A personal reflection on decision-making processes

By Vicky Farrell, 22nd June 2026

As an experienced clinical lead within NHS community services for older adults, I recently attended a virtual hearing with the aim of gaining insight into how the Court of Protection facilitates complex decision-making outcomes. The case I observed was  COP 20019749 before Mrs Justice Theis sitting at the Royal Courts of Justice on 20th May 2026 (via MS Teams).

There are times in my clinical practice where case management for complex individuals reaches a decision deadlock. Within frailty care, decision stagnation often appears to arise from either structural constraints (organisational boundaries, ability to allocate resource, insurances, GDPR, operational capacity and demand) or differing judgements about acceptable levels of risk and responsibility (what is considered ‘safe enough’ at home).

As a first time observer, I am grateful to another observer who watched the same hearing for providing a summary of the circumstances of this case which are as follows:

“The Capacity Assessment undertaken by the independent expert concluded that P lacks capacity. However, the parties subsequently drew up an agreed list of questions that has been put to her, and a response is required within four weeks.  The applicant LA (Kent County Council) was seeking a direction for a timetable to be worked out for the outstanding issues to be resolved. P will reach 18 in two months’ time and faces an uncertain future as an adult with several different agencies involved or disputing their involvement. Specifically, the referrals for P to have an OT assessment and a Speech & Language assessment, and the fulfilment in her EHCP that she should have education provided for her, are all seemingly stuck at the moment because of this dispute.” 

The similarities – What took me by surprise was how similar the conversations in court felt to discussions in my own clinical practice: such as who are the appropriate representatives at this discussion, who is responsible for assessing care and support needs, who is responsible for funding such care, services, continuation of care across geographical boundaries, and what happens when stakeholder opinions do not align. The hearing was also affected by the same constraints and contexts that shape frontline decision-making. One example was that a professional had not responded to requests for information and P was on waiting lists for statutory services whose assessments may support and inform court processes and outcomes. The most interesting part for me was the request from the barrister representing P, who asked for a framework setting out how organisations are going to work together to provide integrated and coherent care. In other words, how are multiple organisations going to share and hold risk, information, and responsibility and how will this look in practice.

The differences were significant – Decision-making within complex at-home clinical care utilises pattern recognition, ‘rule of thumb’, experience, and the need to assess and implement care plans rapidly. Today, the judge had access to all submitted documentary evidence in order to make informed decisions and this clarity in ownership of information provided a clear trail of accountability. This was highlighted when the judge referred to written records to confirm how long P had been on a particular waiting list. In day-to-day clinical practice, fragmentation of information across systems and organisations perhaps creates greater levels of uncertainty in what can be known. While the outcome of a hearing is subject to appeal, a judge holds authority to compel action from others and if required, can make a final decision. The designated ‘decision-maker’ is more challenging to identify in frontline clinical practice, regardless of whether the decision is being made using the best interests process. This is because no stakeholder can compel another person from another organisation to act. So if an adult holds full capacity to decide on how their safety can be supported at home, their proposed care plan still requires alignment and agreement across the family members and organisations who provide the resources necessary to enable the care plan to work. Within my day-to-day world, there is no operational framework that allows one of these individuals to exercise authority over another, in order to make a final decision.

In summary – What surprised me most was not how different the Court of Protection was from frontline practice, but how similar many of the underlying challenges appeared to be. Questions about responsibility, risk, information sharing and cross-organisational working remained central. The key difference was that the court provided a clearly defined decision-maker with authority to direct action when agreement could not otherwise be reached.

Vicky Farrell is an Advanced Practice Physiotherapist and Predoctoral Clinical Academic Fellow at University of Exeter. She is planning to carry out doctoral research on how complex care decisions are made when supporting older adults living with frailty to remain at home.

Fit for discharge for the last 8 months and still in hospital: Yet more delay (and Lieven J offers to mediate)

By Kim Dodd and Amanda Hill, 21 June 2026

“I apologise to [P’s siblings], who must think that the justice system is a bit of a joke.
But we have to do our best.”

Mrs Justice Lieven, 5th June 2026

The protected party (P) is a woman with diagnoses of mild learning disability, “emotionally unstable personality disorder”, functional neurological disorder, dissociative disorder and elective mutism (she communicates using Makaton). She’s been in hospital since April 2025. In September 2025 she had surgery and was soon afterwards declared medically fit for discharge.  She’s now been in hospital for 14 months and it’s about eight months since she’s been fit for discharge.

We’ve previously blogged about two earlier hearings in the case (most recently “Fit for discharge and still in hospital five months later…” and before that  “Should surgery be delayed….”). The latest hearing in this case (COP 13630253) was on 5th June 2026, before Mrs Justice Lieven.

The delay  – now of 8 months duration – is caused by the absence of an eating and drinking plan. She is currently receiving nutrition by an NG tube. According to the approved order of 20th November 2025, “all parties agree that a coherent plan is required for [P’s] nutritional needs prior to discharge from hospital” – subsequently referred to as an “eating and drinking plan”. But it’s now eight months since she’s been fit for discharge and there is still no eating and drinking plan, despite the best efforts of two senior judges to move the situation along.

We’ve both observed previous hearings in this case (Kim one, Amanda five, six in total) all before Senior Judge Hilder, the Senior Judge in the Court of Protection and a Tier 2 judge at First Avenue House. (Judicial continuity has not been matched by continuity of counsel – only Anna Bicarregui, acting pro-bono for P’s siblings, has been constant across the hearings we’ve observed). There have been more recent hearings (which we’ve not observed) and the case has been escalated to Mrs Justice Lieven, a more senior (Tier 3) judge. Another observer (Tim Sugden) reported on the first hearing before Lieven J (on 12th May 2026) – see the update at the beginning of the ‘Fit to Discharge’ blog. Not much had changed. The hearing we’re reporting on here, which Kim observed, is the second hearing before Lieven J and it took place around a month after the update in the last blog post.  

Once again, this was a remote hearing, and again there were 21 people on the link. Lieven J raised with Emma Sutton KC, new Counsel for the ICB and NHS Suffolk Trust, the potential need to prepare a schedule of how much this case has cost the public purse. Counsel for the ICB and Trust later confirmed that, in relation to the issue of the time and costs of the proceedings, “we had a useful prehearing discussion, and we all want her out of hospital as soon as possible“.

Key points from the hearing are as follows:

  • Most of the discussion was about developing a plan to get P out of hospital to her home.
  • At the hearing in April 2026, it was disclosed that P’s care providers had given notice. A new care agency is already in place, but they won’t be the ones to be used once she goes home.  The carers want to wear body cameras. Lieven J states that this is an interference with P’s Article 8 rights, and not her Article 5 rights: “A camera is Article 8. There’s too much law in this case – we don’t need it! The obvious answer would be to put CCTV in?” and that the issue of filming P against her wishes was not an issue for the court.  But Victoria Butler-Cole KC representing P via her Litigation Friend the Official Solicitor, says that P is not happy to be recorded: the plan is to get psychological input to determine whether imposing filming on P against her expressed wishes is likely to cause more problems than it solves.
  • There is still no eating and drinking plan. It is now expected to be provided by the independent experts on 15th June 2026. What has changed, though, is that the hospital is now saying she can go home with the NG tube in place having previously said that was not allowed.  That makes things more straightforward.
  • Carers would need to be trained in Makaton as that is how P communicates. P’s sister confirmed to the court that she hasn’t spoken verbally in 20 years. The judge asked P’s sister if she could identify someone who formed a positive relationship with P. P’s sister identified ‘BA’ who “….entered into her world rather than trying to fit her into a mainstream box“.
  • P’s sister went on to say: “We asked for mediation with the ICB. Our life has been completely changed by this. Regarding therapy, we agree it doesn’t need to be structured, just someone to go. She’s been in hospital for 14 months and nobody has been near.”
  • P’s sister also said, “We’re actively excluded from the meetings“. When Lieven J asked why, P’s sister replied, “We challenged them so they kicked us out”. This was not accepted by Counsel for the ICB and Trust, who stated that “lots of the meetings are professional-only meetings”.
  • Lieven J replied: “OK, I think what’s important…. I know there’s a difficult balance, it’s common in cases. People get cross. But the reality is that [P’s siblings] have a knowledge of P that no one else has. There are two psychologists involved….. Sit down and talk to (P’s sibling), do it at 4.30pm one day and I’ll mediate it. I don’t know if I’d be good at it but let’s put it on the table, Ms Sutton”.
  • P’s sister stated in respect of that: “I’m sick of reading in reports that she’s not willing to engage, no one will go near her. We’re grateful for help with mediation.” P’s sister said she liked the suggestion of the judge being involved.
  • Lieven J said “I apologise to (P’s siblings), who must think that the justice system is a bit of a joke. But we have to do our best”.
  • The judge also stated “We need a project manager in this case”, suggesting the care provider or an external person for the role. “There’s no point having a care team who meet physical but not emotional needs…… ” And to P’s siblings, “Ms Sutton is brilliant. If someone can find a way through to care planning, it’s Ms Sutton“.
  • There was a discussion about how often MDT meetings, facilitated by Suffolk County Council, were happening. The judge asked for a three-page summary of the issues, with a reply from P’s siblings, so she could try and understand what the differences in view are.
  • Lieven J asked Henry Slack (representing the hospital), how P had been in the past week and Henry Slack replied that he didn’t have knowledge. The judge then asked “Apart from [P’s siblings], is there anyone who has daily or weekly contact with her?” and Henry Slack replied “I don’t think so“. Lieven J stated that at the next hearing they should hear from someone who sees [P] at least three or four times a week: “At the next hearing I want a ward sister or manager, someone who sees her, apart from her siblings”.
  • Lieven J stated that she hoped at the next hearing, on 29th June at 2pm, they would (finally) have a care and discharge plan. She added, “It would be a perfect case for me to say it’s just not a deprivation of liberty given the decision of the Supreme Court”.  This comment is interesting, in the context of Lieven J’s position on the meaning of “deprivation of liberty”.  In previous judgments, Lieven J has taken a different position to that set out in the Cheshire West Supreme Court decision in 2014 – and her judgments have been subject to appeal. The Court of Appeal ([2025] EWCA Civ 478) found that Lieven J’s approach to deprivation of liberty (in [2024] EWHC 1690 (Fam)) was not consistent with the Article 5 framework established in Cheshire West. Now that the Cheshire West decision has been recently overturned in AGNI, Lieven J’s approach has been vindicated!

Finally, we note that this may be one of the last cases in the COP before Lieven J.  On 12th June 2026 it was announced that she’s been appointed as a Court of Appeal judge.

Amanda plans to observe the next hearing at 2pm on 29 June 2026 and hopes that Mrs Justice Lieven will preside over a hearing with a clear plan in place.  

Kim Dodd has family experience as the daughter of a P in the Court of Protection and has previously blogged for the Open Justice Court of Protection Project. Having retired early from her own corporate career and studied for a Master’s of Law, Kim has developed her interest in law generally and particularly in the area of the law on coercive control. She is on LinkedIn (here).

Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is a core team member of OJCOP. She is also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She is mainly on LinkedIn (here), but also sometimes on X (@AmandaAPHill).

Note: There was no opening summary and no documents were provided to observers. Thank you to Victoria Butler-Cole KC who checked this blog post for factual accuracy (e.g. the names of counsel)

Removal of P from the family home: Permission to appeal refused

By Celia Kitzinger, 19th June 2026

The woman at the centre of this case is in her forties, of Bangladeshi heritage, and she’s lived in the UK from a young age.  She has a learning disability and is non-verbal, and also has hearing impairments. She lives with her family (both parents and her brother) in a rented property, and spends three days a week at a daycare centre.

Back in February this year (so four months ago) Tribunal Judge Smith made an order, following a one-day contested hearing at which all parties were legally represented, that it’s in P’s best interests to move to a supported living placement.  I don’t know why the judge considered it to be in P’s best interests to move: I didn’t observe the February 2026 hearing and haven’t seen the order. There’s no published judgment. The Local Authority (London Borough of Lewisham) and the Official Solicitor support the move. The family opposes it. 

The hearing I observed, in person, at First Avenue House in London on 16th June 2026, before Senior Judge Hilder, came about as a consequence of P’s brother (now without legal representation) having made an application to appeal the order to move his sister, and to stay the order until permission to appeal is decided.[1]  

The judge relied in this appeal hearing on a note of the oral judgment under appeal – a note that had been agreed by the represented parties, but not yet submitted to the judge for approval (presumably due to time constraints). As I’ve noted before in other cases, it can be challenging for observers to understand what is going on in appeal hearings without having access to the judgment under appeal (or at least whatever written record of it is before the court). Given that there is now (with publication of my blog post) a written record of the appeal, and given the “administrative errors” that bedevilled this case (see below),  I hope that the judgment might be published in due course.

“Administrative error” in the Court of Protection

There had been what SJ Hilder described as “administrative errors” in dealing with the brother’s application to appeal.

