Best interests, hospital transfer and a feeding tube: How open justice fails without access to court documents’), I was expecting it to be about whether or not it was in P’s best interests to have a feeding tube (re)inserted.  As it turned out, that wasn’t addressed.

This case (COP 14173602) was heard, remotely, before Mr Justice Keehan on Thursday 30th November 2023.

In the introduction by Mr Fullwood, we were told that P is a man in his eighties from Iraq who had previously worked as a doctor. A few months ago, P suffered a fall and was admitted to hospital. We were told that there was some evidence of cognitive difficulties, and the hospital caring for P had also recorded that he has suffered with delirium. P has in the past also received an enforced NJ tube (nasojejunal tube), which is used for feeding and had had mittens (which stop a patient pulling out tubes) and had required 1-to-1 supervision with feeding. He could also become “agitated, unsettled and resistant to interventions”.  However, he  now does not have a ‘feeding tube’ and is currently being supported to make his own decisions to feed himself. Mr Fullwood said that P requires “constant supervisions on a one-to-one basis”.

Mr Fullwood also noted that concerns have been reported relating to the behaviour of P’s family members and their alleged interference with his care. He also stated that P had raised an allegation that he had been abused whilst in hospital. Mr Fullwood told the court that the hospital had imposed restrictions on the family’s contact with P: it’s limited to two hours a day. Mr Fullwood said that the position on the ward (where P is currently being treated) is that the relationship with P’s family has deteriorated. The family has approached a different hospital to take over P’s care. In doing this, the family circumvented the normal procedures which demonstrates the “breakdown” in the relationship between the hospital and P’s family. 

In the matter before the court earlier in November, the Trust were asked to make enquiries as to whether the alternative hospital would accept P. Mr Fullwood stated that the hospital said if the current hospital decides to transfer P, then they would be happy to accept the transfer and care for him. Mr Fullwood told the court that, having initially expressed reservations about the transfer,  the hospital at which P is currently being treated has now  changed its position, and that the Health Board will now support a transfer. He said that as this was a last-minute decision (they had come out of a meeting that morning) the family had not yet been informed.

Mr Fullwood again spoke of the relationship between P’s family and the treating team which he said, “has now irretrievably broken down”. He said that the hospital will continue to provide care for P until he is transferred, and that they have been told that safeguarding will continue after the transfer. The hospital is concerned about how long a transfer will take, but noted that it could potentially take place next week. Mr Fullwood added that they cannot say what the contact arrangements will be at the other hospital, but that they will have to consider safeguarding and P’s background and come to their own decisions. As a result of this development, Mr Fullwood stated that there is no “best interest contest” for Mr Justice Keehan to consider. He ended by saying that P has developed a number of close relationships with the treating staff, and the impact this case has had on the “doctors and nurses is so profound”.

The judge thanked Mr Fullwood and then spoke to Jack Anderson, Counsel representing P, and asked whether he needed time to consider the matter in light of these developments. 

Mr Anderson responded by saying that they had been informed shortly before the hearing, so had already considered the matter, saying that “There is no option to continue the current placemen. There is no best interests decision to take… and unfortunate situation but it’s the situation we are in”. 

The judge addressed Mr Fullwood, stating “I had formed the view that the best course, given where we are… was that it was ultimately in [P’s] best interest to move. So, I am very grateful to you and your clinicians for the decision that has been made this morning”. 

P’s daughter spoke next, she said it was “with a heavy heart” that they have had to reach this conclusion, adding that “now is the time to be focused on my father and his welfare”. 

The judge responded saying “my view is what he [P] would consider most important is to have his family close”, further stating that whatever medical treatment is deemed important “it will not replace the comfort he will gain from having his loved ones around him”. 

The judge also noted “there is no decision for me to make on future treatment” – presumably a reference to the feeding tube – because “that will be a matter for the clinicians in [the hospital] when he is transferred”. He added that he is sure they will consider matters in close consultation with the family. 

P’s wife spoke next. She agreed with the decision that had been made to move P to another hospital, saying “I am grateful”. A close family friend of P echoed this sentiment, saying “I would like to add my gratitude” to both the judge and those that had made the decision to allow a transfer for P. She said, “I am confident that [P] is at the centre of this decision and I am grateful that he will have the support of his family”.

