This case (COP 14173602) was heard, remotely, before Mr Justice Keehan on Thursday 30th November 2023.
In the introduction by Mr Fullwood, we were told that P is a man in his eighties from Iraq who had previously worked as a doctor. A few months ago, P suffered a fall and was admitted to hospital. We were told that there was some evidence of cognitive difficulties, and the hospital caring for P had also recorded that he has suffered with delirium. P has in the past also received an enforced NJ tube (nasojejunal tube), which is used for feeding and had had mittens (which stop a patient pulling out tubes) and had required 1-to-1 supervision with feeding. He could also become “agitated, unsettled and resistant to interventions”. However, he now does not have a ‘feeding tube’ and is currently being supported to make his own decisions to feed himself. Mr Fullwood said that P requires “constant supervisions on a one-to-one basis”.
Mr Fullwood also noted that concerns have been reported relating to the behaviour of P’s family members and their alleged interference with his care. He also stated that P had raised an allegation that he had been abused whilst in hospital. Mr Fullwood told the court that the hospital had imposed restrictions on the family’s contact with P: it’s limited to two hours a day. Mr Fullwood said that the position on the ward (where P is currently being treated) is that the relationship with P’s family has deteriorated. The family has approached a different hospital to take over P’s care. In doing this, the family circumvented the normal procedures which demonstrates the “breakdown” in the relationship between the hospital and P’s family.
In the matter before the court earlier in November, the Trust were asked to make enquiries as to whether the alternative hospital would accept P. Mr Fullwood stated that the hospital said if the current hospital decides to transfer P, then they would be happy to accept the transfer and care for him. Mr Fullwood told the court that, having initially expressed reservations about the transfer, the hospital at which P is currently being treated has now changed its position, and that the Health Board will now support a transfer. He said that as this was a last-minute decision (they had come out of a meeting that morning) the family had not yet been informed.
Mr Fullwood again spoke of the relationship between P’s family and the treating team which he said, “has now irretrievably broken down”. He said that the hospital will continue to provide care for P until he is transferred, and that they have been told that safeguarding will continue after the transfer. The hospital is concerned about how long a transfer will take, but noted that it could potentially take place next week. Mr Fullwood added that they cannot say what the contact arrangements will be at the other hospital, but that they will have to consider safeguarding and P’s background and come to their own decisions. As a result of this development, Mr Fullwood stated that there is no “best interest contest” for Mr Justice Keehan to consider. He ended by saying that P has developed a number of close relationships with the treating staff, and the impact this case has had on the “doctors and nurses is so profound”.
The judge thanked Mr Fullwood and then spoke to Jack Anderson, Counsel representing P, and asked whether he needed time to consider the matter in light of these developments.
Mr Anderson responded by saying that they had been informed shortly before the hearing, so had already considered the matter, saying that “There is no option to continue the current placemen. There is no best interests decision to take… and unfortunate situation but it’s the situation we are in”.
The judge addressed Mr Fullwood, stating “I had formed the view that the best course, given where we are… was that it was ultimately in [P’s] best interest to move. So, I am very grateful to you and your clinicians for the decision that has been made this morning”.
P’s daughter spoke next, she said it was “with a heavy heart” that they have had to reach this conclusion, adding that “now is the time to be focused on my father and his welfare”.
The judge responded saying “my view is what he [P] would consider most important is to have his family close”, further stating that whatever medical treatment is deemed important “it will not replace the comfort he will gain from having his loved ones around him”.
The judge also noted “there is no decision for me to make on future treatment” – presumably a reference to the feeding tube – because “that will be a matter for the clinicians in [the hospital] when he is transferred”. He addedthat he is sure they will consider matters in close consultation with the family.
P’s wife spoke next. She agreed with the decision that had been made to move P to another hospital, saying “I am grateful”. A close family friend of P echoed this sentiment, saying “I would like to add my gratitude” to both the judge and those that had made the decision to allow a transfer for P. She said, “I am confident that [P] is at the centre of this decision and I am grateful that he will have the support of his family”.
Talking about the framing of the order, Mr Fullwood proposed that the order includes a recital of the Judge’s indication which would help ensure that the transfer of P to a new hospital goes as smoothly as possible, which was something the hospital is keen to ensure. He told the judge that a short order will be sent to him today.
The judge concluded the hearing by saying “I am very grateful to everybody” adding “it’s unfortunate we’ve reached the need for legal proceedings, but I am comforted that the right decision will be made for [P]”.
Reflection
This case was particularly interesting to me in relation both to transparency, and in relation to the substantive matter of the hearing.
Transparency Matters
First, although I sent a request for the link on the morning of the hearing, I did not receive a response until after the hearing had concluded. Fortunately, Jenny Kitzinger (who was also observing and had already received the link) was able to share her link after requesting permission from the court to do so. There may have been others hoping to observe who weren’t able to benefit from Jenny’s help. Without it, I would have missed the hearing.
Second, I emailed both Adam Fullwood, Counsel for the Trust, and Jack Anderson, Counsel representing P, before the hearing began, asking for their position statements but have not received either. (Nor have I received a Transparency Order.)
Third, and much more positively, I was very pleased that the hearing opened with an introductory summary by Adam Fullwood, Counsel for the Trust, “as the former Vice President encouraged. After reading the blog by Amy and Celia (‘Best interests, hospital transfer and a feeding tube: How open justice fails without access to court documents’) I was aware that an introduction to the case had not been provided at the previous hearing in this case. As an observer, I am always grateful when an introductory summary is provided as it helps me to follow the hearing. Beyond this, it contributes to the development of transparency in the Court of Protection.
Mr Fullwood’s reference to the former Vice President’s encouragement of a summary is a reference to this letter which says that “striving to achieve a transparent process in the Court of Protection, whilst sitting “remotely”, remains an important objective”. As a result, he wrote:
“I should like to make a small practical suggestion to improve access to the business of the Court when press or other members of the public join a virtual hearing. Whilst the judge and the lawyers will have read the papers and be able to move quickly to engage with the identified issues, those who are present as observers will often find it initially difficult fully to grasp what the case is about. I think it would be helpful, for a variety of reasons, if the applicant’s advocate began the case with a short opening helping to place the identified issues in some context.”
An introductory summary provides necessary context about the case, helping observers understand the issues at hand. It helps observers to understand the legal proceedings, the parties involved and the main elements of discussion, as well as giving background to P themselves. Furthermore, it contributes to the development of transparency by ensuring that observers who may not have had prior knowledge of the case can follow the hearing effectively, helping to facilitate an informed observation. As a PhD student studying media representations of end-of-life decisions, having this context and information greatly helps me follow the hearing and discussions, and it helps enhance my ability to analyse and contextualise these cases within the broader scope of my research.
The substantive Order
As it turned out, there was no best interest decision for the judge to consider in this hearing, but it seemed to me that despite the hospital’s decision to support the transfer of P to another hospital being presented as a happy conclusion, there were some underlying hesitations and concerns. Issues relating to the safeguarding of P, the behaviour of the family as well as comments made as to how P had formed close relationships with members of his treating team were present throughout the hearing.
These issues and concerns highlighted some of the complexities in this case that were somewhat overshadowed by the ultimate, and unanimous, decision to move P to a different hospital. However, it did seem interesting to me that the judge stated that, given the circumstances, even before the Trust changing its mind, he was already of the view that moving P would have been the best decision. Despite the concerns raised about the family, the judge seemed sure that “what he [P] would consider most important is to have his family close”.
As was noted in the previous blog, “bubbling just under the surface of this hearing – and absolutely fundamental to the case as a whole – is the question of whether or not P should receive clinically assisted nutrition and hydration”.
All in all, I was left with a feeling of slight unease after this hearing. These persistent undercurrents suggest, at least to me, that perhaps there are some unresolved issues in this case despite the seemingly unanimous resolution.
Rhiannon Snaith is an ESRC funded PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on media representations of decisions about life-sustaining treatment, specifically for those without the capacity to make such decisions for themselves. She has written several blogs for the Project. You can learn more about her work by checking out her academic profile and her Twitter profile.
By Amy Dadarria and Celia Kitzinger, 30 November 2023
Editorial Note: Amy (a law student) and Celia (a non-legal public observer) both observed this hearing but only Celia was sent the parties’ position statements – and there was no opening summary. Amy’s blog contribution (below) was written on the basis of what she observed in court alone, and shows how opaque “open justice” can be to observers denied access to background information and court documentation. Open justice means much more than just letting observers into the courtroom. It should include an introductory summary and, ideally, position statements which are relied upon as ‘shared information’ by everyone in the court.Compare Amy’s and Celia’s posts below to see what a difference access to court documents can make. As Amy comments in her postscript, “This really illustrates the problems of so-called ‘open justice’ without access to court documentation”.
Transferring P from one hospital to another: Amy Dadarria
My engagement with the Court of Protection started with personal experience. Throughout the ten years I supported a family member who became a “P”, my perception of the COP changed from an adversarial view to one of admiration and respect for way in which extremely sensitive matters are decided on behalf of vulnerable adults who lack mental capacity to make decisions in their own best interests. As a result, following the death of P, I decided to make a career change and pursue a legal career in the Court of Protection field to assist lay people like me to navigate the – sometimes bewildering – underlying law, principles and practices of the Court and affiliated government bodies. I completed a postgraduate Graduate Diploma in Law course and will be starting the Legal Practice Course in January 2024.
I’ve observed 13 hearings in the COP – and tried but failed to observe 6 others. It’s not always straightforward.
Earlier in the weeek, I had tried to observe a case in Nottingham County court, where there was a fair amount of detail provided as to what the case was about. However, I was informed by the court staff on the morning of the listed hearing that the hearing had been vacated. This is not an uncommon experience, but it means that I am unlikely to be able to choose another hearing to observe on the same day due to the requirement of submitting observation requests in advance.
I’ve generally found hearings at First Avenue House and at the Royal Courts of Justice to be much easier to get access to, so when I saw a hearing (COP 14173602)on 24th November 2023 listed in the RCJ (remotely) before Keehan J, I sent in my request to observe it. I emailed the RCJ on the evening of the day before. At 9:50am on the morning of the hearing, I received the Teams link for a 10am start and had no problem accessing the hearing.
The Observer wiki page on the Open Justice Court of Protection Project website explains that before the hearing is opened, a public observer may be asked by court staff to turn their microphone and camera on to confirm their name and that they can hear and see the court, after which the microphone and video must be turned off to be effectively invisible for the remainder the hearing. That’s actually what’s happened for every hearing I have managed to access, except for this one. In one case (only), I was even subject to a rather uncomfortable extended inquiry as to the particular reasons for my interest in the case in question and the parties were asked whether they had any objection to my presence (they didn’t fortunately).
In this case, though, there was no acknowledgement at all of my presence in the hearing, despite the fact that that the barrister who opened the case noted the presence of two other public observers (Celia Kitzinger and another law student): he mentioned their names to the court and asked the judge if there were any objections to sending them Position Statement (as both, I think, had requested).
Perhaps in this case, my attendance was simply overlooked.
Despite the presence of three observers – two of whom were definitely known to the court – this hearing was not a great example of open justice. There was no case summary presented as recommended by Mr Justice Hayden, formerly Vice-President of the Court of Protection, which meant I wasn’t sure of the facts of this case. And although I emailed both counsel representing P (Jack Anderson) and counsel for the Health Board (Adam Fullwood) requesting their Position Statements, I received no reply from either.
Without any documentation pertaining to the case, I can only submit my general observations of what I understood to be the matter before the court.
I gathered the case was about an elderly gentleman currently being cared for at a hospital which is far from the family who wish to be near him as he is, in the words of the judge “reaching the end of his days”.
At no point did I ascertain that any of the parties present objected to the family’s request to move him – or at least, not in principle, although there remained outstanding issues of incomplete protocol concerning the transfer authorisation, lack of documentation from the current treating team confirming that such a transfer would not harm P, and issues concerning the strained relationship between the current treating team and the family.
The judge commented that he felt it inappropriate to “pre-judge” the relationship between the family and the treating team. Personally, I thought this commendable since I thought what really mattered was how to overcome the other issues of the lack of compliance with protocol and obtaining documentation authorising the transfer which included agreement from both the current and proposed treating teams.
The case was adjourned until the following week, to be held as soon as possible given the tenuous health of the gentleman at the centre of the case. I expect that, by then, the parties will be in better position to allow the judge to make a decision.
Clinically assisted nutrition and hydration: Celia Kitzinger
There was no description of P and no mention of the impairment in the functioning of his mind or brain underpinning the lack of capacity he must have been found to have in relation to decision-making about where he lives (or anything else). It’s really unsatisfactory for observers (and dehumanising for P) for us to be told so little about the person at the centre of the case. It also creates the unfortunate impression that the court might not be considering P’s position as an individual, from a person-centered perspective.
Since I have (as Amy does not) benefit of the Position Statements (sent by both counsel) I know that P is a retired doctor, now in his 80s, whose impressive and very senior medical career began in Iraq. He now has dementia, and a few months ago he was admitted to hospital following a fall. At his current hospital he was recorded as also suffering from delirium.
The issue discussed in court was, as Amy says, almost exclusively the question of whether or not P could be transferred to another hospital.
Counsel for the Trust said at the beginning of the hearing that the option of transfer to another hospital “hasn’t been offered” and “isn’t an option before the court”.
But it became clear that the daughter thought differently – and this was known to the lawyers, presumably from pre-hearing discussions and/or from the daughter’s position statement (which I haven’t seen). She’s a doctor herself, and second respondent in this case (the Health Board is the applicant and P – via his litigation friend – is the first respondent). She is unrepresented (i.e. a litigant in person, without a legal team). “[P’s daughter] says it’s possible and has contacts there”, said Adam Fullwood, “but the Health Board I represent is not aware it’s an option that’s available”.
This sounded contentious to me – but it also meant that the issue of hospital transfer could not be the basis of the Health Board’s application to court. You don’t apply to court to move someone to another hospital if you don’t even think that’s an available option. At this point I fervently wished that the judge had asked for an introductory summary to the hearing – not least because he knew there were (at least) two observers.
The judge asked P’s daughter to explain her view that transfer was an option. It turned out she’d got a WhatsApp message saying that a consultant at the hospital she wants her father moved to was “able and willing to manage his ongoing care”. She’d approached this second hospital she said because of the “complete breakdown in trust and relations” at the current hospital – and also, she said, because of its location, much closer to her brothers and to a close family friend (also in court) considered by her father to be “a second daughter”.
After some discussion about how to get formal confirmation of, and details about, the proposal to move P to the second hospital – it turned out the consultant who’d sent the WhatsApp was on leave for a week – the judge decided to adjourn for 30 minutes to allow this to be explored between the parties.
When the hearing resumed, Adam Fullwood expressed the view of the Trust and it became clear that correct protocol had not been followed – and that as a doctor herself, P’s daughter had been able (as most of us would not) to shortcut the formal procedures – something the Health Board seemed not too happy about.
“What would normally happen is that the current consultant with the patient under their care would request transfer and send a letter to the potential receiving team, with a summary of the case and the relevant notes. The receiving team then considers all the information before deciding whether or not to accept. If the patient is accepted, they are placed on the ‘repatriation’ list. In this case the process has been subverted. There have been meetings with doctors without the medical notes or the medical team being involved. It turns out that actually P was accepted by them on 30th October, but as far as we’re aware he’s not on the repatriation list and we don’t know anything about that. We are now making enquiries and the process I’ve outlined will then begin. But we would like to repeat our concerns about whether it’s appropriate to transfer him. P has become familiar with the current treating team, including the nursing staff. Mr X, P’s litigation friend, says he has a close relationship with the nurses, including the ward manager: they hold hands and he appears to derive comfort from that. And there is the issue of the journey and how that might impact on him. At present the court doesn’t know whether that is an available option and we understand why the court is encouraging exploration of it, but it’s important to make additional submissions”.
The judge made his views on the matter clear.
“I don’t at this stage think it’s appropriate for me to make any comments on the relations between treating clinicians and the family of P, or make any observations that suggest I’ve predetermined or prejudged the issues. But with those caveats, I’m sure that if P is reaching the end of his days, he would want to do so surrounded by those he loves, and those who love him, and if transfer to [the new hospital] would facilitate that… then however comfortable he is where he is now, I’m sure that would be his wish. […] In those circumstances I would wish to have explored more fully the prospects of his being transferred to [the new hospital] before making a final determination on these issues. I well understand and appreciate that the Health Board has various protocols and procedures but we are talking about an elderly gentleman ending his life and would hope that all stops were pulled out to ensure he was able to transfer.”
Counsel on behalf of P drew attention to “the risks of transfer as well as the potential benefits”, to which the judge replied “I have little doubt that’s right, but I think I have probablyconveyed my provisional view”.
P’s daughter thanked the judge for “exploring this opportunity” saying that a transfer “will give us all the opportunity to spend these days with our father”. She spoke in a composed, but assertive manner: “In spite of the fact he’s lost 17.9 lbs since losing his NJ tube, he’s still in good spirits, asking about every member of the family, and he’s very sad when we are asked to leave. He is looking at death within a few days at the current hospital. At [the new hospital], he may have a chance of a longer life.”
