Covering the Court of Protection – a journalist’s take

By Polly Rippon, 16th August 2021

I recently wrote a piece about a Court of Protection hearing I observed. It was published in The Times with the headline: “Family tries to stop marriage of woman with learning disability and £1m fortune to conman”.

There’s also a blog on the Open Justice Court of Protection website about the same hearing, written by a public observer, Celia Kitzinger, “Controlling and coercive behaviour: A hearing before Roberts J”. 

These are two very different reports of the same hearing.  We watched it together but produced very different accounts, for very different audiences.

The blog account has been read by just under 1,500 people – a specialist audience composed largely of people working in health and social care, and lawyers in the Family Court and the Court of Protection.  My newspaper report will have been read much more widely: The Times has approximately 1.5 million readers daily in print and online.

This is an account of why and how journalists’ reports of hearings are typically so different from the pieces written by bloggers for projects like the Open Justice Court of Protection Project.

My background

I have been a journalist and court reporter for over 20 years and I teach media law and court reporting in the Department of Journalism Studies at the University of Sheffield.

For the majority of my career, I have reported on cases in the criminal and coroners’ courts mainly in and around South and West Yorkshire. I have covered high profile cases, including numerous murder trials and I also attended the Hillsborough inquests in Warrington, so I am more than familiar with covering the courts.

However, I had never covered the Court of Protection before, nor been to any kind of Family Court hearing, and my interest was piqued by reading some of Professor Celia Kitzinger’s blogs, which I stumbled across on Twitter.

I felt journalistically they were not only newsworthy stories but also raised important societal issues which warrant discussion in an open forum.

Traditionally, journalists and newspaper editors have shunned reporting of Family Court and Court of Protection proceedings because of the strict reporting restrictions that almost always ban identification of the parties involved. News-wise a story is deemed to be a ‘better story’ if you know who is involved and what has happened to them – just as quotes are better coming from named people rather than unnamed ‘sources’.  So journalists tend to stick to covering the criminal courts and inquests because parties in those cases can generally be named.     

As a society though, we need to be educated about the issues being considered in both the Family Court and in the Court of Protection, so that  – if necessary –  we can hold the authorities to account and push for change and reform.

There are some excellent journalists doing important and pioneering work in this area – such as Louise Tickle, who is working hard to shine a light on some of the decisions being made in the ‘shadowy’ family courts.    

Writing a newsworthy court report

Writing a court report is very different from writing a blog post.

The late Harold Evans, author of one of the best books on journalistic writing, Essential English for Journalists, Editors and Writers (Pimlico, 2000), said:    

It is not enough to get the news. We must be able to put it across. Meaning must be unmistakable, and it must also be succinct. Readers have not the time and newspapers have not the space for elaborate reiteration. This imposes decisive requirements. In protecting the reader from incomprehension and boredom, the text editor has to insist on language which is specific, emphatic and concise. Every word must be understood by the ordinary reader, every sentence must be clear at one glance, and every story must say something about people. There must never be a doubt about its relevance to our daily life. There must be no abstractions.

If you are writing for a newspaper, you will have very limited space and in this case three days of evidence and a notepad full of shorthand notes that had to be condensed into 400 words.

The first thing that needs to be considered is the audience.

Who will be reading the story? Where will it be published? This will set the tone of the report.

Court reporting is formulaic and although many of the ingredients going into the story will be the same for different publications – for example what happened, how, when, where and to whom? – the language used in a broadsheet newspaper article may be different to that used in a story written for a tabloid. 

Court copy must also be legally sound – in a nutshell reporters can publish anything and everything said during proceedings held in public in England and Wales as long as there are no reporting restrictions and their copy is ‘fair, accurate and contemporaneous’. Essentially this means both sides of the story are included, the information reported is accurate (this is where shorthand comes in) and it is published as soon as practicable after the hearing takes place.

This gives the publication a defence of Absolute Privilege and protects it against an action for defamation if something defamatory is said by any of the parties in court.     

The ‘intro’

Once the reporter knows who the story is aimed at, they need to encapsulate the case in a striking first paragraph which tempts the reader to read on.

This is what’s known in the industry as the ‘intro’ and mastering the intro is one of the first things trainee journalists learn. It is more important than ever in today’s digital age, when publications are battling it out for clicks and sales in an over-crowded market. 

The intro should contain new and exciting human interest detail and summarise the story in fewer than 20 words, ideally. 

At journalism college I was told to imagine how I’d summarise the story for friends in the pub when trying to write my intro.

In this case, the intro was obvious to me – it’s a shocking and unusual case – not something I’ve ever heard of or come across before. The intro had to contain the fact it was a legal battle, the parties involved, the mother’s vulnerability, the man’s previous history and the approximate value of her estate – these were the key ingredients for me.

Essentially, a daughter had gone to the extreme measure of asking a judge for an injunction preventing her vulnerable mother’s partner from contacting her mum, marrying her or entering into a civil partnership with her after she discovered he had a string of previous criminal convictions for defrauding vulnerable women. 

The court was told the woman, who is in her sixties, has a lifelong learning difficulty and arterial brain disease. She has been deemed incapable of making her own decisions about her property and finances. And expert witness, psychologist Professor Rob Dubrow-Marshall said she had been coerced and controlled to such an extent by her partner that he had effectively ‘substituted’ her mind for his. 

One of the biggest challenges of writing an intro in a story like this is getting all the interesting and relevant detail into the first paragraph. There is no right or wrong way to write it – every reporter will come up with a slightly different version or angle but the newest, most shocking information needs to be in the story.  Here’s the opening sentence in my published story:

Compare this with the opening sentence of Celia Kitzinger’s blog post, which just doesn’t have the same impact: 

This case before Mrs Justice Roberts (COP 13503831 heard on 6th – 8th July 2021) concerns coercive control.”  

Celia Kitzinger told me: “I actively try to avoid foregrounding what might be considered ‘shocking’ or ‘exciting’ material in favour of a more educational, measured approach. My key aim in this blog post was to communicate what I’d learnt from the hearing about the law on controlling or coercive behaviour. My own background is in academic Psychology, so it’s not surprising that after this first sentence I moved  quickly into giving a psychological account of controlling or coercive behaviour, including a link to an article in a counselling journal.  Mindful of the blog’s audience of lawyers and those concerned with the law, I then described the behaviour as an offence under s. 76 of the Serious Crime Act 2015 and quoted an extract from the Statutory Guidance Framework.  I provided all this background information up front, at the beginning of the blog, before addressing the specific issues in this particular case.  Comparing my account with the Times piece, I can see how far removed it is from a ‘human interest’ story!

The drama of the court room

Court reporters use the ‘inverted pyramid’ style of writing which is used by all journalists to construct news stories.

Essentially this style is designed to grab readers’ attention as quickly as possible, presenting the most important and exciting details in the first paragraph and then developing the story with more specific information as the article proceeds. 

Once the introduction is written the reporter’s job is to flesh out the bones, adding the meaty details taken from the evidence heard in court and using quotations to ‘add colour’. The aim is to bring the copy to life, tell the human side of the story and try to recreate the drama of the courtroom.

This also allows the reporter to break up long passages of text to maintain interest.

It’s also important to outline what the case is about so the basics need to be included – who, what, where, when, how?

You don’t want the reader to go away with unanswered questions, or wondering what happened.

In a criminal case, this is easy. Journalists report the prosecution allegations first, backed up by witness evidence heard in court and any relevant cross examination. Then it’s the turn of the defence to set out its case. Once the jury has come back with a verdict, it’s the verdict, any sentencing remarks from the judge and the sentence. Reporting restrictions are rare because due to recognition of the importance of the principle of open justice.

When reporting from the Court of Protection there is no prosecution or defence case and reporting restrictions are almost always automatic. Because there is always a vulnerable person (P) at the centre of the case, transparency orders usually ban reporting of any detail which could lead to that person’s identification.

After hearing all the evidence, the judge in this case,  Mrs Justice Jennifer Roberts, reserved judgement (i.e. will consider all the evidence and publish a written judgement in the next few weeks).   This gives the reporter (and the blogger) ‘a second bite of the cherry’ – the chance to publish the story again with a new angle, which in this case will be the latest information:  the judge’s decision.     

My story summarised salient points from what happened in court but didn’t go into the day-by-day – and sometimes moment-by-moment verbatim transcript – detail of the blog post. Celia Kitzinger told me:

In writing for the Project, I want to communicate the process by which justice is done – not just the outcome.  So the details of the questions asked and the answers given – and the way those answers are phrased – can really matter.  This is what we get  from observing a hearing, as opposed to simply reading the judgment afterwards.  In the blog post about this case there were lots of places where I quoted as close to verbatim as I could (given that we’re not allowed to audio-record) because I felt the exchanges in court revealed aspects of the case, and the participants’ perspectives on what was going on, in particularly vivid ways. Compare, for example, the Times summary statement that the man “said that he was the victim of a conspiracy by his previous victims” (which is an accurate and succinct summary of the facts) with the more detailed account in the blog, which includes my own personal reflections on this.

From:  Controlling and coercive behaviour: A hearing before Roberts J by Celia Kitzinger

In summary…

Writing for the national media and writing a blog post for a specialist project involve some very different skills. It is fantastic there are bloggers such as Professor Celia Kitzinger and other professionals attending court and writing long form pieces about the complexities and ethical issues raised in COP cases.

However, it is equally important these hearings are covered by mainstream media outlets who can communicate the proceedings to the general public in a clear and concise way, so they have a better understanding of the issues at stake and the decisions being made about the lives of vulnerable people.

Polly Rippon is a former regional daily newspaper reporter and news editor with 20 years’ experience in journalism and media relations. She continues to write freelance pieces for national titles, and teaching media law and court reporting in the Department of Journalism Studies at Sheffield University. She tweets @PollyRippon

Secure Accommodation for Young People: “A well-known scandal”

Celia Kitzinger, 12th August 2021

Note: For another perspective on secure accommodation, see the blog by Anna Rebowska, “Secure units and young people: In search of home to call your own

“Secure accommodation” is a legal term that refers to a form of accommodation provided  for the purpose of restricting liberty under section 25 Children Act 1989.  Children can also be remanded or sentenced to detention through youth justice legislation. The accommodation has to be approved as “secure accommodation” by the Secretary of State, and needs to comply with various regulations. 

Local authorities place children in secure accommodation when they are at risk of harming themselves or others. Secure accommodation is expected to keep children safe, to restore some stability to their lives, and to assess their needs and identify the supports needed in future.  (See this report on “Local authority use of secure placements” (pdf).)

There has been a rapid rise in the numbers of children deprived of their liberty in recent years. The BBC reported on freedom of information responses from 91 of 170 local authorities in England and Wales: the number of deprivation of liberty orders for children and young people went from 43 in 2016-17 to 134 in 2018-19. The vast majority of these will be for children in care.

It has become increasingly apparent that there are simply not enough secure accommodation places available, and that very vulnerable children are being kept waiting in inappropriate settings, or placed in unregulated homes.

The desperate lack of secure accommodation became glaringly apparent in the Court of Protection case (COP 13743601) I observed before Mrs Justice Judd on 2nd July 2021, and again on 16th July 2021.

This was a case in which the judge and all the parties to the case (including the local authority) were doing their utmost to help a vulnerable young person against the backdrop of a nationwide shortage of appropriate provision.  

Background

At the first hearing I observed, Mrs Justice Judd said this was “a profoundly worrying case”.  An “extremely vulnerable” 17-year-old girl  (“N”) – diagnosed with autism, mild learning disability and emotional dysregulation – was being kept inappropriately in an Accident and Emergency bed because there was nowhere else for her to go. 

The local authority had planned to apply to court for authorisation of a deprivation of liberty.  But this application was problematic at the time of the hearing because “over the past few days, circumstances surrounding N’s residence and care has been changing by the hour”.  

At the time of the hearing, it did not seem possible to make an application to deprive N of her liberty because:

  • It wasn’t clear whether or not N has capacity to make her own decisions about where she lives and what care she receives: there seems to be some suggestion that she might do, at least sometimes, in which case she is not someone over whom the court has jurisdiction; 
  • Since it had recently been determined that N does not meet the criteria for detention under Section 2 MHA 1983, she would shortly be discharged from hospital, but since there was no placement (or care package) available for her, it was impossible to know whether or not the arrangements would be the least restrictive option, or whether or not they would be in N’s best interests.

Since June 2019, when N’s mother reported she could no longer care for her, N has been a “looked-after child” (Children Act 1989).  For much of that time she has been in secure children’s homes.  She has experienced multiple placement breakdowns and is assessed as requiring an extremely restrictive care package including 2:1 care at all times, including through the night, with carers trained to carry out restraint.  She’s moved placement many times and until shortly before the hearing on 2nd July 2021 had been living in what was understood to be either her 13th or 14th placement since mid-2019.  That placement is now under threat.  

I can tell you I have had myself a number of cases like this, with young people being in an A&E Department of a hospital, simply because there’s nowhere else for them.  No doubt social workers are in a parlous position on this, but judges are being asked to authorise this position and it really is very troubling.” (Mrs Justice Judd)

The judge acknowledged that the local authority was making its “very best efforts – focussed efforts over a prolonged period of time” to find N an appropriate placement but that there were real difficulties in doing so.  

The current placement had been the outcome of an extensive nationwide search  – involving referrals to over 527 placement providers, only two of which indicated an ability to meet N’s needs.  The placement now under threat had been literally the only care provider who appeared able to care for N – and they were now on the cusp of serving notice. 

The local authority (represented by Lucinda Leeming) described “utter dismay” at the situation they were in.  Counsel for N (Katie Scott, acting via the Official Solicitor) described the situation as “most unfortunate”. 

THE HEARING ON 2nd July 2021

The Applicant

Counsel for the applicant council described N’s self-harming behaviour, including attempted suicide, and “extremely aggressive behaviour” that includes assaults on care staff and police officers. Her “uncontrollable rage” has led to incidents involving criminal proceedings and the involvement of the youth justice service. 

N had been admitted to hospital at the end of June 2021 following “a significant episode of dysregulation” between 25thand 27th June 2021 in her current care home (“F House”).  She had been continuously awake and “experiencing mania” for 72 hours, during which she gained access to the roof and threatened to kill herself. She threw boiling water from a kettle over staff caring for her, and thew nail polish remover into the eyes of a carer saying she wanted to blind them.  She armed herself with knives and parts from a broken bed and threatened staff.  She set fire to a tea towel, saying she wanted to burn the house down. 

On 30th June 2021, the police took N to hospital, under s.136 of the Mental Health Act (MHA) 1983 and she was assessed that evening as meeting the criteria for detention under Section 2 MHA 1983.  It was decided that she needed a specialist bed, but none was available that day.  

The next day, on 1st July 2021, the day before the hearing,  N was reassessed and deemed not to meet the criteria for detention.  The Approved Mental Health Professional (AMHP) who assessed her said that it was not possible “to elicit” any mental health needs and that N had apparently been “calm” during her time in hospital and that she can be discharged as soon as a bed is available.  

There is nowhere to discharge her to, since the care home she was in previously no longer considers that it is able to keep N safe and ensure the safety of others.  The  local authority feels unable to agree to N returning to “F House”, given that her safety and that of others is in doubt.

So, the local authority is looking for a secure accommodation placement but reports that as of the evening of 1st July 2021, there was a need for 57 secure accommodation placements nationwide, and just 2 placements were available.  One had already deemed N to present too high a risk, even for their secure accommodation. The other will be reviewing the profiles of all those needing a bed and make an offer to the most appropriate person – making it unlikely that N will be offered this option.

Could “F House” be made safe – with additional safeguards and the involvement of an external care provider, so that N could safely return there, at least in the short term?  Are there premises that could be used as secure accommodation with a bespoke package?  These are options the local authority is investigating – but neither was an option that could realistically be put before the judge at this stage. An adjournment was needed, they said.

Judge:                   You are asking me to authorise a Deprivation of Liberty under the auspices of the Mental Capacity Act or the inherent jurisdiction but without a clear care plan about what that will entail.  

Counsel for LA:    Yes. The LA simply doesn’t know what the care plan is, given the range of options, or what that might entail.  We would ask for an adjournment for a period of three weeks and hopefully come back before the court with some proper options and a better idea of what the care plan will entail.

Judge:                    I am concerned about delay if we adjourn for 3 weeks. I don’t know if it’s in the best interests of this young person, and obviously that’s a big worry for the court and it would ordinarily lead me to want to adjourn for no more than a few days.  Unless a court hearing would be a distraction to the work you are doing to find her a placement and develop packages of care.

Counsel for LA:    Yes, we fear coming back to court next week with no progress having been made.