The brother filed a COP35 notice seeking permission to appeal within a few weeks of Tribunal Judge Smith’s order but “regrettably, that application was not referred to a judge” (said SJ Hilder). Instead, “a staff member requested a COP37 argument should be filed” – in other words, they asked the brother to send the court a position statement, which he did.   When the position statement was received in mid-May “regrettably it was still not referred to the judge who made the order or to a Tier 2 judge. Instead, it was referred to a different Tier 1 judge [Tribunal Judge Reeder] for a review…”.  That T1 judge (perhaps not aware that a COP35 had been filed?) heard the case. He refused the application for a stay and ordered that P should be transferred to the supported living placement the following week (on 15th June 2026), with the application for permission to appeal to be considered a month later (i.e. after the move had been effected).  This should not have happened.

On Sunday 14th June, the day before P was due to be transferred, her brother (acting as a litigant in person) made an out-of-hours application seeking a stay of Judge Smith’s order so as to prevent P’s planned move.  Morgan J stayed the order until 4.30pm on Tuesday 16th June 2026 and directed that the matter be referred to SJ Hilder. 

This hearing was listed to consider whether Judge Smith’s order of 19th February 2026 should be stayed further and to make directions or dispose of P’s application for permission to appeal.

After explaining what had happened, Senior Judge Hilder apologised  (in the hearing) to P’s brother:  “I’m sorry your COP35 application for permission to appeal has not been dealt with more speedily. Normally it would be. This was an administrative failure.”

 The sorry story of administrative (and judicial?) failure leading up to today’s hearing presumably offers the opportunity for reflective review, process improvement, and further training.

Consideration of the application for permission to appeal

After dealing with ‘housekeeping’ issues (including problems with the judge’s laptop, my questions about the Transparency Order, the opening summary from Senior Judge Hilder, and the position statements which the judge had not seen and required an adjournment to read), the judge asked counsel for the applicant local authority (Alexander Campbell), “So, where are we going to go next?”.

Counsel for the local authority said the two key issues were

  1. Whether the stay on Judge Smith’s order that P should be moved to live in the supported living accommodation should be extended beyond 4.30 today (the time it was due to expire under Morgan J’s order)
  2. What should happen to the brother’s application for permission to appeal. Would SJ Hilder hear it (and determine the appeal in a rolled-up hearing)? Or should it be referred to another Tier 2 judge?

The local authority’s position was that the stay on execution of Judge Smith’s order should not be extended further and that SJ Hilder should refuse permission to appeal.

Counsel for P via the Official Solicitor (Amina Ahmed) agreed with that position.  She did not think it in P’s best interests for the stay to be extended and she invited the court to deal with the permission application today.

P’s brother suggested that rather than Senior Judge Hilder hearing his application for permission to appeal, Judge Smith should do so because “he has background knowledge and has sat 4 times and is coming back to hear the case in August.  He could have a look at it then”.  SJ Hilder explained that because it’s Judge Smith’s order that he is seeking to appeal, all that Judge Smith could decide is whether or not to give permission to appeal.  If he did, the appeal itself would then have to be heard by a different (Tier 2) judge.  As she herself is a Tier 2 judge, “I could consider permission today and then, if necessary, the  application to appeal”. There was also an interesting short exchange between them as to use of AI:

Judge: Did you use AI in writing this document? [his skeleton argument]

Brother: No.

Judge: Not at all?

Brother: Well, I used Google. Just Google.

Judge:  So, you put documents into Google and asked questions?

Brother: Yes.

Judge:  I think that is using AI.

The judge then explored (first with the brother, and then with counsel for the local authority and counsel for P) the four grounds on which the brother wanted to appeal the judgment.

  1. Procedural irregularities. First that the Local Authority evidence was not tested in the February hearing – but this was by agreement with all parties.  Secondly, the solicitor from the firm representing him changed frequently and the only constant was a trainee solicitor  – and Mazur showed (he said) that shouldn’t have happened.  I assume – though it wasn’t explicitly stated – that the argument must have relied on the High Court decision in Mazur & Stuart v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB) without reference to the fact that this judgment was later overturned in the Court of Appeal (CILEX & Ors. v. Mazur & Ors [2026] EWCA Civ 369).  In any event, under questioning from the judge, it became clear that he was represented at the February hearing by a well-qualified Court of Protection barrister (despite feeling that the trainee solicitor did a “rushed job” of instructing him).
  2. The placement brochure provided at the February hearing didn’t paint an accurate picture of the placement as it would be experienced by P. Various issues were raised including locked doors, mixed-sex facilities and availability of staff on the floor on which P would live. 
  3. The ‘best interests’ analysis at the February hearing didn’t properly engage with P’s circumstances – in particular the “irreplaceable relationships” P has with her family members.
  4. The proposed placement carries risks that don’t apply at home. A repeated concern related to P’s “lack of modesty awareness” and its consequences in a mixed-sex environment: “She doesn’t understand when a door should be closed or open … She doesn’t understand when she should be dressed or not dressed”.  The Official Solicitor was particularly critical of this ground of appeal: “It was very clear before Judge Smith it was a mixed facility.  One of issues that exercised the local authority, the Court and the OS was the fact that P is sharing a bedroom with her father while she’s at home and receiving personal care while her father was there…. [P’s brother] cannot now come before the court and say modesty is an issue when it’s been a matter of concern for most of the time proceedings have been before the court.”

In coming to her decision, the judge reminded herself of Rule 20.8 in the Court of Protection Rules 2017 which says that permission to appeal should be granted only where the  court considers there is a real prospect of success or there is some other compelling reason why the appeal should be heard.

In terms of what makes a successful appeal, she turned to Court of Protection Rules 2017 Rule 20.14. “The appeal judge shall allow an appeal where the decision of the first instance judge was wrong, or unjust because of a serious procedural or other irregularity in the proceedings…”

She then went through each of the grounds of appeal.

On Ground 1 The judge was “not satisfied [it] is accurate or appropriate”.  

She treated Ground 2 as a claim that the judge had heard (or seen) “misleading evidence” about the placement and pointed out that the parties had agreed not to call evidence, so she gave “no weight to that ground”.

Grounds 3 and 4 were described by both represented parties as reflecting a “wish to relitigate the case” – and that seems also to have been the perspective the judge took insofar as she drew attention to the agreed note of the judgment that showed  Judge Smith had engaged with the pros and cons of P remaining in her family home versus moving to supported living, including recognising the importance of her family relationships and her attachment to the family home.  She said, “there’s nothing new in what is expressed in this fourth ground that wasn’t already before the court in February” and read out some extracts from Judge Smith’s best interests analysis: “what does supported living offer that family does not… stimulating independent environment… opportunity to develop friendships … no risk of bedbugs or damp…. Possibility that it will cause her confusion … everything will be done to limit impact… She will still visit the day centre as before… the family will continue to meet with P to maintain relationships”.  She concluded that the judge had considered these arguments  and that P’s brother “simply does not agree with the decision the judge made”.

She ended by saying:  “Therefore this court cannot come to any conclusion other than that the appeal has no real prospect of success. That is the end of your appeal process”.

When should P move to her new home – and what’s the ‘transition plan’?

Counsel for the local authority said they would look to carry out the move on Thursday (two days later).  The judge explored with everyone how this would work in practice.  As always, Senior Judge Hilder’s questions showed exemplary attention to detail in planning ahead as well as displaying her grasp of the material in the bundle.

Judge: P has been visiting the placement for some time, and she’s taken part in discussions about her room. I’ve seen photos of the very splendid orange walls she has chosen. Where is she today?

Counsel for LA: (after consulting with the social worker seated behind him) At the day centre.

Judge:  What’s the status of the packing?

Counsel for LA:  Some packing has been done and her belongings moved in already. The rest – there isn’t much – is to be done on the day of move.

Judge:  Does she have daycare centre attendance tomorrow?

Counsel for LA: Yes

Judge:  How does she get there?

Counsel for LA: She’s escorted

Judge: So the carer goes to her home and picks her up? Does she stay with her there?

Counsel for LA: No.

Judge: And on Thursday?

Counsel for LA:  (after whispered conversation with social worker) She doesn’t go to the day centre. The usual carers arrive at her home and instead of taking her out for community activities they provide personal care …

At this point the judge suggests it makes more sense for the social worker to report direct – and he answers her questions.

Judge: She hasn’t yet slept overnight in this placement?

Social Worker: No

Judge: Has it been explained to her

Social Worker: Both the placement and the day centre have done social stories with her.

Judge: I’ve seen a  lovely photo of her making the bed.

Social Worker: She actually got into it to try it out. And they’ve helped her put her clothes in the wardrobe.

Judge: When will she be able to actually be told about the move?

Social Worker: A good time to tell her would be tomorrow at the day centre.

Some discussion about contact between P and her  family followed, and this seemed to raise some concerns for the judge. She was told that the new placement recommends “not too much contact with the family in the first two weeks”.  She adjourned the hearing for 30 minutes to give everyone time to come up with an agreed transition plan.

When the hearing resumed, it was clear there was disagreement about who should take P from her home to the new placement on Thursday.  The local authority view was that only the carers should be involved. The brother thinks only family members should be involved.  The Official Solicitor suggested that carers and families could all be involved and travel at the same time (in two taxis).

Judge: And how would that work when they get there?

Counsel for OS: The family and carers would see her to her room and reassure P and settle her in.

Judge: I’m concerned that that many people would not settle her. They would unsettle her.  It may be better if the  carers take her and the family join later.

Counsel for OS: That could work. I am hoping the family can be positive about this new chapter  – although it’s not been their view in the past  – and that would assist P in not feeling torn about where she is.

Judge: And what basis do you have for promoting this good feeling.

Counsel for OS: She’ll see family and carers essentially working together to get her there.

Judge: And what if they’re not constructively working together?

Counsel for OS: Then it should be just carers.

Judge: And how are we going to know in advance? We have very long proceedings that have been contested… I’m concerned that just hoping family and carers will work together productively is maybe a little optimistic.

Counsel for OS: Yes maybe… I recognise [P’s brother] wants to be involved in the move… that would be a way of doing this…. But if that’s not acceptable to [P’s brother], then we are clear it should be the carers who take her.

Counsel for the LA: The option which has the least scope for difficulties and least scope for confusion is for it to be the carers who take her.

Judge:  Who will arrange and fund the taxi?

Counsel for LA: The local authority.

Judge: And if they turn up at 10.30am – pick up bits and pieces and do personal care, what time would they be leaving the house?

Counsel for LA: About 11.45 or 12 o’clock.

Judge: What time is lunch at the placement?

Counsel for LA: 12.30 or 1pm

Judge:  Is there anything planned for the afternoon?

Social Worker: Yes, the plan for the first day is dinner together, watching TV with other residents… Unpacking….

Judge:  So, is there any reason why [P’s brother] and Dad couldn’t bring themselves to the placement at say 2.30 to help her unpack?

Counsel for the LA: It’s the recommendation of the placement is that family don’t attend for the first two weeks.

Judge: On what basis? Two weeks is way too long. There’s not been a 2-week period when she’s not seen her family.

Counsel for the LA: We have left it to the placement to decide what the arrangements should be.

Judge:  In other words, you are giving to carers who don’t know P a very wide decisionmaking power.  Ms Ahmed, have you had any input into this as P’s representative?

Counsel for LA/OS (not sure): mentions arrangements for video contact

Judge:  Can she even use it as she’s non-verbal? I am very concerned that P would have  no contact with her family for 2 weeks. I’m going to rise. I am going to invite you to have further discussion. I don’t see any basis at all for saying there shouldn’t be contact for 2 weeks.

Following another short adjournment, a transition plan involving more contact between P and P’s family was agreed – including a family visit on the afternoon of the day of her move, another visit the following week, and visits by P to her family home once a week subsequently.

The time already allocated for a hearing on 21st August was reduced from one day to two hours, starting at 2pm, and was repurposed to review how P’s move has gone.

The hearing closed with the judge saying to P’s brother: “I am expecting you to do your best to be as positive as you can, so P finds this transition as smooth as possible”.

Reflections

This may be a useful blog post for people trying to understand what’s involved in “appeal” hearings. An appeal is a formal request to a higher court (here, from a Tier 1 to a Tier 2 judge) to review and overturn a decision made by a lower court. It is not a retrial; rather, it is a process to examine whether the original judge made a serious error of law, applied facts incorrectly, or if there was a severe procedural injustice. Appeal judges rarely hear new witnesses or see new evidence. Instead, they review the previous judgment and legal arguments from the original hearing. An appeal will only be successful when there it’s clear that the original judge got the law wrong, made a decision that wasn’t supported by the evidence, or there was a serious mistake in the way the hearing was conducted which unfairly affected the outcome. Permission to appeal is generally required before a judge will hear the appeal itself: this is to filter out appeals with no chance of success, reserving judicial resources for cases where it’s possible that a genuine miscarriage of justice may have occurred. Many applications are from people who are simply unhappy with what the judge decided – which is not the same thing. You can read about another unsuccessful application for permission to appeal here: Permission to appeal refused: A procedural dead end. For more information about appeals from Court of Protection judgments, take a look at this very useful blog post, which includes information about successful appeals, and about alternatives to appeals: Appealing a Court of Protection judgment 


Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)

[1] In her very helpful short introduction to the case at the beginning of the hearing (none of the PD4B para.4.2(a)-(c) COPR 2017 documents having been prepared as per Gardner), SJ Hilder also mentioned that the case had been before the High Court back in 2005 and again in 2012 concerning a potential forced marriage. I’ve not been able to find any published judgments relating to this. I’m grateful to SJ Hilder for directing disclosure of the applicant’s position statement (to which they had no objections) and for disclosure of the approved order from this hearing.

