The protected party at the centre of this case, LV, is a 20-year-old woman diagnosed with anorexia nervosa, autism spectrum disorder, severe depression, and anxiety. At the time of the first Court of Protection hearing, in early 2025, she was an inpatient on a ward in a specialist eating disorder unit (SEDU) of a university teaching hospital where she’d been for more than 2 years (and for a year before that on different hospital wards). She was detained under section 3 of the Mental Health Act 1983.
In February 2025, LV was very unwell. The Hospital Trust and the NHS Mental Health Trust responsible for her care made an urgent application to the Court of Protection. The case (COP 20011799) was heard in the Royal Courts of Justice by Mrs Justice Morgan. The published judgment reports:
“She is presently being fed twice a day using a Naso Gastric Tube. She has to be restrained for this. The process requires seven staff members. Since December of last year, this process has been largely ineffective in providing her with nutrition since she has developed the ability, at will, to regurgitate feed whilst it is being delivered and to purge by vomiting most, nearly all, of the remainder after delivery. In that time she has lost a further 15% of her body weight. Her body mass index is slightly over 11. The likelihood is that, absent effective intervention, she will die soon. It is difficult to predict when that may be, but the evidence before me is that a timescale of days or weeks is what is contemplated rather than one of months.” (St George’s University Hospitals Foundation Trust & Anor v LV [2025] EWCOP 9 (T3)).
The Trusts were applying for (i) a declaration that LV lacks capacity to conduct proceedings and to make decisions about her care and treatment and (ii) a declaration that it is lawful and in LV’s best interests to be admitted to an Intensive Care Unit for a period of feeding under sedation. This was seen as a “last resort” option – the consensus view being that if she stayed where she was, death would be likely in days or weeks, and that feeding under restraint was not in her best interests either as it would be very high risk because she pulls out tubes and lines.
Here’s how the option of feeding under sedation was described in the written evidence before the court:
Go to General Hospital and be admitted to ITU for feeding while intubated under general anaesthesia: She will be under general anaesthesia and fed while asleep. The list of medical risks are as listed below, derived from the best interests meeting from the ITU intensivists, gastroenterologist, and medical nutritionists at St George’s Hospital. The process would involve being put to sleep, then doctors inserting a breathing tube and then using a ventilator machine to take over breathing. She would then be kept asleep using medication and fed while asleep. The first concern is that while she is asleep, she will continue to lose muscle mass while sedated – this may be up to 10% a week. Explained this carries risk of critical illness myopathy, which would leave her profoundly weak, potentially unable to move her limbs, and this could be irreversible. Another risk was requiring a tracheostomy (a breathing tube in the neck), and that there is a chance she would require this in the longer term – this would leave her requiring a permanent placement in a facility able to accommodate this, which may be a neurodisability hospital. Another risk was that she would be at very high risk of infection, both a chest infection related to being on a ventilator, or from a line. This would carry risk of multi-organ failure and death. In the first week, there would be risk from being put to sleep, and also from her heart reacting to us starting to feed her. (§8 of the judgment).
The judge said it was “sobering against the backdrop of that level of risk, to reflect on the fact that the unanimous view of all of those treating and caring for LV is that it should be taken and is in her best interests to do so”. And that was the decision she made.
“I have thought long and hard about all of those risks and detriments as I weigh the balance. The point about the balance however is to look at what it is that falls on the other side. Here when I look at the other side, at what lies in the balance against all that is risky; all that which in other circumstances would be an intolerable affront to her autonomy, what I contemplate is her imminent death. At the moment twice a day, LV is subject to what, in other times and contexts, was called ‘force-feeding’. The means by which it is achieved, for all the empathetic approach and skill of the staff, is not so very far removed from the images which that phrase conjures up. Yet for all the pain distress and indignity of it (during all of which she is emotionally and physically present) it is achieving nothing. LV is starving to death.”(§57, judgment)
And so, the judge concluded: “I am satisfied that it is, in all the circumstances of this most unusual and troubling case, in LV’s best interests to undergo the proposed course of treatment” (§58).
Hearings observed
I observed two subsequent hearings in this case, both remotely and both before Morgan J: the first on 7th April 2025 and the second on 18th June 2025. There have been no further published judgments, so this report is an “update” on what happened with LV after the (only) published judgment in this case, and after the refeeding in the ICU that it authorised. As far as I know, there have been no further hearings since June 2025.
April hearing
LV had been woken up after nearly 7 weeks in the ICU. She had gained weight more quickly than expected and now had a BMI of 13.5.
The views of LV herself had not been canvassed by the Official Solicitor, or by the court, either at the February hearing, or at this one. The Official Solicitor, represented by Fiona Paterson KC had not been able to speak with LV earlier in the year before she went into the ICU due to how ill she was. She said now: “In terms of P being involved in her own case, I have invited her to speak with me over a video link. We’ve been guided by her parents because though happily LV came off the ventilator in the second week of March, she’s been receiving varying levels of sedation, and we don’t want to impose upon her until she feels ready, but have made it clear that we are happy to go on a link and wave at her and say no more, if only to impress upon her that she has her own representation.”[i]
The judge, who expressed repeated concerns (in the published judgment as well as at this hearing) that LV should not be treated as a child, and that her (albeit non-capacitous) views about treatment should be properly elicited, said in reply: “There is no reference to LV’s views being expressed in any reports from various clinicians, so I am much reassured by what you’ve told me”. She also wanted “disclosure of documents and reports about the involvement of this adult patient herself” in treatment decisions going forward. As Fiona Paterson said, however, “to keep calm and tolerate being fed, she’s needed varying levels of sedation and not been well enough to have a chat with someone new. We don’t want to get off on a bad start”.
It was agreed by the Official Solicitor and the applicant NHS Trusts (represented by Vikram Sachdeva KC) that LV should be moved to a Specialist Eating Disorder Unit (SEDU). LV, herself, had expressed a wish to move there. But this was complicated by several factors. First, only one SEDU was put forward as potentially being able to accept LV as a patient. Second, LV required two adjacent rooms, not one, to accommodate her needs. Third, LV’s acceptance to the SEDU was conditional upon improvements in her disordered eating and funding by an NHS Trust provider collaborative. Nevertheless, it was anticipated that LV would be in the SEDU by the end of May.
June hearing
At the time of the hearing on 18th June 2025, LV was still on the hospital ward, and her health was deteriorating both physically and mentally. She was ‘purging’ more frequently and her BMI was dropping. On discharge from ICU in early April, her BMI had been 13.5. By 1st May 2025 it had dropped to 12.2 (representing a loss of 3.4kg since her discharge from ICU). By 16th June, the Trusts (now represented by Victoria Butler-Cole KC) reported that LV’s BMI was 11.7 – very close to where it had been a few months earlier before admission to the ICU.
Things were not going well. The SEDU had not yet committed to giving LV a bed, and the provider collaborative had not yet agreed to fund whatever place the SEDU may offer. Morgan J labelled this, in no uncertain terms, ‘a dismal state of affairs’.
The new counsel for the applicant NHS Trusts, questioned whether the Court of Protection had any further jurisdiction in regard to LV’s care. Morgan J disagreed, emphasising the ‘unattractive’ consequences of ‘drift and delay’ and her unwillingness to “leave this young adult in circumstances where a decision could be made without the best information that can be obtained’“. The judge issued an order directing that the NHS Trust provider collaborative file a statement by 2nd July identifying:
Whether the SEDU had confirmed it would offer LV a place
What the conditions of the offer were, in terms of LV’s physical health and behaviour
The proposed dates of admission, or a fixed date by which that date would be known
Whether the provider collaborative had agreed to fund LV’s placement at the SEDU
If the provider collaborative has not agreed to commission the placement, an explanation for why it had reached that decision
If the SEDU had not made an offer, what the provider collaborative proposed to commission for LV instead.
This is clearly an attempt to bring some certainty and focus to the “chicken and egg” situation, as Morgan J called it, in which LV had found herself: the offer from a SEDU being conditional upon a change in LV’s behaviour, but a change in LV’s behaviour being very difficult to achieve without access to a SEDU. It is Morgan J’s attempt to exert enough pressure on the various parties involved in LV’s care so that LV might leave the hospital ward, where her health was likely to continue deteriorating. Indeed, it effectively encapsulates Morgan J’s repeatedly-expressed dismay and disappointment at “the ever-moving and uncertain responses to the core question that LV is asking, which is: ‘when can I go there”‘”.
The order states that if a place at the SEDU were to be confirmed and a fixed date for LV’s transfer identified, then in that case the hearing—scheduled for 11th July 2025 —would be vacated.
No hearing was publicly listed for this case for 11th July 2025. I hope that LV did, at last, find certainty and solace in a place at the SEDU.
[i]From notes made contemporaneously during the hearing, which (since we’re not allowed to audio-record hearings) are unlikely to be 100% verbatim, but are as accurate as I could make them, with the help Celia Kitzinger who shared her notes with me.
The protected party at the centre of this case (P) is a man who has significant hoarding difficulties. The Local Authority wants him to leave his home – either by agreement or by force – to enable them to clear the property and assess the amount of work that is required to make the place habitable. I think the plan is then for P to go back to live there, as he owns the house himself (it’s a home that he inherited).
I observed the 12-noon hearing below, in person, at First Avenue House in London (COP 14270384), before Tribunal Judge Kaufman.
Background
P is a man with diagnoses of autism and hoarding disorder. He has a brother who supports him, including with managing his finances, but things are very difficult as his brother is said to have health difficulties of his own. Finances are not part of this application – however, more on this later.
The issue for P is that the Local Authority (Brent) has deemed his property in need of urgent clearance (the specific risks said to be posed by hoarding at the property were not described at the hearing). Previous attempts (in September 2025) at clearance with an agency were of limited success (according to the clearance agency) because P remained at the property and ‘progress was too slow to be meaningful. He resisted the removal of certain items and progress was extremely limited.’ (PS from MH Trust).
P has a new CMHN (Community Mental Health Nurse) with whom he is engaging (he didn’t form a good relationship with his previous CMHN). He also meets with his GP, and he does have a good relationship with the person from the clearance agency (I will call him Doug). The CMHN, GP and Doug are working together with P to try to find a way to help him to allow his house to be cleared, with as little distress as possible. An ‘autism informed communication plan’ is being drawn up. It sounds like it’s all quite difficult and P both wants things to change in theory and is distressed at the prospect of it and resistant to it in reality.
A referral to specialist tertiary clinic has been made by the Mental Health Trust, for assessment and possible treatment of P’s hoarding – but the ICB has refused funding for this, and the Mental Health Trust is appealing this decision.
An expert psychologist, Professor Paul Salkovskis, has been approached to see if he’s available to assess P and make a report to the court (I am not entirely sure what he’s being asked to report on).
The hearing we observed was to decide whether (and the extent to which) to authorise the LA to clear P’s property without him being there, and (if authorised) where P should go in the interim.
The Hearing
P wasn’t at the hearing, although he was aware that it was happening, and his counsel (Asma Nizami via the Official Solicitor) said that P “did get in contact with [his solicitor] yesterday, making it clear he had been intending to send an email with points he wishes to make”, but that “he’s not had the time or the mental clarity to put it together, but he wants to put it together and wants it to be conveyed verbatim to the court. He’s not in a position at the moment [to do that] and he would have wanted to come to court today to speak to us, but 10am would be impossible for him at the time”.
Other parties in this case are the Local Authority (represented by India Flanagan) and P’s Mental Health Trust (Central and North West London NHS Foundation Trust, represented by Emily Campbell).
The Local Authority wanted the judge to authorise a two-stage clearance plan: Stage 1 is that P is told that the court has ordered him to vacate the property, and he (hopefully) agrees to go elsewhere whilst his property is cleared. Failing that agreement being reached, Stage 2 is that P will be removed forcibly, using restraint if necessary (by a company called Secure 24).
The Mental Health Trust and the LA were asking the judge to authorise both steps at the hearing. The Official Solicitor, acting for P, expressed disquiet about the lack of a detailed plan from the LA, should Stage 2 be required:
Counsel for P: We would invite the court to take a staged, a cautious approach. [P] is likely to be very distressed with the prospect of removal – there is evidence already that he was distressed at the end of September when [Doug] attempted to remove things. To put it concisely: Stage 2 is not fully thought out. If Stage 2 is to be considered by the court, a proper restraint plan is needed.
It’s not clear what staged, incremental approach the court is being asked to approve. At the moment, the clearance plan refers to ‘prone restraint’ being authorised. There is the potential that when [P] would be lying down face down, it would be extremely restrictive [Judge: …. and dangerous]. Exactly, and there is guidance from the Department of Health which rules it out in most cases.
In brief the terms the OS is not in a position today to approve the restraint plan, or prone restraint. It also refers to mechanical restraint, which includes handcuffs. [P has] no history of violence, security is not an issue, he’s not at risk of harm to anyone else.
Taking all these points into account, we would say the position [that is] in [P’s] best interests is solely to authorise Stage 1 at this stage, and it to be made clear to [P] that he is being asked by the court to vacate his property so that clearance can take place because the court has determined it’s needed, and it’s hoped that because [P] is a law abiding person who respects the authority of the court, that he will act in line with that. [counsel’s emphasis]
Counsel for P also expressed some reservations about the proposed interim place for P to live:
Counsel for P: The Local Authority [LA] is referring to a placement called [XX] as a ‘BnB’. But we have received an email from the LA today that summarises that it is NOT a BnB. It’s not open to the public and does NOT operate as a BnB, it’s not online, it’s just a semi-detached property, it does not operate as a public facing venture.
Judge: What is it?
Official Solicitor: It’s an emergency housing provider – there are 3 flats, A B C. One is privately rented out, the other two it seems are used by different clients for emergency housing. So …. hospitals and LAs referring clients with nowhere else to go. So, it’s misleading to refer to it as a BnB. […] What we would ask court to do is to step back and review whether this is the best place for [P].
Counsel for the OS went on to say that P had previously (2017-2021) stayed in a hotel, and that same hotel has availability, but the LA says that it doesn’t fund ‘private hotels’. However, she observed, “Whilst the LA says it doesn’t fund private hotels, there’s a contradiction because it’s willing to fund the so-called BnB.”
The judge adjourned the hearing for lunch whilst the LA sought pictures of the proposed ‘BnB’ accommodation. Counsel for the OS specifically asked to see the floor plan, and photos “covering the communal area and bedroom he would occupy”.
Given the earlier report that P wanted to express his views to the court but had not had the ‘time or mental clarity’ to send an intended email to the court, I did wonder why the OS hadn’t sent a legal representative to meet with P and provide a report on his wishes and feelings, especially since the case was long-running. As a result, the court was grappling with how to allow for some flexibility in where P goes to stay, should he be willing to leave his home, but not want to go the ‘BnB’. Options seemed limited, but the possibility of him paying himself for the previous hotel he stayed in, or (less plausibly) stay with his brother, were mooted:
Counsel for P: The way you’d phrase it is that it’s in his best interests to vacate and reside elsewhere either at [XX] or another suitable placement chosen by him and agreed by the LA. For example, he may say he wants to go to stay with his brother. That’s unlikely but could be an option he’d want to go with. We wouldn’t want for him to be said to breach the order.
Judge: I think that would have to come back to court, on the papers. I would not want him to be forced to go somewhere he didn’t want to go, if he felt somewhere else was more palatable.
It was clear from early on in the hearing that the judge was ‘attracted’ (her word) to authorising Stage 1 only, it being the ‘less restrictive alternative’. That was the order that the judge made.
Finances
A side-issue cropped up during the hearing – how P’s finances are to be managed. Although this is not part of this application (which is a Health and Welfare application), it became clear that P’s finances are not being managed properly for him. His brother tries to help. He has a pension that he doesn’t seem to be accessing and, worryingly, the LA had made an application to court for a deputyship order back in November 2024. It turned out that the judge (who has overseen this case throughout) hadn’t received the application.
The judge said “I am surprised this has been going on for a year, maybe it’s got lost in the system. They need to be sent so I can look at them. … If you can send me them again I can have a look now.”
Counsel for P said that the previous deputyship application was ‘deficient’ and was ‘paused’.
P himself does not agree that he lacks capacity to manage his finances. I don’t know whether a capacity assessment for finance management has been done.
When the judge received the application (during the hearing) she made an interim deputyship order for a panel deputy to be appointed. She said that, although the previous documents were ‘incomplete’, P and those with an interest in the potential appointment (P’s brother, his Social Worker and the Official Solicitor) had been ‘made aware of the application and there are no objections that have been brought to my attention to oppose the appointment of a panel deputy’. The judge directed that the panel deputy should make enquiries about P’s finances to ‘regularise’ the situation, and that it might be the case that P’s brother takes over the role in future.
Next Steps
P wants to have his voice heard by the court – this was emphasised by his counsel throughout the hearing.