Talking about the framing of the order, Mr Fullwood proposed that the order includes a recital of the Judge’s indication which would help ensure that the transfer of P to a new hospital goes as smoothly as possible, which was something the hospital is keen to ensure. He told the judge that a short order will be sent to him today. 

The judge concluded the hearing by saying “I am very grateful to everybody” adding “it’s unfortunate we’ve reached the need for legal proceedings, but I am comforted that the right decision will be made for [P]”. 

Reflection 

This case was particularly interesting to me in relation both to transparency, and in relation to the substantive matter of the hearing. 

Transparency Matters

First, although I sent a request for the link on the morning of the hearing, I did not receive a response until after the hearing had concluded. Fortunately, Jenny Kitzinger (who was also observing and had already received the link) was able to share her link after requesting permission from the court to do so. There may have been others hoping to observe who weren’t able to benefit from Jenny’s help. Without it, I would have missed the hearing.

Second, I emailed both Adam Fullwood, Counsel for the Trust, and Jack Anderson, Counsel representing P, before the hearing began, asking for their position statements but have not received either. (Nor have I received a Transparency Order.)

Third, and much more positively, I was very pleased that the hearing opened with an introductory summary by Adam Fullwood, Counsel for the Trust, “as the former Vice President encouraged.  After reading the blog by Amy and Celia (‘Best interests, hospital transfer and a feeding tube: How open justice fails without access to court documents’) I was aware that an introduction to the case had not been provided at the previous hearing in this case. As an observer, I am always grateful when an introductory summary is provided as it helps me to follow the hearing. Beyond this, it contributes to the development of transparency in the Court of Protection.  

Mr Fullwood’s reference to the former Vice President’s encouragement of a summary is a reference to this letter which says that “striving to achieve a transparent process in the Court of Protection, whilst sitting “remotely”, remains an important objective”. As a result, he wrote:

“I should like to make a small practical suggestion to improve access to the business of the Court when press or other members of the public join a virtual hearing. Whilst the judge and the lawyers will have read the papers and be able to move quickly to engage with the identified issues, those who are present as observers will often find it initially difficult fully to grasp what the case is about. I think it would be helpful, for a variety of reasons, if the applicant’s advocate began the case with a short opening helping to place the identified issues in some context.”

An introductory summary provides necessary context about the case, helping observers understand the issues at hand. It helps observers to understand the legal proceedings, the parties involved and the main elements of discussion, as well as giving background to P themselves. Furthermore, it contributes to the development of transparency by ensuring that observers who may not have had prior knowledge of the case can follow the hearing effectively, helping to facilitate an informed observation. As a PhD student studying media representations of end-of-life decisions, having this context and information greatly helps me follow the hearing and discussions, and it helps enhance my ability to analyse and contextualise these cases within the broader scope of my research. 

The substantive Order

As it turned out, there was no best interest decision for the judge to consider in this hearing, but it seemed to me that despite the hospital’s decision to support the transfer of P to another hospital being presented as a happy conclusion, there were some underlying hesitations and concerns. Issues relating to the safeguarding of P, the behaviour of the family as well as comments made as to how P had formed close relationships with members of his treating team were present throughout the hearing. 

These issues and concerns highlighted some of the complexities in this case that were somewhat overshadowed by the ultimate, and unanimous, decision to move P to a different hospital. However, it did seem interesting to me that the judge stated that, given the circumstances, even before the Trust changing its mind, he was already of the view that moving P would have been the best decision. Despite the concerns raised about the family, the judge seemed sure that “what he [P] would consider most important is to have his family close”. 

As was noted in the previous blog, “bubbling just under the surface of this hearing – and absolutely fundamental to the case as a whole – is the question of whether or not P should receive clinically assisted nutrition and hydration”.

All in all, I was left with a feeling of slight unease after this hearing. These persistent undercurrents suggest, at least to me, that perhaps there are some unresolved issues in this case despite the seemingly unanimous resolution. 

Rhiannon Snaith is an ESRC funded PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on media representations of decisions about life-sustaining treatment, specifically for those without the capacity to make such decisions for themselves. She has written several blogs for the Project. You can learn more about her work by checking out her academic profile and her Twitter profile.