Court approves sedative PRN medication

By Maria Maier, 17th June 2026

As an Independent Advocate for individuals who lack mental capacity, I have seen at first-hand the vital role the Court of Protection plays in safeguarding some of the most vulnerable members of society. Despite its importance, the Court’s work is often overlooked and underreported. By observing and reporting on its cases, I hope to contribute to greater public understanding and informed discussion, helping to ensure that the Court protects our fundamental rights as effectively as possible.

As I had time available for court observation on 10th June 2026, I reviewed the court lists the evening before and found case COP 20031464. The matter was listed before Ms Justice Harris at 1:00 pm as a remote hearing in the Royal Courts of Justice. I sent an email (at 5:50pm 9th June) asking to observe, copying and pasting the updated template e-mail from the Open Justice Court of Protection website.  This updated template requests three court documents identified in the Court of Appeal judgment in Re Gardner as documents that can be made available to observers to assist transparency (see: A statement on the Court of Appeal’s judgment in Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements).  These are: a) the case summary, (b) a chronology of relevant events, and (c) the issues for determination at the hearing.

The following day, a Court Associate sent me the joining link for the hearing at 10:23am. Later, at 12:33pm, I received a Case Summary from Ms Justice Harris’s clerk, while the Transparency Order arrived just a few minutes before the hearing began.

The Case Summary was incredibly helpful. It made a significant difference to my ability to follow and understand the proceedings, providing essential context that would otherwise have been difficult to grasp. I am grateful to the legal teams for contributing to transparency in this way.

From the Case Summary, I learnt that the protected party at the centre of the case (“P”) is a 17-year-old male with childhood diagnoses of Mixed and Other Personality Disorders and Reactive Attachment Disorder. These conditions are said to result in high levels of impulsivity, profound mood swings and intense emotional dysregulation.

As a result, P has been assessed as lacking capacity to make decisions about his care and residence, including the level of supervision and restrictions required to meet his needs. He had previously been detained under section 3 of the Mental Health Act 1983 but has since been discharged to a suitable care placement.

Just over a week before the hearing (on 2nd June), a round-table meeting took place at which a draft order was agreed. The proposed order sought interim authorisation of P’s care arrangements and requested further evidence from the local authority regarding aspects of his care, particularly the use of PRN medication. (“PRN” stands for pro re nata, meaning medication administered only when required rather than according to a fixed schedule.)

The use of PRN medication became a particular focus because of its potential sedative effects. When the draft order was presented to the Tier 2 judge, HHJ Gillespie, concerns were raised about both P’s age and the possibility that the medication could amount to a form of chemical restraint. As a result, the matter was escalated to a more senior Tier 3 judge, Ms Justice Harris.

The parties in the hearing were:

  • The appellant Local Authority (Lincolnshire County Council) represented by Richard Borrett,
  • The first respondent, P, represented by Oliver Lewis,
  • The second respondent, Lincolnshire ICB, represented by Daniel Taylor.

When Ms Justice Harris joined the call, counsel for the appellant provided a summary of the case and updated the Court on P’s condition. Although P had been experiencing ‘improved episodes of dysregulation’ prior to the previous week, his presentation had deteriorated over the preceding seven days. This deterioration included several incidents of self-harm. Although there is no confirmed evidence of causation, Mr Borrett outlined that these changes have coincided with changes to P’s medications.

Mr Borrett then began his submission for an interim declaration from the Court that it was lawful and in P’s best interests to stay in his current placement, for physical restraint to be used when necessary, and to so far as the PRN medication amounted to chemical restraint – for its use to be authorised by the Court. Mr Borrett clarified that physical restraint is not used often and is very light. Mr Borrett also made it known that, while psychiatric PRN had been increased over the last few days, it is being reviewed by P’s doctors and has only been given at P’s request.

The groundbreaking Supreme Court judgment (AGNI) came up, as it must do in many hearings at present. Mr Borrett made clear that the Local Authority was still reflecting on its position as to P’s ‘deprivation of liberty’ stating, ‘we haven’t had, or anyone else for that matter, the chance to digest that judgment and decide what it means on an individual case basis’. The 24th July 2026 was agreed by all parties as a date by which the Local Authority should have considered the implications of this judgment for P’s case and decided on a way forward.

There were no disagreements between the parties at this hearing. Both barristers for the respondents were invited by Ms Justice Harris to present any arguments against the appellant, however neither did. Mr Lewis thanked the Local Authority, ICB and those caring for P for pulling together ‘quite impressively’ the information regarding P’s medications. Mr Taylor echoed that he had ‘no objections’ and that ‘the proposed way forward seems reasonable.

What struck me most about the hearing was that the Court considered this matter despite there being no dispute between the parties. The proposed arrangements had already been agreed, and neither respondent party opposed the local authority’s application. Nevertheless, HHJ Gillespie had recognised the significance of the issues involved and, given P’s age and vulnerabilities, considered that scrutiny by a more senior judge with specialist expertise was warranted.

This served as a useful reminder that the Court of Protection is not simply a forum for resolving disagreements. Even where there is consensus, the Court has an independent responsibility to ensure that restrictions imposed on a person who lacks capacity are lawful, proportionate and genuinely in that person’s best interests.

Although the hearing lasted only 37 minutes, it provided an opportunity for careful judicial consideration of arrangements involving close supervision, the possibility of physical restraint and the administration of sedative PRN medication. The application was not treated as a procedural formality. Instead, the Court ensured that the proposed restrictions were justified and accompanied by appropriate safeguards.

Ms Justice Harris ultimately approved the agreed draft order. She stated that she was “more than content” with the proposed arrangements and was “satisfied that the restrictions in place – the supervision, physical restraint when necessary and PRN, if it amounts to chemical restraint – were lawful and proportionate, and in P’s best interests.”

Mr Borrett then raised the issue of whether the case should remain at Tier 3 or be returned to HHJ Gillespie. Ms Justice Harris noted that the PRN medication was not being used regularly and was administered only when necessary and at P’s request. In those circumstances, she was satisfied that the level of intervention did not require ongoing oversight by a Tier 3 judge.

Maria Maier is an aspiring barrister with an interest in the Court of Protection. She is currently working as a Relevant Person’s Representative (RPR) and Rule 1.2 Representative for adults who lack mental capacity and are deprived of their liberty under the Mental Capacity Act (MCA).  She has previously blogged for the Project here: Five Practical Tips For Observing Your First Court of Protection Hearing  She will begin her Bar Course studies in September 2026. Her LinkedIn is here.

 

 

Iatrogenic harm and the Court of Protection

By Michael Layton, 12th June 2026

This blog draws on my experience as a specialist in neurodevelopmental psychiatry working as an expert and professional witness in Court of Protection proceedings. I have also worked closely within organizations providing care for individuals with very complex needs and am the father of two children with complex neurodevelopmental needs.

Most of the cases I’ve been instructed in have concerned those with a neurodevelopmental condition (i.e., autism, learning disability, attention deficit hyperactivity disorder (ADHD), and also specific learning difficulties, such as dyslexia and dyspraxia). They have been mostly cases where capacity is considered “borderline”, and they have focused primarily on welfare matters – residence and care, often along with contact as well as internet and social media. I am often invited to give opinions in highly complex cases, particularly in relation to sexual relations, sexually harmful behaviour, vulnerability and individuals who refuse to be assessed. I have also been involved in some cases related to marriage, foreign travel and one case of indoctrination. 

In this piece, my focus is on ‘iatrogenic harm’ – a concept used in medicine to refer to any injury, illness, or negative consequence caused by medical treatment, examination, or institutional practice, rather than by the underlying disease. Court of Protection proceedings can likewise cause unintended harm to the person at the centre of the case (“P”) as well as to P’s family, and to P’s wider support network (i.e. care providers and professionals in social care, education, and healthcare). 

Some degree of iatrogenic harm is inevitable in medicine: medication has side effects, surgery always risks complications, and screening tests can cause pain and anxiety. Good governance is needed to prevent complacency and desensitisation to the risks (and to human error). From speaking to legal professionals, my impression is that for many reasons (e.g. stress, time and cost) they agree that one should always avoid going to court to resolve a dispute if one can. That would suggest their awareness that being engaged in legal proceedings, in itself, comes at some considerable personal cost (i.e. harm). This should come as no surprise, as civil court proceedings will often be focused on resolving a conflict.

There are two main sections to this blog post. First, I’ll describe how the experience of P, P’s family, and the network around P shapes their approach to court proceedings. Second, I’ll highlight the specific impact of court proceedings on the professionals and on the wider network around P, since these inevitably rebound on P, P’s family and their immediate network of support.

I’ll end with some final reflections.

1. Previous experiences of P and P’s family prior to proceedings

A wide range of prior experiences – often challenging or negative – can shape how both P and their family feel about and respond to involvement in Court of Protection proceedings. These include (as discussed below): 1.1 the impact on P and the family of diagnostic delays, 1.2 professional scepticism about autism and ADHD diagnoses, 1.3 parent blaming, 1.4 technological change, 1.5 (age-related) transition between services and 1.6 an arbitrary legal concept of adulthood. 

1.1 Diagnostic Delays

A neurodevelopmental condition may be diagnosed prenatally, at birth, or months, years or even decades later. Diagnosis is often delayed, sometimes because the family has not identified that there was something wrong but very frequently because of system-based delays. Parents may find themselves signposted to voluntary sector services and wait months or years for diagnoses after an already delayed initial assessment. 

The threshold for being assessed for mental health difficulties through Child and Adolescent Mental Health Services (CAMHS) is very high, even for children with very complex needs and high levels of risk. For children who are seen as relatively well, with no identified “risks”, the waiting list is often months (and can be years) before they can see a clinician able to make recommendations. Such children may not be identified so readily through school-based screening programmes.

CAMHS clinicians usually do not have the latitude to make diagnoses such as ADHD and autism, as it requires referral onto another waiting list or pathway. Although there are good reasons for these specialised pathways, this means further delay. The waiting list now for autism and ADHD diagnostic assessments across the country can be up to six years in some areas.

Families accessing private assessments (to try to speed up diagnosis) can find that – sometimes as a result of (often unfair) media coverage, diagnoses are dismissed as not valid or are not acted on by NHS providers simply because the patient or their family has paid for diagnosis privately. There is currently a social media campaign to raise this issue with the Equality and Human Rights Commission. Without the diagnosis, it is very difficult to access the right support and treatment.

Once people have a diagnosis, the person may find themselves refused access to “mainstream” mental health services like CMHTs. Some services may position themselves as lacking the specialist expertise to treat such patients appropriately, often citing their role as treating “severe and enduring mental illness”. Limited or lack of a ‘specialist’ provision, or a lack of adaptation within the local mainstream service will also these individuals. Relying solely on specialised services creates problems. 

1.2 Professional Scepticism about Autism and ADHD diagnoses

Parents and patients often tell me they face repeated scepticism from health, education and social care professionals about their concerns, and this Is often a barrier to accessing services (including diagnosis).

Inevitably, professional scepticism is going to have a negative impact on P and P’s family. They feel dismissed, not taken seriously, and unheard. We see this with the difficulty of accessing a broad range of services which are frequently heavily gatekept. This is particularly significant to services such as CAMHS, but also in terms of more recent media coverage in relation to autism and ADHD diagnoses. These services often provide the diagnostic stamp of authenticity needed for P to access specific kinds of support or treatment.

Individuals can be seen as “seeking diagnoses” in a way which is somehow pathological. Professionals may also not recognise the positive benefits of diagnosis in terms of validation, self-understanding and access to wider support. Instead, being overfocused on not wanting to give people labels. If diagnoses are provided privately, there can be considerable scepticism about these diagnoses, even if they are provided by senior clinicians who may work within the NHS or have left the NHS months or a few years previously. 

There is a sense in which the concept of some of these diagnoses is being subject to the culture war that we so commonly see in the media and political discourse. This is the case for ADHD and autism recently. Advancing psychiatric and psychological knowledge is not welcomed as progress in the way that comparable issues in the world of cancer treatment are but are often portrayed instead as a threat to society by undermining individual responsibility and by encouraging poor parenting and dependency on benefits. All this ignores the complex epidemiological evidence and the large numbers of individuals who are unable to work due to long-term mental health problems. 

1.3 Parent Blaming

Parent-blaming has a long and tragic history which dates back to the concept of the “refrigerator mother” in relation to the diagnosis of autism in the 1950s. This was a classic example of reverse causality where children who were emotionally cut off because of their autism were reported to have mothers who were less emotionally responsive to their children. As a result, mothers were blamed for their emotional distance as if it caused the child’s autism, whereas, in fact, the parent had retreated into a less emotionally intrusive way of being with their child over time and in response to their child’s symptoms of autism. 

There are many good psychological explanations for why parents of autistic children will show affection differently. If a child does not reciprocate affection, then repeatedly trying to engage with them in an affectionate way can be a trigger. Part of the autism diagnostic process is identifying sensitivities to social and sensory triggers such as hugs and tickles. It is very common for children with autism to either want hugs and tickles on their own terms, under very specific circumstances or to not want them at all. Similarly, their social communication difficulties can lead to problems understanding the emotional meaning of affection. This concept of refrigerator mother has now fallen out of fashion as we have better understood the sensory, social-communication and emotional elements of autism. 