When making the interim deputyship order for finances, the judge said “I also note that he did not accept that he lacked capacity. Given he hasn’t attended this or previous hearings I am going to make an INTERIM deputyship order and he can attend at the next substantive directions hearing. I am more than happy to hear from him his position on deputyship.” [judge’s emphasis]
I was quite surprised, then, when counsel and the judge were setting a date for the next substantive hearing (which will deal with the surveyor’s report on the state of P’s property and the works required, as well as updates regarding P’s finances) P’s own limitations and needs were given little consideration.
Judge: 25th November at 10am 2hours
Counsel for P: Is there any way it could be afternoon to encourage P?
Judge: 11 o’clock ….
Counsel for P: Unfortunately, 11 is same as 10, the earliest he could attend is 2pm. We will encourage him, but the reality is that …..
Judge: 11 o’clock on the 25th November.
I know from attending Court of Protection hearings regularly that judges’ diaries are very stretched and there seems to be little wiggle-room. However, ‘P’ is meant to be the centre of a case, and the court wants to hear from P, so making reasonable adjustments for P’s identified needs to facilitate attendance would seem fair and equitable.
I am not sure why P would find it hard to attend court in the morning, and his counsel had earlier alluded to him struggling to engage with the court, despite wishing and intending to do so. For whatever reason, it sounded like an afternoon hearing was likely to accommodate his needs. That wasn’t what was offered, however, and we have seen that the case has been listed at an earlier date, and still for a morning hearing, on Monday 17th November 11am, via remote link. If you’d like the link to observe email: courtofprotectionhearings@justice.gov.uk with the case number COP 14270384.
The case might have been back in court sooner, depending upon what happens when P is asked to comply with the court’s order to move out whilst his house is cleared. I didn’t spot the case number coming up again in the listings. I hope, whatever happened, that P can be supported through what is likely to be a very difficult period of time for him.
Transparency Matters
First Avenue House in London – the home of the Court of Protection – is geared up for public observers. Staff are unfailingly helpful in my experience, they have printed Transparency Orders ready to hand to you when you tell them which hearing you are there to observe, and they seem on top of changes to listed hearings.
This hearing started a bit late (around 12.30).
In the waiting area, Asma Nizami (counsel for OS) came to speak to us (I was observing with Amanda Hill my colleague in OJCOP) to explain the standard OS position on disclosure of Position statements (following the guidance from Poole J in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3) ), and I was very grateful to Asma Nizami for raising it in court.
Official Solicitor: Another issue – a matter that arose outside of court. The two observers from the Transparency Project have requested PSs. I don’t have instructions from the OS …. I am aware from a recent hearing, the OS position has changed as result of the Poole judgment. The OS has not been agreeing to disclose PS without an order from the court. The reason for that is because we don’t have evidence that [P] would agree that his PS can be disclosed to an observer. That leaves us – you can direct if observers ask court to direct this.
Judge: I have got the draft order I don’t know if there are significant changes to the draft or amended draft in process?
Oddly, the judge didn’t address the issue raised by the OS at this point, and counsel raised it again (thank you!) at the end of the hearing: “Before you rise – can I ask for clarity on the Position Statements?” (Official Solicitor)
The judge asked us to confirm we had received the Transparency Order (we had been given this as a paper copy by the court staff at First Avenue House when we arrived). She then ordered disclosure of PSs to us as observers. And that was that.
I received the Position Statement for NHS Trust Central and North West London NHS Trust) the day after the hearing and the PSs for the two other parties two days later.
Thank you to Asma Nizami for raising the request for the judge to direct that Position Statements should be provided to observers, and to all counsel for providing Position Statements following the hearing. It makes an enormous difference to our understanding of the case.
Being able to read the PS for the Mental Health Trust has been very helpful. This case has been ongoing since the 20th June 2024 and the PS provides crucial background information that I would otherwise not know. It helps me fully to understand the judicial process, making it accessible to me as a member of the public.
Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core team of the Open Justice Court of Protection Project and has published dozens of blog posts for the Project about hearings she’s observed (e.g. here and here). She is on X as @DocCMartin, on LinkedIn and on BlueSky as @doccmartin.bsky.social
The Supreme Court hears cases from across the United Kingdom on a vast array of different topics. The former President, Baroness Hale, had a unique insight into mental health and capacity law because of her academic background and experience as a judge of the Family Division. It is, perhaps, unfortunate that none of the current Justices have experience of sitting in the Family Division in England.[2] However, what is inevitable is that, in many cases before the Supreme Court, the Justices will not have the same intimate subject-matter knowledge as specialist lawyers and other professionals interested in the outcome. It is the role of the advocates to explain the necessary background – and in this case some of the leading advocates in the field of mental capacity law were instructed to present the arguments.
What made this case particularly difficult was the absence of a factual matrix against which to test and present those arguments. The vast majority of cases before the Supreme Court are decided on facts determined by a first instance judge. In other contexts, the courts have emphasised the importance of developing the law “on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true”.[3]
References on a point of law are a product of devolution. Under the Northern Ireland Act 1998,[4]and equivalent Scottish and Welsh legislation,[5] the relevant Law Officer may refer a “devolution issue” which is not the subject of proceedings directly to the Supreme Court. However, even in this context, the Supreme Court has said that “it is desirable that legal questions be determined against the background of a clear factual matrix, rather than as theoretical or academic issues of law”. It recently declined to determine a Northern Irish reference where the same issue arose in pending proceedings.[6]
“Devolution issues” include questions of whether a proposed exercise of a function by a Northern Ireland department would be invalid because it would be incompatible with Convention rights.[7] The question referred to the Supreme Court by the Attorney General for Northern Ireland was whether proposed revisions to the DoLS Code of Practice in respect of consent would be incompatible with Article 5.
It is understandable that the Attorney General for Northern Ireland would want the Supreme Court to determine this question before implementing the proposed revisions. Those revisions (a) conflict with the unchallenged assumption in Cheshire West that a person who lacks mental capacity cannot consent to arrangements that objectively amount to a deprivation of liberty; and (b) remove from the procedural protections of Article 5 the very people who are affected by the revisions (thus inhibiting the practical ability of those people to bring an effective challenge to the new regime).
However, many of the hypothetical arguments and postulated facts raised at the hearing concerned not the issue of consent on which the Attorney General sought guidance, but the wider issue of whether Cheshire West was correctly decided viz. the “acid test”. [8]That question was raised late in the day by the Secretary of State for Health and Social Care who does not have standing to refer cases directly to the Supreme Court himself and who could, at least arguably, have pursued the issue by intervention in a substantive case before the Court of Protection.
It remains to be seen whether the Justices will take up the Secretary of State’s invitation to revise the “acid test”.
Peter Mant K.C. and Nicola Kohn, both of 39 Essex Chambers were instructed (with Sarah Westoby of Leigh Day) on behalf of the AIRE Centre to intervene in this case: permission to intervene was refused by the Supreme Court. Peter acted for the local authorities in Cheshire West.
[1]A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 UKSC/0042
[2] Save for Lord Stephens who sat in the Family Division in Northern Ireland from 2008 to 2014.
[8] The so-called “acid test” is found at para 54 of Cheshire West: a person is deprived of their liberty if they are “under complete supervision and control… and… [are] not free to leave the place where [they] live…”
Over the course of three days (20th – 22nd October 2025), the Supreme Court of the United Kingdom heard a landmark case[1], the outcome of which will affect the lives of thousands of disabled people – specifically those with cognitive impairments including learning disabilities, dementia, brain injuries and mental health issues.
Judgment won’t be handed down for some time – probably during the first half of 2026 – and it will have significant implications for the way in which “deprivation of liberty” will be interpreted in the Mental Capacity Act 2005, and for the way decisions are made in the Court of Protection in future on behalf of those deemed to lack capacity in relation to residence and care. This outcome really matters to people with disabilities, and to their families, friends, and carers, to health and social care professionals, to lawyers working with the Mental Capacity Act, and to everyone who cares about equality and social justice.
This blog post is not about the substantive issues in the case – which are amply covered in our blog posts both in advance of[2], and subsequent to, the hearing[3] – though I’ve given a very brief summary below. Instead, my focus is on how open justice played out in relation to this case. Did it work? Did it achieve what the judiciary, who aspire to transparency, hoped it would? The verdict is mixed: the practicalities worked pretty well on the whole, but the experience of observing left a sour taste for many.
In Part 1, I report the good news: that there was a more-than-usual degree of transparency in relation to this hearing. The Supreme Court was most definitely open to the public (in person and via live-streaming, and a video-recording subsequently placed on the website) and the court has also made effective efforts to make its subject matter accessible (e.g via skeleton arguments members of the public can download from the court website, and an agreed “Statement of Facts and Issues”) and to help us understand the process (via a four-page paper handout provided to those attending in person). This was all really helpful (and much more transparent than our standard experience of the Court of Protection). The judicial aspiration for transparency was supported by the Open Justice Court of Protection Project, via blogging, and a contemporaneous discussion group, with more than 150 participants, which operated over the three days of the hearing, live, as it was taking place (and continues with sporadic discussion of relevant issues). That’s open justice in action.
The bad news (Part 2) is that many of those who watched and discussed the hearing – people with specialist expertise in the relevant subject matter (the Mental Capacity Act and Deprivation of Liberty Safeguards[4]) – are dismayed by what they saw. This was true, at least, of the majority of the 150+ people who participated in our WhatsApp discussion group. This is not (or not only) because they are concerned by what they characterise as the poor level of knowledge and understanding displayed by the judges (and by some of the lawyers) and disturbed by the disablist language and assumptions displayed. They also don’t think the judges have the requisite knowledge base to understand what’s at stake, and they don’t trust that the lawyers’ submissions will have been sufficient to help them. Having seen the public hearing, they lack confidence that the judgment (when it comes) will be the right one.
This is an ironic outcome of open justice – and one not much discussed in the published judicial enthusiasm for transparency, which seems predicated on the idea that once we, the public, get the chance to see what’s going on in court, we will admire and applaud it.
Open justice is generally represented as “a principle which allows the public to scrutinise and understand the workings of the law, building trust and confidence in our justice system” (Mike Freer MP, Parliamentary Under Secretary of State for Justice – my emphasis)[5]
Ensuring public confidence in, and respect for, the justice system has long been cited as a key justification for open justice: “… in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect” ( Lord Atkinson in Scott v Scott [1913] AC 417, at 463 – my emphasis)
According to Lord Neuberger, “public awareness of what happens in our courts serves to bolster public confidence in the administration of justice”[6] (my emphasis)
Lady Hale says “…open justice is there, not only to police the courts and the professionals who work in them, to ensure that they are doing their jobs properly, but also to reassure the public that they are doing so”.[7] (my emphasis)
The Chair of the Judiciary’s Transparency & Open Justice Board, Mr Justice Nicklin, says (in a published lecture[8]) that open justice is a means to an end, and not an end in itself: “it is a means to public understanding, scrutiny, and confidence”: its purpose is “the maintenance of confidence in the courts” (my emphasis).
But the outcome of open justice in this particular case has not been public confidence and respect, reassurance, or trust in the courts. Instead of bolstering public confidence in the judiciary (and the Bar), it’s undermined it. Watching the hearing was dispiriting and, at times, enraging. The overwhelming response to what happened in court is disappointment, anxiety and concern about what the judgment will bring.
We see ourselves as critical friends of the justice system. None of those involved in our Project is branding judges “enemies of the people”, imputing improper motives to the judges in this case, or seeking to impede the administration of justice.[9] Rather, in relation to this case, we are exercising a right of criticism. As was famously said: “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”.[10]
If any part of this commentary makes its way to a Supreme Court judge, I hope there may be some benefit for them in seeing themselves as others see them. It may be that they think us wrong-headed and misguided – but the observers’ views are held in good faith, and even if we’re all wrong, there is obviously a public relations problem. The challenge for the judiciary (and, it has also to be said, for the Bar) is to learn some lessons from what happened in this case and try to ensure that open justice in the Supreme Court in future does result in increased public confidence and respect and not – as in this case – the reverse. I reflect on what might assist that project at the end of this piece.
I’ll begin with a quick summary of the case (which goes by the catchy name “Reference by the Attorney for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998”), before moving on to the central issues: (1) Open justice in practice; and (2) Public experience of the proceedings. Then I’ll end with (3) Reflections
Summary of the case
The case addresses fundamental issues about the way the Deprivation of Liberty Safeguards work currently in England and Wales, and whether they can lawfully be changed.
The legal question at the heart of the case (raised by way of a reference from the Attorney General of Northern Ireland[11]) is whether or not it is permissible under Article 5 of the European Convention on Human Rights (the right to liberty and security) for the law to say that a person who lacks capacity to consent to their care arrangements can nevertheless give valid consent to those arrangements if they actively express positive wishes and feelings about the arrangements in place.
At present, following the 2014 Supreme Court judgment in Cheshire West [2014] UKSC 19, the answer to that question in England and Wales is a resounding “No”.
The Cheshire West judgment found that if a person lacks capacity to decide where they live and are cared for, and if they are subject to continuous care and supervision and not free to leave, then – if their living arrangements are ‘imputable to the state’ – they are said to be “deprived of their liberty”, even if they say they like where they’re living and appreciate the way they are being cared for. As Lady Hale famously put it in Cheshire West, “a gilded cage is still a cage”.
By contrast, if someone has capacity to consent to where they live and to the restrictions placed upon them, and does in fact consent, then – even if their care involves locked doors and windows and constant monitoring to keep them safe – that’s not a “deprivation of liberty”, because they’ve consented.
Many of the people currently detained in care homes and hospitals (more than 332,000 in England in 2023/2024 according to NHS statistics) lack the capacity to consent to arrangements put in place to protect and care for them. Because there’s no valid consent, this currently constitutes a “deprivation of liberty” – and that has legal consequences in relation to Article 5 of the European Convention on Human Rights (ECHR) .
The Deprivation of Liberty Safeguards (DOLS) are designed to ensure that the detention of people who lack capacity to consent to their residence and care arrangements is compliant with human rights. The arrangements must be the least restrictive possible, and in the person’s best interests. Although the concept of ‘best interests’ does take into account the person’s wishes and feelings, the fact that someone may be content or even happy with their care arrangements and positively wish them to continue does not in and of itself constitute “consent”.
The Attorney General is asking the judges to decide whether a non-capacitous person’s display or expression of positive feelings about their residence and care could be deemed to be “consent” – or whether that would breach Article 5.
So, if you have an impairment of mind or brain (such as a learning disability or dementia) that causes you to be unable to understand, retain or weigh information relevant to the decision about where you live and how you are cared for, can you ever be deemed to “consent” to your care arrangements? Might you ‘consent’, for example, by showing that you like the place and the people, and feel safe and cared for?
“Yes” says the Attorney General for Northern Ireland (AGNI) and two of the interveners, the Lord Advocate and the Secretary of State for the Department of Health and Social Security. Allowing “consent” under these circumstances would comply with Article 5 of the ECHR but also avoid imputing “deprivation of liberty” to people who are happy with their care – and thereby avoid unnecessary and expensive interference in the lives of disabled people and their families, with repeated assessments that can be distressing and intrusive. The UK government goes even further, arguing that Cheshire West was wrongly decided, and urging the court to overturn it. The Secretary of State argued further that some people who are currently deemed to be ‘deprived of their liberty’ – those incapable of consenting, who cannot form the will to leave, and don’t have the physical ability to do so (e.g. people in a prolonged disorder of consciousness) should not be caught by the Deprivation of Liberty Safeguards at all[12].
“No” say the Charities who are also intervenors in this case (Mind, Mencap and the National Autistic Society) and the Official Solicitor. Both the Charities and the Official Solicitor have intervened to argue that the concept of “incapacitous consent” is legal nonsense, in relation to the Mental Capacity Act 2005, and in relation to Article 5. A change to the law by this revision of Cheshire West would be unworkable in practice (they say), and would have the effect of denying safeguards to people who are vulnerable to harm.
1. Open justice in practice
Open justice takes work: as Mr Justice Nicklin has said, it’s “not self-executing”. In this Supreme Court case, the work was done both by the Court (and HMCTS) and by the Open Justice Court of Protection Project, and both were necessary to the successful achievement of open justice in this case.
The Open Justice Court of Protection Project is run by a core team of five voluntary (unpaid) members of the public (Daniel Clark, Amanda Hill, Celia Kitzinger, Gill Loomes-Quinn and Claire Martin: for more information about us see “Meet the Team”). Our goal is to support the judicial aspiration for transparency by observing hearings (the vast majority in the Court of Protection), blogging about them, and encouraging other members of the public to observe too. We amplify the reach of published court lists by posting them on social media and select out “Featured Hearings” for our webpage – sometimes adding a brief summary of a case or referring people to a blog post when we’ve watched earlier hearings in the proceedings. We also run regular webinars on “how to observe remotely in COP” and a WhatsApp group for observers, where people post questions and information about hearings they hope to observe. Finally, our “buddy system” provides support for people who would prefer to attend court hearings (usually remotely) in the company of an experienced observer who can help with access queries, explain the transparency order, and discuss substantive issues in the case, live, as it unfolds in real time[13]. Our buddy system can attract quite large groups of observers, depending on the case, but it’s often simply one-to-one.
