Chaos in court and incompetent decision-making: Visual monitoring Part 2

By Claire Martin, 17th June 2021

This hearing, on 6th and 7th May 2021 before HHJ Howells at Wrexham County and Family Court (COP 13575520 Re: B) was the second hearing I’ve observed concerning “David” – a 39-year-old man with a severe learning disability, poorly controlled epilepsy and congenital cerebral palsy with right-sided hemiplegia. 

At the previous hearing, on 11th February 2021, I’d learnt that David’s care team, concerned about his night-time seizures, had installed a visual monitoring system almost two years before, without holding a best interests meeting about this, and without consulting David’s family. Counsel for David at the last hearing stated that there had been a ‘wholesale failure by either public body [to recognise that] a video monitoring system required a best interests decision’.

Having blogged about this case previously,  I was very pleased to be able to attend what was (again) intended to be the final hearing for David, and a judgment on the issues of:

  • whether a visual monitoring system (VMS) is in David’s best interests, and if so, how this will be deployed and monitored, and
  • whether the public bodies should be responsible for paying David’s legal costs.

The applicant was David, represented by Emma Sutton and instructed by David’s litigation friend, his Relevant Person’s Representative.  The respondents were the local authority (represented by Robert Goodwin), the health board (represented by Anna Tkaczynska) and David’s parent (her choice of descriptor), who was a litigant in person.

When the hearing started, I was asked to confirm to the judge that I had received, read and understood the Transparency Order for the case. I was the only public observer on this occasion and the judge (HHJ Howells) noted that I had previously written a blog about the same case, which I was surprised to hear her comment on to the court!

Delayed Submissions – an ‘unfortunate situation’

The hearing started inauspiciously, with HHJ Howells stating that it looked like there might be a ‘change in position’ from some parties, though noting that the ‘amended bundle … amounting to  435 pages digitally, was only filed yesterday or the day before’. It transpired that the position statement for the Health Board, as well as their updated care plan proposal were only filed on the day of the hearing (due to start at 10.30am).  This is despite the fact that – as I noted in my previous blog about this case –  “The judge asked for Position Statements forty-eight hours in advance to allow all parties to read and digest the contents.”

Other documents (care home records, MDT meeting minutes, an article from a medical journal, some emails) were said to have been ‘filed very late’ and Emma Sutton (counsel for David) said there was: 

“… a plethora of additional information [submitted] an hour before a two day trial. I am making my way through it but there is a significant amount of information. … This is a wholly unacceptable position the Health Board has put people in.[1]


It became clear that the Health Board had failed to provide the required updated information or position statement by 4pm on 4th May, when the hearing was at 10.30am on 6th May. The judge said that ‘costs will be considered’ and addressed counsel for the Health Board:  “Ms Tkaczynska you have a chance to explain”.

In response, and by way of explanation, counsel for the health board ran through a list of documentation, when it was filed, who received what from whom, and there ensued a multi-way conversation between all barristers and the judge about when documents were requested, why they weren’t chased when they were not received and why the Litigation Friend for David (his RPR – Relevant Person’s Representative) had been missed from some communications (it emerged that an incorrect email address for her was used in communications from the Health Board). This was then not rectified, meaning she was not included in a Best Interests meeting. I observed the judge with her head in her hands at one point, looking exasperated. 

One would have thought that if the litigation friend didn’t respond it would have alerted others to the need to chase up, but this doesn’t appear to have happened. …. I have received all these [documents] and I am willing to proceed but it’s not fair on others, especially counsel for [David] and his parent.”  (HHJ Howells)

Emma Sutton suggested a half hour break to give people time to read the documentation. The judge thought that ‘optimistic [because] important information needs to be absorbed as well as read’. I was struck, especially, by the judge’s care for David’s parent, who was representing herself, and was abroad, in a different time zone and had not received all of the relevant documentation until the morning of the hearing. The genuine consideration of what this might be like for her was palpable, and it was made clear that she could ask for longer if she needed more time: 

HHJ Howells:  “This is an unfortunate situation – especially for the litigant in person. [Addressing David’s parent] you have permission to drink caffeine!

We returned at about 12.20pm. It was still not clear (to anyone) what the Health Board and Local Authority’s positions were – either in relation to David’s care needs, or their proposed options to meet those needs or their proposals to put different options into effect. Emma Sutton noted that this needed further exploration. David’s parent’s view was that the VMS should be removed ‘immediately’. 

Evidence from the Expert Witness

The first witness was Dr Dougall McCorry, a Consultant neurologist and epilepsy specialist.

He was a witness for David, the applicant, and so Emma Sutton opened the questioning to elicit the evidence in chief.   She took the witness through his expert views on the practice of video-monitoring for epileptic seizures, the types of seizures most associated with SUDEP (Sudden Unexpected Death in Epilepsy), David’s particular risk of SUDEP and Dr McCorry’s view of the best way to mitigate those risks. 

Emma Sutton went on to explore movement monitors (e.g. wrist alarms), mattress alarms and anti-suffocation pillows. 

Cross-examination followed.  Anna Tkaczynska (counsel for the Health Board) asked questions about proposed additional staffing for observation, the likelihood of picking up and attending all seizures and the balance of risk and privacy for David. Dr McCorry was clear that, from a clinician’s perspective ‘the gold standard is observation at all times’. This led to the following exchange:

Counsel for the Health Board then asked Dr McCorry to clarify the view from his supplementary report regarding the reasonableness and efficacy of trialling other monitoring technology. Dr McCorry replied: “In the current care plan – are we adding to his care? Will we detect more seizures with a mattress or movement alarm? If you really want to know what percentage you’re picking up, you must observe as well, to audit.”

This point – about accurate measuring of the percentage of seizures that can be detected by different monitoring practices, was really the nub of the case. 

It later became clear that evaluation of the VMS had never been part of the installation plan in terms of whether it increased the number of seizures it accurately picked up. So how could the team know if that level of intrusion might be justified? This seems like a really important point to me – the VMS was simply installed on the advice of the treating clinician without a plan to collect evidence of its safety benefits over time, to weigh against the intrusion into David’s privacy.

By the end of Dr McCorry’s evidence in chief, I thought he was suggesting that the permanent observation of David (including using the VMS) was a certain way of picking up all of his seizures. However, further questioning of Dr McCorry by David’s parent (as well as later evidence from David’s treating medical consultant) suggested otherwise. It became clear that VMS for people with epilepsy (including David’s kind of epilepsy) is quite unusual – his treating clinician later stated ‘5% of people I see’ have a VMS set up. It also wasn’t entirely clear why this had been implemented for David at the time it was. Furthermore, he hadn’t had any of the types of seizures of concern, at night, for over a year (which I think were the original justification for the use of the VMS). 

There was a break for lunch and at 2.25pm the hearing resumed with an expectation that David’s treating clinician would be the next witness for the Health Board. Prior to this, however, it was reported that agreement had not been reached between the public bodies for funding of additional care at night for David. This was important because the treating clinician would be questioned on different potential monitoring methods for David, which would necessitate more staff at night (and thus increased funding).

A discussion ensued between Robert Goodwin, counsel for the Local Authority and the judge regarding the LA position on funding of additional care for David. Robert Goodwin reported a misunderstanding between the Health Board and LA regarding the funding ratio as well as how additional care resourcing would be deployed (solely for David or shared). Frustration rippled through the court:

The judge addressed David’s parent: “The Health Board and the Local Authority are at cross-purposes in terms of funding an additional person – whether this is for [David] or to share with others. Are you prepared to continue?“  David’s parent replied ‘Yes’. 

My reaction at this point was astonishment at how patient the judge and David’s parent were. The care system appeared in a mighty pickle about all sorts of things, and readiness for the hearing with clear and comprehensive options appraisals, care plan proposals and funding  had not, seemingly, been their priority. 

The hearing nevertheless continued with evidence from David’s treating clinician. 

Evidence from Treating Clinician 

David’s treating clinician had known him for 15 years. Counsel for the Trust asked minimal questions of her witness and then counsel for the local authority cross-examined him,  focusing on evaluation of the VMS and staffing required for this. David’s treating clinician outlined his view of what would need to happen to reduce the use of the VMS: at least a year with no overnight seizures.  He said “In my view [David] needs to be observed at all times – how that’s done is for the care team”.  Irrespective of the lack of legal process regarding deprivation of liberty, I found it curious that, how it was subsequently deployed (2:8 staff:resident ratio) meant that the VMS could not facilitate ‘observation at all times’

Litigant in Person cross-examines David’s Treating Clinician

I found this part of the hearing fascinating.  It is important to know that David’s parent is a medical doctor herself and had done a lot of research about the nature of David’s epilepsy, risk of SUDEP and how best to mitigate those risks. She asked about population versus individual risk for David and proffered a view that, for people such as David, the longer they live without ‘succumbing to SUDEP’, the less at risk they are as time goes on. The treating clinician disagreed with this view. His estimate of SUDEP risk for David was 1:300 in any one year.

I have not heard a litigant in person question a witness before. I am not sure how common this is in the Court of Protection. It was a particularly affecting exchange because David’s treating clinician had seemingly had a good relationship with his parent over 15 years, and he clearly cared about David’s welfare. At the same time, it was evident that something had gone very awry with the planning and communication around David’s care. 

It was my understanding that the night-time GTCS were the reason for the installation of VMS, so this was a pertinent point raised by David’s parent. They then discussed evidence around SUDEP and comorbidities, papers that the treating clinician cited (but did not provide) in his evidence. The treating clinician said that the ‘SUDEP data doesn’t allow such a fine-tuned analysis’.  

David’s parent had asked very probing, evidence-based, questions regarding risk and mitigation of risk, and applied them to David’s recorded seizures. The treating clinician seemed somewhat flummoxed by this and I felt unconvinced that he had properly considered whether the VMS would actually offer the protection to David that he proposed it would. David’s parent was of the view that it did not, and therefore the intrusion into his privacy was not justified. 

Counsel for David, Emma Sutton,  then picked up this line of questioning and  argued that the blanket, night-time VMS – which was meant to offer ‘observation at all times’ to mitigate risk – was not, in reality, viewed at all times. 

As counsel for David, Emma Sutton’s questioning was concise, incisive and absolutely to the point. She had clearly extracted the key pieces of information regarding the process of David’s care and was able to lead the court along a path that revealed a clearer view of the issues.   Here’s an example:

Following Emma Sutton’s questioning, my sense at this point was essentially this: that the medical consultant involved in David’s care took a cautious and conservative approach, without considering a range of options. Everyone (who was included in the process) deferred to the medical consultant’s view. Apparent blanket observation was decided upon, due to his worries about night-time seizures. How this was then operationalised was not specified and did not, in reality, afford the additional protection he desired. The treating consultant did not have a full grasp of how, and how effective, the monitoring of the seizures was. 

Leaving aside the unlawful installation of the VMS, the use of the monitoring device in practice felt very messy without a plan for evaluation of its effectiveness. I was also struck by the treating clinician’s response of ‘expecting’ a Best Interests meeting to be arranged – if he had expected it, and it hadn’t happened, why didn’t he rectify this situation (especially since it is a legal requirement)? 

Further questioning from counsel for the Health Board and the judge further displayed the difficulty of establishing a clear picture of how a trial (of any technology) would be put into operation and then evaluated carefully. I came to the view that this was because alternative, less intrusive, means of monitoring David’s seizures had simply not been considered. An earlier question from Emma Sutton (counsel for  David) perhaps sheds light on why this might be:

I would have thought that’s exactly what did need to happen, under the MCA 2005. 

The fact that David’s RPR was not part of some meetings, the fact that a BI meeting was not arranged prior to the VMS being installed, and the fact that his parent was left unaware of the presence of the VMS for a year after it was installed, would suggest that privacy hadn’t been on anyone’s radar for David. 

That was the end of Day 1. My takeaways were that:

  • David’s treating clinician was, understandably, worried about his night-time seizures and recommended a VMS to be installed. This recommendation was actioned by the care system without following the Best Interests process required by the Mental Capacity Act 2005.
  • The treating clinician was oblivious to the evidenced fact that he did not know how the VMS was actually used in practice, and to whether and how evidence was gathered to enable evaluation of its effectiveness, so it was not possible to know if it had, actually, improved monitoring of David’s seizures. The situation reminded me of this quote from Noam Chomsky: “Science is a bit like the joke about the drunk who is looking under a lamppost for a key that he has lost on the other side of the street, because that’s where the light is. It has no other choice.”
  • The Health Board and Local Authority had not reached an agreement for additional night-time funding, or a plan for different monitoring options. 

Day 2: 7th May 2021, 9.30am. 

The Lead Professional Learning Disabilities Nurse from the Health Board was questioned. as a witness for the Health Board. (I’ve referred to her as Lead Nurse below.)

Before her testimony could be considered, DJ Howells discussed the unresolved issue of funding between the Local Authority and the Health Board. Robert Goodwin for the Local Authority offered an apology for the ‘confusion’ about funding.  He said, “We have had limited evidence from the Health Board and did not understand what they proposed regarding extra night staff.’ The Local Authority was willing to fund 40% of this additional staffing. This was agreed with the Health Board and the hearing was able to continue. 

Counsel for the health board asked the witness to describe her role. The Lead Nurse explained that she oversees the nurses from the Health Board who look after David’s care. Her role in the CoP hearing was to bring together a full options appraisal (for the monitoring of David’s epilepsy) for the court to consider. A curious exchange occurred at the start:

I was very surprised to hear the lead nurse’s reason for not ensuring that David’s RPR was part of the options appraisal for his care. What she would have needed to support that reasoning was an email back from the RPR stating that she was not allowed to respond to an options appraisal. This was not what happened. 

Robert Goodwin for the Local Authority then cross-examined the Lead Nurse: 

She then referred to minutes from a Best Interests meeting of 9 July 2020, chaired by a Mental Capacity Act practitioner from the Health Board. The judge asked if the minutes were in the bundle – they weren’t. Counsel for the Health Board stated that she did not know why they weren’t shared; they were an 8-page document. It was agreed that the court needed a twenty-minute break to read this document and the judge (addressing David’s parent) said: “Please say if you need more time to read these. Someone acting for themselves should have plenty of time. My tone says what I think about this.”

