Discharge from hospital: Light at the end of a very long tunnel

Daniel Clark, 10th March 2023 – with new update by Celia Kitzinger about the emergency hearing on 16th March 2023 (added at end of blog post)

This hearing (COP 14036761, before Mrs Justice Theis) was scheduled to begin at 10:30am on Monday 6th March, 2023. However, the Judge was engaged with an urgent matter and so the hearing actually began just before 11:45.

At the centre of this case is a young woman who has been detained under Section 2 of the Mental Health Act (1983). This case has been blogged about twice. In the first hearing, which I did not attend, the Trust where she was receiving her care (“the discharging Trust”) had decided that she was not eligible to be detained under Section 3 of the Mental Health Act (1983). Celia Kitzinger, who observed this hearing, reported that it seemed a safe discharge was on the horizon. 

At the second hearing, which I observed but could not blog about due to work pressures (the blog post is again by Celia Kitzinger), it was clear that the discharge plans had gone awry. The day before the hearing, the discharging Trust, and “the receiving Trust” found themselves in irreconcilable disagreement. The discharging Trust found that P did not meet the criteria for detention under Section 3 of the Mental Health Act, whereas the receiving Trust found that she did, and that discharge into the community would be likely to cause her harm. As no placement could be found at such short notice, the ICB were asking for the Court to authorise P’s deprivation of liberty in the hospital setting whilst a care package could be found. 

At the hearing on 6th March 20223, which was held via MS Teams, the people present were: 

  • Katie Scott, of 39 Essex Chambers, for the Applicant, the Integrated Care Board
  • Benjamin Harrison, of Serjeants’ Inn Chambers, representing P via the Official Solicitor
  • Avril Rushe, of No5 Barristers Chambers, representing the NHS Trust currently providing care for P (“the discharging Trust”)
  • Olivia Kirkbride, also of Serjeants’ Inn Chambers, representing the NHS Trust who will eventually take responsibility for P’s care (“the receiving Trust”)
  • P, with her solicitor
  • P’s current psychiatrist, and the psychiatrist’s registrar
  • P’s social worker            

It was a relief to hear that positive steps have been taken to ensure that P can soon be discharged from hospital. 

Open Justice

At the beginning of this hearing, Counsel for the ICB gave a brief but detailed opening case summary, including what had changed since the last hearing. Even though I had observed the previous hearing, and was the only observer, there was no way for Counsel to know this, and I was grateful for the summary. 

It’s a matter of open justice that hearings begin with a clear explanation of the situation both past and present, so that observers can follow what follows. Without it, observers could have so little information that they would not be able to accurately report the hearings. This, in turn, would make the Court of Protection more opaque than transparent. 

P’s presence at the hearing

P was present at this hearing but had not been at the previous hearing. Before going any further, Mrs Justice Theis took the time to ensure that Counsel for the Official Solicitor was in contact with P’s solicitor. This was so P could ask for a break, or indeed express any other needs that she may have.

The Judge also asked how P would prefer to be referred to: either by her first name, or as Miss X, or in any other way. I thought that this was a very positive touch, and that it demonstrated a keenness to ensure that P’s wishes and feelings were at the centre of the hearing. I will return to the way in which P’s wishes and feelings were clearly of central importance to the Judge, and it was nice to see the way in which the Court provided a platform for them.

The care package 

Counsel for the Integrated Care Board, in opening, explained that the issue before the Court is “future treatment and care within the options available”. The two options were either for P to remain in hospital or to go to accommodation in the community with a “significant” care package in place. What made this hearing initially easy to follow was that all the parties had agreed that a care package within the community is in P’s best interests. This accommodation has been found, and “the sensory lights have been installed, [the placement] has anti-ligature bedding, and [the placement] has the PBS [Positive Behavioural Support] plan”. 

The ICB have also commissioned a private company to provide care with 5 members of staff present, “albeit with only three staff engaging at any one time, with the other two available should there be a crisis or emergency”. This is consistent with P’s support in hospital, where she has been supported on a 3:1 basis. I must admit that I did wonder how the care company will be able to sustain this, given the well documented crisis in recruitment and retention in the care sector. I hope there is some type of contingency plan should these staffing levels be difficult to maintain. 

In the event of an emergency that cannot be safely managed at home, Counsel for the Receiving Trust explained that they will “provide a place of safety for P”. This could include facilitation of a Mental Health Act assessment or “steps [that are] taken under Section 136”. However, whilst in this current accommodation, the Discharging Trust (who currently care for her in hospital) will be providing her support under the previously identified specialist pathway. At the end of the initial 6 months of living in the community, it is expected that the Receiving Trust will accept the referral into their care.

Counsel for the Official Solicitor explained that, “[P] wants to give [the placement] a go and would like to go and see it, if at all possible, rather than just photographs”. The Judge clearly thought this was important, and returned to this at the end of the hearing, saying “that’s something that the Court really wants to happen”. She also expressed her gratitude that P could attend the hearing, because “it was useful to see what everyone is doing” to ensure she has the best possible care. Given the delays over the last month, I’m sure it was a relief to hear directly that things were moving along in a positive direction. 

An incident

I was very disturbed by one aspect of this hearing. It became clear quite early on that an incident had taken place at the start of this month which resulted in P being physically restrained. However, there was confusion about how many people were actually involved in this restraint. 

Counsel for the ICB said that “some reports say six people, some reports say four people”. It was clear that nobody was any the wiser. Only Counsel for the Discharging Trust seemed to have some sort of idea: she reported that her most recent understanding was that four people restrained P, and a further two people were in the room. Either way, a report about this incident is to be submitted to the Court by the end of the week. 

I find it unacceptable that there should be such confusion about how many people were involved in a restraint (to be clear, it seemed to me that this confusion was created by the ward staff rather than Counsel themselves). As I have written for this blog before, I have been involved in physical restraint. It’s a physically and emotionally demanding time for all involved, but especially demanding for the person who is being restrained. It is our duty to never lose sight of that. 

Part of that duty is ensuring that the details of the restraint are factually reported, in great detail. One of the reasons for this is so that another person reading the subsequent report can scrutinise what happened, and consider what could have been done differently. It also acts as a safeguard for the person, ensuring the cause of any harm (physical or psychological) can be identified. 

The information necessary is myriad but includes: the full names of those involved, the position of those involved (i.e. who held what arm in what way), what was said to the person, how long the restraint lasted, and what aftercare (including debriefs) was given to both the person and staff involved. You’d expect, as an absolute bare minimum, to know how many people were involved. 

I therefore cannot envisage a situation in which there would be so much confusion about how many people restrained somebody. At the time of the hearing, almost six days had passed since this incident. In my opinion, it should have been crystal clear (at the very least) how many people had been involved. Counsel for the ICB did explain that this has been identified as a potential Serious Incident, and is being investigated. 

Going Forward

There are some fine details to be sorted out before P can return to the community. First, there was some confusion about a section of the original Order which ‘gave’ the police the powers to return P to hospital. The Judge was confused by this, stating that it is not for the Court to grant the police powers. However, Counsel for the Official Solicitor stated that the police sometimes ask for this as “it isn’t covered by their usual powers” – their usual powers being detention under Section 136 of the Mental Health Act or to prevent criminal offences being committed. The Judge asked for Counsel to find out what the police want, and whether they still want this, ahead of the next hearing. 

Second, there was some discussion about how P might be transferred should she experience a crisis (short of an emergency). The care provider who will be supporting her in the community do not have a secure transport service, and so there is still a question of how P could go from her accommodation to a Centre that can provide support. This issue needs to be resolved by the next hearing.

Finally, it was acknowledged that the Official Solicitor is concerned the initial referral to the receiving Trust would never have been successful because P was “unstable”. The OS wants to know what the discharging Trust thinks about the receiving Trust’s policy. In response, the Judge stated that while “there is a difference between the two main professionals…there is nothing I can do about that”. However, the fact remains that “the Court was having to go from hearing to hearing without knowing what was going on. The focus of the Court is what is best for P” and any judgment will only be able to “recognise this situation and say it hopes it does not happen again”.

At the last hearing, the Judge had asked for a submission on how this situation had been reached, and how it can be avoided in the future. Such a statement had not been produced at the time of this hearing, and Counsel for the Trusts had some disagreement about who would be most appropriate to provide this. Naturally, this Judge wants this issue to be resolved. 

I believe that it is very important work is done to ensure a situation like this does not happen again, where competing opinions and policies prevent a young person receiving the next step of support in a timely manner. Hopefully, this situation can contribute to vital lessons to not only these two Trusts but all Trusts.

This case will return to Court on Monday, 20th March, at 09:30, at which point all finalised plans will have been submitted to the Court. In the meantime, P will remain in hospital under a deprivation of liberty.

Daniel Clark is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research takes seriously Iris Marion Young’s claim that older people are an oppressed social group, and is funded by WRoCAH. He also works as an healthcare assistant in the NHS. He tweets @DanielClark132.


By Celia Kitzinger

There was an urgent hearing before Theis J at 9.30am on 16th March 2023 – the Thursday before the hoped-for hearing on the following Monday at which the parties would invite the judge to approve an order for P to move into her new flat.

What’s happened is she’s spent a lot of time in police custody”, said Katie Scott, counsel for the ICB.   “There was an ‘episode’, if I can describe it like that, when she assaulted a number of hospital staff, and police.  There were attempts to return her to [the Hospital] from custody, but she’s made it very clear that she doesn’t want to spend time in hospital. Within minutes of being returned she had assaulted staff – and then, when they were called, the police.  That happened again last night.  Matters have escalated today, and members of staff on the ward felt so strongly that it was not in P’s best interests  to spend any more time on the ward, even just until Monday, that it’s been considered whether she could be moved sooner.  The agreed position of the parties is that it would be in P’s best interests to move to the flat today.  She is currently in custody and the police could convey her to the flat and the Hospital will send her belonging on today.

Counsel for the Official Solicitor (Ben Harrison) reported P’s view that “she was very clear that she wanted to be in prison rather than go to the Hospital again.

After some (short) discussion about the staffing ration (5:1) at the new flat, the safeguards relating to restrain – in particular prone restraints, and the importance of locking away knives, the court approved P’s move to the new flat, with the hope that there would now be “some structured calm for P to have the best opportunity to make this placement work for her”.

The next hearing is listed for 2nd May 2023, and the judge reminded everyone that the court was available for an urgent application before then, if needed.

Celia Kitzinger is co-founder of the Open Justice Court of Protection Project and tweets @KitzingerCelia

Injunction against a mother: ‘Biting the bullet’

By Avaia Williams, 8th March 2023

The person at the centre of this case (DS), a man in his early thirties, has been living in an acute hospital ward for over 14 months. That’s not due to a difficult-to-treat medical condition, or to a detention considered necessary under the Mental Health Act 1983 or a deprivation of liberty under the Mental Capacity Act 2005, nor is it due to long term chronic illness. No, DS has been living in hospital because suitable alternatives have not been available.

DS was admitted to hospital with a fractured leg in early December 2021.  He has a profound learning disability,  spastic quadriplegic cerebral palsy and he does not communicate with words. The court has already made declarations that he lacks capacity to make decisions about his residence and care. His leg has healed and (although he’s had a few subsequent health issues), his doctor has declared him medically fit for discharge from the hospital.

DS cannot return to the placement he was at before he was admitted to hospital because they had already served notice on him, several months previously, citing the behaviour of DS’s mother (AW).  After attempts to find a domiciliary care provider to enable DS to return home to live with AW failed, another residential placement was located, but subsequently withdrew. A new residential placement has now been found, but they will only accept DS if there is a Working Together Agreement in place setting out expectations of conduct. (Working Together Agreements are quite common in the family courts: check out this template for an example of how they can look.)

So far, the situation has been (since mid-December last year) that AW does not agree to the plan for DS to live in this new placement.  She has not signed a Working Together Agreement and has been reluctant to enter into negotiations around this. An injunction against her, to require of her the behaviours to which she will not voluntarily agree, is now being considered by the court.

I was watching this hearing – the first one I’ve observed in the Court of Protection since the lockdown – due to my interest in practicing in this area as a barrister. I have a wide legal interest, but much of this concerns matters of mental capacity, mental health, and public law, matters which are all regularly present in the Court of Protection. I am currently in the process of applying and interviewing for such roles and felt that revisiting such hearings would be beneficial. 

I hoped to gain further insight into the procedural aspects and legal requirements of the Court of Protection, known as Rules and Practice Directions. This hearing was an exceptionally relevant one for such an insight as it concerned argument of a breach of these rules. Additionally, I hoped to gain a greater appreciation of advocacy within the Court of Protection.

The Hearing

The hearing (COP 13679387) before District Judge Brown sitting at Bristol Civil & Family Justice Centre was heard remotely on 2nd March 2023. 

The applicant – who was also in court – was AW, the mother of the man at the centre of the case and also his Relevant Person’s Representative (RPR). She was represented by Richard Alomo of No5 Chambers.

DS was the first respondent and was represented (via his litigation friend, the Official Solicitor) by Oliver Lewis of Doughty Street Chambers.

The relevant local authority (Devon County Council) was represented by Emma Marie Harrison, solicitor advocate within the Council.

The Integrated Care Board (NHS Devon ICB) was represented by Ellen Lloyd of Bevan Brittan LLP.

Counsel for DS

Counsel for DS (via the Official Solicitor [OS]) gave a useful introductory summary to the case, drawing attention to the fact that this would be beneficial to those observing the hearing.  

He expressed concern that DS was still in hospital and said that 14 months is “an enormous amount of time for anyone to remain in a medical setting when it’s not medically indicated”. He explained that a previous offer of a care placement had been withdrawn due to AW’s behaviour, with the placement commenting that “the potential reputational damage is too great”: “in effect, saying ‘we’d love to offer DS a place, but it’s just too risky for us because of the conduct of his mum’[1].

Following this, the ICB (with the support of the OS) had found a suitable placement (“the Home”). However, the Home will only provide DS with a place if AW signs a Working Together Agreement (“WTA”), i.e. a bespoke  agreement between the placement and AW to collaboratively work together in DS’s best interests, outlining specific expectations about conduct and what will happen if these expectations are not met. AW has not accepted any such agreement and, counsel submitted: “our impression is that she will not countenance signing or entering into any negotiation as to its content”.  It was, said counsel:

 “... a surprise, an hour ago, to receive a position statement [from counsel for the mother] saying there are procedural mistakes about today’s hearing, and she might be able to sign a Working Together Agreement. The OS position is that it would be much, much, much better to continue this hearing and focus on DS and his needs by working together, rather than the court making injunctions. But unless AW is able to sign the Working Together Agreement today, to enable DS to be discharged, then the court should make the injunctions sought.” (counsel for DS)

District Judge Brown, in response, made her own views very clear:

If there could be an agreement by way of the WTA then that would be preferable.  If the court seeks to make an injunction or requires an undertaking, that has the potential for undermining professional relationships and future care plans for DS. But everyone here recognises it’s not in DS’s best interests to remain as a patient in an acute setting where he is not having his social needs met or a home-style-type or normal type of setting.” (Judge)

DJ Brown offered the parties some time for further discussion outside of court if they felt that “compromise might be possible”, but added that she was “not willing to leave this open-ended today” since “there has already been considerable delay for DS”.  That offer was declined by the mother, whose counsel reported that “her primary position is that DS is not ready for discharge. Her second position is that if he is ready for discharge then he should return home” with her. 

Solicitor for the ICB

The ICB said they wanted AW to agree to the terms of the WTA and, given that “previous agreements had been implemented and breached soon thereafter, we would want her to give an undertaking to the court that she would abide by the agreement”.

The ICB was clear that “returning home is not an available option for the court. The ICB is not willing to offer such a package. It is not safe or sustainable for DS”. 

The Supreme Court has ruled (in N (Appellant) v ACCG and others (Respondents) [2017] UKSC 22) that the Court of Protection may only choose between available options, and that it does not have the power to order a CCG (now ICB) to fund a care plan proposed by parents or to order care providers to that which they are unwilling or unable to do.  

Counsel  for the Local Authority

The LA has (said counsel) “a very minor role in the proceedings” and is “not taking an active role”.

However, the LA did raise a single salient point at this stage, that being that if an injunction were to be granted as sought by the Official Solicitor, then AW’s position as DS’s RPR could not remain in place, because its conditions “would make it impossible for [her] to carry out her role as RPR”. If an injunction were therefore granted, the LA proposed that a paid representative is put in place to take over this role and AW discharged (and they would like a recital to that effect in the order).

Counsel for the applicant – DS’s mother

Counsel for the mother argued that there were significant procedural failings, specifically in relation to §10.10 of the COP Rules relating to interim injunctions such that no injunction could lawfully be served today.

In particular, the respondents had failed to set out their injunction application on the COP 9 form and “the only application here in the bundle is one which is asking AW to give an undertaking to the court”. He continued: 

My client is entitled to have properly set out – which we say we haven’t – the terms of the order being sought, and, more importantly, the evidence in support of that application so that she can respond accordingly. The only application here alludes to a requirement by the proposed placement for a Working Together Agreement and an order by the court to abide by that. That is not a proper evidential basis for an injunction order – with the consequences that are likely to befall my client if she is found to be in breach of that order.” (counsel for AW)

Additionally, counsel for AW argued that the previous placement being withdrawn was not solely due to AW’s actions – rather, there had been suggested amendments to the care plan. “It would be wrong to leave the court with the impression that all this fell apart because of the allegations made against AW”. (What became abundantly noticeable at this submission was Oliver Lewis’s eyebrows shooting up.)