However, the themes of parent blaming have continued, and if you ask parents about their experiences of trying to get a child with autism or ADHD diagnosed, they will often report being or feeling blamed by professionals. Often because they are seen as having poor parenting skills or being accused of having few boundaries with their child. Many of these parents may be neurodiverse themselves as these are highly heritable conditions.

Parents will often also be dismissed if their children do not have significant behavioural problems at school (“Not Fine in School”).  Well-behaved children who are pro-social and anxious will often go under the radar of an autism or ADHD diagnosis, particularly in women and girls. Parents in that situation, when they ask for help, may be seen as overprotective, over-anxious and trying to get their child unfair advantage. They may be seen as not being able to cope with parenting their child at home, while the school appears able to do an obviously much better job of it. Then, when problems develop later in adolescence, the parent may then be seen as having failed early on, and the deterioration related to their neurodevelopmental condition may instead be attributed to the pre-existing parenting problems.

In its most extreme forms, parent blaming can be seen in suspicion or actual allegations of Fabricated or Induced Illness (FII), what used to be referred to as Munchausen by proxy. In my professional work, I have seen a number of parents (usually mothers) where I have either been aware or have suspected that some professionals have identified FII. In fact, the mothers have had an extremely sophisticated understanding of their child’s needs but are seen as too closely involved. Their close involvement has arisen because of delays in diagnosis, professional scepticism, parent blaming, and inadequate resources. These mothers become pathologized and/or labelled as “difficult”. If they become even more “difficult” or point out symptoms other people do not immediately recognize or agree with, they can ultimately end up with a label of FII. Whilst relatively rare, it is something that I have seen several times in my working life.

1.4 Technological change

The increasing recognition of neurodevelopmental difficulties has to be considered alongside the large number of societal changes that have occurred with the digitalisation of day-to-day life. Digital technology and social media have arguably led to a progressive fragmentation of society alongside increasing complexity and specialization of work. This all makes the nature of education, work and day-to-day social interactions more complex and therefore increases the challenges that neurodivergent adults and children face in day-to-day life. The complexity of the world has increased dramatically in the last 30 years. We cannot be sure that our brains, which evolved in a very different environment, can keep up.

1.5 Transitions between services

Transitions between statutory services create a range of difficulties. 

The first transition can be from paediatric services to Child and Adolescent Mental Health Services (CAMHS) – sometimes mainstream CAMHS or, in some regions, a specialist CAMHS for neurodevelopmental needs or learning disability. Paediatrics tends to use (in broad terms) a medical model. Older children may be more likely to be seen in CAMHS, where the process is very different and where knowledge and experience in Autism and/or Learning Disability can vary considerably between different CAMHS services. Over the years some services have been structured to focus on depression, anxiety, eating disorders, and psychosis. That is not to say that CAMHS teams do not take autism and ADHD seriously. For many of them it will be seen as their core business, but because of the gatekeeping, there are many individuals who will not be able to access their expertise because of the high demand and because the threshold for eligibility is set so high. 

Another key transition often fraught with complexity is the move from children’s into adult services. Paediatrics may well be transferring the care of a young adult with a learning disability and complex medical needs over to a range of different services where the parents had previously got all of their input from one organization. The psychiatrist may take over psychotropic medication prescribing, or it may go back to the GP. They may find that their psychiatrist may or may not look after epilepsy. There may be a neurologist involved in relation to epilepsy. There may be a rehabilitation physician involved in relation to neurodisability. Most often, the GP will take over many of these roles which were once the province of the paediatrician (but without the time or the access to specialist resources).

Individuals moving from CAMHS to adult mental health can be shocked by the difference of provision. CAMHS services may have provided very in-depth, detailed support for children with emotional and behavioural difficulties related to autism and/or learning disability or to ADHD. For P or the family, it is hard to make sense of the different criteria for adult mental health services. For example, many adult mental health services say that they do not accept the care of individuals without what they often describe as a “severe enduring mental illness”. Individuals with autism without a learning disability may find themselves moving from a service where they may have received psychological therapy alongside medication for years, to an adult service which appears to say that they have no needs. If they are lucky, they may be offered routine follow-up if they are taking medication for ADHD.

1.6 An arbitrary legal concept of adulthood

Adult services can fail individuals with a neurodevelopmental difficulty if they try to impose an artificial concept of adulthood. There is no point at which someone becomes an adult in mind and body. They simply do this in law. 

Parents who have stabilized and scaffolded a child for 18 years should not suddenly change that approach if it has worked simply because the person has attained legal ‘adulthood’. Imposing a false veil of choice on someone who lacks capacity and is not well supported does nothing to promote autonomy or inclusion. 

At the worst, I have seen extremely good transition processes overseen by the courts and praised greatly for their quality, fall apart because of an adult service which, in spite of this process, decided that P was an adult and should make their own decisions. This then took months to repair because of the complexity of P’s needs, and the physical health problems this triggered, alongside emotional and behavioural difficulties.

It is very easy to view parents as infantilizing their children in these settings. However, it is important to look at the trajectory of individual development People with mild or moderate learning disability may have quite a different emotional and developmental profile to most 18-year-olds, and this has to be approached sensitively, and with realistic long-term goals for maturation and skills acquisition. These goals must reflect the different trajectory of change for the neurodivergent person. This does not mean they should be treated like children – but it also means that they should not automatically be seen as somehow lesser because they do not conform to what we think of as adulthood. Nor should their presentation be considered to be simply a product of over-involved or controlling parenting.

Many, if not most, of these individuals are in families who have faced repeated difficulties accessing the right kind of support and help and continue often to do so. To then critique the parent who has kept that child well, happy and in a loving setting, and to pathologize that, is akin to parent-blaming of the “refrigerator mother”. It is imperative to reflect on how much P is reliant on others for care and how little support may have been provided in the past. Statutory services cannot suddenly transplant P into an adult world and expect them to be a different person because you tell them and their carers that P is an adult now.

There is no definition of what an adult should be psychologically, sociologically, or psychiatrically. An adult is a legal concept. It is simply someone who is 18. There are all kinds of different adults, and there are many adults who are dependent on their parents and are not pathologized for this because they do not come in contact with statutory services. 

The individuals that we work with in the world of neurodevelopment have very good reasons to be dependent on their parents and that in itself should not be pathologized. It should be understood, and the need for dependence should be reduced where this is in P’s best interests, rather than as an age-related expectation. The vast majority of parents would love their child to be more independent and would like to be able to step back from their child’s care. However, it is very difficult to do so with services that may be inadequate or have failed in the past.

The overall impact on P and P’s family

All of the issues I’ve listed above are longstanding and have been present since I first became a consultant in 2008. As providers of education, health or social care, we are familiar with the system, and it is very easy to forget how alienating and confusing it is for families. To many, this system appears to make no sense, not just in terms of continuity of care, but at a more basic level: a consistent definition of what a need is.

In one extreme case, I saw an individual who had been diagnosed with a medical condition in childhood, seen by the paediatrician, and who had managed it with the family very well. Their care had been transferred over to adult services. The diagnosis had been changed by an adult physician without having received the information from paediatric services and the parents had then been effectively accused of Fabricated or Induced Illness, and the young adult was removed into care. Eventually this was resolved but only after years of considerable distress caused to P and P’s family. This is a rare and extreme example, but it is an important indicator of the fragmentation of an increasingly overburdened system. The complexity and lack of consistency of this system does not just cause rare but serious problems like the unwarranted removal of P. On a day-to-day basis, it can cause confusion, distress, and anxiety for P and P’s family.

In adult services, professionals can be surprised at the approach taken by parents when dealing with statutory services. It takes some time to learn that the parents of a child with neurodevelopmental needs have spent sometimes their child’s entire life fighting for what on the face of it would seem to be entirely reasonable and proportionate input once the needs have been identified. The process of getting those needs identified can be so arduous that parents and P can be left with little faith and great scepticism when encountering professionals. 

Many parents I meet tell me that they are seen as a “difficult parent” – and some have read documents reporting them as such. Most describe how professionals do not like being challenged by them and this is why they are seen as difficult. Some are angry or upset about this, understandably so. Others view it more as a battle scar and are more pragmatic about it. It is a common experience for everyone working in the world of autism, ADHD, and learning disability to meet parents who have had these negative experiences at the hands of education services, health services, and social services – usually not as isolated events but as a recurring thread or theme over years or decades. These anxieties generated by these experiences for P and P’s family continue on into adult life. 

NHS and social care and education are under an immense amount of strain now. The inevitable gatekeeping that goes with that only serves to amplify the effects of these past experiences. It is very difficult to reassure parents or P that their services will remain consistent and reliable. One of the first thoughts many parents have on discovering their child has lifelong difficulties is, “Who will look after them when I’m gone?” This is such an important thing to remember as a professional involved in this area. We are passers-through for an individual whose life is in so many ways dependent on the good offices of others.

2. The impact of Court of Protection proceedings on P, their family, and wider network

The impact of the proceedings extends beyond P and their family (the first two issues I address below) and is also likely to affect formal carers (2.3), providers (2.4) and professionals (2.5).

2.1 Impact on P

When a person becomes a P in the Court of Protection, the longstanding experiences of that person and their family inform and inflect every part of the process. 

P will often have been waiting for a particular issue to be addressed, so going into Court of Protection proceedings may be explained to P as an opportunity to express their disagreement about a particular issue. For example, this may be about restrictions placed on them or a belief that P lacks capacity when P believes they have capacity. This can be given a positive spin, but although court proceedings can be a positive opportunity for P to potentially obtain more freedom, new resources, or to be viewed as a more autonomous individual, P may feel they should have had all of those things already and may view this instead as a delayed attempt to provide something which should have been there for years, and part of a repeating process of bureaucracy and people saying no to P. That experience would not be unusual for many people who are more cognitively able and aware of proceedings.

There are many aspects of the proceedings which can affect P adversely – including assessments (e.g. see the case Re EOA [2021] EWCOP 20). In another case I had to do an indirect assessment based on 3rd party evidence because assessing P was going to cause “significant self-harm”. Concern about the harm caused by excessive assessment was also raised in the recent Supreme Court judgment on deprivation of liberty (AGNI [2026] UKSC 16, e.g. para. 102).

There are many instances where harm is less evident and so does not get identified in the proceedings or reported in published judgments. I have seen important or urgent medical treatment delayed because of the legal processes. Professional decision making is often paralysed by fear of acting unlawfully and P may become frustrated and distressed by slow proceedings with repeated delays. My personal experience is that Court of Protection proceedings are becoming increasingly protracted, particularly in complex or contested cases. Cases that would have taken months in 2015 now take at least a year. Cases that might have taken 1 year now take 2 or 3. This appears to be a function of an overburdened public sector. I understand that formal data on delays is not collected, but that judges regularly raise concerns about delay.

The stress and anxiety that family and informal carers experience about the proceedings can also affect P, as I discuss in the next section.

2.2 Impact on family and informal carers

The complex, slow, defensive and sometimes adversarial elements of the proceedings take their toll on parents. It is not hard to see how this could affect P. It is also easy for the parent to feel criticised for this, even though in almost all cases the parents’ stress should be met with compassion and understanding not criticism.

For P’s family the proceedings (however positively professionals may try to frame them) can be experienced as part of a recurring process of bureaucracy in a system which (from their perspective) tends to under-provide, criticise and dismiss. Families may expect not to be listened to, or not to be believed. The case of Steven Neary and his father Mark is probably one of the best known and most serious. However, for some, proceedings that are initially seen as the opportunity to finally be heard and to get justice, is a hope that is disappointed. 

Proceedings may focus on allegations in relation to child or adult protection issues, which inevitably cause anxiety, distress, and disagreement if parents are subject to those allegations. Families may feel they are suspected of these things even if it has not been made explicit. This fear should not be dismissed as overactive imagination or paranoia. Allegations of over-involvement, enmeshment, and being seen as difficult can easily tip over into allegations of causing harm, either by disrupting the individual’s care or, in extreme circumstances, allegations of FII.

For parents, there are a number of shocks to the system. One of the biggest is discovering the lack of influence they may have. They will often be concerned that their views will be set aside, with professional views being taken as paramount. Sadly, this can be the case in reality, particularly where parents are blamed or pathologised.

In my mind, this is the last possible approach one should take with a parent of a child or young adult in these situations. A careful, reflective and balanced approach is needed. Parents are almost invariably dedicated to their children, often know them extremely well and better than most of the professionals involved. Where there may not be agreement on everything, their views must be given considerable weight, especially where parents have been caring for their child at home.

Particular consideration needs to be given to the level of support that P has been given by their parents, and that suddenly changing that support may be dramatically destabilizing. It should not be assumed that the closeness of the relationship is pathological. There should not be a rush to turn P into an ill-defined version of an ‘adult’.