And addressing counsel for the Health Board, the judge said: “This is not the way it should be done – piecemeal disclosure. It is not fair for [David’s parent] to not have all the information which is under consideration. I suggest everyone goes for a cup of tea. I’m leaving this hearing yet again.” (Judge)

When we returned the judge addressed David’s mother once again:

All agreed to continue. I felt angry on David’s parent’s behalf at this point. She had not been informed about a video-monitoring system for him, had not been included in a subsequent Best Interests meeting when it did, eventually, take place, and her right to have a voice in these processes had been entirely over-ridden. It felt as if, because the care team knew she might hold a different view to theirs, they simply wrote her out of the story. 

Counsel for the Local Authority, Robert Goodwin, continued his cross-questioning and asked the lead nurse about assistive technology being considered at the Best Interests meeting on 9 July. She said she had not been in that meeting and couldn’t comment on ‘how the discussions went’.  

It was beginning to look as though no one whose responsibility it was to oversee David’s care (his treating clinician and the lead nurse who was tasked with drawing up an options appraisal) had entered into a deliberative process about methods to care for David, balanced with his human rights. I kept wondering: ‘what if a video-monitoring system IS, in the end, in David’s best interests and they just hadn’t done the working out’. 

It reminded me of another case I observed, and contributed to a blog about, called ‘When Expert Evidence Fails’. In that case, the expert witness expressed a clear view about P’s capacity to consent to sexual relations, but had not followed a clear, deliberative process to reach his decision. This seems to me so important in our work with vulnerable people who might lack capacity for certain decisions. Without this demonstrable process, it can look like, and I would suggest often is, our own view of what is best for P, rather than a holistic, person-centred consideration. 

Further, when one professional’s view dictates the outcome, this seems even more likely to be the case – privileging only what we consider to be in the best interests of the person, based on our expertise in that one very specific aspect of that person’s care. As Dougall McCorry said earlier: “I’m not the bigger picture about his whole life – I’m looking at his clinical picture”David’s parent then cross-questioned the witness. She picked up Robert Goodwin’s questioning of the lack of consideration of all options for monitoring David’s epilepsy, noting especially that there had been a Best Interests meeting on 9th July 2020 and the options appraisal had not been available until 7th April 2021, nine months later. Her questioning illuminates potential issues with a best interests process sitting with one ‘dominant voice’

Further questioning from Emma Sutton showed that the balance of safety and privacy for David really had not been considered. There were several quite terse and revealing exchanges: 

There was then discussion again between Emma Sutton, the lead nurse and the judge about the fact that the Health Board’s recommendations were based on increased funding, yet, at the start of the hearing, funding for those recommendations had not been secured with the Local Authority:

And later in relation to the RPR asking for ‘less restrictive options’ to be considered: 

I wondered whether the lead nurse had been placed by the Health Board in an invidious position. She did not seem to feel confident in guiding all the people involved in David’s care and welfare through a thinking, questioning and balancing process to compile a balanced options appraisal – something for which you do not need medical expertise. 

Counsel for the Health Board intimated that there would be no point adjourning) since “What else needs to come to the table? Would anything else trump [treating clinician’s] view?” Although the Lead Nurse thought nothing would, the judge pointed out: 

But [treating clinician] is not the decision maker in the Court of Protection. He might be in the Health Board, but not here. It might not change the Health Board’s decision but it might provide more information to the court, so we can weigh in the balance for [David]. At the moment [lead nurse] evidence is that she accepts that these should be looked into.  (Judge)

With that, it was agreed to break for a joint parties’ meeting to confer about ways forward. This was 12.19pm. 

My thoughts at this point were, first, this seems like an almighty mess! Two days of court time (plus previous hearings over the past year) and there was still no comprehensive options appraisal, care plan proposals for different options that were proposed or funding agreed. I might be being unfair – we have been living through a pandemic during this time – however, the VMS was installed prior to the pandemic and I couldn’t help thinking that, had due process been followed then, the case might not have needed to come to court. 

Second, I thought that there was a lot of buck passing: submissions for the court and bundle documents were not ready for the hearing, varying reasons for which were proffered; the Local Authority implied the Health Board had not apprised them of their proposals to enable the LA to form a view of their position on funding; the lead nurse appeared to blame the care home (which, at other times in the hearing, was described as ‘exemplary’ in their care practice) for not providing timely information to inform the options appraisal; the treating clinician seemed to ‘expect a best interests meeting to be arranged’ but took no responsibility for this himself, despite being designated the decision maker by his employing organisation. All in all not very edifying. 

At 12.47 the judge returned to the hearing (I had stayed logged in throughout, as I was never sure when breaks were going to end and parties return to court). At this point it was just me, the judge and her clerk in the courtroom. DJ Howells said ‘I hope Dr Martin is enjoying observing all of this’, which made me laugh (though I had my microphone off of course). It was certainly a spectacle – and the fact that David himself was not in any distress helped me, at least, to feel more astonished than angry at the situation. 

Parties returned to the courtroom and it was agreed that there would be a round table meeting over lunch, including all lawyers, to consider all options. 

At 2pm we resumed. My notes read: “Robert Goodwin looks thoroughly fed up. Judge asks Emma Sutton ‘where are we?’”

Emma Sutton, as counsel for David, said: 

We have agreed a way forward. There is a gap that needs to be filled. There will be a meeting including [treating clinician] and Local Authority and it’s agreed that an occupational therapist needs to be involved for an assistive technology assessment. We’ll consult Epilepsy Excellence Centres regarding alternatives for care. A possible expert witness – it depends. Then the procurement team needs to be involved regarding devices to see what they can provide. The Lead Nurse is then to provide a pros and cons document including safety, accuracy etc. Then a round table meeting and further court hearing to be built around that. There is a pot of money for additional care now in place [the 60:40 Health:LA agreement from earlier]. Timescales have not yet been decided. 

The judge responded (very charitably I thought!) by thanking everyone for “the collaborative approach to proceedings.”  She said: :”It seems to me there is a measure of agreement that this should have been done, but there are pressures on people’s time, it’s not deliberate and people ran out of time.”

A further break between 2.15 and 3.15pm allowed the drawing up of the terms of the order from this hearing, including extending the standard authorisation for the VMS, and dates for different people for various tasks to be completed. A round table meeting is planned. 

Of particular importance, I thought, was the agreement for the lead nurse to provide, as part of the Health Board’s proposal, details for how the VMS would be used, were it to remain in place. It was evident from this two-day hearing that this had never been planned – it was not specified exactly when to use it (though the lead nurse clarified ‘when asleep’ there was confusion whether it was used ‘at night’ and when David was ‘in his room’ even during  the day if asleep); or how to record when a seizure was detected by the VMS as opposed to other means, such as staff being in the room with him (though some records did state ‘observed on video’ it wasn’t known whether this was consistently, and therefore reliably, recorded). The lead nurse had earlier confirmed her view that she would be ‘mortified’ herself, if she was being ‘watched all the time’. She clearly empathised with the intrusiveness of being watched on video in your bedroom. Even more important then, to ensure that any future, court-authorised observation is proportionate and deployed in a carefully monitored and reviewed manner. 

Final Thoughts

I have observed around 15 remote hearings now across the pandemic period. None has been as chaotic as this – with respondents not being organised in their communications with each other in preparation for court and court orders simply not being followed. A crib sheet of preparation tips for Trust employees appearing at the Court of Protection would be a good idea! Certainly, for this hearing the following would have been helpful:

  • Ensuring that – and being able to demonstrate – that you have meticulously endeavoured to include all relevant people in Best Interests meetings and decisions for P, checking the MCA 2005 for guidance if you are unsure about who this should be (e.g. s4(7) Best Interests decisions and who should be included). In this case David’s family and his RPR were not consulted at appropriate times throughout.
  • The person making the subsequent Best Interests determination (in this case we were told that David’s treating clinician was the ‘decision maker’ and the Lead Nurse was producing the options appraisal) should have considered all relevant people’s voices to produce an options appraisal document in readiness for the court hearing – and be able to demonstrate that this consultation process had been followed. 
  • Referring back to any previous judicial orders in earlier hearings – well before time – and ensuring they are adhered to. This could be facilitated by liaison between parties to chase up required information for documents and to establish agreement or highlighting of areas of ongoing disagreement in readiness for the court hearing. I wonder whether, sometimes, a reminder phone call would be better than an email!
  • Circulate all documents to be included in the court bundle by deadlines ordered to enable all parties to ‘read and digest’ (as noted by DJ Howells) prior to the court hearing. 
  • A willingness to see the ‘wider-picture’ (or ‘holistic’ picture as David’s parent put it) about a person’s needs and care: that our lives are a balance of risks, including for people who do not retain capacity for certain decisions in their lives. 

For David, it felt as if an appearance of belt and braces was wanted in his care (i.e. being watched at all time), without the evidence to demonstrate that this reduced risk of harm. So, we could be looking at an invasion of David’s privacy without the added safety that was it was designed to guarantee: an absence of due process and an outcome that did not do what it said on the tin.

I hope to be able to attend the – hopefully – final hearing which is planned for the 15th or 16th July 2021. 

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

 [1] As usual, I have attempted to render what people said as accurately as possible, but it’s unlikely to be entirely verbatim since I have to rely on my note-taking skills during the hearing, being forbidden to audio-record.

Photo by Steve Johnson on Unsplash

Happy First Birthday to the Open Justice Court of Protection Project

Celia Kitzinger and Gill Loomes-Quinn, 15th June 2021

One year ago today, on 15th June 2020, we launched the Open Justice Court of Protection Project, a child of the pandemic. 

It was born of our passionate belief that “publicity is the very soul of justice” at a time when it seemed that the public health emergency was closing down the opportunity for people to observe the court in action.

Before the pandemic

We’d both had the experience of walking into courtrooms to observe hearings as members of the public.  Serious medical treatment cases have always been held in public.  As part of her work with the Coma and Disorders of Consciousness Research Centre, Celia had previously attended around 20 hearings in which judges made decisions about whether or not to continue life-sustaining treatment for people in vegetative or minimally conscious states.  Gill had spent a month of 2017 in London observing hearings in First Avenue House as part of her PhD research – many (like the one she blogged about here) concerning Deprivation of Liberty.  

These hearings concern fundamental human rights issues: the right to life, the right to family and private life, the right not to be arbitrarily deprived of liberty.  Gill wrote:

For disability rights activists, the transparency agenda affords us new opportunities to strengthen and inform our activism. So much of our experience of oppression – of discrimination, and of bureaucratic intransigence – happens behind the closed doors of doctors’ consulting rooms, or of local government offices. But here, in the Court of Protection, it is played out before the authority of the court, and now, before us – the public. Shining a light on collective injustice might be the first stage to challenging and changing it – if we can seize the opportunity.”

Before the pandemic we had found the doors of the Court of Protection wide open, and now it seemed they would be closing again. 

Closing the courtroom doors 

On 23rd March 2020, after the Prime Minister’s address to the nation, the Lord Chief Justice announced that (with urgent exceptions) “no hearings that require people to attend are to take place in any County or Family Court until further notice”.  

On  31st March 2020, Mr Justice Hayden reiterated that guidance for the Court of Protection and published a protocol for remote hearings (via phone or video-link). The template order states  they “shall take place in private” and any previous transparency order (permitting public access) “shall be disapplied”.  

For remote hearings, Mr Justice Hayden considered the court rule making hearings public by default (Practice Direction 4C) to be “unworkable”. He considered that the right to freedom of information could lawfully be restricted in this way since it was necessary for the protection of public health (Article 10(2)).  

But as Vice President of the Court of Protection, Mr Justice Hayden is deeply committed to transparency, and even as he (in effect) closed down public access to the courts, he included a section in the Guidance reaffirming the importance of transparency, with the opening sentence:  “The culture of the COP is one of transparency, and I am determined to maintain this insofar as possible” (paras. 54-64).

He left open the possibility of public access, despite the new default “private” nature of all hearings: 

In each case active consideration must be given as to whether any part of any remote hearing can facilitate the attendance of the public, if so Practice Direction 4C may be applied and the transparency order reissued.” (para. 59, Guidance 31 March 2020)

It was that ‘loophole’ (that’s how it felt) that we exploited in setting up the Open Justice Court of Protection Project.

Launching the Project

On 17th March 2020, Celia attended the first ever remote hearing in the Court of Protection, held over Skype for Business.  She did so not as an “observer”, but in a voluntary capacity to support “Sarah”, whose father was at the centre of a serious medical treatment case. It was a brutal experience in which an already deeply-distressing situation for Sarah was made much worse by use of remote technology.

Horrified by the idea that future hearings would be equally alienating and distressing for family members, Celia decided to try to observe other remote hearings – and succeeded, against the odds, in mobilising the “Transparency” section of Mr Justice Hayden’s Guidance to gain entry to 19 hearings in May 2021.  

This took huge persistence and determination and the willingness to deal calmly with frequent rebuffs.  She sent over 100 emails, and had more than 30 phone calls with court staff, to gain access to these 19 hearings.  The request to “observe” was often misheard over the telephone: “You want to what?  To adjourn?”.  Once the request was understood, she was usually simply told that hearings were “private”.  There was correspondence from some judges who said the same thing. She was cross-questioned repeatedly about why she wanted to observe and had repeatedly to explain and defend the principle of open justice (to the judiciary!).  Celia blogged about the first of these 19 cases (it was before Mr Justice Hayden), and tweeted about others – and we quickly realised that there was a surprising amount of public interest, at least from our own followers on social media.

It also became apparent that remote hearings potentially offer increased access to the court.  People don’t have to travel to attend.  We can watch hearings across England and Wales from the comfort of our own homes.  Far from closing down open justice, the pandemic had opened up a new means of supporting it.

Gill suggested a pandemic project: “Let’s create our own website, blog about some hearings, and encourage a few others to do the same”.  We invented some “aims” for the project, created an email account, set up a website, wrote a “welcome” page and pressed the button to launch it. And so the Open Justice Court of Protection Project began.  

We said:

A key aim of the project is to raise awareness of the work of the Court, and its social impact. Blog posts covering observations by Public Observers, analyses of published judgments, and other social and legal commentary will be at the heart of how we go about achieving this aim. (Welcome page, 15 June 2021)

We had no funding, and no institutional backing (then or now).  We were just two people with experience of the Court of Protection, who cared passionately about open justice in a court which makes draconian decisions in relation to the human rights of some of the most vulnerable people in society.  We imagined the Project would be something of a niche interest. 

We had some time to create a project like this because many of our usual activities had been cancelled (or “postponed’) due to the pandemic – and at that point it was widely-believed that life was simply ‘on hold’ for a few months and that we would give those talks, attend those conferences, run that training, meet those students in person, after a short delay.  We assumed that things would soon go back to ‘normal’, we’d get back to our usual business, and our Project would have been a brief intervention to support transparency at a particularly challenging time.