It was submitted that a properly defined ‘stand-alone’ draft order should be before the court “so there’s no misunderstanding about what AW is being asked to do”.  Instead (he said) there was “a mishmash of the prohibitory and mandatory, along with what might be considered restrictions on contact”. In conclusion, it was submitted that “[t]he application is in a mess at the moment”.

Response from Counsel for DS

In respect of the injunction, counsel for DS submitted that all the elements of the injunction argument had been presented in the other documents served on AW, and there was no need to put these all into a single document:

Injunctive directions within a case management order are fairly standard in the Court of Protection.  There are two ways of doing it – either like that, or the other way is with injunctions in a separate documents. It can happen either way – even at Tier 3.  It often turns on judicial preference, and if the court would prefer two separate documents, that can be accommodated.” (counsel for DS)

In respect of the direction that it’s now in DS’s best interests to move to the Home, counsel acknowledged that the proposed placement may not be perfect (one problem is that it is 100 miles away from where his mother lives; another is that it was rated as ‘requires improvement’ by the CQC).

It may not be perfect, but like in many cases, perfection is the enemy of the good […] It is in DS’s best interests to be discharged somewhere, and we now have a somewhere. I urge the court to bite the bullet. The price tag is either a signed Working Together Agreement or the protective ring (if I can use that phrase) of injunctive relief so that the care home can provide for DS’s care in a sustainable and safe way.” (counsel for DS)


DJ Brown delivered a succinct and clear judgment. She pointed out that DS has spent 14 months in hospital and that although his mother has an issue about whether he is fit for discharge, the consultant who examined him on 17thFebruary 2023 considers that he is fit for discharge and that the few remaining physical concerns can be dealt with in the community. (The reactions from the parties, again, was very noticeable to me. AW was clearly shaking her head in apparent disagreement at this point). The Judge continued: 

On the evidence before me, he is fit for discharge and there is before me ONE option. AW’s primary position is that it’s not in his best interests to be discharged to the Home but when he is discharged he should be cared for at home.  But a home care package is not an option before me.  AW has said she will use an unspecified care provider and there is no care plan before me from AW and no information as to how 24-hour care will be provided...” (Judge)

At this point AW physically raised her hand on camera and, without approval to speak, she starkly stated “There is!”. The judge responded, “Mrs W, I am giving my judgment. If you have comments, make them to your representative please,” before continuing with her judgment:

The court cannot force a party to provide an option, so the only choice the court has is to either do nothing, or to discharge DS to the Home.  The Home will only offer a place to DS if AW were willing into enter into a Working Together Agreement, which sets out the framework for contact and the way in which care will be provided for DS at the Home. Up until today, that Working Together agreement was not being considered by AW and she wasn’t willing to consider the Home but only a family home placement. That led to the application being made by the ICB. The difficulty is that it’s unclear to me how a court could force a party to give an undertaking, so it seems to me that application is somewhat misconceived – albeit that the intention behind it is very clear: the potential provider requires certain reassurances to be able to provide care for DS.”

So, the first question is whether it is appropriate to make a decision for discharging DS to the Home. If yes, secondly, would an injunction be necessary to ensure this was effective?”

On the first question, the judge said it was clear that remaining in hospital was not in DS’s best interests, despite “observed reactions of Mrs W” which led the judge to believe that AW’s view seemed to be that it would be better for DS to remain in hospital rather than to go to the Home. The judge was clear that she did not agree with this and having read the transition plan and reports about his needs, she was satisfied that discharge to the Home was overwhelmingly in DS’s best interests.

As to the second question, DJ Brown ruled that since there is no legal authority to force AW to consent to a WTA, the only choice would be either an injunction, or no order for DS to go to the care home.  Although counsel for the mother had raised several procedural irregularities, including failure to complete a COP 9, DJ Brown was clear that the court has the power to dispense with these requirements where circumstances justify it – particularly in this case where all the substantive arguments and evidence that would have been on the COP 9 were present in other court documents that had been served. Effectively, DJ Brown was saying that to require this information to be extracted from documents already seen by the applicant, and pasted into a new document, would serve no useful purpose, would create unnecessary delay, and would be disproportionate considering the best interests of DS.

DJ Brown was satisfied that there was evidence of AW’s disruption to previous placements and that the court was obliged to protect the placement at the Home. The only way this could occur was to make an injunctive order, based on the terms set out in the Working Together Agreement. She asked for some rewording of this so as “to make it clear as to the exact behaviour that is prohibited”. She also asked for the contact arrangements to be treated separately, with the injunction saying that AW “is to abide by the contact arrangements as set out in the care plan”, so that if there’s a change in these arrangements agreed with the care home, then the injunction wouldn’t need to be amended.  “Its purpose is to give the Home reassurance that AW will behave in a reasonable manner with members of staff and will abide by the care plan, and it will limit other contact outside of the weekly update.”

This is an interim placement and parties will continue to work to find a better placement closer to AW. The next hearing is listed for 2:00pm on 25 May 2023.  At that hearing, both DS’s placement and the interim injunction against his mother will be reviewed.

The mother sought (and was refused) permission to appeal this decision – and although she retains the legal right to appeal directly to the High Court under Rule 20 of the COP rules it would have to be shown that there is a real prospect of success or there is some compelling reason to allow the appeal. 


The hearing lasted no more than 90 minutes, but some very significant decisions were made in this short time. As somebody hoping to practice as a barrister in Court of Protection cases, this was extremely eye-opening and added a new dimension to my understanding of the Court of Protection.

My interest in mental capacity law has only been furthered by attending this hearing.  In particular, the arguments regarding procedural minutia, which are entirely mundane to many, were very interesting to see in practice. Often, these rules are in place to direct representatives as to what they must do and not do, adherence is largely agreed and they are rarely disputed other than in the appeal courts, and so being able to witness the submissions of Richard Alomo, representing the mother on this matter, added another layer of interest for me to this hearing.

Furthermore, CoP cases are very emotive, it is therefore not too surprising that AW made a small outburst challenging the judgment that DJ Brown was giving.  These outbursts happen all the way up to the Supreme Court, including this heart-rending example from the Charlie Gard case (at 09:06-10:06). It is always interesting to witness is how judges respond to these and, with credit to this judge, she handled this very empathetically but also firmly. This is typical of judges of the Family Division in my experience, too. As somebody who regularly attends cases before the criminal courts, I experienced a drastic difference between this judge’s reaction to an outburst and those of magistrates and judges of the Crown Court, who certainly do not take as kindly to any interruptions and somebody making an outburst like this would rapidly be remonstrated with or ejected from court.

My interest in working professionally in the Court of Protection has been fuelled by being able to observe this hearing and I look forward to the review hearing on the 25th May 2023.

Avaia Williams is a student on the Barrister Training Course at BPP Manchester and founder of the Nightingale Rights Initiative. He is hopeful of practicing professionally in the Court of Protection and has a wide interest in public law. He regularly tweets @AvaiaLaw

[1] Quotations are as accurate as possible, given that we are not allowed to audio-record hearings. I am grateful to Celia Kitzinger who also attended this hearing and helped with the quotations.

‘The baby has to come out’: Court-authorised caesarean when subject-matter and litigation capacity are disputed

By Ruby Reed-Berendt, 3rd March 2023

The woman at the centre of this case (SEM) was 32 years old and pregnant with her first child. The Trusts responsible for her obstetric and psychiatric care had made an application that it would be lawful to carry out a caesarean section, notwithstanding that  – in the view of all the clinicians responsible for her care – she lacks the capacity to consent to it. The case (COP 14053355) was heard over two days ( 22 and 23 February 2023) before Mr Justice Moor.

According to the Trusts, SEM “began to exhibit psychotic symptoms” in July 2022. These were said to include delusional beliefs, a suspicion of her treating clinicians, and paranoia. She had refused to receive an Anti-D injection, required because she was rhesus negative, on the basis that she believed the baby would then no longer genetically be hers. A warrant was obtained to gain access to her home and she was admitted to hospital for assessment under section 2 of the Mental Health Act 1983 (MHA). This was later transferred into a section 3 detention. 

At the time of the hearing, SEM remained detained in hospital under the MHA. She had applied to the Mental Health Tribunal to challenge her detention, but on 15 February 2023 the tribunal concluded that the criteria for ongoing detention under section 3 MHA were still met.

Ms Nicola Kohn of 39 Essex Street Chambers acted as counsel for the two Trusts. SEM had instructed her own solicitor (who accepted she had litigation capacity) and Mr Martin Westgate KC of Doughty Street Chambers acted as her counsel. From what I could see of the virtual and physical rooms, she was present neither in the court room nor on the video platform. 

Everyone in Court agreed that a caesarean section was the safest mode of delivery for SEM and her baby. SEM had put on a large amount of weight during pregnancy, leading to concern that she had developed gestational diabetes, increasing the risk of complications for her and the baby should she have a vaginal birth. The matter had been discussed with SEM on various occasions but there the Trust did not consider that she had consented to this procedure or that she had the capacity to do so. So, the Trusts commenced proceedings in the Court of Protection, seeking a declaration that SEM lacked capacity to make decisions about her obstetric care, specifically the birth of this child, lacked litigation capacity, and that a caesarean section at 39 weeks with spinal epidural was in her best interests. 

Like many of the caesarean section cases which come to the Court of Protection, this was an emergency application, made by the Trust on 16th February 2023, four days before the planned procedure (which had to be postponed when the case could not be heard in time). By the time the case was heard on 22nd and 23rd February, SEM’s due date was less than a week away and it was clear that the parties were increasingly anxious of the possibility of her going into labour spontaneously.   

I became aware of this case on Monday 21st February 2023 via the Open Justice Court of Protection  twitter feed. I requested to observe on that day, but was informed that the case was no longer being heard then and would be relisted the following day. On the Tuesday, I received a link to join the hearing, however the sound on the video link was broken and I was unable to hear anything (you can read Celia Kitzinger’s blog about that hearing here). I re-joined the hearing on 23rd February and was able to listen to each counsel giving closing arguments and Moor J handing down judgment. 

During the course of 23rd February, it became clear to me that evidence had been heard the previous day from two doctors: Dr A, SEM’s treating consultant in the mental health unit, and Dr B, a consultant psychiatrist instructed by SEM’s solicitor. Both doctors had also given evidence at the Tribunal hearing, with Dr A’s evidence preferred on that occasion. As I understand that Moor J’s judgment will be published at some point (and a link will be added when it is), in this blog I focus on the closing arguments put before the court. 

At the outset of the second day, Moor J made clear that everyone wants the same outcome here, “a happy delivery of a healthy baby and mother”.[i] Nobody was suggesting that the caesarean section should not go ahead, and in the course of the hearing Ms Kohn advised that the Trust had made arrangements to allow the procedure to take place that afternoon (as it ultimately did). However two key issues were contested: first, whether SEM had capacity to consent and (if so) whether she had actually consented, and second, whether she had litigation capacity. 

  1. Did SEM have capacity to make medical decisions and was she consenting to the procedure? 

From what I gathered (having not been in court to hear the doctors give evidence), it seemed that there had been various conversations between SEM and her care providers over the proceeding months about the birth of her child. The necessity for a caesarean had been explained to SEM, as well as the relevant risks. During this period, she had become focused on and concerned about the (small) risk of that she could need a hysterectomy, expressing that she would not consent to it. Some discussion also took place regarding blood products. SEM expressed to Dr B on 19thFebruary that she would consent to the caesarean, but had said to Dr A later that day that she was on the verge of signing the consent papers. And so, we come to the arguments advanced.

Mr Westgate for SEM

On behalf of SEM, Mr Westgate submitted that she had capacity to consent to the caesarean section, and that she was consenting. He argued that SEM had understood the relevant information, and although she had concerns about them, she did accept that the administration of blood products, and possibly a hysterectomy, might be necessary. Mr Westgate emphasised that SEM’s behaviour in the run-up to the case “is what we would expect of someone who hears, retains, uses information,” and that when she is given space to make a decision, listened to, and respected, she is able to make a decision for herself. He suggested that the evidence of lack of capacity given by Dr A were “assertions” and “generalisations” which Dr A was unable to substantiate in detail. 

He first dealt with the Dr A’s evidence regarding SEM’s mistrust or paranoia of doctors. He suggested that her interactions had been variable and there appeared to be a spectrum of experience dependent on the practitioner she was interacting with: “who SEM is speaking to may be a factor when taking into account whether she can communicate effectively”. He noted that Dr B had a different experience of interactions with SEM, in that she reported “no lack of engagement or delusional thinking”. He noted that SEM had reached a decision with the advice of doctors and that the history of the case is “full of her accepting advice from Dr C [another doctor in her treating team] despite it going against what she wants”. He suggested this demonstrated SEM’s ability to discuss difficult topics and to agree to move on certain points. He added that any non-engagement with doctors does not fit within the “rubric of decision-making” and whilst a lack of cooperation from SEM might be unhelpful, it does not necessarily affect her ability to make decisions. 

In terms of the hysterectomy, Mr Westgate emphasised that SEM had not refused the hysterectomy or the c-section, indicating that the focus of the Trust’s evidence was on her reaction to the news that a hysterectomy was a potential complication. He suggested it was “unsurprising that she reacted the way she did” to what was a “shocking piece of information”. He continued that her response “shows exactly the thought processes that you would expect from a capacitous individual”. He submitted that Dr A’s claim she didn’t fully understand what is wrong with her was not relevant to this decision, since “the fact she lacks insight on something else doesn’t have a bearing”. He added that her desire to avoid a hysterectomy shouldn’t be construed as her lacking capacity as this “falls into the error of equating the quality of the decision with capacity”. He pointed to the fact that a warning about a hysterectomy is a routine part of the process of informed consent for caesarean section, suggesting that this indicates a recognition that it “might lead someone to say no”.  He concluded on this point: “nothing off about not wanting to lose an organ…especially where SEM is a young woman who has not completed her family and has previously lost a baby”. 

Mr Westgate then spoke of the Trust’s submission that SEM’s decision is changeable, and their reliance on the different discussions SEM had with Dr A and Dr B on the 19th February. On this point he stated: “difficult decisions are hard, you don’t lack capacity because you find them hard. Decision-making is a process and not a single event. Doubts don’t go even when you have made a decision, and you might refer to those doubts in later discussion. If SEM changes her mind that doesn’t mean she lacks capacity now”.  

Mr Westgate accepted that if SEM were considered to have capacity, this would mean that she could potentially refuse treatment while she was in the process of labour. He stated “That’s the consequence one looks at with brave concern. It can’t displace the finding of capacity in and of itself. It’s her choice. Although others may say it’s wrong and tragic and possibly irresponsible, it’s for her to decide.” This led him to deal with what he termed the ‘contingent’ option, where Moor J could potentially find that SEM had capacity now, but make a declaration that should she lose it during labour, then the professionals could proceed in her best interests. This so-called option was based on the case of Guys And St Thomas NHS Foundation Trust (GSTT) & Anor v R  where a woman with a diagnosis of Bipolar Affective Disorder was objecting to a caesarean section, and all parties agreed she had capacity to do so, but there was said to be a significant risk she would lose capacity during labour. An ‘anticipatory declaration’ was made that should she lose capacity during labour, a c-section could be undertaken as in her best interests. On this case, Mr Westgate noted the thorough review undertaken by Hayden J of the relevant cases (to which Moor J commented “thirty-nine authorities!”) and urged the judge to reject the making of a similar declaration. He suggested the power should be used sparingly, and pointed to the key factual differences, in that SEM was currently consenting but may withdraw her consent. He suggested a contingent declaration should not be used “as a backdoor way to say she lacks capacity” and that her capacitous decision should be respected. 

Ms Kohn for the Trusts

Ms Kohn began her submissions acknowledging that, if she is capacitous, SEM can choose whatever medical interventions she wishes. She went on to state: “It is not an academic point whether or not she agreed. Clinicians have to be certain what she is agreeing to and whether she does agree. On the evidence we have, there is no evidence of an agreement in fact or in law.” 

She continued 

Because [SEM] is going to remain conscious, she can say yes to the c-section but if the court determines she has capacity, at any point she can say no to blood products. It is not simply that we can accept a decision, we need to know what all the decisions are she is consenting to […] Clinicians need to know what her wishes are and what she consents to, and they don’t know this.

Ms Kohn reminded Moor J that:“decisions about birth are difficult but they are ones that half the population has to grapple with. This is not a situation where a medical procedure is suggested which SEM can choose to have or not to have. One way or another, the baby has to come out.  She submitted that “it’s a manifestation of SEM’s psychosis that she dwells on particular aspects of care offered to her and asks questions without ever being able to come to a conclusion”.  