The judge replied: “I completely understand all of that. In wishing to have enquiries made about a transfer, I’m not giving any indication of what plan I would endorse in due course. I understand your concern to be surrounded by people he loves at this critical stage in his life”.
Finally, P’s wife (appearing on screen with his daughter) was asked if there was anything she wanted to say: “My husband without the NJ tube is starving and will be starved to death. He’s not eating – or hardly eating at all. Any chance that we save his life, we should be very grateful, Your Honour”.
The hearing was to be delayed until “next week” and it’s provisionally listed for a full day hearing.
The Position Statements
Bubbling just under the surface of this hearing – and absolutely fundamental to the case as a whole – is the question of whether or not P should receive clinically assisted nutrition and hydration.
This is made clear in the Position Statements, which I received and Amy did not.
He’s a physically very frail 85-year-old man with severe cognitive impairment due to moderate to severe dementia and chronic and severe delirium.
He can swallow a normal diet but adamantly refuses to do so (on the whole).
When P was first admitted to hospital in July 2023, he was receiving nutrition and hydration through an NJ tube. The documentation says that he “presented with regular episodes of agitation and aggression towards nursing staff”. In order to stop him pulling out his tube, “1:1 supervision was required and mittens had to be placed over his hands”.
Since mid-October, clinically assisted nutrition and hydration has no longer been given.
Cessation of clinically assisted nutrition and hydration is contrary to the wishes of P’s daughter. But it seems to be what P himself wants – at least according to the Position Statements I’ve seen.
Although P has been assessed as lacking capacity to make decisions about his medical treatment, nursing notes record that he has strong views. When asked a few weeks ago if he wants a feeding tube, he said “No, I don’t want it”. When asked what he would like to happen, he said, “I want to die”. Since removal of the NJ tube, he has accepted limited amounts of food and drink and “best results are usually achieved if P is allowed to choose to eat in his own time with minimal interference. Attempts to press him to eat result in him getting upset”. When asked if he would like to eat when he felt like it, he said “exactly”.
Family members have asked for CANH support to allow further time for P to take and respond to anti-depressant medication: he’s now had 4 weeks of treatment which has apparently made no difference.
The Trust view is that, although there is no direct evidence as to what P would have wanted in the situation he now finds himself in, there is evidence that P is someone who has always enjoyed freedom and control over his life, and wishes to continue to do so. He’s regularly resistant to interventions and is reported to be calmer, less agitated and happier without the NJ tube. Being given more control over his day-to-day life seems to have a positive effect on his mood. The Trust says that “requiring P to undergo forced eating with restraint and supervision is the antithesis of freedom, self-determination and autonomy and represents an affront to his personal dignity in the last weeks of his life”. Their view is that enforced feeding would be contrary to P’s best interests and cause him unnecessary distress. They believe he should receive basic care and be offered food and water to take or not as he chooses. Counsel for P supports that view.
The family (at least those whose views are known) are of the view that clinically assisted nutrition and hydration should be restarted. This was made particularly clear, in the course of the hearing, by P’s wife, with her closing statement that P is being “starved to death” by the hospital decision not to reinsert the feeding tube.
Visits from his daughter and a family friend have been limited to 2 hours a day “due to safeguarding risks around interfering with care and treatment”. This has included “feeding contrary to instructions which has caused P to choke and otherwise represents a risk to his health and life”.
It’s clear from the position statements that the lawyers expected the hearing to be about the feeding tube. The position statement for P refers to “the hearing on 24 November 2023 to determine whether it is in his best interests to be provided with clinically assisted nutrition and hydration (CANH) by naso-jejunal tube” (§1). The position statement from the applicant Health Board says: “this is a final hearing listed to determine whether it is in [P’s] best interest to receive (1) enforced clinically assisted nutrition and hydration (CANH) via a NJ tube along with the required restraints and other measures or (b) to continue with the current regime of allowing P to eat and drink when he wishes with basic supportive care being provided as required to maintain his comfort”.
So, I think both barristers must have felt somewhat ambushed by what actually happened – which was an exclusive focus on whether or not P should be transferred to another hospital (an issue mentioned by the Health Board in their Position Statement as “a supplementary issue” to the main business of the hearing). I can only assume that the daughter believes that transfer to a new hospital will mean reinsertion of the NJ tube.
The disjuncture between the issues addressed in the Position Statement (feeding) and the issues addressed in the hearing (transfer) was presumably unexpected for all parties.
For an observer without copies of the position statements (and in the absence of an opening summary), this created a misleading impression of the key issues of the case.
Amy would never have known what was at stake for this family without the information I subsequently conveyed to her via this blog post.
This isn’t open justice.
Postscript from Amy
Reading Celia’s contribution was revelatory. I did understand that the Health Board was less than pleased about daughter’s behaviour (who they seemed to imply should have known better, being a medical practitioner herself). But I had no idea there was more to their objections than being cut out of the loop. There are in fact serious medical issues to be addressed. I totally missed the underlying disagreement about clinically assisted nutrition and hydration between the family and the treating team. What I got was that the daughter had not followed protocol and did not properly engage with the current treating team. Although I detected criticism from the Health Board’s counsel about this circumnavigation of proper procedure, I believed that this was a technicality and that adjournment would enable this misstep to be corrected. I didn’t understand that there was any real resistance to the proposed move, or the disagreement about clinically assisted nutrition and hydration that might underwrite that. This really illustrates the problems of so-called ‘open justice’ without access to court documentation.
Amy Dadarria was inspired to pursue a legal career in Court of Protection following ten years full time pro bono work as a support worker, citizens’ advocate and litigant in person for a profoundly disabled family member lacking mental capacity to make various decisions. She completed the PGDL in 2022 and is starting the Legal Practice Course in January 2024. She is on LinkedIn here linkedin.com/in/amydadarria
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 490 hearings since May 2020 and written more than 100 blog posts.She is on LinkedIn (here), and tweets @KitzingerCelia
On the afternoon of Monday 6th November 2023, I observed a hearing before Deputy District Judge Weereratne, sitting (remotely) at First Avenue House in London, in the matter of Case No: 14157245 – MG (by her Litigation Friend, the Official Solicitor) v London Borough of Harrow.
Having emailed the court on the previous evening to request a link to the hearing and a copy of the relevant Transparency Order, I received both of these at 12:01pm. I also emailed counsel for the Official Solicitor (representing P), Ms Rebecca Handcock of Field Court Chambers, after the hearing, requesting a copy of P’s position statement which I received very promptly. The following account is based on my contemporaneous notes from the hearing along with the position statement[1].
The Hearing
The hearing began with the judge inviting counsel for the applicant (‘MG’ by her Litigation Friend, the Official Solicitor) to provide an introductory summary of the case before making submissions – i.e., setting out what the court is asked to do in MG’s best interests.
The Applicant (Counsel for MG):
The hearing concerned a s.21A MCA 2005 legal challenge brought in respect of a 90-year-old woman (‘MG’). Papers referenced in the position statement indicate that she has cognitive impairment associated with dementia in Alzheimer’s disease (atypical or mixed type), although other DoLS paperwork refers to “undiagnosed dementia” and MG herself does not accept that she has a mental disorder. This is one of several key issues about which there seems to be lack of currently available information or uncertainty in this case. MG is currently residing in a care home and objects to the Deprivation of Liberty Safeguards (DoLS) Standard Authorisation under which she is detained in the home. The position statement indicates that she wishes to return to her own property – about which much fundamental information is currently unavailable; including its precise address, the details of MG’s rights of occupation and of any charges for which she is liable and how these are currently being paid, as well as its suitability in respect of MG’s current access needs. It seems that MG is focused solely on a return to her property (rather than, say, a move to another form of supported accommodation) but that she accepts the possibility of carers visiting her if this were considered necessary.
MG was born in Spain but has lived in England for the majority of her life, where she married an English man and seems to have had children, although it is unclear exactly how many children she had. I learned during the hearing that a son and daughter had passed away, but that a nephew had sought to apply for deputyship, being prevented from pursuing this due to the cost. As seems to be a theme in this case currently, little was known about MG herself, with the bundle of documents before the court being described as small – even for a s.21a application “in its infancy”. It was suggested that she may have been moved to the care home following a hospital admission having had little prior involvement with the Local Authority. What does seem to be clear is her objection to the placement in the care home, which is described as “consistent”.
A further uncertainty to be resolved concerns MG’s language skills and preferences. It was reported that she has recently been communicating in Spanish, and her fluency in English is one of the issues that needs to be “bottomed out”, as she may prefer to speak Spanish, and this should be offered for the purposes of assessing her capacity. This is one of several reasons given by the Official Solicitor in support of the submission that evidence as to capacity in this case is currently insufficient (as it is unclear whether all practicable steps have been taken to assist MG in participating in the assessment – as required by s.1(3) MCA 2005). Other reasons include uncertainty as to diagnosis (s.2(1) MCA 2005), and uncertainty about the relevant information put to MG, and how she demonstrated an inability to retain, use, or weigh this relevant information in decision-making concerning where she should live (s.3(1) MCA 2005).
In respect of what should happen, the Official Solicitor suggests the adoption of a “sequenced approach”, beginning with the ascertaining of MG’s occupation rights to find out if a return home with appropriate care package would be possible, before exploring other forms of care. In the meantime, the Local Authority has been asked how the current placement (the care home) might be made less restrictive (as required by s.1(6) MCA 2005), e.g., by facilitating access to Spanish-speaking or other ‘ex-pat’ activities; although it was emphasised that the Official Solicitor does not “want to presume” as to MG’s preferences. Three third-party disclosure orders were suggested, with the aim of clarifying and augmenting the picture regarding MG’s medical history and current status, from:
The current placement
The GP
The relevant Hospital Trust
There was then discussion regarding an order in draft. The incompleteness of the existing s.49 (MCA 2005) report dealing with the assessment of P’s capacity was outlined, including the absence of key details such as the questions asked of P and whether they had also been offered in Spanish.
Counsel was mindful of Practice Direction 14e (PD14e) which deals with the ordering and compiling of s.49 reports – noting particularly that there had been, as yet, no contact with the relevant Hospital Trust and it was uncertain whether the Trust would be able to complete a report (in the timescale required). There was also an “anecdotal” understanding that the Trust was currently refusing reports required with no prior notice and an assertion that the Trust was being very affected by the ongoing junior doctors’ strike. Particularly relevant here is Para. 7 of PD14e which states that “wherever practicable”, prior to applying for the court to order a s.49 report, the applicant should “use their best endeavours” to make contact with the relevant person in the Local Authority or Trust to make them aware of the application, its purpose, and any questions or issues to be addressed within the report.
The position of the Official solicitor was that there was insufficient evidence on file for a final declaration. A pragmatic solution was proposed to the matter of the s.49 report in the form of the appointment of a Special Visitor. In the end, it was suggested in any case that the issue of the s.49 report could be “parked” until further information about MG’s situation was available.
The Judge:
The judge asked a series of questions of counsel for the Official Solicitor:
Has the solicitor been to visit MG?
Yes, there was a meeting with the instructing solicitor on 18th September 2023.
Are there any instructions based on that meeting?
There was no attendance note. The question about whether MG would prefer to communicate in Spanish was not raised.
At the meeting, did MG say clearly that she wanted to go home?
Yes, and she described her home, her neighbours, and her care needs.
The judge then indicated that it was possible to proceed on the basis of s.48 MCA 2005 (interim orders and directions), and that it seemed appropriate to have further reports – particularly regarding language preferences. She added that she knew from a previous case that the appointment of a Special Visitor was taking up to 8 weeks.
The Respondent (Counsel for the Local Authority):
The Local Authority, represented by Vani Chenganna, has no objection to the ordering of a s.49 report. It agrees with the draft order and the measured approach suggested. A referral has been sent for a functional assessment by an occupational therapist, and to look at the suitability of the property (a three-bed rental). Apparently, there have been difficulties in accessing the property. There is also a lack of information about MG’s finances, and a stack of papers and envelopes is visible through the front door of the property.
There was a question from the judge about the existence of any family. It was here that counsel explained that while MG’s daughter and son had predeceased her, her nephew had previously applied for deputyship but that the cost of this had proved prohibitive.
The Order:
There followed detailed discussion concerning the contents of the draft order, including details of the DoL Standard Authorisation and the assessment that formed the basis of the reason to believe MG lacked capacity according to s.48 MCA 2005. A condition was to be added to the Standard Authorisation that MG’s current placement should keep a record of her activities and access to the community. There was also consideration of the period of time for which MG’s social services records should be disclosed, with the judge ordering that this should extend to six months prior to her hospital admission – i.e., mid 2021.
The question of whether the nephew should be joined as a party to the proceedings was then addressed – it appeared that while he had not filed the relevant application for this, he would like to be joined as a party. Apparently, he had not expressed a view as to her care needs but would like her to be moved nearer to him. While counsel for the Local Authority had no instructions on this point, it appeared there would be no objection. The judge pointed out that the court did not know about his dealings with his aunt or their relationship and asked for it to be put in the order that he be invited to attend the next hearing.
Other details to be included in the order covered provision for “rolling disclosure” from the Local Authority within seven days of any scheduled Round Table Meeting (thought to be “more proportionate” than requiring disclosures every month). The evidence required from the Local Authority about MG’s home and its suitability for a possible return was described as a “significant piece of work”, including occupational therapy assessments and those of MG’s finances. A statement of MG’s wishes and feelings was to be contributed by those instructing counsel for the Local Authority; and the question of her preference for communication in English or Spanish was also to be included in the order. The judge also asked if the Local Authority could include a paragraph in evidence concerning the nephew’s views which would likely help the Official Solicitor too. She was told that this “should be fine”.
The hearing concluded with discussion about the listing of the next hearing (around 25th January), and the court’s agreement to extend the Standard Authorisation to the next hearing. It was agreed that the draft order would be filed by 4pm tomorrow (allowing time for the Official Solicitor to see it). The judge noted the existence and contents of the Transparency Order (which I had received along with the link to access this hearing). The parties then thanked the judge and the hearing concluded at 3.45pm.
My Reflections
First and foremost, observing this case caused me to reflect on the ways in which the State can become involved in the most private and personal areas of our lives when our mental capacity is questioned. The MCA 2005 provides a framework for such involvement. However, despite the existence of a legal framework in force now for nearly two decades; and the relative predictability of a loss of capacity given factors such as old age and its correlation with mental impairments such as dementia, this case illustrates the reality that for many people, encounters with the State through engagement with mental capacity law are experienced as ‘sudden’ – e.g., following a hospital admission.
I am struck that the uncertainty and lack of information characterising many such encounters may be avoided or mitigated through mechanisms provided in this same legal framework – by the taking of steps such as appointing someone (or people) one trusts to act in one’s best interests via a Lasting Power of Attorney (LPA); or making an Advance Decision to Refuse Treatment (ADRT), along with an Advance Statement recording your values and care preferences for the future. I do not know whether MG had made an ADRT (and it does not seem to be relevant to the matter before the court here). And it is, of course, unclear whether the apparent absence of an LPA was a conscious decision or an omission on MG’s part. However, an Advance Statement, while not legally binding, could have provided useful guidance to those now responsible for making decisions concerning her residence and care.
I have written and spoken elsewhere about the roles of advance decision-making in preparing for a future loss of capacity. Observing this case has caused me to reflect again on how utilising such advance processes may have enabled access to key information for those professionals and family members now responsible for supporting MG – representing an opportunity now lost for her (previously capacitous) ‘voice’ to speak to the issues with which she is now faced. It was clear throughout the hearing that the court and the parties involved in the case have considerable concern for ensuring that MG’s ‘voice’ is represented throughout the proceedings to the greatest extent possible. Reference to language preferences and the foregrounding of MG’s stated preference to return to her property are indicative of this. But it seems that this case may represent an example of a failed opportunity for advance planning to place the ‘voice’ of a person deemed to lack capacity more centrally in decisions affecting their life.
Gill Loomes-Quinn is co-director of the Open Justice Court of Protection Project. Her PhD research (a socio-legal study of the Mental Capacity Act 2005 and its impact on the “voice” of disabled people) included an ethnography of the Court of Protection which sparked her passion for open justice. Gill tweets @GillLoomesQuinn.
[1]Please note that while my notes are as accurate as possible, the recording of court proceedings is prohibited. Any quotes included here are therefore not necessarily verbatim.
By Celia Kitzinger, with Eleanor Tallon, 19 November 2023
Mrs King (a pseudonym) is the woman at the centre of this case. At 2pm, at the beginning of the hearing, she’s not in court.
“We’ll just have to patiently wait, I’m afraid”, says the judge – and we do.
It’s not until 2.30 that a carer pops up on screen, talking to us as she walks along a corridor, saying “I’m just taking the computer through now”. Then we see Mrs King, elegant in a navy suit with cream piping, make-up and pink nail polish, and a slightly imperious manner.
It’s good to see that she’s been included in this hearing because when independent social worker, Eleanor Tallon, observed this case (COP 13994886, before DJ Emerson, sitting in Portsmouth) eight months ago, on 23 February 2023, Mrs King wasn’t in court at all. “Very little was revealed about the woman at the centre of this case” she wrote “ – other than she has been living in a care home since the end of 2021, whilst her son remained living in her home […] I was concerned that Mrs King had indicated that she wanted to play a part, yet had she been offered the opportunity to attend the hearing?”. (“This is a quagmire and it needs to be urgently done”: LPA objections, disputed capacity and an imperative need for a panel deputy).