Two weeks later, we were forced to reassess.  We were (as we said) “overwhelmed by the response, as more than 70 people had contacted us for help with observing hearings.  And three family members involved in upcoming Court of Protection hearings had also emailed, asking whether we would observe ‘their’ hearings. 

Within the first two weeks of the Project, by the end of June 2020, we’d published seven blogs based on public observations of court hearings: by two future barristers (here and here), a third sector worker, a speech and language therapist,  an MCA trainer, a nurse, and a family member of someone with an impairment in the functioning of mind or brain. 

On 1st July 2020 we published the first of our ‘collective’ blog posts. Seven people who had observed the same hearing (seven members of the public observing simultaneously was virtually unheard of back then!) were welcomed by Mrs Justice Lieven who  “thanked us for attending … and pointed out that it’s not “open justice” if nobody comes”.  We were a varied bunch, including a clinical psychologist, an academic lawyer, and a family member currently involved in an “intimidating” COP hearing of his own.  During July 2020, observer-bloggers included a trainee solicitor, a case manager, a social worker, a DOLS Manager, and a trainee IMCA.  We were realising the range and scope of interest in observing these hearings.  The Project was turning out to be less ‘niche’ than we’d thought.

During this period, we were confronting multiple access problems – including four days during which the email to request access to hearings at First Avenue House had been mistyped on their webpage (so emails were bouncing back) and contact details were missing from the listings for many hearings in regional courts.  We had somehow created the impression that we were a big organisation with the resources and connections to solve access problems for members of the public. All we could do was email the courts on their behalf.  

We learnt from the blog posts (and informal feedback) that once people overcame the hurdles of access, they were struggling to understand what was happening in court.  It became apparent to us how much we already knew about court process and procedures, and that observers without previous experience in court were struggling.  The barriers to open justice are not just barriers to access, but extend to legal jargon and obscure court procedures.  As speech and language therapist, Olwen Cockell, wrote in one of the earliest blog posts we published: “I could see justice being done.  I could hear justice being done.  But, hand on heart, I can’t say I fully understood the justice being done.”

So, we enlisted the help of some lawyers and published some ‘explainer’ blogs: A basic guide to the Court of Protection(Alex Ruck Keene);  Who’s who in the Court of Protection? (Victoria Butler Cole QC) and what’s in the ‘bundle’ (Kyle Squire).  Celia wrote a blog about the reporting restrictions order (here), because several observers simply refused to write blogs, believing they were not allowed to say anything at all about the hearings.  We’ve continued to develop these ‘explainer’ blogs, because being in court without understanding what the judge and counsel are talking about can feel a bit like being a child having adults talk ‘over your head’ in sometimes deliberately obfuscatory language, designed to exclude you.  We also tried to ‘humanise’ the court, by publishing a more ‘personal’ account from a Court of Protection solicitor about her lived experience and its relation to her professional expertise.  

But what most struck us two weeks after pressing the ‘launch’ button, was how positive observers were about the court – most especially in their appreciation of the huge emphasis the Court places on the autonomy of the disabled people at the centre of its work, and of individualised, person-centred decision-making. One observer (who herself advocates for a family member) said of the hearing she witnessed:

The law enabled a person with a learning disability to access the same rights and healthcare as any other citizen. This gives me a huge sense of relief that my family member will be safe and listened to with these structures in place, and free to live the life he chooses.”

Others made similar points:

My main focus is that the person remains at the centre of everything. It was so reassuring to see that this also was the primary focus within a formal court hearing for Mr Justice Hayden”  (Sara Shorten).

What I saw happen in this case, was a serious focus on getting things right for the individual person at the heart of it all” (Meriel Scott)

 “Mr Justice Williams maintained unwavering focus on what is right for P … I left feeling reassured that person-centred decision-making, an issue I feel strongly about, prevailed.”  (Upeka de Silva).

In some ways this was unsurprising: we have both seen good practice in the court.  In other ways, it wasn’t necessarily what we were expecting – especially given our own critiques of some of the underlying principles of the Mental Capacity Act 2005 (particularly the concept of ‘best interests’) and our own experience of some very bruising encounters in the Court of Protection.  It was also becoming very clear that these blog posts, written by members of the public, presented a version of the Court of Protection that is very different from media representations: they were more personal, more reflective, and more engaged with the challenges of how to do the ‘right thing’ for the person at the centre of the case.

A year of open justice

A year on, we have a much bigger project on our hands than we ever predicted and no indication that we can stop any time soon.  

We simply didn’t predict the degree of interest and enthusiasm the project has stimulated, or the extent to which the project has encouraged and supported people from a range of  backgrounds (including health and social care professionals, lawyers, and people who are themselves engaged in ongoing proceedings in the Court of Protection) to observe the court in action, and to share their experiences and their reflections via our blog and social media.   In the past year we have published 139  blog posts featuring 97 different authors. As it became clear that hundreds – now thousands – of people would be involved in our Project (way beyond our original estimation of maybe a blog every couple of weeks or so), we also had to develop a formal ‘policy’ about what we would and wouldn’t publish (here) and some guidance for bloggers (here).

Recently we’ve also developed tweet threads (collected as pdfs on our web page here) as a method for reporting on some of the hearings we observe.  Initially this was simply a means to get something out publicly about a hearing when time-pressures precluded writing a blog – but we realised subsequently that tweet threads are a mode of communication which turns out to be extraordinarily effective in promoting dialogue and discussion with people who’ve not previously engaged with the Project.  (Note: the pdfs on our webpage don’t include replies to tweets – to find them, and appreciate the engagement they promote, copy some of the text into the search facility in Twitter, to locate the original tweet thread and responses to it).

The day-to-day work on the Project includes our own observations of the Court of Protection in action, editing and publishing blog posts and tweet threads, maintaining the social media presence of the Project and mentoring would-be observers, who sometimes need considerable support (as described by one contributor who mentored undergraduate students to observe).

Additionally, over the past year we have given 18 talks, seminars, and conference papers. These include: participating in a conversation about remote hearings with COPPA North-West (branch of the Court of Protection Practitioners’ Association); providing continuing professional development training for incoming judges to the Court of Protection via the Judicial College; contributing to the ‘Transparency Review’ being undertaken by the President of the Family Division of the High Court, Sir Andrew McFarlane, and presenting our work to the conferences of the Society of Legal Scholars and the Socio-Legal Studies Association. 

In  May 2021, we invited Claire Martin and Kirsty Stuart to join the project.  Claire is a clinical psychologist based in Gateshead who works with older people; and Kirsty is a solicitor with Irwin Mitchell. Both had become involved with the project via writing for our blog, and subsequently giving talks about their experience as public observers. Both bring a wealth of complementary expertise, experience, and interests to the project. 

The virtual ‘home’ of the Open Justice Court of Protection Project is our website. This is where we share details of upcoming hearings in the Court of Protection (‘Featured Hearings’), host supporting information and guidance for observers, including the resources in our  Public Observer Wiki and our Hearing Feedback Form, designed to support observers in structuring and making sense of their observations.  It’s also where publish our blogs and tweet threads.

The ‘reach’ of the website has surpassed our most optimistic expectations.  During this first year of the Project, it’s had over 111,000 views from over 55,000 unique visitors, across more than 100 countries. This has enabled us to put into practice one of the key aims of the Project – that of supporting members of the public not only to gain physical (or virtual) access to the Court of Protection, but also to understand and engage critically with its work as informed ‘citizen journalists’. 

We were delighted that in April 2021, the Open Justice Court of Protection Project was awarded the Mobilizing Research into Action prize in the Emerald Real Impact Awards 2020. It was brilliant to see the Project recognised in this way – and a great tribute to the contributions of the thousands of people who have been involved with it since it began: by engaging with the Project via social media; by observing the Court of Protection in action; by writing about their experiences for our blog; by sharing their expertise via our ‘explainer’ blog posts; and by inviting us to contribute to seminars, discussions and other events.

Reflecting back on the last year, there are four achievements we’re particularly proud of:

1. Changing the culture of the court

The Court of Protection now expects and prepares for scrutiny by public observers. This is especially so for Tier 3 judges hearing cases in the Royal Courts of Justice and judges at First Avenue House in London. Outside of London, judicial experience is more patchy (because public access is harder), but it’s many months since a would-be observer has been told that all COP hearings are ‘private’ or cross-questioned about their motives for wanting to observe.  

When we started observing we were offered essentially ‘fly on the wall’ status – i.e. the court just went about its business pretending we weren’t there.  Now, by contrast, there’s almost always an opening summary (usually from the applicant counsel, sometimes from the judge) about the background to the case and the key issues to be addressed. This is useful not just for us as observers but also for lay participants:

It’s good practice to have to think ‘how can I summarise this case in 2 minutes’ at the outset. I think it helps to do that in most cases anyway, but a public observer’s presence means we are more likely to have thought about it first. It aids the judge’s understanding and just as importantly the understanding of non-lawyer participants/litigants.” (Barrister)

We’re also now increasingly sent position statements on request: these skeleton arguments which outline the positions of the different parties at the beginning of the hearing are invaluable in supporting our understanding of what is going on.  We’re hearing now that, knowing that their position statements may be requested and read by members of the public, some lawyers are trying to write them with more clarity and careful exposition of the law.  

One barrister tells us that the presence of observers has meant a more rigorous focus on fundamental legal principles during hearings: 

There has been real enthusiasm for public observers in the Court of Protection. It has been seen as a real opportunity to counter the perception of it as a secret court. As a result, we have been taking the time to expressly set out the first principles and legal principles which should govern everything the Court does. This exercise, which was prompted by a desire to make the proceedings accessible and easier to follow has actually meant that as the principles are pushed to the forefront of everybody’s mind, they are more rigorously and consistently applied.” (Josh Hitchens, barrister)

Another barrister, reflecting on the difference it makes to have observers in court, says: 

“It absolutely changes things – practitioners and judges are less sloppy I think, and take the time to properly set out the facts, the law and judgments when they might otherwise refer to things in a more shorthand way.  This, I think, is a good thing since it means that anyone participating or watching (often family or even P themselves) can actually follow what is going on far better.  It means we are all on ‘best behaviour’ essentially!”  (Barrister)

2. Building a role as ‘critical friends’ to the court’s transparency agenda

We take as our starting point that (as Mr Justice Hayden says) “the culture of the COP is one of transparency”– meaning that the principle of transparency is a judicial commitment and aspiration.  Putting that principle into practice requires our help – since obviously justice is not open or transparent if we can’t get through the door of the (virtual or physical) courtroom, or don’t understand what’s happening when we do.   

Supporting the court in its commitment to the principle of transparency means both celebrating the success of open justice, as in many of the blogs on our website written by people who’ve attended hearings, and – equally – identifying and reporting the problems the court appears to have in implementing this principle. 

We know that the court is under-resourced, and working hard (especially during the pandemic) to deliver justice as speedily as it can, against a backdrop of challenges in relation to health and social care.  We know that public observers create more work for the court: starting with the processing of emails from observers to court staff, and often culminating in  a last-minute flurry of emails between counsel and judge.  Lawyers need to be prepared to anonymise documents, prepare an oral summary and a transparency order, inform P and P’s family that observers will be present, sort out the video-platform link, or – with telephone hearings -individually dial us into a conference call (it’s often the judge who does this).  And time is taken up in court with additional explanations of legal concepts for the benefit of observers, or by reading out material from documents to which observers do not otherwise have access. There is clearly a cost to implementing the principle of open justice in practice. We do not seek to minimise the fact that transparency is a burden on the court

Since, however, the principle of open justice is – in the first place – a judicial commitment (albeit one we support) and one the courts have historically held to be crucial in a democratic society, we are surely entitled to expect that the courts will do whatever they can to bear that burden graciously.  It is the judiciary who have championed the idea that “open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse,” as Toulson LJ put it.  Or, as  Lord Dyson JSC said, the open justice principle is not a mere procedural rule.  It is a fundamental common law principle.” When we ask to observe hearings, we are doing our bit to support and make concrete reality one of the principles the judiciary has advanced as core to its practice.  

Balancing our sense of ‘entitlement’ to attend public court hearings with the practical reality that we are frequently excluded from them is at the core of our engagement as ‘critical friends’.

3. Scrutinising expert evidence

Our most frequently read blog post is  “When Expert Evidence Fails” (viewed almost 5000 times). In essence, a consultant psychiatrist gave evidence that P, a 68-year-old care-home resident with dementia, lacked capacity to make her own decisions about engaging in sex (and various other decisions).  The blog post describes – with examples of dialogue from the court hearing – how his testimony simply collapsed under cross-examination.  

When the case returned to court three months later, with a different expert witness, it was deemed that P did in fact have the mental capacity to engage in sexual activity.  As we pointed out, the tragedy is that P “who has a degenerative condition – so that time is of the essence for decision-making – has lost a whole year (during pandemic lockdown) of intimacy of any kind with her chosen partner. A year that she can never get back.”  The human cost of expert witnesses getting it wrong in the Court of Protection is huge.

We also asked an expert witness to justify and explain the statistics he presented in court concerning the dangers of home birth (he blogged about this here) – since the published judgment quoted him without providing any references to his sources.  We sometimes get the impression that the court is overly influenced by the particular individual expert before them, when other experts may have different interpretations of the evidence or draw on different evidence – and there is a problem, too, with using the same experts over and over again.

The most egregious case of expert evidence we have seen in the Court of Protection  concerned a neurologist, Dr Pullicino – whose evidence the Court of Appeal said: “lacked every characteristic of credible expert evidence and it is not surprising that the Judge rejected it as effectively worthless. His key evidence relied on 3 minutes of video recording of P, whose notes he had not examined, on the basis of which he made unsustainable diagnostic claims (as analysed in a blog post here).

After watching the hearing, and doing some background research, Celia wrote a letter of concern to the General Medical Council about Dr Pullicino on the grounds that he caused harm to the patient (and to his family) and damaged public confidence in the medical profession.  They are currently investigating this.

So, open justice means exposing not just the lawyers, but also the health and social care professionals who provide evidence to the court (especially those who do so as ‘expert witnesses’) to public scrutiny and to the possible consequences of that.