She encouraged the judge to prefer the evidence of Dr A, who specialises in this area of mental health and had seen SEM repeatedly. She added that “the suggestion that there is personal animus by Dr A towards SEM or by SEM towards Dr A where she only manifests psychosis to them is not borne out in the evidence”.  She drew the judge’s attention to a table she had sent him, summarising SEM’s interactions with her healthcare workers. At this point the judge interrupted “I’m not going to consider this, it’s 13 pages”. So instead, Ms Kohn gave a summary of its contents, which provided an overview of the discussions that had taken placed with SEM over the last few months and the notes those interacting with her had made about her behaviour. She said:

 “By now you’ve probably got the gist of my submissions – that SEM’s failure to engage, paranoia and suspicion is not reserved for Dr A. It is manifesting throughout. It is discernible by a number of staff. There is a longstanding lack of trust and lack of engagement which puts SEM and her baby in danger. That goes to inability to understand and retain information relevant to the decisions she has to make. She can’t keep hold of a decision, circles back round the points made.”

Ms Kohn then went on to consider whether there was evidence that SEM had an ‘impairment of, or disturbance in the functioning of, the mind or brain” (per section 2 of the Mental Capacity Act 2005). She noted that Dr A’s evidence was that SEM had a diagnosis of psychosis. She mentioned the Trust were now in receipt of the Tribunal’s decision (adding that the other side already had a copy but had chosen not to share it because SEM did not want it to be shared). She noted this decision was “not binding but it is a persuasive judgment made by a competent court”.  She highlighted that Dr B argued in the Tribunal that SEM was not suffering from a disorder, and the Tribunal had preferred the evidence given by Dr A, that she was suffering from psychosis.  “So, we know she is suffering from a psychotic illness, and we argue that a causative nexus is thus made out.”

Her next submission was as follows: 

In post-legislative scrutiny of the Mental Capacity Act, the House of Lords said that the presumption of capacity can be used to support non-intervention because professionals struggle with how to apply principle or use it to avoid taking responsibility. It is regrettable that this application has been made so late. It would have been simpler for the Trust to say ‘go ahead with c-section and rely on section 5 [of the Mental Capacity Act] to save SEM’s life’. But where she has articulated she would not consent to hysterectomy/transfusion, it would not be proper for them to proceed. Nor would it be appropriate to declare she has capacity but at the point where her life were in jeopardy for the Trust to act contrary to her wishes. Those two scenarios cannot be married.” 

She, like Mr Westgate, urged Moor J to reject the option of an anticipatory declaration, stating “I would forcefully caution against pursuing that path”. 

Ultimately, as the judgment makes clear, Moor J found the evidence of Dr A more persuasive (he described Dr B as ‘not having the full picture’) and found that SEM had not given valid consent, and in any case lacked capacity to do so. It also interesting to see how the recent decision of the Mental Health Tribunal influenced this case; it was mentioned at various points in Moor J’s oral judgment. Whilst the decision of the Tribunal does not bind the Court of Protection, it was obviously persuasive as a “decision of another competent court” and it was notable that thing SEM had said in that hearing were then discussed in this hearing as evidence of her illness. The Tribunal’s preferring of Dr A’s evidence also appeared to influence the judge’s thinking. 

2. Did SEM have litigation capacity? 

The question of SEM’s litigation capacity was not the focus of the hearing but is important.  In all the cases I have previously observed in the Court of Protection, it is accepted that the person lacks capacity to conduct the proceedings, meaning they are unable to instruct their own legal representative and are represented via the Official Solicitor, acting as their litigation friend. Although SEM had instructed her own legal representative in this case, her litigation capacity was contested. 

Mr Westgate finished his submissions by speaking of SEM’s litigation capacity. He emphasised that SEM should be presumed to have litigation capacity until the reverse is demonstrated, and that no direct evidence had been put forward by the Trust to rebut that presumption. He pointed to the fact that SEM had instructed her solicitor throughout the case, which he argued demonstrated her capacity to do so:

 “As we stand, there is nothing to show she doesn’t understand the issues, and the issues aren’t complicated. So, there is no need for Official Solicitor to act on her behalf, and the conduct of the case by her doesn’t show a lack of understanding.”

A statement was also provided by SEM’s solicitor (who did not give oral evidence) which confirmed that she had never had difficulties getting instruction from SEM (except the day after the Tribunal) and considered her to have an understanding of the key issues, and thus litigation capacity, throughout. 

I did not hear any direct submissions made by Ms Kohn regarding SEM’s litigation capacity. However, the Trusts’ Position Statement (kindly provided by their solicitor) stated “the unanimous view of all those involved in [SEM]’s care is that she lacks capacity to conduct proceedings” as well as lacking capacity to make decisions about the caesarean.

It is considered very unusual for individuals to lack capacity to make decisions on the subject matter before the court while retaining capacity to litigate about this matter (as was emphasised in the Trusts’ Position Statement, citing Mostyn J’s judgment in Re P [2021] EWCOP 27 where he says that such a finding should be “virtually impossible” and “as rare as a white leopard” (see also “Capacity to litigate”).  Moor J ultimately concluded that SEM lacked capacity to litigate, almost as a matter of course. This left a very strange situation where SEM had conducted proceedings on her own behalf,  but should not have been allowed to do so due to a lack of capacity. 


These cases are profoundly difficult and it is disturbing as an observer to see intimate decisions taken about an individual who isn’t present. 

I did wonder whether the case would have been different if a decision regarding SEM’s litigation capacity had been made sooner. Ms Kohn at one point suggested that the Official Solicitor might have helped maximise SEM’s participation, because their agent could have visited SEM and taken a statement from her. She was also critical of SEM’s solicitors for ‘refusing’ to accept that SEM lacked litigation capacity and taking instructions from her when she ‘clearly’ lacked capacity. However, it is very common for the Official Solicitor to take a position which is against the person’s expressed wishes[ii] so it may have been that SEM’s views would have been even less present, because there might not have been anyone making submissions which directly reflected her position.

I also wondered whether in this case it might have been possible to support SEM to make a decision for herself. Mr Westgate suggested that with the right support, SEM was able to come to an informed decision, and it did seem that, based on the timeline presented, she was close on a number of occasions to giving consent to a caesarean, albeit with some reservations. She had also expressed feeling rushed into making a decision (although Ms Kohn disputed whether this was the case and suggested an inability to make a settled decision was caused by SEM’s diagnosed psychiatric illness)She did not, as far as I know, relay to the judge whether, by that point, she would consent to the procedure. The emergency nature of the application perhaps overtook things, and it appeared that a key concern for the Trusts and for Moor J was that if the procedure went ahead on the basis of SEM’s consent, she might change her mind midway or refuse necessary ancillary care. This, it was said, would leave the healthcare professionals in an untenable position of either proceeding without consent or allowing SEM to die. With this in mind, as well as the clear views of her treating team, it is perhaps unsurprising that in the absence of clear consent from SEM, a lack of capacity was established to allow arrangements to be made. 

Ruby Reed-Berendt is a Research Associate and PhD Candidate at the School of Law, University of Edinburgh. Her research focuses on mental health and mental capacity law from a feminist perspective. You can check out her academic website to learn more about her work, and you can follow her tweets @rubyreedberendt

[i] All quotations are based on contemporaneous notes taken at the hearing, and may not be verbatim.

[ii] A further exploration of this situation can be found in Alex Ruck Keene, Peter Bartlett and Neil Allen, ‘Litigation Friends of Foes? Representation of ‘P’ before the Court of Protection’ (2016) 24(3) Medical Law Review 333-359, which is available open access here

A ‘closed materials’ hearing on forced marriage

By Celia Kitzinger, 1st March 2023 (revised 3rd March 2023)

This is the first time I’ve watched a hearing before Mrs Justice Theis since she became Vice President of the Court of Protection on 13th February 2023.

One of the last things the previous Vice President, Mr Justice Hayden, did before he stood down earlier this month was to publish the Guidance for the Court of Protection on “’closed hearings’ and ‘closed material’” (9th February 2023).  So, this must be one of the first Court of Protection hearings to deal with the matters covered in that Guidance since it was published.

This case (COP 13907545 on 28th February 2023) concerns a learning-disabled woman in her twenties (P) who has been subjected to an arranged marriage to which, as I understand it, she was unable to consent.   She is now living in a residential facility, and I gather that her parents would like her to return home.  They have agreed, following earlier court hearings, to take the necessary steps to end or annul the marriage – although that does not seem to have been progressed.

Her parents are parties to the case, and certain material has been redacted in their versions of the court bundle. They don’t have access to evidence that is available to the other parties. So there is ‘closed material’ at this hearing, defined as “material which the court has determined should not be seen by the party (and/or their representative)” (from the Guidance).

The hearing

It’s a hybrid hearing.

The judge, the two barristers, P’s father and his McKenzie Friend (who was also acting as the father’s interpreter) are all in Court 33 in the Royal Courts of Justice  – along with a couple of other people I take to be the instructing solicitors, and PA journalist Brian Farmer.

On the remote platform there are (the judge says) “at least three” public observers, and also people who have identified themselves to the court associate as P’s case manager, P’s social care support worker, and P’s social worker (amongst others).

Unfortunately, Cloud Video Platform (CVP) isn’t working well in Court 33.  Last week there was no sound at all audible over CVP from Court 43.   This time it seems to be a problem with two of the microphones – those used by the two barristers.  The judge herself comes across loud and clear.  The problem with the sound output from the barristers must be deeply frustrating for the people on the video-platform who are actually involved in the case, and trying to support P. 

Sally Gore of Fenners Chambers is counsel for Luton Borough Council, the applicant in this case.  The judge asks her to provide a summary for the benefit of observers, but I hear only snatches of what she says.  Despite trying two different head sets and turning my laptop volume up to maximum, her speech comes across as very faint, and – worse still – distorted, as though it’s coming from under water.  I can decipher odd phrases (“psychiatrist… capacity to marry… injuries to legs and feet ….paragraph 32 …. multidisciplinary team…”), but most of what she says is inaudible and she remains largely inaudible for the duration of the entire hearing.  The judge (whose mike is working beautifully) asks her at the outset for “a headline list of things I’m being asked to determine today” and I can’t hear any of her response – although I’m able later to reconstruct what the case was about from the short judgments made before lunch and at the end of the afternoon hearing. 

As the hearing progressed, counsel for the local authority remained barely audible.  Counsel for the Official Solicitor (Bethan Harris of Garden Court Chambers) was sometimes audible, but every cough in the courtroom, every rustle of paperwork, obliterated her voice.  Likewise, P’s father and his McKenzie Friend/interpreter were hard to hear, and making out what they were saying was further complicated by their accents as non-first-language English speakers. 

And so, for an overview of the case, I recommend reading the BBC article by Brian Farmer, who was in the physical courtroom: “Arranged marriage: Judge protects woman with learning disabilities”. 

Unusually, neither the journalist nor I were sent Position Statements for this case (I understand because they had not been anonymised) until three days after the hearing – which meant three days after publication of the press report and a couple of days after I published a first version of this blog post. Having now received the Official Solicitor’s Position Statement (sent at 11.56 on 3rd March 2023) I have updated accordingly.

My focus in this blog is (and was) on how the matter of  ‘closed materials’ was managed by the judge – because the judge was the one person I could hear perfectly. The most important change in this updated version of my blog relates to the application to redact. My initial impression, before I received assurances to the contrary from the two lawyers involved in the case, and then the Official Solicitor’s Position Statement, was that there had been no previous request from either the Official Solicitor or the local authority for permission to redact the documents shared with the parents. This is not correct. There had been a previous application and the court had already granted permission for the redacted documents to be filed, on an interim basis.

Closed materials

I was on the verge of giving up on this hearing due to the problems with the audio when I suddenly heard the judge raise the issue of “redaction”. She sounded a bit cross:

I’m unclear at the moment from the documents I’ve got what exactly has been seen by the parents.  I understand that certain parts of the information P has given has been redacted because of her concern about certain information being shared with her parents?  [Yes] I don’t know what has been redacted. It hasn’t been highlighted in the document and I think that is unsatisfactory…. I don’t think that was raised at the last hearing. I don’t know how much there has been discussion with the parents outside court so they know what all this means.”

The problem seemed to be that the lawyers had redacted the bundle sent to the parents but provided the judge with only a non-redacted version (and, I think, a list of the redactions). The judge sounded frustrated by the challenge before her of identifying just what material had been ‘blacked out’ from the parents’ documents.

I’ve got a 903-page bundle and I don’t think the redaction was brought to my attention. I need to be able to see clearly both what is being said in the open document and what’s being said that’s redacted.  […] I’m stating the obvious.  How on earth am I supposed to deal with this issue without seeing what these documents are. […] For me to understand it, I need to know what is being redacted and what isn’t.  All I’ve got is an unredacted version.  Maybe that ought to be a lesson learnt in relation to managing these proceedings, but let’s just get on with the hearing for now.”

A little later, the judge drew P’s father’s attention to the blacked-out lines and said “that’s called redaction”.  She explained that it had been done because P did not want her parents to know what she had said.  The father seemed to accept that in relation to his daughter’s statements, but was concerned that part of a doctor’s report had also been redacted.  

The judge said again “I can’t deal with the redaction issue until I’ve seen all the documents”, and then gave a short judgment dealing with other issues (appointment of an independent expert, continuation of the Forced Marriage Protection Order, and the date of the next hearing [9th June 2023)).  The court then adjourned for lunch.

After the lunch break (and I think after hearing another case between 2pm and 2.30pm), the judge returned – by which time another issue had also arisen: the Transparency Order (see below).  

On redaction, the judge  explained that she’d now looked through the documentation, and that the material that had been redacted in the doctor’s report was identical to the material that came directly from P herself.  It was the same information that P didn’t want her parents to know, either from her directly or conveyed “second-hand” via the doctor’s report.

The judge was obviously disturbed by what had happened. My impression was that it was not the redaction itself (since she had previously approved an application that material could be redacted) so much as as the manner in which the redaction had been done – without what she considered to be sufficient explanation of what had been redacted or why.  She said that normally:

 “… there should be complete disclosure, for very obvious reasons, but that has to be balanced with P’s best interests if there were disclosure and the impact that might have on her participation in proceedings.  I’m minded to permit these redactions at the moment, but make it clear there is going to need to be some very rigorous thought and scrutiny of that before the next hearing.  […] If anyone wants the redaction to continue beyond the next hearing, there needs to be an actual application.

At the end of the hearing, she gave a short judgment concerning the closed materials.  

“There has been an application from the local authority and the Official Solicitor for certain information to be redacted from the document provided to the parents who are respondents in these proceedings.  The court has had the opportunity to view the material that’s been redacted. In considering whether the court should permit those redactions, it has taken into account the following matters.

  1.  It is an obligation of open justice that all parties should see the material all the other parties have seen
  2. I need to satisfy myself that a request to withhold information from a party is validly made.  What is said here is that it accords with P’s wishes that certain information is not shared with her parents. That reflects the level of anxiety she has if that information were to be shared with them, which could impact on her ability to participate in these proceedings – namely to speak frankly with her solicitor and those who care for her.
  3. I need to consider the best interests of P, and the greater the risk of harm by disclosing this material, then the stronger the imperative that this information should be withheld at this stage.
  4. If this material were not redacted then the parties would be on an equal footing and this is relevant to their Article 6 rights to a fair trial.
  5. I can take into account ‘necessity’.
  6. Both Article 6 and Article 8 rights are engaged and the court needs to consider the least invasive and least disproportionate measures.

Bearing in mind the stage this case is at, and where P is now, and the information the court has – and takes at face value – that not disclosing accords with her wishes, and that it would cause her anxiety if it was disclosed and impact on her ability to participate in these proceedings – and given that it’s understood and accepted by the parents that this is the reason this information is not being disclosed, I am persuaded at this stage that it is necessary and in P’s best interests that this information is not disclosed at this stage.  

But, as I’ve said, this issue requires proper and effective scrutiny, because it may become important information that may have an impact on the decisions the court is being asked to make.  So it may be that the pendulum will tip the other way in future.

If either the Official Solicitor or the local authority continue to want this information to be redacted and not disclosed to the parents, I shall want a proper application, and one that’s clear about the basis on which this information is redacted and also whether future hearings should be open to the public. I’m not suggesting they should not be but I want this addressed. And there’s going to need to be a direction that the court needs to be provided in advance with a bundle with the redacted material in it.  And it needs to be done in a way where the court doesn’t have to wade through an electronic bundle of 903 pages to work out what has and hasn’t been redacted.”

And that was the end of the hearing.


I was concerned about two substantive matters in this hearing (in addition to the CVP failure already mentioned): the issue of ‘closed materials’ and the way in which the Transparency Order was addressed. I’ll discuss each in turn.

  1.  Closed materials

It was clear that the judge was having difficulty with a large electronic bundle and was struggling to make sense of what material was being withheld from two of the parties, or why that material in particular.

I have now read the Position Statement from the Official Solicitor and I can see that it covers the legal framework applicable to redacting court documents in some detail – with reference to the Court of Protection Rules 2017, to previous case law, and to the Vice President’s Guidance (included in full as an appendix).

The Guidance is clear.

 “The starting point is that, in principle, all parties (and, if not joined as a party, P) to proceedings before the Court of Protection should be able to participate in all hearings, and have sight of all materials upon which the court will reach its conclusions.” 

 A key reason for this (says the Guidance) is the principle of open justice, which “normally requires that a judge cannot read or hear evidence, or receive argument which is not before all the parties to the proceedings”.   

Derogation from the basic principles of open justice requires – as the judge made clear – proper and effective scrutiny.