The Supreme Court is much more open and transparent than the Court of Protection, so this case offered the opportunity for something much more extensive on the transparency front than we can normally achieve. Like the cases we normally observe in the COP, this case was heard in public, and it was possible to watch it in person or remotely, but there are some very significant differences.
Details about the hearing. Information about what the hearing was about was displayed on the court website months before the hearing, with a summary of the issues in the case. In the COP we usually only learn about hearings after 4pm the day before, and sometimes there’s no information at all as to what hearings are about. Where there is information, it is simply items selected from a pre-set list of “descriptors” (DOLS, s.21A, Appointment of Deputy, statutory will etc). This means, for COP cases, it can be hard for observers to plan ahead, select and to orientate themselves to cases. In addition to the advance notice and information about this case before the Supreme Court, I was impressed by the four-page paper handout provided to those who attended the court in person, which spelled out the issues, and provided key facts, plus a sketch of the seating plan at the judicial bench (so helpful in identifying the judges!), and the names of all the advocates so that we’d know who was speaking and on behalf of which party. (Identifying judges isn’t a problem in COP since there’s only ever one at a time, but discovering the names of the advocates in court and identifying who represents which party is often tricky in COP too.) The paper handout also gave the timetable for the three days – and I really don’t see why something like this couldn’t be provided to observers in COP hearings listed to extend over several days so that we can orient ourselves to the planned sequence of events.
The hearing was live-streamed and a public recording made available afterwards. The Supreme Court of the United Kingdom was created by the Constitutional Reform Act 2005 and it has broadcast its proceedings since its inception in 2009. Live-streaming meant we didn’t need to ask the judges’ permission to observe, or request an MS Teams or Cloud Video Platform link, with the risk of nobody answering our email, or responding too late. Also, watching a live-stream is more like watching television – there’s no anxiety about being addressed by court staff or even a judge (as happens quite frequently in COP), or broadcasting a private conversation to the court by accidentally turning our mikes on. We could dip in and out of the hearing without causing any disruption. I watched part of the live-stream on my mobile phone while sheltering under Westminster Bridge during a downpour on my way to the Supreme Court! The recording is now available to view on the court’s webpage (https://www.supremecourt.uk/cases/uksc-2025-0042) – which means people who weren’t able to watch it at the time (during the working day) or missed parts due to other commitments, can watch it later. I also used the recording to check the accuracy of my transcription in writing this piece – a luxury not available to me when I report on COP hearings. There are good arguments of course against live-streaming COP hearings and placing recordings on public websites – especially given that the protected party and their family are often involved – and I don’t rehearse those here.
There are no reporting restrictions. That’s because there’s no protected party at the centre of this case. Almost every COP hearing I’ve observed has been about the capacity and/or best interests of a particular person (“P”), who has the right to privacy. Reporting restrictions, in the form of a ‘transparency order’, are designed to ensure that observers can attend and report on the case without the risk of exposing the person’s identity. This Supreme Court case, by contrast, is an argument about a point of law.
Skeleton arguments were posted on the court website and available to download six days before the hearing. This meant we could read them ourselves, and consider their arguments, before the case began – and for those who didn’t have time or inclination (they are lengthy and complex) Daniel Clark, the core team member who took responsibility for publicising the Supreme Court hearing, produced a summary of them[14], which turned out to be a popular option. In COP, advocates produce what are called “position statements” (effectively the same as skeleton arguments) and it is virtually impossible to obtain these in advance of the hearing. They are often referred to in oral argument, and indeed replace some of the oral argument that would otherwise be before the court, making it very hard to understand what is going on without disclosure of them. We are sometimes (but still only sometimes) able to obtain them within half an hour or so of the beginning of the hearing (but that doesn’t leave much time to read them). The barriers to getting them any earlier (especially in the face of the Official Solicitor’s now-routine refusal to disclose her position statement without being so directed by the judge) have been documented in other blog posts, and the whole issue of access to position statements has very recently (and helpfully) been addressed by Mr Justice Poole in Re AB (Disclosure of Position Statements)[2025] EWCOP 25 (T3). But we still have to email the court to request position statements, those requests quite often don’t reach the legal representatives before the start of the hearing, and we regularly encounter refusals to disclose the documents. Refusals are almost always over-ruled by a judicial order to disclose if an observer makes an oral application, but most members of the public are unwilling or unable to go through the process of challenging a refusal (as set out at §36(7) and (8) of Poole’s guidance). Even when parties don’t refuse to disclose, access to these court documents is routinely delayed by legal teams not having instructions from their clients (why don’t they anticipate that members of the public might attend public hearings and get instructions on disclosure in advance?) or by not having redacted or anonymised their statements in compliance with the transparency order (despite the guidance that “[p]arties preparing position statements should foresee that an observer at an attended hearing in public might request an electronic or hard copy and should therefore prepare suitably anonymised position statements which comply with the Transparency Order” (§36(2)). I appreciate why it isn’t possible to put COP documents on a public website in advance of the hearing, given the sensitive personal information they contain, and I also appreciate there has been a massive improvement in disclosure of position statements following Poole J’s judgment. But what a difference it makes to transparency to be able to download skeletons from a website and read them at leisure days in advance of the hearing!
This is a landmark case, affecting thousands of people’s lives: we had lots of advance warning about the hearing, no transparency restrictions, and lots of documents about the case available in advance, plus some experience of doing something like this before in the Supreme Court, albeit on a smaller scale.[16]
Amplifying open justice for the Supreme Court
Building on the opportunity offered by the Supreme Court’s much greater transparency, Daniel Clark, took overall responsibility for amplifying it. Some of the tasks involved (which make visible what it takes to make transparency a practical reality) were:
Asking the Court for easy (or easier) read version. Celia approached the Supreme Court about this, asking whether the case descriptor could be updated so that it was easier to understand. While the descriptor was somewhat simplified in time for the hearing, it was a long way from “easy read”. (Perhaps one of the charities will produce an easy read version of the judgment?)
Chasing skeletons. The Supreme Court’s Rule 42 states that skeleton arguments will be published a week before the hearing. After a bit of back and forth with the court, some of which implied that the court regularly doesn’t meet its own deadline, most of the skeleton arguments were published on 14th October 2025 – so six days before the hearing. Another was added two days later.
Answering questions from the public in advance. Some of the people in the WhatsApp group had experience of observing Court of Protection hearings, and so there were some questions about how we’d be able to watch this hearing given that we didn’t need to ask for links to be sent to us. There were also some questions about whether there’d be any reporting restrictions (no) and whether we’d need to ask for skeleton arguments (also no).
Coordinating blogs. Ahead of the hearing, we decided to publish a mix of explainer and commentary blogs. In the end we had a steady flow of blogs in the couple of weeks before the hearing, and these assisted discussion in the WhatsApp group.
Setting up the WhatsApp group. We wanted to ensure maximum reach and advertised the group widely on social media. We decided early on to ask participants to observe the Chatham House Rule so that people could speak more freely about their opinions and experiences. Only Daniel Clark, as organiser, has waived his anonymity.
Managing the WhatsApp group. This meant ensuring that everybody who asked for it was sent the access link, and as people joined throughout the three days, we made sure that useful information – links to the blogs, images of the handout provided by the Supreme Court, the link to the live-stream itself – was re-sent.
Updates. After the first day, one group member suggested that a summary of the day’s argument would be helpful. Daniel was happy to oblige, initially posting it on our homepage and then turning it into a blog post that he updated each day. As expected, people were dropping in and out of the hearing and the discussion of it, and Daniel’s updating blog meant that someone who missed (for example) the afternoon of day one could still have an idea of what had happened in time for the start of day two.
Daniel explains what motivated his work on this project.
“In a speech in June of this year, Mr Justice Nicklin, the Chair of the Judiciary’s Transparency and Open Justice Board, said that “open justice is not self-executing”. I agree. In terms of transparency, the Supreme Court was close to perfect – simple access, pre-published skeleton arguments, even a pre-published statement of agreed facts. As the Supreme Court had done its best for transparency, I felt we could build on that by making the hearing even more accessible and transparent via the WhatsApp discussion group. But I have to admit that this wasn’t all about transparency. A chapter of my PhD thesis is dedicated to DoLS, so I simply had to observe this hearing, and I knew that the group would be a great opportunity to share thoughts and questions. Now I just have to think about how my thesis, which will almost definitely be submitted before the judgment, can address this case.”
On 15th October 2025, four days before the start of the hearing, Daniel set up the discussion group. People began joining and introducing themselves soon after.
Many of the 150+ people who joined our discussion group have their own strong views about the deprivation of liberty safeguards, based on professional and/or personal experience. Group participants include social workers, DOLS and best interests assessors, COP lawyers, academics, healthcare professionals who work with the Mental Capacity Act (often as MCA Leads), and family members of people who’ve been assessed for DOLS.
We wanted to hear the arguments, and the questions of the judges, as they unfolded in real time, and to be able to discuss them with others who were also invested in the decisions that the Supreme Court will (eventually) arrive at.
This is open justice and transparency in action. And, as is usually the case in our experience, we can’t rely on journalists for that: we hardly ever see journalists in the Court of Protection, and I don’t know if there were any in observing in real time in the Supreme Court (remotely or in person).
Rather than learning about the Supreme Court’s deliberations at second-hand, filtered through the lens of the (relatively few) journalists who’ve reported on the case with heavy reliance on press releases and without attending the hearing, we wanted to have the experience of being there, in court, with the advocates, judges, and other observers – and to engage with the issues as they emerged.
In the run up to the start of the hearing
In the days prior to Monday 20th October 2025, the date for the hearing to start, Daniel used the WhatsApp group to highlight the blogs and the skeleton arguments.
On the Saturday, there was a surprise announcement from the government: it was launching a consultation exercise about the long-awaited Liberty Protection Safeguards. I posted that on the WhatsApp group too.
There were some sceptical responses about the timing of this announcement (at the weekend, just before the beginning of a Supreme Court case on the Monday) but one more charitable participant commented:
Early on the Monday morning, Daniel reminded everyone of the benefits of doing some advance preparation:
Quite a lot of people had joined the link over the weekend (and the numbers steadily increased over the course of the three days of the hearing). For many of us, there was a lack of clarity both about where the link would be posted and what time it would start. (The Court could usefully help with both of these issues in future.)
One contributor had been informed that the hearing would start at 10.30am, but another said one of the advocates had told him it would be 11am (which turned out to be correct).
And someone attending court in person (not me, I hadn’t arrived yet) had found the 4-page handout, and photographed it for people observing remotely. That was enormously helpful – but couldn’t it have been placed on a Supreme Court webpage please?
And while we were all waiting, people began to discuss the substantive issues of the case.
At 10.18am, someone spotted that the link to the hearing had been made available and posted it for all of us.
Then, on the dot of 11am, the court rose.
Access challenges
Participants observing remotely experienced problems with the volume – it was “very quiet” and sometimes “dips in and out”. Turning up the volume on our laptops helped. It was frustrating not to be able to turn on subtitles on the livestream (you can on the recorded version) and that raises access issues for Deaf people and those with hearing impairments. A few participants were also still looking for the link.
I was observing that day at the Supreme Court in person – and that was a generally good experience, that compared well with my experience of in-person observation at other courts. There was less of a queue than at the Royal Courts of Justice to get through the usual airport-style security. Staff were able to direct me to the right courtroom – and despite the warnings on the website, there was no objection to my using my laptop in the courtroom (many other people had theirs out too).
The main problem with in-person attendance was terrible sound quality on the first day. I simply couldn’t hear from the back of the court. When I complained to court staff, I was advised to sit in Court 2 which was live-screening the hearing from Court 1, but that would have rather defeated the purpose of being there in person. I also mentioned the problem to a couple of the lawyers (one of whom said she was struggling to hear too), and the following day it was somewhat improved – although even the judges occasionally had problems (Lady Rose to Lord Advocate: “I’m so sorry can you keep your voice up – I’m struggling to hear when you’re facing that direction”, 14:30 21st October 2025 morning session).
As always, the in-person court observer, sitting toward the back of the room, has a distant view of the judge(s) and can only see the backs of the advocates’ heads. It’s obvious from the online discussion (and, later, to me when viewing via the link) that remote screening provided a much more up-close-and-personal viewing experience. I missed the “side eye” from Lady Rose, and didn’t see Alex Ruck Keene apparently “bobbing up and down”. The advocates had their backs to me, and most of the time I couldn’t see the judges (and certainly not anyone in the row behind the judges) because the judges are not on a raised dais, the seating isn’t raked, and I was sitting behind people taller than me who were obscuring my view. I admired Lady Rose’s brooch (commented on in the chat) once I reviewed the recording but it was way too far away to appreciate in the courtroom! In terms of the quality of the observation (listening and seeing the court), the online experience is vastly superior[17].
Nonetheless, to be in the Supreme Court in person for a historic case –to be able to say “I was there on that day” (as someone put it) – “in the room where it happened!” (another responded) – was exciting and some of the remote observers expressed envy that I was able to be there is person. Another in-person observer shared images from inside the building (we weren’t allowed to photograph the hearing in progress):
Courts are public buildings, and this one (unlike most) seemed to function as such. It’s a minor tourist attraction, after visiting the Houses of Parliament and photographing Big Ben. During the time I was there over the course of two days, I spotted at least three different student groups visiting the lower ground floor exhibition and the café, and one group of about a dozen young people filed into the hearing and stayed for about 15 minutes before being led out again after experiencing the Supreme Court in session. The exhibition has short educational videos on continuous loop (e.g., on the separation of powers) and the illustrative cases are designed to appeal to public interest (e.g. treatment withdrawal, assisted dying, civil partnership). It’s less grand and austere than the RCJ, less ‘bureaucratic’ than First Avenue House, and not at all shabby and depressing like many of the decaying regional courts. I’d recommend a visit.
After the proceedings, people who’d missed observing at the time were keen to watch the recordings, and others wanted to listen again to particular parts. I made this slide (below) to help people locate particular speakers on the recording, and it may be useful to readers of this blog post too, in providing an orientation to how the hearing was organised.
2. Observers’ experience of the proceedings
The sense of excited anticipation that characterised the build-up to watching the hearing subsided fairly quickly once proceedings began. It became apparent that there was a significant gap between the observers’ professional and experiential knowledge about the Mental Capacity Act 2005 (and Deprivation of Liberty Safeguards) and the legal theory being discussed in court. The discussion group comments reflect increasing dismay – and commentary about the hearing cascaded out of our private WhatsApp group onto social media.
Social worker and experienced Adult Care Manager, Tilly Baden, who has ‘outed’ herself as a member of our Supreme Court observers’ group in her article for Social Work News, reports that over the course of the three days, observers “veered between disbelief and gallows humour. The collective feeling was one of weary frustration”.
“It often felt like an out-of-touch seminar on the theory of umbrellas while the rest of us were standing in the rain. There were points where you couldn’t help wondering whether some participants had ever set foot in a care home, spoken to a best interests assessor or even – *shock horror* – met a person actually living under restrictions. […] While the heavyweight legal parties flexed their procedural muscles, those who live and breathe the Mental Capacity Act were almost invisible. No frontline workers, no family carers, no advocates. Just a roomful of wigs[18]dissecting the philosophy of liberty as if it were a word puzzle rather than a lived experience.”[19]
This doesn’t tell the whole story of our experience, but it’s certainly a significant part of it. We were repeatedly surprised by what the courtroom actors appeared not to know about the way the current law works, in the daily experience of many observers.
The exceptions were undoubtedly Victoria (Tor) Butler-Cole KC (for the Charities) and Emma Sutton KC (for the Official Solicitor) – both of whom regularly appear in Court of Protection proceedings and have an excellent grasp of issues on the ground. Both pointed out that because of the way this case has reached the court – as a Reference – “you have no real-life examples of these hypothetical people who simultaneously lack capacity to consent to their care arrangements, but can nevertheless give valid consent to them for the purposes of Article 5” (Tor Butler-Cole’s words). Emma Sutton KC likewise drew attention to the absence of real people at the heart of this case and sought through evidence placed before the court to “bring the abstract to life”. Her “case studies” wove human stories with legal argument to make the case against the AGNI’s and SOS’s proposals, and humanised the issues with concrete examples of the dilemmas and contradictions that would be created if the AGNI’s proposals were adopted – cheered on by the observers in our discussion group. Both lawyers impressed observers with their clarity and the sense that they were in touch with how processes actually work. Their submissions were rooted in practical hands-on experience with DOLS in real cases.
But the overall experience of observers was that key players, the people with the most extensive input into the hearing – the judges, and counsel for the Attorney General of Northern Ireland (AGNI), counsel for the Secretary of State, and the Lord Advocate – did not really understand the way things work at present, and were not in a good position to appreciate the risks and benefits of the changes advocated in this case.