The Official Solicitor

Katie Scott acted for the Official Solicitor to represent N’s best interests.  She acknowledged the difficult position the local authority was in, and the impossibility of making  a deprivation of liberty order today: “Regrettably, we are where we are.” She added that as a result of recent events, it hadn’t been possible for those acting on N’s behalf to meet N – either remotely or in person –  to ask N what her own wishes are in this situation.  

Apparently anxious to resolve the situation speedily, the judge asked Katie Scott, “What would be the downside of adjourning for a week, as opposed to three weeks?”.  She replied: “It may be another hearing where we don’t get anywhere”. 

The judge asked when a capacity assessment would be available:

It needs an in-person assessment, and she’s not been vaccinated [it had earlier been reported that N had declined vaccination for Covid-19, despite having Hepatitis B, contracted from her mother at birth] so that’s going to be a bit difficult.  The popular – if I may put it that way – experts are extremely busy and the waiting lists are very long.  It may be that a long period of time is inevitable.” (Katie Scott)

N’s Mother

Having heard from both the applicant local authority and from the Official Solicitor, the judge turned to N’s mother, who had been present throughout the hearing.  She is not a party to the case, but the judge pointed out that she could become a party if she wished to.  She said, “It must be very distressing for you. I imagine you must be listening to this with- well, it must be horrid to listen to”.

The burning issue for N’s mother turned out to be: “My daughter was abused by one of the carers. I have proof they have assaulted my daughter.”  This had been mentioned earlier by counsel for the local authority “for the sake of completeness”: she reported that there had been an allegation of assault on N, which was under investigation, and that staff had been suspended pending that investigation.  She had also reported that some staff have refused to return to work at “F House” because they are frightened of N and the risk she poses.

The judge expressed sympathy for N’s mother and briefly discussed with her and with the advocates whether it would be possible for her to get legal advice.  (Note – she was in fact represented by Mungo Wenban Smith at the next hearing.)

Mrs Justice Judd then fixed the next hearing for two (rather than three) weeks ahead – as a “compromise” between the need for a speedy resolution, and the risk of “diversion of resources towards the court if I order things back too quickly”.  

The judge ended the hearing by saying:  “I do hope things aren’t as bleak as they seem, and I do hope something ‘good enough’ will be found for N very quickly, and then something really suitable without much ado after that.

THE HEARING ON 16th July 2021 

The hearing opened with a summary and update about the case from Lucy Leeming (counsel for the local authority).  She reminded the court (and public observers) that the case concerned a “vulnerable young lady who had been inappropriately occupying a bed in A&E and we were desperately looking for suitable placement”.  

The good news was that a placement had been found and N “is safe there, and no longer in hospital”.  However, this is an “emergency” placement” and not suitable long-term.

She also reported that over the weekend immediately following the last hearing on Friday 2nd July, N had experienced “a further episode of dysregulation”.

She was aggressive.  Following allegations of assault and criminal damage to the hospital ward, she was arrested and detained in police custody – taken to a police cell – and everyone feels that this is clearly not an appropriate place for this very troubled young lady.”

At the police station, N was verbally and physically aggressive,  racially abusive and assaulted both care staff and police officers.  She was subsequently taken to hospital where she was restrained and given 50mg intra-muscular Promethazine Hydrochloride as a sedative, against her will and without the consent of either her mother or the local authority – something the Official Solicitor is now investigating.

She was assessed under the Mental Health Act and deemed to meet the criteria under section 2 for detention, but no bed was available.  I’m afraid we went round the loop again.  On reassessment a few days later, she was then deemed not to meet the criteria and deemed fit to be discharged.” (Lucy Leeming)

The judge intervened to say, “She needs help.  This situation is not helping.  The MacDonald judgment was published yesterday and that’s a very similar situation.  It’s profoundly worrying”. 

Some context

I didn’t recognise the judge’s reference to “the MacDonald judgment” at the time, but I’ve subsequently read it  (Wigan BC v Y[2021] EWCH 1982 (Fam))  and recognise it as one I’d seen reported in the media (e.g. here).

The parallels are chilling.  In that case, a violent and self-harming 12-year-old boy (“Y”) was held on a hospital ward in conditions that the judge described as “inappropriate, demeaning and, quite frankly, brutal” (para. 53) and as a breach of Y’s Article 5 rights.  MacDonald J  refused to authorise Y’s ongoing deprivation of liberty on that ward – despite no alternatives being available – ruling that “the absence of an alternative cannot render what is the single option available in Y’s best interests and hence lawful” (para. 59).  It would, said the judge: 

“… border on the obscene to use a protective jurisdiction to continue Y’s bleak and dangerous situation simply because those with responsibility for making proper provision for vulnerable children in this jurisdiction have failed to discharge that responsibility”. (para. 64)

Since then – and subsequent to the hearings I observed – the Supreme Court has handed down a judgment in Re T,  a case heard back in October 2020 concerning a 15-year old placed in non-statutory (unregistered) accommodation.  In giving the lead judgment, Lady Black voices “deep anxiety” about the shortage of secure accommodation for children, pointing out that this is not new, and that the problem has been highlighted in multiple court decisions.  Back in 2017, Sir James Munby, then President of the Family Division, made a ruling about a 16-year-old with difficulties like those of T in the case before the Supreme Court and N in the case I’ve been observing (all three were expressing the intention to kill themselves and all three were self-harming).  Sir James Munby referred to what he termed “a well-known scandal”, namely:

“… the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties as X is burdened with.” (In re X (A Child) (No 3) [2017] EWHC 2036 (Fam), para 37)

Lady Black’s judgment in Re T quotes this extract, and similarly draws attention to  the government’s lack of action: “It has been drawn repeatedly to the attention of those who could be expected to take steps to ameliorate the situation, without noticeable effect” (para. 7).   

There are useful reports on the Supreme Court  judgment in Community Care ( here) and by Alex Ruck Keene (here).  A report by the Children’s Commissioner, Anne Longfield, charts the extent of the problem and describes the situation of up to two hundred children awaiting secure care at any one time – often detained elsewhere in conditions equivalent to secure care in hospitals or flats or other accommodation with large teams of agency staff  (The children who no-one knows what to do with)

As the judge said in the case I observed, echoing the voices of previous judges and foreshadowing the report from the Supreme Court a couple of weeks later, the difficulty of  finding accommodation for N serves to “highlight the shortage in nationwide provision for troubled youngsters”.

What was decided in court?

The temporary placement for  N is an annex (for her sole residence) to the main building of a children’s home. She has carers with her on a 4:1 basis, 24 hours a day.  “Staff have been pulled in from elsewhere to provide the support she needs, and have received appropriate levels of training in relation to restraint.”  No information was provided, though, on how N spends her days in this annex.

Counsel for the local authority (Lucy Leeming) invited the court to authorise N’s deprivation of liberty in this children’s home annex on an interim basis.  The local authority is continuing the search for more appropriate accommodation and was hopeful that a place might soon become available – although the proposed placement is more than 200 miles away from N’s mother’s home, and her counsel subsequently raised objections to this proposed placement as constituting a “devastating impediment to the resumption of family contact”.

Counsel for the Official Solicitor (Katie Scott) opposed authorisation of N’s deprivation of liberty on the grounds that there is currently insufficient evidence to displace the presumption that N has capacity to make her own decisions about care and residence – at least at times – and because there is at the moment no evidence as to N’s own wishes and feelings in this regard. 

Counsel instructed by N’s mother (Mungo Wenban Smith) sought to encourage “jurisdictional pragmatism to ensure we can keep N safe”, by which he meant making an interim finding that there is reason to believe that N lacks capacity, so fulfilling the mental capacity requirement for a DOLS authorisation.  This, he said,  “might provide a sticking plaster to cover the interim period pending the report [on N’s capacity]”. 

In the end, faced with an impossibly difficult situation, the judge authorised N’s deprivation of liberty for an interim period, but did so under the inherent jurisdiction rather than the Mental Capacity Act 2005.

An expert has been instructed – the Consultant Psychiatrist, Dr Claudia Camden-Smith, a very familiar name in Court of Protection proceedings – and she will report on N’s mental capacity in relation to a number of areas including capacity to make her own decisions about where she lives and the care she receives (and whether she has capacity to refuse covid vaccination).  The report is due at the end of October.

I hope to observe and report on future hearings in this case.

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project.  She tweets @kitzingercelia

Photo by Steve Johnson on Unsplash

Lasting Power of Attorney: Across Borders

By Clare Fuller, 9th August 2021

On 3rd August 2021 I was pleased to have the opportunity to observe a case focussing on decision-making involving people with Lasting Power of Attorney.

I’m a Lasting Power of Attorney Consultant.  I help people to draft their Lasting Powers of Attorney – so learning more about how this issue is dealt with in the Court of Protection is really helpful.

In this case, the protected party (P) has dementia and is living in a care home in another country.  Nearly 7 years ago, shortly after receiving her dementia diagnosis, she made two Lasting Powers of Attorney – one for property and affairs, the other for health and welfare.  In both of them, she appointed her cousin, “AB” and one other person as attorneys.  P’s nominated attorney, AB, is the applicant in this case. She wants to bring P back home to the UK.

What is a Lasting Power of Attorney?

Lasting Power of Attorney (LPA)  is a legal document that lets you appoint one or more people to make decisions on your behalf. This gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions.  The formal requirements, scope and applicability of LPAs are set out in Sections 9-14 of the Mental Capacity Act 2005.  

The Office of the Public Guardian  campaign shows that 72% of people think your next of kin always gets the final say in treatment decisions at hospital but this is not the case.  The only way to ensure that a spouse, or adult children, or anyone else you trust, can make decisions for you is to appoint them as your Attorney.

A Lasting Power of Attorney can only be made when you are deemed to have the mental capacity to make the decision to appoint attorneys.  The form requires evidence from a ‘certificate provider’ who must confirm that you’re making the LPA by choice and that you understand what you are doing.

There are two different kinds of LPA.  A Health and Welfare LPA would be used if you lost capacity to make decisions about issues relating to health (e.g. whether you should have surgery or other medical treatments).   An important element of the Health and Welfare LPA is that it offers the opportunity to give the person or people appointed, (the attorney(s)), authority to make life-sustaining treatment decisions.

A Property and Finance LPA is used for to appoint someone to make decisions about your money – and can take effect, with your consent, as soon as it is registered.

Despite the  widespread campaign to raise awareness, LPAs remain little known or understood. 

My interest in LPAs, and the reason I became a Lasting Power of Attorney Consultant,  stems from a long career as a nurse in palliative and end of life care, where I witnessed the impact of not having these important documents in place. I feel incredibly passionate about people’s voices; their choices and their values being heard – and LPAs are an important way of enabling this. I advocate for proactive Advance Care Planning and LPAs are one important element of planning ahead. 

The hearing 

The hearing I attended (Case no. COP 13785356) was held via MS Teams before Mrs Justice Lieven  on 3rd August 2021.  

The applicant is AB, who holds LPAs (both for Health and Welfare and for Property and Finance for her cousin P.  There is a second person also appointed as LPA for P who fully supports AB’s application.  It was confirmed in court that the LPAs were signed by P on 11th September 2014 and registered by the  Office of the Public Guardian on 2nd December 2014. 

Since making the LPAs, P has lost capacity to make her own decisions about where to live, and, in alignment with her wishes, her cousin is now enabled through the LPA to make decisions on P’s behalf.

In 2013, P, who had lived in the UK for about 40 years,  was diagnosed with dementia and she moved into a care home the following year.  

Shortly afterwards she travelled to Lebanon to live with her brother for what was intended to be a trial period. She enjoyed living there, was well cared for,  and decided to stay.  

After her brother died unexpectedly a couple of years later, she moved into a care home in Beirut.

The applicant, AB (represented by Parishil Patel)  is “very worried” about P’s welfare in Beirut.  Nobody visits P at the care home, and there is growing political and economic tension and instability in Lebanon which is having a real effect on P’s care.  There is a shortage of medications – the other attorney has been arranging for these to be supplied to P from outside Lebanon.  

Last year AB tried to use the Lebanese court system to get P back to the UK and obtained a Return to UK Order, but this was blocked by P’s nephews.   AB had medical evidence that P was fit to travel: she had found a place for P at a private care home near to where she lived, and she had made travel arrangements with an expert medical repatriation charter company.  But before this plan could be carried out, P’s two nephews obtained a Travel Ban order – on the basis that P’s return to the UK “would cause [one nephew] damage in respect of the prosecution of his [wardship] suit” and that  “travelling to Britain in her poor state of health and at her advanced age could cause grave damage to her health [and] there is the danger of her catching the coronavirus”.   It is unclear what the two nephews’ motives for keeping P in Lebanon are (they don’t visit her or provide care)  but there is speculation that there may be financial motives.

AB wants the court to use the inherent jurisdiction  to relocate P back to the UK “as soon as suitable travel arrangements can be made”.  She also seeks an order that the LPAs are valid.

Mrs Justice Lieven acknowledged the challenges of the case – especially the interfamily dispute –  as well as the need for expedited decision making since P is elderly and frail.

The inherent jurisdiction

The High Court has the power to protect vulnerable adults, including British citizens in foreign jurisdictions. (See Holman J’s decision in Al-Jeffery v Al-Jeffery (Vulnerable adult; British citizen) [2016] EWHC 2151 (Fam) – widely reported in the media, including this BBC report and the follow-up to the story the following year.)  As the case before Holman J illustrates, the court can order relocating a person to the UK.  According to counsel for AB, P is a vulnerable adult in a foreign jurisdiction in need of this protection, in the form of relocation.  Her current situation is “extremely concerning” and she is “at risk of harm”.  

Validity of the LPAs

Early on in the hearing, the judge asked for evidence that the LPAs were valid documents.  Evidence was provided that they had been registered with the Office of the Public Guardian.  

She asked “what evidence do I have that P had capacity when she filled these in?” and was referred to the affidavit of a Consultant Psychiatrist who saw P shortly before she signed the LPAs and found her “clear and coherent” in explaining what she wanted to do in appointing LPAs, and she was able to articulate the purpose of LPA,  and why she had chosen her nominated attorneys.  The solicitor who helped P draw up the LPA documents had written a letter for the court saying that there was no suggestion of undue pressure being applied, i.e. P was making the LPAs of her own free will.

Mrs Justice Lieven agreed to make an order that the LPAs were valid and applicable in this case. 

It was agreed a further hearing would be necessary to clarify what should happen next – including appointing the Official Solicitor to represent P,  assessing P’s fitness to travel, and considering the practicalities of relocating P if it turns out to be in her best interests. 

A tentative date for the next hearing (a full day) has been set for 1st September 2021.

Closing observations

Hearing a judge scrutinise the validity of an LPA highlights to me the crucial importance of ensuring careful attention to record keeping and evidence of a donor’s capacity when making an LPA. In this case, the attention to detail of both the solicitor and psychiatrist in 2014 ensured that there was no challenge to the validity of the LPA, and P’s nominated attorneys are able to act for her, as she wished.  I hope to be able to observe the next hearing in this case, and will report back on how the LPAs’ decision-making plays out in court.

I have watched Court of Protection hearings before.  Back in August 2020,  I bore witness to an intensely complex MCA and best interests hearing concerning a young lady with anorexia. That experience brought home to me the huge educational value of observing hearings and seeing how judges make these important decisions. 

Over the course of the subsequent year,  I have promoted the Open Justice Court of Protection Project as an excellent avenue for health care professionals to see the application of MCA decision-making in practice.   As an advocate for proactive Advance Care Planning and a Lasting Power of Attorney Consultant  it has been hugely beneficial for me to see how a judge goes about assessing the validity of an LPA and making decisions about P when she has appointed her own nominated attorneys.  Observing hearings in the Court of Protection is an excellent learning experience which continues to benefit my own practice.

Clare Fuller RGN MSc is a registered nurse with a career dedicated to Palliative and End of Life Care. She is an advocate for proactive Advance Care Planning and delivers bespoke EoLC education. She is also a Lasting Power of Attorney Consultant and director of Speak for Me LPA Clare tweets @ClareFuller17 

Photo by Ehsan ahmadnejad on Unsplash

Capacity (and sexual relations) in the Supreme Court: Reflections on A Local Authority v JB

By Amber Pugh, 10th August 2021

Sex with a consenting partner plays an important role in developing personal relationships and has been described as being a fundamental human right. However, people who lack the capacity to make the decision to have sex are prevented from enjoying sexual relationships, regardless of how much they desire them (Mental Capacity Act 2005, s.27(1)(b)). It is of immense importance, therefore, that the law in this area strikes the correct balance between empowerment and protection from harm. Unfortunately, to date, the case law regarding capacity and sex has been complicated and confusing.  This may be set to change. 