4. Improving legal literacy and knowledge of the COP

We’ve both learned a lot about the law through watching Court of Protection hearings, and so too have the health and social care professionals, and aspiring lawyers, who have acted as public observers. Observation often has important benefits for continuing professional development:

I have found the whole observation experience very beneficial.  The googling, looking up of legislation, reading up of quoted case law – both during and after the court attendance – has given me a crash course in legislation, that I now realise, I only thought I understood. Listening to a talk about how the Mental Capacity Act is implemented in the courts is one thing – actually observing it as it happens is very different!” (Louise Burrell, social worker)

I think the most important learning for me from being able to observe this hearing, is the way it has again, allowed me to watch the Mental Capacity Act  2005 ‘in action’ and understand how a senior High Court Judge … works through the process of reaching a best interests decision. I’m also able to take away with me some ideas that I can incorporate into my own practice when completing best interests assessments myself in future.” (Astral Heaven, DOLS Manager)

For my part, I left [the hearing] with a resolution to examine my own practice, and to consider deeply the motivations for the clinical decision-making forums (e.g. Multidisciplinary Team Meetings) I am part of that do not physically place the person or their family at their centre.” (Caroline Barry, Consultant in Palliative Care)

“For me as a student of health care law, this experience of observing the Court of Protection in action illustrated the reality of applying the ideals of the Mental Capacity Act 2005 to real life.  In theory, it’s easy to say that decisions should be made in P’s best interests, but even when – as in this case – everyone agrees what that is, judges have to deal with real-world issues like which rehabilitation unit would be suitable, how to find one with a vacancy in a particular area, how to manage a situation that could change unpredictably before the right rehabilitation unit is available, and how to ensure that the local authority and others responsible for P’s care keep up the momentum in finding the right treatment for her.  Understanding the Mental Capacity Act 2005 is not just about analysing black letter law and statutes and discussing it in the abstract. I’ve learnt that the Court of Protection’s role is also about managing the concrete particular details of a particular P in the specific conditions of her life and in the context of over-stretched health and social care services.”  (Lucy Williams, aspiring solicitor)

Through our social media presence and blogging, we’ve created a much broader awareness of the Court of Protection and what it does: our hashtag is #NotSecretCourt.  The vast majority of people don’t (and won’t) attend hearings: they learn of the court’s work only through published judgments and media reports.   

Few members of the public ever read published judgments – and they are in any case post-hoc polished explanations and accounts for the judgment, which can obscure the messy process by which the judgment was arrived at – the dead ends explored, the arguments from counsel that didn’t work, the questioning that went nowhere, the thinking-aloud reflections of the judge pondering the case. It is precisely seeing how the decision is arrived at, and the real-life constraints within which the court must work, that is so illuminating.  It is of course crucial for open justice that judgments are published – we wish more were! – but they are no substitute for observing a hearing.  

Journalists are supposed to be the ‘eyes and ears of the public’ – but comparing media reports of the cases we observe with our blogs about the same cases, we are struck by the huge differences.  Compare for example the media reports of the case of the woman with agoraphobia ordered by the court to give birth in hospital with the blogs from our contributors, who included a woman with agoraphobia, a medical ethicist, and some midwives.  A journalist cannot be expected to see or hear court proceedings (or read a judgment) from the perspective of a midwife, a consultant obstetrician, a doula or a person with agoraphobia – each of whom brings her or his own unique personal and professional experience to bear, and each of whom can speak authoritatively to a specialist constituency, able to engage with the issues with expertise and sophistication.

We believe that open justice is vital in the Court of Protection  not least because of the  human rights issues involved.  Over the course of the year we’ve covered, for example:

Covid-related issues:  Is it in P’s best interests to be vaccinated against covid (yes, here; no, here)? Are a care home’s rules about visiting arrangements during the pandemic a violation of P’s human right to family life (here and here)?

Life-sustaining treatment:  Should P continue to receive clinically assisted nutrition and hydration? (yes, here; no, here)  Should P have their leg amputated against their wishes when not amputating will mean that they die? (yes, here; no, here)

Choices in childbirth:  Should women who don’t want to give birth in hospital, or be induced, or have caesareans, be compelled to do so, by force if necessary? (See one lawyer’s take on this here.) Is it in the best interests of a learning disabled woman (wishes unascertainable) to have a caesarean? (here)

Engaging in sex: Does a woman with dementia have the mental capacity to engage in  intimate relations with a man in her care home? (here)  Can P can be provided with support to access a sex worker? (here)  And we’ll shortly cover a case that originated in the COP and is soon to be heard in the Supreme Court, live streamed): does capacity for sex include the understanding that the other person must have the capacity to consent to sex, and does in fact consent, before and throughout the sexual activity? 

Deprivation of Liberty: Does P have the mental capacity to decide where he lives or can he be deprived of his liberty, against his wishes, in his own best interests? (here)  If P is deemed not to have capacity and says he’s “incarcerated against my will” and wants to return home, how long and on what basis can the court keep him in what he calls a “prison”? (here and a similar case here)  If P isn’t able to express her wishes, but a family member who loves her wants to care for P at home, on what grounds can the state keep her in an institution? (here)

When can the state compel P to take medication that he’s refused  by hiding it in his tea? (here); or restrain P to ensure he or she has the surgery they’re resisting? (here and here); or invade P’s privacy by keeping a video-monitoring device on him day and night? (here)

In a democratic society, these sorts of decisions for vulnerable and disabled people should rarely be made behind closed doors.

The future

We’re extremely pleased with what we’ve achieved so far in such a short space of time.  We’re also exhausted!  Happy, exhilarated and excited, yes.  But also exhausted.

We’re still unfunded: we paid out of our own pockets for the (modest) costs of website hosting and logo-design. We’ve done all the work of building and maintaining the website ourselves. Five days a week, it’s still one of us who scours the listings for the Royal Courts of Justice, First Avenue House and the regional courts – correcting the errors, formatting them consistently, tweeting them to the three thousand people who follow us on Twitter, and selecting the most ‘interesting’ or ‘accessible’ for ‘Featured Hearings’.  We’re not looking for funding (we value our independence) but it does mean there’s only so much we can do.   We’re thrilled that Kirsty Stuart and Claire Martin have joined us.

We didn’t really plan the achievements of our first year – we reacted to circumstances, pushed on various doors to see which ones opened, took the opportunities that presented themselves, and pursued the issues we cared about most.  I imagine next year will be much the same, but with more of us actively involved in the core group.

We’re celebrating how much we’ve achieved and looking forward to the challenges of the future – which will of course include how to manage open justice when the courtroom buildings are finally fully open and hearings move back, in whole or in part, into physical rather than virtual spaces.  We’re hoping the courts will work with us to continue to facilitate open justice after the pandemic as they have done during it.

Happy First Birthday to Us!

Celia Kitzinger and Gill Loomes-Quinn are the co-founders and co-directors of the Open Justice Court of Protection Project. Celia tweets as @kitzingercelia and Gill as @GillLoomesQuinn

Photo by Stephen Wheeler on Unsplash

A junior doctor watches his first hearing

By Sam Elcock, 14th June 2021

I was inspired to dial in to a Court of Protection hearing after hearing Celia Kitzinger speak about the Open Justice Court of Protection Project at a presentation where I work.

I’m a junior doctor working in Birmingham and have yet to have any involvement with patients or cases that have gone to the Court of Protection. I was however aware of the concept of complex cases where there may be a dispute about a patient’s best interests which end up in a court of law. 

The idea of being able to watch a hearing remotely via MS Teams made things much easier for me, as with a busy work schedule it’s quite hard to plan attendance at short notice.

On a rare day off work with no other plans, I saw a tweet from @OpenJusticeCoP about a hearing before Mr Justice Hayden, who I knew had presided over the Alfie Evans case as a High Court judge.

It was Case No. 13748686 Re: B before Judge Hayden at 11.30am on 27th May 2021.

I emailed the courts that morning and very quickly received a link to the MS Teams meeting, along with a last-minute change of timing for the case – it had been listed for 11.30am but we were told it would actually now happen at 2.00pm.

At this point, I didn’t know what the case was about, so at 2.00pm I dialled in with an open mind.

There were about 10 people in the ‘room’ and it was a solely virtual hearing. 

It wasn’t immediately clear who was who. The court clerk then appeared and after a roll call of those present, introduced Mr Justice Hayden.

 Even though my camera and microphone were off, I wasn’t quite sure what to do when she announced, ‘court rise!’. I stayed seated with my cup of tea, as did everyone else on screen to my relief. 

The first barrister then started presenting her argument, and at this point I still had no idea who was who or what the case was about. Mr Justice Hayden rather quickly interrupted her, and said words to the effect of: 

As you may know, this court is open for members of the public to sit in on who may not have the information we have before us about the case. Please could you start by introducing the case and providing a background of events to date.’

The hearing was about P, a young woman with Down’s Syndrome whose parents had divorced. From what I could make out, this was the case’s first appearance under a ‘Tier 3’ (High Court) judge, but the exact outcomes both parties wanted remained slightly unclear. 

From what I could gather, there was a differing opinion between the mother and father as to how much time P should spend with each, at an activity centre, and also with regards to carers who would support the father with P’s intimate hygiene needs. 

Various pieces of evidence were presented by both sides of the court, including capacity assessments about P’s thoughts and also occupational therapy assessments about Ps needs. 

The mother and father were present throughout the court, but remained silent (as did I).

The capacity assessment was particularly interesting for myself as a doctor, as these are assessments I do on a daily basis. 

The hearing lasted roughly an hour and adjourned without the bang of a gavel like I was half expecting. There was no clear conclusion to the outcome at the end, other than P should spend as much time as possible with her elderly paternal grandmother.

What struck me most about the case was how personable Mr Justice Hayden was. He took a particular interest in the activities at the activity centre P wanted to go to with her friends, remarking how beneficial an ‘Adult disco’ would be for someone like P.

There were a surprising number of humorous moments and on the whole the court was a lot less serious and formal than I was expecting. 

The hearing ended very promptly without me having to say anything or even introduce myself on the call. 

Overall, it wasn’t quite the ethically challenging case I was expecting but the experience of being able to watch a Court of Protection hearing was fascinating. 

As a doctor, I’d now like to observe another hearing which is perhaps more medically focused.  However, I find it quite exciting how cases are published last minute and you don’t quite know what’s going to be presented. 

It was very beneficial for myself as a medical professional, and would encourage others working in healthcare to try and observe similar hearings. 

I hope that I never have to be a witness at a Court of Protection hearing. However having the experience of observing one at this stage has given me a good idea of what to expect should it ever occur. 

Sam Elcock is a Foundation Year doctor in Birmingham.  Originally from Liverpool, he graduated from the University of Leeds in 2020.  Previously serving as a reservist, he is now in the Regular Army and is undertaking general medical training with the intention of becoming an Army GP.  He tweets @Samelcock97

Photo by Hush Naidoo on Unsplash

Evidence of risk of planned home birth

By James Walker, 11th June 2021

Other experts who have contributed to this Project’s discussion of the Court of Protection case of An Expectant Mother [2021] EWCOP 33 are not alone in the misunderstanding of the data surrounding home births. This is largely due to the fact that the presentation of the data is influenced by underlying beliefs of those presenting it. There are very few good trials into home birth and the cohort trials are from different parts of the world and not necessarily well controlled or detailed in their information. The meta-analyses are therefore flawed due to the mixture of the case cohorts included as well as coming from different clinical backgrounds.

It is often stated that home birth is safe for the low-risk woman. No birth is safe: safety is not binary, it is a continuum, and it changes over time. Risk is poorly assessed in most cases and is assessed as higher or lower depending on your starting point and your own beliefs. None of us is impartial. 

When considering home birth, there are four things to consider:

  1. the underlying risk and the awareness that this may change
  2. the environment where the birth will take place
  3. the difficulties in transferring a woman to hospital if required
  4. the wishes of the mother.

Fundamentally, it is the mother’s decision after she has had fully informative information to help her decide. If a woman with the mental capacity to do so decides on a home birth, then irrespective of the hospital staff views or feelings, there is an obligation to support this and provide midwifery input. 

I obviously cannot discuss the specifics of this case, in which I gave expert evidence, but it is fair to say that there were some concerns about obstetric risks to the baby but the emphasis of concerns was on the ability to transfer to hospital. This centred around the mother’s agoraphobia, and the effect it may have on her decision making.

The risks of an incident occurring for any individual birthing at home are not different from the risks of birthing in hospital, apart from the ability to monitor the mother and baby if there are concerns and the ability to transfer if required. So is not the home birth that is the problem, it is what you can do if something goes wrong. In many instances babies are lost or damaged during home birth due to slowness to observe deterioration, slowness to escalate and transfer to allow “rescue” to take place. 

The best UK figures on home birth are published here and are used by the NHS website: 

Perinatal and maternal outcomes by planned place of birth for healthy women with low risk pregnancies: the Birthplace in England national prospective cohort studyBMJ 2011; 343 doi: https://doi.org/10.1136/bmj.d7400 (Published 25 November 2011)

For transfers in labour or in the postnatal period, the study showed that 45% of primigravida are transferred: 35% before delivery and 8.9% after. For multiparous women the figures are  6.4% transferred before delivery and 5.2% after delivery. The figures were not much different for women giving birth in Freestanding Units or Alongside Midwifery Units,  demonstrating the risk is not home birth per se but primigravida pregnancy.  Many of the figures quoted by supporters of home birth do not differentiate between woman having their first baby at home and those having their second or more baby at home. That is why transfer figures are usually quoted as being a lot lower. 

Half of the reasons for transfer was failure to progress (17.9 of the 35.1%), then fetal concerns (8.2 of the 35.1%), desired pain relief (2.8 of the 35.1%) and other concerns. After delivery, the reasons were requirement of suturing the perineum (4.4 of the 8.9%), haemorrhage or retained placenta (3 of the 8.9%), baby reasons (0.9 of the 8.9%) and other concerns. 

Although emergency (urgent) ambulances were called in 11.5% of all primigravida, a “blue light ambulance” was probably needed in only 1% (my guestimate). The transfer times from decision to transfer to arrival in the obstetric unit was around 49 minutes on average.

The primary perinatal outcome was a composite of perinatal mortality and specific neonatal morbidities: stillbirth after the start of care in labour, early neonatal death, neonatal encephalopathy, meconium aspiration syndrome, brachial plexus injury, fractured humerus, and fractured clavicle. This composite measure was designed to capture outcomes that may be related to the quality of intrapartum care, including morbidities associated with intrapartum asphyxia and birth trauma.

The study showed that when correcting for pre-existing risk, primigravida had a 2.8 increased odds ratio of poor baby outcome (9.5/1000 or 1/100) compared with hospital birth 3.5/1000 or 1/300). This is largely due to the time taken to escalate the problem and transfer the mother. These figures are slightly worse than those quoted in court which were the unadjusted figures. 