The complexity of the Court of Protection proceedings is also very challenging for family. I frequently provide training around capacity assessments to health, social care education and legal professionals, both formally and informally. It is very clear a significant number of professionals have very little experience and confidence in doing assessments, often relying on others or completing them quickly without practical training. Most training on Capacity Assessment for professionals seems to come from one-off events and online training, rather than being embedded in ongoing professional development in the way, for example, a doctor’s training in prescribing is supervised and structured. So, these are proceedings where legal procedures and the core concepts of capacity are very difficult to understand, even for experienced professionals. P and P’s family are entering this legal realm expecting that professionals will disagree with – and possibly criticise – them in a way which feels deeply personal. We are asking a lot of parents to become parties in these cases or to contribute to them. They may not be supported adequately for these processes, especially if they are without legal representation due to lack of sufficient funds or legal aid eligibility (which is a common and invidious position).

Alongside the complexity of proceedings there often are the delays in the processes. Obtaining an up-to-date DoLS assessment is often a very slow process, with a well-documented national backlog. In my experience, delays in Court of Protection cases seem to be increasing as the workload and complexity of case law increases. The gaps between onset of case hearings and resolution seem to be getting longer, and it is increasingly difficult to get actions taken. All this has a definite impact in clinical work, as clinicians can struggle to know what decisions they can and cannot make without some sort of legal process.

For both P and P’s family, court proceedings, far from being a liberating experience that addresses human rights issues and access to resources, can often be a process of re-traumatisation. They may be forced to go over events that happened years ago, which may have been painful or distressing. The process can feel combative and critical, with P framed as lacking capacity, and often as risky or at risk, and the family portrayed as having failed their child in various ways.

There are recurring themes in these distressing interactions with services. Whilst this is not within the definition of trauma in the sense of PTSD, from the point of view of P and P’s family they will often experience distressing and intrusive thoughts about these proceedings most of the time. 
There is an interesting parallel with the literature on litigation for personal injury, where the mental health of individuals going through a personal injury claim is often made worse by the process of litigation, and the cessation of proceedings can ameliorate some of the psychiatric distress. It does not seem unreasonable to suppose that litigation in the Court of Protection could be similarly intrusive for the parties.

In sum, parents involved in Court of Protection proceedings can feel that they are going into an unfamiliar, complex, and often distressing and traumatizing process that is subject to repeated delays. All this whilst interacting with and relying on the overloaded and underfunded services they are going to court with. It should not be a surprise if it becomes an all-consuming element of their life.

2.3 Impact on carers

Formal (paid) carers frequently have limited understanding and experience of the Court of Protection. This can leave them with anxiety and fear about making mistakes and with concerns that their work is being constantly scrutinized.

If the case is related to restrictive practice or restrictions on P, they may feel unfairly criticized by P, P’s family, professionals, or P’s advocate or litigation friend. The more anxious individuals are about making mistakes, the more mistakes they tend to make, once anxiety goes above a certain level. None of this is liable to improve P’s quality of care

Significant errors can be made because carers may think that things are being dealt with by the Court of Protection. It can happen that they think they do not need to act or cannot act because the matter is being addressed in court. I have seen a safeguarding referral not being made because the matter was thought to be dealt with by the court. I have seen medical treatment decisions delayed because of concerns that treatment cannot be given without the approval of the court. This can lead to safeguarding referrals not being made and medical issues not being addressed. 

Carers and care home managers (and their teams) are generally anxious about getting involved in Court of Protection proceedings even at a distance (i.e. their notes, reports and opinions being scrutinised so intensely). There is usually very little in their training or experience to properly prepare them for this. As for giving oral evidence in court, this is extremely intimidating. Regardless of their level of competence in providing care, there is a gross “inequality of arms” for family members giving written or oral evidence compared with evidence from professionals 

2.4 Impact on providers

Like carers, providers may feel criticized for the quality of care they are providing. They may receive short notice requests for large volumes of information, which must go through appropriate data collection processes within the organization’s policies. This can put great burdens on care providers, especially smaller ones with limited resources and no experience of Court of Protection proceedings.

Providers may be placed in an impossible position of having to give notice to someone if they are found to have capacity to make certain welfare decisions that may affect their ability to provide P with care. Some providers cannot sustain a service for someone who is a risk to the public if not supervised. Stress from proceedings or changes in supervision may lead to behaviour that causes distress to staff and other residents, making the service unsustainable.

These are inevitable dilemmas in some areas of capacity, and these are important to factor into a case early on, as proceedings may put P’s placement at risk.

2.5 Impact on professionals

Professionals tend to have an inherent fear of the legal system, worrying about being sued for professional failings or facing regulatory interventions from bodies like the HCPC, GMC, NMC, or similar.

With regard to Court of Protection proceedings, professionals in education, health, social care, and law, as well as the legal profession, are all working in areas that are essentially publicly funded and subject to stretched resources, with the constant need to do more with less. Individuals are working within systems where gatekeeping and overstretched resources cause delays and slow down the provision of core services.

Obtaining psychiatric reports or capacity assessments from a health provider or ICB can be extremely difficult due to shortages in staff and high levels of demand. Providing up-to-date social work evidence with a detailed chronology is also difficult, especially if the social work team is understaffed or relies heavily on locums.

In the legal system, funding for legally aided work has been progressively reduced over the last 30 years, leading to more cases being dealt with by fewer legal professionals and paralegals with large caseloads, causing delays in addressing key issues.

All these professions tend to be overstretched and so put professionals at a high risk of burnout, which can contribute to a range of problems in day-to-day work. Burnout can make individuals more reluctant to think flexibly: they may become more task-focused than person focused, and less able to reflect on alternative hypotheses about P’s needs and support.

There is also talk of moral injury among individuals working in what are sometimes referred to as failing systems, particularly in doctors working in the NHS who see patients receiving suboptimal care. This can cause individuals to become numbed and detached, leading to professionals appearing uncaring when they are trying to cope with an overwhelming workload.

All of this makes it very difficult for any professional providing support or treatment to P to feel comfortable going into court to provide a statement of their opinion, knowing it will be challenged. They may fear such a challenge will cast serious doubt over their previous professionalism and provision of care or treatment. This can also make individuals more rigid and less likely to agree to compromise or consider alternative hypotheses, and more averse to taking risks.

Many contested cases in the Court of Protection involve serious risks to the individual or others, and there are significant anxieties about what would happen if P is found to have capacity. Professionals in those situations feel ill at ease and fear criticism if they find (or agree with a finding) that P has capacity and then P subsequently harms themselves or someone else. This is an area where I am frequently instructed. It involves a range of “borderline” capacity issues. By borderline I mean cases where it appears plausible that P may have capacity or could be supported to develop capacity. For example:

  • Contact: Where P is vulnerable to exploitation and there are concerns about capacity for contact. This may be related to contact with family, a sexual partner or stranger / “mate crime”. This may overlap with internet and social media use.
  • Sexual relations: often linked to vulnerability and contact. This may overlap with internet and social media use.
  • Sexual offending / sexually harmful behaviour – often linked to sexual relations and risk to others. This may overlap with internet and social media use.
  • Self-harm and suicide – often linked to care and residence alongside medical treatment. Fluctuating capacity and advance care planning is often a key issue.
  • Non-sexual violence to others – often linked to care and residence alongside medical treatment. Fluctuating capacity and advance care planning is often a key issue.
  • Self-neglect / refusal of care – often linked to care and residence alongside medical treatment. Fluctuating capacity and advance care planning is often a key issue.

Going to court can be a helpful way of reassuring professionals that they have done, are doing or want to do the right thing. However, often people are not going to court with that intention, but rather because there is a contest over capacity and/or strong disagreements about what should be done in P’s best interests. Even when capacity issues are resolved, professionals may feel compromised by ’best interests’ decisions which “go against the professional grain”. For example, allowing contact with an abusive individual, allowing someone to remain in their own home when they are at significant risk, or allowing an individual to continue to drink alcohol despite evident harm.

Professionals are particularly concerned because there the names of expert witnesses are almost always published and sometimes their evidence criticized or rejected. The professional culture in law is different from those found in health and social care. In litigation, there is conflict, and this conflict is formalised into a legal process. Legal professionals are not simply judged by whether they win or lose a case, but by how well they conduct that case. In health, education and social care, decisions are usually reached by consensus (sooner or later) and without very detailed and very public scrutiny. The professional fear of criticism by a judge who is not part of their profession in a court setting does nothing to encourage independent experts (or other professionals) to work within the Court of Protection framework.

Overall, I raise these issues not to dismiss, undermine, or insult the legal system or legal professionals. My experience of working in the Court of Protection has been very positive. I firmly believe that virtually all the practitioners I have met in this field, whether legal, judicial, health, education, or social care professionals, practice with the best intentions and genuine belief that they are doing the right things for the right reasons. Inevitably, there will always be some individuals who may not be up to standard, but that is not my general experience.

One of the reasons I continue to work in the Court of Protection field is because of the broadly collaborative and constructive attitudes of many of the legal professionals I deal with, and the generally collegiate atmosphere amongst them. Nonetheless, just as doctors, social workers, educationalists, nurses, and psychologists have to reflect on their practice, we have to consider the parallel of iatrogenic harm in legal processes and how that applies to different groups of individuals.

In terms of the Court of Protection, the group of individuals who have neurodevelopmental conditions (along with their parents and family) have often experienced a series of repeated, difficult interactions with services. They may feel stigmatised. All of this can have had a longstanding corrosive effect on their faith in services, and their resilience to engage with both the courts and the statutory services. 

Final reflections

P and P’s family exist within a complex network of interacting systems which are overstretched, lack continuity and consistency, and may be fragmented. The professionals within these systems are at risk of burnout and even moral injury. All of this can amplify the negative experiences and expectations of P and P’s family.

In a system focused on addressing P’s best interests, we must reflect on how this system may also unintentionally harm those interests, despite the fact that all the individual elements may be trying to do their very best.

Michael Layton is a Consultant Psychiatrist in independent practice specialising complex neurodevelopmental and neuropsychiatric conditions. He has provided over 140 reports as an expert, for criminal proceedings, the Court of Protection, the Family Court, personal injury cases and second opinions. He is a member of CoPPA (Court of Protection Practitioners Association) and recently became a member of the COPPA Cymru Committee.

The Supreme Court’s judgment is an opportunity returning us to common sense

by Lorraine Currie, 11th June 2026

The image accompanying this blog has been provided by Lorraine’s daughter: the Magic Artist, Grace. To see her artwork (and for details about how to purchase it), you can visit her website: https://gracecurrie.art

Editorial Note: this is the first of a series of ‘commentary’ blog posts we plan to publish in the wake of the Supreme Court decision, handed down in June 2026, changing more than a decade of law and practice on ‘deprivation of liberty’ (see Endnote for more information).

In March 2014 I was at the West Midlands regional DoLS Lead group which I chaired. Together we sat with bated breath waiting for the Supreme Court judgment in Cheshire West. We discussed our own views: we all thought that MIG and MEG were NOT deprived of liberty but that P was. Then we watched as the judgment was handed down: all three were deprived of liberty. Purpose was no longer relevant, relative normality was no longer relevant, the person’s objections were no longer a feature. We suddenly had a one-sentence ‘acid test’. It blew us away! We did not agree.

Since then, we have departed a long way from pre–Cheshire West practice. In those days we spent ages analysing the many factors, discussing and debating with colleagues; is it or is it not a deprivation of liberty? This was by far the longest and most complex part of the assessment, and it was all gone, replaced with such a simple test.

Since then, I have continued in DoLS related work, as chair of the national group and the regional group, a DoLS Lead, a Best Interests Assessor (BIA), an authoriser and an Associate for West Midlands Association of Directors of Adult Social Services (WMADASS). 

In all those roles, I have seen the situations, assessments and authorisations fall into two clear categories; pre- and post- Cheshire West. I would say 80% of cases were post-Cheshire West style and gained nothing from the process other than an independent check. The 20% of cases that were largely pre–Cheshire West style, fell into categories such as: people who shouldn’t be in care, people who wanted to go home, people who could go home, people who were overly restricted, people who were overly sedated, and so on.

After Cheshire West we were, of course, unable to keep up with the work-load,  so we had to develop prioritisation tools and screening tools and pragmatic systems – all, of which really served to separate out pre- and post- Cheshire West situations.

Most backlogs will be made up (on the face of things) of post-Cheshire West type cases because we have already screened them for urgency, intensity of restrictions and so on. 

We have invested huge amounts of money (Lord Sales refers to “severe misallocation of resources in the care and health system”) to bring little or no added benefit to most people. DoLS cannot distinguish between those whose circumstances were a ‘technical’ DoL (that is, they met the acid test) and those whose circumstances were a substantive DoL (that is, they had more elements involved, such as personally objecting). The acid test was broad and simple, and the DoLS scheme was narrow and complex.

There were 364,900 applications in 2024-25 and 118,850 remained incomplete at year end.

At year end 2024-25 there were 115,230 authorisations active.

These numbers are staggering. Large numbers of applications end up not able to be granted because by the time the wheels grind round to them the person is no longer there, they have moved or they have died. Only an average of 5% of patients are ever assessed in hospitals. People go in and go out, and yet the DoLS request remains.

Something was very, very wrong.