23. In any case where the basis for withholding disclosure is identified as being necessary to secure the rights of P, the following staged approach applies to the court’s consideration (and hence to the matters which must be set out in any application for material to be closed):

  1. When deciding whether to direct that a party should not be able to inspect the part in question, the court should first consider whether disclosure of the material would involve a real possibility of significant harm to P;
  2. If it would, the court should next consider whether the overall interests of P would benefit from non-disclosure, weighing on the one hand the interest of P in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur;
  3. If the court is satisfied that the interests of P point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the other party in having an opportunity to see and respond to the material.  In the latter regard the court should take into account the importance of the material to the issues in the case;
  4. In all cases, the test for non-disclosure is whether it is strictly necessary to meet the risk identified by the court.

The problem here seems to have been with displaying the redactions (and the reasons for them) in a readily accessible form for the judge – and not any failure to engage with the fundamental principles of open justice. I’m not sure what deficits Theis J intended to reference when she refers to the need for “a proper application” for ongoing redaction (was there something ‘improper’ about the previous application?), but perhaps, in future, lawyers making applications to redact might find it worth their while to enquire of the judge how they would like information about the redactions to be formatted: as a list? as a set of paired documents, one redacted and one not? or some other way? As it was, it seems the judge was overwhelmed by the task of locating the information she needed – hence “it needs to be done in a way where the court doesn’t have to wade through an electronic bundle of 903 pages to work out what has and hasn’t been redacted“.

It is helpful to have a judgment about closed materials that is both principled and pragmatic to add to the existing case law and to the guidance. I have asked Theis J whether she will consider publishing it.

2. Transparency matters

At the outset of the hearing the judge announced: “Nothing is to be reported that in any way identifies the young person who is the subject of this hearing, and if anyone needs a copy of the Transparency Order they should contact the court”.

This is slightly odd – since my understanding is that it is the responsibility of the court to ensure that an injunction is served on us to protect P’s Article 8 rights, not up to us to decide whether or not we “need” to have an injunction served on us.  

Moreover, I doubt that most people would know how to “contact the court” to obtain the Transparency Order.  Writing to the Royal Courts of Justice email address, or to the Video Hearings Administrators who send out the links, is unlikely to result in a Transparency Order being sent, and few members of the public know how to contact the lawyers directly, or would feel ‘entitled’ to do so.

Journalist Brian Farmer, who was in the physical courtroom, obtained a copy of the Transparency Order during the lunch hour, and reported back to the court subsequently that there was a view from the lawyers that the ‘standard’ wording meant, or might mean, that we were prevented from publishing the name of  the local authority, Luton Borough Council.    

This was (to me) a surprising argument, since there was no prohibition in the Transparency Order, which was in the standard form, on naming Luton Borough Council.  

The Transparency Order says that we cannot publish “any information that identifies or is likely to identify where any person listed above lives, or is being cared for, or their contact details” (6(ii)).  (The “persons listed above” are P and her family members.) Naming the local authority does not  identify where these people live or reveal their contact details. As Brian Farmer put it, “if I’m stopped by the police and asked where I live and say ‘I live in the New Forest District Council’, that isn’t going to enable anyone to identify my address!”.

If there’s any risk that naming a public body would permit identification of P and her family, via jigsaw identification (i.e. in conjunction with other salient facts about the person, some of which may already be in the public domain, others of which are revealed in the course of a hearing), then someone needs to make an application to the court explaining how that is so (and undoubtedly it sometimes is so, albeit not as often as parties claim).  If the judge accepts that naming a public body runs a real risk of identifying P, then she weighs up P’s Article 8 right to privacy against the public’s Article 10 right to freedom of information and makes a decision about whether or not to ‘vary’ the Transparency Order so as explicitly to include the public body in the prohibited information.  I have been in court for scores of such determinations before dozens of different judges.

But in this case the lawyers didn’t seem to be making an application to vary the Transparency Order.  In fact, counsel for the local authority said they were “neutral” on the matter, and counsel for the Official Solicitor was “just being cautious”.  But both seemed to be suggesting that the wording of the standard Transparency Order might already imply a prohibition on naming the local authority.  If that were so, we’d never be able to name public bodies – since that is the standard wording!  As Brian Farmer said in court “I have never before come across an order like this interpreted in that way”.   

As it turned out, the judge did not accept the argument that naming the local authority was already prohibited by the Transparency Order, nor did she encourage an application to prohibit the naming of the local authority, and so we can name Luton Borough Council. 

It is also curious that when I received the (unsealed) Transparency Order (dated 9 June 2023), I found that it has the name of P and both her parents on the front cover (as first, second and third respondents) and P’s name in the body of the document (1(a)). This is very usual. My understanding is that Transparency Orders are public documents and for that reason they are almost always anonymised – the main exception being when the order is not intended to prohibit reporting of P’s name. I’d been told that the reason that I wasn’t sent the Position Statements was because they had not been redacted to remove P’s names and the names of her family members – but I was sent this document which included all three names, which seems inconsistent.


This was the first time since the Guidance was published earlier this month that I’ve witnessed a ‘closed material’ hearing.  

I’ve been very concerned about the ethics of closed hearings, as I articulated in my submission to the COP Rules Committee (Closed Hearings: Submission to the Rules Committee). The experience of watching this hearing has left me heartened by the robust response of the judge. She was right, I believe, to say that there should be “a lesson learnt” about managing closed material in COP proceedings (i.e. that judges should give some thought to how they want redacted material displayed and presented to them) and that “rigorous thought and scrutiny” is needed before the next hearing to review whether and why ongoing redaction is ‘necessary’, and its likely implications for the future conduct of this case. I’m pleased that there is now Guidance in place and glad to see that it formed part of the Official Solicitor’s submission to the court.

Three final points:

  1. If there is to be a restriction on sending out Position Statements unless they are anonymised (a restriction not normally observed in the past), then please can lawyers prepare anonymised versions in advance of the hearing so that there is no delay in getting them to observers. As is evidenced by the difference between my first and my revised version of this blog post, Position Statements are crucial for understanding the proceedings.
  2. Transparency Orders (TOs) should always be anonymised – not least so that when (as happens in practice quite frequently) they are not sent out to all the observers, it’s possible for one observer to forward them to other observers who haven’t received them without breaching the order itself. As blog editor for this Project I quite frequently find myself needing to forward a TO that I’ve received but other observers have not, so that they can write blog posts with an understanding of the reporting restrictions; and, conversely, in relation to hearings I’ve not personally observed, I need to ask prospective authors for the TO from their hearings to assure myself that the draft blog submitted doesn’t breach the reporting restrictions.
  3. The ongoing problems with Cloud Video Platform in this (as in other) hearings will be addressed in my letter of concern to His Majesty’s Courts and Tribunal Service. It’s particularly unfortunate that there were difficulties with sound quality in this hearing since the court associate did check with us in advance that we could hear – and we could hear perfectly on whatever mike she was using at the time. I suppose the barristers’ mikes need checking in future as well. And perhaps when the applicant barrister begins to embark on her opening summary of the case, there needs to be a check then that everyone on the video platform can hear. I appreciate how enormously frustrating the difficulties with CVP are for everyone concerned (especially when MS Teams served us so well over the course of the pandemic).

In the end, this hearing reinforces my belief that open justice and transparency is a basic principle in the Court of Protection, shared by bar and bench alike. It’s ironic that it’s when things go wrong (with sound systems, anonymisation, and clarity in redaction) that commitment to this principle becomes most apparent to me. The challenge, as always, is to translate aspiration into practical reality.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project, and has personally observed more than 400 hearings since 1st May 2020.  She tweets @KitzingerCelia

Note: Quotations are as accurate as I can make them given that we are not allowed to audio-record hearings. They are drawn from touch-typed contemporaneous notes.

Capacity to litigate: A young woman with anorexia nervosa

By Celia Kitzinger, 28 February 2023

The white leopard – also known as the ‘snow leopard’ – is rare and elusive. There are no more than six or seven thousand left in the wild and their numbers are declining due to habitat loss, poaching and the impact of climate change (WWF)

But what does a white leopard have to do with the Court of Protection?

The hearing

The  hearing before Mr Justice Moor (COP 14028041, 24 February 2023) concerned a young woman with severe and enduring Anorexia Nervosa.  We’re not allowed to report her name.  She’s asked to be referred to as “Patricia” in any publicity about this case. Reporting restrictions also prevent us from naming the Trusts involved in her care[1].

This was a ‘directions’ hearing to deal with issues that need to be sorted out before the final hearing in a few months’ time.  

The court is being asked to decide whether Patricia has capacity to make her own decisions about treatment for her Anorexia Nervosa and –  if she doesn’t – then what treatment is in her best interests.

Patricia has also made a (purported) Advance Decision to refuse treatment (ss. 24-26 Mental Capacity Act 2005) specifying that she is refusing some treatments if she’s not able to make her own medical treatment decisions in the future.  The applicant NHS Trusts have asked for a declaration as to whether Patricia has (or had) capacity to make an advance refusal of treatment.  If she has capacity at the time that she made it, then it is binding on her doctors and she cannot lawfully be given the treatment she has refused.

But the key issue dealt with at the hearing I observed was not directly related to her views about medical treatment.  Instead, it was about whether or not Patricia has capacity to conduct this litigation, i.e., is she able to understand, retain and weigh information relevant to the court hearing, including deciding whether or not to appoint her own legal team, to take legal advice, to understand and make decisions based upon that advice, and to instruct lawyers during the final hearing.

In my experience of watching court hearings, it’s extremely rare for the person at the centre of a Court of Protection hearing to be deemed to have litigation capacity.  I’ve observed more than 400 hearings, and I’ve seen this only three or four times.

On the rare occasions when someone is found to have litigation capacity, it’s common for them to be found to have subject matter capacity too. For example, in Re SB [2013] EWCOP 1417 Holman J found that a woman with bipolar disorder had both litigation capacity and the capacity to make the subject matter decision (to terminate her pregnancy); and in Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6 Hayden J found that a woman with bulimia had both capacity to litigate and also  subject-matter capacity (to make her own medical decisions).

But it’s not automatic that people with litigation capacity also have subject matter capacity (or the other way around).   Capacity to conduct the legal proceedings and capacity for subject matter decision-making are two different things – and capacity assessors are required to assess them separately.   In principle it’s possible to have both litigation and subject-matter capacity, or neither, or just one and not the other.  

So, a person can have capacity to conduct the legal proceedings without having subject matter capacity, but in practice it’s rare.

As rare as a white leopard.

P’s capacity to conduct these proceedings

In deciding whether someone has capacity to conduct the proceedings (often referred to as “litigation capacity”), the court applies the same test as for any other capacity determination, i.e. s.2 and s.3 of the Mental Capacity Act [MCA] 2005.  Capacity should be presumed and a lack of capacity to litigate cannot be established merely by reference to a person’s age, or appearance, on the basis of their ‘condition’ (e.g. diagnosis).  

A person can be deemed to lack capacity to litigate only if it is established (on the balance of probabilities, and after attempts to help them have failed) that they are not able to understand, retain and weigh the relevant information for the particular application before the court (i.e it’s specific to this litigation in particular, not to litigation in the abstract – which is why ‘capacity to conduct these proceedings’ is a better formulation than the often-used ‘litigation capacity’).  This inability must be caused by “an impairment of, or a disturbance in the functioning of, the mind or brain” (2(1) MCA 2005).  A summary of the ‘relevant information’ that a person needs to be able to understand, retain and weigh (derived from previous case law) is helpfully provided by the 39 Essex Chambers Guidance Note “Relevant Information for Different Categories of Decisions” (September 2022)

In this case, the initial position of the treating Trust (represented by Sophia Roper KC) was that Patricia lacks capacity to conduct the proceedings.

But the Official Solicitor (represented by Michael Horne KC) accepted the findings of an expert assessment which found that Patricia does have capacity to conduct this litigation.  This means that Patricia should be free to appoint a legal team of her own choice (or to act as a litigant in person) and to conduct the litigation based on her own views, rather than having the Official Solicitor conduct them for her (based on their assessment of her ‘best interests’).  

In view of the expert opinion and the position taken by the Official Solicitor, the Trust said – pretty much right at the beginning of the hearing – that they “concede the issue of litigation capacity[2].  

So, there was nobody before the judge arguing that P lacks litigation capacity.  

The judge said “I am entirely satisfied that I should make a declaration that P has capacity to conduct litigation in this case in relation to her medical treatment.”  He added quickly, “That does not mean that she has capacity in relation to her medical treatment”.[3]

I was surprised that he then added” “Mostyn made a judgment recently that this is as rare as a white leopard, but my experience is that this is not uncommon”. 

It may be, as Moor J says, that capacity to conduct the proceedings without capacity to make subject matter decisions is  “not uncommon”, but in that case the reality on the ground is not reflected in the published judgments (nor in my own observational experience). 

White leopards in case law

The judgment Moor J was referring to is Mostyn J’s decision in Re P [2021] EWCOP 27

Mostyn J disagreed with a psychiatrist, who reported that the P in that case (with paranoid schizophrenia) had ‘litigation capacity’ but lacked ‘subject matter capacity’ (whether or not to take antiretroviral medication to treat her HIV).  He said that “the correct decision by Dr Kemp [psychiatrist] about subject-matter incapacity should have led, almost inevitably, to an equivalent decision being made by her about P’s capacity to conduct litigation about that very subject matter…  I am not saying that differential decisions are impossible, but I am saying…. that such a case should be as rare as a white leopard.” (§39, Re P [2021] EWCOP 27, Mostyn J)

Mr Justice Mostyn outlined the capacity required in conducting proceedings.  It is, he said,  “a dynamic transactional exercise requiring continuous, shifting, reactive value judgments and strategic forensic decisions”.  The litigant “has to be mentally equipped not only to be able to follow what is going on, but also to be able figuratively to tug counsel’s gown and to pass her a stream of yellow post-it notes…”   – i.e. to be able to respond to what is happening in court by issuing ongoing instructions to her lawyer as events unfold (§31 Re P [2021] EWCOP 27, Mostyn J)

He concluded: 

…. it is virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about medical treatment, but yet has capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter. It seems to me to be completely illogical to say that someone is incapable of making a decision about medical treatment, but is capable of making a decision about what to submit to a judge who is making that very determination (§33 Re P [2021] EWCOP 27, Mostyn J)

Mr Justice Hayden has robustly defended the ‘in principle’ potential for litigation capacity without subject matter capacity (in Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6). 

But there are very few cases (at least, cases I’ve been able to track down) in which P has been deemed to have capacity to litigate the proceedings but does not have capacity to make the subject-matter decision(s) before the court. 

Here are those I was able to locate – with help from people on Twitter who responded to my call for such cases (thank you Sophy Miles, Nuala Kane, and others who communicated with me privately):

  • Re QR [2014] EWCOP 26 (DJ Batten) A 62-year-old woman with a diagnosis of paranoid schizophrenia has capacity to litigate – but not to decide where she should live 

And possibly this one:

  • NHS Surrey Heartlands Integrated Care Board v JH [2023] EWCOP2 (Hayden J) A man in his 40s with “Autistic Spectrum Disorder” had capacity to conduct these proceedings (as a litigant in person).  The subject matter before the court was the validity of JH’s Advance Decision to Refuse Treatment [ADRT] made five years earlier.  The need to establish the validity of the ADRT implies (though I don’t think the judge explicitly declared) that JH now lacks capacity to refuse treatment.  (We blogged this case: “‘Vindicated!’ The experience of P in the Court of Protection”.) 

If there are other cases readers are aware of, please let me know.

This case will be back in court on 19th April 2023. It will be interesting to see if Patricia is found to have subject matter capacity – to decide about her own medical treatments for anorexia nervosa.  If she does not, then this case will join those above as another white leopard case.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 400 hearings since 1st May 2023. She tweets @KitzingerCelia

[1] Reporting restrictions were dealt with appropriately both during and subsequent to the hearing.  The judge raised the matter of reporting restrictions and provided a brief summary of them within a few minutes of the start of the hearing.  He alerted observers (as far as I’m aware I was the only member of the public observing) to the fact that the Transparency Order protects the identity of the protected party, her family members, anyone with medical responsibility for Patricia, and (because of the risk of jigsaw identification) it also prohibits naming a country.  This verbal account accurately reflected the “subject matter of the Injunction” in the Transparency Order of 20 January 2023, which was sent to me by counsel for the Official Solicitor during the course of the hearing (with an alert that it may be amended). The judge added that it may also “possibly” cover the names of the three Trusts involved as well. Counsel for the applicant Trust made the case for adding their identities to the injunction (again, this was a concern with jigsaw identification) and the judge said he was minded to do so, but asked whether PA journalist, Brian Farmer (also present) and I, had anything to say on the matter.  We both did.  Brian’s view was that since he did not intend to write anything about this directions hearing, he was content with the order for now and would make submissions at the final hearing.  My view was that, since I was planning to write something about the directions hearing, I would like to name the applicant Trust (but not the other two).  The judge decided we should not be able to name any of the three Trusts, pending Patricia having the opportunity to appoint a lawyer to represent her own views on the matter.  Counsel for the applicant Trust then sent me the amended Transparency Order later the same day. In my view, this was all efficient and timely behaviour from everyone involved. Subsequent events which I cannot report here mean that I do have additional concerns about the current (and previous) Transparency Order, and Brian Farmer  and I will raise these concerns in advance of the next hearing.  I spell this out in detail since I tweeted, shortly after this hearing finished, about a different hearing, earlier in the same week, attended by two members of the public, expressing my concern about the way the reporting restrictions were managed in, and subsequent to, that hearing. That tweet was interpreted as referring to the hearing described in this blog post. I did not intend, in that tweet, to refer to this hearing. I apologise for creating a situation in which that misunderstanding occurred.