I’ll illustrate the concerns expressed by observers as they unfolded in the order in which submissions were given. In what follows, I’m not attempting to summarise the arguments of the parties (you can read the skeleton arguments on the UKSC website and the “summary” blog post for that), but rather to show how the public observers responded to what they were hearing.
The proceedings got off to a bad start when Tony McGleenan KC (counsel for the AGNI) introduced the case. He said: “The focus of the case is on the phenomenon of social care detention wherein many thousands of people with diminished mental capacity who are resident in forms of social care placements, which might be residential homes, care homes, assisted living placements or even in their own homes, are considered to be deprived of their liberty for the purposes of Article 5 of the Convention.” (05:30, 20 October 2025, morning session)
One observer immediately picked up on the omission of hospital care in considering DOLS (it was discussed by the court later).
One of the judges, Lady Rose (generally considered most ‘on the ball’ by observers) tried to unpick a different problem with the AGNI’s version of “the focus of the case”: the inclusion in his list of places of confinement to which Article 5 might apply of “in their own homes”. It doesn’t – at least not in England and Wales. Perhaps it does, she queried, in Northern Ireland.
Rose: This [DOLS] in England and Wales is for (pause) care home and hospital?
AGNI: Yup.
Rose: But are you saying this is the process in Northern Ireland, which I don’t think has that same distinction between deprivations of liberty in care homes and hospitals and other deprivations of liberty?
AGNI: The reach is wider in the Northern Ireland legislation.
Rose: Yes, so is this the process that applies in Northern Ireland more generally even if it’s not in a care home or hospital?
AGNI: Yes, the broad concepts apply in Northern Ireland, but I’ll show you there’s a greater reach. And there are some other material differences. That’s just to sketch the issue to the court. (13.07, 20 October 2025, morning session)
Lord Reed tried again, raising the question of the precise reach of DOLS in Northern Ireland, and indeed perhaps in England as well – rather a key issue for this hearing! It was Alex Ruck Keene KC (Hons) (ARK) – “junior counsel” for the appellant, who provided the court with the right answer.
Reed: Is DOLS applied more widely in England and Wales to cover cases like MIG and MEG, where someone isn’t in a care home?
AGNI: That’s what we understand to be the case, My Lord, yes.
ARK: (whispers to Tony McGleenan KC [AGNI])
Reed: So while this process refers to the care homes and hospital, it in fact is applied more widely, not just in Northern Ireland but also in England and Wales?
AGNI : Yes. Yes. That’s by way of sketch of the position, generally. Can I take you to the Northern Ireland statutory scheme which I-
Reed: (interrupts) You’re about to be corrected by your junior.
ARK: (more whispering to Tony McGleenan KC [AGNI])
AGNI: According to Mr Ruck Keene, outside the care home arena, there’s a court order procedure that’s required.
Reed: The Court of Protection?
AGNI: Yes.
(13:43 20 October 2025, morning session)
As observers commented:
I don’t want to give the impression that criticism of the court actors was the dominant theme of the discussion – it wasn’t. Most of the time people were seriously engaged in trying to follow the arguments and get to grips with how the alternatives that were being proposed to the current DOLS system, as defined by Cheshire West, would actually work.
There was some discussion of the alternative framework in Northern Ireland.
Some observers recognised the force of the arguments counter to Cheshire West raised in High Court judgments from Mostyn J and Lieven J – both of which were overruled in the Court of Appeal with what the AGNI described as a “fairly firm rebuke”. Some observers accepted that this has led to “an ossification of a line of authority that can’t be overturned” (AGNI, 1:35 20th October 2025 afternoon), which is why the issue is now before the Supreme Court as a Reference and not as an Appeal. Nobody suggested that the system is working well as it stands – but proposals for change need to be rooted in an accurate analysis of what the problems are and how to fix them on the ground.
Later, the comment from counsel on behalf of the Charities that there is no real evidence to suggest that people experience DOLS assessments as intrusive also attracted attention. People drew attention to blog posts from some family members who do[20] experience the DOLS process as intrusive, and to this post on X from Mark Neary which shows his son leaving the house to go shopping, buying his purchases and returning home – by way of lampooning the applicability of the concept to his son’s living arrangements. (Mark Neary was also referenced by the AGNI)[21]
Observers became increasingly frustrated at the lack of clarity and detail in the submissions from the Attorney General of Northern Ireland.
The language used to refer to people who may lack capacity to consent to their care arrangements was a recurrent concern that surfaced initially in the course of the Appellant’s submissions via a question as to whether a subcategory of people currently affected by DOLS – those unable to recognise any confinement and restrictions, incapable of forming an intention to leave, and physically unable to leave in any event – were actually “deprived of their liberty” in the sense required by Strasbourg jurisprudence. This line of questioning was quite confusing and would more properly have been directed to the Secretary of State (whose proposal it was to exclude them from the Deprivation of Liberty Safeguards) – and the terminology used was at best uninformed and at worst explicitly derogatory:
PVS, demented, catatonic people and ‘old dears’
Reed: I find it very difficult to understand in what sense a person who’s unable to form a wish to leave somewhere, and may also be physically unable to do so, can be said to be deprived of liberty at all. (puzzled tone)
Hodge: Yes, I was going to (laughs) raise that point. Is the Strasbourg jurisprudence saying that such a person is deprived of liberty?
Reed: I mean, if you have somebody in a persistent vegetative state[22]in the home, is that person being deprived of their liberty? Surely not. If they’re not, what about somebody who is so demented they’re effectively catatonic. Just spend the day in front of a television set. Is that person- In what sense does that person have any liberty which she can be deprived of?
AGNI: That’s why it’s important- I probably flashed across it too quickly, but when you go back to Guzzardi, Guzzardi[23] emphasises that what’s in play is physical liberty. That’s what Article 5 protects – physical liberty. So, if an individual is in a PVS state – immobile, unable to communicate – it’s difficult to see how there is a restraint or a deprivation of physical liberty in that context that engages the whole machinery that starts the process off. So, My Lords….
Reed: What about the old dear who is simply got out of bed in the morning, given a- washed, and put in front of a television until it’s bedtime. (Shrugs and shakes head from side to side as if in disbelief). I mean, what liberty does that person have to be deprived of?
AGNI: Again, on that analysis you significantly narrow the cohort of individuals who’d ever be caught by the Deprivation of Liberty Safeguards.
Reed: Well, that may be.
Rose: Well, how are they treated at the moment? Are the people posited by my Lord, Lord Reed, treated as if…
AGNI: There’s a deprivation of liberty.
Rose: They are treated as deprivation of liberty cases. And your proposed revised guidance wouldn’t affect that?
AGNI: Not in the cases where there’s an inability to express any wish. It wouldn’t necessarily affect that.
Hodge: Well then it comes back to the question, is there Strasbourg jurisprudence which supports bringing these people within Article 5?
AGNI: Not expressly, My Lord.
Hodge: Well on what basis is the domestic law, given that it’s tracking jurisprudence on Article 5, applying a deprivation of liberty regime to them?
Not long afterwards, Lord Stephens referred to people who are “drugged up” and “suffer from Alzheimer’s”; Lady Rose raised a question about a hypothetical person “chained to the sofa” to stop her from leaving (1:14); and then Lord Reed summoned up “the bedridden person who is physically incapable of leaving the hospital”. In the afternoon of the same day, counsel for the AGNI referred to “catastrophic dementia” (1:38) and the theme of “catatonic” dementia[24] was picked up on the last day of the hearing by Lord Sales[25].
I recognise that this focus on the permanently unconscious, catatonic, catastrophic, seriously demented and bedridden was designed to test the proper scope and limits of the concept of “deprivation of liberty” in Strasbourg case law – and it goes to the heart of one of the issues before the court. But the language used was ill-advised and contrary to guidance put out by the relevant charities and professional bodies[26]. It felt discourteous to the people the judges were referring to, and it evoked a visceral response in many observers that made it impossible to focus on the substantive issues at stake. In a blog post afterwards, Mental Capacity Consultant, Lorraine Currie[27]said she was “horrified”. On X, Court of Protection and Community Care specialist solicitor Zena Bolwig said she also “recoiled at the language used a number of times”. On LinkedIn, consultant clinical psychologist, Dr Catriona McIntosh found it “shocking” [28]and a legal professional with more than a decade of COP experience responded to say she was “taken aback”. Also on LinkedIn, the open justice legal commentator, George Julian, said “after watching 1.5 days of the case if I were a Supreme Court judge I’d like to think I’d have a word with myself about my internalised ableism and how readily prepared I am to demonstrate that to anyone watching. Some of the language and phraseology I found eye-popping“. Our discussion group members were frankly appalled.
The next morning, while people were waiting for the hearing to start again, there was this exchange:
A little later in the proceedings, Lord Reed tried to shed light on how best to address the matter and said, “ I mean one way of putting it is to ask whether a person who lacks autonomy is capable of possessing liberty, within the meaning of the Convention.” Again, I appreciate that this is a “way of putting it” that goes to the heart of the question before the Court, but it didn’t go down well with the observers.
It was reassuring to see Emma Sutton KC (for the Official Solicitor) address Lord Reed’s point (as she put it) “head on” on the final day of the hearing. My understanding is that, under the circumstances, this was a “brave” thing to do, and it was commented on by COP solicitor, Jess Flanagan, on LinkedIn.
Here’s what Emma Sutton said: “I’d like to address the point, head on, raised by Lord Reed on Monday – I think it was – that people with significant cognitive impairments do not have liberty to lose. And I would invite the court to be extremely cautious before reaching that conclusion, having regard to the universality of rights. But perhaps more importantly, that requires a type of medical approach that P has no subjective experience of the world at all – and that’s an extremely difficult conclusion to reach, but for unconscious or minimally conscious states, so the cases of Ferreira and the case of Briggs.” (1hr 10mins and 34 seconds, Wednesday 22nd October 2024).
By the end of the AGNI’s submissions on the afternoon of the first day, observers were deeply frustrated and concerned too about the practical implications, which were discussed in advance of the beginning of the second day’s proceedings.
The Lord Advocate[29], who spoke on the second day, did not help matters. She is the principal legal adviser of both the Scottish Government and the Crown in Scotland for civil and criminal matters that fall within the devolved powers of the Scottish Parliament. Her submissions were experienced as muddled and confusing. She was trying to read from a text, but was frequently interrupted by the judges who, like us, seemed also not to be able to follow her line of argument – and, as some of the observers commented, the judges’ sometimes rather sharp interventions felt “uncomfortable” and “like a grilling”.
After the Lord Advocate, the counsel for the Secretary of State for Health and Social Care[30] made confident submissions but she was not (said the observers) always correct – and the judges remained (they thought) “confused”.
As counsel for the Secretary of State was speaking, the observers found themselves shouting the correct answers at the screen, or wanting to raise their hands to provide accurate information.
Counsel for the Secretary of State was followed by Victoria Butler-Cole KC for the Charities, By around half way through her submissions, the observers were losing patience with the judges again – especially at the point at which first Lord Stephens and then even more painfully, Lord Hodge, appeared not to be aware of the Mental Capacity Act’s definition of “capacity” as requiring an ability to “understand, retain and weigh” information relevant to the specific decision that needs to be made (1:30-1:31:34). Counsel explained it all, without a hint of impatience – while observers were posting palm-to-face emojis and asking “How do they NOT know the functional test?!”, “Oh god. They are being taught the MCA”; and “Surely this lack of knowledge and understanding should preclude them making a decision?”. Some of us tried – either then or later – to put a positive spin on what looked like judicial ignorance. Maybe they were just wanting to put the facts and the law “on the record”. Maybe some of Lady Rose’s questions (like her enquiry about what exactly a “care package” is, at 1:06:50) were designed to ensure that her fellow judges were exposed to the information she thought they needed, but she already knew? Maybe they’ll “catch up” with what they should have known before after the hearing?
3. Reflections on open justice – the outspoken comments of public observers
So, coming back to where we started: “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”.[31]
It took a lot of work from the Open Justice Court of Protection Project to support members of the public to observe this hearing (“I would not have known how to watch if it wasn’t for you”) and to support informed engagement with the case – via blog posts introducing the issues before the court and by hosting a public forum for discussion. Observers were mostly health and social care professionals working with the Mental Capacity Act – plus some lawyers and some (like me) family members of people who lack capacity to decide about care and residence. There was an expectation that watching the case would be educational and improve practice: a couple of participants told me they had negotiated Continuing Professional Development points for the exercise. We were excited by the prospect of watching “the brightest legal minds in the country” (as one participant referred to them) address the problem of DOLS. But overall, watching the Supreme Court in action left people “shocked”, “disillusioned” and “devastated” about the workings of the justice system in this case. For example, in emails to me after the hearing people said this:
“I was utterly shocked by their complete ignorance of the basics. It felt rude and disrespectful to thousands of vulnerable people that they had not bothered to read something on what the MCA is before commencing their involvement in life changing decision-making. I expected evidence and questions to fine tune their knowledge, not for it to be addressing the basics I would be covering with my students.”
“I feel very disillusioned with the quality of the court’s understanding – both the advocates and judges…. It’s interesting to contrast this with the debates in Parliament over the Mental Health Bill – where the level of in-house understanding and expertise is so much higher. I guess that’s why people say that Parliament, not courts, should legislate for these serious matters”.
“As a social worker of longstanding, a BIA and manager of a team undertaking COMDOLS, I was quite devastated by what we heard at the SC last week. The depth of the misunderstanding by some of the judges about MCA basics, about the reality of the lives lived by those who meet the acid test, and about the limitations of our depleted and exhausted care system hurt to hear.
With my work hat on, I have seen too frequently the restrictions that have become invisible, the management strategies where convenience rules, and the damage to rights caused by unchallenged “custom and practice”.
With my home hat on, I have seen my father this summer spend 6 weeks in hospital after a fall, followed by 16 days in a nursing home with no DoLs – not because he didn’t merit this but because the overstretched DoLs team did not get to him. And so, his door was shut because he kept wandering, his walking aid was kept the other side of his room and his bed lowered so that he did not get up for the toilet when unsupervised. I have seen my son (who now has excellent care with a great provider), prevented by previous providers from drinking so he didn’t wet the bed while seizing, and restrained using techniques not recorded or subjected to BI and prevented from entering certain areas of his accommodation.
The system is overwhelmed, we all agree. But fixing it must not be achieved through watering down the protections that are so vital for those they are designed to safeguard. The voices of professionals working with the MCA every day were missing last week just as were the voices of Ps and their families.”
The comments above are not attributed to individuals because most people feared professional repercussions – from employers perhaps, or from judges before whom they may be making submissions in future as advocates or giving evidence as expert witnesses.
Open justice, says the Lord Chief Justice, “requires those present at a hearing to be able to discuss, to debate, and to criticise what was said and done by the parties and the judge, and even the judgment”[32]But it’s remarkable how few of the lawyers, scholars and experienced practitioners in this field feel able and willing to put their names to explicit criticism of what they’ve witnessed or to respond, frankly, in public, to what judges have said. Without feedback of the sort in this blog post, I suspect that the lawyers and judges would have no idea how the public responded to what they saw in the Supreme Court – and therefore no opportunity to repair the damage, e.g. by addressing these issues in the published judgment and by finding ways to avoid these criticisms on the next occasion.
The judges (and some of the lawyers) need to know that they (unintentionally, I’m sure) displayed what many observers experienced as discourteous and uncivil attitudes to people with disabilities, and a rather cavalier approach to the day-to-day realities of these people’s lives, and the lives of their families and those who care for them. I hope that this blog post enables them to see themselves as others see them and thereby perhaps to generate for themselves some ideas about how to create a more positive image of the court in future.
Even if they think our views of what went on in court are wrong, or muddle-headed or the result of our misunderstanding the proceedings – still there is a problem that needs to be addressed. That’s because open justice, the purpose of which is to build trust and confidence in our justice system, has had the opposite effect in this case. Instead of bolstering public confidence in the judiciary (and the Bar), it’s undermined it. Open justice has backfired, and this should be of grave concern to the court.
We recognise that there are only 12 Supreme Court judges to hear all the cases that come before the court, and that they can’t be experts in everything. On the basis of this hearing, there’s a shared view that we desperately need a judge with experience of the Court of Protection (or Family Division) in place before another case relating to mental capacity or DOLS reaches the Supreme Court. Lord Richards is retiring in June 2026 but the vacancy has been advertised for someone with “substantial experience in equity and corporate law“. We hope that the next vacancy can be reserved for someone from the Court of Protection or Family Division.
Until then, we ask these judges – who are highly educated (6 of the 7 have Oxbridge degrees) and highly paid (their annual salary is £254,274) to explore what it would take to create a better impression on the public. One suggestion might be more pre-hearing preparation. In a lecture on “working methods of the Supreme Court”[33], Lord Burrows says that he usually spends “about a day” in advance of a hearing reading “key documents”, followed by a brief (15-minute) discussion with fellow justices to discuss “procedural matters and our preliminary view of the case”. In an area of law in which none of the judges has any prior experience, this doesn’t sound nearly enough!