What the Supreme Court has now given us back is a common sense, multifactorial approach in place of a “one-size-fits-all” test. BIAs will return to carrying out a proper analysis of the objective element before doing anything else. They may then continue to look at whether the person can give valid consent, and from there other assessments may be carried out. This will reactivate and direct the many skills of a BIA to the people and situations which most need their skills.

Some people seem to be receiving the change negatively; there is almost a sense of mourning. But I want to challenge that with the positives. 

Being able to target the specialist resource where it is most needed is to be welcomed. When we look at those cases where we have made a difference, I challenge you to consider and reflect: could that have happened anyway? 

The person you have successfully returned home begs the question: why they were placed inappropriately and what can social workers learn from this?

The over-medicated, over-sedated person: why were there no regular reviews of medication by other professionals?

The overly restricted person: where were the social care (or other professional) reviews? 

DoLS is not the only game in town. The MCA is much bigger, wider, far-reaching legislation. Most people associate the concepts of necessity and proportionality with DoLS (or more likely LPS), but these are the lynchpin human rights concepts attached to restraint and restriction at the heart of the MCA. All practitioners developing care plans should know whether and how the person will be restricted and should confirm why this is necessary and proportionate. 

It is not all down to DoLS. 

At a recent webinar we considered the question of ‘conditions’ in DoLS and most of the examples given by attendees were not conditions at all but were care management actions.

I believe that DoLs has papered over and covered up deficits in care management. The DoLS team and BIAs have been seen as the experts in all human rights based and mental capacity based work, and this has allowed others to act without fully embracing the principles.

As funds reduce for DoLS-related activity, they can potentially be redirected to ensuring rights-based, legally literate, practice in social care: the learning and experiences of BIAs can be shared to facilitate this.

Advocacy could be increased as we potentially reduce the number of Representatives who need to be paid and as our IMCA contracts reduce. The skills and experiences of DoLS work will inform their wider advocacy practice.

The introduction of the concept of (incapacitous) valid consent will provide lots of learning opportunities for us all. Right now, everyone is looking for guidance and easy answers and there are none. This is one place where I think it’s wise to put the brakes on. This is one area where case law may develop to guide us further. 

We will learn together. We will have to figure out safeguards against coercion and control (particularly I think in 16 -18-year-olds). We will have be very aware that compliance is not always happiness. But we will be able to afford people the dignity of their wishes and feelings being taken seriously. Guidance from the Department of Health and Social Care in this respect will be key, but so will the new Code of Practice. I personally see this as a positive step forward. 

This is a challenging time but I truly believe it will take us to a place which makes much more sense, where everyone is a human rights warrior not just BIAs, where everyone is legally literate and able to use the whole range of tools at their disposal.

None of this will happen overnight. I don’t think there is a Council out there who stopped using the acid test on 2/6/26 and fully implemented a multifactorial test overnight. There is a huge mountain to climb to get us there. 

If there were 115,230 active DoLS in March 2025 this will have increased and these will all need to be revisited. The 118,850 people who were still waiting for assessment will all have to be considered against the new test and we do not yet know whether this will mean assessing them or screening them in or out of the test. 

Added to this, ongoing referrals continue at the usual rate until further messaging is done to educate everyone about the judgment and its implications,  and that means not only the challenge of enough assessors to assess but educating and upskilling assessors in the new test, especially those who qualified after 2014. There is a huge mountain of work requiring even greater resources to get us through to the new normal.

The new normal must be a place where those who need protecting are protected, not only by DoLS but by all the legal tools available; where those who can be empowered are empowered, and their wishes and feelings are given the validity they deserve. It must be a place where all professionals are in the human rights business and all know which legal framework they are operating under and the limits of their power. 

Ultimately a place of dignity and respect. 

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.

Endnote

Back in 2014, In Cheshire West, the Supreme Court considered the meaning of a deprivation of liberty (DoL) through reference to Article 5 of the European Convention on Human Rights. Lady Hale, giving the majority but not unanimous judgment of the Court, presented an ‘acid test’ for deprivation of liberty: is a person under continuous supervision and control, and not free to leave? 

On Tuesday 2 June 2026, the Supreme Court handed down judgment in what is increasingly being referred to as “AGNI’ (the case was brought by the Attorney General of Northern Ireland).  The Supreme Court overturned Cheshire West, finding the acid test to be wrong in law, and directed a different approach.

First, the identification of the objective element of a deprivation of liberty must entail a multifactorial analysis, which includes consideration of the intensity and purpose of confinement. If these conditions are not satisfied, there is no deprivation of liberty. 

Second, a person may lack capacity to make decisions about their care and residence but can nevertheless give valid consent through an expression of their (positive) wishes and feelings. If a person is giving such consent, they are not deprived of their liberty.

To access the judgment, see: Judgment (PDF) (hyperlinked)

To access the court’s approved press summary, see: Press Summary (PDF) (hyperlinked)

To access the commentary published by the Open Justice Court of Protection Project, see: Commentary on the UK Supreme Court case about deprivation of liberty (hyperlinked)

If you would like to contribute a commentary about this judgment, please contact openjustice@yahoo.com, and mark your email for the attention of Daniel Clark. 

A statement on the Court of Appeal’s judgment in Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements)

By the core team of the Open Justice Court of Protection Project, 9th June 2026

On 21 May 2026, the Court of Appeal handed down judgment in Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements [2026] EWCA Civ 640. This was an appeal against the decision of Poole J in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3), which provided Guidance about the disclosure of Position Statements (which is sometimes used interchangeably with “skeleton arguments”) to court observers. 

The effect of the Court of Appeal judgment is to limit the circumstances in which position statements will be disclosed to court observers and to refer the matter of how transparency is operationalised in the Court of Protection back to the ad hoc Rules Committee. We welcome the clarity that this judgment has brought. We are keen to work with the Rules Committee in the development of an appropriate approach both to the disclosure of position statements and also transparency more generally.

In the interim, we welcome the Court of Appeal’s suggestion that the three following documents listed at para 4.2 (a)-(c) of Practice Direction 4B are appropriate to disclose to observers: 

(a) the case summary

(b) a chronology of relevant events

(c) the issues for determination at the hearing.

These have NOT been made available to observers in the past. Their disclosure to observers would be enormously helpful in advancing the open justice principle and enabling observers to understand the court decision-making process. We hope that this change can be implemented swiftly.  

A helpful aspect of access to position statements has been that they provide observers access to the case law and legal propositions being relied upon in oral argument. During hearings, legal teams and judges often refer to case names and it can be difficult for observers without legal training in this area to identify them, and (therefore) to understand the reason and substance of the arguments before the court. As such we would welcome, particularly in the absence of position statements, one of the above documents also including a list of the key case law relied on. 

Transparency helps the public to understand how judges reach decisions and reassures people that vulnerable individuals are being treated fairly. Transparency encourages good practice, and enables informed public debate about difficult issues involving mental capacity and human rights.  It enables us to understand and scrutinise how the Court of Protection exercises its power. This is especially important at the moment, given the widespread challenges arising from recent judgments – such as the Court of Appeal’s judgment in Townsend which changes longstanding case law relating to clinical decision-making, and the Supreme Court’s judgment on the reference from the Attorney General of Northern Ireland on the meaning of deprivation of liberty, which overrules Cheshire West.  

It is a matter of significant public interest that how these judgments are implemented, as well as other elements of the court’s work, is scrutinised closely. That is exactly the kind of work that the Open Justice Court of Protection Project was founded, six years ago, to accomplish. We look forward to continuing to support the judicial aspiration for transparency in the Court.

Note: This is a statement on behalf of the core team of the Open Justice Court of Protection Project (Daniel Clark, Amanda Hill, Celia Kitzinger, Gill Loomes-Quinn, Claire Martin). We extend our condolences to the family and fiancée of Carl Gardner. 

Five Practical Tips For Observing Your First Court of Protection Hearing

By Maria Maier, 13th May 2026

I attended my first ever Court of Protection hearing (Case 20033278) on Monday 11th of May 2026. Listed for 10:30am before Mrs Justice Judd, sitting in the Royal Courts of Justice, this was a Serious Medical Treatment case concerning a young woman with anorexia.

The hearing focused on a jurisdictional issue: whether the Court of Protection can determine the lawfulness of a decision not to detain or treat an individual pursuant to the Mental Health Act 1983. It was a challenge to follow, but I think the Official Solicitor’s position was that this was a public law issue exclusively reviewable by the High Court, while Counsel for the Trust argued this may not reflect current appellate authorities, including the recent Court of Appeal guidance in Townsend (Townsend v Epsom and St Helier NHS Trust [2026] EWCA Civ 195).

Despite an interesting discussion around jurisdiction and current legal developments, the most valuable lessons I learnt were not about the law as such, but about accessing and observing the court cases and the operation of the open justice principle in practice.

To give some context, I am an aspiring barrister. I completed an undergraduate degree in Politics and International Studies before converting to Law last year. Since then, I have been working as a Relevant Person’s Representative (RPR) and Rule 1.2 Representative for adults who lack mental capacity and are deprived of their liberty under the Mental Capacity Act (MCA).

It was through this role that I first became interested in Court of Protection work, where life-changing decisions are made every day on behalf of some of the most vulnerable people in society.

Like many others interested in this area, I was given the advice of ‘The COP is open to the public, the best thing to do would be to go and see a hearing for yourself!’ I am slightly embarrassed to admit that it took me six months to get around to doing this.

This delay was caused not only by procrastination, but also by the confusing process of planning, joining and observing a case remotely. I’m grateful to the Open Justice Court of Protection Project for their help with this.

So, after attending my first hearing this week, here are my five suggestions for how to make the most out of observing a Court of Protection hearing.

1. Prepare for uncertainty and delays

I hadn’t fully appreciated that although the public listing tells you that a hearing will start at a certain time, it might not!

    I had planned to observe on a Monday, and I’d been told that there was a likelihood of ‘non-compliance’ hearings before HHJ Hilder at First Avenue House being listed on that day. As it turned out, they weren’t. But there were two ‘medical treatment’ hearings listed before judges in the Royal Courts of Justice: one at 10:30am and another at 2:00pm, so I sent off requests to observe, asking for the remote link. The first hearing did not begin until 11:50am, and the second either never went ahead or I was never sent the joining link.

    So, based on my own experience, I would recommend setting aside a full day to observe cases and expecting to need to be flexible. Choose a day where several cases are listed that interest you, so that if one is vacated you still have other options to attend.

    There are around 20-30 hearings in the Court of Protection each day. The home page of the Open Justice Court of Protection Project lists two or three cases selected each day as ‘Featured Hearings”, including the issues before the court and relevant background information. This is a great starting point to plan your day. There is also a link from that home page to CourtServe  – the listing service which provides a comprehensive list of hearings across England and Wales. I also found the official Government website listing hearings at the Court of Protection ‘headquarters’ in London (First Avenue House in Holborn) clear and easy to navigate.

    While these last-minute changes can be frustrating, I am told they are standard practice. Keeping an open, flexible schedule gives you the best chance of observing a worthwhile hearing.

    2. Email early … and don’t be afraid to follow-up

    I used the email template given at the bottom of the Open Justice Court of Protection Project Home Page and sent my email to the address they provided for the two hearings I wanted to observe. There are different email addresses depending on which court is hearing the case. I learnt to make sure to get the right one, and to include, in the subject of your email: “Observer Request for Case XXXXXXXX before [Judge name]”, and my full name at the end of the email.

    While the official guidance states that observer requests should be sent before 9:00am on the day of the hearing, Celia Kitzinger advised me to send my email as early as possible. I would strongly recommend doing this because, especially on a busy Monday morning, you do not want your request to get lost.

    Finally, if you hear nothing as the hearing time approaches (around 30 mins before the hearing), do not be afraid to send a follow-up email. I sent a follow-up myself (with URGENT in the subject line) and received my joining link almost immediately afterwards.

    3. Do your reading!

    As you will see, the template email requests copies of the Position Statements (aka skeleton arguments) and Transparency Order.  If these are sent to you (position statements are not always made available), make sure to read these beforehand. I did and found them invaluable (although I only received documents from the Trust and not from the Official Solicitor, and I was also subsequently instructed to destroy the Trust’s position statements).

    Position Statements are particularly helpful because they outline each party’s position ahead of the hearing and explain the outcome they are asking the court to reach.

    The Transparency order is an injunction setting out what can and cannot be reported about the case. Read the entire order carefully, but pay particular attention to the section usually headed, “The Subject Matter Of The Injunction”. The Court may ask whether you have read and understood this order before the hearing begins. If you are worried about understanding this document or haven’t seen one before, there’s a template Transparency Order available online, which means you can familiarise yourself with the format and general provisions they contain beforehand. Bear in mind though that each Transparency Order is specific to its case, so you do need to read the particular order you’ve been sent for the case you hope to observe.

    4. Be ready to appear on camera

    I was quite surprised when the Judge asked me to confirm that I had read and understood the Transparency Order, and whether I had any issues to raise with the Court.

    Fortunately, I was dressed appropriately, sitting at my desk and able to respond clearly. However, it would be easy to be caught off guard by this. You want to make sure that you can respond professionally if called upon. You must also be in a quiet and private place, and not anywhere that other people might be able to see or hear what is going on in the courtroom.

    When you join the link, the software allows you to test your camera and microphone beforehand. This is a useful opportunity to check that you can be heard, that you are dressed appropriately for court and that nothing unsuitable is visible in your background.