On the 15th July 2021, the Supreme Court heard the appeal in A Local Authority v JB. JB, the initials used for the person at the centre of this case, is a 38-year-old autistic man with impaired cognition. He has expressed a strong desire to have a girlfriend and engage in sexual relations with women, but the local authority has concerns that he does not understand that the other person has to consent to the sexual activity. The issues that the Supreme Court has been asked to decide are  (in the words of their ‘easy read’ summary (a downloadable pdf from the Supreme Court website)):

In order to have capacity to consent to sex: 

  • Does a person need to understand that their sexual partner must have the capacity to consent to sex? 
  • Does the person also need to understand that their sexual partner must consent before the sexual activity starts and that their consent must continue throughout the sexual activity? 

Irrespective of what the Supreme Court decides, its judgment is set to be a landmark one. The Supreme Court has previously considered other aspects of mental capacity law, including best interest under the Mental Capacity Act  2005 (Aintree University Hospitals NHS Trust v James [2013] USK 67) and deprivation of liberty (P v Cheshire West and Chester Council & Anor [2014] UKSC 19), but this is the first time that it has been asked to examine the test for lack of capacity set out in sections 2 and 3 of the Act in detail.  In this blog post I will discuss some of the issues that I found to be of particular interest during the hearing; it is not intended to be a comprehensive summary of proceedings.

Capacity to consent to sex or capacity to engage in sexual relations?

A summary of the first instance and Court of Appeal judgments in the case can be found here. For present purposes it is sufficient to note that the decision of the Court of Appeal in JB challenged the approach previously adopted in the case law which had examined whether ‘P’ had the ‘capacity to consent to sex’ (D County Council v LS [2010] EWHC 1544 (Fam)B v A Local Authority [2019] EWCA Civ 913) and instead held that the question that should normally be asked is whether P has the ‘capacity to engage in sexual relations’ [93]. 

Section 2(1) Mental Capacity Act 2005 says that a person lacks capacity if they have an ‘impairment of, or a disturbance in the functioning of, the mind or brain’ which causes them to be ‘unable to make a decision’ about the matter at hand. Section 3 then explains that a person is ‘unable to make a decision’ if they are unable (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate their decision.

The Court of Appeal in JB held that when the decision to be made under s.2 is framed as being about whether or not to engage in sexual relations, then the ‘information relevant to the decision’ for the purposes of s.3 may include:

(1) the sexual nature and character of the act of sexual intercourse, including the mechanics of the act;

(2) the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity;

(3) the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;

(4) that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant;

(5) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom. [100]

JB was subsequently granted leave to appeal to the Supreme Court. Lead Counsel for JB (by his Litigation Friend, the Official Solicitor) was John McKendrick QC of Outer Temple Chambers, and Lead Counsel for the respondent local authority was Vikram Sachdeva QC of 39 Essex Chambers. The case was heard by Lord Briggs, Lady Arden, Lord Burrows, Lord Stephens, and Lady Rose. A recording of the hearing can be watched here.

The appellant’s main argument was that the Court of Appeal was wrong to find that the decision to be made was whether or not to ‘engage in sexual relations’, and counsel invited the court to follow the decision of Roberts J at first instance. If accepted by the court, then this would see the decision once again framed as ‘capacity to consent to sex’ and P would no longer have to understand that the other person must have capacity to consent to the sexual activity and must in fact consent to the sexual activity. 

The respondent’s position was that the decision of the Court of Appeal was correct and must be upheld. However, as will be discussed below, they submitted that the wording of ‘the relevant information’ should be changed so that P has to understand the other person’s ‘ability’ to consent rather than their ‘capacity’.

At the start of the hearing Lord Briggs stated that the court would also hear argument on a new point that counsel for the respondent (local authority) wished to raise and that this argument would be dealt with on a de bene esse (for what it is worth/provisional) basis, with the court determining whether permission to appeal the point should be granted when it delivers its judgment. Lord Briggs did not state what the new argument that counsel wished to raise was, but it became clear during the course of the hearing that it related to how the information relevant to the decision should be framed i.e. should it be issue-specific (looking at sex in general), person/situation-specific (looking at sex with a particular person and in particular circumstances), or should the plain words of the Mental Capacity Act 2005 apply without any gloss. 

The Supreme Court now has an opportunity to look at this area of law afresh and its decision could fundamentally alter the way that capacity to make decisions about sex is assessed. But the task that lies before it is complicated. The consequences of being found to lack capacity to consent to have sexual relations are profound. Section 27(1)(b) of the Mental Capacity Act 2005 lists consent to sex as one of the decisions that is excluded from best interest decision-making under the Act. The effect of this is that if P is assessed as lacking capacity, then nobody else can decide that it is in P’s best interest to have a sexual relationship with another person. Any form of sexual activity with ‘a person with a mental disorder impeding choice‘ is a criminal offence under the Sexual Offences Act 2003. Thus, a finding that an individual lacks the capacity to make decisions about sex tends to lead to safeguards being put in place in an effort to minimise the potential for sexual activity to occur. Indeed, the individual may be subject to a level of supervision so intrusive that it amounts to a deprivation of liberty. In essence, P has celibacy imposed upon them. 

Counsel for JB stated that the court is being asked to find the ‘least imperfect solution to a complex human problem’. This struck me as reminiscent of a comment made by Hallett LJ in the case of R v Bree [2007] EWCA Crim 804 that the ‘practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures’ [35]. The multi-varied nature of sexuality and decision-making in this area means that it is impossible to formulate a test for sexual capacity that will garner universal approval. Whatever the Supreme Court decides, its judgment should bring a much-needed level of certainty to judicial decision-making in this area. This is because most of the judgments on sexual capacity have been first instance decisions and therefore are not binding on other judges (the judges can choose not to follow them). This has allowed for differing and sometimes conflicting approaches to emerge within the case law, with assessors on the ground then having to navigate a path through a legal quagmire.

What are the ‘reasonably foreseeable consequences’ of having sex?

Under section 3(4) of the MCA, the information relevant to the decision must include information about the reasonably foreseeable consequences of the decision. This has been interpreted restrictively in the context of sexual capacity, and has been limited to certain medical consequences, namely pregnancy and sexually transmitted infections. It does not extend, for example, to an understanding of what is involved in parenting a child or that any child born may be taken into care (London Borough of Ealing v KS & Ors [2008] EWHC 636 (Fam)).

The appellant’s argument was that the decision to be made when looking at section 2 of the MCA is whether to give or withhold consent. John McKendrick submitted that when the decision is framed as being about P’s consent, then the reasonably foreseeable consequences of having sex cannot be regarded as encompassing the impact that P’s actions would have on the other person. 

The respondent’s position was that the potential harm to P and to the other person that would stem from non-consensual sex was within the remit of section 3(4). Vikram Sachdeva argued that information relevant to the decision should not simply include what capacitous people ordinarily consider, but also ‘what people should take into account’ [emphasis added]. 

The judges seemed to favour the respondent’s submissions. Indeed, early on in the hearing Lady Arden stated that she thought that section 3(4) was broad enough to capture the harmful effects of non-consensual sex. In addition to this, she opined that if the decision engages Article 8 of the European Convention on Human Rights (which provides a qualified right to respect for private and family life), then the court, as a public authority, has a duty to take public protection into consideration when making an order.

If the Supreme Court does hold that harm from non-consensual sex is a foreseeable consequence of having sex, then I would suggest that it should nevertheless reject the proposition that the relevant information ought to include what people ‘should’ think about when making decisions. This is incredibly subjective and people’s views of what ‘should’ be considered will vary widely. It would allow scope for assessors to import their own personal views into the test and could have harmful ramifications for anyone who finds themselves subject to a capacity assessment. It was also entirely unnecessary for the purposes of the respondent’s argument because most people do consider the other person’s consent when deciding to have sex.

Capacity to consent versus ability to consent

The Court of Appeal in JB held at paragraph 100 of the judgment that the information relevant to the decision to engage in sexual relations may include ‘that the other person must have the capacity to consent to the sexual activity’. Later in the judgment, at paragraph 106, Baker LJ said that: “What is needed, in my view, is an understanding that you should only have sex with someone who is able to consent and gives and maintains consent throughout“.

Vikram Sachdeva submitted that it is the formulation at paragraph 106 that should be followed, not that given at paragraph 100 which could be construed as requiring P to conduct a refined capacity assessment of the other person. He argued that focussing on the other person’s ability to consent as opposed to their capacity would make it plain that the necessary level of understanding is ‘what is expected of a person in the street without technical knowledge’. This was said to entail looking at a person’s physical appearance in order to try and gauge if they are over the age of consent, and whether they are incapacitated or not. The example used by Vikram Sachdeva to demonstrate how this would work in practice was looking to see whether a person is so intoxicated that they cannot speak. Lady Rose quite rightly stated that that was not the problem in this case, and queried whether the argument advanced by counsel would require P to be able to recognise that the other person may have ‘the same vulnerabilities he has’ and therefore may lack capacity. Counsel conceded that the ‘hardcore’ answer was that it would. The circularity of this approach is evident. Capacity is rejected in favour of a direction that P has to understand that the other person must be able to consent, but in determining whether the other person has that ability, P must assess whether or not the person is incapacitated. 

Vikram Sachdeva went on to state that it is not always readily apparent if a person has capacity or not, but there are ‘obvious cases’ where there may be cause to believe that they do not. He gave the examples of ‘cases where someone cannot speak at all’ or where they are ‘just looking around the room not connected to anything’. It must be remembered that neither of these things is evidence of a lack of capacity, and comments such as these can serve to entrench negative assumptions about disabled people’s sexuality. Despite this, counsel argued that these ‘obvious’ cases demonstrate that a test which requires P to be able to understand, use or weigh information about the other person’s ability to consent is workable. 

The Mental Capacity Act 2005 states that all adults are presumed to have capacity (s.1(2)), and a person cannot be found to lack capacity merely because of ‘a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity‘. (s.2(3)(b)). Counsel’s approach, however, seems to require P to make such unjustified assumptions in order to demonstrate that they can assess the other person’s ability to consent to sex. The comments made by counsel can also be seen as privileging verbal communication when people who are non-verbal will often use assistive communication devices or have an alternative, unique form of communicating. 

In his response to Vikram Sachdeva’s submissions, John McKendrick (counsel for JB) stated that if the Supreme Court concludes that the decision to be taken is to ‘engage in sexual relations’, then an approach that focuses on the other person’s ability to consent would be welcomed as being the more appropriate standard.  

It is plainly correct that P should not have to assess the other person’s capacity to consent to sex to the standard required under the MCA. This would place a tremendous burden on P and would not reflect the reality of most sexual encounters. However, if the court holds that the other person’s consent is relevant information, then there needs to be guidance as to precisely what is required in terms of understanding the other person’s capacity or ability to consent. Any such guidance will need to be drafted with extreme care to ensure that it does not collapse into circularity.

Sexual Risk Orders and Sexual Harm Prevention Orders

One of the submissions made on behalf of the appellant (JB) was that the MCA was not intended to be used to protect the public and that the Court of Appeal, by requiring P to understand the other person’s consent, wrongly introduced matters of public protection into the assessment of capacity. It was argued that the correct way to protect the public where an individual is unable to understand consent is to obtain a Sexual Risk Order (SRO) or a Sexual Harm Prevention Order (SHPO). 

SROs and SHPOs are civil orders that a Chief Officer of Police or the Director General of the National Crime Agency can apply to the magistrates’ court for or, in the case of a SHPO, can be made upon conviction. An order can be made where an individual poses a risk of sexual harm to the public. A SHPO can only be made if an individual has been convicted or charged with a sexual or violent offence listed in Schedule Three or Schedule Five of the Sexual Offences Act 2003. However, a SRO does not require the individual to have been convicted or charged of any offence; it can be imposed where an individual has done an act of a sexual nature and the order is deemed necessary to protect the public from harm. A person who is subject to an SRO or SHPO is prohibited from doing anything listed in the order. If they fail to comply with the order then they have committed a criminal offence and can be liable to be imprisoned, to pay a fine, or to both. Further information about these orders can be found in guidance published by the Home Office, which is available here.

Lord Stephens seemed sceptical that SROs and SHPOs would be an appropriate response and asked what the terms of an order would be if P is unable to understand consent. In response, John McKendrick (counsel for JB) said that the terms would be very simple and gave the example of an order saying ‘you must not be alone with women’. As Lord Stephens noted, P is criminalised if they breach the order. On the example given by John McKendrick, this would mean that P could potentially be imprisoned for being alone with a woman, even though that behaviour in and of itself is not illegal.

At present, JB lives with two other men in a supported living placement. Applying John McKendrick’s example to JB would mean that if one of his housemates were to invite a woman over, then JB would either have to restrict his movement in his own home or look to live elsewhere in order to ensure that he did not breach the order. Similar problems would arise in respect of any female staff members who were to provide support to JB. The social care workforce is predominantly female, and so an order of this kind could make it difficult for JB to receive appropriate support. Clearly this is undesirable, and the use of an SRO or SHPO should be avoided if there is a less intrusive alternative. Indeed, an order with such sweeping terms would be extremely difficult to police, which the Home Office guidance says would work against making it in the first place (p.37). John McKendrick’s submission also raises the question of what the terms of an order would be if P was bisexual and did not understand consent. Would P then be subject to an order stipulating that they must not be alone with men or women? This would obviously be impractical to implement and oppressive to P. 

Conspicuously absent from counsel’s submissions on SROs and SHPOs was the fact that requiring P to understand the other person’s consent does not just protect the other person from harm, but also protects P from the harm that would arise if he committed an offence. This was raised later on in the hearing by the respondents, who stated that it is a ‘false dichotomy’ to assert that the restrictions JB is currently under are solely for public protection. 

Abandoning the ‘issue-specific’/’person and situation-specific’ distinction?

A large portion of the hearing was dedicated to argument on whether P has to understand the information relevant to the decision in an issue-specific manner, person- and situation-specific manner, or whether these labels should just be abandoned entirely. Following the decision of the Court of Appeal in IM v LM [2014] EWCA Civ 37, an issue-specific approach is adopted in relation to capacity to consent to sex, and so the identity and characteristics of P’s partner are irrelevant to determining P’s capacity. John McKendrick submitted that this is the correct approach. This was challenged by Lord Stephens, who asked with some incredulity why the information relevant to the decision cannot include information about the other party, particularly if the other person is sexually abusive and could commit the most ‘heinous crimes on the individual’. In response, counsel explained that the traditional approach has been to impose restrictions upon P’s contact with the other person in situations where P does not understand that that person is abusive. Unlike sex, capacity to make decisions about contact is assessed on a ‘person-specific’ basis and so the risk that the other person could pose to P is information relevant to making the decision (LBX v K & Ors [2013] EWHC 3230 (Fam) [45]). If P lacks the capacity to make a decision about contact, then a decision can be made in their best interest.

Lord Briggs saw the logic in adopting an issue-specific approach in situations where P wishes to have sexual relations, but there is no identified other person. He did not seem convinced, however, that this is the correct way to assess capacity where the person that P wants to have sex with is identifiable. He noted that someone who might not have capacity on a general approach may nevertheless have it if it is assessed in relation to a particular person, for example, a partner of many years. The appellant’s position was that these concerns can be met by tailoring the relevant information if necessary, and relied upon the decision of Hayden J in LB Tower Hamlets v NB & AU [2019] EWCOP 27. This would permit the relevant information to be contracted if, on the facts at hand, P’s circumstances rendered it reasonable to do so. For example, in NB Hayden J held that P did not have to understand how sexually transmitted infections (STIs) were transmitted because she had been in a monogamous relationship of thirty years and there was no history of STIs. He acknowledged that this did not mean that there was no risk of STIs, but that on the facts the risk had to be regarded as very low and therefore a lack of understanding regarding transmission should not give rise to a finding of lack of capacity regarding sex. Mr Justice Hayden also explained that tailoring the information to P’s circumstances would mean that gay men, lesbians, and post-menopausal women will generally not need to understand the risk of pregnancy [54]. 

It was argued on behalf of the respondent authority that the issue-specific and person-specific labels should be rejected altogether because they act as a gloss upon the wording of the MCA, and thus serve to obfuscate its straightforward application. However, at times it was unclear whether this was, in fact, counsel’s stance or whether they were advocating for a person-specific approach. Indeed, counsel apologised to the court for lapsing into the use of ‘person-specific’ language during his submissions. He nevertheless proceeded to state that ‘you do not have sex in general, you decide to have it with a particular person’. Both Lord Burrows and Lord Briggs contested this, and raised the fact that in JB’s case he wants to have sex with women but has not yet met a particular woman or women with whom to have sex. Counsel then stated that an approach that simply construes the Act would provide the solution here: if P wants to have sex with a particular person, then the decision to be made is ‘does P have capacity to make the decision to have sex with X?’, but if the person is yet to be identified then the decision can only be defined in general terms.