[2] We are not allowed to audio-record court hearings, so quotations in this blog post are based on contemporaneous touch-typed notes. They are as accurate as I could make them, but are unlikely to be 100% verbatim.

[3] The lawyer representing Patricia via the Official Solicitor up to that point then turned off his video and symbolically left the proceedings – reappearing only to make contributions to a discussion about  “transitional arrangements” for transferring information between the Official Solicitor and Patricia’s future legal team.

The silent courtroom: A remote hearing without sound – and why transparency matters

By Celia Kitzinger, 26th February 2023

On Wednesday 22 February 2023, I watched two and a half hours of a hearing before Mr Justice Moor in the Royal Courts of Justice  – without any sound, because Cloud Video Platform was malfunctioning. 

Cloud Video Platform (CVP) often malfunctions.  I’ve heard lots of judges complain about it during court hearings, as court staff have struggled to ensure that people attending or observing online can see and hear, or be seen and heard.

 A survey of 1,500 judges asked to express an opinion on video conferencing technology in use across Britain’s courts and tribunals found that most prefer using Microsoft Teams for remote hearings rather than the made-to-order video platform bought as part of a £1.2bn Ministry of Justice digitisation initiative.  

Usually, when there’s a problem with CVP, judges wait 10, 15, 20 minutes while clerks or IT people (if they’re lucky enough to have any) try to fix it.  If that doesn’t work, I’ve seen judges (in all-remote hearings) switch to Microsoft Teams instead, or in hybrid hearings they’ve moved everyone to a different courtroom where CVP is functional.  It’s deeply frustrating for judges and a massive waste of court time.  HMCTS (His Majesty’s Courts and Tribunal Service) should be hugely embarrassed about this IT purchase.

Until this hearing, though, I’d never had the experience of a judge and two counsel simply deciding they were “content” to proceed despite the fact that the CVP audio system was entirely non-functional and nobody on the remote platform could hear anything from the court.  I’m not sure who everyone was on the CVP system, but they included at least three members of the public as observers, and someone identified as a Legal Director for an NHS Trust. (I hope they didn’t include P.)

Several of us explained, in the ‘messages’ box on CVP, that we couldn’t hear anything.  We were told that the judge knew that, but that he’d decided to go ahead with the hearing anyway.  I asked if there would be some attempt to fix the audio at some point and was told yes, so I remained on the platform in the hope of restored functionality. (One of the other observers left within an hour, another held on for nearly two hours).  But the CVP audio was never fixed, so I ended up observing about two and a half hours of silent court.  (I gather the judge assumed that I must be able to hear, since I remained on the platform – but his clerk most certainly knew otherwise!)

This blog is about what it’s like to watch (but not hear) the court in action.   What can you say about a hearing when you actually couldn’t hear a single thing?


The hearing (COP 14053355) was before Mr Justice Moor in Court 43 at the Royal Courts of Justice.  It was listed as “hybrid CVP” and  For Hearing in Open Court”. 

To attend via Cloud Video Platform, all I needed to do is click on the link, once I eventually got it, and then answer questions about whether it can use my audio and video [yes] and type my name in a box. There’s helpful information for those who’ve never used it before on how to join Cloud Video Platform for a hearing here.   

After listening for a bit to “Waiting for the Conference Host to join” in a virtual waiting room, the screen springs to life and I can see the courtroom.

The courtroom

The Royal Courts of Justice (RCJ) is an amazing Gothic Revival building opened by Queen Victoria on December 4th 1882.  

When I’ve attended in person, I’ve first gone through airport style security – on a bad day that takes about half an hour –  and then walked through the stunning Great Hall, which is like a cathedral with a marble floor, majestic arches and stained-glass windows.  You walk the length of the Hall, turn left, along a corridor through several heavy wooden swing doors, out into a courtyard and turn right – and that’s where all the in-person COP hearings I’ve attended have been held, in the Queen’s Building, a disappointingly modern and rather undistinguished building at the back.  And that’s where today’s hearing is, in Court 43.

I don’t think I’ve been in Court 43 in person, but it looks very much like all the courts in the Queen’s Building (and county courts across England and Wales) that I have been in. The closest comparison I can think of is a slightly shabby, utilitarian, small university lecture theatre in an ‘old’ university, devoid of charm or gravitas. It has dark wood-panelled walls and paler wooden lecture-style seating – fold-down seats for the front two rows and bench-style seating behind that.   It would seat maybe 40 people at most when completely full (outside of covid restrictions).

Cables (for laptops, I think) snake across the floor.  There are five little bottles of mineral water on a table at the front (though several people have brought their own reusable flasks) and a pump dispenser bottle that looks like hand sanitiser to one side.  Paperwork is strewn over the available surfaces. The people in both the front and second rows all have laptops (or maybe one is an i-pad) and those I take to be solicitors are typing away during most of the hearing.

People who’ve not attended court hearings in the RCJ before sometimes imagine that observers sit in a raised public gallery like the Visitor’s Gallery in the House of Commons or the Public Gallery at the Old Bailey, where criminal trials are held – something like the dress circle in a theatre.  But no, in the RCJ observers just sit in the back row of a pretty flat room – though it looks from the video-screen as though the seating at the back in this court room is very slightly raised, with one small step up. 

The camera is angled from the front of the court – I would guess about level with and to the left of the judge. What’s on screen seems to me pretty close to a ‘judge’s eye view’ of the court.  The judge isn’t on camera (and I never see him). I can’t see anything of the judge’s bench (the raised desk at the front) or the front of the court.

This view on the video-platform is very different from the view I get in physical courtrooms, where I sit at the back of the court. My view is usually the back of everyone else’s heads, and across them (or through the gaps between them) to a distant judge.  The camera in this hearing is as if I walked to the front of the court next to the judge and turned around.  I can see everyone’s faces!

The people

There are seven people visible on screen: two in the front row, three in the second row and two in the third row.

It’s immediately obvious which ones are the barristers.  They’re the two in the front row – both wear wigs and gowns, and the male barrister (I can’t see the female one properly) is wearing a jabot – otherwise known as a ‘court bib’ or ‘neck doily’ – two rectangles of white linen, designed (in 1640) to conceal the collar of their shirt. 

These pieces of linen were thought to be an essential component of upper class, male fashion in the baroque period, and were originally very wide and flamboyant.  By the 1860s, they had become two simple rectangles, which are still worn by barristers today; the two rectangles are even said to represent the tablets of Moses in the Old Testament.” (Scott Haley in Lawyer Monthly).  

Usually, the barristers introduce themselves and their ‘teams’ at the beginning of the hearing.  I don’t know if that happens today, since I can’t hear anything, but I think I recognise the female barrister anyway. She’s on the very far right of my screen with (mostly) only her right shoulder and right hand visible to me (when she gesticulates, which she does a lot). But on occasions when she’s still standing up but stops talking and gazes up (I assume at the judge) her face swings into view: small and fuzzy on the screen – but I think it’s Nicola Kohn (her last name is pronounced to rhyme with “John”, as I’ve heard her tell several judges in previous hearings).  I don’t recognise the male barrister.   

I email the court clerk and she helpfully provides the names of both barristers and the parties they’re representing:  Nicola Kohn of 39 Essex Chambers  is counsel for the NHS Foundation Trusts and Martin Westgate KC of Doughty Street Chambers is representing the person at the centre of the case (P).  

I don’t know (because I couldn’t hear the introductions and the court clerk doesn’t tell me) whether Martin Westgate is acting for P directly (i.e. in accordance with her instructions) or whether he is acting in her ’best interests’ as determined by a third party – most likely the Official Solicitor.  The latter is much more common, because (with rare and significant exceptions) P is almost always deemed not to have ‘litigation capacity’. 

It’s conventional for solicitors to sit behind the barristers they instruct – so I look at the second row.  There’s one young woman with long dark hair directly behind Martin Westgate (on the left of my screen)  so I take it she’s his instructing solicitor. And behind Nicola Kohn (on the right of my screen) there are two young women sitting next to each other  – also with black jackets and laptops – who I take to be solicitors instructing her (though I don’t know why there are two of them). 

In the third row there’s a man in a grey suit making notes in a black notebook (on the Nicola Kohn side of the courtroom) and then a couple of seats away from him, pretty much in the centre of the row, there’s an older woman in a black top with a white necklace, surrounded by a mass of paperwork.  Neither of them looks like ‘family’.

I look around the court, and on the video-platform, to see if there’s someone I can readily identify as P or P’s family members.  This is sometimes obvious online – for example,  when a couple attend on a single screen with a domestic backdrop (maybe parents of P?) or when someone is present from a hospital bed (P?)). Looking at people in a physical courtroom, I wonder about anyone clearly not ‘attached’ to the barristers and solicitors, or not dressed in traditional dark clothing, or people who appear anxious and distressed.  Are they observers?  Family members?  P themselves?   But everyone here looks as though they have a professional involvement in this case, rather than a personal one.  I get the impression that this hearing is happening in the absence of the person at the centre of the case (and their family) – and I wonder why. 

I don’t think anyone is observing the hearing in person as a member of the public.  I know that journalist Brian Farmer is not in court today.

The action

Watching this court hearing unfold in silence is a bit like watching an old-fashioned black and white movie. Everyone is wearing black, white or grey: the only colour is the sepia-toning of the lighter wooden seating.

I can see the barristers speaking – first one, then the other – and I try lip-reading, but am entirely unsuccessful.  

With nothing to hear, I pay attention instead to the small movements of the courtroom.

Counsel for P moves between his laptop and paperwork, on his left, and the wooden boxy laptop stand on his right, which he often uses to lean on when he’s standing up. He gesticulates quite a lot as he speaks: once he holds both hands in front of him at shoulder height, palms outwards (it looks like a ‘surrender’ gesture); on several occasions he chops the air with his right hand – maybe in beat with his speech, maybe enumerating his points?  Occasionally he does what lawyers call “turn my back on the court” (for which they ask permission of the judge): i.e. turn around to consult with, or receive information from, his solicitor seated behind him.  (Once she leans forwards and taps his back to indicate her wish to convey something.)

Counsel for the Trust is only half-visible (vertically) on screen for most of the hearing: she slides in and out of shot depending on where she’s looking. But I can see her repeatedly taking her glasses off (presumably when she needs distance vision to see in the direction of the judge) and then putting them back on again when she looks down at her laptop and the paperwork.  She gestures with her right hand (often holding her glasses). She hikes up her gown over her shoulders several times.  She connects her laptop to a power source.  She sips from a glass of water.  

Other people in the room have characteristic fidgets that I come to recognise.  One keeps pushing his glasses back up against his nose with a fingertip.  One repeatedly flicks back her long hair behind her right ear.  People get things out of their bags: a sweet, a tissue, lip salve, a mobile phone (briefly consulted and returned).  

It’s hard to concentrate, and not very rewarding to watch.  I intermittently move to my emails, or wander off to get a cup of coffee, or check out my social media accounts – still waiting, increasingly more in hope than expectation, for the restoration of sound.

Then, at around 15:40, something happens.  There’s a restlessness in court. Neither barrister is standing or speaking, and people are moving around.  The older woman in the third row back gets up and moves off-screen – but she’s not left the building (I assume) since her paperwork is still strewn over the surface near where she was sitting.  I think she’ll be back soon (maybe a toilet visit?).  Hands reach for the water bottles at the front, but I can’t tell whose hands they are: two of the five bottles are removed.  And now somebody new is in the frame. A young woman, dark suited like everyone else, but someone I’ve not seen before enters from the left of my screen and scoots down the row towards the man in the grey suit, past the place vacated by the older woman. She sits down next to the man and she seems to be engaged (briefly) in conversation with him.  Who is she?  So, there are actually eight people in court, not seven, as I’d thought (plus, of course, the judge and the court staff or clerk, who must be there too, though I can’t see them).

Five minutes later the court has settled, and the barristers are alternately speaking and typing again –  but the older woman doesn’t return.  

Then it dawns on me.  She must be a witness and she’s still in court but I can’t see her because she’s up at the front somewhere, and she’s giving evidence.   And that’s probably what the younger woman who’s suddenly appeared in frame was doing earlier.  So, what I’ve been watching hasn’t been submissions, and lawyers dealing with questions and interventions from the judge, as I’d assumed, but witnesses being sworn in, giving evidence and cross-questioned. Why wasn’t the camera on the witnesses?

It’s not that common to have the opportunity to observe witnesses giving oral evidence in the Court of Protection.  That’s what I should have been seeing (if anyone had thought to rotate the camera so I could see the witnesses on the stand) and hearing (if the audio had functioned as it should).

It all ends at about 16.30. The barristers whip their wigs off immediately. Then everyone is gathering up their bags and putting away their laptops and paperwork.  

Cloud Video Platform continues to run in the empty courtroom.  

After 10 minutes I exit the platform.  

What did I miss?

At 18.03, after the hearing was over, I was sent a Reporting Restriction Order (RRO) along with the Position Statement on behalf of the applicant Trusts – one Trust responsible for P’s obstetric care, the other for her mental health. 

The RRO tells me that the Court was asked to consider:

“(a) [P’s] capacity around her obstetric care and treatment; and 

(b) If [P] is deemed to lack capacity, whether it is in [P’s] best interests to have a planned caesarean section, to be undertaken under spinal anaesthetic.”

The RRO includes a schedule with P’s name, the names of three people with responsibility for P’s care, and the names of the responsible solicitors acting for the parties.  I google them – find photographs, match faces to names. 

The Position Statement tells me that P is 39 weeks pregnant and “suffering from first episode psychotic illness; requires a caesarean section to ensure the safest possible outcome for her and her baby and, in the view of all the clinicians responsible for her care, lacks capacity to conduct these proceedings and to make decisions regarding her obstetric care and support”. 

There is a disagreement about whether or not P has capacity to conduct proceedings and to make decisions regarding her obstetric care. The Trusts think she doesn’t; P’s own legal team think she does.  “As a result, live evidence will be taken in court and the two positions tested”.  That’s what was happening during the silent hearing.

I’m told that the hearing will continue on the following day – with submissions and an oral judgment. Unfortunately, I’m not able to attend, but I let other potential observers know – and both the journalist Brian Farmer and the medical law and ethics researcher Ruby Reed-Berendt were there on 23rd February 2023 (the latter having also sat through nearly two hours of today’s silent hearing).  Brian’s report is here (“Woman with mental health difficulties gives birth after judge approves C-section”)  and Ruby’s will follow shortly as a blog post for the Open Justice Court of Protection Project.

Transparency matters 

Three members of the public attempted to access this hearing on Wednesday 22nd February 2023: me and two academics working on medical law and ethics. It had been listed on the Royal Courts of Justice Daily Cause List as “For Hearing in Open Court”.  

It ran over three days – and for two of those days there were in fact observers present who could both see and hear the proceedings.  I understand that the hearing was moved to another court to enable remote access on the third day.

But on Wednesday 22nd February, when witnesses gave evidence and the court addressed the crucial question as to whether P did or did not have capacity to instruct her own legal team, and to make her own decisions about her obstetric care – on that date, Cloud Video Platform was malfunctioning, and the court did not delay the hearing to try to get it fixed or to move to another courtroom.

I understand that the court (and the lawyers) were desperate to get on with this hearing: it was obviously urgent given that P was 39 weeks pregnant.  I don’t think there was a conspiracy to exclude us.  But some people will think that.  The email inbox for the Open Justice Court of Protection Project is full of desperate correspondence from people who tell us they’ve suffered harm from this Court – including deception, exclusion, unfair treatment, and manifest injustice.  I am not immune to those communications – especially in the aftermath of the debacle concerning closed hearings and the new Guidance from the Vice President authorising the court to “cross the line from silence to active deception” as “a last resort” (§27(2)).

Here’s what I wrote to Counsel for the Trusts (and I gather it was shared with the judge):

I can see from the PS (which says that P is 39 weeks pregnant) why you would be desperate to proceed.  But I would have hoped (given the very serious decision being made, and the presence of at least 3 observers and the Legal Director of the NHS Trust on the link) that maybe 10-15 minutes could have been given over to trying to fix the problem with CVP, or move to another court.  That’s what’s happened in other cases, including urgent serious medical treatment cases. (For example, I’m personally aware of  three hearings before Hayden J and one before Poole J where judges have moved to a different courtroom because of CVP problems.)

Our experience as observers today was, of course, enormously frustrating.  A couple of people had rearranged their schedules to observe this case. We’re told that the judiciary is deeply committed to transparency and that it’s “a fundamental principle” in the Court of Protection – but it was abandoned very quickly today.  It didn’t feel as though our presence as observers was valued at all. Given a technical hitch, we were quickly dispensed with.  There was no formal attempt from the judge to explain or apologise: it was left to the poor member of staff who corresponded with us about what was going on. This episode has created some scepticism about the court’s commitment to transparency – not least because it relates to an area of the court’s work (court-ordered caesareans) which as you must of course know is already a source of some disquiet amongst members of the public, including childbirth professionals. 

