Promoting Open Justice in the Court of Protection

“Private” Hearings: An Audit

By Celia Kitzinger, 1 February 2024

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

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

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

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

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

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

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

In summary:

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

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

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

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

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

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

1. Auditing PRIVATE hearings

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

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

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

2. “Correctly listed” PRIVATE hearings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here are some examples.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4. Reflections on the way forward

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

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

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

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

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

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

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 500 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia

Two law students’ first observation of a COP hearing

By Kei Yong and Isabella Treston, 31 January 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A disappointing failure of open justice: DJ OmoRegie says no

By George Palmer, 29th January 2024

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

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

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

Here’s how it appeared in the listings.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

19 January 09:10am

Dear DJ OmoRegie

Request to vary Transparency Order COP 13887885

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

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

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

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

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

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

Thank you for your attention to this matter.

Yours sincerely

Celia Kitzinger

“Unusual restrictions” for a 17-year-old

By Claire Martin, 25th January 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

by Daniel Clark, 22nd January 2024

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

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

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

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

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

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

Matters before the court

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

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

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

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

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

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

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

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

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

Transparency matters: Naming Wakefield Metropolitan District Council

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

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

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

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

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

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

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

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

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

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

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

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

Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He tweets @DanielClark132.

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

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

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

By Ian Brownhill, 17 January 2024

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

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

What is self-neglect?

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

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

How significant is the issue?

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

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

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

Mental Capacity and self-neglect

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

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

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

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

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

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

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

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

Self-neglect and powers of entry

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

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

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

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

An awful state

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

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

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

Footnotes

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

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

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

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

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

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

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

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

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

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

Nearly a year later, the matter is still unresolved.

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

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

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

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

The hearing

The ICB was represented by Rebecca Blackwood.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 (5^th – 7^th 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 8^th 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 5^th December 2023 – which was wholly devoted to the matter of the Deputyship – but was unable to attend during the afternoon. On 6^th 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 7^th 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 17^th 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 19^th 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.

^[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.}

1. Auditing PRIVATE hearings

2. “Correctly listed” PRIVATE hearings

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

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

4. Reflections on the way forward

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Background to the hearing

Deputyship: The issue before the court

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

How to do statutory interpretation

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

Construing the Act as a whole

External aids to statutory interpretation

Judicial Decision

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