This approach is not without its difficulties and it can give rise to seemingly illogical outcomes. For example, it made me think of the following hypothetical scenario:

Lucas, a 26 year old man with a learning disability, wishes to have sexual relations but has yet to meet someone with whom to have them. There are reasons to believe that Lucas may not have the capacity to make decisions about sex, and a capacity assessment is carried out. The assessment is conducted on a general basis and Lucas is found to have capacity. Lucas goes on a night out, meets Alex and has casual sex with him. They both enjoyed it and decide that they want to see each other again. A few weeks later it comes to light that Alex has a history of sexually abusing his partners. Lucas’s capacity is assessed again because he now wants to have sex specifically with Alex. He is found to lack the capacity to make the decision to have sex with Alex because he does not understand the risk that Alex may abuse him.

One of the reasons that the court has been reluctant to adopt a person/situation-specific approach in the past was because it was it was ‘difficult to see how it can sensibly be said that she has capacity to consent to a particular sexual act with Y whilst at the same time lacking capacity to consent to precisely the same sexual act with Z’ (Re MM (An Adult) [2007] EWHC 2003 (Fam) [87]). The approach advanced by Vikram Sachdeva may seem even more peculiar because, as seen by the above scenario, it means that P may have sexual capacity in a general sense and have sexual relations with a person on one day, but may lack the capacity to make the decision to have sex with that very same person on another day, notwithstanding the fact that their general understanding of the relevant information remains unchanged. There is no easy solution for the Supreme Court here and, irrespective of how it is framed, the test for sexual capacity will always have its discontents. Of course, it must be remembered that the Supreme Court may decide not to address the issue at all and instead refuse permission to appeal the point.

The importance of language

There were a few points during the hearing where the language or phrasing used struck me as being regrettable. For example, Lord Justice Stephens queried:

What does the local authority do after you have given the ability to have sexual activity with people and the patient does not understand that the other party has to consent?’ [emphasis added]

The court’s function is, of course, to declare whether or not P has the capacity to make decisions about sex. It does not grant the ability to have sex. To phrase it in this way is infantilising because it suggests that P must obtain permission in order to have a sexual relationship when, in fact, this is not the case. If P has the capacity to make the decision to have sex, then they are entitled to exercise that capacity. If P lacks the capacity then, as was stated earlier, the court cannot consent on their behalf. Furthermore, the use of the word ‘patient’ – which was used repeatedly by the Justices to refer to P – perhaps indicates that the judges are not up to date with this area of the law. ‘Patient’ is an outdated mode of referring to the ‘protected party’ in proceedings and is no longer used.

Later in the hearing Lord Justice Stephens remarked that ‘some people who suffer from these unfortunate conditions are completely compliant’ [emphasis added]. This comment is out of step with disability rights. Describing disabled people as ‘suffering’ and disabilities as being ‘unfortunate’ perpetuates a ‘personal tragedy’ view of disability. It frames disability as being objectively bad and imposes this view upon the disabled person despite the fact that the person might not share it.

Implications of the move to ‘capacity to engage in sexual relations’

Counsel for the local authority (Vikram Sachdeva) submitted that the reframing of the decision by the Court of Appeal to ‘capacity to engage in sexual relations’ is not a ‘game changer’ and stated that since the Court of Appeal handed down its judgment there has only been one case before the court where the change from ‘consent to sex’ to ‘engage in sexual relations’ has had an impact. It must be remembered, however, that the majority of capacity assessments do not involve court applications, and so relying solely upon the minority of cases that do go before the court is not a true indicator of how the judgment is affecting assessments. Indeed, in the absence of empirical research there is no real way of gauging whether the Court of Appeal’s decision in JB is changing the outcome of capacity assessments.

Final reflections

The judges seemed to be leaning towards an approach that would uphold the need for P to understand the other person’s consent, and which would move away from the strict dichotomy between issue-specific and person/situation-specific approaches to sexual capacity (albeit permission has yet to be granted on that point). This would represent a marked break from how sexual capacity has historically been framed in the civil courts. However, the court has also received written submissions and so the views expressed during the oral hearing cannot be taken as a firm indicator of what the final judgment will be.

At one point during the hearing, Lady Rose briefly mentioned a proposal from an intervener which would separate capacity from consent. Unfortunately there was no further detail as to what that would entail, but it may be similar to the framework advocated for by Liz Brosnan and Eilionóir Flynn. Brosnan and Flynn contend that the focus should be on providing a person with information and actively communicating with them. If the individual expresses a will and preference in relation to a decision, then, in the absence of coercion, this must be respected. Capacity and consent are currently tightly interlinked in the law, and a proposal that would allow consent to be separated from the need for mental capacity could result in radical change. It will be interesting to see how the court deals with this in its judgment. 

Following the Court of Appeal’s decision in JBAlex Ruck Keene had tentatively suggested that the move from ‘capacity to consent to sex’ to ‘capacity to engage in sexual relations’ could open the door for the court to make best interest decisions regarding sex. This is because ‘capacity to engage in sexual relations is not explicitly listed as being an excluded decision in section 27 of the Mental Capacity Act 2005. However, section 27 is not a closed list and, towards the end of the Supreme Court hearing, Lord Briggs noted that it was common ground that if the test for capacity to engage in sexual relations is upheld, then the decision to ‘engage in sexual relations’ must be an excluded decision for the purposes of section 27. For now, at least, it appears as though the legal framework may continue to prohibit people who lack capacity to make decisions about sex from having sexual relationships. 

The judgment of the Supreme Court could fundamentally change the way that capacity is assessed in relation to sexual decision-making and, indeed, how sections 2 and 3 of the MCA 2005 are understood more generally. It is the first time that the court has been asked to look at the test for lack of capacity set out in the MCA in depth and so, regardless of what is ultimately decided, the judgment will be a significant one. The court did not specify exactly when the judgment will be handed down, but Lord Briggs did state that they would endeavour to make it available as soon as reasonably possible. I await the judgment with interest.

Amber Pugh is a final year PhD candidate in the School of Law and Social Justice at the University of Liverpool. Her research examines the balance between empowerment and protection in mental capacity law, with a particular focus on decision-making around sex and contraception. She tweets @Amber__Pugh and can be contacted via email:  A.V.Pugh@liverpool.ac.uk

Photo by Francais a Londres on Unsplash shows the Supreme Court’s Official Emblem, designed by Yvonne Holton, Herald Painter at the Court of Lord Lyon in Scotland (Check out this webpage on Supreme Court artwork for more information).

What is a section 49 report?

By Rosa Beswick-Maddocks, 5th August 2021

If you observe Court of Protection hearings you may often hear lawyers referring (without explanation) to a “section 49 report”.  They may ask the judge to order one, or talk about a report they’ve received.

This explainer blog is to help you understand what a “section 49 report”  is (and how it is different from an “expert report” or an “independent report” – even though, of course, the people who write section 49 reports are also “experts”).

The Mental Capacity Act 2005

Section 49 of the Mental Capacity Act 2005 makes provision for the Court to require a report to be produced in respect of the Protected Party (P), about whom the Court is considering a question. Through section 49, the Court can order (most typically) the NHS body responsible for the area where P lives to produce a report even if it isn’t a party to the Court proceedings.  

A section 49 report is often considered as an alternative to a report by an independent expert. Whilst reports by independent experts can be obtained by the parties at private expert rates, no provision is made within section 49 in relation to fees or expenses incurred by the body directed to produce the report, and so the cost is therefore borne by the body directed to produce the report. Bearing in mind the considerable costs associated with expert reports and the fact that in the majority of Court of Protection cases most, if not all, of the parties will be publically funded (either by virtue of being public bodies such as the responsible Local Authority or Clinical Commissioning Group or because their legal representation will be funded via Legal Aid) seeking a section 49 order can be a more agreeable position when questions are raised which properly require the production of a report. 

When a section 49 report might be helpful

A common scenario when a section 49 report might be considered is when P’s capacity is in question. In such a case, the parties might seek an order requiring the NHS Trust to arrange for a  consultant psychiatrist to assess P’s capacity and produce a report. Depending on the particular circumstances, the appointed clinician might also be asked to consider additional, specific areas of capacity and to make recommendations regarding the management of P’s condition and best interests more generally. For example, in cases where P has a co-morbid condition such as diabetes and the impact of alcohol is an issue, the parties might ask that the report address P’s capacity to make decisions about alcohol consumption when considered in the context of diabetes and the associated risks.   

Section 49 reports can be obtained on a range of specialisms and the type of report sought will depend on the specific issues requiring consideration. For example, where a return home is being seriously considered, the parties might ask the Court to make a section 49 order directing an Occupational Therapist at the named NHS Trust to assess P and P’s home and set out their findings in a report. In such a case, the OT would often be asked to address work which can be done with P and any referrals which should therefore be made, adaptations to P’s house and equipment which would be required in the event that P were to return home and any concerns, risks or recommendations identified. If the potential for improved mobility might be a factor in weighing up the feasibility of a return home, the parties might also seek a section 49 order requiring one of the Trust’s physiotherapists to assess P’s mobility and make any recommendations for exercises which could be completed to try to improve P’s mobility.  

Potential advantages of section 49 reports

As outlined above, a section 49 report can be preferable to instructing an independent expert bearing in mind that the former is produced free of charge to the parties at a lower cost to the NHS Trust when compared with the private fees of an independent expert. 

Where P is receiving input from an NHS Trust, where possible, the Court will often ask that the section 49 report to be produced by P’s treating clinician, if possible. This is advantageous in that the assessing clinician will already know P and have a relationship with P which might help to facilitate P’s engagement. In comparison, an independent expert will not have met P previously and will therefore have to develop a rapport with P and, in some cases, P may not engage with a clinician who they are not familiar with and do not already trust. 

In this way, a section 49 report also saves duplication of work because the treating clinician will already be familiar with P and their case. In contrast, an independent expert will have to spend considerable time reviewing all the documents in detail in order to ascertain the necessary background information and build a rapport with P, all charged at private hourly rates, while P’s treating clinician will already have done this in the course of their work with P. 

Potential limitations of section 49 reports

However, NHS Trusts do state that complying with such requests places a burden on their limited resources and they may have no prior knowledge of P. Clinicians are not allotted additional paid hours in which to complete these reports and this can result in considerable delay in reports being produced. Further, in some instances the reports can subsequently be found to be lacking in detail due to the time pressures under which they have been completed, in which case an independent report might still be required. In this way section 49 reports can therefore cause duplication of work as well as delay, so if there is an urgency to the need for the report an independent expert might be preferable. 

How the courts seek to balance these issues

In the recent case of RS v LCC & Ors [2015] EWCOP 56, District Judge Bellamy was clear that while the Court does sympathise with the effect section 49 requests have on Trusts, the Court would seek to deal with such difficulties by narrowing the scope of the report to make it less onerous or by extending the timescale in which it is to be produced. (See the commentary on this case from 39 Essex Chambers here.)

In this spirit, and to avoid the Trust subsequently having to apply to the Court for such an amendment, Practice Direction 14E requires that, wherever practicable, before making an application for a section 49 order, a party to the proceedings should use their best endeavours to make contact with an appropriate person at the NHS body so that they are aware that an application is to be made, its purpose and the issues or questions which are to be addressed within the report and to enquire as to the reasonableness and timescales for providing the report should the Court order it.  

Conclusion

In summary, section 49 reports can be a helpful way to obtain answers when it might not be considered proportionate to incur the fees of an independent expert and the proposed instruction of one might be contentious.  However, the potential limitations of section 49 reports should be borne in mind and the decision whether to seek a section 49 order or an order for the instruction of an independent expert will always be very fact and case specific. 

Rosa Beswick-Maddocks is a paralegal in the Public Law and Human Rights Department at Irwin Mitchell in Newcastle. She has worked at Irwin Mitchell for over 2 years on matters such as health and welfare cases in relation to vulnerable adults in the Court of Protection and public law challenges including  applications for judicial review. 

Photo by Luca Bravo on Unsplash

Congratulations, Kirsty!

By Gill Loomes-Quinn, 3rd August,2021

We are delighted to share that member of the OJCOP Core Team – solicitor Kirsty Stuart – has been awarded the inaugural Disability Rights Award in the Legal Aid Lawyer of the Year awards (the ‘Lalys’) organised by the Legal Aid Practitioners Group. The award recognised particularly Kirsty’s work to secure access to chemotherapy treatment for a learning disabled man with cancer.

Kirsty works tirelessly across a range of issues relating to Disability and Carers’ Rights – you can read in this post how her personal experience informs and motivates her work. She brings this remarkable breadth of experience and commitment to her role at OJCOP, and we are delighted that her passion and dedication to her job, and to the rights of disabled people, has been recognised by this award.

Congratulations, and well done, Kirsty!

You can read more about the awards in this article by the Law Society

And there is an interview with Kirsty here, in the Times (behind a paywall)

When an academic theory becomes reality: The applicability of section 3 of the Mental Health Act 1983 versus section 5 of the Mental Capacity Act 2005

By Jennifer O’Neill, 3rd August 2021

On 27th July 2021 I observed a remote hearing (via Microsoft Teams) brought before Mr Justice Hayden in the Court of Protection: COP 1354439T Re: PH.  

Having observed my first remote hearing in the Court of Protection a few weeks earlier (Re AH COP 13783897), I was aware that when observing such hearings, you never quite know what to expect.  On this occasion it quickly became evident that this was a complex case which had already been through several rounds of hearings.  Due to the complexity of the case– and the great concern it caused Mr Justice Hayden – there were several interludes during the day as Mr Justice Hayden attended to other pre-existing duties and returned to consult Counsel.  During these interludes I sought to familiarise myself with the facts of the case and consulted Gaby Parker’s blog relating to a hearing of the same case on the 29th June 2021.  

The hearing of the 27th July was the continuation of a hearing from the previous Friday (23rd July 2021) which I did not attend.   Counsel on behalf of the Hospital Board was Roger Hillman and Counsel for PH was Ian Brownhill, via the Official Solicitor.  

Background to the case

The case concerned PH, a man in his 40s who was described as having complex physical and mental health needs.  The court heard that in 2017, PH had swallowed swimming pool cleaning fluid and, that a specialist team of upper gastrointestinal (GI) surgeons had performed life-saving surgery which included an oesophagectomy, partial gastrectomy, partial colostomy and splenectomy.  Although PH had made good progress and was fit for discharge, he had remained in hospital for the past year due to the difficulties in finding a suitable placement in the community.    We were told that the case had been adjourned on Friday 23rd July 2021 pending an appointment between PH and the surgical specialist on 5th August 2021.

We heard a short report from the specialist – a consultant upper GI surgeon – who explained that PH’s mental and physical health had been subject to ongoing review to determine whether he had attained the “stage of stability” required to undergo reconstructive surgery of his oesophagus, stomach, and bowel.  The court heard that this surgery would remove the need for PH to be fed via a PEG-J tube and would enable PH to live a more normal life.  We heard that PH had made good progress thus far and that, in May, his tracheostomy was successfully removed with no need to reinstate it.  In her blog, Gaby Parker explained that PH had had “significant communication difficulties as a result of his tracheostomy and [could not] talk” . Since the tracheostomy had been removed “the judge referred to him as ‘blossoming and restored to communication with the world’”.   Furthermore, she explained that as a result of hypoxic brain injury – which had been known to further trigger seizures – his cognitive and motor functions had been affected.   According to the surgical team, the ‘stability’ required to undergo the surgery required that PH demonstrate abstinence from alcohol and drug use and attain an adequate level of feeding. It was clear that it was crucial PH demonstrated a “good enough presentation” to the surgical team to be considered ready to undergo this “very major” life-changing reconstructive surgery. It appeared that thus far he was moving in the right direction.  

Gaby Parker explained that at the June hearing, P had been assessed by a consultant clinical psychologist in late 2020 who had reported that he had ‘Emotionally Unstable Personality Disorder, Impulsive Type’ and he lacked capacity “in a number of respects, including to litigate and to decide on his residence and care – although …in February 2021…did have the capacity to decide whether or not to accept his PEJ feed and the care associated with this”.

The present hearing brought before the Court of Protection related to interim developments which could affect this crucial surgical appointment.  Ultimately the court would consider whether it was lawful to hold PH in deprivation of his liberty by consideration of both section 3 Mental Health Act 1983 and the Mental Capacity Act 2005.