This is the basis of the figures I used in my evidence as they are the best that are available for the UK and would be relevant in this case. 

To emphasise, the risks of home birth is not related to the incidents that occur but to the ability to transfer and rescue. 

James Walker is Emeritus Professor in the Department of Obstetrics and Gynaecology at Leeds University and author of Planned home birth. Best Pract Res Clin Obstet Gynaecol, 2017.

Photo by Beth Macdonald on Unsplash

‘No Entry’ – Open Justice at the RCJ

By Daniel Cloake, 10th June 2021

“It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard.’”

So reads the infamous line from The Hitchhiker’s Guide to the Galaxy to justify the assertion that the all-important plans had indeed been on public display.  I was reminded of this quote as I was traipsing around the Royal Courts of Justice looking for a Committal Hearing that purported to be held in public earlier today. 

The proceedings had been advertised by the Open Justice Court of Protection Project, which advocates for public observation and scrutiny of the Court of Protection.  Once described in 2006 as ‘shadowy’ and ‘the most secretive court in Britain’ by The Telegraph, great efforts have been made by the group to encourage members of the public (including health and social care professionals, law students, disability rights activists, academics, and families caught up in COP proceedings themselves)  to witness and report on what they see.

What caught my eye was that this was a Committal hearing, proceedings described by Macdonald J as ‘essentially criminal in nature’ (Para 9) which can lead to the imprisonment of the alleged contemnor – a serious exercise of power by the court and worthy of public scrutiny.

The general rule as laid out in the Practice Direction on Committal for Contempt of Court in Open Court (“PD’s”) states at 5(1): “All committal hearings, whether on application or otherwise and whether for contempt in the face of the court or any other form of contempt, shall be listed and heard in public.

Such is the importance of Open Justice to this exercise of power that whilst the court does have Jurisdiction to sit in private, at the conclusion of a successful committal application the court must sit in public and give its reasons (PD’s at Para 13(1)). Para 13(2) states in no uncertain terms:

There are no exceptions to these requirements. There are never any circumstances in which any one may be committed to custody or made subject to a suspended committal order without these matters being stated by the court sitting in public.

The cause list showed this hearing as being held over MS Teams. However it transpired that it was in fact ‘attended’ and the parties would be sitting in court at 2pm.  With that knowledge in mind, I doffed my face mask and made my way to Central London.

Unfortunately, upon arrival, the printed cause list on display at the RCJ still showed the case as being heard online.  I enquired at the aptly named enquiries desk and was given a phone number for the Family Division who I was assured would assist me with my request.  My phone tells me that the number was called a total of 8 times, going to voicemail after ringing out.  Re-enquiring at the enquiries desk led to the advice “They’re normally held in the Queens Building”… and off I went.

Arriving there I was very conscious of the time.  13.58.  Two minutes before I’d miss the start.  I could see Court 40 was sitting, could this be the one?  I peeked through the glass window on the door and googled the judge I was expecting (Hayden, J) so I could find an image to compare.  No, not him.

I took the lift to floor 1M and enquired at my second enquiry desk of the day.  “I’m here to observe the following case” I said handing over my notebook with the case number written on it.  A few moments passed while she tapped at her computer – “Yes this one’s being heard on MS teams” she said.  Ah.  I explained the situation and she disappeared round the corner to seek advice.  I look at my watch.  The seconds are ticking by.  She reappears.  “Court 45 on Level 1”.  I get back in the lift.

One final hurdle of the day – no, not a sign saying “Beware of the Leopard”, but one equally off-putting fixed within a permanent Perspex plaque. 

“NO ENTRY TO THE PUBLIC SAVE FOR ACCREDITED PRESS/MEDIA REPRESENTATIVES” 

With mortifying visions of proceedings being halted whilst I’m ejected, I catch the usher’s eye through the door and was helpfully directed to the public gallery at the back of the court.

The time was 14.07. The first time I have ever been late to a hearing.

I had as it turns out arrived at the half-way point – it finished some 8-minutes later.

The threat of committal had achieved its objectives” said Mr Justice Hayden, describing it “as absolutely the last resort”.  I had heard enough over the remaining eight minutes to speculate what may have occurred but certainly not enough to satisfy the requirements that reports should be accurate and fair. 

An inaccurate cause list, two enquiry desks, a phone that never answered and a sign that said No Entry.  I wonder if Arthur Dent would have been impressed?

Daniel Cloake is a blogger and news gatherer with a keen interest in law and the justice system. This post was originally published on his own site, “The Mouse in the Courtroom” (where you can read his many other blog posts).  He tweets @MouseInTheCourt

Image by Dennis van Zuijlekom from Ermelo, The Netherlands, CC BY-SA 2.0, via Wikimedia Commons

Best interests decisions when P’s views and wishes cannot be determined

By Katharine Shipley, 8th June 2021 (with additional material from P’s mother via Celia Kitzinger)

Editorial Note: A published judgment should appear on BAILII in the near future and we will link to it from this blog post when it does.

This three-day hearing (COP 13401563, before HHJ Tindal in Worcester) concerns a woman in her late thirties (“NW”), who has profound learning disabilities, severely restricted mobility and complex physical health needs, including epilepsy.  The issue before the court is whether it is in her best interests to continue to live in a care home or to return home to her mother.  

There were two previous hearings about this case that I did not observe. NW’s mother has written about them in her own blog post. She also contributed her views to this blog (via conversations with Celia Kitzinger).

I was drawn to this hearing for several reasons, not least because Celia Kitzinger tweeted that NW’s mother would welcome observers in the case.  A previous case I observed concerned a woman who most definitely did not want observers to be present:

I managed to observe the majority of the three-day hearing.  At the end of the hearing, I requested and received the position statements, transparency order and final order from HHJ Tindal.

Background

NW was adopted as a baby and lived with her adoptive mother until 2017 when she was admitted to a specialised care home (pseudonymised here as Dover House).  This was  initially for respite, when her mother was admitted to hospital.  

When her mother was discharged from hospital a couple of months later,  the CCG assessed that NW lacked capacity to decide where to live (capacity is not disputed) and that it was in her best interests to remain at Dover house, where she has been ever since.  

The care home is in a different county, around 2 hours travel from her mother’s home and there have been practical (and other) difficulties with contact between mother and daughter. At the time of the hearing there had only been seven visits over the last three years and six months, the first in September 2020, the remaining six since 26th March 2021.

In February 2019, NW’s mother applied under s.21A of the Mental Capacity Act 2005 to challenge the Deprivation of Liberty (DOLS) standard authorisation and the case originally came before Judge Plunkett in November 2019 (see the mother’s blog post referring to this hearing). It is unclear what happened at that hearing, or why matters were then delayed until November 2020 – “covid intervened” says HHJ Tindal in his judgment. 

In November 2020, there was supposed to be a three-day hearing.  This didn’t happen.  Although NW’s mother went to the courthouse and was there for the whole of what was supposed to be the first day of the hearing, what actually happened that day was a complete mystery to her (see her blog post).  

According to the position statement from the CCG, the November 2020 hearing was adjourned to enable contact between mother and daughter.  The court’s order set out recitals that it was lawful under the relevant COVID-19 regulations for that contact to take place, and outlined how it would be arranged.  The order made s.15 declarations that NW lacked capacity to make decisions about litigation, residence, care and contact and provided an expert report on her communication abilities, and an interim declaration that it was in NW’s best interests to have contact with her mother – in the care home, in the community and at the family home.  It seems that at that point HHJ Tindal was keen to see if a ‘third option’ could be found, whereby NW would remain a care home resident but have overnight visits to her mother.

The issue at this hearing was (still) whether NW should remain in Dover House, which is what the CCG (who fund her care) argued, supported by the local authority, or whether she should return home, which is what her mother wants.  

The parties

NW’s mother was the applicant, as a litigant in person.  She told us that about 2-3 weeks before the hearing, her legal aid team had told her they would no longer be working on the case.  “I immediately set about seeking a practice that would accept the case, but following 70 – 100 enquiries in that short time I failed.”  She represented herself in court but was supported by written submissions by Victoria Butler-Cole QC, provided pro bono.  (“Victoria phoned me on a Friday evening and worked on my submission on the Saturday and Sunday”, she told Celia Kitzinger in a phone conversation after the hearing.  “It was absolutely more than wonderful and something I will remember to the end of my life.”)

NW was represented (via her litigation friend the Official Solicitor) by Grainne Mellon.  The Clinical Commissioning Group was represented by Rosie Scott and the County Council by Michael Paget.  

My impressions of the process

This hearing was ‘hybrid’, meaning that some of the people were physically present in court (including NW’s mother) and others were on video link. From an observer’s point of view, I felt the format worked well (with the inevitable odd technical hitch).  It seemed a good compromise, neatly reflecting this period where we appear to have one foot in the pandemic, one foot out.  I’m sure for some witnesses, providing evidence by video link is a far more practical option and maybe hybrid hearings will become more commonplace – though it is concerning to know that in one recent case observers were excluded from attending a hybrid hearing via video link and were only permitted to attend in person.  

Early on the first day, remote observers did have difficulty hearing the first witness, due to the noise of the judge typing near the microphone.  This was quite swiftly resolved by the court clerk after observers raised the issue via the video link chat function.   I did also have some difficulty working out who was who, particularly those who were physically in court, but I think this was largely down to my limited experience of the legal arena, and I learned some lessons for next time!

From the outset, HHJ Tindal came across as warm and sensitive,  immediately addressing NW’s mother in a down-to-earth manner.  He told her that there were observers, explaining to her that ordinarily COP proceedings are held in private because important decisions were being made about vulnerable people, but a balance between privacy and confidentiality is required (although his explanation did not quite reflect the situation as I understand it, e.g. as explicated here). In any event, she readily agreed to having observers present.  

I felt that HHJ Tindal struck an excellent balance between allowing witnesses time and freedom to give evidence and parties to ask questions; and steering and refocussing the process.  At times when things looked like they might derail, he quickly suggested a break in proceedings so that an advocate could re-evaluate their line of questioning.  

How NW’s mother experienced the process (as told to Celia Kitzinger)

At least this time on Court morning I was prepared for the entrance security measures.  Last time I had been confused and uncertain by the expectations on arrival and the lack of any guidance.  

I was intentionally early and when the others arrived, we all went down to small rooms where I sat alone while they each prepared. 

A member of court staff came to me and made herself known as a court clerk.  She was part of the court hearing throughout and always kept a kindly eye on me. 

The barrister for the Official Solicitor came to see me to reassure me that no-one was preparing to act unpleasantly to me in court and that I should ask for help at any time.  

We were called to enter the court and to arrange our seating Covid style. To my horror I was placed alone in the front row, on something like a church pew.  When the judge came striding in and sat down, I was right in front of him.  It felt like a first day at a new school and I felt about 8 years old. 

Right at the beginning the judge spoke to me and said, quite strongly, to both me and the court, that I was not in any way under any criticism by the court at all and I should not feel guilty about anything.  Even now I find that both unexpected and surprising.  I have said on many occasions that while I am not guilty of any wrongdoing or lack of truth at any point, I have had to cope with many implications of failure and inadequacy by the NHS during the last three years as they seek to justify their actions. He said he was sorry that I was unrepresented but that he would endeavour to be as helpful as possible. He was helpful and courteous throughout.  So were the barristers.  I often felt at a loss to fully understand what was going on but that is to be expected as I am not familiar with legal language, and no fault of the professionals.

The options

Initially, HHJ Tindal suggested that there may be three available options with regard to NW’s residence: 

(1) NW to remain in the care home; 

(2) NW to return home to live with her mother with a package of care; or 

(3) NW to remain in the care home, but with regular overnight stays at home with her mother.  

Regarding the option of living with her mother, there was a question of whether the care would be commissioned by the CCG, or whether NW’s mother could manage a Personal Health Budget and employ carers directly. 

NW’s own wishes and feelings

Whilst ‘P’ may not always have the mental capacity to make certain decisions, s.4(6) Mental Capacity Act (2005) requires that their wishes, feelings, beliefs, and values are taken into account.  The Court of Protection has given increasing prominence to this in recent years.

In this case, we learned that not only was NW deemed to lack capacity to make decisions about her residence and care, but that her wishes and feelings were near impossible to determine.  Her mother did not argue that NW wanted to return home.  Instead she said that NW was unable to have or to express a preference.

Her mother explained that NW has a developmental age of 33 weeks. She believes that NW has Angelman syndrome. NW has recently been tested for this and the result is pending.  One of the symptoms associated with the condition is a tendency to smile and laugh, often with little stimulus.  NW’s mother said (in a written statement to the court): 

“The facial appearance is rather meaningless… The Angelman person has limited or no capability to express any negative emotion at all… [NW] has not cried for many years; she barely reacts if hurt… those reactions are largely meaningless.  Some have said that they think she remembers them. But there is no way to tell.  She reacts much the same to any person, strangers or not, me included.  She has no capability to express a negative choice or any choice at all.”

An exchange between the judge and NW’s mother went like this: 

HHJ Tindal described the mother’s opinion on NW’s inability to express choices or views as unusual, and “an incredibly honest philosophical position”.

NW’s mother wrote to Celia Kitzinger, afterwards, about this part of the hearing:

The judge tried hard to understand when I answered truthfully that since she is unable to express or even show whether she has emotions or can make choices I would be untruthful if I stated that she loves me.  I refused to declare that I can easily know what is going on inside her just to suit my own need.  I tried to explain that careful observation over a length of time is just a starting point and that she makes almost no meaningful gestures like head nodding, and that I do not pretend that I choose to know what she might want in order to justify my own opinion.

Expert evidence from a speech and language therapist (provided in a report) concluded that NW “does demonstrate ability to engage in interaction with a communicative partner” via vocalisations, body movements and facial expressions, that she is “aware of people and demonstrates knowledge of who is familiar and who is not” and that her behaviours “are suggestive of her expressing her emotions” but this may only be apparent “when the communication partner is highly familiar with her types of communication”.

The director of care at the Trust which runs Dover House provided evidence that NW engages well with familiar people and “without a doubt recognises who are her peers”.  

There was evidence that she ‘plays games’ with staff, declining to make eye contact or ‘talk to them’ and then laughing and engaging animatedly with them. She has indicated she “likes certain individuals caring for her” and NW has spoken single words (including two carers’ names). Care home staff are said to have reported that NW “interacts with all those around her” and that she had taken “a lead role in the home’s pantomime and loved the whole festive experience”.  