Best interests, hospital transfer and a feeding tube: How open justice fails without access to court documents

By Amy Dadarria and Celia Kitzinger, 30 November 2023

Editorial Note: Amy (a law student) and Celia (a non-legal public observer) both observed this hearing but only Celia was sent the parties’ position statements – and there was no opening summary.  Amy’s blog contribution (below) was written on the basis of what she observed in court alone, and shows how opaque “open justice” can be to observers denied access to background information and court documentation.  Open justice means much more than just letting  observers into the courtroom. It should include an introductory summary and, ideally, position statements which are relied upon as ‘shared information’ by everyone in the court. Compare Amy’s and Celia’s posts below to see what a difference access to court documents can make. As Amy comments in her postscript, “This really illustrates the problems of so-called ‘open justice’ without access to court documentation”.

Transferring P from one hospital to another: Amy Dadarria

My engagement with the Court of Protection started with personal experience. Throughout the ten years I supported a family member who became a “P”, my perception of the COP changed from an adversarial view to one of admiration and respect for way in which extremely sensitive matters are decided on behalf of vulnerable adults who lack mental capacity to make decisions in their own best interests.  As a result,  following the death of P, I decided to make a career change and pursue a legal career in the Court of Protection field to assist lay people like me to navigate the – sometimes bewildering – underlying law, principles and practices of the Court and affiliated government bodies. I completed a postgraduate Graduate Diploma in Law course and will be starting the Legal Practice Course in January 2024. 

I’ve observed 13 hearings in the COP – and tried but failed to observe 6 others.  It’s not always straightforward.  

Earlier in the weeek, I had tried to observe a case in Nottingham County court, where there was a fair amount of detail provided as to what the case  was about.  However, I was informed by the court staff on the morning of the listed hearing that the hearing had been vacated.  This is not an uncommon experience, but it means that I am unlikely to be able to  choose another hearing to observe on the same day due to the requirement of submitting observation requests in advance.  

I’ve generally found hearings at First Avenue House and at the Royal Courts of Justice to be much easier to get access to, so when I saw a hearing (COP 14173602) on 24th November 2023 listed in the RCJ (remotely) before Keehan J, I sent in my request to observe it.  I emailed the RCJ on the evening of the day before. At 9:50am on the morning of the hearing, I received the Teams link for a 10am start and had no problem accessing the hearing. 

The Observer wiki page on the Open Justice Court of Protection Project website explains that before the hearing is opened, a public observer may be asked by court staff to turn their microphone and camera on to confirm their name and that they can hear and see the court, after which the microphone and video must be turned off to be effectively invisible for the remainder the hearing. That’s actually what’s happened for every hearing I have managed to access, except for this one.  In one case (only), I was even subject to a rather uncomfortable extended inquiry as to the particular reasons for my interest in the case in question and the parties were asked whether they had any objection to my presence (they didn’t fortunately).  

In this case, though, there was no acknowledgement at all of my presence in the hearing, despite the fact that that the barrister who opened the case noted the presence of two other public observers  (Celia Kitzinger and another law student): he mentioned their names to the court and asked the judge if there were any objections to sending them Position Statement (as both, I think, had requested). 

Perhaps in this case, my attendance was simply overlooked.

Despite the presence of three observers – two of whom were definitely known to the court – this hearing was not a great example of open justice.  There was no case summary presented as recommended by Mr Justice Hayden, formerly Vice-President of the Court of Protection, which meant I wasn’t sure of the facts of this case. And although I emailed both counsel representing P (Jack Anderson) and counsel for the Health Board (Adam Fullwood) requesting their Position Statements,  I received no reply from either.

Without any documentation pertaining to the case, I can only submit my general observations of what I understood to be the matter before the court. 

I gathered the case was about an elderly gentleman currently being cared for at a hospital which is far from the family who wish to be near him as he is, in the words of the judge “reaching the end of his days”.  

At no point did I ascertain that any of the parties present objected to the family’s request to move him  – or at least, not in principle, although there remained outstanding issues of incomplete protocol concerning the transfer authorisation, lack of documentation from the current treating team confirming that such a transfer would not harm P, and issues concerning the strained relationship between the current treating team and the family.

The judge commented that he felt it inappropriate to “pre-judge” the relationship between the family and the treating team. Personally, I thought this commendable since I thought what really mattered was how to overcome the other issues of the lack of compliance with protocol and obtaining documentation authorising the transfer which included agreement from both the current and proposed treating teams.     

The case was adjourned until the following week, to be held as soon as possible given the tenuous health of the gentleman at the centre of the case. I expect that, by then, the parties will be in better position to allow the judge to make a decision.