Developments in the case

First, we heard that the format of the planned appointment had changed.  The surgical team no longer considered it necessary to transport PH from the hospital to the specialist centre to meet the surgeon face to face and so a remote hearing was proposed instead.  PH did not require investigations and his weight could be communicated to the team remotely. Mr Hillman, counsel for the Hospital Board, explained that the COVID-19 situation at the referral hospital was acute and that even cancer surgeries had been postponed due to the lack of intensive care unit (ICU) beds.  He stated that even if PH attended his scheduled appointment on 5th August, there is no timescale as to when he could feasibly undergo the surgery.

Mr Hillman then explained to the court that since Friday, PH had been removed from the ward where he had spent the last 9 months.  Gaby Parker explained in her blog that PH had been isolated in this ward – “[t]here were…systemic, organisational factors at play…[a]s such [PH] was an ‘outlier’ on the ward.”  Counsel for the Hospital Board explained that PH had been moved to a psychiatric ward on the same hospital site following an assessment of his behaviour.  Mr Hillman stated that “…on a number of occasions [PH has] been upset and frustrated at the progress of matters and had broken computers on the ward.  Due to assessment of the safety of staff and others it was deemed that he should be moved to a psychiatric ward for the safety of himself and other patients”. (1) Mr Hillman acknowledged that the move was met with a “very negative reaction” from PH, that he was unsettled and refusing food via his PEG-J tube and that he was described as being “very unhappy there”.

Mr Justice Hayden responded with an expression of deep concern.  He clarified that whilst he was in no way “…defending for any moment [PH’s] behaviour [he was] not convinced the damage to computers was linked to psychiatric [factors]…”.   PH, Mr Justice Hayden explained, had faced “barrier after barrier” that would have “driven any one of us to despair”.  That PH should now find himself in a psychiatric unit because of this was not “immediately and instinctively” considered by Hayden J to be in his best interests.  Gabby Parker described in her blog that PH’s “psychological needs appeared to have been … overwhelmingly ignored by mental health provision [and so she] wondered whether [PH’s] complex psychological needs had led to an over-shadowing of his ‘normal’ distress in the face of unwelcome healthcare interventions and his right to have an opinion about these.”  She concluded that it appeared that PH was being “silenced in his care, both literally and metaphorically” .  Indeed, Mr Justice Hayden toiled with the situation throughout the hearing explaining that he was “not at all surprised” by PH’s reaction in breaking the computers and that to have moved him to a psychiatric ward was “such a pity” considering the progress he had made.  He also considered the legal framework which covered PH’s psychiatric admission, explaining that he was not convinced that PH met the criteria for section 3 of the Mental Health Act 1983 and that he was inclined to discharge it.

Mr Justice Hayden proceeded to engage with counsel for the Hospital Board – “Is PH capacious?”.  Mr Hillman responded that PH was not, according to the doctor’s assessments from December 2020 and February 2021.  Mr Justice Hayden reminded Mr Hillman that we are now in July/ August of 2021.  Mr Hillman clarified that PH did not have capacity to decide on his residence, care or treatment.

On several occasions Mr Justice Hayden expressed his concern at the situation, describing the case as a “litany of failure”.  The frustration experienced by PH was, according to Hayden “understandable”.  Hayden J explained;

“As a result of the system being unable to meet his needs, he finds himself in a psychiatric ward.  I am in no way convinced it is in his best interests and I am inclined to remove the order at the expiry of 12 months of not being able to achieve a great deal.  He was doing so well… he is [now] not eating, he is distressed, and he is in a psychiatric unit and he is about to be assessed for a surgery for which he needs to be at his best – and he’s at his worst.”

Mr Hillman then responded that there had also been a change of position by the Hospital Board Mr Hillman then responded that there had also been a change of position by the Hospital Board since Friday.The Official Solicitor had recommended an Independent Social Work (ISW) report and an independent nursing report to be carried out and he explained that whilst he had originally been instructed to oppose those reports, he was now instructed to remain neutral.  He explained that although the Board had its doubts as to the value of such reports, if the court felt it would be appropriate then the Board would not oppose such a move due to the complicated nature of the case.  Mr Justice Hayden responded in exasperation, explaining that he rarely feels that commissioning reports provides answers to such immediate problems.

Mr Brownhill expressed his concern, stating that if PH is in a psychiatric unit, it should be for “the shortest period of time”.  Mr Justice Hayden in agreement asserted that “he has waited for 7 months for a place in the community and I am not going to leave him in a psychiatric unit for the next 7 months”.  Mr Brownhill then asked Mr Justice Hayden how PH meets the criteria for section 3 of the MHA, to which Hayden J responded that “he does not meet the criteria”.  Mr Brownhill proceeded to explain PH’s position – “he is on a psychiatric ward with several elderly people, he says that it “smells like death” and he is becoming upset and agitated”.  Mr Justice Hayden, clearly troubled by the developments, responded

He is not going to stay on that ward. I am prepared to declare it is not in his interests to stay on that ward, but I’d rather work cooperatively and constructively. I do not for a moment seek to justify his loss of temper, but I cannot see but that any of us would be frustrated to have option after option dangled and then withdrawn in the way he has.  He has progressed and got better in circumstances that are not capacious to his recovery and all this will be undone by the psychiatric unit.”   

Mr Justice Hayden then referred back to Mr Hillman, counsel for the Hospital Board, stating 

“I would have thought that the system could do better than that Mr Hillman.  I appreciate that people are doing their best, but in the end, one must judge by results and not aspirations.  What is the point of him seeing [the reconstructive specialist] at this low ebb which is the result of this placement?  It seems to set him up to fail”

In response, Mr Hillman stated that PH has a “complex presentation” which involves an “emotionally unstable personality, of the disruptive type”. However, Hayden J opposed such a defence stating that he does not think such an assessment “correctly characterises the recent past with [PH’s] striking progress…It is [therefore] not satisfactory to say he has an emotionally unstable personality as a banner to march behind to justify the removal to a psychiatric unit.  I simply cannot see how that was thought to be necessary or appropriate”.  In response, Mr Hillman explained that the move was “as much to do with welfare and safety of PH as welfare and safety of staff and other patients”.  Mr Justice Hayden then asked Mr Hillman to point out where, in the court documents, he could find a statement which set out the balance of these issues, quickly clarifying that this was a “polite way of saying I don’t find the balance of welfare and safety” in regard to PH – which served as the basis of the report.   Mr Hillman then suggested that the recommendation to move PH to a psychiatric unit would allow his behavioural outbursts to be “better managed”.  Explaining that he still remained unconvinced that the criteria for section 3 MHA 1983 were satisfied, Hayden J asked Mr Hillman where, in the context of the law – not medicine – this then left the court.

Deliberation over the relevant legal framework

Mr Hillman explained that PH lacked capacity in relation to treatment and residency and therefore could be deprived of his liberty.  The Deprivation of Liberty Safeguards (DoLS) (Schedule A1 is an amendment to the Mental Capacity Act (MCA) 2005 which aims to protect those who cannot consent to their care arrangements whereby those arrangements deprive them of their liberty.  Such provision must be necessary and, in the patient’s best interests.  However, still unsatisfied, Mr Justice Hayden stated that he considered the detention of PH “for the purposes of treatment is disproportionate and contrary to PH’s best interests”, warning counsel that he has “followed this case all the way through and [is therefore] on top of the evidence”.

Still perturbed, Hayden J turned to Mr Brownhill, “I want to hear PH’s voice”, to which Mr Brownhill responded,

“It is clear PH does not want to continue in the current circumstances.  My legal view is that if you came to the conclusion that deprivation of liberty is not authorised, that there would be an ongoing Article 5 [(European Convention on Human Rights – Right to Liberty and Security) breach until resolved in damages. If your Lordship declares that section 3 is unlawful – wearing your administrative court hat…your Lordship may be able to do so in the administrative court on that basis that it is unlawful”

Mr Justice Hayden agreed, “I think it would be difficult for anyone to argue the section 3 criteria are met and so no one could argue it…”.  Continuing, Mr Brownhill explained “the Official Solicitor has challenged this for over a month, as to why a case under the MHA 2005 – as opposed to a deprivation of liberty of MCA 2005 – and it appears to be an intention to sidestep your Lordship’s overview”.  Hayden J pondered, “the papers are headed under both the COP and MHA – I don’t think they have doubted the jurisdiction of this court.  Whilst he has been on the ward, the regime has been somewhat academic but now it is not – it’s very real.  I need to hear from Mr Hillman as to whether section 3 MHA can be justified – I think I should hear your submissions after speaking to the psychiatrist”.  Mr Justice Hayden then explained “The Supreme Court is looking at the scope of deprivation of liberty with a judgement due to be handed down next Friday regarding children.  I am working on the basis that the inherent jurisdiction remains open to the court until the Supreme Court tells me otherwise – if it indeed does – and that I can authorise a placement that is otherwise illegal under the inherent jurisdiction.”

On Friday 30th July the Supreme Court is to hand down a ruling in the landmark case of In the matter of T (A Child)(Appellant) UKSC 2019/0188 on the use of the inherent jurisdiction to authorise children’s placements in unregistered secure accommodation in cases whereby there is insufficient registered places available.  In this case, the appellant – a 15 year old child subject to a care order – wishes to be recognised as capable of consenting in law.   The case will consider:

  • whether it is lawful for the court to exercise its inherent jurisdiction to authorise a child’s placement in unregistered accommodation; 
  • if so then what legal test should be applied and; 
  • whether the child’s consent to such deprivation of liberty relevant in the exercise of this inherent jurisdiction. 

At this point Mr Justice Hayden then directed the court to return at 11.40, stating he had other duties to attend to.

Upon resuming, Mr Hillman instructed the court that the consultant Liaising Psychiatrist, Dr B, was called as a witness.  Having been sworn in, Dr B then addressed the court.   Dr B explained to the court that her role was as a Liaising Psychiatrist, providing mental health input in the general hospital whether that be in the emergency department or on the wards.  This, she explained, provides a link between mental health and all primary and secondary care physicians.

Mr Justice Hayden was keen to determine the extent of Dr B’s dealings with PH.  Dr B explained she had interacted with PH “since his admission”.  Hayden J sought further clarification still, “you said you assessed him within weeks of his admission, but have you been seeing him regularly in the interim?”  The doctor replied that she “might not have necessarily seen him [herself] but [that she had] been involved in the overall [oversight of] things as the consultant of the liaison team”. Pressing further, Hayden J asked on “how many occasions have you seen him?”.  Dr B responded that she couldn’t say, but that it varied between “two to three times a week or once a fortnight or monthly – depending on how he has been”.

Mr Justice Hayden then asked if Dr B had provided the witness statement dated July 15th, to which Dr B replied she had.   Mr Justice Hayden asked how PH presents today. Dr B responded that the day before he had walked, with staff, from the general surgery ward to the psychiatric unit.  Hayden J then asked why that move was arranged from the ward where he had been for those previous months.  Dr B responded,

“PH has been very stable from a physical point of view with minimal intervention from physicians.  The only main issue remains his waiting for a placement.  Every now and then he gets very frustrated waiting and there were episodes where he would – unprovoked – become very, very aggressive and start throwing things again. And, on a couple of occasions, he broke computers in the secretaries’ office in the ward and it seems to us that, although physically he is much better and he is waiting for the placement – and, his acute needs for both physical and mental health aren’t there – ….we felt that he has been waiting for his placement for many months and it hasn’t come through and it is the psychiatric behaviour that seems to be a big problem when it comes to managing it on a general ward.”

Dr B was then asked to explain the type of patients on the general surgical ward.  She explained that, due to COVID, wards are no longer split in to set specialities and that this ward, in particular, now served a range of patients from specialities such as ear, nose and throat (ENT) to medical patients.  She explained “it is a mix of skills on that ward”.   Mr Justice Hayden then said, “I was under the impression that PH was in a room of his own?”  The doctor replied, “yes, he has been in a cubical on his own, but he is able to walk out of his cubical and is on the main entrance to the ward”.  She then went on to explain the proximity of PH’s room to the secretary pool and the junior doctor’s office. The ward, we heard, held between 22-23 patients.  Mr Hillman then asked the witness whether, with regards to the aforementioned incidents which had occurred, PH would have been able to remain on the general surgery ward.  Dr B responded,

“Well, mental health and physical health nurses have different training, and the mental health nurses are far more trained in dealing with behavioural problems with patients and, although those nurses tried their best, they called security and you then have security deal with a patient rather than nursing staff – although our colleagues helped.  So, we feel that the psychiatric team is more trained in dealing with the circumstances and we feel this behaviour won’t stop and, from time to time, we will see it”. 

Mr Justice Hayden appeared sceptical of this response and asked Dr B – “why, a day before he came to court, was it deemed [necessary] to move him to a psychiatric ward?”. Dr B responded that previously PH was not physically well enough to go to a psychiatric ward, explaining that when he had the tracheostomy this required suction which was not available on mental health wards.  Mr Justice Hayden asked Dr B how did she think PH would react to this move, to which Dr B replied 

“He was very happy – he said “[he was] mad – take me to psychiatric hospital!”.  When we discussed that there was an opportunity and there would be more activities he could participate in, during the day, he was quite inquisitive about the move. It was discussed previously.  From 15th July it was discussed with him a couple of times, the move.”

This, it appeared, was in contradiction to the submission of PH’s counsel Mr Brownhill and, as it transpired, the subsequent testimony of PH’s partner – both of whom explained that PH was extremely distressed by the move.   Mr Hillman then asked Dr B whether there were any issues, other than dealing with PH’s behaviour, which prompted the move to the psychiatric ward.  Dr B explained, 

“He has injured staff at times, and he would put other patients at risk – although obviously staff and security try to ensure this will not happen.  When he becomes threatening… I have felt threatened and I would have to leave as I knew I would be injured if I didn’t.  It wasn’t just about him, it was about the safety of other patients and when he pushed computers on the floor, the secretaries were there and terrified.” 

Apparently unconvinced by the necessity for the move, Mr Justice Hayden then asked whether the bed was still available on the General Surgical ward, to which the doctor responded that she didn’t think it was given the acute need for beds.  The doctor was then asked how PH was today.  She replied,

“Although I haven’t seen him, I am seeing him this afternoon and I have discussed with the team leader that he hasn’t settled well.  He refused PEG feeds and has been agitated….I have asked my speciality doctor – who has engaged well with him – [about how he is today].  She reviewed him and he was in the garden of the ward, and they sat and had a chat.  He complained there is a smell in the room and in the garden.  He also said he didn’t want to take the feed but he was accepting of the medication.”

The doctor was then asked whether PH’s condition was likely to change and whether he would get used to where he had been moved to.  Dr B responded,

“This is not unexpected with a condition like PH, to behave this way.  It will take some adjustment. I am optimistic that things will move on.  The fact the doctor could engage him, and he sat and spoke is good news to me.  It is easy for him to access the garden, it is contained, he can’t go outside the ward, but from his room he can go out into the garden, so that is another positive thing for him. Whilst I accept that there are some adjustments to be made…”

Mr Justice Hayden then interjected,

“You know that PH is being assessed by surgeons to evaluate the prospect of major reconstructive upper GI surgery to improve his quality of life – potentially very much – on the 5th of August?”

Dr B replied,

“Yes, I am aware.  It was planned a year after 2016.  Unfortunately, due to alcoholism and alcoholic hepatitis however, thereafter he has a number of appointments…”

Mr Justice Hayden again interrupted,

“What [the specialist] insisted upon, was that PH be in optimal condition for the assessment. It seems inevitable that to move him before the assessment…it seems incredibly predictable that this would happen. How does that fit with your liaison role?”

In response, Dr B said

“Yes, [the specialist] needs him to be mentally and physically stable.  They thought he would be settled in a placement and take it from there.  So that’s why it was arranged.  At the moment, [the specialist] said there is no point in having the face-to-face appointment. We will probably have it remotely as they will not do any investigations and it is highly unlikely that he will be able to list him for surgery. So, to me, it is much more important that we try and settle PH in a placement to see how he will cope outside, where he will have access to alcohol which he has used in the past and, whether he will be able to continue with the progress so far.”

Mr Justice Hayden then said, “we have spent 12 months trying to find a placement and now he’s ended up in a psychiatric unit. Do you think this is the right place for him?”  Dr B said “no, a placement would be right – but when you can’t find it, you choose the least evil”.  Clearly perturbed, Mr Justice Hayden hastily responded,

“I don’t think you do, when you are restricting someone’s liberty. That is a long way from meeting their basic human rights. I understand the challenges, but it does not mean I will sanction what you term ‘the least evil’ option.  I don’t think that that’s right, that people should have to endure that. I am not prepared to sanction something that is the ‘least evil’ and I don’t think the public would expect me to.”