What’s clear though is that Mrs King doesn’t find it easy to follow what’s happening in court, or to engage with the issues.
I’m not sure whether this is a problem with her ability to hear what’s going on (her son says she has hearing problems) or whether it’s a problem of understanding the complexities of the legal issues and sometimes convoluted language – a problem shared by me and by Mrs King’s daughter-in-law, who has no compunction about saying so (“I’m not sure what you just said means…”).
And that turns out to be precisely the problem that the court is now engaged with.
Capacity assessment
The judge had ordered a capacity assessment – I think of Mrs King’s capacity to revoke her most recent Lasting Power of Attorney for Property and Finance, which appointed her daughter-in-law and grandson as her attorneys. All parties seem to have agreed that Mrs King had capacity to make, and then to revoke, the first LPA issued in favour of her son. She had then made an LPA in favour of the daughter-in-law and grandson, but I think this had never been registered, as she shortly afterwards raised objections to them being appointed as such (as did her son).
But what’s clear is that the problem the court is addressing today is that it’s turned out that Mrs King’s capacity assessment has been conducted remotely, by video-link. “I don’t think,” said the judge, “it was ever anticipated or provided for in the Order that I made that it would be done via a video-call. The expectation was that it would be done in a face-to-face meeting”.
The assessor found that Mrs King lacks the relevant capacity.
Mrs King’s son had previously raised concerns that the remote capacity assessment might not have been effective in terms of enabling Mrs King to display her capacity to good effect, and the judge had ordered a witness statement from a carer who was present during the capacity assessment to support Mrs King, and this statement had been submitted in October, and was now before the parties, and the judge.
According to the carer, Mrs King found it very hard to hear what was being said during the Mental Capacity Assessment, even with the volume turned high up. The carer said she frequently had to repeat what the assessor was saying. And Mrs King had been very nervous during the call, holding the carer’s hand under the table – which the assessor couldn’t see – nd becoming increasingly upset when she found herself unable to hear or understand what was being said. When the assessor kept repeating himself at a higher volume, she became distressed. The judge quoted the carer as saying, “I do feel if this meeting had been done face-to-face it would have been less difficult “.
The parties are now divided about how to proceed.
The daughter-in-law and grandson – who I think will remain as attorneys if Mrs King lacks capacity to revoke her LPA – thought there was no need for another assessment. The daughter-in-law said that “in view of how many assessments she’s had to endure – and I do think that word is appropriate – I do not think she should be asked to endure this again”.
The son – who unlike the other family members had legal representation (Clare English) – thought there should be another assessment because Mrs King “wasn’t given the full opportunity to demonstrate capacity”. His view is that “many of the answers she gave were factually correct and demonstrated a knowledge of her finances as far as they could be identified […] We just want her to have a fair shake at it”. (The daughter-in-law suggested that his view might be motivated by the hope for a different outcome.)
Counsel for the Public Guardian was neutral – adding “for the avoidance of doubt”, that “there is a difference on one hand between not agreeing with, or being dissatisfied by, the outcome of the assessment and saying that the evidence is insufficient as a basis on which the court can form a conclusion”.
Mrs King seemed clearly to want another assessment: “We would like a separate judgment again”, she said, “I don’t think it was a fair trial that we had – the questions”.
The judge concluded that it was hard to see how the court could place reliance on an assessment which seemed not to have involved “fair participation” on Mrs King’s part, because she was “having difficulty hearing and becoming stressed”.
Discussion moved on to who should carry out a fresh (in-person) assessment – a COP Special Visitor or a private independent psychiatrist (I think the former was agreed). There was also, by this stage, a consensus that the first LPA (in favour of Mrs King’s son) should be cancelled and an interim deputy appointed to safeguard Mrs King’s interests (and the judge so ordered)
The next hearing will be 2pm on 9th February 2024.
Remote capacity assessments: law and practice
It is lawful to conduct Mental Capacity Assessments[1] remotely – and during the pandemic this was often the only way they could be done (§37, BP v Surrey County Council & RP [2020] EWCOP 17).
Early in the pandemic, the then Vice President, Mr Justice Hayden addressed this matter, pointing out:
The assessor will need to make clear exactly what the basis of the assessment is (i.e. video access, review of records, interviews with others, etc.) Whether such evidence is sufficient will then be determined on a case by case basis. It is noted that GPs are rapidly gaining expertise in conducting consultations by video and may readily adopt similar practices for assessments. Careful consideration will need to be given to P being adequately supported, for example by being accompanied by a “trusted person.” These considerations could and should be addressed when the video arrangements are settled. It should always be borne in mind that the arrangements made should be those which, having regard to the circumstances, are most likely to assist P in achieving capacity. (§7, Guidance from the then Vice President of the Court of Protection, 18 March 2020)
Since then there seems to have been an expectation (embodied, for example, in this Guidance for social workers (updated on 7 September 2023) that: “Mental capacity assessments should normally be completed in person, but it may be appropriate to carry out the assessment remotely if, for example, it is not possible to visit the person”. The concern is that there are challenges with remote assessments, particularly in relation to people’s communication needs, and they “should never be undertaken simply for administrative convenience”(§71, Carrying out and recording capacity assessments, 39 Essex Chambers, March 2023).
I raised a question (see below) about remote assessments on Twitter/X and got some interesting (public) replies.
Here is a longer response by Eleanor Tallon, who also wrote the earlier blog post about this very case:
Eleanor Tallon on Remote Capacity Assessments During the pandemic all Mental Capacity Assessments had to be remote, which could be very difficult if the person had limited verbal communication. It meant that some assessments were based purely on reports from others, and although this may still count as a valid assessment, it is far from ideal.
So much is drawn from seeing the person’s body language, their demeanour, seeing how they are supported, what independent skills they have, how they operate within their home environment, and seeing the rapport they have with carers/ staff. All of this information is vital when thinking about what the person’s values are, and their wishes and feelings in terms of the decisional context.
Views expressed verbally or through their behaviour, should be reflected within the assessment (which would inform the best interests decision if the assessment determines that the person lacks capacity to make the decision). Without seeing the person in ‘real life’, assessors have to rely on the accounts from others in good faith, though from experience such accounts may not always provide an accurate portrayal.
Physically visiting and spending time with the person, using observational skills as well as corroborating other evidence provided, is on most occasions the optimum approach.
However, there are situations where it is more appropriate to conduct a remote assessment, on the basis that the person is distressed by meeting new people or becomes increasingly frustrated by repeated professional visits, and simply disengages. In such circumstances, a remote assessment which makes every attempt to glean holistic information, can be the better alternative – though there should be a clear rationale recorded as to why an in-person visit was felt to be in conflict with the wishes and feelings of the individual concerned.
Remote assessments can also be a good follow-up approach to an initial visit, particularly when the person is able to engage remotely, has appropriate support in order to do so, and has established a familiarity and connection with the assessor. I have used video and telephone conversations to supplement assessments, to very good effect.
Ultimately the aim of the capacity assessment is to support the person to make the decision at hand. If remote assessment is conducive to that outcome, then it certainly shouldn’t be ruled out. But if it means that the person’s subjective views are largely absent from the assessment, then assessors would need to be creative and resourceful to ensure the person has an opportunity for meaningful participation – which applies regardless of whether it’s done in person or remotely!
Eleanor and/or Celia hope to observe the next hearing in this case, on 9th February 2024, and will report back on progress.
Eleanor Tallon is an Independent Social Worker and Best Interests Assessor. She can be contacted via her website mcaprofessional.co.uk and found on LinkedIn. She also Tweets @Eleanor_Tallon
[1]This is not so for Mental Health Assessments, which must be conducted via “personal examination”. In Devon Partnership NHS Trust v SSHC [2021] EWHC 101 (Admin), handed down on 22 January 2021, the Divisional Court held that “the phrases “personally seen” in s. 11(5) and “personally examined” in s. 12(1) require the physical attendance of the person in question on the patient.”
“At the moment I have no practical or viable options before me for the safe care and treatment of AB”. So said Mr Justice Keehan towards the end of this hearing, summing up the dire situation that the Court finds itself in.
AB is a young woman who suffered a Traumatic Brain Injury, and had been engaging in behaviour that placed her at very significant risk of harm. At a hearing on 24th August 2023, after first establishing that the court had jurisdiction, Keehan J approved the order sought by the applicant local authority that it was in the best interests of AB to be conveyed to a specialist placement for a 12-week period of assessment. He authorised the use of restraint, if required, in order to facilitate this move.
I knew that this case was due back in Court in December 2023, and so I was surprised to see it listed (on the Royal Courts of Justice Daily Cause List) sooner than I expected – for 2pm on Wednesday 8th November, 2023. Wondering what was happening, I immediately asked for a link to observe, which I received well in advance of the hearing.
The case was heard via MS Teams, and Counsel were: Conrad Hallin, of Serjeant’s Inn Chambers, representing the applicant local authority; AB’s mother, CD, the first respondent, who represented herself as a litigant in person; Anna Datta of Parklane Plowden, representing AB via her litigation friend, the Official Solicitor; Scott Matthewson of Serjeants’ Inn Chambers, representing the ICB; and Julia Catherall of Browne Jacobson, representing an NHS Trust, to be added as a party.
AB was also present, as was her social worker. Although AB has not previously been present in court, the judge has stated on numerous occasions that he has met with her.
Back to square one At the start of this hearing, I was dismayed to hear that AB was no longer in the placement that Keehan J had previously authorised. Counsel for the local authority explained that, “AB was sent on leave from [placement] for a weekend and wasn’t admitted back”. He said the local authority were “extremely surprised…given that the court had ordered a 12-week period of assessment”.
The position statement of the Official Solicitor, which I am very grateful to have been sent, clarifies this situation a bit more. AB had been deprived of her liberty at the specialist placement since early September, and she then absconded while on unescorted leave in late October. She was located in another part of the country, and refused to return.
The specialist placement then deemed she would be better treated at a hospital that specialises in the treatment of people with a ‘personality disorder’, but two subsequent Mental Health Act Assessments found her not to be detainable.
Since that weekend, AB had briefly lived with a distant relative who, as a result of “various incidents…wasn’t willing to continue to accommodate AB” any longer. As AB does indeed have a home to return to, she was not made homeless by this situation, and the parties agreed (as an emergency measure) that she should return there “in order to have a roof over her head”.
I then had a connectivity issue so was unsure of what was said for about a minute of the hearing. When I re-connected, Counsel for the local authority was explaining that AB has been offered support since returning home but she’s declined to engage with it. Recommendations made by Mental Health Act Assessors “are entirely contingent upon AB’s engagement and cooperation”. This ‘engagement and cooperation’ has not been forthcoming – which was the case prior to the Court’s involvement on this occasion. As counsel for the local authority put it, “that is effectively back to square one before the admission”.
Once again, and much to my frustration, the question of jurisdiction arose. This relates to the interplay between the Mental Health Act and the Mental Capacity Act, and whether the Court of Protection can have jurisdiction when P may be detainable under the Mental Health Act. This had been settled (so I thought) at the previous hearing and, as Counsel for the local authority put it, “it feels rather like Groundhog day”. As before, the local authority argued that the Court does have jurisdiction because AB has been assessed as not detainable.
I found this quite astounding, and a completely needless delay, given that (in my eyes, at least) this issue had already been settled. Counsel for AB and Counsel for the ICB did not have instructions on this point though did say they feel the same conclusion as before will be reached (i.e. that the Court does have jurisdiction).
By the end of the hearing, the judge stated that, “I am satisfied on the basis of the arguments set out in Mr Hallin’s position statement that this court does have jurisdiction in light of the very recently conducted Mental Health Act Assessment which concluded that AB is not sectionable under section 2 or section 3 of the 1983 Act”. He did however invite submissions to the contrary.
A further issue causing delay is that the Court does not really have many options available to it. Counsel for the Official Solicitor also stated that “the Official Solicitor feels they’re in a situation where they can’t recommend one way or the other. We don’t have the current information”. There are, ultimately, two basic options available.
The first is that AB is admitted to a low-secure unit under the powers of the Mental Capacity Act (that is, therefore, under a deprivation of liberty). The NHS Trust apparently did not have an option like this, and so the ICB may “need to cast the net wider”.
The second option was for AB to remain at home with some form of package of support. As AB has consistently expressed a desire to regain her autonomy, the Official Solicitor thinks that the best way to accommodate this would be for her to remain at home with a minimally restrictive care package.
Although the ICB’s position statement acknowledges the need for a meeting to take place, it also notes that three Approved Mental Health Practitioners believe that ‘a community based approach’ would best give AB ‘a sense of control’.
However, this suggestion was something that the judge did not seem at all happy about. The exchange between the judge and Counsel went something like this.
Keehan J: At the moment, at the very last paragraph of your position statement, you submit that the court may find itself in the position that for the time being it is in AB’s best interests to live at home. I’m not going to be persuaded that’s in her best interests.
Counsel for Local Authority: I understand why Your Lordship makes that observation. The local authority are unhappy with how this situation has arisen –
Keehan J: So am I.
Counsel for Local Authority: The question is, My Lord, I suppose potentially at least, is home with this minimal monitoring and AB not engaging with it all that there is. That’s unsatisfactory but if that’s all there is it may be an academic question whether that’s better than no roof –
Keehan J: Forgive me for interrupting you. The test isn’t the better interests, it’s the best.
Next steps
The judge then returned at the end of the hearing to the possibility that P may have to remain home with minimal monitoring . Having acknowledged a lack of “practical or viable options before me for the safe care and treatment of AB”, he said:
“If I ultimately find myself in the position that the only option is for AB to remain living in her home with effectively, because of her lack of engagement to date, no help and no support, I will not hesitate to give a public judgment making it plain those public bodies that bear responsibility for this young person living in circumstances which, not through her fault, present her at very very real risk.”
I thought that the judge’s frustration was quite palpable. The recent events, and therefore the situation the Court found itself in, was as a result of non-compliance with the Order he made in August. I find it quite remarkable that despite historical non-engagement and a court Order authorising a deprivation of liberty, the placement AB went to still allowed her to have unescorted leave. Without knowing the exact details of how this happened, it sounds to me like a complete failure of adequate risk assessment.
A theme returned to again and again in this hearing was that, in effect, this put everything back to square one. It seems to me that this has happened precisely because various actors have failed in the care of AB.
This case will return to court at the earliest possible opportunity. Though no date had been set at the end of the hearing, Mr Justice Keehan was quite clear he will make room in his diary for it.
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.
Update: On 20th March 2024, the judge declared that it was in A’s best interests to return home, whether or not she voluntarily agreed to take the medications prescribed for her (hormone treatment for her Primary Ovarian Insufficiency). See A, Re (Covert Medication: Residence) [2024] EWCOP 19. This judgment is being appealed by the Trust and the Official Solicitor and will be heard in the Court of Appeal on 30th April 2024. It will be live-streamed (no need to ask for the link) and recorded. Here’s where you can watch it: https://www.judiciary.uk/the-court-of-appeal-civil-division-live-streaming-of-court-hearings/
At the centre of this case is a very unhappy, vulnerable young woman, diagnosed with “mild learning disability” and “Asperger’s Syndrome”. She has been deprived of her liberty for four years. She’s been unhappy in the care home, which she recently described as “this hellhole”. From the outset, and repeatedly over the last four years, she’s been asking to return home and live with her mother.
She was taken into care – and contact with her mother restricted – largely to ensure that she received medication for her Primary Ovarian Insufficiency. Her mother, the court found, was discouraging her from accepting medication.
But four years later, she’s still refusing medication, despite daily requests from staff and repeated attempts to ‘educate’ her and convince her to take it. She doesn’t trust her treating clinician, Dr X, and continues to say, as she’s said for years, that she would like an independent second opinion. Her mother has also consistently asked for this – she says it’s the only thing that would convince her daughter to take the medication. Up until this hearing, the court has refused a second opinion on the grounds that it’s not “necessary” (the legal test for appointing an independent expert) because the existing evidence that the medication is in A’s best interests is overwhelming and uncontroversial.
What this young woman (referred to as “A” in the court documents) doesn’t know is that she’s being covertly medicated. Every day, tablets are ground up and put in her food. That’s how it’s been possible for her to achieve puberty, which would not otherwise have happened. Ironically, the fact that she’s achieved puberty, without medication as far as she knows, has also led her to insist that she doesn’t have Primary Ovarian Insufficiency, and so doesn’t need the tablets they are trying to persuade her to take.
The judge has repeatedly asked for a move from involuntary to voluntary medication, i.e., someone should explain to her what’s been happening and persuade her to take the tablets voluntarily in future.
She’s going to need endocrine medication, doctors say, for around the next 30 years.
It’s not practical, reasonable or proportionate to detain A against her will for decades, simply in order to supply her with covert medication.
Now that she’s achieved puberty, there’s also a question about A’s capacity to make her own decisions about where to live, and what medications to take. The capacity assessments are now quite old, and the court has ordered new ones. If she does have capacity to make her own decisions in these domains, the court cannot continue to deprive her of her liberty or to covertly medicate her. If she doesn’t have the relevant capacity, then the court has to make best interests decisions on her behalf.