Clinically assisted nutrition and hydration: Celia Kitzinger

There was no description of P and no mention of the impairment in the functioning of his mind or brain underpinning the lack of capacity he must have been found to have in relation to decision-making about where he lives (or anything else).  It’s really unsatisfactory for observers (and dehumanising for P) for us to be told so little about the person at the centre of the case.  It also creates the unfortunate impression that the court might not be considering P’s position as an individual, from a person-centered perspective.

Since I have (as Amy does not) benefit of the Position Statements (sent by both counsel) I know that P is a retired doctor, now in his 80s, whose impressive and very senior medical career began in Iraq.  He now has dementia, and a few months ago he was admitted to hospital following a fall.  At his current hospital he was recorded as also suffering from delirium.

The issue discussed in court was, as Amy says, almost exclusively the question of whether or not P could be transferred to another hospital.  

Counsel for the Trust said at the beginning of the hearing that the option of transfer to another hospital “hasn’t been offered” and “isn’t an option before the court”.  

But it became clear that the daughter thought differently – and this was known to the lawyers, presumably from pre-hearing discussions and/or from the daughter’s position statement (which I haven’t seen).  She’s a doctor herself, and second respondent in this case (the Health Board is the applicant and P – via his litigation friend –  is the first respondent).  She is unrepresented (i.e. a litigant in person, without a legal team).  “[P’s daughter] says it’s possible and has contacts there”, said Adam Fullwood, “but the Health Board I represent is not aware it’s an option that’s available”.  

This sounded contentious to me – but it also meant that the issue of hospital transfer could not be the basis of the Health Board’s application to court.  You don’t apply to court to move someone to another hospital if you don’t even think that’s an available option.  At this point I fervently wished that the judge had asked for an introductory summary to the hearing – not least because he knew there were (at least) two observers.

The judge asked P’s daughter to explain her view that transfer was an option. It turned out she’d got a WhatsApp message saying that a consultant at the hospital she wants her father moved to was “able and willing to manage his ongoing care”. She’d approached this second hospital she said because of the “complete breakdown in trust and relations” at the current hospital – and also, she said, because of its location, much closer to her brothers and to a close family friend (also in court) considered by her father to be “a second daughter”.

After some discussion about how to get formal confirmation of, and details about, the proposal to move P to the second hospital – it turned out the consultant who’d sent the WhatsApp was on leave for a week – the judge decided to adjourn for 30 minutes to allow this to be explored between the parties.  

When the hearing resumed, Adam Fullwood expressed the view of the Trust and it became clear that correct protocol had not been followed – and that as a doctor herself, P’s daughter had been able (as most of us would not) to shortcut the formal procedures – something the Health Board seemed not too happy about.

“What would normally happen is that the current consultant with the patient under their care would request transfer and send a letter to the potential receiving team, with a summary of the case and the relevant notes. The receiving team then considers all the information before deciding whether or not to accept. If the patient is accepted, they are placed on the ‘repatriation’ list.  In this case the process has been subverted.  There have been meetings with doctors without the medical notes or the medical team being involved. It turns out that actually P was accepted by them on 30th October, but as far as we’re aware he’s not on the repatriation list and we don’t know anything about that.  We are now making enquiries and the process I’ve outlined will then begin.  But we would like to repeat our concerns about whether it’s appropriate to transfer him.  P has become familiar with the current treating team, including the nursing staff.  Mr X, P’s litigation friend, says he has a close relationship with the nurses, including the ward manager: they hold hands and he appears to derive comfort from that.  And there is the issue of the journey and how that might impact on him.  At present the court doesn’t know whether that is an available option and we understand why the court is encouraging exploration of it, but it’s important to make additional submissions”. 

The judge made his views on the matter clear.

“I don’t at this stage think it’s appropriate for me to make any comments on the relations between treating clinicians and the family of P, or make any observations that suggest I’ve predetermined or prejudged the issues.  But with those caveats, I’m sure that if P is reaching the end of his days, he would want to do so surrounded by those he loves, and those who love him, and if transfer to [the new hospital] would facilitate that… then however comfortable he is where he is now, I’m sure that would be his wish.  […]  In those circumstances I would wish to have explored more fully the prospects of his being transferred to [the new hospital] before making a final determination on these issues.  I well understand and appreciate that the Health Board has various protocols and procedures but we are talking about an elderly gentleman ending his life and would hope that all stops were pulled out to ensure he was able to transfer.”