    While these may sound like obvious points, the Court of Protection deals with emotionally-challenging cases involving vulnerable individuals. It is important to show respect for both the process and people involved.

    5. Treat every case as a learning opportunity

    Despite having a law degree and a professional understanding of Court of Protection proceedings, I struggled to keep up with the proceedings. For example, I had never heard of or read the Court of Appeal Judgment in Townsend, despite it being a well-known case that turned out to be central to this hearing’s discussion of jurisdiction. Celia Kitzinger’s post, “Anorexia, declaratory protection and the Mental Health Act: Ventilating a jurisdictional question following Townsend”, provides a more thorough report on the substantive content of the hearing.

    The barristers you observe are experts, and hearings will likely involve legislation, case law or legal principles that are completely unfamiliar to you. It is very easy to get lost!

    Instead of feeling overwhelmed and leaving the hearing, try keeping a pen and paper nearby so that you can note down anything you might want to research afterwards. Following this hearing, I spent time reading chambers articles and legal blogs which helped me better understand the Townsend decision and the wider issues being discussed in court. Other useful sources include law firm websites, medical association blogs (such as The Faculty of Intensive Care Medicine) and the full judgements available on the BAILI/The National Archives. Plus, of course, the Open Justice Court of Protection blogs!

    Observing hearings is not about understanding every point immediately. Often, the real value comes afterwards when you take the time to reflect on what you heard and continue learning from it.

    Final thoughts

    I hope that other students, family members and early-career professionals find these suggestions useful. Over the next few months, I’m aiming observe and blog about more hearings and hope to encourage more people to feel confident accessing the Court of Protection themselves.

    For me, attending this first hearing transformed the Court of Protection from something I had only studied into something I could actively observe, question and learn from. I suspect many others are only one hearing away from feeling the same.

    Maria Maier is an aspiring barrister. She is currently working as a Relevant Person’s Representative (RPR) and Rule 1.2 Representative for adults who lack mental capacity and are deprived of their liberty under the Mental Capacity Act (MCA). She will begin her Bar Course studies in September 2026. Her LinkedIn is here.

    Anorexia, declaratory protection and the Mental Health Act: Ventilating a jurisdictional question following Townsend

    By Celia Kitzinger, 12th May 2026

    At the centre of this “tragic” case is a woman (“P”) who has suffered from “severe treatment-resistant anorexia for over 20 years”. She’s now “profoundly malnourished” and “at significant risk of death from malnutrition”.  The case comes to court because she is refusing naso-gastric (NG) feeding.  

    That’s how counsel for the Trust, Nageena Khalique KC introduced the case at the hearing before Mrs Justice Judd on 11th May 2026, sitting in the Royal Courts of Justice (COP 20033278).

    Ms Khalique also made clear that “no party is seeking to invite the court to compel NG feeding”: not the Trust, not the Official Solicitor, not P’s mother, and not P’s partner/friend (all of whom have been joined as parties). Naso-gastric feeding (and other treatments) are available to P if she chooses to accept them, but nobody is arguing that they should be forced upon her. As the judge observed, “there is no dispute”.

    It turned out, however, that there was a dispute – but not about P’s best interests. 

    The dispute is about whether or not the Court of Protection has the jurisdiction to make the second of the two declarations sought by Birmingham and Solihull Mental Health NHS Foundation Trust. The first (clearly within the COP’s jurisdiction) is a declaration that P lacks capacity to decide about treatment for her eating disorder. The second (about which jurisdiction is disputed) is a declaration that it’s lawful and in P’s best interests not to detain her under the Mental Health Act and not to impose feeding upon her, under restraint, under s.63 of the Mental Health Act.

    The Trust is asking for that second declaration (as have other Trusts in other cases I’ve observed, who have been granted it) on the basis that the COP does have jurisdiction. But according to the Official Solicitor, the Court does not (or perhaps may not) have jurisdiction to make that second declaration because the lawfulness or otherwise of decisions pursuant to the Mental Health Act are public law decisions instead to be determined in the High Court.

    Unfortunately, despite my best endeavours, I do not understand the basis for the argument of either the Trust or the Official Solicitor and it was very hard to follow what was said in court.

    The Trust’s position that the Court of Protection does have jurisdiction seems to hinge on some argument related to the Court of Appeal judgment in the Townsend case (Townsend v Epsom and St Helier University Hospitals NHS Trust [2026] EWCA Civ 195) – which is a case I know very well, having watched all the hearings and attended webinars about it.  It’s easy to distinguish Townsend from this case (and the judge seemed to be doing so at various points) – though whether or not the points of distinction are pertinent to the arguments made was not clear to me. In Townsend, the family strongly disagreed with the (“clinical”) decision not to provide life-sustaining treatment to P, and the court ruled that under those circumstances, cases should come to court, irrespective of whether or not the doctors are making what they call purely “clinical”, as opposed to “best interests”, decisions. In the case in court here, though, the family agree that treatment should not be provided (at least, not by force, which is the only way it can be provided, it seems) and also the Trust is specifically seeking a “best interests” (not a ‘clinical’) decision.  I think the Trust’s argument might rest on the idea that what might seem to be a “clinical” decision (not to provide treatment) is also inevitably a “best interests” decision and hence falls within the remit of the Court of Protection.

    A major impediment to my understanding is that I’m writing this without access to position statements from the hearing.  This is because although I was initially sent position statements from the Trust (there were two, and I had time to read them before the hearing), I was subsequently asked to destroy them, and have not yet received the replacement redacted versions I’ve been promised. As usual, the Official Solicitor refused to disclose her position statement, and the judge did not direct disclosure.  My understanding was also not helped by the fact that it felt at times as though counsel and the judge were talking past each other (but perhaps that was because I didn’t sufficiently grasp what was going on myself).

    In trying to make sense of what happened in court in this case, I searched out some earlier cases concerned with forced treatment for anorexia. Several such cases were helpfully cited in the position statements, but since I’d lost access to those and can’t remember the citations, I’ve had to search out cases myself, and I’ve no idea whether or not these are cases either party might be relying on in making their arguments. I remember some concern about  jurisdictional issues being raised in a hearing I observed before Mr Justice McKendrick, also involving an anorexic woman (Leeds and York Partnership NHS Foundation Trust v FF & Anor [2025] EWCOP 26 (T3)).  This was of course chronologically before the Townsend decision from the Court of Appeal.  Nonetheless, I’ve revisited that case. I find that I recorded (in a blog post back in July 2025) that there had been in the course of that hearing “a detailed exchange about s.19 of the Senior Courts Act (in relation to the MCA and inherent jurisdiction) and its importance in progressing consistency in anorexia cases moving forward.”  Sadly, I continued:  “This legal discussion was technically too sophisticated for us observers to follow, especially as we do not have access to the “legal framework” document cited as an Appendix to the Trust’s position statement…” (see: “No more force (or threat of force) to compel feeding of woman with severe and enduring anorexia”).  It’s dispiriting to be reminded that in that case, too, I was not given access to a “legal framework” document and also failed to understand the legal discussion in court on that occasion.

    I also tried the (excellent) Mental Capacity Law and Policy blog produced by 39 Essex Chambers, which regularly assists with my understanding of legal matters.  It says:

    “… what McKendrick J was doing was (despite his cautious approach to doing so) making a generalised pronouncement about how procedurally to approach the situation of a patient detained under the MHA 1983 where the clinicians have – for whatever reason – decided that they do not feel that the tools of the MHA 1983 provide the answer to the ethical dilemmas that have arisen and have, instead, sought to answer that dilemma by reference to capacity and best interests”  (“Anorexia, the Mental Health Act and the Court of Protection: A clear route map for cases”)

    The subtitle of the blog post from which that quotation is taken promises more than it delivers in relation to the present case. It’s not “clear” to me how McKendrick’s “route map” applies, or indeed how Townsend offers – or mandates – a different route, or detour.  In any event, given the widespread criticism of Townsend and the likelihood of an upcoming Supreme Court hearing, it may be that Townsend provides a very slender thread on which to base the Trust’s argument – or indeed, on which to delay determination of P’s best interests by first detouring down what might turn out to be a jurisdictional cul-de-sac over the next six weeks.

    Despite their disagreements, the parties had agreed a draft order, which I think was essentially a directions order to move towards a hearing to determine which of them is right on the jurisdictional matter. They were, said Ms Khalique, “in agreement that the jurisdiction issue and the applicability of Townsend and whether this court can deal with these declarations – we agree it requires further analysis and further written submissions”.  They want that to happen first, before the Official Solicitor begins to investigate P’s best interests. If the outcome of the next hearing is that the court does not have jurisdiction, then the Official Solicitor won’t need – or be able –  to investigate P’s best interests. If it does have jurisdiction, best interests will come next (if P is still alive).

    The judge seemed quite concerned about all this.

    I have captured as best I can some of the exchanges in court that might shed light on what was happening, and why. (They’re unlikely to be verbatim: they come from my touch-typed contemporaneous notes).

    Khalique: (defending the idea that the court DOES have jurisdiction to make the order the Trust is seeking) What we are dealing with here is another Act [the Mental Health Act] which might make the non-treatment proposal ineligible because of s.63. But we say that because of Townsend there can (or perhaps she said “can’t?) be carve-out.

    Judge: But this is a ‘best interests’ decision. I don’t quite understand, I’ll be honest with you, what is the difference between a ‘clinical’ and a ‘best interests’ decision. You’re not offering treatment against a patient’s best interests, are you.

    Khalique:  There are two stages.. [explains first the clinicians select clinically appropriate treatments and then the capacitous patient chooses which they want to consent to, and the incapacitous patient has a ‘clinically appropriate’ treatment selected for them in their best interests)

    Judge: But, do you offer treatment that isn’t in a patient’s best interests?

    Khalique: There might be more than one treatment…..

    Later, Ms Khalique tried again:

    Khalique: We say what’s happened since Townsend makes it more clear than before that decisions under the Mental Health Act come into the jurisdiction of the Court of Protection.  Townsend says that “Any decision about the care and treatment of a mentally incapacitated adult, including the withdrawal of life‑sustaining treatment, must be taken in the patient’s best interests. There is no carve‑out for ‘clinical decisions’”.  What I’m saying is that also applies to decisions taken under Mental Health Act – and I think the distinction the Official Solicitor is making is that decisions made under the Mental Health Act are carved out by virtue of the operation of that Act. This is an argument that’s not been ventilated before… and all the cases before have not grappled with it either …. The question is whether, in the light of Townsend – whether the point that there’s no carve-out of clinical decisions includes decisions under the Mental Health Act.  And it’s for that reason we say this court may have jurisdiction. I may have been over-simplistic. I may have got it wrong….

    Here’s the view of the Official Solicitor, as represented by Katie Scott.

    Scott: It may be that the Official Solicitor comes to the view that this is all a matter for clinicians acting under the Mental Health Act – not something the Court of Protection should be involved in in any event…   What is the role of the Official Solicitor – or rather the litigation friend – in these kinds of cases….

    Judge: If the Official Solicitor was of the view that what was proposed by the Trust was the right view of what is in P’s best interests, then there wouldn’t be a role for the Court either – because when all parties are agreed as to proposed course of conduct…

    Scott: That’s right. That was Re Y.  The reason the Official Solicitor has any role at all is because it’s being brought to court. The Trust could proceed without a court hearing and say they complied with medical guidance and so on. But because they want the reassurance of the declarations, that leads to the issues the Official Solicitor wishes to ventilate. What is the obligation on the Trust when there is no disagreement?

    Judge: But we don’t know whether the Official Solicitor disagrees or not.  It might be,  I don’t know,  that the Official Solicitor agrees with the proposed course of action, and then there is no need for the court to determine the jurisdictional issue. It would be academic.  

    Scott: Yes, other than the fact that the Trust wants a declaration – presumably because they  want protection for their clinicians when there is a high risk of death.

    (later)

    Scott: It may well be that after meeting P that the Official Solicitor takes the same view [as the Trust] on her best interests.

    Judge: Isn’t a case like this better litigated when there is dispute rather than when there isn’t?

    Scott: But we are now before the court. The Official Solicitor needs to arrive at a view, to investigate the medical records, carry out investigations of her own, bring clinicians to court to probe the evidence… We’re now before the court,  so the court has to make a decision about what it can and can’t do.

    Judge: I am pushing back on the idea that no investigation (of best interests)  takes place between now and the next hearing (concerned with the jurisdictional issues), so we don’t have a hearing in say two months’ time, and then have to wait again to decide best interests.

    [later]

    Scott: The Official Solicitor can’t get wishes and feelings from her until we know what the court is going to be doing.

    Judge: What do you mean?

    Scott: If it’s being said that this court has the power to make a decision about whether or not she receives NG feeding under restraint.

    Judge: Her wishes and feelings are not going to relate to the jurisdictional issue but to whether or not those things happen (i.e. to whether or not she is given treatment under restraint)

    Scott: We have not yet met with P, but I am aware from other cases that some young ladies with anorexia are keenly aware of what powers the court does and doesn’t have – and, having been in the mental health system and dealt with tribunals  – might take a very keen interest in what the powers of the court are. […] What won’t be able to be explained to her at the moment is what the court can and cannot do.