This is a report of the latest hearing in this long-running and very worrying case. We’ve been observing hearings since 26th May 2020 – originally before HHJ Moir and more recently before a more senior judge, Mr Justice Poole (HHJ Moir is now retired). There’s a list of our previous blogs about this case at the end of this post.
The case has raised major issues about covert medication, the right to family relationships, law, practice and ethics relating to closed hearings, and open justice. It also prompted major new Guidance on closed hearings from the former Vice President of the Court of Protection.
First, I’ll provide a summary of the case so far, highlighting the reasons why I’m so concerned about it, particularly in relation to the closed hearings.
Second, I’ll report (as promised in my last blog post) on Mr Justice Poole’s reasons for refusing the mother permission to appeal against HHJ Moir’s decision to hold closed hearings. I’ve already reported in the last blog post that he refused her permission at the hearing on 13th March 2023, but I didn’t attempt to summarise his reasons then, because he said he would provide a transcript of them, which obviously helps with accurate reporting. I’ve only recently received that transcript.
Third, I’ll update the case with an account of the hearing I observed on 9th October 2023, again highlighting why I remain concerned about this case, as it moves towards the final hearing at the end of January 2024.
1. Summary of the case so far
A woman in her twenties, A, diagnosed with “mild learning disability and Asperger’s Syndrome”, has been covertly medicated (contrary to her expressed wishes) for more than two years.
In order to accomplish this, she was removed from her mother’s care in April 2019 and placed in a care home – because the court came to the view that her mother was influencing A to refuse treatment (something the mother has always denied).
The hope was that with education about her medical condition (Primary Ovarian Insufficiency) and support to take the medication, she would agree voluntarily to treatment.
She did not agree to take the medication. The court attributed this to the control and undue influence exerted over her by her mother – so the judge restricted and then suspended contact with her mother. She still refused to take the medication.
Then, on 25th September 2020, at a secret ‘closed’ hearing from which the mother and her legal team were excluded (and which they didn’t even know was happening), the judge, HHJ Moir, authorised covert medication for A. She would be given the treatment by having the tablets crushed up and put in her food. This order was reviewed (in further closed hearings) on 20 May 2021 and 4 March 2022.
The hearing at which HHJ Moir made the order for covert medication was in private, but publication of the judgment was later arranged by Mr Justice Poole: A local authority v A & Ors[2020] EWCOP 76. In that judgment, HHJ Moir says she is “uncomfortable” (§10) about considering covert medication in the absence of A’s mother, but considers that if A’s mother knew about it, “she would seek to warn, by whatever means, A about the proposed plan” (§9) and “seek to subvert the medical treatment” (§11). Given that the judge found it “unarguable, unassailable” (§20) (on the basis of medical evidence) that receiving the treatment was in A’s best interests, she considered the matter of covert medication in private, without A’s mother knowing about or being involved in the hearing (hence a “closed” hearing) and she approved the plan for administering the medication covertly.
Mr Justice Poole (the judge who took over the case when HHJ Moir retired) points out in a subsequent judgment (§13, Re A (Covert Medication: Closed Proceedings) [2023] EWCOP 48), that HHJ Moir did not expressly consider in September 2020:
“… the impact of her decision to hold closed proceedings on further case management issues, including the conduct of open proceedings whilst the closed proceedings were ongoing in parallel. She did not make a plan as to when circumstances might arise for [A’s mother] to be told of the use of covert medication, or how the open proceedings could continue without all parties knowing about the medication, for example”.
In my view, the impact of HHJ Moir’s decision to hold closed proceedings was disastrous for further case management issues, and for open justice. I don’t know that it need have been, if the parties and the judge had properly considered the issues and planned ahead. But they didn’t. There was no ‘exit plan’ for informing A and/or her mother about what had been done, and although nobody can have imagined that A could be detained, deprived of her liberty and covertly medicated for the next 30 years, nobody seems to have planned for any alternative. The judgment from Moir is silent on these matters.
There were no plans about how to manage open justice either. The judge should really (in my view) have been alert to this, as I’d already watched one of the public hearings in this case, on 26th May 2020, a few months before this secret ‘closed’ hearing about covert medication. And I’d described what I’d seen in a blog post (here). Then, almost two years later, on 25th and 29th April 2022, HHJ Moir admitted another member of the public, Claire Martin, to observe what was listed as the “final” hearing in the case. How did the judge (or counsel, for that matter) imagine we would make sense of what we were hearing as public observers, and what implications did they think it would have for transparency in the Court of Protection? I can only assume it wasn’t considered at all at the time.
When Claire and I discussed the April 2022 hearing in conjunction with my notes from the May 2020 hearing, we were completely baffled.
“We are ‘baffled’ … because it was absolutely clear at the hearing in May 2020 that the local authority, P’s social worker and P’s endocrinologist were strongly committed to ensuring that P should receive endocrine treatment, and this was endorsed by the Trust and by the Official Solicitor. Although we haven’t seen the judgment, we’re almost certain that this must also have been the conclusion reached by the judge. […] But nearly two years later, it seems that endocrine treatment has not been given, and there is discussion of P returning to her family home …. in the hope that (after all this!) her mother will then be able to persuade her to have it.” (“Medical treatment, undue influence and delayed puberty, 2nd May 2022)
In retrospect, we now know that our understanding as expressed in that extract – that endocrine treatment had not been given – was wrong, and so of course we were baffled. We were wrong about the facts because there had been a deliberate attempt on the part of the judge – and so also by the barristers representing the Official Solicitor and the Trust – to disguise and obscure the true facts of the case, in particular, that A had been receiving covert medication. We misled our readers. In a subsequent judgment Poole J refers to that blog post as having conveyed “false information” (§73): it was “based on only partial information – through no fault of the authors” (§84). This was very disappointing for us at the Open Justice Court of Protection Project – but more than that, the conduct of proceedings in this case undermined the Court of Protection’s own stated commitment to open justice and transparency. As I wrote to Mr Justice Poole, “It makes a mockery of transparency if members of the public are admitted to hearings in which information is deliberately withheld from us such that we then publish information that is not accurate or true” (Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44).
The court’s main intention at the May 2022 hearing was not to deceive us (we were collateral damage) but rather to withhold the information about covert medication from A’s mother. At that hearing, A’s mother was advancing an argument that her daughter should be allowed home because then she’d be able to persuade A to take the medication, but what A’s mother didn’t know (because it was withheld from her) was that A was already taking the medication. This seems very unfair on A’s mother, since she was clearly not on an “equal footing” (rule 1.1(3)(d) COPR 2017) with the parties who knew what was going on. Her arguments were bound to be ineffective under the circumstances. One legal commentator pointed out: “The party excluded from the closed proceedings litigated from a place of ignorance *engineered by the Court*”: another described the mother as “set up for failure here by not being privy to covert treatment” (Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44).
It was HHJ Moir’s decision to hold the covert medication hearing without her knowledge and involvement, as a ‘closed’ hearing, that the mother sought permission to appeal at the hearing in March 2023.
2. Refusing permission to appeal against decisions made at the closed hearing – Poole J
At the last hearing I observed (on 13th March 2023), Poole J refused the mother permission to appeal against the decision made by HHJ Moir to hold a closed hearing on 25th September 2020, excluding the mother and her legal team from the application about covert medication.
I completely understand why the mother would want to appeal this decision, and I would too in her situation. It feels unjust and unfair, both to exclude her (and not even to let her know she was being excluded) from a key decision about her daughter, and then to involve her in a ‘fake hearing’, making arguments in court about bringing her daughter home that were doomed from the start because the relevant facts had been concealed from her. From my perspective, the mother (and her legal team, and the public observers) were deceived by the court. When the lawyers and the judge denied that they had “misled” A’s mother, I experienced what they said as disingenuous, equivocation and ‘bad faith’. It opened up for me a moral chasm between my own perspective on truth-telling and the rather more flexible approach displayed by the court on this occasion. (I’ve spelt this out in more detail in §6 in my Submission to the Rules Committee.) In the mother’s position, I’d feel furious, upset and betrayed.
I also understand why Poole J refused the mother permission to appeal against what had been done to her. I’ve delayed writing about it until I had a copy of the judge’s decision in writing. I received this, after chasing it, on 10th November 2023 but it’s not I think yet available on BAILII or The National Archive. It’s Re A [2023] EWCOP 48.
First, there’s a 21-day time limit for appealing court decisions, and the decision to exclude the mother from the closed hearings was made around two years ago. But obviously the mother couldn’t have made an application appealing the closed hearing until she knew about what had happened, which wasn’t until Poole J told her about it in September 2022, two years later. So, it would be totally unreasonable to deny her permission to make an appeal on the grounds that she was out of time – and that wasn’t the reason Poole J gave. Instead, he considered the merits of the appeal.
The mother was not seeking to appeal against the decision to covertly medicate her daughter, but rather against the decision to exclude her from the hearing at which that was decided, and to run parallel open hearings at which she was clearly disadvantaged by not knowing about the administration of covert medication.
But all that is in the past. It ended very soon after Poole J took over the case. The mother is no longer excluded from decision-making about her daughter: “I took the decision in September 2022 to open up the closed proceedings to [the mother]… Insofar as [she] seeks to appeal the decision to allow open proceedings to run in parallel with closed proceedings, the effect of that ended six months ago when I brought an end to the closed proceedings” (§14, Re A [2023] EWCOP 48).
So, what difference would an appeal – even a successful appeal – make to the situation of the mother and daughter in this case?
The judge took the position that “the purpose of any appeal against the decision to exclude [the mother] from the application regarding covert medication would not be to make any change to A’s treatment or circumstances. It would not re-set the case. It would not enhance, now, [the mother’s] rights, nor would it make any difference to A’s circumstances or best interests determinations” (§16, Re A [2023] EWCOP 48).
There is of course the fundamental principle at stake about excluding the mother and the resulting ‘fake hearings’. But those principles have been addressed by the then Vice President of the Court of Protection, who – prompted by this very case – set up a subcommittee of the Court of Protection Rules Committee and then issued guidance on closed hearings and closed material hearings. On that basis, Poole J rejected the suggestion that it was necessary for the appeal to be heard in order to give or confirm guidance since “without false humility” (§24 Re A [2023] EWCOP 48), the opinion of an appeal judge would carry no more weight, and probably less weight, than the guidance already published.
Moreover, having read HHJ Moir’s judgment of 25 September 2020, Poole J considered that the judge had properly considered the mother’s rights, and had good reason to exclude her from the decision-making about covert medication because -at that time – there was a real risk that she would subvert the decision by telling A about the medication. “Judge Moir clearly considered, as set out in her judgment, that A’s best interests justified, in the particular circumstances, the sacrifice of openness at that time, and the Courts have recognised in rare circumstances that may be a justified position for the Court to adopt” (§20, Re A [2023] EWCOP 48). Based on the facts insofar as I know them, I cannot say that HHJ Moir or Poole J are wrong about that.
I think in the mother’s position what I would want is some acknowledgement that I was deceived by the court, and some expression of regret that deception was considered necessary. I am not arguing that it was the wrong decision to exclude the mother from the covert medication application. I am arguing that even if it was the right decision, it had moral costs, and caused harm to the mother. People who feel they have been wronged quite reasonably look for some way of righting that wrong – and in courts of law an appeal against a decision you consider unjust is the rather blunt instrument available.
I hope the mother in this case knows that the members of the public who observed this hearing recognise the harm caused to her, and that this was part of my motivation for writing about the case and for making a submission to the Rules Committee, in which I explicitly raised the problem of moral injury caused to excluded parties (and to their legal teams) in closed hearings. I’m only sorry that there’s no reference to or discussion of that issue in the Guidance.
3. Hearing of 9th October 2023: “We are some way away from the ideal scenario”
The case was heard, remotely, at 10.30am on 9th October 2023 before Mr Justice Poole, sitting in Leeds. It was focused on preparation for the final hearing, which is planned for late January 2024.
In terms of transparency, things got off to a bad start because the hearing had been incorrectly listed – as is often the case when Tier 3 judges (who normally sit in the Royal Courts of Justice) hear cases while ‘on circuit’ in the regional courts. The case wasn’t listed in the Court of Protection list on Courtel/CourtServe, and when looking through the listings on Friday evening to decide which hearings I might want to watch on Monday, I’d missed it. I only learnt about it later over the weekend when someone involved in the hearing told me that “the covert meds case” was back in court – and even then, it took me ages to locate it, hidden deep in the Leeds daily cause list. I’m sure this was cock-up and not conspiracy, but it’s particularly ironic that this case – of all cases – should be incorrectly listed. I was later told by HMCTS staff that “unfortunately it was an oversight of a relatively new staff member that the list wasn’t published correctly”, and as usual there was a promise to address the training need identified. That didn’t work. The same thing happened on 9th October in relation to another of Poole J’s hearings in Leeds, and then just a couple of weeks later (23 October 2023), Poole J was again hearing a COP case in Leeds, which was again incorrectly listed in exactly the same way. (And the same listing error also arose when another Tier 3 judge, Mrs Justice Lieven, was hearing a case in Worcester on 20th October 2023.) I understand that the Court and HMCTS are working to solve this problem. I was disproportionately thrilled to see Poole J’s hearing in Sheffield correctly listed on 2nd November 2023.
At this hearing, the applicant local authority was represented by Katie Gollop KC. As previously, the young woman at the centre of this case, A, was represented, via her litigation friend the Official Solicitor, by Sam Karim KC, and her mother (who was also in court) was represented by Mike O’Brien. The NHS Trust is usually represented by Joseph O’Brien KC, and it was he who had prepared the Trust’s Position Statement, but he was unavailable today and his place was taken by Lorraine Cavanagh KC.
The opening summary went something like this. (As usual, we are not allowed to audio-record hearings, so this is based on contemporaneous touch-typed notes and is unlikely to be entirely verbatim but is as accurate as I could manage.)
“The case concerns a young woman, A, who on current evidence lacks capacity to make decisions about where to live, who to have contact with, and to make decisions about medical treatment for an endocrinological condition. Her body doesn’t produce various hormones as a result of which, without medical intervention, she wouldn’t have achieved puberty. The case relies on a previous fact-finding hearing before HHJ Moir. For two years before June 2019, Mum was provided with many opportunities to engage with health and social care professionals while A was in her care, and living with her, in connection with the fact that she’d not achieved puberty. That engagement did not materialise. There followed a set of legal proceedings and court involvement. The court declared it was in A’s best interests to be removed from Mum’s care, with restrictions on contact. Since contact was reintroduced in May 2022, the mother’s relations with health and social care agencies has been mediated and managed by the team to an extent very unusual in the local authority’s experience. Even with that mediation, A’s mother engages only because of the legal proceedings. A difficult and rare decision was made to covertly medicate A, and that has been happening for some time, and A has now achieved puberty. In an ideal world, A would be told that she has this endocrinological condition and that puberty has happened as a result of being given medication secretly. But that information hasn’t been provided to her. There has been a considerable amount of health education work done – not weekly, but there have been meetings – but it has not had the desired effect. A is still resistant to believing that she has the condition she has, and resistant to believing there are important benefits to her in taking the medication in the long-term. We are some way away from the ideal scenario. We are now looking to the future. A is living in a residential placement and sees her mother once a week. She would like to see her mother more. She would like to go home. She is not in the least restrictive environment, and so where she lives and who she has contact with is likely to be before the court, once we have updating on capacity. Where she lives is also bound up with the care she receives, which includes one medication tablet every day. The court is not well-placed to make a final decision about residence at the moment. There are three options: (1) She could return to her mother’s home and care, and receive no more medication and that would be the price of having her home; (2) Her mother could deliver covert medication at home, but her mother is refusing to have anything to do with that; (3) Carers could deliver covert medication at home – which would be unusual; this normally only happens in highly regulated environments such as care homes or hospitals.”
For me, there were several surprises here – and in other information that emerged during the course of the hearing. I have done my best to capture the key issues that were raised and discussed and to report them accurately, but given the wide-ranging nature of the issues raised, the shared knowledge of the parties – from an earlier advocates meeting – that may not have been made explicit in court, and the manifest disagreements between the parties about matters of fact, it’s quite likely that one or more (or all) parties may find things they consider inaccurate or misleading in this report – or that they will fundamentally disagree with the way I’ve presented the facts, or my opinions about them. I think, in this case, that comes with the territory – and of course am willing to consider corrections if they are proffered.
Covert medication is continuing
A is still being covertly medicated, despite the judge having made clear in October 2022 – a year ago! – that “long term continuation of covert medication is unsustainable” and that “A’s best interests are served by exploring the most effective way of transitioning from covert to open medication and/or ending covert medication in a way that is likely to cause the least harm to A” (§38, Re A (Covert Medication: Closed Proceedings)[2022] EWCOP 44).
In response to the news that medication is still covert, the judge stated (as he has done before) his “overall anxiety” with the situation – that “the risk I identified some time ago seems to me to persist, and indeed even become more acute – the risk of inadvertent disclosure or awareness on the part of A, leading to the loss of any residual trust she does have in professionals, and – in the worst case scenario – leading to her refusing food, which I know she has done on one occasion… Covert medication shouldn’t continue a day longer than it’s necessary”.