Counsel on behalf of P drew attention to “the risks of transfer as well as the potential benefits”, to which the judge replied “I have little doubt that’s right, but I think I have probably conveyed my provisional view”.

P’s daughter thanked the judge for “exploring this opportunity” saying that a transfer “will give us all the opportunity to spend these days with our father”.  She spoke in a composed, but assertive manner: “In spite of the fact he’s lost 17.9 lbs since losing his NJ tube, he’s still in good spirits, asking about every member of the family, and he’s very sad when we are asked to leave.  He is looking at death within a few days at the current hospital.  At [the new hospital], he may have a chance of a longer life.”

The judge replied: “I completely understand all of that. In wishing to have enquiries made about a transfer, I’m not giving any indication of what plan I would endorse in due course. I understand your concern to be surrounded by people he loves at this critical stage in his life”.

Finally, P’s wife (appearing on screen with his daughter) was asked if there was anything she wanted to say: “My husband without the NJ tube is starving and will be starved to death.  He’s not eating – or hardly eating at all.  Any chance that we save his life, we should be very grateful, Your Honour”.  

The hearing was to be delayed until “next week” and it’s provisionally listed for a full day hearing.

The Position Statements

Bubbling just under the surface of this hearing – and absolutely fundamental to the case as a whole – is the question of whether or not P should receive clinically assisted nutrition and hydration. 

This is made clear in the Position Statements, which I received and Amy did not.

He’s a physically very frail 85-year-old man with severe cognitive impairment due to moderate to severe dementia and chronic and severe delirium.  

He can swallow a normal diet but adamantly refuses to do so (on the whole).   

When P was first admitted to hospital in July 2023, he was receiving nutrition and hydration through an NJ tube.  The documentation says that he “presented with regular episodes of agitation and aggression towards nursing staff”. In order to stop him pulling out his tube, “1:1 supervision was required and mittens had to be placed over his hands”. 

Since mid-October, clinically assisted nutrition and hydration has no longer been given.

Cessation of clinically assisted nutrition and hydration is contrary to the wishes of P’s daughter.  But it seems to be what P himself wants – at least according to the Position Statements I’ve seen.  

Although P has been assessed as lacking capacity to make decisions about his medical treatment, nursing notes record that he has strong views. When asked a few weeks ago if he wants a feeding tube, he said “No, I don’t want it”.  When asked what he would like to happen, he said, “I want to die”. Since removal of the NJ tube, he has accepted limited amounts of food and drink and “best results are usually achieved if P is allowed to choose to eat in his own time with minimal interference.  Attempts to press him to eat result in him getting upset”.   When asked if he would like to eat when he felt like it, he said “exactly”.

Family members have asked for CANH support to allow further time for P to take and respond to anti-depressant medication: he’s now had 4 weeks of treatment which has apparently made no difference. 

The Trust view is that, although there is no direct evidence as to what P would have wanted in the situation he now finds himself in, there is evidence that P is someone who has always enjoyed freedom and control over his life, and wishes to continue to do so. He’s regularly resistant to interventions and is reported to be calmer, less agitated and happier without the NJ tube. Being given more control over his day-to-day life seems to have a positive effect on his mood.  The Trust says that “requiring P to undergo forced eating with restraint and supervision is the antithesis of freedom, self-determination and autonomy and represents an affront to his personal dignity in the last weeks of his life”.  Their view is that enforced feeding would be contrary to P’s best interests and cause him unnecessary distress. They believe he should receive basic care and be offered food and water to take or not as he chooses. Counsel for P supports that view.

The family (at least those whose views are known) are of the view that clinically assisted nutrition and hydration should be restarted.  This was made particularly clear, in the course of the hearing, by P’s wife, with her closing statement that P is being “starved to death” by the hospital decision not to reinsert the feeding tube.

Visits from his daughter and a family friend have been limited to 2 hours a day “due to safeguarding risks around interfering with care and treatment”. This has included “feeding contrary to instructions which has caused P to choke and otherwise represents a risk to his health and life”.

It’s clear from the position statements that the lawyers expected the hearing to be about the feeding tube.  The position statement for P refers to “the hearing on 24 November 2023 to determine whether it is in his best interests to be provided with clinically assisted nutrition and hydration (CANH) by naso-jejunal tube” (§1).  The position statement from the applicant Health Board says: “this is a final hearing listed to determine whether it is in [P’s] best interest to receive (1) enforced clinically assisted nutrition and hydration (CANH) via a NJ tube along with the required restraints and other measures or (b) to continue with the current regime of allowing P to eat and drink when he wishes with basic supportive care being provided  as required to maintain his comfort”. 