NW’s mother disagreed with these assessments. She sees them as ‘fantasy’.  She dismissed references by the care home that NW ‘engages’ with activities such as drama, as she said that it is not possible for her to interact in this way.  She said that  “NW is not able to express needs in a way which others can accurately interpret”.  In her view, the staff “read things into her, what they assume they should read”.   She said that NW is unable to communicate even severe pain or basic choices.   She postulated that cats and dogs were better able to express their preferences.  

On the other hand, NW’s mother did point to some ways in which NW conveys preferences.  She said that she thought NW liked balloons, wondering if she interpreted them as faces.   She also said that she seemed to respond particularly well to men’s voices, particularly when they were loud and confident.    

The difference of opinion between NW’s mother and the professionals was characterised by the judge, in his published judgment as “a difference of emphasis… not a difference of substance”.  

“Like the proverbial half-full or half-empty glass of water, Mum focusses on the limitations of NW’s communicative ability (not least because Mum derives ‘some comfort’ from her belief that NW cannot recognise her own happiness or unhappiness) whereas [the speech and language therapist] focuses on the fragile potential …. This resonates through the evidence in this case: in many ways a debate between Mum’s focus on what NW cannot do and the professionals’ focus on what she can.” (Judgment, 15th May 2021)

What came through most powerfully from her mother’s testimony was her deep and enduring love for NW and her strong commitment to her welfare.  She described her daughter as “an unusual and remarkable person”. She said that she thought that NW had “come here for a reason” and that she was “stirring all our thoughts here”.

Dover House vs. returning home – considering the issues

NW’s mother’s position – returning home

The key argument advanced by NW’s mother in court was that her daughter should return home.  The main reason she gave for this was because of grave concerns about the care NW was receiving at Dover House and her belief that she would be able to oversee the care provided to NW at home and ensure it was appropriate.  She accepted that she could not provide care alone, due to her own health condition, but is content for a care agency to do so, with her oversight.

NW’s mother described the care at Dover House as “horrifying really”.  She said that her daughter had sustained a broken elbow under their care (cause unknown).  This had been reported to the police and to the safeguarding team (with no evidence of any lack of care found). She also  expressed concern about night seizures, NW not wearing glasses and delay investigating Angelman’s Syndrome. She said that on one visit, NW had “big strapping things digging into her neck”, and that on another occasion they “ignored that she was ill – her lips were cracked”.  She also said that her daughter was cold all the time. She said, “I just don’t have the right to leave her there”.  When asked about how she would feel if the court decided that NW should remain at Dover House, her mother said that in that case “I would pray she doesn’t live very long”.   

The judge, however, accepted that “the objective evidence satisfies me beyond any real doubt that NW is very cared for and is settled at [Dover House]”, finding this evidence is “corroborated by the consistent view of a number of experienced professionals” who had visited the home and checked on NW “over a very protracted period of time when Mum was not visiting”. 

NW’s mother had – as the judge pointed out – rather limited knowledge of how her daughter was being cared for, since she had only recently started visiting her there.  Difficulties with regular contact seemed in part due to practical and financial impediments, and in part due to the mother’s concern that visits might upset or unsettle her.  She had however recently visited more frequently, following an order by HHJ Tindal in November 2020, facilitated by funding for travel from the CCG.

NW’s mother described her own living environment as a rather idyllic close rural community.  All the neighbours were concerned for NW and were “looking for her”.  The house had been adapted extensively for her some years ago.  Her mother said that she thought there was a perception that she and NW “did nothing but look at each other” and explained that she had involved NW in many activities up until she went to Dover House over three years ago.  She described how she had done horse riding and hydrotherapy for some years, but these had been unfortunately stopped as the staff had become concerned by her seizures. 

The written submission (the position statement) prepared for NW’s mother (on a direct access pro bono basis, at short notice) by Victoria Butler Cole made additional arguments.  She pointed out that NW’s right to respect for her family is “of fundamental importance”, drawing on case law[1] to argue that: “It is for the state to show that institutional care is better than care at home, and further, that the person’s welfare cannot be adequately sustained other than in an institution.”

This position statement submitted that:

For someone with limited communication, the significance to NW of being with a person who has known her for her whole life and loves her, cannot be overstated.  There is really no comparison between the bond of mother and (adult) child and that with paid carers, whose involvement in N’s life will inevitably be temporary and inconsistent. There can be no doubt that [her mother] knows NW better than anyone else.”

In relation to the ‘third option’ (frequent visits to the care home by NW’s mother),  exploration of which was encouraged by the judge at a previous hearing, the formal position statement says:

The quality and extent of contact between N and her mother if she remains in institutional care is hugely significant. It is not unusual for a parent in [this] situation to feel unable to visit their (adult) child in an institution where the admission and detention of the child are against the parent’s strongly held wishes.  Feelings of guilt for not having been able to protect the child, and fear that the child will not understand what has happened and might feel abandoned or rejected, are common.  It is also common for people to feel that by visiting they are endorsing the arrangements. It would be wrong in this case for the court to conclude other than that [her mother] loves NW and is dedicated to her, and that their relationship is of great importance.”

The position statements concludes – in line with NW’s mother’s stated position in court – that a bespoke care arrangement using a Personal Health Budget would be the best and most sustainable way of providing care.  The court, however, heard evidence from two agencies.

Two community care companies presented evidence regarding potential care packages, should NW return home.   Both were confident of their ability to provide such care. The care providers could not be very specific about the options for activities and physical therapy without their services being commissioned, but there was discussion about consistency of community activities being affected by likely timetabling and logistical difficulties.   The rural position of her mother’s house and recent incidences of NW having seizures which were seemingly triggered by travelling, were cited as  potential obstacles to community activities.  

The CCG position – remain at Dover House

At the current care home, NW has access to 24 hour registered nursing for management of her complex needs, including her PEG, postural management for scoliosis, epilepsy management, physiotherapy, occupational therapy and speech and language therapy. 

NW’s mother commented afterwards on the way in which one of the witnesses for the Trust described the need for expert nursing care, and the gulf between what was being said and her own experience of managing problems with a feeding tube.

“From my perspective,  much of her testimony had little to do with my daughter’s life and care.  Perhaps it sounded authentic to the Judge but certainly had no relevance to our community healthcare arrangements.  She gave a dramatic description to the judge  of potential problems with gastric feeding tube – describing the need for district nurses, emergency ambulances and hospital admissions. It was an enormous exaggeration and made it sound like a real emergency.   I realised I needed to act, though I was almost being sick with nerves.  I silently put up my fore finger to get the judge’s attention and looked hard at him.  He stopped her, then spoke gently to me saying that I should not interrupt.  I carefully said “please,  I want a chance to respond to this when possible”, and then she continued.  He turned to me when she finished and I explained that when we have a problem with a tube, we set up a hygienic area, bring a new boxed sealed tube set from bathroom storage and perform the replacement ourselves.  Later, I would inform the speciality nurse with dates etc. and perhaps the consultant’s secretary and that is all.”

Dover House offers a wide range of activities including wheelchair dancing sessions, sensory activities in a special room with a projector, aromatherapy, arts and crafts and (in the neighbouring house) a hydrotherapy pool and special trampoline.  NW’s mother referred to this as “Butlins style accommodation rather than committed care at home – care that has exceeded her several life expectancies, with no broken bones and no medical or social care criticisms.”

The available activities and therapies in the community were discussed throughout the hearing. Whether these were assessed to be ‘desired or required’ was said to have a likely impact upon their being funded.  However, at Dover House, such activities and therapies were on site and ‘part of the package’.  One of the community care providers stated that he was very impressed with Dover House when he visited, and evidence from the CCG was that Dover House provided the “Rolls Royce” option.    Evidence from Dover House was that NW had exposure to wider experiences than “in the insular home environment”.   

Evidence from care providers and from the CCG was that recruiting and retaining regular, consistent carers was not easy in a rural location and that this would be a particularly difficult task without using a care business.  NW’s mother had previously recruited carers using a Personal Care Budget and was confident that she could do this again.  She had struggled to recruit carers but said that this was because the CCG had stopped her from advertising.

Official Solicitor – concerns with mother-daughter bond

Before the hearing, the Official Solicitor said in her position statement that the decision about where NW should live was “a difficult, and finely balanced, decision for the court to make”.

In the absence of evidence about NW’s wishes and feelings regarding where she should live, Ms Mellon, on behalf of the Official Solicitor categorised elements of NW’s quality of life, care, and treatment into 9 discrete factors.  In this way, an attempt was made to objectively quantify, compare and contrast these factors across the two options.  These factors included activities, nursing care and contact between NW and her mother.  

One of the main issues on which this case hinged related to the suggestion by NW’s mother that if NW remained in Dover House, their bond would be “destroyed”; a factor described by Ms Mellon as “magnetic”.  

The final position of the OS was, although the issue was finely balanced, that it was in NW’s best interests to return home.  

“When we left the court for a break the OS barrister quietly spoke to me alone and told me that she was going to suggest that my daughter should be allowed to come home. Very surprising, and it was truly kind of her to let me know.”

The oral judgment

There was a short break before the oral judgment was delivered.  During the break, NW’s mother was given a single page summarising the judgment so that she knew in advance what it would be.  The decision went against her (and – somewhat unusually –  the Official Solicitor).  NW must stay in Dover House.

HHJ Tindal began by addressing NW’s mother directly.  He said, “There are few occasions in your life when you are going to disagree with someone as much as you are going to disagree with me.” 

Although he had drafted a judgment of more than 30 pages, he did not read it out. He said, “You have the right to hear the judgment from me and me talking to you, rather than me just reading it out or hiding behind an email”.  

A care package at home would have a number of advantages and a number of disadvantages, but the judge was not comfortable that this would be sustainable in the long term.  He was “gravely worried that she would not be able to access activities”.  HHJ Tindal told NW’s mother “we will have to agree to disagree.  I respect your right to disagree”.  

In his written judgement, HHJ Tindal explained that if NW returned home to her mother, he was concerned that the mother’s  difficult relationship with the CCG could make the ongoing success of any care arrangements precarious.  In the event of the home package breaking down, NW would be unlikely to have a place back at Dover House, and her most likely destination would be a care home less well-suited to her needs.

Considering her fear that the ongoing placement would destroy their relationship, HHJ Tindal said hopefully, “what I see is your relationship re-blossoming”.  He continued “given the balance of advantages and disadvantages, I wouldn’t be honest if I said that I felt that her best interests lay with you”.  

HHJ Tindal’s judgement was that NW’s best interests lay at Dover House, with transport for her mother to visit her being funded by the CCG.  He also requested that funding for her accommodation also be considered.  He also talked of ‘mediation’, suggesting that Dover House identify a single point of contact to assist in forging a better relationship between the organisation and NW’s mother.

The ‘resistance’ of NW’s mother to visiting NW at the home  reflects, says the judge:

 “… her ‘all or nothing’ perspective: either NW returns to live with her or their relationship will be ‘destroyed’. Whilst of course I accept this is not deliberate on Mum’s part, she agreed with me it did feel quite like an ‘ultimatum’”. (Judgment, 15th May 2021)

My reflections

My impression over the three days, was that much care and attention had been taken to explore all the options in some considerable detail.  NW’s mother had clearly been deeply hurt and angered by past events around the time that her daughter was taken into care, but the judge was at pains to focus very much on the future, with a “fresh approach” (this included a new representative from the CCG, since the previous hearing in November 2020).   

Representing herself as a litigant in person, I felt that NW’s mother’s voice was absolutely heard.  She was given time and freedom to express herself.  She conducted herself with great dignity and strength. Her commitment to and advocacy for the daughter who cannot speak for herself was truly awe inspiring.  HHJ Tindal educated and guided her through the legal process. He was pragmatic in his approach, and I thought he showed humility and flexibility.  

During the course of the hearing, it became apparent that the Section 21A challenge had been brought predominantly due to NW’s mother’s serious concerns about the care her daughter is receiving in her current placement.  She may have been frustrated that these concerns were given so little attention, but in the apparent absence of other evidence to support these concerns, it was difficult to see how these could have been further addressed within this forum.   

I was struck by the approach taken by the Official Solicitor of itemising, comparing, and contrasting factors relating to care and activities between the residence options.  On the one hand, how else does one consider the relative merits?  On the other, weighing the relative importance of these factors can surely not be so straightforward.  Is the unique relationship with a primary caregiver who has lived with and cared for the person for over 30 years, understands them intimately and loves them unconditionally, a tangible benefit that can be quantified?  Maybe this would have featured more prominently in court if Victoria Butler Cole had been there to represent NW’s mother.

I have observed a number of hearings in the (virtual) Court of Protection now and they have taught me so much more about the workings of the Court and the application of the Mental Capacity Act (2005) in the legal arena than any reading has done.  I learned even more about the real-life application of the law in this area by absorbing myself in a longer hearing, with subsequent access to the associated paperwork.  For instance, the final judgement explores the legal arguments and case-law relating to the rights to a private and family life (responding in full to the points raised by Victoria Butler Cole) and the associated implications in this case.  

By the end of the three-day hearing, I felt that a rapport had been forged between NW’s mother and HHJ Tindal.  He told her that the job that she had done in looking after NW was “nothing short of astonishing”, that he believed her to be an “inspirational person, “heroic” in her care of NW,  and “one of the most fascinating people I’ve ever met”.  

During his summing up, HHJ Tindal considered whether any review hearings might be required, NW’s mother said,“I’m never coming here again!”. HHJ Tindal explained that he had confidence that she had “the wherewithal and ability” to raise any future concerns and that “she knows where we are”.

I really hope that NW’s mother – despite her profound disagreement with the judgment – will, as the judge suggests, visit her daughter regularly as everyone now seems to want to make possible – enabling her to have what the judge described as “the best of both worlds” – all the facilities of the care home, and the love and attention of her mother.  “I would urge Mum to work as hard as ever to do her best for NW.  Mum told me more than once NW is here for a reason.  I know Mum will always love and support her in that.”