We don’t want grandstanding from counsel, or judges playing to the public gallery – but we do think they need to be a bit more aware of the values and principles that members of the public bring to hearings (whether or not they share them) and conscious of the subject-specific knowledge and experience that informs us (of which they may know little or nothing).
For our observers’ group, the experience of open justice in the Supreme Court has backfired and the Court now needs urgently to consider what they can do build public confidence in the justice system.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 600 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)
[1]A Reference by the Attorney General of Northern Ireland of a devolution issue under paragraph 1(b) of Schedule 10 to the Northern Ireland Act 1998 UKSC/2025/0042
[4] For the avoidance of doubt (as lawyers like to say), I don’t include myself in this group. I know a lot about facilitating and developing open justice in the Court of Protection, but not very much about the daily processes whereby capacity assessments, best interests assessments and other decisions are made, or the way in which the Mental Capacity Act 2005 is implemented outside of the courtroom itself.
[9] Making harshly critical and offensive comments out of court about judges used to be a criminal offence in England and Wales, called ‘scandalising the judiciary’. It was abolished by Section 33 of the Crime and Courts Act 2013.
[11] Under the Northern Ireland Act 1998, a “devolution issue” (including whether an Act of the government of Northern Ireland would be invalid as breaching the rights protected by the ECHR) may be referred to the Supreme Court for determination. The question referred to the Supreme Court on this occasion arises in the context of the provision of care and treatment for persons with cognitive impairments, and how their rights to liberty and security – under Article 5 of the ECHR are safeguarded. “The Attorney-General considers that the proposed revisions to the Deprivation of Liberty Safeguards Code of Practice (the ‘Code’) would adopt an approach to the scope of Article 5 which would differ from that outlined by the Supreme Court in the case of P v Cheshire West and Cheshire Council & Anor [2014] UKSC 191; [2014] AC 896, but which would nonetheless satisfy the requirements of Article 5. Accordingly, the Attorney-General seeks confirmation that the Minister of Health would have the power to issue the revised Code.” (from the very helpful leaflet about the case made available to people attending the Supreme Court in person).
[12] This is based on the argument (sometimes referred to as “the Ferreira Exception” although the case law therein referenced applied only to people in ICU and this is a significant extension of it) that “the true cause of their not being free to leave is their underlying illness”, not state detention. (R (Ferreira) v H M Senior Coroner of Inner South London & Ors (2017) EWCA Civ 3 (Court of Appeal) (Arden and McFarlane LJJ, Cranston J)
[13] The experienced observer and the novice(s) watch on their own laptops at home and communicate via WhatsApp in a separate confidential group set up specifically for that hearing and only open to observers once they confirm receipt of the transparency order (to ensure compliance with it).
[17] On the other hand, someone who was in the physical courtroom when I wasn’t there said that at least one of the judges had nodded off to sleep during the submissions. That wasn’t apparent from the recorded version, because the camera provides only a distant view (if any view at all) of those who are not speaking, and zooms in on whoever is making submissions and the judge responding to them.
[18] Neither the judges nor the barriers were wearing wigs (not required in the Supreme Court since 2007) but “wigs” remains a common synecdoche for judges (and barristers) as a potent symbol of their authority, much as does the gavel – something never used in English courts.
[21] Mark Neary’s objections to the use of “deprivation of liberty” was also cited by the AGNI. At 1hr 10 mins: AGNI refers his son as being “back home doing what he likes to do and king of his castle” and says that Mark “finds it very difficult to square that with the idea that he is “deprived of his liberty’.”
[22] This term is largely superseded these days by the umbrella term “prolonged disorder of consciousness” [PDOC] which would also have been the better diagnostic concept to invoke in this situation (since I suspect that the use of “persistent” was inspired by Airedale NHS Trust v Bland [1993] 1 All ER 821, a case in which the patient would now properly be referred to as in a PDOC). It’s a minor point, and judges can’t be expert on everything, but it grates nonetheless – because it’s not just language that’s at issue, but a body of knowledge which the judge, inadvertently, shows she doesn’t possess, and that knowledge has implications for the arguments being made. The structure of court hearings doesn’t permit of the opportunity for correction or education.
[29] The Lord Advocate is Rt Hon Dorothy Bain KC and she was representing herself (with Ruth Crawford KC and Lesley Irvine) (starting at 1:40:50 on the recording of 20th October 2025, afternoon session, and continuing the next day, 21st October 2025, until 1:42:30).
[30] The Secretary of State for Health and Social Care was an intervener, represented by Joanne Clement KC (with Zoe Gannon). (starting at 1:42:40 on 21 October 2025 in the morning session and continuing in the afternoon until 1:01:32).
Those familiar with Court of Protection hearings may have heard judges mention at the beginning of a hearing that they have already received a draft of the order being sought. This can be either an order that has been prepared by a single party and sets out what order they would be seeking the court to make at the hearing and can be used as a starting point for discussion; or in the alternative it can be an order that has been prepared jointly between the parties and represents their agreed position. Occasionally if an agreed order is lodged in enough time before the hearing, the judge may agree that the hearing is no longer be required, and this is one of the reasons why hearings are sometimes vacated (see: Last-minute vacated hearings in the Court of Protection).
Orders prepared by a single party can create the impression that one party is pre-empting the judge’s decision before the case is heard, potentially undermining the right to a fair trial, not only for P but for others involved. There may also be a perception that this step is unfair to others who are involved, particularly where this includes lay parties who are themselves not legally represented.
Unlike adversarial settings such as criminal proceedings where parties have opposing goals, the Court of Protection operates collaboratively. Everyone involved is striving for an outcome that will be in P’s best interests, although they may disagree on what that outcome should be.
Filing draft orders before hearings is not about ambushing the other side or influencing the judge. It is a procedural requirement. Lawyers must follow the Court of Protection Rules and Practice Directions, which is the literal rulebook for these cases and how they should be managed. Practice Direction 3B to the Court of Protection Rules sets out that when the application is first filed it must contain a draft of the final order sought (paragraph 2.3(1)(a)) and furthermore that when a final management hearing is to be heard that a draft order should be filed in advance (paragraph 2.6(2)). Practice Direction 4B also sets out what documents should be filed with the court in advance of a hearing, specifying that this should include what directions are sought (paragraph 4.3).
One might ask why this is necessary. Should it not simply be up to the judge to decide what order to make after hearing from everyone? There are certainly occasions where that happens, particularly when the parties cannot agree on what should happen next.
In practice, in most cases the parties will have exchanged evidence and correspondence, often over several weeks, and should hopefully have an understanding of the issues, any gaps in the evidence, and what they believe the judge should be asked to do. By way of example:
P is in a care home but owns their home and wants to return to it. The evidence does not say what state the property is in, or whether any adaptations might be required. Those representing P may therefore state that what is needed now is evidence to deal with those things, so there is a good picture of how a return home would work. The judge is asked to order someone to visit the home and write a report in plenty of time before the next hearing, and parties are to be invited to a RTM to consider the findings and come to the next hearing with what they think the next step should be.
It is common for a meeting between the parties to take place shortly before the hearing, sometimes even an hour beforehand, to try to reach agreement on the way forward or at least to identify the issues the judge needs to determine. That meeting by default would involve everyone who is joined as a party to the proceedings. If agreement is reached as to what should happen next by way of filing evidence and other directions, the parties will prepare a draft order for the judge to consider. When this is sent to the judge it is clearly marked as being agreed between the parties.
It is important to recognise that an agreed order does not bind the judge to approving it. Any draft order is simply a starting point, and the judge may have questions about the timescales or otherwise want to have some explanation provided as to why they should approve the order that has been supplied. It certainly is not axiomatic that a judge will approve an order simply because it is agreed between those who discussed it and drafted it.
Where agreement is not possible, each party may submit their own version of the order they are seeking. This helps the judge understand the extent of disagreement and the arguments that will be made.
Ultimately, the purpose of lodging draft orders is to assist the court in managing the case efficiently. While they may reflect consensus or competing positions, it remains the judge’s role to decide what is appropriate after considering all the evidence and submissions.
Draft orders are procedural tools designed to support the court’s decision-making, not to pre-empt it. In the Court of Protection, where collaboration is central and all parties aim to work towards an outcome that is in P’s best interests, these draft orders help to clarify positions and streamline hearings. The judge remains the final decision-maker, and any draft order is only ever a proposed way forward for them to consider.
David York is a Chartered Legal Executive in the Public Law and Human Rights Department at Irwin Mitchell Solicitors.
Last time I wrote about this case, a few months ago in July 2025[i], the 90-year-old protected party (P), who has dementia, was in a nursing home, and deeply unhappy. She was refusing to eat or drink very much, declining to take her medications, and saying she wanted to die. She had lost two stone in weight over a two-month period and was seriously malnourished. There was a suggestion that as her physical condition worsened, hospital treatment might become clinically indicated, including possibly provision of clinically assisted nutrition and hydration.
I was interested in this case because P had an Advance Decision to Refuse Treatment (ADRT) made a couple of years earlier, refusing any treatment that required her to go into hospital “even if my life may be at risk from this refusal”.
In fact, she had already been admitted to hospital earlier in the year (the Health Board said they didn’t know about her ADRT at the time) and had been extremely unhappy there. Subsequently (after a failed return home), she’d been discharged from hospital to the nursing home – and as I reported in my last post, this was done unlawfully, without the knowledge of the court. She’s been in the nursing home ever since.
Alongside the s.21A Deprivation of Liberty proceedings (relating to P’s capacity to decide for herself and the least restrictive options for her care and residence), the Health Board and the Local Authority are concerned about whether, and if so how, the ADRT would “interfere” with the provision of medical treatment for P, especially as some treatments would require a return to hospital.
I’ve watched two more hearings in this case since the first one I stumbled across on 21st July 2025: one on 21st August 2025 and then, the most recent, on 3rd November 2025. At this most recent hearing the judge, District Judge Keller, found P’s ADRT to be invalid. He ruled that “there should be appropriate documentation placed on her medical records to show that it must not be relied on”. Another hearing is listed for February 2026 to deal with remaining issues relating to deprivation of liberty.
On the basis of the (limited) information I have about the case, it seems to me that the judge was entitled to make the decision that P’s ADRT was invalid. That causes me concern because of what it means not just for P but for everyone else with ADRTs. Do our ADRTs adequately reflect what we want? Do we really understand what they might mean for how we are treated – or not treated – in the future? And if we do understand them and mean them to be respected (even in the face of subsequent non-capacitous behaviour that flies in the face of the decisions we have made), is there anything we can do about that?
This ADRT in this case was made with the support of a well-respected charity, the Paul Sartori Foundation, with specialist expertise in advance care planning[ii]. The charity runs training courses for professionals[iii] and publishes a plethora of documentation, both for professionals and for members of the public – including this EasyRead guide[iv] (which looks very good to me).
As I understand the process, someone described as a “Macmillan nurse” working for the Paul Sartori charity, visited P at her home following a referral (I think from her GP surgery), and talked through her medical decisions with her before drafting the document for her to sign.
It must surely have been the intention of the charity to create for P a valid and applicable ADRT that accurately reflected her wishes and decisions at the time, and would result in the decisions she had made to refuse hospital treatment being respected if or when she lost capacity to make her own decisions in the future.
But the finding of the court was that in fact the document she signed did not reflect her wishes at the time – and that it likely had procedural defects in any event; and that it should not now be followed by the people involved in her care – not as a binding document and not even as an indication of her wishes and feelings.
This judgment has serious implications for all of us who want to refuse medical treatments in the event of possible future loss of capacity. It also has implications for the charities that support people to make these documents.
I’ll start by summarising the relevant “Legal background” to the case. Then I’ll describe the three hearings I observed (“Hearings”)[v]: the oral judgment is reported in my account of the November hearing[vi]. Finally, in “Reflections”, I consider what this case means from my personal perspective as an older person with an ADRT of my own and for the charities and other individuals and organisations who promote ADRTs for others.
1. Legal background
Advance Decisions to refuse treatment (ADRTs) are a way of planning ahead for future loss of capacity. If you know, now, when you have capacity to make decisions about medical treatment, that there are certain treatments you would want to refuse under specific conditions (e.g. you might know that you want to refuse clinically assisted nutrition and hydration if you were in a prolonged disorder of consciousness), you can make an ADRT which, if valid and applicable, has the same legally binding effect as if you were making a contemporaneous capacitous decision: it would be unlawful for doctors to provide you with the treatment you have refused.
The Mental Capacity Act 2005 (ss. 24-26) sets out the statutory rules relevant to the creation, validity, applicability and effect of ADRTs , and it’s fleshed out by a small body of case law.[vii] On the face of it, they’re not complicated documents. In order to refuse life-sustaining treatment, your refusal must be in writing and accompanied by a statement that it’s to apply even if your life is at risk. It must be signed it in the presence of a witness who signs it to acknowledge your signature. You don’t need a solicitor to make them or a doctor to sign them off, and they can be written in ordinary lay language.
When they reach court, it’s generally because of doubts about their validity or applicability (or most recently their authenticity). For example:
No witness to P’s signature. This is a fatal flaw. Judges have decided, based on the statutory requirements in the Mental Capacity Act 2005, that without a witness to P’s signature a (purported) ADRT cannot be relied on – though it can still be treated as an expression of the person’s wishes and feelings (Barnsley Hospital NHSFT v MSP [2020] EWCOP 26; Re D [2012] COPLR 493)
Concern about P’s capacity at the time the ADRT was signed[viii]. This relies on a retrospective assessment of capacity (sometimes aided by capacity assessments made at the time). In some cases, judges have found that the person did have capacity at the time the ADRT was signed (e.g. (NHS Surrey Heartlands ICB v JH [2023] EWCOP 2). In other cases, they’ve decided that the person did not have the requisite mental capacity at that time (e.g Re QQ[2016] EWCOP 22; A Local Authority v E[2012] EWHC 1639).
Fraud or undue influence: There may be concerns that the ADRT is a fraudulent document (e.g. that P’s signature has been faked) or that it was created under coercion or undue influence. That question arose, but was not determined (because the party making the allegations decided not to pursue them), in the case of Re AB (Validity and Applicability)[2025] EWCOP 20 (T3). We blogged about the “authenticity” issue here: Authenticity of a “Living Will”.
Behaviour (after loss of capacity) inconsistent with the ADRT remaining P’s fixed decision. The Mental Capacity Act 2005 provides that the person who made it can subsequently withdraw it (s.25(2)(a)) or displace it by a Lasting Power of Attorney that grants the donee the right to make the treatment decisions specified in the ADRT (s.25(2)(b)). Obviously, this can only be done when the person has the mental capacity to effect the withdrawal or to appoint the Attorney. The question of what else a person can do that would have the effect of invalidating the ADRT was decided in a case before Mr Justice Poole who held that s.25(5)(c) means that a person might behave in ways “clearly inconsistent” with the ADRT, either before or (crucially) after loss of capacity to make the relevant decision – e.g. by sometimes saying (as in the case before him) that she would be willing to have a blood transfusion, which the treatment refused in her otherwise valid and applicable ADRT) (Re PW (Jehovah’s Witness: Validity of Advance Decision) [2021] EWCOP 52).
By contrast, minor procedural defects are not necessarily treated as invalidating an otherwise properly prepared ADRT. Judges have ruled that ADRTs are valid and applicable despite:
confusion with dates of signature (NHS Surrey Heartlands ICB v JH [2023] EWCOP 2) including one case in which the date of signature was entered as the date on which the ADRT was to expire (The X Primary Care Trust v XB[2012] EWHC 1390).
absence of an explicit statement that P had signed it in the presence of the witness (who had also signed it) (Nottinghamshire Healthcare NHS Trust v J [2014] EWHC 1136)
2. Hearings
Following the application (dated 12th June 2025) from the Health Board asking the court to make a decision as to the validity and/or interpretation of the ADRT, there were hearings on 11th July, 21st July, 22nd August and 3rd November – of which I observed all but the first. All the hearings were before DJ Keller[ix] sitting remotely as a nominated judge of the Court of Protection at Port Talbot Justice Centre. At the three hearings I observed, the parties and their representatives were as follows:
Counsel for the applicant Health Board (Hywel Dda UHB) was Jack Anderson at the July hearing, Laura Shepherd at the August hearing, and Rachel Anthony, Deputy Head of Legal Services at Hywel Dda UHB at the November hearing
Counsel for the Local Authority, Pembrokeshire County Council (who replaced the Health Board as applicant after the July hearing), was Melissa Jones at the July hearing, and Rachel Harrington at the August and November hearings.
Counsel for the protected party, P, instructed via her litigation friend (I think a mental capacity advocate of some kind – and definitely not the Official Solicitor) was Jordan Briggs of Doughty Street Chambers (instructed by CJCH) at all three hearings.
The daughter of the protected party was joined as a party (third respondent) for the August and November hearings. She did not have legal representation and chose not to attend the November hearing.