So, I think both barristers must have felt somewhat ambushed by what actually happened –  which was an exclusive focus on whether or not P should be transferred to another hospital (an issue mentioned by the Health Board in their Position Statement as “a supplementary issue” to the main business of the hearing). I can only assume that the daughter believes that transfer to a new hospital will mean reinsertion of the NJ tube.

The disjuncture between the issues addressed in the Position Statement (feeding) and the issues addressed in the hearing (transfer) was presumably unexpected for all parties.  

For an observer without copies of the position statements (and in the absence of an opening summary), this created a misleading impression of the key issues of the case.  

Amy would never have known what was at stake for this family without the information I subsequently conveyed to her via this blog post.  

This isn’t open justice.

Postscript from Amy

Reading Celia’s contribution was revelatory.  I did understand that the Health Board was less than pleased about daughter’s behaviour (who they seemed to imply should have known better, being a medical practitioner herself). But I had no idea there was more to their objections than being cut out of the loop. There are in fact serious medical issues to be addressed. I totally missed the underlying disagreement about clinically assisted nutrition and hydration between the family and the treating team.  What I got was that the daughter had not followed protocol and did not properly engage with the current treating team. Although I detected criticism from the Health Board’s counsel about this circumnavigation of proper procedure, I believed that this was a technicality and that adjournment would enable this misstep to be corrected. I didn’t understand that there was any real resistance to the proposed move, or the disagreement about clinically assisted nutrition and hydration that might underwrite that.   This really illustrates the problems of so-called ‘open justice’ without access to court documentation.

Amy Dadarria was inspired to pursue a legal career in Court of Protection following ten years full time pro bono work as a support worker, citizens’ advocate and litigant in person for a profoundly disabled family member lacking mental capacity to make various decisions. She completed  the PGDL in 2022 and is starting the Legal Practice Course in January 2024. She is on LinkedIn here linkedin.com/in/amydadarria

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 490 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia

The ‘voice’ of P in a s.21A hearing: Reflecting on lost opportunities

By Gill Loomes-Quinn, 24th November 2023

On the afternoon of Monday 6th November 2023, I observed a hearing before Deputy District Judge Weereratne, sitting (remotely) at First Avenue House in London, in the matter of Case No: 14157245 – MG (by her Litigation Friend, the Official Solicitor) v London Borough of Harrow. 

Having emailed the court on the previous evening to request a link to the hearing and a copy of the relevant Transparency Order, I received both of these at 12:01pm. I also emailed counsel for the Official Solicitor (representing P), Ms Rebecca Handcock of Field Court Chambers, after the hearing, requesting a copy of P’s position statement which I received very promptly. The following account is based on my contemporaneous notes from the hearing along with the position statement[1].

The Hearing

The hearing began with the judge inviting counsel for the applicant (‘MG’ by her Litigation Friend, the Official Solicitor) to provide an introductory summary of the case before making submissions – i.e., setting out what the court is asked to do in MG’s best interests. 

The Applicant (Counsel for MG):

The hearing concerned a s.21A MCA 2005 legal challenge brought in respect of a 90-year-old woman (‘MG’). Papers referenced in the position statement indicate that she has cognitive impairment associated with dementia in Alzheimer’s disease (atypical or mixed type), although other DoLS paperwork refers to “undiagnosed dementia” and MG herself does not accept that she has a mental disorder. This is one of several key issues about which there seems to be lack of currently available information or uncertainty in this case. MG is currently residing in a care home and objects to the Deprivation of Liberty Safeguards (DoLS) Standard Authorisation under which she is detained in the home. The position statement indicates that she wishes to return to her own property – about which much fundamental information is currently unavailable; including its precise address, the details of MG’s rights of occupation and of any charges for which she is liable and how these are currently being paid, as well as its suitability in respect of MG’s current access needs. It seems that MG is focused solely on a return to her property (rather than, say, a move to another form of supported accommodation) but that she accepts the possibility of carers visiting her if this were considered necessary. 