Dr Katharine Shipley is a Clinical Psychologist who has worked for most of her career in forensic mental health and adult neurodevelopmental NHS services.  She now works in private practice and has been a Court of Protection Special Visitor since 2017, conducting mental capacity assessments for the Office of the Public Guardian and the Court of Protection.  She tweets at @KatharineShipl2


[1] Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWJHC 2278 (Fam) per Munby J and London Borough of Hillingdon v Neary & Anor [2011] EWCOP 1377 per Peter Jackson J

Photo by Muhammad Murtaza Ghani on Unsplash

“An onlooker at someone else’s social event”: A mother’s experience of the court

By Anonymous, 7th June 2021

Editorial note (Celia Kitzinger):  It is a great privilege, as co-director of the Open Justice Court of Protection Project, to find that families caught up in the Court of Protection sometimes contact us  – asking whether we can arrange for someone to observe an upcoming hearing, or simply wanting to make sure their story is heard.  This blog is written by a mother who was in touch after I observed (a small part of) a hearing at which she was a litigant in person.  In conversation, I asked how the experience of being a litigant in person compared with a previous hearing, seven months earlier (November 2020) when she’d had legal representation.  She told me she had already written an account of that experience shortly after the earlier hearing. She’d circulated it among her friends, but not sent it to lawyers or to the judge.  When I read it, I was very troubled by how alienated she felt from the whole hearing, and how  – despite having legal representation – she had understood very little about what was going on. I asked for permission to publish it (lightly edited to maintain confidentiality in line with the requirements of the transparency order, and with a new opening paragraph) because her account bears witness to some of the challenges the court poses for families of protected parties.  The subsequent hearing,  in May 2021, was a hybrid hearing at which there were several public observers, including Katharine Shipley who wrote a blog about it, including what this mother told me about her experience of that later hearing.

This is a factual account of my experience of the Court of Protection in November 2020 as it was for me. Being involved in court is very strange – nothing like this has happened before.  I gave up work when I had my children but I trained as a nursery nurse and worked in a children’s home for a time. 

I have written this anonymously because I have a transparency order saying I cannot write under my name – although I have no secrets and nothing to hide, and my daughter is unaware and cannot be hurt by publicity.  I would prefer to use my own name, and my daughter’s name, but I cannot.  To learn that a ‘transparency  order’ actually  means enforced lack of transparency is preposterous.  

It was the second hearing about my daughter, Lillian (not her real name) who has profound learning disabilities.  She was taken into temporary respite care in 2017 when I had to be admitted to hospital, but has not been allowed to return home – for nearly three years at the time of this hearing.  So I applied to the Court of Protection to try to get her back home.

The first hearing was in 2019. On that occasion I sat alone all day with my solicitor in a waiting area.  The lady barrister I had then kept coming back and forth across a crowded area to see me.  Then we were shown into court for about 10-15 minutes or so in the afternoon and my barrister stood up and gave a few people’s names –  after which we all left the court and went home.  There was a group of strangers in court who I did not know. I did not understand what was happening then, and I do not understand what was happening at the next hearing, a year later (or why there had to be two hearings). 

The November 2020 hearing was supposed to be over three-days, but only the first day happened. I found the whole experience to be very unsettling. I am deliberately not making criticism or expressing opinions about what happened,  as I have never been to court before they took Lillian,  and so have nothing to compare it with. Was my experience unusual? I don’t know. 

I did rather feel that I was an onlooker at someone else’s social event – but maybe that it always how it is.  

Meeting my legal aid barrister

I was asked to arrive in the court building for 10.00am to meet the barrister who was representing me.   We had once spoken by telephone some months ago and he was a different barrister from the one in 2019.  My original solicitor had left the practice and was replaced by another who did not attend the court.  

I arrived at 9.30 and was shown to a waiting area.  He came straight to me when he arrived, and we went to a side room with a large window and light blinds for some privacy.  He shut the door for the same reason.  We agreed to take off our masks and sit at distant ends of a long table.  The barrister was actually extremely pleasant to me and seemed to be very supportive of me.  He asked me  some questions he wished to clarify about Lillian.

Other people were coming and going outside the window all day long and soon there was a tap on the door, he stood up to open it, put his mask on, and spoke to them.  Some people went into the adjoining room beside us.  They were part of our court hearing.  We continued to talk about the issues concerning Lillian and more interruptions followed.  Every time he had to grab and use his mask, stand up and open the door.  Sometimes he went out into the waiting area to talk.  

Gradually he was gone for longer periods and was out of sight of the window.  One time he came back and said he had met the judge and was very impressed by his attitude to our case.  I had the impression there had been a meeting of several of them.  

Two ladies came to the door to see me one time when he returned and he told me they were acting for Lillian.  

My barrister started to give me advice about issues to do with the court case and the way he felt the judge would be thinking.  He was persuading me to accept certain matters in order to make progress.  I believe he was spending time in the adjoining room with Lillian’s legal team, and he was telling me that they were willing to be accommodating.  At one point he was telling me how greatly impressed he was with the judge and the way the judge was thinking.  I am not sure exactly when that was as the barrister was leaping up, down and leaving so often.  I just sat there.

At one point he said we were due in court at 1.00pm.

Nearing 1.00pm he said that he was desperate for a sandwich as he had been up since 6.00am and asked if he could get me anything.  I said no thank you and he dashed off. I have no idea where he had to go for that.  Not seeing the sandwich being eaten I don’t know if he ever got one; but I became aware that he might be in the room next door with the other legal team. It was well after 1.00pm when he came back to talk to me.  Then another call at the door and this time he seemed to be called urgently and rushed off.  

He was gone for quite a while and when he came back, he was telling me the judge wanted to make plans about me visiting Lillian and arrangements were being made between everybody, and there would be another hearing.  

I asked when we would be going into court and he told me that it had happened and was all over.  I was shocked.

Afterwards

He then asked if I wanted to talk to the care manager of my daughter’s care home. I don’t know what she was doing there or what she was doing in court. I did not, but I said yes.  She very smoothly talked at length about my concerns and how they wanted to deal with my concerns and how they understood my concerns. No mention of Lillian.  I stayed silent.  I don’t need to be told about my concerns.  When she stopped, she asked me ‘did I have any thoughts?’  I just looked at her.  As she waited, I said ‘I am here for a court hearing, not for having any thoughts.’  Then I told her that she needed to sort out Lillian’s spectacles and her long delayed blood test.  I told her I expect those two demands should be met.  Then she left the room.

Towards 4.00pm my barrister asked me if I would like to go home.  Surprised I said that surely, I was expected to stay all the time?  He told me they were waiting for ‘the court’ to tell what would happen tomorrow and they were preparing documents.  I asked what he meant about tomorrow.  He said that the court case was all over and I may not have to attend the next day. On that day one of my care assistants was meant to attend the court and had been in contact with the solicitor.  I asked what about her and he said that she probably would not be required.  I was stunned and said I must text her right away because she had taken a day’s leave to attend and would be preparing.  I did so in front of him.  

He spent some more time in the other room then came to tell me all was finished; I would not be attending the next day and they were waiting for a document and then some printing.  He started to pack his bag, showed me the confusing way out of the building and then ran to get his train.

I had sat on that chair from 10.30am until 4.30pm and had not even stood up in that time!  

I don’t understand what was decided at the hearing.  I did not get anything like a bit of paper saying “This is what was decided at your court hearing”.  I don’t understand why there is another hearing planned for next year.  Throughout these months  between now and the next hearing my belief is that Lillian is not being given the care that she needs and is not being protected. I just want my daughter to come home.

Concluding Note (Celia Kitzinger)

After reading this account of the earlier hearing, I looked through the court documents to which I’d been given access (as an observer at the May 2021 hearing) to see if I could learn more about what happened. I discovered an account in the Position Statement provided by the CCG for the hearing on 10-12 May 2021.  Lillian’s mother had also been provided with this Position Statement as part of the whole court Bundle which she was sent as a litigant in person – but of course this constitutes an overwhelming amount of paperwork in complex legal language. Here’s what it says:

The Official Solicitor’s statement for the May 2021 hearing adds the following concerning the November 2020 hearing:

I have shared this account of what happened that day with Lillian’s mother. She wrote back:

“The barrister did tell me the general idea that the judge presumed that visits to my daughter by me would be automatically of value. But that was when I presumed we had not yet been ‘in court,’ and I would be able to answer and explain to the judge why such theories may not apply to her.  Even then the barrister was also bouncing between the rooms and the other lawyers etc. so there was no real conversation.  And that still ignores the basic fact that decisions were being made by outsiders without listening to and questioning me as Lillian’s mother.”

It is easy, in my experience for lawyers to over-estimate how much members of the public understand of what is happening in court about matters that intimately concern them and their families. The language and processes are part of lawyers’ everyday work but alien to the rest of us – and can be especially hard to make sense of when we are anxious and under stress.

To find out what happened at the third and final hearing, read the blog post by Katharine Shipley.

Photo by Sam Moqadam on Unsplash

My midwife heart weeps: Opinion on a court-ordered hospital birth

By Kathryn Gutteridge, 4th June 2021

For a moment I thought I was reading about a maternity case that occurred last century or certainly in some far-away country where women’s rights are not acknowledged.  But no, it is England in 2021.  It was not so far a departure from the Handmaid’s Tale and that era of womanhood is long gone – or is it?

I am writing this as a midwife of many years and as an experienced psychotherapist who has worked within the NHS maternity services all of my long career. I am also the founder of SANCTUM Midwives, a pregnancy care centre that supports, educates and campaigns in respect of women who have experienced sexual abuse in their lifetime. 

Over the course of my professional career, I have seen and implemented the development of sensitive and woman-focused pathways and guidance that has recognised that personalised care is the optimum model for childbearing. Many years ago, I witnessed liberal use of sedatives in childbirth and practices that were crude and by and large unevidenced.  I hardly thought that I would see the use of brute force lawfully sanctioned to compel this woman (and, previously, in a very similar case, the woman in a Court of Protection hearing in March 2021) to experience treatment determined for them, and not by them.

Judging whether someone has ‘capacity’ to make decisions is burdened with bias.  In my practice and experience,  mental capacity is ever-changing and not knowing either of these women I make no judgement about the assessment and finding of lack of capacity.  However, the basic principles of the Mental Capacity Act 2005 are clear.

I am somewhat concerned that both these women may have been assessed as lacking capacity to fit the predetermined desired outcome of bringing them into hospital against their will.

Reading the judgment from Mr Justice Holman, I was angry beyond words.  It should never have been brought to a court of law.  In my experience and that of many Perinatal Mental Health Midwives (who’ve described their experience in another blog here),  women who present with a range of anxiety-based disorders are best cared for in a relationship-based model of care, which incidentally these midwives are skilled to offer. In abundance.  

This anxiety-based diagnosis is manageable by therapy and sometimes medication to control the anxiety triggers. I know I have worked with many women with these kinds of diagnoses.  I could not find in the judgment any recommendation of therapy for this woman apart from prescribing a strong sedative (Lorazepam 2mgs) prior to leaving home in suspected labour.  There is no record here either of the benefit of a trusting relationship with her midwife as recognised in the National Maternity Review,  Better Births.

Home birth today is an established and safe option for women who are pregnant – it’s even, in some cases, the most appropriate place for birth to occur.  I note that two medical professionals gave expert opinion to the judiciary:  Professor James Walker (retired obstetrician) and Dr Glover (a psychiatrist instructed by the Official Solicitor, acting for the pregnant woman).  Where is the expert opinion from a midwife?  I assume in delivery of antenatal care thus far a midwife or midwives have visited the home to establish antenatal care and to assess maternal and fetal wellbeing.  Surely the opinion of an experienced midwife in this field could have given some weight to the argument for a home birth or at least some decision about an alternative place to birth such as a midwifery unit within the hospital.  In my practice this has usually been a realistic and safe option where women have requested alternative place of birth.  Surely this would have given this women a less stressful environment where her labours would have been supported by midwives skilled in this area of care.

This is patriarchal medicine and law at its worst and in complete collusion with each other This woman has  been subjected to compulsory (sedated) attendance in hospital in the name of maternity care.  A concern with the foetus’s well-being (despite the fact that the foetus has no rights until born within our legal system) seems to have surreptitiously influenced the judge’s decision  in this case. 

What the judge has done here is to create a precedent that any woman who has an anxiety disorder and requests birth outside of the regular menu of choice may be subjected to strong-arm maternity care – or may fear it, even if in fact the legal process is never instituted.  For many women the impact of these experiences during their pregnancy care and birth will cause deep and long-standing trauma.  Obstetric violence is a familiar term to me and I am careful in my use of this phrase.  However, I cannot think of a better description to illustrate what has happened here in the UK in 2021. 

 It fills me with deep sadness that these cases have been dealt with in this way, when a gentle and knowledgeable midwife, skilled in relationship-based care,  might have achieved a different outcome.   

Instead, we have birth by court-order and the annihilation of vulnerable women’s childbearing rights.  

My midwife heart weeps.

Dr Kathryn Gutteridge is a Consultant Midwife & Clinical Psychotherapist. This opinion piece reflects her own views in her capacity as a midwife. She tweets @Sanctummid

Image by Steve Johnson on Unsplash

“Not nothing”? The Late Term Foetus in the Court of Protection

By Mary Neal, 3rd June 2021

Whatever else it may be a 36-week foetus is not nothing: if viable it is not lifeless and it is certainly human.’ (St George’s NHS Healthcare Trust v S [1998] 3 WLR 936 at 957 per Judge LJ.)

Introduction

In the recent case of A NHS Foundation Trust v An Expectant Mother [2021] EWCOP 33 (hereafter, ‘An Expectant Mother’), the Court of Protection (COP) was asked to give authority for a pregnant woman with severe (‘longstanding and deep seated’) agoraphobia to be transported to hospital for a planned delivery (using restraint if need be), notwithstanding her stated wish for a vaginal birth at home. As is now well-known, Holman J made the requested declaration, having determined that the woman lacked capacity to refuse because her agoraphobia prevented her from weighing relevant information and using it to reach a decision. As is also now known, the woman subsequently travelled to hospital without the need for restraint, and her healthy baby boy was born there, apparently naturally.

There have been numerous responses to the case published on the Open Justice Court of Protection blog (and elsewhere), written from a range of perspectives and focusing on the case’s central themes: mental capacity; best interests; phobias; paternalism and compulsion around childbirth (‘obstetric violence’). In this comment, I take the case as a starting point for reflecting on the COP’s engagement with the late-term foetus.

The status of the foetus in UK medical law 

It is well-established in UK law that the foetus – at any stage of gestation – is not a legal person, nor a locus of independent justiciable rights or interests. As Sir George Baker noted in Paton v British Pregnancy Advisory Service Trustees [1979] QB 276, ‘[t]he foetus cannot, in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother. That permeates the whole of the civil law of this country.’