We acknowledge, of course, that making the right decision in a timely fashion for P is the most important consideration for the court – but the ideals and principles of transparency in a democratic society are part of, and integral to, “making the right decision” for P. The presence of observers is supposed to protect P against the arbitrary use of state power and to keep the judge while judging under trial. Excluding observers without taking the time to fix or manage a technical hitch, so that a judge can get on speedily with ordering invasive surgery in our absence, is deeply concerning.  

I will be raising my concerns about the (very frequent) malfunctioning of CVP with His Majesty’s Courts and Tribunal Service, whose responsibility it is.  But in my view, a judiciary committed to transparency as a ‘fundamental principle’ needs to accept more responsibility for ensuring public access, despite the challenging conditions created by an embarrassingly expensive non-functional court video platform.  Two days later, I observed a (fully remote) hearing before this same judge conducted via MicroSoft Teams: it worked perfectly.

Open justice is an important protection and safeguard for the vulnerable person at the centre of the case. Decisions to impose draconian measures (deprivation of liberty, invasive medical treatment) should not be made in secret.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project.  She has observed more than 400 hearings since 1st May 2020.  She tweets @KitzingerCelia

Man lives for months in care home bathroom: “An egregious situation”

By Celia Kitzinger, 22nd February 2023

The man at the centre of this case is in his mid-50s and lives in a care home – or more specifically, in a communal bathroom of a care home. He “retreated” to the bathroom more than six months ago in July 2022  “where he has essentially remained and emerged on only limited occasions”.  

He has learning disabilities, autism with “unusually acute sensory needs”, and he “exhibits challenging behaviours”.  My understanding is that the bathroom is the only place he feels safe.

There was agreement in court that this is an unacceptable living arrangement for him: it’s a “horrible situation” (Sophia Roper KC, counsel for the man via his litigation friend, the Official Solicitor), “hugely regrettable” (Toby Kippax, for the local authority) and “an egregious situation” (HHJ Melissa Barlow).  

The hearing

The hearing (COP 14000147) was before Her Honour Judge Barlow sitting (remotely) at Bristol Civil Justice Centre on 9th February 2023. 

I was surprised to learn that it was not the local authority who made this application (back in late September 2022) but the man’s representatives who took the initiative and asked the court to do something about the situation. 

It was a very short hearing, basically because there was nothing for the judge to do at this stage. 

Counsel for P

Summarising the situation at the start of the hearing, counsel for “Brian” (my pseudonym for the man at the centre of the case) said that the position was that “after several months of first somewhat abortive attempts to consider alternative care homes, some delays in bringing the matter to court, and some going around the houses in the usual way” there is still no draft order before the court authorising a move for Brian to somewhere more suitable to live. 

This is, she said, “a very grim situation for him, and the Official Solicitor has been extraordinarily anxious about his position”.

A report from Independent Social Worker [ISW], Eleanor Tallon, has been “very helpful” and led the local authority and Integrated Care Board to search for “a much more targeted placement”.  One has been found which the ISW says is able to meet Brian’s needs.  

There’s a lot of work to be done, and there’s an optimistic, positive and energetic team ready to start very soon on the adaptations required at the property – in particular installation of a bathroom.  There are some potential headaches, including asbestos, some of which can be safely left alone and some of which can’t. There’s a cautious estimate of 10-12 weeks for it to be ready for him to move into. Nobody is suggesting that this further wait is good, but nobody’s suggesting it’s other than the least worst option. A question that might occur to the observer is why hasn’t anyone thought about an interim move, and the answer is, we have, but that’s likely to make things worse and would precipitate a further decline.  We did briefly consider whether he could be moved before the building work is completed but that’s likely to cause disruption to the start of the placement.” (Counsel for P)

She added that the Official Solicitor’s view was that “lessons should be learnt from what has happened in the past”.

Counsel for the LA

The LA’s position is that we absolutely recognise [Brian’s] situation is hugely regrettable but in terms of context, he’s lived here for 30 years, and he struggles with any change, even the smallest degree of change. The local authority was undertaking regular reviews and prior to his retreat to the bathroom there was no indication that it would be appropriate to change his placement.  Unfortunately, his retreat to the bathroom in July 2022 was unforeseen in terms of its duration.  He had retreated to the bathroom before, but it would be for a short period, and he’d come out after the unsettled period. The significant precipitating factor here is that he’s not come out – but before changing his placement it had to be something dramatic, given this is his home of 30 years and he finds change difficult.  Finding a placement where his sensory needs could be met and with a high quality of care was difficult.  However, we have now found somewhere for his single occupation. It’s unfortunate that it’s taken as long as it has, but it’s a complex process, and it’s certainly not for want of trying on the part of the commissioners.” (Counsel for the LA)

Judicial comment

The judge said that it wasn’t “what the local authority has done since it became involved” but rather the way the situation was allowed to continue beforehand that concerned the court and the Official Solicitor.  “It’s how when P retreated to the bathroom, and stayed there, it took such a length of time for any positive action to be taken… Everyone appreciates the difficulty of finding a new home, but whether those difficulties have been exacerbated by what has been allowed to come to pass….”.  

She ended the hearing on a slightly more up-beat note: “It’s not for me to investigate what went wrong. I’m not apportioning blame.  We are where we are.  This is an egregious situation and I’m glad something has been done about it”.

The next hearing is listed for 4th April 2023.


I was told that counsel had not prepared position statements, so I was totally reliant on what I heard in court in reporting on this case. I did ask counsel for Brian for a previous position statement from one of the earlier hearings (there have been about ten) to enable me to get a better sense of the background to this case, but did not receive one. I am left wondering about how Brian and the care home have been coping all these months. For example, is he sleeping on the bare floor or have they moved a bed into the bathroom?  Does he come out for meals or eat his meals in the bathroom? Does the bathroom ever get cleaned? How is this working out for other residents who might want to use the communal bathroom?

This was a disturbing hearing to watch because it was abundantly clear that something had indeed gone badly wrong and – as ever in the Court of Protection – the focus is on putting things right, rather than interrogating the past. I often feel, as an observer,  that there are a lot of lessons that should be learnt from past failings (frequently involving delays) apparent in the management of many cases that come before the court. But in fact, I see little evidence that anyone does draw out such lessons, or that what has happened is analysed sufficiently to permit systemic change.  Perhaps there’s simply no slack in the system to allow for that.

I’m also disturbed by the way transparency was managed in this case. It was listed as a public hearing, and I was told at the outset that there was a transparency order “in conventional terms” (counsel for Brian) and was sent one with the usual restrictions.  A week later – after I’d asked whether an earlier position statement might be available to help me understand the background to this case –  I received subsequent correspondence suggesting that additional reporting restrictions might be sought, that go beyond those in the ‘standard’ reporting order I’d been sent. I requested further information – which I’ve not received a week later.

Obviously, I don’t want anything in the way I’ve reported this case to cause Brian harm (e.g. because people who don’t already know him and his situation might recognise him from this description, breaching his right to privacy).   

Equally obviously, I’m alarmed at the harm that has already been caused to Brian by the circumstances he’s been living in, and I want people who read our blog posts (who are predominantly professionals working with the Mental Capacity Act 2005) to know about what’s happened, and to be alert to the risk of such situations in future. That’s one of the few ways in which there’s at least some chance that  “lessons” can be learnt. 

I’ve written previously about both delayed and ‘retrospective’ transparency orders (e.g. here and here), pointing out their chilling effect on transparency in the Court of Protection. 

Celia Kitzinger is co-director of the Open Justice Court of Protection Project and has observed more than 400 hearings since 1st May 2020.  She tweets @kitzingercelia

Standoff about the appropriate expert: A pragmatic judicial solution

By Celia Kitzinger, 21 February 2023

Laura Wareham, 34, has been in hospital since April 2022 following an emergency admission. 

She has “a hugely complicated medical background”, including “autistic spectrum disorder”, “bipolar affective disorder” and “Bodily Distress Syndrome”. An independent expert  has found that she lacks capacity to make decisions about residence, care and support, medical treatment and contact with others (and to conduct these proceedings).

In August 2022, Laura was intubated, ventilated and very seriously ill.  She’s now stable but remains in the High Dependency Unit with 1-to-1 nursing care.  

Everyone agrees that she doesn’t require care in an acute hospital setting and hasn’t done for some time. Everyone agrees she should be discharged.  There is disagreement as to when she should be discharged, and where to – and an expert (Dr A) is currently at work to develop a care plan for her.

I can report Laura’s name, and the names of her parents, Conrad Wareham and Erica Wareham, because PA journalist Brian Farmer made an application to do so (and the family did not object).  I cannot identify the hospital where she is being treated, or any of the professionals involved in her care.

The challenge confronting the judge at this hearing was the involvement of someone I’ll call Professor X, an expert in infectious diseases.  Dr A, the expert who is working on Laura’s care plan wants to be able to draw on his  expertise.  Both the Health Board and the Official Solicitor support his doing so.  But Laura’s parents, and Laura herself,  very strongly object to Professor X’s involvement.  This was the ‘stand-off’ position at the beginning of the hearing.


There has been conflict and disagreement between Laura Wareham’s parents and those caring for Laura for a long time. 

I observed an earlier hearing in this case back in August 2022 and blogged it (“I am fearful for my daughter’s life”: Serious medical treatment in a contentious case).  Brian Farmer also wrote about it: “Retired nurse tells judge her daughter ‘is not safe’ in Betsi Cadwaladr health board hospital’).

There was a subsequent hearing I did not attend, but which was covered by Brian Farmer.  He wrote:

“Consultant anaesthetist Conrad Wareham and his wife Erica, a retired nurse, outlined worries about the way their 34-year-old daughter Laura Wareham – who has mental and physical health problems – was being cared for by specialists working for Betsi Cadwaladr University Health Board, which is based in Bangor, Gwynedd.

He told a judge overseeing a hearing in the Court of Protection on Wednesday that they were worried about “interventions” planned by specialists and said the “organisation as a whole” had demonstrated it did not have the capacity to manage his daughter’s condition.

Mr Justice Francis made no criticism of specialists or the board, but said Dr and Mrs Wareham had been “interfering” with Miss Wareham’s treatment in a way that was “detrimental”.

Judge criticises consultant concerned about how doctors are treating his daughter at Welsh health board”.

Hearing on 16th February 2023 

This case (COP 1397774T) has not had the benefit of judicial continuity:  it been before Cobb J and Francis J previously, and today it was before Arbuthnot J. 

The applicant Health Board (Betsi Cadwaladr University Health Board) was represented by Scott Matthewson of Serjeants’ Inn Chambers and Laura Wareham was represented by Ian Brownhill, via her litigation friend the Official Solicitor.  (Two barristers representing local authorities were also present but played a minimal part in the proceedings.)

Laura’s parents, Conrad and Erica Wareham were litigants in person – having had legal representation until that very morning (the legal team “abandoned us”, they said).  This had led to a confusing situation where an agreed draft order had been placed before the judge which was not in fact agreed by the Warehams.  The draft order included the involvement of Professor X in Laura’s care plan. The parents object to his involvement – and so, most pertinently, does Laura herself.

The judge remarked that she’d read the attendance note from the Official Solicitor’s representative who visited Laura in hospital.  “She was very upset when Professor X’s name was mentioned.  She used all sorts of abusive language, and threw something at a nurse – though the nurse had nothing to do with it”.  

Counsel for the Health Board recognised that there were problems with proceeding with Professor X given Laura’s views (“if she has no trust in one of the experts feeding into her plan, there is a risk of non-compliance with it”). But he pointed out that Professor X “won’t be meeting her”.  Professor X is only to be instructed to write a ‘desktop’ report about Laura’s susceptibility to infection. 

The judge asked if there is “someone else who could do what Professor X could do – he can’t be the only expert”. 

It turned out that Laura’s parents had already made a suggestion for different expert but it hadn’t been followed up – and it wasn’t clear whether or not the doctor they wanted was available to act in the required timescale, or whether Dr A agrees that he’s the type of expert he’s looking for.

Conrad Wareham explained that Laura’s concern “is not so much about meeting Professor X – rather she’s concerned about his input into a close friend of hers, that was extremely damaging. She’s very concerned about him having any involvement”.

But Laura’s legal representative supported Professor X’s involvement.

OS:  The most important thing is to get Dr A’s report as soon as possible.  It’s a concern that he has still to report.  We are of course concerned that Laura would be upset with Professor X’s involvement, but he will not be examining her or directing her future care and treatment. Considering those features, the Official Solicitor came to the view that the better thing to do was to get on, get the report done, get Laura out of hospital, and not delay matters further.

Judge: Even at the risk she’ll have no confidence in the report?  Suppose she doesn’t like the report and he’s said to have contributed to it, and she believes he injured or killed a friend of hers, or a friend of a friend.

OS: She might say “Professor X has his hands on it – I don’t want anything to do with it”, but we hope people will work together and explain the report to Laura.  And if the Health Board won’t obstruct [the family’s choice of expert] having some input as well, and he’s available, we say get on and get the report done.

Judge:  They raise the question why is an expert on infectious diseases required anyway.

OS:  She has a propensity to infection, which has been a central plank of the parents’ concerns during the history of this case.  And Dr A has been telling us this is the information he needs to help you to make a decision about Laura’s placement.  If Professor X is not able to be consulted, there is a risk of a report that simply says ‘for the following reasons I can’t give you a definitive decision’.

The judge then asked whether Dr A had been informed of the problem and consulted as to whether there was an alternative expert on infectious diseases who could do the job for which Professor X had been his first choice. He has not: “he’s on holiday at the moment and we have been reluctant to disturb him”.  

Judge:  The job of Dr A is to make sure Laura leaves this hospital as soon as possible. He wants to work jointly with someone else and Laura is very strongly against Professor X.  Explain that the confidence of Laura and her parents will be fatally undermined by Professor X’s involvement. Ask him  if there is someone else who can fulfil that role – reviewing what needs to be done without needing to come in and see Laura. Is there anyone else he can suggest?  If he has an idea about someone else who can do it, the Health Board is to approach that person and see if they’re able to do it and turn around this piece of work. I do think confidence in the report by this adult patient and her parents is an important feature of this case.

After prompting by Conrad Wareham, the judge further directed that Dr A should be asked whether the family’s proposed expert could also be of assistance.

This seemed to me a wholly pragmatic and sensible solution.

There are further areas of dispute concerning (amongst other matters) where Laura is ordinarily resident, and so which local authority bears statutory responsibility for her; whether or not Laura has capacity to make her own medical decisions (raised by her mother who objects to the expert report finding that she does not); and whether and how face-to-face contact between Laura and her parents can happen, given that in-person visiting arrangements have been suspended at the request of the Health Board due to her mother’s behaviour towards health care staff.   These will no doubt be aired at future hearings.

The next hearing is listed for 22nd February 2023 before Mrs Justice Arbuthnot.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project and has personally observed more than 400 hearings since 1 May 2020.  She tweets @KitzingerCelia.

Review of court-authorised insertion of a PEG tube contrary to her wishes: Has it “all worked out” for EJ?

By Upeka de Silva, 15 February 2023

The person at the center of this case is EJ – a 27-year-old woman diagnosed with rapidly deteriorating Functional Neurological Disorder (FND). She attended A&E on crutches reporting decreased mobility in her legs in April 2022, was admitted as an inpatient, and became rapidly worse so that now she is bed bound and consistently unable to move her body from the neck down.  In August 2022, the progressive FND began to affect her ability to swallow.  She initially accepted insertion of a nasogastric tube, but when it came out in October 2022 she refused to have it reinserted.  She is unable to feed herself.

EJ has a working diagnosis of “Mixed Personality Disorder”, has auditory hallucinations, and her mood dysregulation has raised suspicions of complex Post Traumatic Stress Disorder. She’s been an inpatient in hospital since April 2022.

I observed and blogged about this case before, with my colleague at Compassion in Dying, Jemma Woodley, back in December 2022 ( “It will all work out”).  At that point, EJ was strongly opposed to a feeding tube.  She’d been receiving nutrition and hydration through a naso-gastric tube against her stated wishes.  She’d been chewing through them or dislodging them by violently shaking her head.  In court, she said: “I don’t want a PEG. I don’t want an NG tube, thank you. Or a PICC line. I want to go home, ideally today. It will all work out – it’s about a positive attitude – fake it till you make it.

At that earlier hearing, the applicant Trust (Lewisham & Greenwich NHS Trust) had applied for a declaration that it is in EJ’s best interests to have a PEG (a percutaneous gastrostomy) placed under general anaesthetic, to deliver nutrition and hydration (and medications) directly into her stomach.  The judge (Sir Jonathan Cohen) found that EJ did not have capacity to make her own decision about feeding tubes: she didn’t understand the consequences of refusing treatment and didn’t want to die. Rather she was positive that “things will work out”, without any clear idea how that would come about. So the presumption in favour of life-sustaining treatment weighed heavily in the judge’s considerations.  He found insertion of a PEG to be in her best interests. 

The judge ordered that the case should be back in court (before him) for a review in a few months’ time. He said, given that EJ is “strongly opposed” to the course of action he has ordered, “I think the court owes it to P to consider the matter”.  