The focus of my report is on the specific issue of the ADRT but this wasn’t the only issue before the court, which also addressed issues relating to deprivation of liberty and how to try to reduce P’s unhappiness and distress in the nursing home.
2.1 The July hearing
The hearing on 21st July 2025 addressed quite a wide range of matters including P’s unlawful detention and possible breach of an ADRT, plus P’s health issues. It opened with a run through the chronology of what had happened so far.
On 10th August 2023, P signed a document which read (in part) as follows:
“There is no way I want to go into hospital again and therefore refuse treatment that would require me to go into hospital, even if my life may be at risk from this refusal. I will accept treatment aimed at preserving my dignity and keeping me pain free and comfortable including antibiotics for symptom relief, but only if they can be administered at home. If medical assistance is called it will be for advice or treatment that can be administered at home to ensure my comfort, it will not be for transferring me to hospital.”
“I am 88 years of age and I will take my chances. No way do I want to go into hospital; in my home is where I am staying.”
In March 2025, she was admitted to hospital with abdominal pain. The Health Board says they didn’t know about her ADRT at the point of admission.
In hospital, P refused to engage with occupational therapy and physio, declined most of her medication, ate and drank very little, and “presented with challenging behaviour”. She was found to have capacity to make her own decision about care and residence and discharged home nearly a month later with a domiciliary care package.
On the evening of her discharge, in early April 2025, a carer attended, found her unable to mobilise and telephoned emergency services. An ambulance came to the house. P was abusive and agitated and refusing observations and was assessed as lacking capacity (although capacity for what, exactly, was not specified). Her daughter persuaded her to be re-admitted to the hospital.
Hywel Dda UHB learnt about the existence of P’s ADRT in early June. A little more than a week later, they applied to the Court for decisions as to how to interpret P’s ADRT, and for a s.21A decision – although they then discharged her to a nursing home without the approval of the court at a meeting at which P herself was not represented. The minutes of the meeting were not sent to P’s RPR. The discharge occurred without completion of the Quality Assurance Process and commissioning documentation, or funding being agreed, and Long Term Care were not informed about the discharge date.
Turning to the current situation, counsel for P reported that P’s weight continued to fall (her BMI was 15.1) but she was “slightlybrighter” recently following a change in room to one with natural light from a window behind her bed. She continued to have “a patchy approach to both eating and personal care”. She was being “supported and encouraged” to eat and drink.
Counsel for the Health Board pointed out that “if there was any question of more interventionist feeding methods, that would require very careful consideration of her best interests” because methods of clinically assisted nutrition and hydration can be “intrusive and distressing if someone is not compliant with them”.
There was an agreed order before the court that before the next hearing, listed for 21st August 2025, the Local Authority would serve a statement giving an update on P’s presentation and well-being, assessments of her mental capacity to make decisions about care and treatment, a multi-disciplinary needs assessment, evidence relating to her eating and drinking, acceptance of personal care and medication, and any objections she makes to her confinement: they were also asked to list steps that could be taken to improve P’s welfare, and alternative options for residence and care. The daughter was given permission to serve a statement about her discussions with her mother about Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) and about the ADRT and a number of other matters. The RPR would serve a statement setting out P’s current wishes and feelings, including her view on the meaning of the ADRT. All these matters would be discussed at a Round Table Meeting the week before the next hearing.
The principal purpose of the next hearing would be to make a decision as to the interpretation of the ADRT. The court would also issue further directions relating to deprivation of liberty. The hearing was listed for 3 hours.
There was a brief exchange about what might happen if P’s disinclination to eat and resultant weight loss caused concern to the extent that a nasogastric tube, or PEG tube, was considered medically necessary before the case came back before DJ Keller. I think I understood that an urgent application to a Tier 3 judge in the Royal Courts of Justice would need to be made.
2.2 The August hearing
The plan was that the judge would be in a position to make a decision about the validity and applicability of P’s ADRT at this hearing on 21st August 2025, but that didn’t work out. It seems that the parties had applied to adjourn the hearing, but the judge went ahead with it anyway: it took less than an hour.
The most significant aspect of this hearing was the information that had been conveyed by the daughter at the Round Table Meeting the previous week. The account she had provided was described as “striking”. She also spoke to the judge in court, relaying her version of how events had unfolded.
The Local Authority reported that P’s daughter had “provided information about the circumstances in which the advanced decision came to be made, with the involvement of a nurse from the Paul Sartori Foundation (hospice at home). She also indicated that the apparent witness was not present when the advanced decision was signed but signed later”. The parties had agreed, in the light of what the daughter had told them, that “further information is needed from the Paul Sartori Foundation and, if possible, from the witness before the court can fairly determine the meaning of the advanced decision. It is proposed that a third party order be made for the records of the Paul Sartori Foundation. [P’s] litigation friend has offered to attempt contact with the witness”.[x]
According to the Health Board, P’s daughter had reported not only that the neighbour who was said to have witnessed the signature on the ADRT did not actually do so, but also that P wouldn’t have been thinking about treatment options in a care home and transfer to hospital for issues relating to eating (which are the decisions to which the relevance of the ADRT is currently under consideration). Rather “the focus of the decision was in relation to the treatment for bowel problems she was anticipating undergoing at that time”. The daughter said that her mother “would not have properly understood the effect of the decision, and did it because she wanted the PSF people to leave the house and thought that signing would be the quickest way to achieve this aim”.
There was also a report of what the daughter had said at this Round Table Meeting from counsel for P:
a. The advance decision arose after [P] was discharged from hospital following investigations into her bowel.
b. Without [P’s daughter] knowing how this came about, an individual from the Paul Sartori Foundation attended P’s address, apparently with the purpose of creating the advance decision.
c. [P] was highly distressed in her conversation with the individual from the Paul Sartori Foundation and, essentially, signed the document merely to bring the conversation to an end.
d. [P’s daughter] considered that [P] did not understand the contents of the advance decision or that it had legal effects.
e. While the advance decision purports that [P] was witnessed signing it by her neighbour, [the neighbour] was not present during the signing, and was only approached afterwards to co-sign beside [P’s] name.
Further evidence was therefore sought. The judge authorised a Third Party Disclosure Order in respect of the Paul Sartori Foundation; evidence from the neighbour who signed the document; and further wishes and feelings evidence from the litigation friend, who intended to take a physical copy of the advance decision to P and discuss it with her. Evidence was also still awaited from the GP to shed light on any relevant clinical issues at the time when the ADRT was made, which could assist in assessing P’s capacity at that time. (Her daughter was reported to have said something at the Round Table Meeting to the effect that “mental decline may have been well underway”.)
Counsel for P also raised the issue of “whether [P] has done anything clearly inconsistent with the advance decision remaining her fixed decision (s.25(2)(c)” – e.g. agreeing to admissions to hospital; and whether circumstances exist now which P did not anticipate at the time she made the ADRT and which would have affected her decision making had she anticipated them (MCA s. 25(4)(c)).
The judge said that under the circumstances, “I don’t think I could safely make any findings [about the ADRT] without further enquiry”. He reiterated that at the end of the hearing: “Having read the bundle yesterday afternoon, I didn’t think the evidence was adequate for me to make any kind of finding on the advance decision”.
Towards the end of the hearing, P’s daughter spoke powerfully about her perception of what had happened. She described a situation in which her mother had discharged herself from hospital.
“Mum had bad legs and they started to swell. I called the GP and a paramedic practitioner came out and he asked her, ‘what do you think about resuscitation?’. And he said, ‘Are you sure? Do you know what it entails?’, and she said, ‘No, I don’t want it’. Then a woman from Paul Sartori turned up. I didn’t ask her to come. Mum didn’t ask her to come. She called herself an ‘End of Life’ adviser. Mum was very agitated about this. She spent an hour and a half in my mum’s house and my mum just wanted her gone, and so she signed it. She thought ‘end of life’ was about giving her a bed in the living room, making her more comfortable, that sort or thing. She didn’t know what that document meant.”
In addition, some ongoing concerns about P’s weight were expressed – although this seems to have improved slightly and she was apparently enjoying marmalade sandwiches. There was also a need to address her refusal to take medications.
The next hearing, at which the evidence would be available, and the judge would be able to make a decision about the ADRT, was set for 3rd November 2025.
2.3 The November hearing
At the hearing of 3rd November 2025, there was agreement between the parties in court (although the daughter chose not to attend and I gather she didn’t submit a Position Statement either) that P’s presentation had continued to improve, albeit slowly. She’s eating and drinking a bit more, and seems more settled and less distressed. Someone reported moments of “happiness”: at one point she’d been singing along to “Oh, Pretty Woman”.
On the ADRT front, counsel for P had produced a detailed, thorough and carefully structured analysis of why he invited the court to decide that the ADRT was not a valid or applicable document. This was supported by the comprehensive “Agreed note on the law of Advance Decisions”, which includes a “Checklist for ADRTs that refuse life-sustaining treatment”. His analysis was not challenged by any of the parties at the hearing, and it was the analysis accepted wholesale by the judge.
Counsel for P did not seek to challenge P’s capacity to make the ADRT at the time that she made it. This was because there was no assessment of her capacity at the time to rebut the presumption of capacity; the GP disclosure that is now before the court doesn’t suggest any material cognitive decline, and “while disclosure from the Paul Sartori foundation does not contain helpful evidence either way, it is a reasonable presumption that they would not make an ADRT if they felt that P lacked capacity at the time”.[xi] The daughter’s account suggested that P was using and weighing information when making the ADRT, as P was (she said) convinced she had cancer, had been close to family members who had died with cancer, and wanted the document drawn up “so she would not have to go through what they did”.11
Counsel for P invited the judge to find that the ADRT was invalid – and indeed did not reflect P’s wishes and feelings – on the grounds that neither at the time she made it, nor subsequently, has it expressed her views. The following extract is taken from his Position Statement:
§46. There is considerable evidence that the contents of the ADRT are no longer P’s fixed decision, if they ever wholly were:
a. P apparently had little input into the wording of the ADRT. [Her daughter’s] evidence is that “The nurse filled in the form and my mum signed it, mum was so agitated with it all mum refused for the nurse to read it back to her and just wanted it all over with”.
b. Immediately upon the ADRT being made, P expressed a different view to its contents. [Her daughter’s] evidence is that, when the ADRT was made, “I did say to my mum […] what if you have a stroke, and mum’s reply was do what you like [Name], if you think it’s right do it, but that was not written in the document”.
c. Two years later, P was still acting contrary to the ADRT. On 3 April 2025, P was about to be admitted to W Hospital for the second time. [Her daughter] attended and “convinced [P] to attend hospital”. This is consistent with §46(b) above.
d. Today P’s speech remains inconsistent with the ADRT. Her wishes are that “Well if I needed to go in [to hospital] that would be up to them […] The nurses. It would be up to them”.
Counsel for P concludes that “In short, as soon as the ADRT was made, [P’s] speech and actions were inconsistent with it. She was not, as the ADRT purports, set against hospital admission in all circumstances. Instead, she wished (and still wishes) for admission decisions to be taken by those she trusts. Previously that was [her daughter]. It now includes W Nursing Home staff”.
Nobody contested this position – that the ADRT was invalid under s.25(2)(c) of the Mental Capacity Act 2005, the section that says: “An advance decision is not valid if P […] has done anything else clearly inconsistent with the advance decision remaining his fixed decision” (“anything else” means anything other than withdraw it when they had capacity to do so, or confer the relevant authority on the donee of a Lasting Power of Attorney, which are (a) and (b) respectively of s.25).
In court, counsel for P explained again what P had done that was “clearly inconsistent” with the advance decision being her fixed decision. She had acquiesced to hospital admission. She had displayed what he called “a deferential approach” to her daughter and (now) to her carers, conceding to them the right to decide whether or not she should go to hospital.
And on that basis, the court was invited to declare the ADRT invalid.
Strictly speaking (said P’s counsel), applicability only falls to be considered if there is a valid ADRT in place (which he maintained there wasn’t in this case). But even if the judge were not to accept the analysis above, and were to consider the ADRT validly made, there are difficulties relating to applicability. There was no witness signature. The litigation friend had reported on a telephone conversation with the neighbour who’d signed the ADRT as an apparent “witness” to P’s signature. She confirmed that she had not in fact been present when P had signed it.[xii] As a result, to the extent that this document would otherwise be applicable to life-sustaining treatment, it is not applicable as it does not meet the requirement of s25(5) and (6) of the MCA.
The purported ADRT also doesn’t apply to treatment requiring hospital admission that is not life-sustaining, said counsel for P, because at the time she made the ADRT, P believed she had terminal cancer. She did not anticipate her current circumstances where “there is no evidence of any terminal condition. She experiences happiness at W Nursing Home, chatting and singing with staff”. As such, there are reasonable grounds to believe that, had P anticipated her current circumstances on the date she signed the document back in 2023, that would have “affected” her decision. There are then, in the words of the MCA, “reasonable grounds for believing that circumstances exist which P did not anticipate at the time of the advance decision and which would have affected [her] decision had [she] anticipated them” (s.54(4)(c) MCA).
Finally (said P’s counsel), it is unsafe to rely on the ADRT as evidence of P’s historic wishes and feelings (such that even if not binding, it could be used in making best interests decisions) because “the evidence is that P did not write the ADRT, did not know what it was, immediately expressed an approach to treatment different to its contents, continues to express that approach now, and has acted contrary to the ADRT since it was made”.
Judgment
The analysis above, as set out by counsel for P, is effectively the analysis adopted by the judge in his unpublished oral judgment. The judge said: “the whole document seems to me to be highly questionable”. He accepted that there was insufficient evidence to rebut the presumption that P had capacity to make an ADRT at the time she made it. He also drew attention to evidence that the ADRT may not have been signed in the presence of the next-door neighbour who is the purported witness of P’s signature: he said, “it’s a mystery to me why the person preparing the document didn’t provide a witness signature for her”.
He was also of the view that “it’s most unclear whether or not in fact [P] was intending to sign such a document at all: she was concerned about a possible illness that didn’t materialise in any event”.
Addressing the question of validity, the judge said:
“The issue here is whether [P] has continued to ‘follow’, if I can put it that way, the intentions that are said to have been expressed in the ADRT. It seems to me that she has frequently acted in quite the opposite manner to what was expressed in that document. I am particularly mindful of evidence from [her daughter] that when the document was prepared, she refused to have it read back to her. It is highly likely that in fact she didn’t really understand what the terms of that document were. The court has received no notes [from the Paul Sartori Foundation] to support what may have been said about the content to her or anything that may explain why the document wasn’t witnessed at the time. There are questions about how this document was prepared. We may never know the answers to those questions.
In the months following this document being prepared, she behaved in the opposite way to the intentions expressed. There is no doubt in my mind, having read the submissions, that this document should be deemed to be invalid. It’s a document that to my mind has never been followed and never pursued in any meaningful sense by P, and everyone involved in her case – including her daughter who is very close to her – has said she’s never followed this.
My judgment is that this is not a valid document, and there should be appropriate documentation placed on her medical records to show that the ADRT must not be relied upon.”
3. Reflections
It’s often a concern that someone who simply downloads a form off the internet, ticks a few boxes, and signs it, may end up with a document that does not reflect their intentions, and/or one that does not withstand legal scrutiny. That’s why people often seek out professional support.
Charities like the Paul Sartori Foundation offer vital expertise and advice to people wanting to make advance plans about care and treatment at the end of life. But, on the face of it, the judgment in this case is a rather serious indictment of their services. The finding of the court is that a capacitous (albeit distressed) elderly person was visited by someone who drew up a document that she didn’t understand and which didn’t properly convey her wishes. I don’t know whether that analysis is correct or not, but it’s what the court decided.
Everyone I know who works in the area of advance care planning is deeply committed to ensuring that the person’s own wishes are properly recorded. From my own experience of supporting people making advance care plans, I think it’s possible to misjudge the situation – especially when you don’t have access to the person’s medical records and are dependent on what they tell you. Unlike family members and friends, you get a ‘snap-shot’ of what the person is like, their values, wishes, feelings and beliefs, over a relatively short period and across just a few visits. And there’s so much to explain! I can’t begin the tell you the number of times the starting point of a conversation has been “I don’t want to be kept alive if I’m a vegetable”, and we have to unpick things from there. It’s a complex conversation. There are so many different possible future scenarios (especially if in fact the person does not have a diagnosed terminal illness), and such a wide range of different possible treatments to be considered (some of which, like clinically assisted nutrition and hydration, many people consider not to be treatments at all, but part of basic care).