This position has been reaffirmed in medical law cases involving the right to refuse a c-section. In MB (An Adult: Medical Treatment) [1997] EWCA Civ 3093, Butler-Sloss LJ noted that [t]he foetus up to the moment of birth does not have any separate interests capable of being taken into account when a court has to consider an application for a declaration in respect of a caesarean section operation.’ (para. 60, emphasis added)

This was echoed the following year in St George’s NHS Healthcare Trust v S [1998] 3 WLR 936, with Judge LJ observing that ‘while pregnancy increases the personal responsibilities of a woman it does not diminish her entitlement to decide whether or not to undergo medical treatment…Her right is not reduced or diminished merely because her decision to exercise it may appear morally repugnant.’ (para. 957)

Judge LJ was clear that ‘the perceived needs of the foetus did not provide the necessary justification’ for overriding S’s capacitous refusal to consent to a caesarean. 

Court of Protection jurisprudence

The principle that the foetus has no separate legal existence applies equally, and has been reaffirmed repeatedly, in the COP (see, for example, Guys and St Thomas’ NHS Foundation Trust v R [2020] EWCOP 4; The Mental Health Trust and Anor v DD [2014] EWCOP 11). In the COP, however, medical treatment cases involve assessing the best interests of the party (P) whose capacity is in question, and where that party is pregnant, ‘the delivery of her healthy unborn baby will be an intrinsic factor’ in the best interests assessment (Guys and St Thomas’ NHS Foundation Trust v R [2020] EWCOP 4 at para. 62, per Hayden J.)

The health and safety of the foetus merits consideration in these COP cases, then, albeit indirectly, and Holman J did consider it in An Expectant Mother:

Using a BAILII database search, I found 14 reports of COP cases involving requests to authorise birth plans (most involved authorising c-section). In all 14, the authorisation was granted. In eight (including An Expectant Mother, which authorised transportation to hospital but acknowledged that P retained capacity to consent to or to refuse c-section), P’s known or presumed wish for the child to be delivered safely was cited as a factor in P’s best interests. In all 14 cases, however, what was authorised was also deemed necessary for P’s own safety, meaning that the wellbeing of the foetus was never the deciding factor.

Logically, for foetal wellbeing to figure at all, it must be possible to know or presume that the foetus is positively valued by P. Hayden J is undoubtedly correct in his carefully-worded observation that it will rarely be the case…that P’s best interests will be promoted by permitting the death of, or brain injury to, an otherwise viable and healthy foetus.’ (Guys and St Thomas’ NHS Foundation Trust v R [2020] EWCOP 4 at 63) Nevertheless, it is possible to imagine a case in which evidence of P’s attitude to the pregnancy would make any consideration of foetal wellbeing under the auspices of P’s best interests, in Alex Ruck-Keene’s phrase, ‘a misleading legal fiction’.

It is interesting to reflect on what would happen if the Court were asked to authorise a birth plan in a case where the risk of not doing so was primarily to the foetus, not to P, and there was evidence of the latter’s indifference or hostility to the former (e.g. an attitude like that of S in the St George’s case, who had said that in her view ‘it would be better for the baby to be dead’). Hayden J has expressed the view that, although a capacitous patient may exercise her autonomy in a way that ‘jeopardise[s] the life and welfare of her foetus’, the COP does not have ‘the same latitude’ to do so when it is the decision-maker. Again, however, this was said in the context of foetal wellbeing fitting within the rubric of P’s best interests. What might happen when the evidence does not support this, or even seems to contradict it? 

Among the COP cases I found, there are a few in which P’s attitude to the foetus appears ambivalent, or cannot be gleaned from the text of the judgment (often, in these cases, P is seriously mentally ill or has serious learning disabilities – see, e.g., A London NHS Trust v KB & Anor [2020] EWCOP 59NHS Trust v JP [2019] EWCOP 23Re CA (Natural Delivery or Caesarean Section) [2016] EWCOP 51Royal Free NHS Foundation Trust v AB [2014] EWCOP 50). In these cases, judges tend to make no mention of the significance of foetal wellbeing for P’s best interests. The case that seems to come closest to Ruck-Keene’s ‘legal fiction’ is the case of The Mental Health Trust and Anor v DD [2014] EWCOP 11. In that case Cobb J noted, citing MB, that ‘[it] must be in the best interests of any woman carrying a full-term child whom she wants to be born alive and healthy that such a result should if possible be achieved’ and that accordingly ‘it is plainly in DD’s best interests (both physically and mentally) that her baby is born alive, healthy and safely’ (para. 97) However, I was unable to find any evidence in the case report that DD – who had ‘an extraordinary and complex obstetric history’ (five previous pregnancies with numerous complications, and five children permanently removed from her care) did actively want her child to be born alive and healthy. Unless there is additional evidence not presented in the text of the decision, this seems like a case where the presumption is doing a lot of work.

Conclusion

The right of a capacitous pregnant person to make their own medical decisions unfettered by any consideration for the life or health of the foetus they carry has been enshrined unequivocally in UK law. As Judge LJ emphasised in the Court of Appeal in St George’s NHS Trust v S, pregnancy does not reduce a competent patient’s right to make decisions about their medical treatment, and a capacitous pregnant patient therefore has the right to make a medical decision that might cause death or serious injury to the foetus, however repugnant such a decision might seem to onlookers. It was held in St George’s that – who professed to be indifferent to the wellbeing and fate of her late term foetus – ought to have been allowed to make such a decision. Arguably, however, it is easy to say this in retrospect, and the real test of the principle would be a judge delivering a prospective judgment that enabled a pregnant person to decide in such a way. 

The foetus’s lack of separate interests or rights, even in the very latest stages of pregnancy, has also been repeatedly affirmed in the recent jurisprudence of the COP. However, when a pregnant patient lacks capacity, and a ‘best interests’ assessment is being undertaken, the default position seems to be that P’s best interests will almost always be served by protecting the life and health of the foetus (where this does not risk P’s own life or physical health). 

As such, the foetus of a pregnant person who lacks capacity might be said to enjoy a kind of legal status, not as anything of value in its own right, but insofar as it is known, or presumed, to matter to P. As a valued child-to-be, it wins a place in the consideration of P’s own best interests, despite lacking any legal interests of its own.  

Nevertheless, as far as the law is concerned, the late term foetus is – despite Lord Judge’s famous dictum – ‘nothing’ meriting consideration in itself, and it remains to be seen what the result would be if a case came before the COP in which there was evidence that, rather than positively valuing the late-term foetus, P was indifferent or even hostile to it. Presumably, the right legal approach in such a situation would be to disregard the health and safety of the late-term foetus, perhaps obliging a judge, in Alex Ruck-Keene’s words, to ‘endorse a plan which could lead to the death of a viable baby’. To navigate such a case would surely prove very challenging, even for a court as expert in making best interests assessments as the COP. 

Mary Neal is Reader in Law at the University of Strathclyde. She tweets @maryfordneal

Image by Heather Mount at Unsplash

“I have agoraphobia and I had a home birth”

By Michelle Bromley-Hesketh, 28th May 2021

Editorial note (Celia Kitzinger):  I contacted Michelle Bromley-Hesketh after she posted several tweets about the judgment by Holman J, as reported in the press and covered by my blog post.  She said it made her “very angry”, and she was concerned that pregnant women reading about the case – especially those with mental illnesses – would fear being coerced into hospital. 

She also tweeted about her own experience.

So, I asked Michelle – who is now a doula and counsellor/psychotherapist – to describe her own experience of choosing a home birth in the context of agoraphobia.  Her youngest son was born at home  in April 2013.  This is her story.  Michelle hopes it will inspire other women with mental illness to know that a home birth is possible – and that it can be (as it was for her) an empowering and healing experience.  

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My most important message is this:  It’s possible to be agoraphobic (or to have a mental illness of another kind) and still have capacity to make your own decisions about how you want to give birth.  You can still choose a home birth – and it can be wonderful.  I know, because I did this.  

I have had agoraphobia since the birth of my first child, in hospital in 2005, when I had severe post-natal depression and developed a fear of hospitals.  I can now actually go into hospitals if it’s for treatment for my children, or other people, but when it’s for me I get all the symptoms – panic, heart racing, sweaty, breathing difficulties. In an emergency situation I will be okay, but planned trips for my care can fill me with dread. But even at the height of my agoraphobia, emergency situations wouldn’t faze me. 

I wanted to have my second child (in 2007) at home but at that time I believed (without looking at the research) that hospital was safer.  She was born really quickly and I had a sense of  holding the baby in to get to hospital in time to give birth there, and then her shoulders got stuck and had to be freed.  I just thought, “I don’t want to do that again!”.  It was a huge amount of anxiety.

My third  pregnancy in 2013 was a complete shock. I thought my family was complete with the two children I already had. I was in a new relationship and we definitely were not planning to have any children between us.  By this time, I had begun training as a doula and I knew that home birth could be safe.  I’d done my research and I knew I wanted to birth at home.

I was told that medically it “wasn’t advisable” – partly because I’d refused a lot of antenatal care during pregnancy and I hadn’t had any blood tests except for one finger-prick iron test.  I got some very good therapy during pregnancy that enabled me to have that one blood test.

I also went to 43 weeks (by my dates) – but the scan from the hospital put my dates back 2 whole weeks, which gave me breathing time for NHS induction protocol to kick in.  By their dates, I went into labour at 41 weeks.  I wasn’t worried.  I knew what I was doing.

There was a large element of agoraphobia in my decision to give birth at home, but I am confident that I’d have gone into hospital if there had been an emergency.

I definitely feel I had the mental capacity to make the decision to have a home birth.  When I was preparing for this home birth, I read lots of information and weighed up the pros and cons of home versus hospital, taking into account all the relevant factors, but especially considering that home birth would be safe, that I could transfer in an emergency, and that my agoraphobia and fear of hospitals would mean that home birth would be a much better experience for me.  I didn’t want the trauma and the panic.  A big driver for deciding on a home birth was that I would feel that I was in a safe space, that I would be the person in control: midwives would be guests coming into my space where I hold the power.  

My decision to give birth at home was far more informed and considered than my earlier decisions to give birth in hospital were.  Back then I didn’t really weigh up any information about home vs. hospital – I just assumed that hospital was safer.  It was an uninformed choice: I was going along with what was expected.

I did experience some degree of coercion with my home birth.  I was told that I would die or my baby would die – and that’s very scary, especially if you’re already fearful and anxious.  Some people treated me like a naughty child.  Others treated me as if I had three heads.

The birth

The birth was a healing experience. I trusted myself and my body more than I’ve ever done before or since. 

The midwife, Lynn, introduced herself, asked questions about what I wanted to happen and worked with me beautifully.  We called my parents to come and keep an eye on the older two children,  so we could concentrate on me and the new baby.

I had a birthing  pool (it took my partner 2 hours to fill it up) but thought, ” hmm I feel comfy enough doing what I’m doing” and the thought of getting a contraction with one leg in one leg out put me off so I decided to not get in. 

Much of my labour I was on my knees on the settee with my face planted into a pillow on the back of the settee, with my partner rubbing my back.  My mum just sat quietly watching in the corner, which felt empowering. She seemed calm and just a “mother/ women” energy. Something quite ancient and primal. She has since said that it was an empowering experience for her too.

I began howling and growling, swore a little too, but was inward and imagining thing moving and opening. My dad, who was upstairs throughout, said my sounds were very different to those my mum made and were very animalistic and primal.

My baby descended. I hardly pushed. Waters now popped. (First time this has happened naturally in my births). I had a panicky moment which I think was me actually realising I was having a baby in next minute and requested gas and air for the first time. The midwife went to retrieve it from her car. I had one slight puff, which was definitely a psychological thing and my  baby came out!  I felt the familiar “flop” feeling and he’d landed on the settee – at 4:13am on 23rd April 2013 weighing 8lb 9oz (he wasn’t weighed until an hour later).  I turned over and picked him up and immediately he reached for the breast and we stayed there for ages!  The moment felt wonderful and magical and very healing and cleansing even though I had NO idea I needed healing/cleansing. Wonderful!

I will never forget the experience. Amazing, magical, wonderful. I truly felt like a goddess for months afterwards. The high wouldn’t leave and when I think about it, I still smile and feel all tingly!

Reflections 

It’s hard to make decisions that other people think are “unwise” – especially then they threaten you with death and serious injury.  But I have learnt so much more about childbirth since my hospital births, and it was this knowledge that supported me in making my choices.  Knowledge really is power!

Although my baby breastfed immediately after birth, he didn’t feed again for more than 14 hours.  I myself had no concerns – he was full of mucus and just needed some time.  But the midwives wanted me to go into hospital to get him examined.  I said “You want me to go to hospital with my 14-hour old baby?  Dream on!” They said I was putting my baby at risk.  They said they might need to ring social services and get the duty social worker to come if I refused to go to hospital.  Then the GP turned up – but by the time they showed him into the house I had my baby feeding at my breast.  If I hadn’t been knowledgeable, at that point I’d have been whisked into hospital for no reason.  

On my medical records on the computer, when the GP opens them, there’s a red flag that says “history of Severe Mental Illness” – that’s my depression, anxiety and agoraphobia.  That makes health professionals feel concerned and then they try to control what you do.

I still believe I could have coped with an emergency transfer, because I would have accepted the need for it.  But to be forced into hospital by punitive people who think they know better than me, without any emergency, before I was even in labour – that would have been awful.

If anyone had insisted that I must give birth in hospital and be admitted before my due date  – as happened to the poor woman in the court case recently – I think I would have run away.  I would have not told anyone when I went into labour. I would have given birth on my own without any health care professionals in attendance, rather than be forced into hospital – and of course that’s much more dangerous than a planned home birth with midwives.  The only way they could have got me into hospital would have been to sedate me and force me.  My phobias and panic would have been through the roof and the whole experience would have had  a long-term negative impact on me as a woman and mother and would have exaggerated my agoraphobia.

I know that a lot of women will be scared and anxious by the media reports of this case.  I want to reach out to them and say that having agoraphobia, or tokophobia, or any other kind of mental illness, doesn’t automatically strip you of the right to make your own choices.  They have to prove that you lack capacity to make your own decisions about childbirth – they can’t just assume it because of your diagnosis.  

There is support out there if you need it from the childbirth organisations (listed below) who understand the importance of listening to women and empowering them to give birth in the way that is best for them.

Michelle Bromley-Hesketh is founder of Snowdrop Doula Community Interest Company, a mother of three, a doula and counsellor/psychotherapist.  Michelle’s interests and expertise are in perinatal mental health, trauma and complex needs, and informed choice. She tweets @michellebee34. 

Other organisations that can help

Association for Improvements in the Maternity Services (AIMS)

Birthrights

National Childbirth Trust

Image credit: Jodi Hall Photography

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