According to Katie Gollop, “no party contends that A should be told she’s been receiving covert medication at present”. I’m not sure what the plans are to stop covert medication, now or ever. There was some discussion about the fact that if A returns home without having been told about the covert medication, the risks and benefits of informing her may be different from the risks and benefits of telling her while she’s in the care home. That issue was shelved for the final hearing.
No expert capacity assessment
I was surprised to hear that there was still no expert (re)assessment of A’s capacity in the relevant domains. At the last hearing, in March 2023, the Official Solicitor had recommended this because there was a possibility that A might have gained capacity. Back in 2018, an independent expert had expressed the view that “A may gain capacity having regard to her young age, and if a range of support structures are in place to empower A, including increasing her skill-base and knowledge”. The expert also said that “achieving puberty may improve cognitive maturation and help her to gain capacity”. At the last hearing, the judge accepted that it was “necessary” to appoint an independent expert on capacity, and decided to appoint the one who assessed her previously – despite the mother’s view that A would not cooperate with the previous expert and that “a new set of eyes” were more likely to elicit her cooperation. There’s now no capacity assessment because A had refused to see the expert she’d taken a dislike to. I think the proposal was to try again with the previously-appointed expert, but if that didn’t work out, counsel for the mother was seeking permission to appoint someone else so as to ensure that there would be capacity evidence before the court in January.
No weekly meetings for health education purposes
It had been agreed (and recorded as a recital in a court order) that there would be “weekly face to face sessions” involving A, her mother and two nurses “over a period of 6-8 weeks” with the aim of “persuading” A to take the medication. Only one such meeting has taken place.
The problem seems to be that the mother is being instructed to use a particular form of words to communicate with her daughter during these meetings, including (and this may be the sticking point) apologising to her daughter for having been wrong about her daughter not needing medication (something the mother has consistently said was never, in fact, her position). The treating clinician, Dr X, has demanded that the mother “has to unequivocally apologise to her daughter and clearly admit that she got it wrong”, and this view is supported by the MDT, who proposed a form of wording which the mother did not accept. The mother then proposed an alternative form of words that wasn’t acceptable to the MDT. They finally reached a compromise form.
Counsel for the mother describes a “humiliating” process whereby, in preparation for these weekly meetings, A’s mother was:
“ …. given lessons about POI [Primary Ovarian Insufficiency] and then the nurses insisted on testing how much she remembered, as if she were at school… The nurses were also very anxious to control precisely what she said to A, so she was asked to recite her lines as though an actress. This behaviour was unexpected and demeaning. [She] was concerned that during the meeting she would be unable to react normally to her daughter and her daughter would suspect that she was merely reciting lines given by the authorities. [She] nevertheless cooperated. All this took months. Then the nurses required her to attend further education sessions with specialist endocrine nurses before a meeting with A. She refused because this would just be another delay to starting the weekly meetings. At this stage she still believed there would be weekly meetings” (from the mother’s Position Statement).
When the one-and-only meeting did take place (on 25th July 2023), the mother apparently deviated from the prescribed wording. I don’t know what that wording was, but what she actually said (as quoted in the Trust’s Position Statement) was “… you were just a child back then, in any case I should have done more to encourage you and I’m sorry that I didn’t. I’m sorry darling I apologise”. She also said that she wanted A to be in the best health, which is why she should take her medication, including the endocrine medication to help ensure that A would have a healthy heart and bones as she grew older. The mother also attempted to remind A about the diagnosis of Primary Ovarian Syndrome but A indicated a couple of times, as she has many times before, that she wanted a second opinion before accepting her diagnosis and the need for medication. The Trust reports that Dr X noted that although the mother didn’t always stick to the agreed narrative, “her involvement in the joint health promotion meeting was felt to be positive overall”.
But, according to the local authority, the multidisciplinary team is “still not convinced about [the mother’s] reliability and ability to constructively discuss these issues with A in future, without supervision and clear direction from others”. They say, “the health education sessions with A that [her mother] has attended have been sufficient for the MDT to reach the conclusion that [the mother’s] continued attendance is not going to help A”.
They say there will be further health promotion sessions for A, but without the mother’s attendance.
Proposal for a second independent clinical opinion
The local authority is now proposing a second independent clinical opinion from an endocrinologist, in the hope of convincing A to take the medication – and the NHS Trust and Official Solicitor support this.
This was the proposal rejected in 2019 when A’s mother raised it. I heard her raise it, and heard it dismissed, at several earlier hearings. She now made clear (via her counsel) that she is pleased that “four and a half years later, there is now some serious consideration being given to a second opinion in order to convince A. She acknowledges that her daughter is stubborn and a second opinion might help change her mind”. According to the mother, it should involve an in-person meeting (not a paper-based exercise) with someone completely independent of Dr X, the treating clinician A does not trust.
The local authority view is: “The chances of this being effective may be slim. However, the applicant’s view is that there is little harm in trying… It is, perhaps, the only thing that has not been tried that could be tried. And it is what A wants”.
The judge made clear that this second opinion was “not necessary as further evidence for the court, to be honest, but it is a means by which it may be possible to unlock the resistance A has to taking medication. It’s important she feels some agency in the selection of that individual”.
Increased contact between mother and daughter
The current contact arrangements are two supervised telephone calls a week of half an hour each, and a supervised weekly visit in person (which mother and daughter usually use for walking into town and having a meal out). The mother asked for more contact so that she could take her daughter to indoor bowling sessions and to take part in dances that A had enjoyed before being deprived of her liberty. She also wants carers to ‘back off’ during supervised contact. “They stand within the body space of mother and daughter and make notes about what is said. It’s intimidating… the invasion of personal space is concerning her. Is there some way in which those who carry out supervision can do so in a way that is less intrusive?” (counsel for the mother).
The judge said he was minded to approve some extension of contact with a second face-to-face weekly contact, but without being prescriptive about what happens in that contact. It seemed the local authority needed more time to consider this, and the judge asked for a response within 14 days. ( I don’t know what happened subsequent to the hearing and whether extension of contact was approved or not.)
Orders and declarations
The judge was satisfied, he said, that it was necessary and in A’s best interests to continue with endocrine medication and for this to be administered covertly. This was an interim measure, to be revisited at the hearing in January. Contact will continue as before, with the possibility of extension on receipt of further representation from the local authority. A request from the mother to be included in MDT meetings was refused, but there should continue to be engagement with the mother in terms of A’s health education – although he appreciated there were “some difficulties”. A’s deprivation of liberty at the care home is also necessary, proportionate, and in her best interests.
Issues for the final hearing: A ‘precarious’ application
As the mother’s counsel said, “in reality, little has changed in the last year” since Poole J broke the news to the mother that her daughter was being given covert medication.
The young woman at the centre of the case still doesn’t know she’s achieved puberty as a result of covert medication, still doesn’t believe her diagnosis, still refuses to take the relevant medication, and still wants to return home to her mother. All the health education, charts, cards, and pedagogic aids developed by care home staff, learning disability nurse and paediatric endocrine specialist nurses over the last four years have “brought her no closer in accepting her diagnosis or the necessary treatment” (treating doctor, quoted in position statement by Counsel for A).
Counsel representing A via the Official Solicitor considers it unlikely that A will ever accept the diagnosis and need for medication, or that her mother will ever help to shift A’s thinking by clearly communicating to A that her historic position on diagnosis and medication (as determined by the judge) was wrong. Accordingly, he says, “this application is in a precarious position, and a decision is needed as a matter of urgency” (Position Statement – emphasis in original).
Given how things stand now, the reality is that, in preparing for the final hearing, the court will need to consider the possibility that it may not be possible to administer medication at all if A is discharged (as she wishes) back home, since the mother refuses to give covert medication herself, citing issues of “trust” in her relationship with her daughter. The court may have to balance up whether the benefits of maintenance medication are outweighed by the current restrictions to which A is subject; or, whether a move to a less restrictive placement (including returning to live with her mother, as she wishes), outweighs the benefits of maintenance medication if that can only be delivered covertly and in such a placement. The judge raised questions that would need to be addressed such as: how might cessation of medication be managed (sudden or gradual)? Is there any possibility of administering medication in some other manner (e.g. patches rather than tablets). Would it be possible for carers to visit daily and administer medication covertly (which the mother is content to permit) and how would that work? Counsel for A raised the possibility of a ‘trial period’ at home.
These are all issues that will be addressed at the final hearing.
This has been a challenging case to witness and to communicate about. I think it’s been a challenging case, too, for A, for her mother, and for the health and social care professionals. Counsel’s view that “we are some way away from the ideal scenario” is something of an understatement. People’s lives and relationships are messy and complicated, and it’s not always possible to achieve an “ideal scenario”, but I very much doubt that the professionals involved in this case from the beginning would have wanted, or anticipated, being in a situation like this, four years on. Hindsight is a wonderful thing, of course, but I suspect that there might be “lessons to be learnt” from a serious case review.
I can imagine an ”ideal scenario” in which A has received an independent expert report, discussed it with her mother, accepted her diagnosis and the need for medication and says she’ll voluntarily take it from now on, expressing gratitude to the health care staff who inform her that they’ve been delivering it covertly until now. It seems vanishingly unlikely that anything like that “ideal scenario” will come to pass. I hope I am wrong.
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
Appendix:Previous blog posts about this case
In reverse chronological order – start with the blog at the bottom to read ‘from the beginning’
Fortunately it seems to have been a one-off, but I was very surprised to be asked to pay £5 for a copy of an approved Order made by a judge at a public hearing.
We’re entitled to receive these Orders under Court of Protection rule 5.9, which concerns “Supply of documents to a non-party from court records”. It says:
5.9.—(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.
In practice, it’s common for judges to make clear oral judgments or orders in court, and I often don’t ask for a written version. But when I’m unclear about what a judge has decided, or when – on the basis of what is said in court – I might want to express concern about or criticism of a judicial decision, it’s important for me to be able to obtain the written version and make sure that I understand correctly what the judge has done.
In this case (COP 13960342 before District Judge OmoRegie, sitting at Dartford County and Family Court on 11th October 2023) I was concerned by what seemed – in the hearing – to be an inadequate response to parental concern about possibly unauthorised restraint of their son. Both parents were in court and expressed dismay about an incident in which (they said) their son had been restrained by untrained personnel, leaving him “traumatised”. What I gathered from the hearing was that the judge’s response was point out that there was provision for a Round Table Meeting at which the parents could raise their worries about this incident. I asked for the Order because I was concerned about the apparent lack of judicial oversight of restraint in this case. And when I got the Order, I found that in fact the issue of restraint had been (in my view) properly addressed – as I report in an earlier blog post (“Judge concerned about “restraint regime” for learning-disabled man prohibits naming public body).
In response to my request for a copy of the approved Order, I received an email from an administration officer with His Majesty’s Courts and Tribunal Service (HMCTS) saying, “In order to receive the order you will need to pay a £5 fee, this can be done via cheque or if you provide us with a phone number to contact you on we can take the payment over the phone“. She helpfully provided me with a link to a pdf explaining the fees payable (here: https://assets.publishing.service.gov.uk/media/61547ac5e90e0719827b8ebe/COP44_0921.pdf)
And I paid up. I did so because I was really concerned about this case and wanted to find out what the judge had ordered (and because I can afford £5 without hardship – something that isn’t true of all members of the public observing hearing). The Open Justice Court of Protection Project is unfunded, so we won’t often be asking for Orders if we have to pay for them, since the fees would come out of our own pockets.
It took about an hour to sort out payment because I couldn’t get through the automated system to a real person able to take my credit card details and spent ages getting cross listening to muzak. When I emailed complaining, they kindly called me back very promptly. I paid and I got the Order.
But I also asked journalists whether they had to pay for Orders and discovered they did not. Press Association journalist Brian Farmer told me that although the press does sometimes have to pay for some documents, Orders from public hearings are not amongst them. Freelance journalist Louise Tickle tweeted publicly:
So I wrote to HMCTS as follows:
I’m concerned that you may be operating a policy whereby members of the public are charged for court orders but journalists are not. Is this so? Is it a formal policy and if so please can you send me a link to somewhere it exists in writing? Can you explain the justification for this policy (if it exists) please. If there is no such policy (formal or informal) please can you explain how it came about on this occasion please that I was charged for a court order. I’m concerned because my request was motivated solely by my wish to report accurately on what I had observed in court and the judicial decision, and it has a chilling effect on open justice to charge us for checking our facts.
Email from Celia Kitzinger to Deputy Service Manager, HMCTS (14:50, 17 October 2023)
The response was to send me a copy of the “fees leaflet for COP” (COP44 – Court of Protection – fees (publishing.service.gov.uk) and the comment that journalists shouldn’t be getting the Orders for free “as I understand the fees apply to all, the fee has been in place for a long time now and isn’t dependant on who is requesting a copy“.
But it seems, in fact, that the fee is, in practice, dependent on who is requesting a copy. Journalists tell me they receive them without having to pay and a former member of the HMCTS staff told me privately that it was routine to ask members of the public to pay, while supplying documents to journalists for free.
Meanwhile, lawyers started to debate whether or not an Order is “a document filed” as per the wording of the “fees leaflet”. It seems it all depends what you mean by “filed”: an Order is not filed by the parties for attention of the judge (like applications or witness statements) but, in principle, emanates from the judge for the attention of the parties; on the other hand the draft Order – whether agreed or contested – could be considered to be “filed” by the parties for the judge to consider, since it is regularly part of the court bundle submitted by the applicant. Last I heard, legal opinion was divided on this matter.
But leaving aside legal arguments about the meaning of the word “filed”, it’s inevitable that charging for Orders would have a chilling effect on open justice – whether charges apply only to members of the public or to journalists as well.
I’ve since made a Freedom of Information Request (no response yet) asking about policy and practice of charging journalists for Orders.
And I’ve asked for eight more Orders from a range of judges, including High Court, circuit and district judges across different hubs (including the Reading hub which charged me on this occasion). The good news is, the subsequent eight Orders have all been sent for free. Nobody has asked for any more £5 fees!
I’m now aware, however, that HMCTS could, in principle, charge me (and journalists) for Orders, and that the “fees leaflet for COP” provides for that – so it’s at someone’s discretion when the fee is not levied.
I’m not sure that requiring a fee for an approved Order from a public hearing can really be justified.
Of course other court documents can cost a great deal more. There has been a lot of publicity recently about the high costs of court transcripts, e.g. one rape survivor said she was quoted £7,500 for the transcript of her trial (“Court transcript costs are exploitative – victims“).
The outrageously high cost of transcripts doesn’t negate my concern with having to pay £5 for an Order. Unlike transcribing potentially weeks of a video-recorded hearing, and then getting a judge to check it for accuracy, an Order already exists as a document approved by the judge and sent to the parties. It doesn’t have to be created from scratch – whether at public expense or charged to a party. The only extra work required when I ask for an Order is to send it to me. And it comes as a pdf attached to an email The days are long gone when someone had to photocopy and distribute a paper copy of the Order by snail mail or fax (remember fax machines?) which I can see would increase the costs – although given that Orders are rarely more than five or six pages, £5 still seems exorbitant.
I’m grateful to Daniel Cloake (aka @MouseInTheCourt) for drawing my attention to Lord Wolfson’s argument that “enhanced fees, meaning they are set above the cost of the service” are appropriate and that it’s “considered correct for those who can pay more than the actual cost of the process to do so” as “fees are the main source of direct income for courts“. Obviously, I don’t agree that enhanced fees are appropriate from the perspective of open justice. And in any case, if it’s “those who can pay more than the actual cost of the process” who are being targeted to subsidise the crumbling justice system, then it’s surely professional journalists (via their employers) and not ordinary members of the public who should be paying!
I’m pleased this seems to have been a one-off. I hope it remains so.
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
It’s Bournemouth, Christchurch and Poole Council (BCPC).
It’s important to name the responsible local authority because restraint of learning disabled and autistic people is a legitimate issue of public concern. The BBC File on 4 programme in 2018 first uncovered the fact that reported restraint had risen by 50% between 2016 and 2017 (“‘Inhuman’ use of restraint on disabled patients“). Then just last year (2022), the CQC said there was still “a continued over-reliance on restrictive interventions” and that people “were too frequently subjected to practices that are about containment and are not therapeutic” (“Restraint and seclusion ‘still too common’ warns CQC”).
Moreover, there was press interest in the restraint of learning-disabled and autistic people specifically in the Bournemouth, Christchurch and Poole area. The Bournemouth Daily Echo reported just under two years ago that “restrictive interventions were used roughly 805 times on around 120 Bournemouth Christchurch and Poole patients with learning disabilities, autism or in secondary mental health services in 2020-21. Of these, 20 instances saw patients put in the prone position, where they are physically pinned face-down against the floor or another surface – a practice which is said to carry a serious risk of death” (“Mental health patients subject to ‘traumatising’ restraints” Bournemouth Daily Echo, 30 December 2021)
So, when I heard the concerns expressed in this hearing, I was keen to be able to name the responsible Council.
Here’s what the father told the judge about a recent episode of restraint:
“The restraint used was not in accordance with the processes described in the plan… It seemed to be rather ad hoc…. [Our son] was extremely traumatised in this period. There were three adults, including myself, trying to control him. I don’t have any training and at least one of the carers had no training. It was all rather difficult… It didn’t seem to conform to any plan”.