    Judge: The reasons I am pressing this is not idly, but because it’s much harder for courts to decide cases when there isn’t actually a dispute. The fact of a dispute focuses the court on the reasons for the need to make decisions about jurisdiction. Without that, it can become woolly and academic. And that’s a danger in this case.

    Scott: There have been other cases like this. Trusts are still bringing these cases where there is no dispute and asking for relief and that’s one of the- I don’t say concerns – it’s one of the issues that we need to grapple with. Do Trusts need to do this?  And if the answer is “no” then it would be helpful to know that.

    My thoughts at this point are, well, yes, it would be helpful to know whether Trusts need (or are able) to apply for declaratory relief in cases relating to the Mental Health Act. But at what cost to P and her family in this case if (to put it at its worst) they are caught up in protracted proceedings as a test case to determine a jurisdictional issue?

    But of course, it really matters, to all of us, how the “ethical dilemmas” associated with force-feeding anorexics against their will, are decided in the courts. The principle is not purely “academic” and there’s been heated – and often not very well informed, and even sometimes, in my view, deliberately misleading – media coverage of the way in which the Court of Protection handles these cases. It may also matter, in practical terms, to the person at the centre of the case – but I don’t understand this case well enough to know in what ways.

    It’s self-evident that how judges decide to make (or not to make) declarations that forced-feeding is contrary to someone’s best interests, and the jurisdictional basis on which they do so, is a matter of legitimate public interest.  So, it’s hard to see that any rational purpose is served by admitting members of the public to a hearing with a complex jurisdictional issue at the heart of it and denying us access to the written arguments that would enable us make sense of it.  Instead of achieving the ‘transparency’ to which the court purportedly aspires), it simply engenders a sense of frustrated alienation.  

    I’ve been told I will be sent a redacted Trust position statement from today’s hearing. But I’ve been refused the Official Solicitor’s position statement, redacted or otherwise – though it cannot possibly be contrary to P’s best interests for members of the public to be granted access to the jurisdictional arguments underpinning her case. The judge asked the parties to provide me with their legal arguments twenty-four hours in advance of the next hearing, so it’s not that she is deliberately trying to obfuscate the case or deliberately to exclude me from understanding what’s going on.  I think it’s simply that transparency is way down the list of priorities, and it frequently seems to take parties by surprise that observers are in court and asking for position statements which the legal teams have not thought to anonymise or redact in advance (and which the Official Solicitor routinely refuses anyway with a template email response).

    I don’t know when the next hearing will be. There was talk of the second half of June (and it seems possible that it may be before a different judge).  For anyone who wants to understand the arguments about what the Court of Protection can and cannot do (which is pretty basic, really, to understanding the justice system!), the first challenge for transparency will be finding out when it is happening. Then observers will have to navigate access to the hearing and access to court documents. I don’t know whether the judge’s direction to provide legal arguments to me in advance extends also to other observers. But without those documents, observers will surely be lost.

    Transparency should mean more than getting into the courtroom (though that is often challenge enough). It should also mean public disclosure of sufficient information to enable us to understand what is going on in court. That didn’t happen today.


    Celia Kitzinger     is co-director of the Open Justice Court of Protection Project. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)

    Fit for discharge and still in hospital five months later due to delay with eating and drinking plan – updated after 12th May 2026 hearing

    By Amanda Hill, 11th May 2026

    UPDATE: More delay and increased risk to P– note on the hearing of 12th May 2026

    It’s now more than a year that P has been in hospital and around seven months that she’s been fit for discharge. She’s still there.

    This case, previously before SJ Hilder, was escalated to the High Court for an urgent hearing before Lieven J on 12th May 2026 at the Royal Courts of Justice. I’m grateful to Tim Sugden for observing and providing us with an update. The situation is grim. 

    After the last hearing (in April 2026), the care agency gave notice that they would not continue to work with P beyond this week. Their handover meeting with a new care agency was due the day of this hearing – and it was likely that P would  feel ‘upset and overwhelmed’ at suddenly having to get used to new carers.  

    She was due to undergo a ‘swallow test’ this week, but it was said that the speech and language therapist had stated that it couldn’t be done on account of P’s fear of food

    The eating & drinking plan discussed at previous hearings has still not materialised. It’s due by 27th May but there seemed little confidence that it will be produced by then, as no-one has yet been identified and commissioned to compile it. The judge said that therapeutic help should have been provided for P many months ago and that there was no reason why it should not happen now – alongside the support required to help her eat and drink again. 

    So, as it stands, P remains in hospital. The hospital (who are not a party) have stated that P should not go home with an NG tube, at which the judge said that if that remains their position she wanted them to provide an expert report justifying that. The judge stressed that doing nothing was in fact making P worse and increasing the risks to her health and welfare – so this needed to be balanced with the risks involved in taking any action. 

    P’s siblings were given an extended chance to respond to what they had heard – and painted a sad and sorry picture of how their sister has been failed by so many agencies over so many years.

    Towards the end of the hearing, the judge introduced the possibility of a judicial review. She reminded Victoria Butler-Cole KC, P’s Counsel (on behalf of her litigation friend, the Official Solicitor) that if she chose to go down the route of a Judicial Review on P’s behalf, it would likely be before her again and she would have extra powers to order the required action. 

    The next hearing is listed before Lieven J again, on June 5th  2026 at 2pm.  The judge gave special dispensation to the OS counsel, to request another urgent hearing before then if there are still delays in moving things forward.

    ***************

    The protected party (P) is a woman with diagnoses of mild learning disability, “emotionally unstable personality disorder”, functional neurological disorder, dissociative disorder and elective mutism (she communicates using Makaton). 

    She’s been in hospital since April 2025. In September 2025 she had surgery and was soon afterwards declared medically fit for discharge. By the time of the hearing I’m describing here (on 11 February 2026), that’s five months ago.[1] She is currently receiving nutrition by an NG tube. According to the approved order of 20th November 2025, “all parties agree that a coherent plan is required for [P’s] nutritional needs prior to discharge from hospital” – subsequently referred to an “eating and drinking plan”.

    So, there’ s a deceptively simple solution to enable P  to leave hospital – the development of an eating and drinking plan – but a complex web of responsibilities for making that happen, involving multiple public bodies, multiple teams, and multiple people. And a search for a specialist to produce the plan had proved fruitless at the time of the hearing.

    This is the fourth hearing I’ve observed in this case (COP 13630253), before Senior Judge Hilder at First Avenue House. The earlier hearings I observed were on 25th July 2024, 3rd September 2025 and 20th November 2025 and I blogged about the September hearing ( Should surgery be delayed while the legal framework relating to capacity is established?) There have been other hearings I haven’t observed, including one on 16 December 2025 and possibly one on 16th April this year. 

    It’s a complex case and I’ll try to keep it as simple as possible. Rather than go into detail about what happened at the hearing I observed, I will outline the key problems it highlighted, what is getting in the way of solving these problems,  and what the judge can do about it.

    One thing is clear: it’s P, the person at the centre of this case, who is the one who is bearing the brunt of the lack of progress.

    The parties

    In addition to P and her two siblings, there are four statutory bodies as parties to these proceedings, two as applicants and two others as respondents.

    • The applicants are Suffolk County Council (SCC) represented by Ulele Burnham and NHS Suffolk and North East Essex ICB represented by Sarah Vince (who also represented the 3rd respondent)
    • The 1st and 2nd respondents (represented pro bono by Anna Bicarregui) are P’s siblings.
    • The 3rd respondent is Essex Partnership University NHS Foundation Trust (EPUT) (also represented by Sarah Vince)
    • P is the 4th respondent represented via her litigation friend the Official Solicitor by Victoria Butler-Cole KC
    • The 5th respondent (joined as a party from November 2025) is Hertfordshire Partnership NHS Foundation Trust, represented by Stuart Marchant.

    Who is responsible for producing an eating and drinking plan?

    The ICB has overall responsibility for meeting P’s medical needs in the community.  On 20 November 2025 the court ordered the ICB to produce an eating and drinking plan by 1 December 2025. Nearly  3 months later, there is still no plan.  

    The two siblings are “saddened, angered and frustrated that despite the court’s best efforts in the last order there is no plan to get P out of hospital”. Their view is that “no one person/organisation is taking ownership” of the plan and that the public bodies are not working together collaboratively: each of them seems instead to be “more focused on setting out the limits of its responsibility”. 

    An additional complication is that EPUT and HPFT have differing responsibilities for P’s care and mental health treatment. EPUT are responsible for P’s psychological therapy.   HFPT are responsible for primary care coordination, including specialist learning disability services, a role they took on a day after the hearing, following a six-week transition.

    Senior Judge Hilder is trying her utmost to move things along. But, as P’s siblings say, “It is apparent that court orders are not currently being followed“.

    The ICB and LA were directed to file an interim care plan including how P’s nutrition and hydration needs would be met on a return home by a deadline of 29 July 2025. They didn’t.  Then another deadline was set for the ICB to produce the eating and drinking plan by 1 December 2025.  Again, it’s not been produced.

    The OS wants explanations for the lack of progress. They’ve gone as far as “seeking a direction that Chief Executives or other senior officers from the relevant statutory bodies attend this hearing to explain themselves“. But no Chief Executives attended the hearing on 11 February 2026.[2]

    The OS is also seeking a direction that the ICB and EPUT pay P’s costs from 1 December 2025 “on the basis of the repeated failure to comply with court orders, and the failure to put in place the provision needed by [P] to return home”.

    The ICB disputes this, saying that:  “The ICB have only ever held a commissioning role in [P’s] care. The ICB cannot create care plans nor force compliance with trusts outside of its commissioning area”.

    The outcome at the end of the hearing of 11 February 2026

    At the start of the hearing, Senior Judge Hilder said that it was very difficult to understand who is responsible for the eating and drinking plan. Key sticking points were the identification of a suitable specialist to draw up the plan and funding of that specialist. P’s needs are complex and identifying a person with exactly the right skills has not been easy. A named person identified had that very day declined to take on the work. The OS legal team had already been searching and had come up with another named person, who HPFT were going to meet with directly after the hearing. If that person was not suitable, the Deputy Director of Nursing for the ICB agreed to take responsibility for a new search. The OS legal team and SCC offered to pass on the results of their searches in order not to duplicate effort. HPFT would make the final decision.

    In terms of funding, it was hoped funding would be agreed at an ICB panel meeting of 26th February 2026, or if not at the next one on 26th March 2026. The Deputy Director of Nursing told the court that would be the last panel meeting for the ICB as it was closing on 31st March 2026.

    With regards to the costs issue, a solicitor from the OS legal team is going to provide a breakdown of costs to the relevant parties, and all appropriate parties will make written submissions to the court,  that the judge has made time in her diary in late February to consider. It was agreed that P’s siblings should not bear any of the costs even though they are parties.

    At the end of the two hour fully remote hearing SJ Hilder stated “Let’s get this sorted please, it’s been going on long enough”.

    Provided a specialist with the appropriate skills to develop the eating and drinking plan can be identified, and that they agree to take on the work, funding will be agreed at either a panel meeting on 26th February or 26th March 2026. And then work on the eating and drinking plan should begin.

    The Approved Order

    As I often do, after the hearing I asked for a copy of the approved order so that I can check the details. I received it on 20 February 2026, the day it was issued.

    The update from the hearing was that the role of care coordinator was now to be due on 17 February. A dietician identified by the Official Solicitor was considered to have the appropriate skills and the order noted by way of a recital that “following the hearing but before this order was perfected, HPFT confirmed that it would ask the ICB to commission (the dietician) to prepare an eating and drinking plan for [P]”.

    The ICB was ordered to place the funding application before the panel of 26th February 2026, and to inform the parties of the panel’s decision by 4pm on 4 March 2026. If funding is agreed, the first version of the eating and drinking plan is (finally!) to be circulated to all parties by 25th March 2026.

    Another hearing was scheduled for 16th April 2026 but I don’t think it took place as it wasn’t listed when I checked the listings the day before.

    Closing reflection

    I was surprised how difficult it seemed to be to locate a specialist to develop the eating and drinking plan and that (apparently) there isn’t a database or directory. I very much hope by the time of the next hearing to learn that P has left, or is about to leave, hospital: by that time, she would have been in hospital for around a year.

    Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is a core team member of OJCOP. She is also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She is mainly on LinkedIn (here), but also sometimes on X (@AmandaAPHill) and Bluesky (@AmandaAPHill.bsky.social).

    [1] I asked for all the parties’ position statements for this hearing, to enable me to understand it better in accordance with the open justice principle.  SJ Hilder directed disclose of the Official Solicitor’s position statement for the Official Solicitor, and all the other parties agreed to send me theirs without needing a direction (including P’s siblings). I had received all the anonymised PSs by the end of the day of the hearing on 11th February 2026. I am very grateful to all the parties: the PSs have been very useful in enabling me to follow and report on this complex case and I have drawn on them in writing this blog.

    [2] The Deputy Director of Nursing for the ICB attended, as did the Interim Associate Director for EPUT, the Head of Operations and Partnerships for Mental Health at SCC, the Managing Director for Learning Disabilities and Forensic Services at HPUT and the Head of Legislation and Compliance at HPUT.