I’ve also seen in my own voluntary work in this area, that people will sometimes say one thing to me about the treatments they want to refuse, and another when family members join the conversation. The effect of making an ADRT is to insist on making a decision oneself, thereby over-riding the best interests decisions that family members might otherwise be invited to participate in. This can sometimes be painful for family members, especially when they disagree with the decisions someone is making. There have been many times when an elderly person has told me (for example) that she wants to refuse life-sustaining treatments and her adult children have pleaded with her not to “give up”, to “stay alive for us because we love you”. “My daughter can’t cope with it – she wants her Mum to live forever”, someone told me, asking me to record that her daughter’s views about what treatments she should have are not her own views, and that she wants her views to prevail. Others are more “deferential” to family members, and insofar as this is an important value to them, we explore the option of Lasting Powers of Attorney for Health and Welfare, with some “preferences” filled in on the form.
For me as an older person with an ADRT (refusing all life-sustaining treatment unless I have capacity to consent to it), my biggest fear is not that it will be applied in circumstances where I don’t intend it to apply, but rather than it will not be enforced when it should be. I’ve written more about that in a blog post ( Determining the legal status of a ‘Living Will’: Personal reflections on a case before Poole J) reflecting on another ADRT case where that’s exactly what happened. The ADRT wasn’t disclosed to medics for 4 months, then wasn’t considered applicable to P’s situation, then was subject to accusations from his family that it was fraudulent or the product of undue influence, before finally the judge ruled it valid and applicable and treatment was withdrawn. (I made some suggestions about how to protect ourselves against that scenario here: “Authenticity of a living will’.). Once these cases are in court they seem often to take so long to resolve. I don’t understand for example why the Third Party Disclosure Order against the Paul Sartori Foundation wasn’t made sooner, or why the daughter’s evidence didn’t really seem to be part of the story until the week before the third hearing in this case.
Of course, the courts should be open to the possibility that an apparent ADRT is not valid, not applicable, not authentic – and in doing so they may (as the judge believes himself to be doing in this case) protect vulnerable people against a situation they had never envisaged arising. In relation to this case, counsel for P said that it’s “rather wonderful that P is doing better than she perhaps ever would have anticipated”.
Equally though, some of us are terrified that our ADRTs will not be respected and we’re struggling with how to demonstrate that we have thought of every possible future situation that might arise, lest our ADRT be rendered invalid on those grounds. My particular concern, highlighted by this case, is how to protect my capacitous self who is making decisions now against my possible future incapacitatous self who might behave in ways “inconsistent with my advance decision remaining my fixed position”. I want my capacitous decisions to overrule my future incapacitous wishes and feelings – but it seems that the law is not with me on that.
The decision in this particular case (heard by a district judge) is an outcome of the filtering down to the district courts (where the vast majority of Court of Protection cases are heard) of a High Court judgment. It’s not a precedent authority for judges making decisions in future, but rather a worked-out example of legal decision-making about ADRTs in the light of (amongst other case law) the judgment from a senior (High Court) judge, Mr Justice Poole, in Re PW (Jehovah’s Witness: Validity of Advance Decision) [2021] EWCOP 52). The idea that the actions of your incapacitated future self can override the otherwise binding decisions you make when you have capacity derives from that judgment. I’m sure there will be other cases like this in the district courts. There may already have been some I don’t know about. The lack of transparency in court lists makes it impossible to systematically locate and observe ADRT cases – for example, the lists for this case never referred to the hearing as being about an ADRT and I’d never have known had I not discovered it by accident.
Finally, this case does raise some key questions for charities, and anyone else who assists people with making ADRTs. What can we do to be as sure as we can that the person is signing a document that reflects their true wishes – and that they understand the consequences of projecting their decisions forward into an uncertain future? How can we best “future-proof’ ADRTs against circumstances we can’t currently imagine? How do we record and document our involvement with the people we help in ways that are likely to be useful to the Court of Protection if necessary? I hope some of the individuals and organisations involved in advance care planning will take up this invitation to respond.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 600 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)
[v] There was an earlier hearing which I did NOT observe, which I think was the first attended hearing in the case, on 11 July 2025.
[vi] We are not allowed to audio-record the proceedings, so everything in this blog post that purports to be quoted from what was said in the hearing is based on my contemporaneous touch-typed notes. They are as accurate as I could make them, but unlikely to be verbatim.
[vii] I am grateful to Jordan Briggs, counsel for P via her litigation friend, for preparing for the court the very helpful “Agreed Note on the law of advance decisions”: he is, of course, not responsible for the way I have used it! I am also grateful to the judge who spontaneously made the observation that this would be useful to me and authorised its disclosure.
[ix] I am grateful to DJ Keller for consistently ensuring the transparency of these hearings.
[x] Quoted from the Position Statement submitted by Pembrokeshire County Council (the mistake relating to “advanced” – rather than “advance” decisions is in the original).
[xii] This person had not submitted witness evidence so it was merely “hearsay”, admissible in the COP, said counsel for the local authority “where the person has no skin in the game and no reason to lie”. Counsel for P said that “strictly speaking, if you rely on hearsay evidence there is a requirement to get permission in advance under 14.2(d)”. I did wonder why there wasn’t an actual witness statement (as opposed to the litigation friend’s account of what was said in a telephone conversation), but I don’t suppose it would made any substantive difference.
I was intrigued when I saw this hearing (COP 13853773) listed before the Senior Judge in the Court of Protection, sitting at First Avenue House in London on 20th October 2025.
It concerns “non-compliance issues” in a case called JS v South Tyneside Council – and I guessed (correctly) that the non-compliance related to the behaviour of South Tyneside Council rather than to JS, the protected party in the case.
It turns out, as HHJ Hilder (who kindly made time to talk to me after the hearing) explained, that public bodies (local authorities, Trusts, ICBs etc) are regularly held accountable for non-compliance with court orders by being summoned before her to explain themselves. If they then comply not less that seven days before the date of the listed non-compliance hearing, it’s vacated (and apparently that’s usually what happens). I discovered that HHJ Hilder sets aside time for these hearings one day every month. A few days after the hearing, I was sent a list of the dates for “non-compliance issues” cases in 2026. I will be looking out for them and hope to attend as many as I can.
Over the past five years of observing Court of Protection cases, I’ve never actually watched a “non-compliance” hearing before. I’ve never even noticed them in the public lists. Apparently this is because the effect of listing them is rapid compliance, meaning that case never appears in the public listings.
I am not sure what sanctions, if any, are available to the judge if a public body simply continues its non-compliance. But the weight of the judge’s displeasure was fully evident in this case against South Tyneside Council.
What order had South Tyneside Council failed to comply with?
At the beginning of the hearing HHJ Hilder outlined what she called “the sorry history” of this case.[1]
Back in 2021, the Council had applied for authorisation of JS’s deprivation of liberty, using the streamlined (Re X) procedure.[2] They wanted the court’s permission to enter into a tenancy agreement on behalf of JS at a new placement, because his previous placement was closing down. Everyone considered that the new placement (a residential facility for people with learning disabilities) was in his best interests – but no Rule 1.2 representative[3] had been identified. So the application was stayed.
In March 2023, there was still no Rule 1.2 representative in place. The court lifted the stay and directed that the Applicant file updated evidence concerning the application and a signed COP3 capacity assessment. A direction was made for a General Visitor to complete a section 49 report.
Two years later, in March 2025, South Tyneside Council applied for a 12 week period of time to comply with the direction in the court order of March 2023, which was granted. But they didn’t meet the new deadline. So the case was listed for a non-compliance hearing on 20th October 2025.
Ten days before the listed non-compliance hearing, the Local Authority applied to vacate the non-compliance hearing, and to re-list the matter 10 weeks later to allow time for a Rule 1.2 representative to be appointed. That application was refused by the court. (Another non-compliance hearing, listed publicly for the same day – one I’d also hoped to attend – concerning the City of Wolverhampton Council in relation to COP 13795915 had been vacated, sadly for me.)
Although it was listed as ‘in person’, I was told – too late, at 09.31, while walking to First Avenue House – that it was to be remote. I asked for and was granted a “consultation room” (where lawyers normally consult with their clients) to watch the hearing on my laptop just down the corridor from the courtroom where HHJ Hilder was conducting the hearing. Court staff were helpful in finding an empty room and helping me to log on (though I ended up using my phone hotspot).
On behalf of South Tyneside Council, Nancy Williams of Doughty Street Chambers accepted that its conduct in this matter had been unsatisfactory, and apologised to the court for its non-compliance with the court direction and for the delay in making progress with this matter. According to their position statement, “During the time that the application has been before the court, the Local Authority has been experiencing ongoing staff difficulties and resource constraints”: she further referred to “mistaken” beliefs and “confusion” among the staff.
South Tyneside Council had done their best (albeit belatedly) to put things right, and had now (said Nancy Williams) appointed an IMCA on behalf of JS to act as a Rule 1.2 representative. The IMCA will need 4 weeks to prepare a statement for filing at court. Meanwhile, the local authority was continuing to seek authority to enter into the tenancy at JS’s placement on his behalf.
HHJ Hilder referred to the “very serious delay” in this case but focused on the positive fact that “we are going to make some progress now”.
She then identified some procedural errors and failings.
First, “despite recital F” she said, “the Council can’t appoint a Rule 1.2 representative: only the court can do that. So I am going to insert into the order that the court does that.”
Second, she asked what had been happening with JS’s tenancy to date, given that the local authority was continuing to seek the court’s authority to enter into a tenancy. On behalf of South Tyneside Council, Nancy Williams said that “the tenancy was allowed to progress”.
Judge: Are you telling me that somebody has purported to enter into a tenancy agreement without the appropriate authority?
Williams: Your Honour, that is the position. And the local authority seeks to remedy the position today by seeking the authority of the court.
The judge visibly exercised restraint in response to this news. She explored how it had come about that “someonewithout any lawful authority to do so” had entered into a tenancy agreement. It appeared that someone somewhere had believed that, as the application for authorisation was before the court, that would be sufficient. “Please take back to the local authority,” said HHJ Hilder sternly, “the message that simply applying for authorisation is not the same as being granted it”.
The approved order requires (by 1st December 2025) a COP 24 statement setting out/exhibiting six items:
a. the circumstances in which a tenancy agreement was purportedly signed on behalf of JS without any authorisation to do so;
b. an explanation as to why the Local Authority considered that it was appropriate to enter into the purported tenancy agreement without lawful authority;
c. a copy of the purported tenancy agreement;
d. an updated care and support plan which includes details of the level of staffing support when JS attends the day centre;
e. a COP 3 assessment of JS’s capacity to enter into tenancy; and
f. a draft final order.
There are a further three items relating to the Rule 1.2 representative:
a. confirmation that she is willing and suitable to act as Rule 1.2 repreesentative;
b. confirmation that she understands the role of Rule 1.2 representative, including monitoring the implementation of the care plan and consultation with JS; and
c. her views on whether the care arrangements are in JS’s best interests, including JS’s identifiable wishes and feelings.
The judge will deal with the matter on the papers on 3rd December 2025 – unless, I suppose, there is further non-compliance. The first date in 2026 set aside for non-compliance hearings is Monday 12th January, so I will be looking out for them then.
Reflections
It was very useful to know that there is some system in place for trying to ensure that public bodies comply with court orders. There’s a lot of non-compliance from public bodies evident in Court of Protection hearings every day. It’s routine to hear apologies tendered to the judge for not having submitted reports in time or complied with other directions and orders – pleading staff sickness, failures to respond to an enquiry further down the line, and administrative errors. Mostly judges seem resigned to it. It’s no secret that health and social services (like HMCTS) is underfunded, under-resourced and struggling to deliver basic services. I imagine that it’s only when a delay in something that should be straightforward (like appointing a Rule 1.2 representative) extends this long (two years or more) that the court draw the line. At least it seems, finally, to get compliance!
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 600 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)
[1] There’s also a more detailed account in the Position Statement shared with me by the local authority.
“What about somebody who is so demented they’re effectively catatonic. Just spend the day in front of a television set. Is that person- In what sense does that person have any liberty which she can be deprived of?”
Lord Reed, president of the supreme couRt 2025
The question asked by Lord Reed was in the context of discussion on the first day of a hearing in the Supreme Court on 20th October 2025. [1] He was one of a panel of seven judges hearing the case brought by the Attorney General of Northern Ireland to reconsider the Cheshire West decision, more than a decade after the landmark judgment in which Lady Hale upheld the rights of people with disabilities and ruled that liberty applies universally. Lord Reed is currently President of the Supreme Court, having replaced Lady Hale in 2020. The contrast between the former and current President is stark.
It was hard to believe some of the stigmatising and derogatory language used by Lord Reed and some other judges to refer to people with dementia. It ran counter to all the guidance put out by the relevant charities,[2] and it felt deeply regressive, particularly given the judges’ influence and positions of power.
What kind of message is conveyed to the public? That the ‘demented’ person left for hours staring at a TV set has no concept of quality of life, let alone freedom, so why does protecting their liberty (if they can be said to have any such thing) matter?
The reactions from many people watching the Supreme Court hearing unfold, and commenting on it in the WhatsApp group hosted by the Open Justice CoP Project (which included Best Interests Assessors, family members, health and social care professionals, academic researchers, lawyers and advocates) indicated very strongly that protecting everyone’s liberty does matter.
As a Social Worker and Best Interest Assessor, I am firmly rooted in rights-based values. Clearly focusing on the wishes and feelings of every individual is at the forefront of my approach, whether these are communicated through words, signs, behaviour, or by others who know them well.
I believe everyone has a right to liberty, and this shouldn’t depend on their perception of liberty, given that this will be experienced in different ways and on different scales. Some people may not conceive of a life without restrictions, while others may have very minimal awareness of their surroundings. Is this an off-switch for their rights and freedoms? No. It simply requires more thought, sensitivity and relational connection to promote the person’s liberty, their dignity, and their will and preferences.
Of course, liberty safeguards could and should be embedded within wider care planning. Unfortunately, the reality is that in many cases, this isn’t happening, and I have seen firsthand how the health and care systems have failed people, from the non-verbal person placed in a wheelchair facing a blank wall, to the neurodivergent person who retreated to live in the shower room for months, due to their unhappiness.
Human rights can be eroded to the point where people are treated as objects, to be ‘done to’. Some people are unable to clearly express their complaints or articulate their wishes and feelings, and some people are conditioned to accept being treated as non-volitional. These factors can lead to misinterpretation and misrecognition of their rights.
In my experience, the independent scrutiny of care plans and formal representation afforded by the Deprivation of Liberty (DoL) authorisation process has been crucial in ensuring the person’s voice is heard, that the care plan aligns with their wishes and feelings, and that their liberty is protected.
It is from this vantage point that I become increasingly frustrated with the narrative that Deprivation of Liberty authorisation is the padlock, which creates the confinement.
The authorisation process is flawed and is in desperate need of revision and resources, but it does not create the confinement: it seeks to provide safeguards to those who are objectively confined by the care plan already in place, and who are unable to challenge such arrangements.
Unsurprisingly, I recoiled when counsel for the Secretary of State described the Cheshire West judgment as creating the ‘great confinement’, and I welcomed the corrective response from Lady Rose:
“I don’t think you can say that Cheshire West led to a mass confinement of people. What it led to maybe was a re-characterisation of the existing confinement of a lot of people as being a deprivation of liberty”.
Lord Hodge agrees: “It is merely a re-characterisation – and the imposition of a considerable burden on the public authorities”.
This exchange crystallises the real issues.
Thousands of people are being objectively confined – sometimes as a proportionate response to risks of harm, but not always. Where the confinement is legally classed as a Deprivation of Liberty, the person is provided with Article 5 safeguards, i.e., independent checks and the means of appeal.
This is seen as a burden (in terms of public costs and resources), and this seems to be the underlying reason for trying to change the goal posts. As the Attorney General for Northern Ireland’s advocate put it, the aim is “to narrow the cohort who are drawn into the system”.
I agree that there needs to be more nuance in how the safeguards are applied, allowing a more targeted approach for individuals who are highly restricted or unhappy with the arrangements. We need a properly funded liberty protection framework that is fit for purpose, and that does not leave thousands of people waiting months, if not years, to be assessed.
Changing the legal definition of Deprivation of Liberty may reduce the number of referrals, but it will not change the fact that there are thousands of people confined, often without oversight, representation or advocacy.
Ultimately, the Cheshire West judgment isn’t the problem. It’s the under-resourced system and oppressive, broken cultures, which need urgent reform to guarantee the protection of the right to liberty.
Eleanor Tallon is an Independent Social Worker, Expert Witness, and Best Interests Assessor. Eleanor is also an ESRC-funded Doctoral Training Pathway (DTP) student at the University of Birmingham. Her research focuses on the application of the Mental Capacity Act (2005) in private brain injury case management. Eleanor can be contacted via email eleanor@mcaprofessional.co.uk or through her website mcaprofessional.co.uk and found on LinkedIn or X(Twitter) @Eleanor_Tallon and Bluesky @eleanor24.bsky.social
[1] You can hear him say this at about 1:07:50 on the recording for 20 October 2025, morning session (on the Supreme Court webpage)
I share here my take on the concept of valid consent and the three-day hearing in the Supreme Court which has just ended.