Given the subject matter raised in the hearing, and the extent of public interest in the topic, I was surprised and dismayed to be sent a Transparency Order (on 11 October 2023) that prohibited me from naming the local authority responsible for this man’s care. The Transparency Order explicitly said that amongst the information I was forbidden to report was the fact that “BCPC is a party to these proceedings”.
The Transparency Order
I’ve now received THREE different versions of the Transparency Order for this case.
The first two Transparency Orders (11 October 2023 and 16 October 2023) were injunctions explicitly preventing me from naming the Council. They had identical wording saying that I was forbidden to report that “BCPC is a party to these proceedings” – and that if I did so, I may be found guilty of contempt of court and may be sent to prison, fined, or have my assets seized.
The third Transparency Order (issued on 3 November 2023) doesn’t say I’m forbidden to report that BCPC is a party to these proceedings. That paragraph has been deleted. And there’s a new paragraph that explicitly says (under the heading “What the Injunction does not prevent people from doing and does not apply to”) that nothing in the injunction prevents me from naming Bournemouth Christchurch and Poole Council as applicant (§8(i)(f)).
What changed?
I wish I could say that it was my fearless advocacy in defence of the public’s Article 10 rights to freedom of information that resulted in permission to name the Council.
But it wasn’t.
I did try – up to a limit. I did what I usually do when there’s an order that (inexplicably) forbids naming a public body: I ask the judge why that prohibition is in place, and suggest that it might need (re)consideration in light of the public’s Article 10 rights to freedom of information. The Transparency Order says we “have the right to ask the court to vary or discharge the order”, so that’s what I do.
The most efficient way to ask the judge about varying the Transparency Order is to do so during the course of the hearing, while all the parties are there and can express their views to help the judge make a decision. But on this occasion, I found it hard to “interrupt” the hearing and missed the opportunity to intervene, so I wrote to the judge (DJ OmoRegie) afterwards. That’s what I usually do if I’ve not been able to raise it in court.
But on this occasion, I was told by the court staff, and then by the Lead Judge for the Reading Hub (HHJ Owens), that I would need to make a formal application “following the procedure set out in Part 10 of the COPR and under PD10A”. I looked at what this entailed and realised it would take me ages to figure out how to do this – and I honestly couldn’t see why it should be necessary.
As I wrote to the HMCTS administrator: “ I’ve never done this before and I’ve asked for dozens of TOs to be varied. It looks very complicated and time-consuming for a non-lawyer so I doubt that my commitment to transparency will extend to following through on this”.
If the judiciary is truly concerned to ensure open justice and transparency, I would hope that they might be willing (as I have previously found that they are) to address concerns about the anonymising of public bodies however those concerns are brought to their attention. Requiring me to follow what I experience as a burdensome procedure before considering my – as it turned out, entirely reasonable – concerns has a chilling effect on open justice. After various communications with DJ OmoRegie, HHJ Owens and Senior Judge Hilder – none of which solved the problem and all documented in my previous blog post – I simply gave up.
The judge sent me an injunction forbidding me from naming BCPC not once (which might have been “inadvertent” apparently, according to HHJ Owens), but twice. After which it felt impossible, really, to get back to him and say, “Are you sure? Do you really mean I can’t name BCPC?”. I felt I had to assume the judge knew what he was doing, and meant what he said in his Order.
I gave up hope of getting permission to name the Council.
I published a blog about the case without naming BCPC.
I conceded defeat: “I’m not going to make that formal application. So, probably nobody except the people involved, and me, will ever know the name of the public body involved”.
The Bournemouth, Christchurch and Poole Council application
But then, after the blog was published, a couple of lawyers contacted me (independently) to suggest that I might get in touch with the lawyer for the Council, Peggy Etiebet of Cornerstones, suggesting that she should be offered the opportunity to contact her client in relation to this issue. So, I sent an email to Peggy Etiebet, saying “I don’t know if you are aware that the TO prevents me from naming your client?” and providing a link to the published blog post.
Peggy Etiebet responded promptly to say that she would seek instructions from her client (BCP Council). Later the same day, she told me that BCPC do not think it likely that publication of the identity of the local authority would lead to identification of the protected party and that they would make an application “… to assist the Court of Protection to support open justice”.
The following day the judge ordered that a fresh Transparency Order should be made. The paragraph saying I was forbidden to name BCPC must be deleted. A new paragraph must be added saying that I am not forbidden to name BCPC.
Success!
Well, success of a sort. We got the right result in the end.
But why, oh why, was it so difficult to correct what I now believe to have been an “error” in both the first and the second version of this Transparency Order.
It’s depressingly common for Transparency Orders to say that we can’t name public bodies. Almost always, that turns out to be “inadvertent” (to use HHJ Owens’ terminology), or an “error” (as in the case before Theis J).
The upshot is repeated instances of “inadvertent” and “erroneous” failures of transparency.
This case illustrates, yet again, cock-up and muddle, not deliberate secrecy. But for a court that repeatedly states its commitment to transparency, it’s really not good enough.
I’m hoping that the recommendations of the Rules Committee working party on Transparency Orders, likely to report early in 2024, will go some way to sorting out the mess.
Meanwhile, a big thank you to Bournemouth, Christchurch and Poole Council, and to their barrister Peggy Etiebet, for their commitment to transparency in this case.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 480 hearings since May 2020 and written more than 100 blog posts.She is on LinkedIn (here), and tweets @KitzingerCelia
My previous blog post on ‘Failed Re X’ described the legal meaning of the term, and the processes whereby these cases get to court. This blog post follows up on that by reporting on a ‘Failed Re X’ hearing (COP 13266959) I observed on 9th October 2023 before District Judge Hart, sitting remotely at First Avenue House in Holborn, London.
As I explained in my previous blog post, ‘Re X’ is the term used to refer to the streamlined process through which the Court of Protection (CoP) can authorise a ‘Deprivation of Liberty’ (DoL), as established in the case of Re X and Others (Deprivation of Liberty)[2014] EWCOP 25.
Essentially, the streamlined process is designed for non-contentious cases which allow for judicial review without an oral hearing (or ‘on the papers’).
Sometimes, though, ‘Re X’ applications are made and the court decides, upon reviewing the evidence, that this streamlined process is not appropriate and the case needs to be heard. According to the listing, that’s what happened in this case. It’s listed as a “Failed Re X”.
The aim of this blog is to provide readers with a more in-depth understanding of the sort of case that may be ‘called in’ for further enquiry in a “Failed Re X” procedure. I will go through my observation of the hearing, followed by a reflective summary of the main issues which arose.
The case concerns a protected party, initialised as ‘CLG’ in the listing above, who I will refer to as ‘Cassie’ (not her real name).
The Local Authority (London Borough of Barnet, the ‘Applicant’, represented by Deanaloy Grant) was seeking an order from the court to authorise “a deprivation of liberty in relation to care and residence arrangements”.
Cassie was joined as a party to the proceedings (1st Respondent), represented by Lucinda France-Hayhurst on behalf of the Official Solicitor.
Ms H (Cassie’s mother) is also joined as the 2nd Respondent and represents herself as a litigant-in-person.
Limited information was provided on the background to the case, but during the hearing I learnt that Cassie has Learning Disabilities, lives in a single occupancy flat and is supported continuously by her service providers (which includes support in her home and at a day centre).
Ms H is unhappy with the care provided, the lack of support provided for Cassie to go out in the community; and she objects to restrictions placed on contact with her daughter.
Her verbal evidence contradicts the Local Authority’s position, which is that there are no restrictions on contact between mother and daughter. They have not sought legal authorisation for restrictions around Cassie’s contact with Ms H.
Lucinda France-Hayhurst (Counsel for Cassie) highlighted to the Judge that “it sounds like Cassie is being unlawfully deprived by contact restrictions. A statement in this regard is needed in a timely order so that this can be discussed at the round table meeting and a consent order sought”.
The Judge agreed and directed that a statement must be filed within a week, with a further application made within the 3 weeks, to request authorisation of any contact restrictions imposed.
Due to the severity of implications around unlawful contact restrictions, this was to be acted upon as a priority, but this was one of several thorny issues to be scrutinised during the proceedings.
The disagreements and challenges manifest in this hearing make it clear why this case was not suitable for a streamlined “Re X” decision ‘on the papers’.
The hearing
The start of the hearing was delayed allowing time for the Official Solicitor to consider the Position Statement from the Trust and the Draft Order, which was then submitted (“in essence, agreed”) to the Judge.
When the hearing started at around 11.40am (unfortunately, without an opening summary as advised by the former Vice President of the Court of Protection), Counsel for Cassie went through the Draft Order (not least for the benefit of Cassie’s mother), explaining that it sets out the following:
The signposting for the next hearings.
Details on the background to the application and why it was brought.
That there are no restrictions on Cassie’s contact with family.
That the court directs a separate disclosure of social care records.
An interim declaration that it’s in Cassie’s best interests to live where she is living, subject to the arrangements, until further exploration of the circumstances can be taken into account, and that the issues raised by Ms H can be explored.
Counsel for Cassie then went on to discuss further details around evidence gathering, namely the disclosure from the Local Authority, which would need to include minutes of care planning and best interest meetings held with Ms H in 2023, and other relevant social care records. It was agreed that the date could be amended to the 13th of November 2023 for the disclosure.
Counsel then explained that the Order would also seek evidence from Ms H by the 30th of October 2023. It was highlighted that Ms H had filed a statement previously, but a further statement was being requested in response to the application sought to authorise the care arrangements with any comments on Cassie’s welfare.
Counsel emphasised the point that: “Ms H has the opportunity to set out her concerns within the statement, rather than in a large volume of emails going back and forth and providing piece meal evidence” and she then turned back to the evidence required from the Applicant.
The Local Authority has an obligation to file a statement which refers to:
The staff ratios, as it is unclear as to the appropriate ratios needed to ensure safety and quality of life.
The local authority would need to provide recommendations on community access and who will support Cassie on trips, and they are to provide a timetable and activity planner. This would provide a better idea of when it is best for Cassie to be visited.
Also, an update on her presentation and how to optimise her time at the placement.
A plan on how to optimise the use of her mobility car, which ought to be used for trips and drives.
An update on diet, which was an issue raised by Ms H, and the provision of a meal plan.
An analysis of quality regarding her personal care, again, Ms H has raised hygiene concerns.
She then went through additional points to be addressed by the Local Authority:
Counsel for Cassie: There would need to be consideration of multiple occupancy options, taking account of the level of the level of care that Cassie needs, and an exploratory search for alternative options. The search should include opportunities for Cassie to live with others as she is sociable and gets on well with peers and this should be included in the bundle of options with a best interest recommendation given. The plan is for a round table meeting to be arranged for the week commencing the 13th of November, this would be after the assessments, updates and disclosure have been provided.
Judge: That date may have to go back due to the Local Authority disclosure date.
Counsel for Cassie proposed that the round table meeting could go ahead on the 13th November as the disclosure request shouldn’t affect their ability to engage in a round table meeting. She then requested a further hearing date for the 18th of December 2023.
The Judge inquired as to the disclosure requested from the Local Authority: “Would that show discrepancies as to the planning for activities in the community and the actuality of it?”
Ms H indicated that she was unclear as to what the Judge was asking, so the Judge further explained her comments: “It’s one thing to have a plan in place which I can approve of, but it’s in the ability, day-to-day, to carry out that plan. That I think is where the success will be carried out in this case”.
Counsel for Cassie: The idea is a 3-pronged approach. The care provider records will show to what extent the plan is working whereas the assessments and care plans from the Local Authority may not inform entirely if the plan works. The Local Authority thinks things are going well and the two to one support is being provided. But we’ve heard differently from Ms H. The Local Authority disclosure would provide information as to whether the planned support needs to change. It would inform as to what decisions were made and as to why the restrictions were required.
Judge: My concern is around what is actually going on at the moment. The disclosure needs to encompass what’s actually going on. It must be in the records. Will it include records of trips out?
Counsel for the Applicant: I would believe that should be the case.
Judge: The care planning and the best interest meetings minutes will be useful, but will the social care records include day-to-day records from the providers? My concern is we need to get to grips with what’s going on, on the ground.
At this point Ms H intervened with her concerns.
Ms H: How I know that Cassie wasn’t going out is there was no petrol being bought for the past nine months and the mileage hadn’t changed, so she’s not using the car for accessing the community. OK, people say there are no restrictions, but I can only visit on Saturdays as that’s the only day she has two to one care apart from Wednesdays. But I work and I have to visit her in the property. No carers can come out with us as they haven’t been out with her before. I feel incarcerated with her in the tiny flat and I’m nervous about being in the flat with carers when false accusations have been made against me.I feel vulnerable. I would like to take Cassie out. I know she has the option to come out with me, but the carers have never been out with her, and I don’t want to have to supervise 2 university students. I’d prefer to take her out with just one carer, in case I struggle, but I don’t want to have two carers accompanying us. I also have two other children and my mother isn’t well, so my time is limited.
Judge: I understand the matters are to do with practicality. Clearly the car is a good example. If carers don’t have driving licences, the car isn’t going to be used.
Ms H: Can I give Some background.
Judge: I don’t think you need to at this stage. I’m trying to focus at the moment on whether the disclosure will give useful evidence.
Counsel for the Applicant: I’ve just had an update that the disclosure from the learning disability team will include records from the provider.
Judge: So that confirms it. We also need to get updated statements from the parties to ensure we can all consider evidence in a structured manner. Are you content with the order Ms H?
Ms H: Apart from the fact that I do have limited contact.
Counsel for the Applicant: Ms H is able to visit around her daughter’s activities. Ms H says due to working and other commitments she cannot attend on the other times.
Ms H: Cassie goes to the day centre every day other than Wednesday, but I could pop in after 5pm during the week.
Counsel for the Applicant: Cassie has wind down in the evening, where she gets ready, showered, and prepared for bed. So, it may not be appropriate.
Ms H: She goes to bed as soon as she gets back from the day centre and then when she goes to bed at 8pm, she’s up all night because she’s had long naps after the day centre and the carers use drugs to sedate her. She sleeps in the day because there’s no activities. It’s out of boredom and she’ll take herself to bed. If I visited after 5pm my visits would benefit her and stimulate her, she may sleep better at night.
Judge: I understand, but it’s not something we can sort out at this hearing. Discussions are needed with those at the placement to try and resolve what is needed. For Cassie, she needs structure and reliability. On the part of the placement, they need to offer some degree of flexibility.
Counsel for the Applicant: My client informs me that the arrangements are that Ms H can visit through the week, but she must call prior to any visits, and that they are not drugging her.
Ms H: Not anymore, because I complained. I want to take her out with a 1 to 1 carer, not two to one.
Judge: I don’t think this is very productive for today.
The Judge’s screen then freezes. Court admin attempts to address the technical issues and after a few minutes the Judge is rejoined by video link.
Judge: There were some technical problems at my end, but essentially it sounds as if the best way forward is set out in the Draft Order and there will be an opportunity to discuss the issues and Ms H can put forward her views in formal evidence.
Dates were then discussed for a further hearing to take place in January, court admin proposed the 16th of January 2024 at 2pm. This was agreed by all parties.
Ms H: It’s just very sad that I’ll have another Christmas where I can’t see my daughter.
Judge: There will be two round table meetings before then, which gives you the opportunity to work with those involved to try and see if you can identify ways to move forward. Is there anything else we need to cover today?
Counsel for P: There is one other thing. I was under the impression that there were no restrictions on contact between Cassie and Ms H, but the position appears to be different. The local authority has suggested it is right that Ms H should call in advance of any visits, and there needs to be two to one staff present while she is in the placement due to the previous issues raised. That appears to be restrictive. I think we need something in a timely order by way of a statement from the Local Authority.
Ms H: I’ve hardly seen Cassie in 2 and half years and it’s only going to be me that takes her out. (Ms H becomes visibly upset).
Judge: I want this issue to be looked at. The order says there are no restrictions on contact.
Counsel for the Applicant: My client is happy to reword the position on contact in the Draft Order and that queries on contact will be addressed within a statement if that’s needed.
Ms H: I was told that Cassie is going to begin doing activities on Saturday. That’s my one day a week to see her.
Judge: Everyone will get together within the round table meetings and decisions will be taken as to what’s needed regarding her support, activities and contact. Ms Grant, you need to be clear to the court as to what the restrictions actually are. Let me look at your evidence.
The Judge reviews the papers and reads from the evidence: ‘An update on family contact and freedom to visit’.
Judge: There needs to be a statement to address any restrictions on contact and the reasons why these have been put in place. You need to address the history so the court can consider (a) what the position is and (b) why this is the position.
Counsel for Cassie: I do apologise, but if I may make a further comment. It sounds like Cassie is being unlawfully deprived by contact restrictions. A statement in this regard is needed in a timely order so that this can be discussed at the round table meeting and a consent order sought. It would be more appropriate for this to happen before the 13th of November.
Judge: I can see the need for the Witness Statement but whether it can be done prior to the 13th of November?
Counsel for Cassie: I would hope that it could be addressed in a quicker time frame.
Judge: Ms Grant, when could that be done by?
Counsel for the Applicant: I’m awaiting instructions… (short pause whilst instructions are taken). In one week, the local authority shall file the witness statement.
Judge: The statement will be provided by the 16th of October, which sets out any restrictions on contact with Cassie, and the reasons that those are in place. Ms H will have that before she is due to put her Witness Statement in.