            MG was born in Spain but has lived in England for the majority of her life, where she married an English man and seems to have had children, although it is unclear exactly how many children she had. I learned during the hearing that a son and daughter had passed away, but that a nephew had sought to apply for deputyship, being prevented from pursuing this due to the cost. As seems to be a theme in this case currently, little was known about MG herself, with the bundle of documents before the court being described as small – even for a s.21a application “in its infancy”. It was suggested that she may have been moved to the care home following a hospital admission having had little prior involvement with the Local Authority. What does seem to be clear is her objection to the placement in the care home, which is described as “consistent”. 

            A further uncertainty to be resolved concerns MG’s language skills and preferences. It was reported that she has recently been communicating in Spanish, and her fluency in English is one of the issues that needs to be “bottomed out”, as she may prefer to speak Spanish, and this should be offered for the purposes of assessing her capacity. This is one of several reasons given by the Official Solicitor in support of the submission that evidence as to capacity in this case is currently insufficient (as it is unclear whether all practicable steps have been taken to assist MG in participating in the assessment – as required by s.1(3) MCA 2005). Other reasons include uncertainty as to diagnosis (s.2(1) MCA 2005), and uncertainty about the relevant information put to MG, and how she demonstrated an inability to retain, use, or weigh this relevant information in decision-making concerning where she should live (s.3(1) MCA 2005). 

            In respect of what should happen, the Official Solicitor suggests the adoption of a “sequenced approach”, beginning with the ascertaining of MG’s occupation rights to find out if a return home with appropriate care package would be possible, before exploring other forms of care. In the meantime, the Local Authority has been asked how the current placement (the care home) might be made less restrictive (as required by s.1(6) MCA 2005), e.g., by facilitating access to Spanish-speaking or other ‘ex-pat’ activities; although it was emphasised that the Official Solicitor does not “want to presume” as to MG’s preferences. Three third-party disclosure orders were suggested, with the aim of clarifying and augmenting the picture regarding MG’s medical history and current status, from:

  1. The current placement
  2. The GP
  3. The relevant Hospital Trust

There was then discussion regarding an order in draft. The incompleteness of the existing s.49 (MCA 2005) report dealing with the assessment of P’s capacity was outlined, including the absence of key details such as the questions asked of P and whether they had also been offered in Spanish. 

Counsel was mindful of Practice Direction 14e (PD14e) which deals with the ordering and compiling of s.49 reports – noting particularly that there had been, as yet, no contact with the relevant Hospital Trust and it was uncertain whether the Trust would be able to complete a report (in the timescale required). There was also an “anecdotal” understanding that the Trust was currently refusing reports required with no prior notice and an assertion that the Trust was being very affected by the ongoing junior doctors’ strike. Particularly relevant here is Para. 7 of PD14e which states that “wherever practicable”, prior to applying for the court to order a s.49 report, the applicant should “use their best endeavours” to make contact with the relevant person in the Local Authority or Trust to make them aware of the application, its purpose, and any questions or issues to be addressed within the report. 

The position of the Official solicitor was that there was insufficient evidence on file for a final declaration. A pragmatic solution was proposed to the matter of the s.49 report in the form of the appointment of a Special Visitor. In the end, it was suggested in any case that the issue of the s.49 report could be “parked” until further information about MG’s situation was available. 

The Judge:

The judge asked a series of questions of counsel for the Official Solicitor:

Has the solicitor been to visit MG?

Yes, there was a meeting with the instructing solicitor on 18th September 2023.

Are there any instructions based on that meeting?

There was no attendance note. The question about whether MG would prefer to communicate in Spanish was not raised.

At the meeting, did MG say clearly that she wanted to go home?

Yes, and she described her home, her neighbours, and her care needs. 

The judge then indicated that it was possible to proceed on the basis of s.48 MCA 2005 (interim orders and directions), and that it seemed appropriate to have further reports – particularly regarding language preferences. She added that she knew from a previous case that the appointment of a Special Visitor was taking up to 8 weeks. 

The Respondent (Counsel for the Local Authority):

The Local Authority, represented by Vani Chenganna, has no objection to the ordering of a s.49 report. It agrees with the draft order and the measured approach suggested. A referral has been sent for a functional assessment by an occupational therapist, and to look at the suitability of the property (a three-bed rental). Apparently, there have been difficulties in accessing the property. There is also a lack of information about MG’s finances, and a stack of papers and envelopes is visible through the front door of the property.

            There was a question from the judge about the existence of any family. It was here that counsel explained that while MG’s daughter and son had predeceased her, her nephew had previously applied for deputyship but that the cost of this had proved prohibitive. 