In regrouping, Hayden J then returned to whether the criteria for section 3 of the MHA 1983 had been met, surmising that “if we get to the bottom of that, then it cuts out a swathe of options”.  He asked Mr Hillman, “can you look at, and consider, the recommendation that you made about PH continuing on the section 3 MHA 1983 order, as it has been raised before the court as to whether that is ‘appropriate’ or ‘necessary’ and I would like you to explain [this]?” emphasising that he would like to know whether the criteria are met, today.

Dr B responded that he did meet the criteria as the doctor determined that PH suffers from a mental disorder and, as the result of an acquired brain injury that disorder is more difficult to manage.  In considering whether the order is of a degree that is appropriate, Dr B explained that, when one considers the “chronicity” of the disorder, it is evident that he has a long history of behavioural problems that involve self-harm.   In describing PH as a “vulnerable adult who will always need care” the doctor explained that he has been “known to surface in mental health [since the age of] 27 when he had a history of multiple drug and alcohol abuse.” 

 She continued, describing         

“the intensity of [PH’s] symptoms – [that he has] a shallow understanding of his care needs, [that] from time to time he finds it difficult to tolerate his frustrations and experiences very negative thoughts.  He finds it difficult not to act out, and to dissipate his frustrations in a more mature way.  When he ‘comes down’, he is either oblivious or apologies. Is it [therefore] necessary for the health and safety [and] protection of others. Yes, he needs to remain on section 3 of the MHA, as treatment cannot be provided unless under the section.  We could say that PH is incapacitated, compliant something – but sometimes he isn’t compliant.  He has a degree of restrain that is needed to be used.  It is not permissible to use this degree of restrain when he is behaving in certain ways that require restraint.  He might not be able to receive treatment if he is under the MCA alone.  It takes us back to the original reason why he was put on section 3 in late December.  He was originally put on section 2 and then section 3 as he was trying to abscond from the ward, and it was very difficult to control him on the doors alone.  To my knowledge, when there is an element of restraint required, we are not justified by keeping them just on the MCA.  Whilst I have considered the least restrictive option, I have to use section 3. And, because we have not appealed in the first 6 months and he has a manager’s meeting, where I will meet to defend it again.”

Mr Justice Hayden then inquired, “if the manager maintains the section 3, will it go to tribunal?” to which Dr B responded, “yes, it will go on 9th September and if the managers discharge him from section 3 then we will have to consider an emergency order to keep him on the unit”.  Hayden then enquired as to whether PH has tried to abscond, to which Dr B responded that he had tried to abscond from the General Surgical ward, describing how PH had, during a walk around the hospital with staff two weeks ago, tried to “divert towards the shops” and that it had been “difficult to get him back”.

At this point, Mr Justice Hayden had to leave again, and the hearing was set to resume again at 2pm.

Upon his return Mr Justice Hayden expressed frustration at “going round in circles” and conceding that he had “the profound feeling that nothing is going to be achieved at all today and [that he was] very uncomfortable with PH’s situation”.  After being advised the PH will go before the mental health tribunal in September, Hayden J concluded,

“I think that PH’s circumstances are very disturbing.  He has been waiting for appropriate placement for 12 months. He has been in circumstances that are not meeting his needs.  Notwithstanding the lack of neurorehabilitation that he’s been receiving since (as it’s not in the remit of those giving him care), he has made remarkable progress.  He has to be evaluated for some very important reconstructive treatment in [such circumstances] when he is – at very best – in the first wave of shock as the result of a dramatic change of circumstances.  If you had planned to make it difficult to make progress for PH, then it could not have been more effective”.

Mr Justice Hayden then reminded the court that PH is “a long way off having access to a service his is in need of” and that it makes him “very concerned for those who do not have the degree of scrutiny this case has [and all the protection afforded by the Court of Protection]”. Hayden J then explained that he had met with PH’s partner, whom he noticed was in attendance at this hearing, as she had been at every prior hearing.  He explained that whilst he was not prepared to allow this situation to continue, he was unsure of what he could do today. He contemplated that he could make a public order, and “name names” but that that was the “weapon of last resort”.  Whilst acknowledging that in the current pandemic, we are “all under pressure”, he cautioned that “that does not mean people like PH can get lost in it”. 

Concerning the Lack of Suitable Placement

Mr Justice Hayden then turned to address Mr Hillman, Counsel for the Hospital Board – “last time you had told me there are places in the community that PH might be able to go to because he’s made sufficient progress…because he’d made [that] progress under his own steam.  Is that still an option?”

Mr Hillman explained that those were mental health nursing homes and that those applications have not been progressed because there have been COVID outbreaks which means they had not been able to assess him.  He sought to assure Hayden J that PH would be assessed “as soon as the COVID situation allows”.  Mr Justice Hayden was wholly unsatisfied with this response replying,

“I am not prepared to accept that is sufficiently proactive or creative enough.  About 12 months ago we moved to assess people in care homes remotely and that has proved quite effective. I know it’s a preliminary assessment [by the specialist surgeons] that will take place remotely – why can’t the assessment for the nursing home be done remotely since there is a [body] of evidence available [from this case]?”

Hayden J was not prepared to accept Mr Hillman’s explanation that this was the nursing homes’ position, stating that nursing home representatives can “come and tell me why they are taking this stance in person”.  Mr Justice Hayden continued to emphasise the urgency in this case, stating “we cannot have this drift.  He has been in these parlous circumstances for too long now and I want to know what can be done and quickly. I want to know what we can actually do and not what we can’t do.  Dr B – what can we do, because this can’t be right?”.  Dr B asked, “if I took this right [you are stating that] we are depriving him of something that would benefit his physical health?”.  Hayden J replied,

“No, he’s recently been moved.  He’s been distressed at the move.  The distress is predictable and it’s at the time when he’s being assessed for major surgery and he’s not going to give off his best – that to me does not seem like the most coordinated approach.  PH should not be where he is now and he’s been there long enough.”

Dr B then responded “PH is where he is because of what he did to himself”, to which Hayden J crossly replied “I do not take that view.  The Court of Protection does not take a punitive view. I am talking about the overwhelming gamut of his needs which are, on your view, the least evil”.  The doctor then responded that if there was a placement available which was appropriate then that is where she would have liked PH to go.  Hayden then turned to Counsel for PH, Mr Brownhill to ask his perspective.  Mr Brownhill explained his frustrations, reminding his Lordship that he had set out a roadmap at the last hearing which represented a “comprehensive assessment of need” and which had recommended that a “commissioning specification” be set up.  Mr Brownhill explained that this required a search of England and Wales be conducted to find potential placements and that, once complete doctors would be invited to put forward their views according to section 4(7). This, according to Mr Brownhill, did not happen and he held the Health Board responsible for this failing.  He explained “…there is no explanation as to why that is not done.  With some regret, the independent social worker and nursing expert are [now] instructed to do the work that should have been done today”.   Hayden J requested a list of options be drawn up which could assess PH remotely, but Mr Brownhill reminded his Lordship that this was requested at a previous hearing but had remained unfulfilled.  Mr Justice Hayden then turned to Mr Hillman and asked “am I being ignored?”.   Mr Hillman advised Hayden J that “the problems have come about [because] we have been given the ‘run around’…for COVID reasons things have been put on hold temporarily”.   This was not considered to be an acceptable excuse before the court according to Hayden J, 

Unless you have been living in a parallel universe you will know that the entire world has managed to make assessments remotely …to say we can’t do things because of covid is invariably a ruse for those who don’t want to do things. You only need to look to the law reports and see what has been achieved in care homes and hospitals and ICUs. This man has, on the preponderant medical evidence, some potential to recover – even without focused treatment, and in a state of limbo, has managed to do well.  Dr B feels she is being criticised but, the reality is that he has been moved when he didn’t need to be removed”.  

In reference to an earlier argument by Dr B that PH would also be exposed to nosocomial infections if he were to remain on the general ward, Mr Justice Hayden continued –“to say there are viruses fails to recognise he has been on the ward for 12 months running the gauntlet of avoiding these viruses.”  Counsel for the Health Board, Mr Hillman then replied by stating that “maters are not going to resolve suddenly” when PH meets the surgical specialists.  Hayden J responded, “I don’t like that – trivialising the meeting with the experts – I suspect to him it is very important.”   Whilst Mr Hillman clarified that he did not intend to trivialise matters, and that it was unlikely surgery soon take place due to COVID, Hayden J explained “I am extremely uncomfortable at what has happened, and I am, by no means persuaded that he should be under a MHA order, but since it will be reviewed by tribunal soon, I am not going to quash it by way of judicial review now. [Nonetheless], I want this to be proactive and I don’t want PH to be side-lined”. 

Mr Brownhill then addressed the court, citing his concern that key members of the Health Board failed to attend any of the hearings.  He described the whole process like trying to “get blood from a stone”.  He commended his Learned Friend as “valiant in defending the Health Board” but explained that the reality was his client was “sat on a bench outside a psychiatric unit” just now and that “if it gets worse, he will end up in a psychiatric intensive care unit”. Appealing to Hayden J, Mr Brownhill explained “someone of rank needs to listen to your Lordship. I would prefer the Chief Executive had been here to listen to what you say”.  Hayden J agreed that Mr Hillman had “not [been] given what he needed [and so] ends up in a defensive position for the Health Board and [that] that is not what this court is about”.  Hayden J then stated that he would sit in open court at the end of August, that he will review the need for a transparency order if need be and will give a judgement at that time.  He requested that he be informed of who to call at that time, and explained that he has “tried all other routes” and that he “does not take this [stance] lightly”.  He explained that he hoped this approach would “generate a more proactive, not aggressive, resolve to do something for this still young man who is only [in his 40s]”.  Hayden J then turned to Dr B, 

“This is not about criticising the individual doctors. It is about getting the system to work effectively to translate the care into the result.  I think you are right to use the least evil option. We have hung on for 7 months for a placement that “gave the Board the run around”, but it shouldn’t have been permitted to do so as there is a patient at the middle of it.  Either they are going to do so, or you should have abandoned ship” 

Mr Brownhill then restated that PH was currently sat in the gardens of the psychiatric unit over lunchtime, indicating that he should not be there.  Mr Justice Hayden then considered that “one of the few consolations [of holding remote hearings], is that P – the protected person – has been more involved than they would have before [the COVID pandemic]”.  This, in reference to the newfound ability to interact with protected persons via remote video link.  He continued,

“I visited P and you will recall that he found that a beneficial experience.  Not because I was able to convey anything constructive, but because he was not made to feel a bystander. So, I want a careful note of what he has to say about his circumstances. I do hope that when we meet in August, finally, there will be some good news about this man. My own assessment of him – and I don’t doubt that he is in this position due to his own actions, but he does have a personality disorder which contributed to that –  [is that] he has made considerable effort in recent times. I hope that we can do something for him.”

Mr Hillman then asked what “physical steps are expected to be progressed…?” to which Hayden J clarified,

“Let me help and this is not to circumscribe you to my views. I want to know:

  • who is responsible for looking for a place – their name and who they are accountable to 
  • A list of every place the approach
  • What the response is
  • The reason for their response.
  • Whether it is possible for remote assessment
  • I want the emails
  • I want the whole telephone and paper trail, so I can get a grip of the reality.

This is what I would do for a child, when children need secure placements and can’t get it. I get a named individual to go around units. It can create a degree of urgency that doesn’t seem to arise under the burden of people’s day to day routine, which I know for all of us is heavy at the moment.”

Finally, Hayden J turned to PH’s partner, who explained that PH had, even prior to the hearing commencing at 10.30am had contacted her 30 times. This was, in her opinion, illustrative of his distress at this psychiatric placement.   In closing, Mr Justice Hayden sought to reassure her, “I am hovering over this case for as long as I have to…[and] until we are able to galvanise the system into [doing] something”.

A provisional date for the hearing in late August will be set by Mr Justice Hayden’s clerk. 

Reflections

This was a sad and uncomfortable case concerning a relatively young man who, in the midst of legal wrangling and the inability to secure accommodation during the COVID pandemic, found himself referred to the care of a psychiatric unit. 

Of upmost concern was that a crucial chance to demonstrate his progress, and be deemed eligible for life-changing surgery, could be undermined by this move – a move which the judge considered to be the result of frustrations borne of the barriers continually placed in PH’s road to full recovery and discharge.  

Mr Justice Hayden demonstrated compassion and the upmost concern throughout the hearing.  

Whilst it is disheartening that action was not taken on this day, given Mr Justice Hayden’s comments, it appears unlikely that the situation will be allowed to continue as is, following the subsequent hearing at the end of August.  

During the hearing, Mr Justice Hayden commented that this was a rare occasion when the distinction between two similar legal provisions – often considered to be purely academic in nature – represented materially different outcomes for P.  

For the past four years I have been a lecturer and coordinator of the Legal Medicine and Clinical Bioethics programme at European University Cyprus Medical School.  In holding this position, I have sought to bridge the gap between medical practice and legal theory so that our fifth year MD medical students are equipped for their future medical practice.   Whilst I was already familiar with the relevant legislative provisions held under the MHA 1983 and the MCA 2005, this was the first time I had considered, in depth, the potential implications which could arise from either provision.  It therefore demonstrated the importance of clarifying which provision was necessary in the given circumstances.

 Following this hearing, I intend to engage my students on this matter in the coming academic year, so that consideration is given as to when it may be appropriate and necessary to hold P in deprivation of liberty and, where this is established to be the case, that careful consideration then be given to whether the provisions of MHA 1983 or MCA 2005 are most suitable.  This, I hope, will allow greater appreciation as to the impact that such “academic” distinctions may have upon the outcome for P – who is, after all, at the centre of it all. 

 I appreciate that facilitating public access to these hearings creates an additional workload on Court staff during an already very difficult time – they must reply to emails seeking access, provide access links, note the names, and email addresses of public observers, send out transparency orders and may even assist on fact checking for blogs such as this.  I am truly grateful for the opportunity to observe, and I consider such access to be an invaluable part of professional development. 

I hope that as restrictions end, remote access will continue to some extent.  At both hearings I have attended, Mr Justice Hayden has commented favourably on how remote access has placed P more centrally at the heart of such proceedings, enabling the judge to interact with P via remote links and ensure their voice is heard.  Remote access also has great academic value, enabling access for those – such as myself – who would not normally be able to visit the High Court in person.  In observing these hearings, legal theory itself transcends from the ‘academic’ into ‘reality’ in a way which inevitably stimulates greater academic curiosity, promotes research, and influences teaching.  In this way, remote access, arguably benefits future legal and medical practitioners by proxy and so, will hopefully, improve outcomes for future protected parties.

Jennifer O’Neill is a Lecturer in Anatomy at the University of Glasgow and visiting collaborator at European University Cyprus.  She tweets @j_o_neill_ 

(1) Audio- and video-recording of COP hearings is strictly forbidden, so the quotations presented in this blog are the result of type-written notes which aim to reflect as far as possible what was said, but are unlikely to be word-perfect. 

Photo by Kyre Song on Unsplash

Court considers how to operate against patient’s will

By Daniel Cloake, 2nd August 2021

This report concerns a case (COP 12132507 In the Matter of “AB” ) before The Hon. Mr Justice Hayden sitting remotely on 20 July 2021.

The subject matter of the hearing was presented like this in the Transparency Order:

  1. This application is listed for hearing at 10.30 am on 20 July 2021. The court will consider the following issues in respect of serious medical treatment and make consequential orders:
    • A) Whether AB lacks capacity to make the decision about amputation of his leg and his wider medical treatment, care and support;
    • B) Whether the treatment proposed, including the pre, peri and post-operative procedures, in AB’s best interests including in particular whether it is reasonable and proportionate to:
      • i) Sedate and, where necessary, restrain AB in accordance with the draft care plan in order to facilitate the proposed amputation is reasonable and proportionate;
      • ii) Administer medication covertly in order to sedate AB.
    • C) Whether it is lawful for AB to be deprived of his liberty in hospital, pre, peri and post-operatively.

The court was told, in an introduction prompted by the judge, that Mr AB is a man in his fifties who suffers from a form of schizophrenia and from type 2 diabetes. 