I am a social worker with many years’ experience. I qualified as a Best Interests Assessor [BIA] in the first cohort in 2009, and I have taught on BIA courses for many years. I managed a DoLS team until ‘retirement’. I chaired the regional DoLS group and the national DoLS group and have carried out a lot of freelance work for the Association of Directors of Adult social care both nationally and regionally (ADASS, WMADASS) and the Local Government Association (LGA.)
I currently carry out MCA/DoLS work for WMADASS and continue as a freelance trainer.
But above all that I support my daughter, who had traumatic brain injury in 2010.
I watched most of the 3-day hearing as it was live-streamed. On Monday I was quite horrified when I heard some of the language used by the judges to describe both people and situations. Equally I saw that they were horrified to hear that yes, the person who is nursed in bed, whocannot form an intention to leave, who may have no ability to exercise autonomy is deprived of liberty – this is the Cheshire Westeffect.
I did not hear anything positive, anything at all, about the (equally important) aim of the MCA – empowerment.
After my daughter’s accident and when we knew what her abilities and deficits were, I spent a long time thinking about liberty. How does someone go from a totally self-contained independent free-thinking individual to one with restricted liberty? Has the State imposed those restrictions or has the car which hit her imposed them?
I know it’s not a popular view, but I consider the limitations on my daughter’s liberty arise from the injury. She cannot always bring forward and initiate ideas; she can’t go out alone – not because we or the State want to impede her experience of liberty but because the combination of visual impairment, mobility impairment and speed of processing information make it unsafe for her to do so. So we (the people who support her) manage the risk by ensuring that she is able to go out with another person or is driven where she needs to go. If she did express a wish to go out on her own this would have to be safely managed. Is she content with the arrangements? Yes. Can she make her wishes and feelings known? Yes.
On a personal level, I have ensured that the team who support her are working towards a framework of invisible scaffolding that creates an appearance of autonomy and liberty but is underpinned by a huge amount of support and is predicated on her wishes and feelings, her will and preference.
I looked forward to hearing these issues debated by great minds.
Monday’s hearing was, of necessity, a meander through the legal arguments, why the Supreme Court could look at this issue, what the Strasbourg case law was like to date and, to some extent, what the impact of Cheshire West has been.
But as the judges turned to look at the subjective element (i.e. a lack of valid consent) I felt that people who matter were missing from the story. I know that we heard from the charities (Mencap, Mind and the Autistic Society) on days two and three and I appreciate their position which explored the potential for coercion and that a smile or a lack of objection does not necessarily equal consent. But I take a different position and we didn’t hear from anyone representing actual people from a position which explored the value of a person’s will and preference being significant in decisions about their own life.
DoLS situations fall into a number of camps and the proposition put forward in the hearing for a form of valid consent will by no means affect everyone.
There are people who maybe chose the care home they are in when they had capacity. They may no longer fully know where they are if you ask them but they are totally content.
Then there are those who are really confused about where they are, but still content. They may say to an assessor “Oh yes, its lovely here – we always stay in this hotel, we’ve been coming many years” or they might say “Yes I am happy here and when I’m older daddy’s going to buy me a pony” (the person being 92).
Another person might say “I never want to be in a care home,” then the assessor asks them about where they are now and they reply, “oh yes its lovely here” and it is a care home.
At another end of the spectrum, there are those with very advanced dementia who can no longer speak or communicate their wishes and feelings in any way. I wish we could have widened Ferreira[i] for these people but as it is they need DoLS authorisation, and we certainly wouldn’t consider them to have given valid consent.
Then, as we all know, there are people who really don’t want to be where they are and everything about them and everyone involved tells us this. But these people also (in my view) fall into two camps. There are some people who don’t want to be there and there is a viable alternative; but there are some people who are now so confused that we are told they asked to go home when they were at home, because the home they are thinking of is a different one.
None of these people are likely to be considered to be giving valid consent.
The Official Solicitor as well as the Charities gave examples of people who may have appeared on the surface to be ‘happy’ but when a more forensic examination was carried out, they really weren’t. I understand the fear that this may not be picked up if there is a change in the concept of valid consent, but when we looked at it in just a little more detail I would argue that good social work practice would have picked up the true picture.
We didn’t hear anything about the positive impact of a person’s will and preference being adhered to.
There was reference to community settings during the hearings, particularly when people have been successfully discharged from intense restrictions to a place they call home and are happy but are still considered deprived of liberty, using the Cheshire West acid test. Interestingly Steven Neary’s dad posted photographs of Steven over the weekend; he was shopping, going in and out of his house, living an ordinary life and the caption said, “this is what deprivation of liberty in the community looks like”.
As we all know, and as assessors have all seen, there are situations which should never have been able to continue: over-restriction, unnecessary restriction and very poor unsafe and inadequate care. I can understand a viewpoint such as was expressed by the Charities during the hearing, based on this fear. If a person complies it doesn’t mean they are happy; if they don’t resist, it doesn’t mean they agree. Recognition of these basic facts has been the benefit derived from the universality of the acid test, a wider protection for everyone.
I still think that this is an overprotective approach and that a more empowering approach would, at least in some part, take the person’s wishes and feelings into account in determining whether they are deprived of liberty or not. I agree this must sit in the context of some overall safeguards: better care provision, the Care Act working as it should, safeguarding practice being robust and social work practice being strengths-based and person-centred.
Often during the Supreme Court hearing, it was pointed out that systems don’t work as they should, that there are Council waiting lists and so on, but does this mean that we should rely on DoLS as the only valid protective measure – because there are waiting lists there also!
What the hearing didn’t concern itself with is just how many of these potentially consenting people are exactly the group of people who are not seen as high priority for DoLS. It’s easy to say therefore that DoLS is a safeguard, but if you’re still on the waiting list it isn’t.
On the final day of the hearing (22nd October 2025) we heard that LPS will solve many of these issues but I don’t agree with that. Without a change of definition (either the objective or subjective elements), the numbers of people deprived of their liberty will remain the same. The description we heard and the references given about waiting lists for Care Act assessments will not be improved by also having to carry out LPS assessments.
Also on the final day, the Attorney General for Northern Ireland in the reply summarised the argument (his only argument) that although there is a test of mental capacity in domestic law there is something wider which is consent to confinement drawn from wishes and feelings, i.e. that someone may lack the necessary abilities required by the functional test of the MCA (to understand, retain, use and weigh the relevant information in order to make a decision about their care or treatment), but may still be able to consent to their confinement through an expression of their wishes and feelings.
I am inclined to that personally because if a lack of mental capacity for care and treatment decisions means an automatic inability to consent to confinement, I think we are saying to a lot of people that they don’t matter and therefore their wishes and feelings are not valid. As Lucy Series writes, “It is my view that if we take seriously that everyone has a will – a viewpoint and a subjective experience of the world – then it must be possible for them to experience positive liberty a well…… I mean a living situation and care arrangements that reflect what they want.”
I had hoped to hear Judges grappling with this detail, but a lot of the time I felt they were far removed from the daily world of the Best Interests Assessor and Deprivation of Liberty Safeguards. The reference was on this issue alone but the desire to see Cheshire West overturned – or equally to see Cheshire West remain in place – took over a lot of the three days.
I have no idea what the outcome will be and we have a long wait until we know. Exciting times to be both involved in DoLS and considering the Liberty Protection Safeguards!
Lorraine Currie is now a freelance Mental Capacity Consultant. She has over 30 years Local Authority experience, is a qualified social worker and in 2021 received the LGC Award for Outstanding Individual Contribution. Lorraine provides extensive training and is an Associate for the West Midlands Association of Directors of Adult Social Services (WMADASS) working on DoLS. Lorraine is on Bluesky as @lorrainecurrie.bsky.social
[i] The coroner considered the death of a woman (Maria Ferreira) who had Down’s Syndrome. She died in intensive care. The outcome was that there is a carve out from the general rule about when the acid test applies. This is where the person is so unwell that they are at immediate risk of dying anywhere other than in hospital and the arrangements for delivering treatment are the same as they would be if the patient could agree.
On 20-22 October 2025, the UK Supreme Court heard argument about how to understand a deprivation of liberty. This blog is asummary of the oral arguments that the court has heard. It was originally published on 21 October 2025, and updated on 24 October 2025 with a summary of the arguments heard on Day 3. To watch the recording, follow this link:https://supremecourt.uk/cases/uksc-2025-0042To turn on closed captioning on these recordings press the “CC” button on the bottom right of the screen.
The Supreme Court heard submissions from Tony McGleenan KC , on behalf of the Attorney General for Northern Ireland. In the morning, this mostly consisted of a detailed exploration of the Strasbourg jurisprudence, which the Attorney General thinks demonstrates that someone can give valid consent. In the afternoon, the submissions mostly consisted of a close reading of the judgment in Cheshire West. The Attorney General is of the view that, in Cheshire West, the Supreme Court fell into error by not giving weight to the subjective element.
The justices repeatedly returned to the issue of whether somebody who is unable to leave (such as somebody in a Permanent Vegetative State or with advanced dementia) is deprived of their liberty. They asked whether there’s anything in the Strasbourg jurisprudence that says somebody in those circumstances is deprived of their liberty. The justices also expressed a need to hear more about what the procedure will be to ascertain a persons’ wishes and feelings, as well as what will happen if a relative or friend disagrees with the opinion that a person is consenting. This issue will be returned to in the Attorney General’s response (which will be at the end of Day 3).
Finally, there was discussion of whether this reference engages the 1966 Practice Statement. This was a statement made in the House of Lords that stated “too rigid adherence to precedent may lead to injustice and also unduly restrict the proper development of the law”. The result is that the Supreme Court can depart from a previous decision when it seems right to do so.
In the final twenty minutes, the Lord Advocate began her submissions (from 1.40.52 of the recording). This was mostly a summary of the submissions she will make on Day 2.
Day 2, 21 October 2025
Lord Advocate
In the morning session, the court heard submissions from the Lord Advocate, the Rt Hon Dorothy Bain KC. These submissions oscillated between a consideration of the first instance judgment in Cheshire West, and the wider matrix of Strasbourg jurisprudence. It is the position of the Lord Advocate that the Supreme Court does not need to depart from the decision in Cheshire West. Rather, the court should clarify the position that it is appropriate for a person’s wishes and feelings to be taken into account. However, that should happen after an evaluation of the objective element. The Lord Advocate argues that the question of wishes and feelings is separate from the question of whether somebody is confined. The evaluation of confinement must come first.
Secretary of State for Health and Social Care (from 1.42.53 of the morning session recording)
Before the lunch break, and for an hour after, Joanne Clement KC made submissions on behalf of the Secretary of State for Health and Social Care. These submissions were focused on the argument that the consideration of wishes and feelings is relevant to the objective element. She also submitted that Cheshire West was wrongly decided because the Strasbourg Court has never adopted an acid test. The Strasbourg court does give specific regard to the context and circumstances of restrictions – their degree and intensity. The acid test does not accommodate such an assessment.
On behalf of the Secretary of State it was submitted that objective facts – whether a person has tried to leave, whether they have said they want to leave, whether they exhibit behaviour that shows they want to leave – are relevant to the question of whether someone if confined. This is separate from the issue of valid consent, which the Secretary of State submitted is a consideration under the subjective element.
The Supreme Court in Cheshire West also did not pay enough attention to a person’s “innate condition” meaning they cannot leave, such as a person in a Permanent Vegetative State, Minimally Conscious State, or with advanced dementia. In those cases, the state is not doing anything to confine somebody – the confinement is by reason of a person’s inability to leave.
The Secretary of State does consider this is a case that engages the 1966 practice statement because the assessment of the objective element in Cheshire West was “so clearly wrong”.
The charities (from 1.01.42 of the afternoon session recording)
In the final hour of the hearing, the court began to hear submissions made by Victoria Butler-Cole KC on behalf of three charities – MENCAP, Mind, and the National Autistic Society. The judges were encouraged to look beyond hypothethical examples, and consider actual examples (filed in evidence) of the restrictions that people do experience. Some of this is also referenced in the skeleton arguments filed on behalf of the charities.
The charities submit that the Strasbourg Court has not been concerned with whether a person appears to be content. Rather, the Court has been concerned with the need to provide information, and check understanding of that information, in order to reach a view of whether a person is consenting. This is something that would happen almost by default under the Mental Capacity Act, where capacity is time and decision specific, but would not necessarily happen where someone is subject to a blanket deputyship order (as is the case in most of the Strasbourg jurisprudence about Article 5).
In addition, the Strasbourg Court separates out the process eliciting consent, whether that consent is informed, and whether that consent is valid. The case of N v Romania demonstrates that the Strasbourg Court does err on the side of caution – which is also reflected in Cheshire West.
Day 3, 22 October 2025
NB. This blog will be updated on 24 October 2025.
The continuation of submissions on behalf of the charities
The charities take the view that the test proposed is vague, unworkable, and uncertain. It is impossible to implement without removing safeguards. In addition, the case of the Attorney General raises more questions than answers. What is a sufficiently positive wish? To what is a positive attitude being displayed? Is that positive attitude over a period of time or a snapshot? If someone is given sedating medication, how does that fit into the assessment?
Counsel also stressed that the examples provided by the charities deal with the reference i.e. the question of valid consent through an expression of wishes and feelings. The charities take the view that the argument raised by the Secretary of State is separate. However, the charities submit that the person with limited ability to form views and proactively decide what to do should have the same protections and safeguards as those who can.
In concluding, Arianna Kelly explained why the charities do not think that this is an appropriate case to apply the 1966 Practice Statement in relation to the Secretary of State’s submissions. This is because: the reference does not propose to change the acid test, which is what Cheshire West was concerned with; the subjective element is concerned with valid consent, not whether there is a deprivation of liberty; no new Strasbourg authorities undermine Cheshire West; there is a strong interest in preserving stability and clarity of existing precedent, which Cheshire West does provide; the government has had an opportunity (in other cases) to run the arguments it makes in this case but has not done so; with respect to the current administrative problems, Cheshire West does not obligate the government to run the current DoLS scheme in the way it does, and it is within the power of the government to change that.
The Official Solicitor (from 45.23 of the recording)
Emma Sutton KC made submissions on behalf of the Official Solicitor, and the position of the Official Solicitor is broadly that of the Charities.
Counsel provided the court with three real, as opposed to hypothetical, examples of people who the Official Solicitor has represented in the Court of Protection. In all of these cases, the protected party was said to be in some way content with their living arrangements. However, in all of these cases the scrutiny of the court revealed this not to be true. All of these examples were said to demonstrate that an assessor describing somebody as content and/or consenting may not necessarily capture the full picture, and independent safeguards are needed.
Lord Sales in particular pushed this point, and expressed his view that some of the people in the examples would actually not be considered to be consenting under the proposed Code. Counsel submitted that there is “not enough detail” in the Code for that to be a certainty.
Counsel also returned to a comment made by Lord Reed on Day 1, in which he said that “people with significant cognitive impairments do not have liberty to lose” (this is how Counsel captured the comment at 1.10.35-1.10.44 of the recording). Counsel implored caution in this regard, remaining the court that P does have subjective experience of the world whereas that line of thinking implies otherwise. Counsel also stressed the importance of understanding the care plan exerts control over a person’s day-to-day life.
The Official Solicitor also takes the view that identifying a deprivation of liberty is a fact specific exercise. Counsel implored the court not to rely on hypothetical examples and speculate from them. Rather, the case law should develop at first instance with a fact specific matrix.
Response of the Attorney General(from 1.36.31 of the recording)
Counsel acting on behalf of the Attorney General took this opportunity to re-state the Attorney General’s case by reference to opposing arguments. In Cheshire West, the analysis was said to be “too austere” in relation to MIG and MEG but that the outcome for P was correct. The test of consent as an autonomous concept was said to be beyond capacity, and speaks to the preferences of the individual.
The current approach to identifying a deprivation of liberty has a problem of over-inclusion i.e. people who should not be involved in the framework but whose inclusion ensures safeguards. This means there are more people deprived of their liberty than are in the prison population.
There was some discussion between counsel and the judges about whether the proposed changes would apply to an inpatient in a psychiatric hospital. The incorporation of the autonomous concept would entail sufficient understanding rather than legal capacity. The specific question being considered is whether a person assents to confinement in the context of social care detention. It sounded like there may need to be a different test for an inpatient in a psychiatric hospital but (and I’m editorialising here) that wasn’t overly clear.
When can we expect a judgment?
At the conclusion of the hearing, the judges did not give a timeframe for how long they will need before they hand down the judgment. We probably shouldn’t expect it before Christmas because Lord Reed said that, “this isn’t a straightforward matter, and it will take us some time“.
To give some insight, the passage of time between the hearing of, and judgment in, Cheshire West was five months. That same timeframe was recently repeated in the For Women Scotland case.
That being said, I wouldn’t bet on it. In the case of Abbasi, exactly a year elapsed between the conclusion of the hearing and the handing down of the judgment.
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 is on LinkedIn, X @DanielClark132 and Bluesky @clarkdaniel.bsky.social.
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