We appreciate the complexity of the case, and the challenge of making decisions that would result in the death of someone who doesn’t want to die, but as we recorded in our last blog, we were really concerned about “ the trauma of her autonomy being overruled, and the loss of trust in professionals and in her own agency” from this judgment. We left the hearing wondering: “Will EJ adapt to her life with a PEG? Will the medications she’ll be receiving through it help with her psychiatric illness? Will she be retraumatised and feeling defeated? We worry about counting on resilience and psychiatric medication to make up for the loss of autonomy.” (“It will all work out”)

On 14 February 2023, the review hearing took place (COP 14017521 before Sir Jonathan Cohen).  I was hoping our questions would be answered.

The Review Hearing (14th February 2023)

Since the last hearing, a PEG had been successfully surgically placed under general anaesthetic.  Initially everything seemed to be going well, and EJ was steadily gaining weight.

Then, on 13th January, EJ chewed through her PEG tube despite formal 1:1 supervision being in place. The tube was repaired without any complications but on the 17th of January, nursing staff noted that the PEG feeding tube had been “cut” in three places and it’s understood that EJ had been able to cut or bite through the tube. It’s not been repaired, so EJ isn’t receiving nutrition.  She gets fluids through an intravenous line.

 At a best interests meeting at the end of January 2023 (after establishing that EJ continues to lack capacity to make medical decisions), doctors discussed the impact on EJ’s mental health of continuing to remain in hospital, and the effect of compulsory treatments in maintaining the “schema of her helplessness”.

Given the impact medical interventions have on EJ, the Trusts (both the Hospital and the Mental Health Trust) have decided that the reinsertion of the PEG would not be in her best interests and is exploring discharge options. This was the focus of the current hearing, which was largely concerned with timetabling matters so that further evidence is obtained about EJ’s short and long-term treatment and care so that the judge can make some discharge decisions at the next hearing.

Despite having received a position statement, it was not easy for me to follow the discussions and decisions being made – I wondered if EJ felt the same.  

According to my notes: 

  • The judge confirmed that the future insertion of a PEG or nasogastric (NG) tube would need court approval (and he did not pre-approve it)
  • It was agreed that the Integrated Care Board (“the ICB”) would join these proceedings as a party, as they would be the authority responsible for EJ’s care (including funding it) if or when she’s discharged from an acute bed.
  • It was agreed that an independent expert opinion would be sought to review EJ’s case and report on diagnosis, prognosis and recommendations on proposed treatment plans.
  • Some further reflection was to take place regarding EJ’s deprivation of liberty and the application of the Mental Health Act 1983 as opposed to the Mental Capacity Act 2005.

EJ’s Wishes and Feelings

Counsel for the Official Solicitor representing EJ’s best interests (Rhys Hadden of Serjeants’ Inn Chambers), noted that EJ now says she would prefer to die than be discharged to a neuro-rehabilitation placement.  She also wants to leave hospital and return to live in the community but her previous rented accommodation is no longer available, and she doesn’t currently have a “home” to be discharged to. 

When Sir Jonathan Cohen invited EJ to ask questions and checked in with her about her understanding of what was happening, I was reminded once again of how strong willed she is.

In response to whether she would want to speak with the Official Solicitor, she said, “NO! I do not want to speak with them and will not need to do so.”[1]

In response to whether she understood what was decided, she said, “I was not listening. It is super boring, but I’m cool with it. There’s no need to repeat it”.

In response to whether she had any final questions, she asked, “Do I need 1:1 supervision? They are very annoying”.

In response to confirmation that there will be no supervision, no PEG and no naso-gastric tubes, and that this will remain so as long as she stays hydrated, she exclaimed “What a day –  thank you – don’t worry, I’m hydrated as hell!”

Next steps

Another (hybrid) hearing is expected to take place in approximately three months when EJ’s short and long-term options for her treatment and care will be explored with the help of independent clinical experts. 

EJ will by then have been in hospital for more than a year – a long time to spend feeling like you aren’t being listened to. 

However, the regular reviews make me feel optimistic that EJ will remain at the heart of any and all decisions about her treatment and care.

I hope to report back in a few months time on how it’s all working out.

Upeka de Silva is the Policy and Advocacy Officer at the charity Compassion in Dying.  Upeka tweets @de_upeka and the charity tweets @AGoodDeath

[1] Quotes based on contemporaneous notes as recording is not allowed. They are as accurate as I could make them but unlikely to be 100% verbatim.

A challenging capacity assessment and a professional witness in court

By Josie Seydel and Claire Martin, 19 February 2023

Editorial Note:  A psychologist gave professional witness evidence at this hearing about P’s capacity to make decisions relating to care and contact. The two observers who’ve co-authored this blog post are also psychologists.  Listening to his evidence, they have come to opposite conclusions about P’s capacity.  In this blog post they explain why, and discuss the challenges posed by fluctuating capacity and the balance of protection and autonomy.

UPDATE: The judgment was published on 10th March 2023. You can find out what the judge decided here: A Local Authority v PG & Ors [2023] EWCOP 9

On Thursday 2nd February 2023, we observed the final hearing in the case Josie had  observed and blogged about earlier: COP 13825449 before Mrs Justice Lieven (see “Uncertainty about capacity for contact – and the inappropriateness of using the inherent jurisdiction” for an overview and discussion of the last hearing). The hearing was held over MS Teams and lasted for a little over 2 hours.

The case concerns a 34-year-old woman, P, who was described as having “a diagnosis of moderate intellectual disability, an autistic spectrum condition and recent diagnosis of EUPD” (emotionally unstable personality disorder). She resides in supported living accommodation with 24-hour care (reported as 2-to-1 care during 15 hours of daytime and 1-to-1 care for 9 hours at night), where she has lived since August 2022; prior to this date she lived, with carers, with her mother. The issue before the court was P’s capacity to make decisions around care and support and contact with others.

The parties were: 

  • the applicant local authority, represented by Mark Bradshaw (Some social workers also attended); 
  • the protected party at the centre of this case, P, represented –  via her litigation friend, the Official Solicitor – by  Eleanor Keehan.  (P was also present in the hearing, watching the court process with her mother, and she appeared on screen a few minutes after the formal start of the hearing:  “Oh there’s [Name] – hello!” said the judge)
  • P’s mother, represented by Sophie Allan
  • The Integrated Care Board (with silent status in this hearing)

The parties agree that P lacks capacity to conduct legal proceedings, and to make a tenancy agreement.  They also agree that she has capacity to make decisions about her residence.  

There is disagreement or uncertainty about her capacity as to decisions about some or all of the care and support she receives (especially in the community). There is also disagreement about capacity for contact decisions (excepting family). 

Dr K, P’s former clinical psychologist, had provided a detailed s.49 report which had led to some confusion and disagreement as to whether or not P has capacity to make these decisions (it seems he said that she did, but there were “apparent inconsistencies”). 

A question of hearing the case under the inherent jurisdiction had been raised by the LA in the previous hearing, but subsequently withdrawn. Instead, the question as to whether or not P has the capacity to make her own decisions in relation to care and support and contact was now before the court, and Dr K was present as a professional witness for cross-examination. 

A total of three reports from Dr K had been submitted to the court between March 2022 and October 2022. Further, following a psychiatric inpatient admission in November 2022, P has had an additional diagnosis of EUPD, from a clinician other than Dr K, but no reports were mentioned (or requested) in regard to this.

P was sitting with her mother for the hearing, initially visible on screen but then the camera was turned off and we were told this was because of ‘bandwidth’. (Claire’s notes read:  “P and her mum sitting together in a room, both with coats on and P herself looks a bit fed up, head in hands then chin in hand. Perhaps just waiting patiently.”) The judge said that she was “keen that [P] should be able to hear me” and clarified with Eleanor Keehan (counsel for P) that she could. 

P was not given an opportunity to speak during the hearing, which surprised us. As a result, we did not get any real sense of P as a person, her likes and dislikes, her own thoughts and concerns and what she thought of all of this. There will be a lot of information and processes to which we are not privy though, as observers, and P might have felt included in other ways. All we really learnt about her wishes in this hearing was that she wants to ‘be with people and make friends’

Dr K’s Evidence: Our perspectives


Dr K was affirmed and declared that he had no amendments to make to his assessments and that they represented his true and professional opinion. Counsel for the local authority took Dr K through his evidence and then counsel for the Official Solicitor cross-examined him. 

I found this process somewhat frustrating as it felt laboured and a little fruitless. 

I struggled to ascertain whether there was an actual difference between Dr K’s opinions regarding P’s capacity in relation care and support and her capacity in relation to contact in the community. Dr K’s analysis of P varied and sometimes contradicted itself. 

At one point Dr K agreed that P “lacked capacity at all times and in all contexts”. However, he also said that when P is calm and collected, as she was during their assessments at home in her living room with her mother present, she “recognised risks and could communicate reasoned understanding of situations and actions she could take to keep herself safe” and “passed all the tests on risks, vulnerability and appropriate behaviour” – but he said that these were of a “time specific nature”. He felt that the effects of her autism made her more susceptible to coercion and that she therefore “struggles to employ skills that are otherwise there when she is calm and stable”, which would therefore suggest that P’s capacity fluctuates. 

Mrs Justice Lieven sought clarification, asking: “So your answer to that is, just that not only she lacks capacity when out and about. You said she lacks capacity for all things at all times. Is that your evidence?” To which Dr K responded “Yes, she might sit at home and know to say ‘I don’t want you to come out with me’ but wouldn’t have skills to keep herself safe.” And later “Even when functioning at her best, I still have concerns about her ability to make decisions about care needs in the community even if she’s not in the community at that time.” 

I was becoming more confused, as was the Judge who periodically stated “I’m really confused Dr K, sorry” and“You lost me somewhere there”. I also recalled that at the previous hearing it had been remarked that an assessment of P, made in March 2022 by Dr K, came to the conclusion that P ‘had the capacity to be aware of the risks’ of her contact with strangers – however this did seem to be contradicted by the claims he was making here.  

Although this is clearly not an easy case, I did think it was a little bit of an understatement made by the Judge towards the end of the hearing when she commented that his evidence seemed to “shift in nuance and slightly vary.”

In the process of cross-examination and the exploration of several different and hypothetical scenarios involving P (her capacity to consent to care, her levels of emotional dysregulation, her use of alcohol and her social interactions with others in the community, etc.) more confusion than clarity seemed to occur. Mrs Justice Lieven interjected another astute comment that this was a “classic case of lawyers meeting clinicians, particularly psychologists and psychiatrists. Life just isn’t as simple as lawyers would like it to be. What I’m getting from your evidence is how complicated it is. We can’t dissect P’s mind to get at every instance. Things change depending on different variables. Is that right?”.

During submissions from the lawyers, in which they were continuing to grapple for a distinct delineation of P’s capacity across various different situations, Lieven J steered the hearing back to a coherent focus, stating:  “we can’t have a situation where P has capacity for 5 minutes and then lacks capacity for the next 5” with “smaller and smaller decisions, more and more lawyers, but not better care” and adding that it “leaves carers wide open to assault and unwanted detention claims”.

 Similarly, to the previous hearing I felt this Judge really placed P and her needs back into the centre of the case, and acknowledged the complexity of the situation, and the vulnerability this was potentially placing P’s carers in. Whilst perhaps the Judge was at this point unable to achieve clarity, she certainly achieved direction, navigating the team and reminding them of the objective.


The court went straight into questioning and cross-examination of the clinician (a clinical psychologist, Dr K) who had provided the court with Section 49 reports. These reports had been provided last year, so were not up-to-date reports on P’s capacity. Dr K did make this point during questioning. 

I found myself getting very, very confused about what was, exactly, Dr K’s evidence regarding P’s capacity to make decisions about her care and support, and about contact with others.

A key issue was whether capacity was different when she was ‘calm’ to when she was ‘heightened’. As Lieven J said though, “I can’t have her having capacity for 5 minutes and then not for the next 5 minutes. That’s not do-able for people looking after her.”

Below are some extracts from questioning and evidence given by Dr K during the hearing: 

Extract 1

MB [Mark Bradshaw, Counsel for the Local Authority]: The area I want to ask questions about are concern about what would happen if [P] refused her care and support. [I want to] focus on times when – times of high arousal – [referred to as] ‘heightened state’ in the papers, of anxiety. Is it fair to say that [P] has difficulty executing when in heightened state?

Judge: Executing what Mr Bradshaw?

MB: Executive function – to make a decision about risks.

Dr K: I would say that she would be able to communicate her decision. However she would frequently struggle to understand, and retain and weigh up or use the information at the moment of making the decision. She knows what she wants, but she struggles to understand underpinning factors. [my emphasis]

MB: You describe a test – a 20-item multiple-choice test [assessing the] risks of being exploited and abused. You thought [P] had a good understanding of this? Is that right?

Dr K: At the point of the assessment – calm, unintoxicated, yes.

MB: Different in a heightened state of anxiety?

Dr K: Yes. 

Extract 2

MB: … You discussed three scenarios with [P]. When with an unfamiliar group of male peers and they want her to join them without her support worker; when they want her to get into their car; and having sexual contact. You give an account of P’s responses. Your conclusion … you say she ‘demonstrates a good level of insight into her support requirements’

Dr K: That’s right

Extract 3

MB: What do you consider to be other potential triggers for states of heightened emotion?

Dr K: They are varied. For example, she sees emergency vehicles and believes the police are after her. If she sees them from her home, she thinks people are watching her such as ‘that’s the judge in the car outside’. She gets anxious about where she is going to live, it’s on her mind frequently. Peaks and troughs of anxiety. She might become anxious about passing someone in street, do they pose a danger or not? A range of things, difficulties understanding the minds of others, due to ASD and learning disability. [Things are] misinterpreted, [she] perseverates and finds it difficult to move on. 

MB: Do you consider there are times when at placement [i.e. her home] when she would lack capacity to make decisions about her care and support?

Dr K: The assessment concluded that she lacked capacity at all times in all contexts. She lacks skills to keep herself safe in the community at all times. …

MB: Do you consider when at home she lacks capacity regarding care and support?

Dr K: I’m finding it hard to process…

Judge: [clarified] So, the answer to that is that not only does she lack capacity when out and about. You said she lacks capacity for all things at all times. Is that your evidence? [Judge’s emphasis]

Dr K: Yes, she might sit at home and say I don’t want you to come out with me, but she wouldn’t have the skills to keep herself safe. 

MB: And when heightened at home?

Dr K: Yes. It’s more obvious when she’s heightened. 

So Dr K seemed to be saying, at first, that P can show ‘good insight’ and then later gave evidence that she ‘lacked capacity at all times in all contexts’. Later he spoke about specific occasions of assessments from other colleagues from the Crisis Team (who had been out to attend to P in the community when she had been thought to be at risk). 

This next long exchange was interesting. It starts with Mark Bradshaw asking Dr K if he had mentioned P’s use of alcohol in his reports, and develops into a consideration of how anyone’s actions, if likely to be construed as ‘unwise’, can be differentiated from a person with and without capacity to make those decisions: 

Extract 4

MB: Have you referred to this [alcohol] in your report?
Dr K: I don’t recall, no.
MB: If I can be as straightforward as I can be, it is the LA’s contention that P lacks capacity whenever she is in a heightened state. What do you say to that?
Dr K: I think there is some variation to her decision-making in a heightened state. In my previous clinical experience, she’s been in the community denying support, the team met with her and she was able to communicate her opinion. For example, saying “I just want to be with people and make friends”. There was no suggestion that she was making an incapacitous decision.  It may have been unwise. 
MB: How to identify this? Is it visible?
Dr K: I don’t think it’s always visible, but shouting, refusing contact, raised voice, walking at pace. It’s only in conversation you can tell if she’s retaining capacity.

Judge: You lost me somewhere there.

Dr K: I’m finding it really hard to come down one side of the fence or the other because it varies so much depending on who she is with, what’s happened, whether she’s had alcohol. There are nuances. It’s so variable. 
Judge: Okay, I get that. That makes sense to me.
MB: I would stop at that point.

At this point I had made a note wondering why Dr K had not discussed fluctuating capacity in his report. His oral evidence was that it is very difficult to assess, definitively, whether P can demonstrate mental capacity for care and support, and contact, decisions. He now seemed to be saying that sometimes P did retain capacity, and sometimes she didn’t. Yet earlier in his cross-examination, he had said that CD “lacked capacity for all things at all times”. Josie had recorded at the previous hearing that the s.49 report had found that P had capacity around strangers (i.e. contact decisions). I was confused. It seemed to me that an independent expert witness report was required.

Lieven J then turned to Eleanor Keehan [EK] inviting her to ask questions of Dr K.

Extract 5

Judge: Back to you Ms Keehan
EK: Dr K,  I appear on behalf of P via the Official Solicitor. In relation to contact with others, one of the areas to be assessed, I want to clarify your view. When she is in a calm state at home, she has capacity to make decisions as to contact with others?
Dr K: I would agree.
EK: So that’s baseline. At baseline she has capacity for contact with others. 
Dr K: [confused by term baseline]
Judge: Forget baseline  – that’s a confusing term.  When she’s at home, with mum, and no triggers, calm, in those situations she’s likely to have capacity about contact with others?
Dr K: Yes
EK: One time, when you saw P in the community when she was in a heightened state, you said there was no reason to believe she was making an incapacitous decision. 
Judge: Are you referring to the report?
EK: No. My notes from Dr K’s oral evidence. You went to her in the community, in a heightened state, and had no reason to believe she was making an incapacitous decision.
Dr K: Not me. That was my colleague – P was in a heightened state, making what might be construed as an unwise decision, but was able to state why: she could explain her reasons.  But other times, she’s not been able to do so.