Ms Ulele Burham, the lawyer representing the Local Health Board, explained that complications arising from the diabetes had made it necessary to amputate his lower leg.  Mr Justice Hayden continued the introduction describing it as a:

“… very serious condition.  The bone had become weak and had dislocated.  Because of the erosion of the bone and changes in the shape of his foot and ankle, gradually bit by bit over the past few years had caused his mobility to rapidly decrease.  Even 40 yards to the shop required a taxi.  He has from time-to-time accepted some treatment for example casting and antibiotics but he was resistant to intervention as his perception is that his condition will cure itself.  There is no salvageable bone left in his hind foot.”

Ms Burham explained that Mr AB objected to the amputation on the basis that the injury to his foot could be cured by drinking Diet Coke.  We were told it was the view of the Health Board and Mr AB’s family that these “delusions” as to self-treatment were caused by his form of schizophrenia. 

The judge said in no uncertain terms that it’s “not an exaggeration to say he will die if he doesn’t receive treatment”.  Mr Justice Hayden considered that Mr AB’s resistance to treatment didn’t mean he wanted his life to end – and the determination with which he went to the shops “shows he has quite the fight in him”.

The Judge continued describing Mr AB’s background.  How in 2018 he was given a flat in a supported living environment, something described as a “sea-change in his life” which “manifestly transformed his life beyond measure”.  Throughout his adult life “repeated release and readmissions had become a vicious cycle” and it was “sad and ironic that this physical problem occurred when his mental health was more stable”.  The judge said he was “enormously positive about where [AB] is living” which meant AB “is well placed to confront” these problems.  This sentiment was echoed by the family who, in a written letter to the court, said they felt “[AB] is resourceful enough to enjoy life in a wheelchair once he has got used to it.

The letter, which we were told was jointly written by four of his siblings, was an “important document” said the Judge.  “So often when evaluating the best interests it is the lay evidence that best illustrates the individual” he concluded.  “I don’t want the family to think I have made the decision as a paper exercise.  The medical evidence is clear to me. I’d like to hear from one of the family members”.

The court heard from Ms C, who told the Judge that writing the joint letter was “quite an interesting experience for us to talk together and recall memories from when [AB] was 8 and how he wouldn’t wear his glasses”.  We heard how Mr AB’s mental health had started to deteriorate when he was aged 15 after his father had died but how the family had collectively supported him – “We’ve all discussed how we talked to him.  I spoke to him every night for 2 years.” she said.

Ms C described the change in Mr AB that occurred when he was placed at the supported living placement – “that’s really been very positive for him.  He was ready to start living a life… he talked with the excitement that an adolescent might have, about having a girlfriend or watching a football match.”  “Not necessarily only the privilege of adolescence!”, the Judge replied.

Ms C explained that Mr AB “is not a suicidal person, he may have schizophrenia but he’s not depressed. An amputation is the worst possible outcome apart from all the rest.  The longer it takes the worse his prognosis.  There is no doubt it has to happen and the sooner the better.

Mr Justice Hayden replied: “What’s so striking about [AB] is that he is surrounded by an incredibly supportive family who don’t just say the right thing but have followed through with support.  But many people in his position don’t have that support and how much it improves the quality of his life.  I congratulate you on the support you give him. I would like to pay tribute.  What I am worried about is that I would be sanctioning a drastic treatment, which he would struggle to understand why it had been ordered and I’m highly alert to maintain trusting relationships with those around him.”

Ms C replied that maintaining that trust is “virtually impossible to do” and it was “inevitable” that Mr AB would “think his leg has been stolen”.  “No question he will be really quite angry, but that is the nature of his mind.  An awful decision to have to make”.

Mr D, another of AB’s siblings, gave his opinion.  “I think that he will be upset and shocked.  But if given enough attention and support I think he can be supported into managing it”.  

The court considered how the procedure should be carried out given Mr AB’s objections.  It was discussed whether medication could be hidden in his Diet Coke.  Ms Burham submitted that this plan would not be in his best interests because “if he were to discover he had been medicated in a covert way, there’s the same problem of mistrust.  There’s no guarantee he wouldn’t be able to taste it – he knows quite well how it should taste.” 

Ms Burham explained that it’s the view of the Official Solicitor and the family that the best plan with the “lowest risk of failure” should be physical restraint without sedation.

Ms Bridget Dolan QC, acting as Mr AB’s litigation friend via the Official Solicitor, told the court that the proposed “restraint care plan was rudimentary” and they had only just heard of the involvement of a private company to action the restraint.  She explained that Mr AB has been subjected to forceful medication before, so “the experience wouldn’t be unusual”.  In any event it would be “preferable to see a restraint plan that wasn’t described as a first draft”.

Raising his last concern, the Judge asked to speak to Dr E who is responsible for carrying out the operation and who had written a detailed report for the court.  Due to her unavailability we instead heard from Dr F, a colleague of Dr E who – the court was told – was very familiar with the proposed plan for Mr AB.

Mr Justice Hayden recalls a case where he had ordered a below knee amputation to be performed but what took place was above the knee.  Quite why is still “a matter of investigation”.  Suffice to say this had “very very significant ramifications for their future mobility” and prevented the use of prosthetics.  “What I want to be utterly clear about, is why I can be confident this is an amputation below the knee” the judge says.

Content with the response from Dr F, the judge described the report prepared by Dr E as a not only a model report but a “paradigm” and asks that his thanks be passed on.

Concluding the hearing, Mr Justice Hayden told the parties that he hopes “all goes well” and encourages them to contact his Clerk with news of the outcome.  It is understood the operation was due to take place on Friday 23rd July 2021, some 3 days after the hearing.

And what was the agreed restraint plan I hear you ask?  Well, with an echo of the court’s reputation of being a #secretcourt sounding loudly, the parties were told to discuss the plan in private and submit the agreed order to the Judge for approval. 

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

Photo by Roland Larsson on Unsplash

Life-sustaining treatment contrary to his best interests: Lessons from a supplementary hearing

By Jenny Kitzinger, 30 July 2021

The hearing I attended at the Court of Protection on 15th July 2021 (Case No. 1375980T before Mr Justice Hayden) was unusual in that it was described by the judge as a “supplementary hearing”. I’d not come across this type of hearing before, so was interested in the format and process as well as its substantive content.

Supplementary hearings are uncommon and it was hard to find out much about how they operate. Although not formally defined (e.g. in a Practice Direction), a lawyer I approached for advice when writing this blog told me about a few other cases where a supplementary hearing had been held. The aim in each case was to pick up on the issues that were identified as important, but which didn’t need to be resolved to actually answer the question before the judge in the original hearing. 

Judgments from previous supplementary hearings address, for example: 

These cases are summarised by 39 Essex Chambers here and here.

The supplementary hearing that I observed was prompted by what happened to GU – a severely brain-injured patient who had been sustained in an unconscious state for several years, despite assertions from family members (including wife, sister, brothers and several adult children) that this was not what he would have wanted – and despite his treating team apparently also not believing ongoing treatment to be in his best interests. The only area of dispute was that one family member, the patient’s eldest son, had profound moral objections to withdrawing clinically assisted nutrition and hydration (CANH). 

The judge’s decision about this patient’s best interests was made back in June 2021. Mr Justice Hayden decided that CANH was not in GU’s best interests. After judgment, all life-sustaining treatment stopped and GU was allowed to die. (My blog about that case is here). 

The point of the supplementary hearing held in July 2021 was to examine why this patient had been treated contrary to his best interests for so long – and to look at how other patients might be protected from this happening to them. This seemed like an invaluable opportunity for the Court of Protection to address some of the underlying problems in this area. 

I was particularly interested to observe this supplementary hearing because this is a family I had supported to help them in getting this case to court. This is one of many families that we (my colleague and sister, Professor Celia Kitzinger, and I) have been involved with as part of our work with the Coma and Disorders of Consciousness Research Centre. We also often support families in best interests decision-making about CANH that often never get as far as court: see my blog here

I was also keen to watch the supplementary hearing because I’ve often felt frustrated watching cases that do get to court where it’s apparent that there’s been lots of delay (Kitzinger and Kitzinger, 2017), but judges invariably focus narrowly on the best interests of the individual patient going forward. This usually means that exploration of any past problems or ‘lessons learned’ have a relatively low profile.

Who contributed to the supplementary hearing? 

The barristers in court were Debra Powell for GU via the Official Solicitor, and Mungo Wenban-Smith for the Clinical Commissioning Group (the applicant in the case). Both had been at the original hearing. 

They were joined at this supplementary hearing by Amelia Walker, counsel for the Hospital (It is possible that the judge will give permission for the Hospital to be named, but I have not yet had this confirmed, so I anonymise it here). 

The Hospital had not been a party to the original hearing and it was unclear (at least to me) whether or not the Hospital was now joined as a party for this supplementary hearing. 

The only witness sworn in during the hearing was the CEO of the Hospital. 

The patient’s eldest son and his brother were also present: both remained as parties to the case on the paperwork and both spoke briefly during the hearing. 

“An ethos at odds with best interests decision-making”

The hearing opened with the barrister representing the patient via the Official Solicitor highlighting the need for further investigation:

In the assessment of the Official Solicitor, there was a complete abrogation [on the part of the Hospital] from considering properly, or at all, if it was in GU’s best interests, and therefore lawful, to continue to give him an invasive medical treatment…. That is a failure to put P at the heart of decision-making and a failure to accord P his rights.”(Debra Powell)

The atypical nature of this hearing and the role of those involved was signalled as this barrister went on to say: 

Our position is unusual. Since GU sadly died, peacefully, on 26th June, our involvement in protecting his best interests has come to an end. But the Official Solicitor’s position is that where there is disagreement about P’s best interests then, by some means or another, that dispute must be resolved in a timely way – to do otherwise compromises the best interests and dignity of a patient. It risks a situation, as here, where GU has been treated for hundreds of days – nearly 3 years – when this is not in his best interests.” (Debra Powell)

A concern that these failures in care were linked to the Hospital’s “ethos” took centre stage from the start.

The judge quoted from an email sent to a family member by the Head of Continuing Care at the hospital. It stated: “we are not at [the Hospital] about to prevent any resident from having their basic rights of food and hydration.” The judge said this statement suggested there might be “a philosophical driver rather than a protracted procedural issue behind this delay” in considering GU’s best interests. This was a possibility that, the judge said, needed to be confronted “with courage and uncompromisingly”. 

Further evidence provided by the hospital seems to have added to the judge’s concern rather than reassured him.

Taking a few minutes to read the hospital’s position statement during the course of the hearing (it had only just been submitted), the judge described it as “A realistic acknowledgement of the delay as well as an ambitious plea of mitigation for it.” 

He then turned to another document the hospital had submitted some days earlier which he found problematic. He explained to counsel for the Hospital:

 “There is a philosophical disconnect between that document [original information from the hospital] and your very carefully crafted submission [the position statement] – but the two come cheek by jowl and I think that requires explanation.”

Mr Justice Hayden proceeded to read out and criticise various statements from the material provided by the hospital. 

  • The hospital had written: “We understand there has been a suggestion of some delay in decision-making regarding GU”. Hayden J commented: “Where it says ‘some delay’ it requires to be identified that this was a minimum delay of 3-4 years. It rather minimises the magnitude of the issue here“.
  • The hospital document stated “we would not lightly initiate proceedings in circumstances where there is a disagreement”. Hayden J commented that this is “reversal” of the legal situation. He seemed completely taken aback by this statement – not least because his own guidance makes clear that it is precisely when there is disagreement that court proceedings should be initiated. 
  • The notion that disagreement might inhibit clinicians from referring the case to court and ensuring the patient had the benefit of legal representation was robustly rebutted by the judge. Disagreement among family members about a particular course of action, he emphasised, “doesn’t make a jot of difference if the hospital identifies it as being in P’s best interests.”

Mr Justice Hayden gave short shrift to the suggestion from the Hospital barrister that perhaps guidance about when to bring a case to court was unclear. Commenting: “I didn’t have a sense that anyone had read my guidance. I don’t see how I could have expressed myself more unambiguously’. 

He singled out the Hospital’s own description of a potential conflict between its ethos and best interests decision-making about CANH for particular scrutiny. The judge read out a passage from the Hospital’s submitted documentation where it described its ethos (as a centre for rehabilitation and long-term care) as one where:

 “… often we can expect our patients to live out long lives, during which they will be comfortable and if possible happy. Withdrawing life-sustaining treatment is not immediately aligned to that ethos and though staff are aware that there are circumstances when the withdrawal of CANH is an appropriate course of action, that is not something which many staff are comfortable facing, unless they have to.” 

Mr Justice Hayden described this as “a very troubling passage … not least because it was written knowing this case was being heard.” He underlined that:

 “There is one person who counts and that is P. When you allow it [staff feelings and values] to filter in, you risk, as here, doing harm. And that is what I want to stop…. 

The fact that staff may have ethical problems withdrawing CANH can never be allowed to eclipse P’s right to have it determined by a court, represented by the Official Solicitor .… It is, with respect aligned with the ethos of care for patients. It is not disjunctive from it, as the author of this document suggests.”

By the time the Hospital’s CEO was sworn in to give evidence, it was clear that a certain amount of repair work was needed. The CEO was quick to acknowledge the unacceptable delay in referring GU’s case to court and to assure the judge “we will completely adjust our policy and our operational policies accordingly”.

The CEO indicated that steps had already been taken to improve the hospital’s approach to best interests decision-making about CANH and he expressed the Hospital’s future commitment to following Mr Justice Hayden’s (2020) guidance about when to apply to court

The CEO also indicated there were plans to produce leaflets for families and to undertake staff training. 

Having been part of teams that have worked on such material for years, I can only hope the CEO for this Hospital looks at the existing information and training made available by the British Medical Association [BMA] and Royal College of Physicians [RCP]. There is no need to reinvent the wheel. For example the RCP working party report on Prolonged Disorders of Consciousness includes a detailed chapter on “Practical decision-making regarding starting or continuing life-sustaining treatments”. The BMA and RCP have also created a series of user-friendly additions to national guidance about CANH including, for example,

The CEO went on to make various attempts at mitigation – including explaining that the offending email quoted by the judge was sent by “a middle manager”: it did not, he claimed, reflect the official hospital position. He also suggested that mistakes made in 2018 (in failing to deal with family concerns about ongoing CANH) were perhaps related to the fact that this was very soon after certain legal changes. He referred in particular to the “Re Y” judgment in the Supreme Court (the judgment which made clear that there was no need to go to court before withdrawing CANH if robust procedures had been followed and there was no doubt or dispute that continuing it was not in the patient’s best interests). This led to the following exchange (which, like other quotations in this blog post is captured as accurately as possible through note taking, since recording is not allowed):

CEO:       In 2018, when we were digesting the ruling of the Supreme Court we certainly did err on the side of caution – and I guess with hindsight too much on the side of caution.

Judge:     What do you mean?

CEO:       A number of relatives expressed concern about whether there would be a rush to withdraw CANH against their wishes. It died down quite quickly, but at the time our nervousness would not have been about keeping someone alive unlawfully but ending their lives unlawfully, so there were a lot of checks and balances

Judge:     Mr X, this isn’t the situation at all – there was never any obstacle to going to court if treatment was against the best interests of the patient and compromising their dignity.

Reminding the Hospital’s CEO that the “Re Y” judgement did nothing to change the duty of clinicians to act in the best interests of patients, Mr Justice Hayden went on to say that “this can’t come as a surprise to you – that would require amnesia of a decade within the profession”.

When the CEO indicated that he was taking on board and digesting what the judge had said, Hayden J responded: “you may be absorbing it, but this is something the hospital should have absorbed a decade ago”. He concluded: “I’ve formed the view that on these issues [the Hospital], for all its excellence in rehabilitation, was a long way behind the curve”.

Litigants in Person – the need for full involvement

My only disappointment in this hearing relates to the problems experienced by one of the family members – a litigant in person – who wanted to contribute. 

The patient’s eldest son (who had opposed the withdrawal of CANH) was able to attend the entire hearing and was offered the opportunity to ask questions of the Hospital CEO. He emphasised his support for the Hospital and admiration for the care they’d provided: “I for one will carry on donating to the hospital because of what they’ve done for my dad, and how they’ve treated me, and how they’ve been when I visited my dad.”

The problem was experienced by the patient’s brother, EU, who’d represented the rest of the family in trying to get CANH withdrawn. Like his nephew, he is full of praise for the physical care given to GU, but he is very critical of the Hospital’s approach to best interests. It was he who was particularly keen to contribute to the investigation of the causes underlying delays in reviewing his brother’s treatment.

EU had been told at the end of the original hearing that there’d be a supplementary hearing and Mr Justice Hayden emphasised that he’d be welcome to attend this. However, EU was excluded from further correspondence about the case thereafter and when he emailed in an attempt to find out when the hearing might happen or how he might be involved, he did not receive a reply. 