The Order:

There followed detailed discussion concerning the contents of the draft order, including details of the DoL Standard Authorisation and the assessment that formed the basis of the reason to believe MG lacked capacity according to s.48 MCA 2005. A condition was to be added to the Standard Authorisation that MG’s current placement should keep a record of her activities and access to the community. There was also consideration of the period of time for which MG’s social services records should be disclosed, with the judge ordering that this should extend to six months prior to her hospital admission – i.e., mid 2021.

The question of whether the nephew should be joined as a party to the proceedings was then addressed – it appeared that while he had not filed the relevant application for this, he would like to be joined as a party. Apparently, he had not expressed a view as to her care needs but would like her to be moved nearer to him. While counsel for the Local Authority had no instructions on this point, it appeared there would be no objection. The judge pointed out that the court did not know about his dealings with his aunt or their relationship and asked for it to be put in the order that he be invited to attend the next hearing. 

Other details to be included in the order covered provision for “rolling disclosure” from the Local Authority within seven days of any scheduled Round Table Meeting (thought to be “more proportionate” than requiring disclosures every month). The evidence required from the Local Authority about MG’s home and its suitability for a possible return was described as a “significant piece of work”, including occupational therapy assessments and those of MG’s finances. A statement of MG’s wishes and feelings was to be contributed by those instructing counsel for the Local Authority; and the question of her preference for communication in English or Spanish was also to be included in the order. The judge also asked if the Local Authority could include a paragraph in evidence concerning the nephew’s views which would likely help the Official Solicitor too. She was told that this “should be fine”. 

The hearing concluded with discussion about the listing of the next hearing (around 25th January), and the court’s agreement to extend the Standard Authorisation to the next hearing. It was agreed that the draft order would be filed by 4pm tomorrow (allowing time for the Official Solicitor to see it). The judge noted the existence and contents of the Transparency Order (which I had received along with the link to access this hearing). The parties then thanked the judge and the hearing concluded at 3.45pm. 

My Reflections

First and foremost, observing this case caused me to reflect on the ways in which the State can become involved in the most private and personal areas of our lives when our mental capacity is questioned. The MCA 2005 provides a framework for such involvement. However, despite the existence of a legal framework in force now for nearly two decades; and the relative predictability of a loss of capacity given factors such as old age and its correlation with mental impairments such as dementia, this case illustrates the reality that for many people, encounters with the State through engagement with mental capacity law are experienced as ‘sudden’ – e.g., following a hospital admission. 

I am struck that the uncertainty and lack of information characterising many such encounters may be avoided or mitigated through mechanisms provided in this same legal framework – by the taking of steps such as appointing someone (or people) one trusts to act in one’s best interests via a Lasting Power of Attorney (LPA); or making an Advance Decision to Refuse Treatment (ADRT), along with an Advance Statement recording your values and care preferences for the future. I do not know whether MG had made an ADRT (and it does not seem to be relevant to the matter before the court here). And it is, of course, unclear whether the apparent absence of an LPA was a conscious decision or an omission on MG’s part. However, an Advance Statement, while not legally binding, could have provided useful guidance to those now responsible for making decisions concerning her residence and care.

I have written and spoken elsewhere about the roles of advance decision-making in preparing for a future loss of capacity. Observing this case has caused me to reflect again on how utilising such advance processes may have enabled access to key information for those professionals and family members now responsible for supporting MG – representing an opportunity now lost for her (previously capacitous) ‘voice’ to speak to the issues with which she is now faced. It was clear throughout the hearing that the court and the parties involved in the case have considerable concern for ensuring that MG’s ‘voice’ is represented throughout the proceedings to the greatest extent possible. Reference to language preferences and the foregrounding of MG’s stated preference to return to her property are indicative of this. But it seems that this case may represent an example of a failed opportunity for advance planning to place the ‘voice’ of a person deemed to lack capacity more centrally in decisions affecting their life. 

Gill Loomes-Quinn is co-director of the Open Justice Court of Protection Project. Her PhD research (a socio-legal study of the Mental Capacity Act 2005 and its impact on the “voice” of disabled people) included an ethnography of the Court of Protection which sparked her passion for open justice. Gill tweets @GillLoomesQuinn. 

[1] Please note that while my notes are as accurate as possible, the recording of court proceedings is prohibited. Any quotes included here are therefore not necessarily verbatim.