Returning shortly afterwards to the issue of alcohol:

Extract 6

Dr K: I remember an MDT meeting involving the social worker who was discussing examples of times when P was in the community, behaving in unwise or dangerous ways making her vulnerable, and alcohol was a factor. And then she wasn’t outlining the pros and cons of her situation to others, or showing that she recognised there was a degree of risk.
Judge: Can I just butt in for a moment? I am struggling Dr K. I suspect most people don’t weigh the pros and cons in the same way when they’re out drinking alcohol as they do sitting home in the living room. How am I supposed to assess whether that’s a lack of capacity?  How is this is related to her capacity, as opposed to other capacitous adults? [Judge’s emphasis]
Dr K: I am finding it hard myself to disentangle, which is perhaps why it’s coming across like that to others. It’s hard to disentangle – it’s not clear cut. 
Judge: I understand that, I’m not being critical, but I have to make a decision.

There was then a long exchange between Eleanor Keehan and Dr K trying to clarify his evidence about (a) whether P is unable to keep herself safe at all times; and (b) whether capacity rests on when ‘functioning at her best’ or when ‘in a heightened state’.

Lieven J then intervened in a way that was exceptionally helpful (to me!) to clarify the mire that the barristers had got into with Dr K. I was feeling so confused at this point about what decision was being discussed, the relevance of whether P was at home or out and about, and the influence of her location on when professionals must have assessed her to displace the presumption of capacity and therefore enable a best interests decision to be made (and a coherent care plan to back that up). 

Extract 7

Judge: This is a classic case of lawyers meeting clinicians, particularly psychologists and psychiatrists. Life just isn’t as simple as lawyers want it to be.  What I’m getting from your evidence is how complicated it is. We can’t dissect P’s mind to get at every instance. Things change depending on different variables. ….   I’m getting a picture of P being quite calm at home, less so in the community. My focus must be on decision-making – when she’s faced with an actual DECISION, does one of the stresses come from having to make a decision? ‘Am I going to go off with this bloke or not?’ Or is she OK about making those decisions if heightening factors aren’t there? [Judge’s emphasis]
Dr K: The act of making a decision can be stressful, for example where to live was very difficult for a range of reasons. Trying to balance her own and her mother’s needs, balance what services are telling her. She’s someone who values relationships with others, and she can struggle wanting to please everyone.

Judge: That’s helpful. In my position – I don’t know her – I’m trying to think this through with you. Thank you. Let’s proceed to submissions. P’s situation can’t be that unusual – [being] OK at home, and not, when stressors are around. How …. does any of the case law help me? Section 3 of the Mental Capacity Act; how much of the time does this have to be met to find someone doesn’t have capacity? 

Closing Submissions (Claire)

Mark Bradshaw (MB) – Counsel for the Local Authority

MB: I would say this is a classic case of fluctuating capacity. If that’s right, then what’s been referred to [in case law] is a longitudinal approach ….
Judge: What does that mean?
MB: The PWK case. It’s classically similar in my submission. When becoming anxious, the position is different. I have set out what I would submit to be the ratio of the case essentially. … [then referring to the PWK case] Significant periods of time when the person is lacking capacity. Accepting that the person might have capacity at times, but significant periods when they don’t. It reflects the difficulty Dr K has had.
Judge: I’m not sure the MCA is about the theoretical capacity to make decisions. It seems to me that the critical moment is when the person has to make the decision. … the Mental Capacity Act is about the actualmoment you are making the decision to get into that bloke’s car? Isn’t that right? [Judge’s emphasis]
MB: I think that must be right
Judge: But have any other judges looked at it that way?
MB: I can’t bring to mind. 

Lieven J appeared to be wrestling with a real dilemma between protecting P and upholding her autonomy. She said:

 “The last thing I want to do is intrude on P’s autonomy a millimetre more than I need to do to keep her safe. But I can’t say she has capacity for five minutes and not for the next five minutes. That would be impossible for the poor people looking after her. I am not attracted to this. We do have to make the Mental Capacity Act work. We’ve already gone down the line of making smaller and smaller decisions. It leads to more and more lawyers, but probably not better care.  I’m going to need more persuading that she has capacity when calm and not when she’s not. It leaves carers wide open to assault and unlawful detention claims.”

The gist of Mark Bradshaw’s final submission was that the case was ‘finely balanced’ (a phrase I have become very familiar with as an observer in the COP): either that there isn’t ‘sufficient evidence to displace the presumption of capacity’, or that ‘sometimes P does lack capacity for these decisions and therefore a longitudinal approach should be applied’

Sophie Allan – Counsel for P’s Mother

Sophie Allan’s closing submissions were that P’s mother takes a position “aligned with the local authority; she wants to keep P safe’.  She supports the view that P lacks capacity for care and support decisions, especially when out in the community. She argued that contact with third parties was ‘more difficult’, but that her reading of the evidence ‘in the round’, was that she had reached ‘the inevitable conclusion that decisions, for example getting into cars and houses of strangers, are likely to be incapacitous rather than unwise.”

Eleanor Keehan – Counsel for P (via the Official Solicitor)

Eleanor Keehan, in contrast, submitted that Dr K’s evidence was, in fact, that P was (even at times of being ‘heightened’) able to understand, retain, weigh and use relevant information. This submission was based on the information from Dr K’s colleague. She argued that being dysregulated ‘does not cause incapacity’. She suggested that alcohol is a factor but that ‘there are many people every day who make unwise decisions because of alcohol’. A persuasive point, in my view, was a concern that a declaration of lack of capacity for these decisions would be ‘raising the bar far too high for P as opposed to other people’ and that ‘It is my submission that intoxication can affect anyone’. Eleanor Keehan stated emphatically that there was a risk, with P, of ‘misguided paternalism’ and a consequent erosion of her autonomy. 

Mrs Justice Lieven appeared uncomfortable and said that “parts of your evidence do not accord with what I wrote down”.  She acknowledged that the application was a ‘complicated case on the ground” but said “I’m not going to make a judgment based on what Dr K said and then have you tell me that I wrote it down wrong”.  She emphatically wished to be clear: “I don’t want to be in the Court of Appeal for not understanding the evidence”.

Lieven J directed the three barristers to write down for her an agreed version of what Dr K’s evidence was in relation to P’s capacity to make decisions about care and support, and contact with others.  



On my own reflection of this case, from my perspective as a psychologist, I have been left wondering what the outcome may be for P and have some concerns. 

Although Dr K reported having met with P over 20 times, aside from several assessments and a mention that he felt he generally had a ‘positive relationship’ with P, there was no mention in his oral evidence of any specific therapeutic support that had been undertaken. 

I do not believe that a judgment about P’s capacity to decide about her care and support, or her contact in the community should ignore the possibility that she might be able to develop insight, skills and benefit from education regarding these issues.

I wonder if a behavioural analysis has ever been carried out with P (not ‘on’ her)? This would give some indication as to her triggers to anxious and/or dysregulated states, her thoughts arising from this, any behavioural interventions or strategies she or carers have tried that might assist her to cope without putting herself at risk, and what may be reinforcing problematic behaviours. We already know, for instance, that traffic can trigger P’s anxiety, but also that her anxiety (and rumination) can cause her to lose awareness of risks around traffic. The common factor here is anxiety. 

A common feature of Autistic Spectrum Disorders is a difficulty with sensory processing that can often lead to feelings of overwhelm and anxiety. However, any person, regardless of diagnosis, may well have their cognitive ability and executive functioning impaired when emotionally dysregulated or distressed:  “a narrative review of the literature revealed that anxiety, whether self-reported or experimentally induced, is related to poorer performance across a wide variety of tasks.” (Moran, T. P. (2016). Anxiety and working memory capacity: A meta-analysis and narrative reviewPsychological Bulletin, 142(8), 831–864)

The Position Statement from P’s mother, which I first saw after the hearing itself, described a number of high-risk behaviours such as: P leaving the house at night and not returning for several hours, going ‘missing’ and staying in strangers’ houses overnight, kissing strangers in the street, P reporting having sex with strangers in exchange for drugs or alcohol, and making allegations of assault and sexual assault, all of which were noted in her Positive Behaviour Support Plan. They are also behaviours that cause P’s mother profound concern and anxiety that something catastrophic might happen if P is not protected. In addition, the Position Statement mentions an increase in alcohol use, to a daily basis, with concerns for P’s physical health. These would be highly concerning behaviours regardless of a person’s capacity.  I still wonder whether, in P’s case, this reflects a lack of capacity or simply unwise decisions?  Mr Justice Hayden, in London Borough Tower Hamlets v PB, reminds us that:

The professional instinct to achieve that which is objectively in P’s interests should never influence the formulation of the criteria on which capacity is assessed”. 

Neither anxiety, emotional dysregulation or risky behaviours in themselves constitute lack of capacity. In ‘A Local Authority v RS,  Mr Justice MacDonald also emphasises:

“…the importance of not conflating a narrative account of risky decisions/unwise behaviour with a lack of capacity – there must be detailed and meaningful analysis of capacity by reference to the criteria set out in the MCA. When assessing P’s capacity, it is necessary to carefully consider the diagnostic and functional tests for capacity and the causative nexus between them.”

Which returns me to the three criteria of understanding, weighing and retaining information. It was agreed that when ‘calm and collected’, certainly in relation to her care and support in the home environment, P had a better ability to understand, weigh and retain information.  This implies that, although it may be fluctuating and situationally dependent, P does (sometimes) have capacity. In addition, from the previous hearing, I understood that P had become more stable in her mood and related challenging behaviours since living in supported accommodation – so to me this indicates that P also has the ability to improve her capacity when she has the appropriate support and in certain contexts. I would therefore suggest that there is a good argument that P does have the capacity to consent to her care and that this could be considered as an advance statement of wishes or, which could be employed when P’s capacity fluctuates to a level, perhaps agreed by her, that causes her to lose capacity in a way that puts her or others at risk. In addition, therapy, such as DBT (dialectical behavioural therapy), for example, could empower P, and her carers, with a wide range of skills such as distress tolerance and emotion regulation, to help manage her labile moods and resultant challenging behaviours and thus, potentially increase her ability to make capacitous decisions. This does however, put an inordinate amount of responsibility for carers to assess moment by moment a “complicated case on the ground” (as it was described by Lieven J) and may well risk leaving them “wide open to assault and unwanted detention claims”, which is far from ideal.

I cannot say that I am satisfied by this conclusion. It feels one of cool logic rather than precaution. I am applying my understanding of the MCA and MCA guidelines, albeit limited and inexperienced, (as this is only the second case I’ve ever observed) and from the angle of preserving P’s autonomy.  I am aware that an alternative route (such as a ‘longitudinal approach’ as outlined in Cheshire West  may be more protective and appropriate. However, on the basis of the evidence of Dr. K’s assessments and based on the information provided and considered in my observations – and despite the serious risks to her safety, despite the anxiety of P’s mother and despite the potential litigation against carers – I would conclude that P has capacity  – because I have not heard anything said in court about a clear causal link between an “impairment or disturbance in the functioning of the mind or brain” and P’s inability to make decisions because of this impairment, and the MCA is clear that “A person must be assumed to have capacity unless it is established that he lacks capacity.


This is probably the most confusing hearing I have ever observed – certainly, in terms of what evidence was being presented to the court. I was left with many more questions than answers. 

My reflections focus on what is ‘relevant information’ for a capacity assessment, potential practice effects, the notion of fluctuating capacity and thoughts about the upcoming judgment.

What is ‘relevant information’ for specific decisions?

Dr K at times mentioned the ‘relevant information’. I wondered what relevant information he had understood to be important for the assessments he had carried out. 

39 Essex Chambers has published a really helpful Guidance Note called “Relevant Information for Different Categories of Decisions”. The guidance states: 

Starting with the information set out here means that is not necessary to reinvent the wheel each time they come to consider whether a person can make one of the types of decision covered. If professionals start with the information as potentially relevant (or irrelevant) they will be doing so on the basis that they will be following a path adopted as appropriate by the courts

In this guidance note is information on relevant information (and what is not relevant information) for assessments looking at capacity to make care and contact decisions. 

Thinking back to Dr K’s evidence I can see why it is perhaps hard to ‘come down one side or the other’. As Lieven J said, though, she is in the (in my view, unenviable) position of ‘having to decide’

P could ‘explain’ things at times; but I am wondering whether she really understood the real world meaning of what she was explaining. Especially because, from the accounts of the support workers and her mother, P’s actions were often inconsistent with her explanations. It made me wonder about possible practice effects, and Dr K’s assertion that P often wants to please others.

Practice effects and hoping to please? 

I am not sure how many times, overall, P has been assessed for capacity for care and contact decisions. In the hearing, three occasions were mentioned, all last year. 

Dr K also described P as ‘someone who values relationships with others, and she can struggle wanting to please everyone.’ I wondered whether it might be possible that P has learned what kinds of answers are being sought in an assessment, either in the knowledge that others might afford her more freedom, or in an attempt to try to please the assessor. 

Several goes at something and learning what happens following certain answers could be described as a ‘practice effect’: a change that is a result merely from the repetition of a task. 

Although the focus (see Section 2: 21) of the Mental Capacity Act is decision and time specific, it also stipulates “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself”. There is something ‘magnetic’, as lawyers often say, about being able to follow through from what you say to what you do. A useful article, “When mental capacity assessments must delve beneath what people say to what they do”, tries to marry the assessment process with the real world. The authors say: 

“In our experience, and based on research we are undertaking, we have found that many professionals in the health and social care sectors have artificially created a ‘rule’ that suggests ‘material time’ means only considering a person’s capacity to make a specific decision at the time of the conversation with the person. This means they do not always consider observational real-world evidence from families, carers or professionals as part of the capacity assessment, even when this may be applicable to the decision in hand.”

Could it be possible that the ‘material time’ for P is not necessarily when she is ‘calm and collected’? 

Fluctuating Mental Capacity? 

This possibility brings me to Mark Bradshaw’s suggestion of fluctuating capacity. I have read a lot more about the concept of fluctuating capacity recently. The NHS website information on the Mental Capacity Act says: 

“Does the impairment mean the person is unable to make a specific decision when they need to? People can lack capacity to make some decisions, but have capacity to make others. Mental capacity can also fluctuate with time – someone may lack capacity at one point in time, but may be able to make the same decision at a later point in time.”

The notion does concern me somewhat – as Lieven J said, she had concerns that ‘having capacity for 5 minutes and then not for the next 5 minutes’ might leave the ‘door open to unlawful detention claims.’

The new draft MCA Code of Practice including Liberty Protection Safeguards includes the following on fluctuating mental capacity: 

While capacity is time-specific, for repeated decisions it may be appropriate to consider the broader time over which the decisions need to be made. If a person is only able to make the decisions at limited periods of the time over which they need to be made, it may be appropriate to proceed on the basis that they lack capacity.”

The draft code gives several examples when fluctuating capacity might be considered. I think it must be very difficult for carers on the ground to work with fluctuating capacity, and for people themselves, who are subject to a judgment or decision that they lack capacity due to fluctuating states of mind, to feel a sense of control in their lives. The balance between protection and autonomy seems at its greatest tension when fluctuating capacity is present. 


Mrs Justice Lieven is in a very difficult position. I think an independent expert assessment of capacity for care and support, and contact, is needed. I understand that the applicant Local Authority requested this and it was declined by the Judge. I think, without it, the three counsel will have a challenging job attempting to summarise, coherently, evidence about P’s capacity, on which Lieven J must rest her judgment. 

What is ‘unwise’? What is ‘incapacitous’?  My sense, for P, from the evidence provided and her mother’s concerns – and the clear difficulty Dr K had in coming down on one side or the other – is that evidence that would “displace the presumption of capacity” is variable.  In real life P’s ability to understand, retain, use and weigh consistently, at the moment the decision is being made, fluctuates – and knowing whether or not capacity is present on any given occasion is nigh on impossible. 

I don’t know how much of the time Section 3 needs to have been met (as queried by the judge) to declare a lack of capacity for these decisions. But if  P  were to be allowed to make care/support and contact decisions herself, I have an inkling that it might end very badly for her. I’m not persuaded that, ‘at the material time’ she would be ‘unwisely’ but capacitously choosing those bad outcomes. 

Could her ‘wishes and feelings’ (though not determinative) be worked out with her when she is not ‘heightened’, in relation to different scenarios – like an advance statement – of what she would (ideally) like for herself in those imagined future situations? The starting point might be her wish to be with people and having friends (her stated wish). How can we make this happen safely?  As Lieven J said: “The last thing I want to do is intrude on P’s autonomy a millimetre more than I need to do to keep her safe.”

The judgment will be handed down soon and we will add the link to this blog. 

Josie Seydel is a Chartered Counselling Psychologist, Dialectical Behavioural Therapist and Mindfulness Teacher with a background in a diverse range of settings including: primary care services, eating disorders services, women’s prison services, adolescent in-patient services and private practice in London’s financial district. She tweets @JosieSeydel76

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

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