He only learned about the date of the supplementary hearing about 48hrs before it was scheduled to be heard and it was only later that he discovered that he still counted as a ‘respondent’ and could have submitted evidence – but the deadline for this had passed. The hearing also unfortunately clashed with a medical appointment which he had no chance to rearrange due to the short notice. This meant that he had to leave the court before the hospital CEO gave evidence and was unable to ask him any questions. 

The Court of Protection often has to work at great intensity and speed, but it seems the parties with barristers in this case had access to information that the Litigants in Person did not. This was potentially a detriment to the court process. In particular it would have been useful if all the parties had received the draft order after the original June hearing, which included information that would have been invaluable to the family in preparing for the July hearing.

Talking to the patient’s brother after the supplementary hearing it was clear that this was very frustrating for him. He had intimate knowledge of the challenges from the family perspective as he’d been fighting to have GU’s best interests addressed about CANH over several years. He could have provided additional information from correspondence with, and meetings at, the Hospital – some records of which appear to have been mislaid by the hospital or at least were not included in information provided to the court. 

At one point, just before having to leave the hearing, EU asked for permission to address the court: as usual, Mr Justice Hayden accommodated this, always being keen to ensure families are heard. It was then that EU took a few moments to highlight the existence of paperwork from a meeting he’d attended in August 2018. At this meeting, a doctor recorded the information that the majority of the family believed CANH should not continue and she also made recommendations about how colleagues at the Hospital should initiate a best interests review: these plans were never followed through. EU believes there was active obstruction. 

Although pleased he was able to make this intervention, EU did not have the chance to make other points he’d wanted to raise. These included:

  • the fact that senior management staff had been copied into a crucial email thread – part of which Mr Justice Hayden had read out in court – so the ‘excuse’ that the offending email represented an isolated ‘middle management’ view was unconvincing. 
  • that the “evasion” he felt he’d encountered in the Hospital and the lack of accurate documentation when he tried to address questions of best interests was a major obstacle (“in contrast to the reams and reams of detailed documentation of every other aspect of my brother’s care”)
  • and, that, in his experience, not only did none of the clinical team take responsibility for best interests decision-making about CANH, but the whole atmosphere made even considering CANH as a best interests decision “almost unthinkable”. For many staff, he said: “it’s not within their psyche, they don’t even think that way.” 

He remains concerned about other families in the hospital who might never have been asked about their relative’s wishes (or who are perhaps left with the burden of the decision, rather than clinicians taking responsibility). 

He is also critical of what he suspects may be a potential “conflict of interests” given the large amounts of money going to the hospital from CCGs for every patient. He would have liked to ask the CEO about the funding model on which the Hospital might depend. 

I do not think the evidence and questions EU would have introduced would have made any substantive difference to the judgment in this case. However, perhaps there are lessons here about how Litigants in Person can be briefed on court processes and included in correspondence leading up to hearings.

Reflections

The supplementary hearing (which lasted around 2.5 hours) was a thorough and detailed engagement with what the Hospital had done to GU, giving insight into some of the wider issues that affect patient care in many hospitals, rehabilitation centres, and care homes around the UK. 

The judgment may help to address a widespread failure to provide clinical leadership in best interests decision-making about CANH. It could be used to challenge the medical passivity around CANH decision-making in some units where, unless families push for it, the question of whether it is in P’s best interests to continue CANH is often never revisited or reviewed. 

The supplementary judgment may also help to galvanize clinicians who have become frozen in the face of family conflict and sometimes see the court as an option to be avoided at all costs. It may help them to see that not only do they have a duty to refer intractable cases of dispute, but that in fact (as many of the blogs published by the Open Justice Court of Protection Project demonstrate), the court can be an excellent forum for achieving a just resolution that keeps P’s interests at the heart of the decision.

EU is hugely grateful to the Official Solicitor and to the Judge for the way they addressed his brother’s immediate needs for justice in the original hearing and also how, in the July supplementary hearing, they unpacked crucial areas where change was needed. He hopes one outcome might be to create a “legacy” for his brother – prompting improved best interests decision-making for other patients. He believes the judgment may help to ensure that what was done to GU, and to GU’s whole family, is prevented from happening to anyone else.

I hope he is right.

** Postscript **

Previous judgments in the Court of Protection have also drawn attention to the problem of the “ethos” of  units delivering care – in particular to the way this “ethos” can sometimes conflict both with the law, and with respect for P’s prior values and beliefs. 

As in this case, it is a problematic “ethos” that is sometimes implicated in long delays in referring disputes to court.  

This is illustrated very clearly in this reported case:   A Clinical Commissioning Group v P (Withdrawal of CANH) [2019] EWCOP 18. 

In that case,  all of P’s family consistently stated that she’d want to refuse ongoing life-sustaining treatment but: 

“… staff felt that any decision to discontinue CANH in relation to P could apply equally to all patients at the Unit. More generally, Ms PL (Clinical Lead at the Unit) [stated that] she and her staff would not want CANH withdrawn, … not particularly because they felt it was against the best interests, but because “… they are all ‘pro-life’ in general…’ [para 26}

It took several years before this case reached court.  The judge, MacDonald, J, concluded that “Whilst the ‘pro-life’ approach (as they themselves describe it) … is a valid point of view … I am satisfied that it is contrary to the clearly expressed view of P before she lost capacity” (para. 69)

As with GU it turned out that the P in this case had been treated contrary to her best interests for a very long time.

Perhaps a ‘supplementary hearing’ after that case (in Spring 2019) might have helped to prevent what subsequently happened to GU.

I wonder, too, whether the Hospital that treated GU could benefit from learning what the nursing home in this earlier case has done since the hearing to address the shortcomings in the care provided to P – and to ensure that, since the judgment, other residents have been treated in compliance with the law.

Jenny Kitzinger is Professor of Communications Research at Cardiff School of Journalism, Media and Culture. She also co-directs (with Celia Kitzinger) the Coma and Disorders of Consciousness Research Centre and runs online training for healthcare professionals about law and ethics. She tweets @JennyKitzinger

Image created for the Coma and Disorders of Consciousness Research Centre by Tim Sanders (https://www.timonline.info)

Capacity for Litigation, Residence and Care: Hunger-Striker (WA) back in court

By Jo Beswick, 28th July 2021

On Friday 9th July I observed the third in a series of hearings we’ve covered before Mr Justice Hayden concerning WA (COP 13617268). 

The first time, a year ago on 9th July 2020,  I was one of a number of observers who co-authored a blog about the case (here): there is also a published judgment.

A subsequent hearing, on Tuesday 25th May 2021, was blogged about by Gillian Loomes-Quinn (here).

The man at the centre of the case, WA, claimed asylum in the UK in 2009 and was granted indefinite leave to remain on 23rd July 2009.  According to the published judgment:

 “WA had escaped from his native Palestine where he reports having suffered sustained physical abuse by members of Hamas in consequence of his refusal to act as a suicide bomber. It is said that his Grandmother had been able to provide a bribe to a Hamas soldier to facilitate WA’s escape. His Grandmother was also able to finance and arrange for WA to leave the country. He travelled to Italy, where he initially claimed asylum. In Italy, WA and one other boy were allocated a foster carer. That proved to be a disastrous placement, both boys were physically and sexually abused and the other boy was ultimately killed, having been kicked to death by the foster carer. There is a good deal of corroborative material to support these accounts, not least evidence of extensive injury, including stab wounds and a crudely amputated index finger. WA has suffered post-traumatic stress disorder and depression“. (https://www.bailii.org/ew/cases/EWCOP/2020/37.html)

WA was placed with foster carers in the UK.  They have a close relationship with him and he refers to them as “Mum and Dad”.

WA had been told by his Grandmother before he left Palestine that his date of birth was 29th December 1994. The subsequent age assessments concluded that WA was five years older than he believed himself to be. The Home Office determined that WA’s date of birth should be 19th April 1989. It is this date that now appears on WA’s biometric records.  As Hayden J reports in the earlier published judgment: “For WA the removal of his date of birth is perceived as a fundamental violation of his own rights and an assault on his identity.

In September 2020 WA’s application to have his biometric age changed to the age he believes himself to be was refused by Upper Tribunal Judge Pitt. His appeal against that decision was dismissed by the Court of Appeal on 12 January 2021 (here). WA is currently awaiting a decision from the Supreme Court as to whether or not he has leave to appeal. 

As we reported in the first blog, WA launched a hunger strike somewhat over a year ago to seek to persuade the Home Office to change his date of birth to the one that he believes to be accurate. This led to the first Court of Protection hearing, since doctors wanted to administer clinically assisted nutrition and hydration to preserve WA’s life.  

At the July 2020 hearing, Mr Justice Hayden determined that WA did not have the mental capacity to decide to refuse clinically assisted nutrition and hydration (his hunger strike is “a maladapted response – an attempt to regain control as a result of the trauma he has suffered”) so it was for the Court to make decisions on his behalf.  However, it was very important not to coerce him.  So, despite the fact that he lacks capacity to decide for himself about clinically assisted nutrition and hydration, it should not be forced upon him.  

Hayden J also found that WA did have litigation capacity and is therefore able to instruct his legal team (rather than being represented by the Official Solicitor or an Accredited Legal Representative).  

The issue before the court today was: given the poor state of WA’s health (due to his hunger strike) where should he be cared for? Should he remain with his parents at their home with appropriate home carers and respite care, or should he move into a specialist residential care home? (No capacity assessment has been undertaken regarding decisions concerning his residence or care.)

The issue today – care at home or a nursing home

Mr Justice Hayden said early on that the issue today was centred on the place of care for WA. 

At the previous hearing, WA was in hospital following a suicide attempt (described by Hayden J as a “cry for help”) but was medically fit for discharge and he has since been discharged to his parents’ home.  

The hearing had initially been triggered by a request for a package of home care and for respite care for WA, to support his parents – described in the last hearing as “visibly exhausted and emotionally drained.

But it was made clear at the beginning of the hearing that WA has said that he wants to go into a nursing home, and has specified locations distant from his home town. He believes that his parents have done enough for him, and he no longer wishes to remain living with them.  

Hayden J read out part of WA’s note to him: “I would rather choose to go into a nursing home until God takes my soul”.  According to Mr Justice Hayden, “Speaking with absolute candour, I have the sense that he is letting go – that he doesn’t want any more treatment.”

WA was represented by Arianna Kelly of 39 Essex Chambers. As noted, he has previously been found to have litigation capacity and so is able to instruct his legal team directly (instead of via the Official Solicitor or an Accredited Legal Representative).   She did not represent WA’s current position on residence and care (his wish to go to a care home) but instead argued for a home care package. 

Miss Kelly: “Today seems to be a day where he’s taking a view like that.  In the last 24 hours he has been feeling quite low, and a bit hopeless. But most days that’s not the case.  Last week he was quite clear he wanted to remain living with his parents at home, and was open to the idea of having some carers come in.  I do not think he is letting go of his life.  His mood is not the same from day to day”.  

WA’s evidence

When the question arose about WA giving evidence, the judge asked if WA would prefer to do so without members of the public present, but his counsel said that WA was happy to speak in front of everyone because he “was hoping to draw more attention to his cause”. 

He was seated on a sofa with his mother and was visibly very distressed.  He talked about how hard it had been for him in the hospital, and how badly he felt he had been treated.  At various points he was crying and it was sometimes difficult to work out what he was saying.  “All I want is to get my identity back and live my life” he said at one point, “They have taken my identity and my soul”.  He talked about his pain: “Pain, in my heart, pain in my leg, pain in my arm, pain in my stomach –  I cannot deal with the pain anymore”.  

Sobbing, he said: “It’s better for me to give up, I am in pain. It would be best to die far away from Mum and Dad. I don’t want them to see me suffering any more.  They are suffering along with me.  I want to go far away and die in peace.  There is no other way but to die.  I cannot do this anymore, really I can’t.  They can collect my body when I’m dead”. (WA)

It was very hard to watch.  His mother, too, was crying – wiping his tears, holding his hand, trying to calm him. Afterwards the judge said, “That took a lot of effort and energy to tell me. I think we’ll just have a few minutes break.”

Mother’s evidence

After a few minutes break, Mr Justice Hayden said to WA’s mother:  “one of the reasons WA wants to go into a care home, is because he think you and his dad are exhausted by having to deal with his physical pain and emotional distress.  I know this is very difficult for you, but what do you say about that?

She replied by re-emphasising her absolute commitment to WA:

It’s a big responsibility to have children.  If they become ill or distressed in any way, most parents step up to the plate.  While WA is not our child by birth, he came to us 12 years ago.  We recognised the pain he was in.  We stepped up to the plate. We’ve looked after him. We’ve protected him.  And there is no stepping back on this.  We really truly believe that his life is worth something.  I’ve had to say, ‘it’s me that’s looking after you, not you that’s looking after us’.  I do not want to step away from my responsibilities.  You take children into your home and create an environment where you hope they will be able to recover.  I’ve worked so hard. I’ve turned myself inside out for him, and it’s so distressing that that Home Office won’t help.  This young lad doesn’t want very much.  Just his date of birth, his identity.”

She worries that in a nursing home, the medical procedures risk triggering memories of the abuse in Italy, and re-traumatising him.  One example mentioned earlier in the hearing was the use of suppositories for pain release – his refusal of this method of pain relief is directly associated with the sexual abuse he suffered.  

So it was clear that although WA was now saying that he wanted to go into a care home, neither his mother nor (apparently) his own legal team, supported him in that position. 

Questions of capacity – including litigation capacity

Mr Justice Hayden earlier ruled that WA does not have subject matter capacity in relation to decisions about clinically assisted nutrition and hydration.  The significance he gives to his date of birth (an “over-valued idea”) obscures his capacity to make a decision about tube feeding. 

There has been no assessment of WA’s capacity to make decisions about residence and care, but my understanding of WA’s counsel’s position is that WA does have capacity to make these decisions – and that, like anyone else, his decisions may change from day to day (without this necessarily being evidence of ‘fluctuating capacity’).  

A key issue was WA’s capacity to conduct this litigation.  Having ruled a year ago that WA did have capacity to conduct litigation, Hayden J asked for this to be reassessed. 

The problem was that WA’s counsel,  Arianna Kelly, was taking the position that WA should have a home care package, whereas WA himself, in court today and in a note sent earlier to the judge, said he did not want a home care package but wanted to move to a nursing home. 

The note included these sentences, read out in court by Hayden J: “I’ve chosen this path because I don’t want my home to become a care home. I don’t want to be forced to have care at home”. 

At the moment, that’s his own filed position”, said Hayden J.  “I’m suffused with sympathy for your position, Miss Kelly, but I can’t allow the court to be in a position where the advocate is saying, ‘well this is what he says today, but what he really means is something different’”

Mr Justice Hayden continued:

The oral evidence he gave today is consistent with his written statement, and not with your position.  You are trying to present what he says as part of a wider picture, but that conflates the role of lawyer with that of other professionals.”

Later he said: “There is a difference between the case advanced by WA’s advocate and the case advanced by her client in writing.  I am profoundly uncomfortable with Miss Kelly’s view of what WA’s position is and what WA tells me it is.” According to Hayden J, “The trouble is that Miss Kelly has found herself in an invidious position.  She finds herself submitting very lucidly that what WA says today and in his statement on the last occasion, expressly, is not in fact his wishes.”

It is fairly common in the Court of Protection for counsel for the protected party (P) to take a position that is distinct from – and may be opposed to – the position adopted by P themselves.  (See “Litigation Friends or Foes: Representation of ‘P’ before the Court of Protection“, by Alex Ruck Keene, Peter Bartlett and Neil Allen.) But this situation, if it occurs, is when P has been found to lack litigation capacity and is represented via the Official Solicitor.  That is not the case here.  This P (WA) has been found to have  litigation capacity and is instructing his own legal team.  

Noting the manifest discrepancy between what counsel for WA was saying and what WA himself was saying, there was some discussion about whether in fact WA has litigation capacity and it was agreed that this should be looked at again.  

Hayden J also noted that WA “doesn’t want to be in court proceedings”, that there is “a crushing weight of litigation distress that I would like to minimise if we can” and asked “whether we actually need to litigate at all”. 

At some point another barrister, Emma Sutton appeared in court (“parachuted in” is how Hayden J put it) and it was agreed that she would act as “advocate to the court” for the next hearing on 28th July 2021 – and it was also decided that there should be an expert report available for the next hearing about whether WA has capacity to make his own decisions about residence and care, and whether he has litigation capacity.  

 Jo Beswick is a Senior Lecturer in the School of Law, Policing and Forensics at Staffordshire University. She tweets @DrJoBeswick

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