The Judge addresses Counsel for Cassie: Are you content to file a COP9 application?
Counsel for Cassie: It would be appropriate for the local authority to issue the COP9, and they would need to consider Cassie’s capacity around contact if that’s not already been done.
Counsel for the Applicant: I will need to check the position on capacity around contact.
Judge: So, the Local Authority will issue a COP9 application to seek authorisation on restrictions around contact and that is to be supported by relevant capacity evidence, no later than the 30th of October. Does that then deal with everything?
Counsel for Cassie: I’m just wondering whether we can push back the Witness Statement from Ms H so she can consider the application on contact restrictions.
It was agreed that Ms H would have until 6th of November 2023 to file her Witness Statement.
Ms H: What should I include in my statement?
Judge: Well, two things really. It’s acknowledged that there are restrictions on contact. And this has to be dealt with formally by application to the Court. I hope that provides some reassurance. The Witness Statement also needs to include anything you want to say about the arrangements being authorised, including the restrictions on contact. So essentially, is the placement right for Cassie? Is the care regime appropriate? Your views on activities and outings and any restrictions on contact, put all of that down if you can.
Ms H: They now want an automatic car. Which will take three months to purchase, and they will only have one driver. This is the problem…
Judge: That’s something you can put into your witness statement. The date to file it is the 6th of November. I think we may finally be here in terms of things that need to be raised this morning. Thank you very much to everyone and I’m now going to leave the hearing. Good day everyone.
At 12:36 the hearing ended.
Reflective Summary
There are four main points which stood out to me when observing this case, and these are the areas I will focus on in terms of my reflections:
Contact restrictions
Care plan scrutiny
Participation of Cassie and Representation for the 2nd Respondent (Cassie’s mother)
The case of London Borough of Barnet v JDO & Ors[2019] EWCOP 47
1. Contact Restrictions
It struck me that there were various decisions about care and contact being overseen by the Local Authority (such as the need for 2 carers to be present for Cassie’s visits with her mother) which understandably from her mother’s perspective, created a barrier for her to have contact with her daughter.
It seems that this 2:1 arrangement followed ‘accusations’ being made. It’s unclear what the nature of these were, but clearly Ms H has also raised several concerns and the relationship between Ms H and the provider did not appear to be a positive one.
Sadly, Cassie’s views were starkly absent within this hearing, so I was left wondering what Cassie’s thoughts were around contact with her mother. Would Cassie prefer ‘wind-down’ time in the evening or more opportunity to see her mother? Would this cause disruption to her routine or make her happier?
A capacity assessment in this regard may shed some light onto these questions, and it would clarify the basis on which a decision could be reached. Without capacity on the decision established, there would be no legitimate best interest decision made and no liable defence for any restrictions in place.
I was impressed by the tenacity of Cassie’s Counsel in advocating Cassie’s rights, and by the Judge’s response in ensuring the Local Authority brought an urgent statement to outline the details of the restrictions imposed; to consider Cassie’s capacity to decide on contact arrangements; and to ensure that the necessity and proportionality of any restrictions could be fully investigated.
The restrictions which are imposed as part of a person’s support arrangements may trigger Article 5 right to liberty (ECHR), due to the level of supervision and control over movement and freedom. Where this amounts to a Deprivation of Liberty (DoL), legal authorisation for the DoL must be sought.
However, being deprived of liberty, invariably impacts on a person’s opportunity for contact with family and the outside world. In some cases, providers make specific decisions that restrict contact, for example, where there are safeguarding concerns and the person lacks capacity to decide on contact with a specific person, such contact might be entirely prevented by the provider in the person’s best interests.
But specific restrictions on contact can only be implemented with the authority of the court (save for emergencies where an application is being sought).
Furthermore, contact restrictions are not covered by a DoL authorisation.Restrictions on contact fall under Article 8 (ECHR):
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Ruck Keene (2018) comments on the case of SR v A Local Authority [2018] EWCOP 36, which concerned a woman whose contact with her husband was restricted by the Local Authority with no court authorisation to do so:
It highlights, or should highlight, the thinness of the legal ice afforded to public bodies seeking to restrict contact without the authority of the court given the clear interference with the Article 8 rights of those subject to the restrictions. Although “Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8”.
The case of Re Briggs (Incapacitated Person) [2017] EWCA Civ 1169 also illustrates the significance of contact with family, and how failing to facilitate regular contact can tip the balance in terms of whether a placement is in the person’s best interests:
95. Contact, for example, is an issue capable of going to the heart of whether being detained is in a person’s best interests; it may be that in an ideal world P’s best interests would be served by a deprivation of liberty in the form of her living in a care home properly looked after, where the appropriate medication regime will be adhered to and P will have a proper balanced diet. Desirable as that may be, and such a regime may well provide the optimum care outcome for P, but it may also be the case that unless, regular contact can be facilitated to a particular family member, the distress and confusion caused to P would be such that it would be no longer in her best interests to be detained, and that what might amount to sub optimum physical care would ultimately be preferable to no, or insufficient contact….”
Cassie’s case certainly serves to reiterate the point that providers and public authorities need to be diligent and follow all due processes, whilst considering the full spectrum of the person’s rights – including their right to family life, which needs to be safeguarded.
2.Care Plan Scrutiny
When a Deprivation of Liberty is identified, the process of independent review of the care arrangements cannot be a ‘light touch’ approach. As the Judge emphasised, there must be an explicit breakdown of what restrictions are imposed; the identified risks which make these necessary; and what else has been considered to minimise the risks, which would be less intrusive on the person’s rights (proportionality).
This entails a thorough analysis of the severity and likelihood of harm, and why the proposed restrictions are the only foreseeable, sustainable way of maintaining safety and well-being.
The care and support plan drawn up by the Local Authority is not the operational care plan, it focuses on the person’s assessed needs and the outcomes which they wish to achieve. Where the person is receiving formal care to meet their needs, a ‘day to day’ support plan is produced by the provider, which should explicate what, when and how care is provided to achieve those outcomes. Additionally, risk assessments should be in place which evidence the rationale behind restrictive care practices.
Therefore, it is imperative that the Judge has access to this level of information, which goes beyond what may normally be available in the statutory care and support plan. The Judge needs to see the grainier details “to get to grips with what’s going on, on the ground”.
To some, it could be seen that the court is tasked with micro-management of a care plan, and there may be some debate as to whether this is best use of court time, as it should be the responsibility of the provider and the commissioning body to ensure that the care plan meets the legal and statutory requirements around care standards and human rights.
But in practice, support plans may fall short of this, and often it is these types of cases that come to the attention of the court for further scrutiny.
If solicitors and the court asking questions about a care plan amounts to micromanagement then what is the point of them being involved at all? If the court is simply going to agree with the professionals without any probing of the evidence then how is it any protection at all against inappropriate use of public powers? If that argument was followed through then all the court could do is ask if there is a care plan (Local Authority Lawyer, 2022).
I was reassured that the Judge in Cassie’s case was intent upon seeking specific evidence to address the discrepancies between the care planning and the actual implementation. In effect, it was highlighted that a support plan may sound wonderful, but the real question is whether the plan is being carried out effectively.
The proof is in the pudding.
It seems that the initial application made by the Local Authority did not provide the level of detail required for the Judge to reliably review the arrangements. It also seems that the guidance provided by 39 Essex Chambers (in reference to making appropriate use of the Re X application process) was not followed:
The public body making the application will therefore have to make sure that it has obtained (and where necessary worked with the care provider to improve) the care provider’s care plan before making the application so as to ensure that it addresses the matters set out above. Given that a more restrictive care regime will need to be sanctioned by the court, applicants may want to consider incorporating contingency arrangements into the care plan so as to minimise the need for judicial micro-management (39 Essex Chambers, 2022)
3. Participation of P (Cassie) and Representation for the 2nd Respondent (Cassie’s mother)
Cassie was represented by the Official Solicitor, which may have been the case due to there being no one else considered appropriate to act as her Litigation Friend. It appeared to me, that Cassie’s mother would have been willing to act, given that she was a party to the proceedings, but the issues around ‘allegations being made’ against her could have ruled this out.
It was unclear what Cassie’s wishes and feelings were about her support and living arrangements, though it was mentioned that complaints had been made by neighbours about Cassie sounding distressed at night. Without further explanation provided, I queried whether this could be interpreted as an objection to some elements of the care plan, or as an objection to the entirety of the placement?
The Official Solicitor “isn’t pushing for a move”, but other options were being explored. Additionally, round table meetings were due to take place to review “what’s needed regarding her support, activities and contact” which would hopefully take account of Cassie’s wishes and her mother’s views.
Although Ms H was not acting on behalf of Cassie, her input provides a valuable dimension in terms of giving further insight into the arrangements (and potentially Cassie’s wishes and feelings), from someone who knows her well.
I acknowledge that Ms H was representing herself and there was a visible power imbalance when considering Ms H’s unfamiliarity with the court processes, and her emotional investment into the hearing. It was positive to see that both Counsel for Cassie and the Judge were accommodating and attempted to explain things more clearly, though this had to be balanced with retaining a focus on the subject matter at hand.
It seemed that Ms H would have benefited from a formal legal representative to support her, but this may not have been at her disposal, possibly due to the costs involved for appointing a legal professional.
To give an example of the costs involved in Court of Protection proceedings, I have referred to research by Series et al (2017), although the costs are likely to have increased since this was published:
Using data on the median costs of in house legal staff, independent experts and counsel, we estimate that local authorities could expect a typical s21A DoLS review to cost them in the region of £10,000, and a personal welfare case in the region of £13,000. Our findings do, however, indicate that the cost of Re X streamlined procedure applications are substantially lower than other kinds of welfare case. This may be because of the streamlined procedure itself, but it could also be because such applications should be non-contentious.
The Ministry of Justice told us that the median cost of a legal aid certificate for a medical treatment case was £7,672, for a non-medical case was £20,874 and for a deprivation of liberty case was £7,288. For self-funding litigants, who would pay a higher rate for legal advice and representation, the costs of welfare litigation are likely to be substantially higher than this.
The high public and private cost of welfare litigation in the CoP is a major barrier to accessing justice and is likely to have a significant chilling effect on bringing disputes and serious issues before the CoP.
4. The case of London Borough of Barnet v JDO & Ors [2019] EWCOP 47
In my previous blog on ‘Failed Re X’, I referred to the case LB Barnet v JDO & Ors[2019] EWCOP 47 which provides an example of a case where a Local Authority was heavily criticised for their failure to provide accurate information to the court.
It was interesting that the ‘Failed Re X’ case I observed related to the same Local Authority (London Borough of Barnet).
I reflected that had this case not been screened as unsuitable for the Re X process and subsequently heard in court, it may have been that the issues raised around unlawful contact restrictions would have been left unaddressed. At the point of the directions hearing the Local Authority had maintained there were no restrictions on contact, and it was only through judicial scrutiny that these restrictions were acknowledged.
I wondered whether Cassie’s mother’s objections to the arrangements had been made explicit when the Local Authority filed their original COPDOL11 (Re X application)? Certainly, applicants are obligated to consult with those interested in the person’s welfare and should be forthcoming around any known concerns:
· it specifies that the duty extends to “all facts and matters that may have an impact on the court’s decision whether to authorise the deprivation of liberty”;
· it directs the applicant to “scrutinise the circumstances of the case” and “clearly identify” factors needing particular judicial scrutiny or suggestive that proposed arrangements may not be in P’s best interests or the least restrictive option or otherwise indicative that the order should not be made; and
· it specifically includes a requirement to explain why persons of a relevant category have not been consulted.
In Re X (Court of Protection Procedure) [2015] EWCA Civ 599, Black LJ identified (at para 100) potential problems with the streamlined process:
It depends entirely on the reliability and completeness of the information transmitted to the court by those charged with the task.In many cases, this will be the very person/organisation seeking authorisation for P to be deprived of his liberty and the possibility of a conflict of interest is clear.
To conclude, the ‘Failed Re X’ case I observed gives a further example of why a full and frank disclosure is required when making an application to the court to authorise a Deprivation of Liberty. The application must contain a detailed, up-to-date description of allthe measures that restrict the person’s liberty, autonomy, and any wider implications. Most critically, the Applicant must be clear and honest.
Eleanor Tallon is an Independent Social Worker and Best Interests Assessor. She can be contacted via her website mcaprofessional.co.uk and found on LinkedIn. She also Tweets @Eleanor_Tallon
This is yet another case where a judge has signed off on reporting restrictions that prevent the naming of a public body, for reasons that are wholly unclear to me.
Neither counsel nor the judge has – to my knowledge – suggested that identification of the local authority involved could lead to identification of the protected party, which is the only basis on which such prohibitions are regularly made.
Generally, there is no prohibition on naming public bodies when we report on Court of Protection hearings.This is because the Court accepts that it’s in the public interest for us to know what public bodies are doing with our taxes and in our name. It’s a part of open justice.
And when – as in this case – both the judge and the family express concerns about the physical and chemical restraint of a learning-disabled autistic man, it is normally the case that the public has a right to know the name of the public body in relation to which those concerns are being expressed.
During the course of the hearing, an obviously distressed mother prompted her husband (both were visible on screen) to raise, in his formal role as their son’s representative, the issue of physical restraint – which, she said, had left their son “traumatised”.
The father then described an incident of physical restraint which he’d personally witnessed, and indeed participated in. He said: “The restraint used was not in accordance with the processes described in the plan… It seemed to be rather ad hoc…. [Our son] was extremely traumatised in this period. There were three adults, including myself, trying to control him. I don’t have any training and at least one of the carers had no training. It was all rather difficult… It didn’t seem to conform to any plan”[i]. The incident had left their son “upset” and refusing to see his mother.
The judge, too, had earlier (in an Order of 2nd October 2023) expressed his concern that there was no adequate consideration of threshold or staged escalation in relation to either physical or chemical restraint, and no adequate consideration of “how often the chemical restraint is reviewed in the support plan filed”[ii].
In the approved Order that resulted from this hearing, the judge decided:
If a change or changes to the care and support plan and positive behaviour support report [which] render them more restrictive, has or have as a matter of urgent necessity been implemented the applicant must apply to the court for an urgent review of this order on the first available date after the implementation of such changes.
If a change or changes to the care and support plan and positive behaviour support report which render them more restrictive are proposed (but are not required as a matter of urgent necessity) the applicant must apply to the court for review of this order before any such changes are made. [iii]
The use of restraint on people with learning disabilities and autism is an ongoing issue of public concern, especially following the BBC 2018 File on 4 programme that first uncovered the fact that numbers of reported restraint had risen by 50% between 2016 and 2017 (see “‘Inhuman’ use of restraint on disabled patients“). Updating that report just last year (2022), the CQC said there was still “a continued over-reliance on restrictive interventions” and it found that people “were too frequently subjected to practices that are about containment and are not therapeutic” (“Restraint and seclusion ‘still too common’ warns CQC”). When I googled the local authority’s name, I turned up a couple of disturbing press reports relating to restraint and safeguarding in their area.
I’m concerned that the Court of Protection has issued an injunction that prevents all of us – but especially people who live in the geographical area covered by this local authority – from learning about this case. People living in this region of the country have the right to know there are (new) concerns about the way this local authority is managing restraint in relation to a man with learning disabilities and autism.
They may also be reassured that a judge in the Court of Protection has taken measures to consider the matter of restraint in a hearing (as opposed to simply endorsing it on paper), has raised questions about restraint and listened to family concerns, and has made clear in his Order that more restrictions beyond those approved in a care plan and positive behaviour support plan, cannot be imposed (as the family say they have) without review by the court. This might encourage more families to come forward and express concerns about restraint in the expectation that the Court would be responsive to them.
I was also worried about the Transparency Order preventing me from naming the public body because I thought (probably wrongly, as it turns out) that this may have have been an “error”, as was the case in a previous hearing before Mrs Justice Theis, which I blogged here: Varying reporting restrictions to name Kent County Council in “shocking” delay case”.
Here’s what happened.
The hearing
This case (COP 13960342) was heard by District Judge OmoRegie, sitting at Dartford County and Family Court on 11th October 2023. The hearing was listed for 3pm as below.
I sent my request to observe at 12.31pm on the day of the hearing. The link was sent to me at 2.07pm and the Transparency Order (in a separate email from HMCTS) shortly thereafter, at 2.10pm – which meant that I had time to read it before the hearing.
As soon as I received the Transparency Order I checked the reporting restrictions and found this:
(5) The material and information (the Information) covered by this Injunction is:
(i) any material or information that identifies or is likely to identify that:
(a) AN is the subject of these proceedings (and therefore a P as defined in the Court of Protection Rules 2017), or that
(b) any person is a member of the family of the subject of these proceedings (namely AN), or that
(c) [XYZC] is a party to these proceedings; and
(ii) any material or information that identifies or is likely to identify where any person listed above lives, or is being cared for, or their contact details.
Transparency Order, 11th October 2023 COP 13960342, DJ OmoRegie (subsequently revised on 16th October 2023 to put the name of the XYZ Council spelled out in full on the face of the Order – with the wording here left unchanged.
It’s a ‘standard’ Transparency Order that protects the identity of the person at the centre of the case (5(i) (a)) and their family (5(i)(b)) – albeit without specifically listing the latter, as is common. But 5(i)(c) was unusual in seeking – I assumed – to prevent me from publishing anything identifying a public body. I took it that the initials I have pseudonymized above as “XYZC” were the initials of the applicant council, where the final ‘C’ stands for ‘Council’ – although this wasn’t 100% clear, since on the front of the transparency order the applicant’s initials were given as “XYYZC “(note the extra repeated letter).
Once the hearing got going, the applicant counsel introduced herself as representing [X—-, Y—- and Z—–] Council”, giving its name in full – so at that point I was fairly confident that, yes, despite the typo, the Transparency Order did have the effect of preventing me from naming the council concerned.
Peggy Etiebet of Cornerstones was counsel for the applicant local authority whose name I am not allowed to reveal. When invited by the judge to do so, she provided a clear and succinct summary of the issues (and she also sent me her Position Statement on request, which was very helpful) – but at no point did she offer an explanation as to why her client’s name should be kept secret.
The case concerns a man (AN) who is in his thirties and has long-standing diagnoses of learning disability and autism, plus a recent diagnosis of Post-Traumatic Stress Disorder (PTSD). He’s been living at a supported living placement for some years – originally (but no longer) run by the Royal Institute for the Deaf, and (according to AN’s father), “the service provider is no longer capable of meeting AN’s needs”. In any case, the parents have recently moved about 200 miles away and they (and AN) would like AN to live closer to them.
There was an agreed position between the parties today.
They agree that it’s in AN’s best interests to move to be closer to his parents – and things seem to be progressing to make that happen. The local authority has been looking for suitable placements in the new locality over the course of the last six months. They’ve found one that has recently assessed AN and confirmed they can meet his needs, and they’re planning to support AN to visit the placement within the next month.
It’s very common for hearings to be vacated when, as here, all parties agree the draft order. At the beginning of the hearing, the judge acknowledged that it may have “taken the parties by surprise” to find themselves in court today, “but I wanted more information about the restraint regime, as opposed to authorising it on paper”.
At the request of the judge, counsel for the applicant then summarised the position on restraint, and detailed the evidence they had already provided, or would shortly provide, to the court. The local authority has now filed their positive behaviour support report. Methods of restraint in AN’s house and in the community are different, she said: in the house it’s a “hands-off” policy and distraction techniques are always used first. Most of the sedating medications are part of AN’s “normal everyday meds” to deal with his anxiety and PTSD. The only “chemical restraint” as such is Promethazine used as a PRN (an initialisation for the Latin phrase ‘pro re nata’, meaning ‘when required’). This is administered when AN is in “a heightened emotional state” or “dysregulated”, and he’s been given it on 12 occasions in the last six months. It relaxes him and he often goes to sleep an hour or so after it’s been administered.
The local authority sought a declaration that it was in AN’s best interests to remain at the current placement and to receive care in accordance with the current support plan and positive behaviour support plan. There was also some mention of an application for Continuing Health Care Funding and for a deputyship for the parents (not opposed by the local authority). None of this seemed contentious.
The proceedings seemed to be winding down and about to end when the mother prompted the father (their son’s Rule 1.2 representative) to raise the issue of physical restraint (as described above) – to which the judge listened carefully. It was clear that both parents were dismayed by what had happened, and by what seemed to them to be the unplanned and unauthorised restraint of their son by untrained personnel. The effect of this incident on their son worried them greatly. They both used the word “traumatised”. I don’t know whether the recent diagnosis of PTSD relates to this incident. It seems possible that it does.
At the time, the judge said only that there was provision for a Round Table Meeting at which the parents could raise their concerns about this incident, leaving me wondering whether or not he was going to address it in his Order (which is why I asked for the Order – and he does).
After the hearing
There was no opportunity for me, as a member of the public, to raise the question of why the Transparency Order prohibited me from naming the local authority. I wasn’t addressed by the judge on the matter of the TO and I especially didn’t want to cause any further distress to AN’s mother by derailing the proceedings into a discussion about open justice. I did turn on my camera and my audio at the end of the hearing hoping to attract the judge’s attention – but too late, the judge had left.
So, I wrote to Deputy Judge OmoRegie (via the hub email address) later the same day.
3:47pm, 11th October 2023: Email to DJ OmoRegie
Dear Judge
Re COP 13960342
I observed this hearing before you today, and received the Transparency Order shortly before the hearing began.
The TO wasn’t mentioned during the course of the hearing so there was no opportunity for me to raise my concern which is that it includes in §5 (“The subject matter of the Injunction”) a prohibition on identifying “[INITIALS]” which I think is [NAME OF COUNCIL]?
It’s unusual for there to be a prohibition on naming public bodies – except in unusual circumstances where, for example, naming the public body risks identifying P, which I don’t think applies here.
I note that §9 permits “any person affected by this order” to ask for it to be varied, and so that’s what I’d like to do with reference (only) to naming the public body – which is paid for out of the public purse and which I would expect to be accountable as such.
Of course, I will comply with the TO until I am notified of any variation, but I hope that this might be possible with the agreement of the parties before the next hearing.
Thank you for your support of open justice.
Celia Kitzinger
4:38pm, 11th October 2023: Response from HMCTS administrator
In response to my email, an HMCTS “administration officer” sent me an email explaining: “You need to make an application to vary the existing transparency order. You need to follow the procedure set out in Part 10 of the COPR and under PD10A which includes applications normally being served upon the respondents”.
I googled “Part 10 of the COPR”, which I know stands for “Court of Protection Rules”, and “PD10A”, which I know means “Practice Direction” 10A (how many members of the public would know that?!) but the legalese defeated me. I wrote back to the administration officer:
“Gosh – I’ve never done this before and I’ve asked for dozens of TOs to be varied. It looks very complicated and time-consuming for a non-lawyer so I doubt that my commitment to transparency will extend to following through on this.”
If a Transparency Order says that a public body cannot be publicly identified, my hope is that the judge will draw attention to that prohibition at the beginning of the hearing, nd explain why they’ve made that decision in balancing the public’s right to freedom of information against the protected party’s right to privacy.
If they don’t offer that explanation, I try to ask – either by raising it during the hearing (which is often challenging) or via an email subsequently. This usually leads (as in cases reported here and here) to the judge changing the Transparency Order. I’ve adopted this approach under the mentorship of PA journalist Brian Farmer, who is the only journalist – and often the only other observer – in most Court of Protection hearings. It’s what he does too.
I understand that, technically, the advice I was given by the administrator is correct – because the Order has been made, and usually an application has to be made to vary it. But in fact I’ve never had to make a formal application following the procedure set out under PD10A before. What judges have been doing in practice, I think, is simply to dispense with all the requirements – as they are allowed to do under the broad case management powers that they have – and to treat my emails as though they were an application under Part 10 CPR. That makes sense – in a court committed to open justice and transparency, why would you put unnecessary barriers in the way? So I was taken by surprise to receive the formal, technically correct, response in this case.
I wrote to HHJ Hilder, who is the Senior Judge of the Court of Protection, based at First Avenue House in London. (I meant to copy in the administrator who had advised me to make the formal application, but I forgot and sent it off without cc.-ing her. I forwarded it to her just a few minutes later – at 5.20pm – apologising for not having copied her in.)
5.17pm, 11th October 2023: Email to the Senior Judge of the Court of Protection
Dear HHJ Hilder
Re: Anonymising of public bodies in TOs: COP 13960342
I’m finding that a significant minority of Transparency Orders include in the paragraph headed “the subject matter of the injunction” the names of public bodies – and do so apparently without any reason being provided to the judge as to why this is necessary. Often the judge seems to be unaware of this aspect of the TO until I point it out.
Almost always when I raise this, the injunction against naming the public body is removed. I’ve blogged about this several times e.g.
I am happy to contribute to open justice and transparency in the Court of Protection to the extent of writing a reasoned letter to the judge pointing out my concerns with the TO, and did so today in an email for the attention of DJ OmoRegie (below). The TO was not raised at any point during today’s hearing and no justification or explanation was provided for why the TO prohibits identification of the public body. Based on what I observed, I cannot imagine a legitimate reason for this.
I’ve just received a response from staff at Reading (also email below) suggesting that I should make a formal application to vary the TO by following “the procedure set out in Part 10 of the COPR and under PD10A”.
I’ve never done this before. I’ve had a look at it and it strikes me as rather complicated for non-lawyers, and way more than I have time to figure out at the moment given the various commitments I have to other open justice issues in the court. I experience the request that I do this as onerous and burdensome. I doubt very much that any other member of the public would be able to follow through on this either – so requiring us to do as suggested in the email below has a chilling effect on open justice.
I remain of the view that the TO in this case should not have required anonymisation of the public body – but I’m not going to pursue it through the formal route suggested to me. I think that will mean that a prohibition remains in place on naming a public body when there should be no such prohibition if Art 8/Art 10 matters were properly considered. It seems that there has been a decision not to properly consider Art 8/Art 10 unless I engage in a burdensome activity to effectively compel the court to do so. This is very disappointing.
If the judiciary is truly concerned to ensure open justice and transparency, I would hope that they might be willing (as I have previously found that they are) to address concerns about the anonymising of public bodies however those concerns are brought to their attention.
I do hope the response in this case isn’t indicative of a change of policy or practice such that more draconian TOs will remain in place simply because members of the public like me cannot face engaging with onerous requirements for raising our concerns.
Thank you for your support of open justice.
Celia
10:00am, 12th October 2023: Response from Lead Judge of the South-East Regional Hub
I received a response via the administrator who’d recommended following “the procedure set out in Part 10 of the COPR and under PD10A“. She’d referred the email I’d written to HHJ Hilder (which I’d belatedly forwarded to her) to the lead judge for the Court of Protection “hub” to which Dartford County Court belongs, the South-East Regional Hub based in Reading. The lead judge for this hub is HHJ Owens. (For more information about Court of Protection hubs, you can see a list of all seven of them, with contact addresses here.)
What I was sent reads more like an internal memo than a message directly for me and I experienced it as rather dismissive. HHJ Owens said she had already referred my concerns to Senior Judge Hilder – and also to the judge whose hearing I had observed, District Judge OmoRegie, to find out whether the prohibition on naming the public authority was “deliberate or inadvertent” (which does at least acknowledge the possibility that the judge might have made an error). She made two points which did not help me (numbered §3 and §4 in the original email):
(3) She said that if I wanted to vary a Transparency Order I needed to follow the same procedure as everyone else (lawyer or not) – i.e. the formal application process via Part 10 of the COPR and under PD10A – and that to treat me differently would not be fair.
(4) She said that if I had concerns about the “accuracy” (her word) of a Transparency Order at any future hearings I “must” (again, her word) raise it during the course of the hearing.
Since it seemed likely that HHJ Owens had also made these points to Senior Judge Hilder, I sent a further email to the latter, responding to those two points in particular.
9.12am, 13th October 2023: Second email to the Senior Judge of the Court of Protection
Dear HHJ Hilder
I’m not sure that it was the intention of HHJ Owens that I should be sent the message below in the (third-person) terms in which she wrote the memo to court staff, but just to reiterate, since I gather that she has also brought this matter to your attention:
1. With reference to §3 I am not aware of seeking any “special treatment”. I don’t think there is any other member of the public who asks for TOs to be varied so the nearest comparator is with journalist Brian Farmer (who has kindly acted as my unofficial mentor for the last 3 years) and he confirms that when he’s been unable to raise concerns about a TO during the hearing, he regularly sends emails for the attention of the judge subsequent to the hearing, and that he’s never been asked to follow the process recommended to me by HHJ Owens (and that it frequently results in a change to the TO).
2. With reference to §4, both Brian Farmer and I experience difficulties in raising concerns with TOs during hearings. In this particular case I turned on my camera and mike at the end of the hearing to try to attract the judge’s attention but I was too late and he left the hearing. I’ve seen the same happen to Brian! The difficulty arises when the judge doesn’t create a “slot” for an observer to speak (e.g. by asking “have you received the TO”). Unlike the parties we don’t have a speaking slot pre-assigned to us by the court turn-taking system and I am very aware of not wanting to interrupt sensitive proceedings, especially when (as in this case) family members are in court (and the mother seemed quite distressed). Perhaps I should have been more forceful, but I hope you can understand why I was not.
I understand (I think) the pressures the judiciary are under, and that transparency necessarily takes second place to the substantive business of the hearing. That only makes it more imperative for observers to pursue transparency – including any “inadvertent” breaches of it – since the judiciary is unlikely to have the time to do so without prompting. I appreciate that this can be irritating and frustrating for some judges. It is not my intention to cause extra work and hassle, although I know that is outcome of my pursuit of open justice, and I’m sorry when it’s experienced this way.
Thank you for your support of open justice.
I received a response later the same day (4.45pm) from an administrator, to the effect that the Senior Judge is unable to intervene in any particular case before another judge, but that she will continue to consider how best to support open justice, and thanking me for my continued involvement.
4.32pm, 16th October 2023: A revised Transparency Order from DJ OmoRegie
The next working day, I received a revised Transparency Order.
The wording is identical to the wording of the earlier Transparency Order except that the initials on the face of the original order have been replaced with the full name of the local authority I am forbidden to name.
It still says, at §5(i)(c) that I am not allowed to identify that “[XYZC] is a party to these proceedings”.
The reason for revising the Transparency Order is that the judge says (the administrator told me) that it was “a typo in the original transparency order to have initials for the applicant”.
This is really bizarre. The judge fixed the “typo”, but didn’t engage at all with my concern about identification of the public body.
I’m still prohibited from identifying the local authority – but now that prohibition is contained in a document that names the local authority on its face – which is counter to Court of Protection practice, since Transparency Orders are public documents. It’s true that I can now match the initials in §5 of the Transparency Order against the name of the local authority provided in full on its face, and so I am now absolutely sure that the Order prevents me from naming it, whereas the former discrepancy caused me a niggling doubt. I suppose that qualifies as an improvement of sorts.
I have received no reply to my subsequent, frustrated, one-line response: “Thank you – so that confirms that the intention is to anonymise the public body. My question is whether it is necessary to do so.”
Reflections
This has been a bruising experience.
It’s taken up a great deal of time for me and several other very busy people for something which should surely have been – as it has been in other cases – a relatively simple matter.
And all to no useful purpose it seems. I still don’t know whether, or why, it is necessary to keep the identity of the public body a secret. The outcome of all this correspondence is that identification of the local authority is still prohibited – as confirmed (I have to assume now “deliberately not inadvertently”) by DJ OmoRegie in his most recent communication – and I still don’t know why.
Nobody has sought to explain or justify why it is necessary to keep the name of this public body a secret – and it was very far from apparent in the hearing. I can’t believe that knowing the name of the local authority would enable anyone to identify the person at the centre of this case.
But the only route I’m permitted (in this case) to further understanding why this restriction is in place, or to challenging it, is to make a time-consuming and expensive application – at the cost (I think) of £234. That’s a very effective barrier to open justice. I’m not going to make that formal application. So, probably nobody except the people involved, and me, will ever know the name of the public body involved.
The hearing I observed indisputably raises matters of public interest.
People are concerned about the use of restraint – especially if it is happening in their area.
Residents in the region covered by this local authority already know that many hundreds of learning-disabled and autistic people were subject to restraint in their geographical area just a few years ago (2020-2021) – because the local newspaper reported it, following the publication of NHS Digital statistics nationwide. They have the right to know that it’s still continuing in their area, and to learn something about the reasons for, and conditions placed on, its use – as revealed in this particular case.
It’s important for people to know that Court of Protection judges are concerned about the use of restraint too – and that they will call in a hearing and interrogate the use of restraint, even when it appears there is agreement between the parties. And they will listen to families and – as I saw from the Order require reviews.
Of course, I can write about all of this in a generic sense, without naming the local authority – but it’s a public body with public accountability, and the story has a potential for local journalism, and (the point I keep returning to) there seems to be no Article 8 (privacy) reason to set in the balance against the Article 10 (freedom of information) right.
It’s a disappointing outcome – and I have to say it’s quite unlike all my previous experiences of querying or asking for variations of Transparency Orders.
If I didn’t know better, I might almost believe – on the basis of this experience alone – that the Court of Protection didn’t aspire to open justice.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 480 hearings since May 2020 and written more than 100 blog posts.She is on LinkedIn (here), and tweets @KitzingerCelia
[i]Unless otherwise indicated, quotations are based on my contemporaneous touch-typed notes of what was said during the hearing. They are unlikely to be entirely verbatim, as we are not allowed to audio-record hearings, but they are as accurate as I can make them.
[ii]I am grateful to counsel for the applicant, Peggy Etiebet, who sent me her Position Statement from which this quotation is taken. At §12, she attributes these words to Paragraph 3 of the order of 2 October 2023.
[iii]Quoted from §3 & §4, Order of 12 October 2023. When I requested this Order I was told I would need to pay £5 to receive it. The requirement to pay for a court Order is unprecedented in my experience before and since (and also in the experience of journalists I’ve discussed this with). I was sufficiently concerned about this case to get my credit card out and pay over the phone (the alternative was payment by check and snail mail) because I wanted to find out what the judge had ordered with respect to restraint. But the matter of being required to pay for sight of an Order is something I will address in a later blog post.
Promoting Open Justice in the Court of Protection 