Conflating capacity and best interests? Cross-examining a neuropsychiatrist

By Claire Martin, 25th March 2023

Mr A is the applicant in this case. He is currently deprived of his liberty in a care home setting.  He has made a s.21A application challenging his deprivation of liberty on the grounds that he has capacity to make the relevant decisions about his care, residence and finances, and he wants to return home. Mr A’s case has been before the Court of Protection for around a year, since March 2022.

The position of the Local Authority (which the Transparency Order prevents me from naming)[1] is that Mr A lacks capacity to make the relevant decisions.  The Local Authority is, however, considering a return home as possibly in Mr A’s best interests and will support a trial of his living at home (for a month) once his home has been decluttered and made habitable. They are also exploring a supported living placement.

I’ll begin by laying out the background to this hearing insofar as I understand it.  I’ll then give a sense of the way this hybrid hearing was conducted, illustrated in detail by the expert witness evidence to show the type of questioning that can be faced by witnesses in court.  Finally, I’ll reflect on the hearing, including the potential difficulties that assessors come up against when assessing capacity at one moment in time for capacity to make decisions that, in practice, will need to be made at another point in time. 

Background

Unfortunately for me as an observer the Position Statement says ‘The background to these proceedings is well known to the court. The matter was also last before the court on 6 February 2023. As such, the background to proceedings will not be set out here“. 

There have been four capacity assessment reports from psychiatrists (I don’t think four different psychiatrists though) all of which have concluded that Mr A lacks capacity for the decisions in question, to:

a. Conduct the proceedings;

b. Make decisions about his residence;

c. Make decision about his care; and

d. Manage his finances.

The expert witness at today’s hearing, Dr Thomas Elanjithara, wrote one of those reports (in February 2023), and also reached the view that Mr A lacked capacity for all of those areas.

Mr A ‘strongly asserts his capacity’ (counsel) and my understanding is that a final declaration that he lacks capacity has not yet been made, so this hearing was to enable the cross-examination of the expert witness to enable the court to reach a determination about Mr A’s capacity for the decisions in question.  

The respondent in the case (the Local Authority) does not dispute Dr Elanjithara’s evidence, and has made an application to be appointed Property and Financial Affairs deputy for Mr A (which he is worried about) and at the same time is in the process of exploring options for different types of less restrictive accommodation for Mr A, including a trial in his own home. They are also trying to sort out other things for Mr A, such as helping him with ‘community access’, ‘reablement’ and to do some volunteering. 

What I’ve gleaned from the Position Statement, and the hearing that I observed, is that Mr A is a 70-year-old man who had a haematoma in 2021 and has been living in his current care setting since then. He has a history of alcohol misuse and Dr Elanjithara has diagnosed Mr A with alcohol related brain damage (ARBD) (commonly referred to as alcohol-related dementia) caused by thiamine and nutritional deficiency. He uses the term ‘alcohol related neurocognitive disorder,’ which describes alcohol related brain injury where there are cognitive and executive functioning problems. 

Hannah Bakshani gave a helpful introduction to the case, explaining that Mr A had struggled with alcohol dependency and had been found at home with blood in his bed (I think was in 2021) and, following a stay in hospital, has subsequently lived at his current care setting. I am not sure what sort of a setting this is, but it is quite ‘restrictive’ and that there is a lot of support in place, Mr A himself feels restricted and does not want to live there. As Hannah Bakshani said, Mr A ‘strongly objects’ to being kept in the care setting. I don’t think Mr A is currently drinking – I formed the impression during the hearing that he is closely monitored at all times and he does not go out on his own.

In this hearing, the expert witness, whilst saying he assessed Mr A as lacking capacity for relevant decisions, also says that his tests were not sophisticated enough to be conclusive about  the cognitive impairment (which is asserted as the cause for lack of capacity). In particular, it didn’t sound as if any more detailed cognitive assessments had ever been done – which is why the Litigation Friend is challenging the conclusions.

The Hearing

The hearing I observed for this case (COP 13881941 SA) was on 6th March 2023 before District Judge Read sitting at Middlesbrough County Court. Hannah Bakshani represented Mr A (via his Litigation Friend) and the Local Authority was represented by Stephen Williams.

It was a hybrid hearing – meaning that some people were in the court room and some were attending remotely. This often means that sound quality is not ideal and, despite the court official trying to ensure that the microphones were audible, I was often unable to hear the barristers in the echoey courtroom. The witness (attending remotely) and the judge (as he sat with the microphone right in front of him) were crystal clear, but when the barristers stand to address the judge, they are not close to their microphones. At those times, barristers often refer to their position statements and the loudest sound is then the judge rustling papers to find the relevant paragraphs, because the dominant microphone is the judge’s. A clip-on mic for the barristers would be really helpful for anyone attending or observing remotely, to balance out what is amplified and enable clearer hearing of the proceedings. So, my notes from this hearing have frequent gaps, due to inaudibility. 

The hearing was on CVP (Cloud Video Platform) which is a court service remote video platform – and the main image on my screen was the witness giving evidence. The courtroom itself was a tiny square on my screen and I couldn’t change it (as is easy to do with Microsoft Teams). This could be my lack of technical know-how, and as a consequence I only realised at the end of the hearing (when the witness had left and the courtroom was the main image on my screen) that Mr A was at the hearing, sitting behind Hannah Bakshani. He hadn’t been addressed or spoken himself throughout the hearing. This is very unusual, certainly in my experience of observing many hearings where P is present, remotely or in person. At every other hearing I have observed, the judge has welcomed P and often has made it clear that they will be given the opportunity to speak if they would like to. 

In many CoP cases it is often simply reported that the expert capacity assessment has deemed P to lack capacity for the relevant decisions, without further elaboration. This hearing piqued my curiosity, because the examination of the expert witness meant that this evidence would be scrutinised in detail. In my department at work, we conduct neuropsychological assessments in the context of potential dementia, so the fact that the witness was discussing his cognitive assessments was of additional interest to me. 

Evidence in chief

Hannah Bakshani opened by asking Dr Elanjithara about the tests he had used to assess Mr A’s memory ability and how he reached his conclusions about Mr A’s capacity. What was notable to me was Dr Elanjithara’s assertion that Mr A required further, more detailed, neuropsychological assessment. 

HB: Memory – is this something that is acute or early stage and can improve over time?

Dr E: Correct …. So when we say impairments improve over time, [the] level of accumulated damage that can happen with more alcohol consumed, recovery becomes less and less … cumulative damage increases. Memory improvement can happen but not every time.

HB: You say there are limits with the ACE [Addenbrooke’s Cognitive Examination]  [unclear] … you recommended more robust neuropsychological testing take place. Can you describe?

Dr E: A full WAIS battery and DKEFS for executive functioning – neuropsychologists tend to start with those and then choose other batteries if they wish. [It is a] matter for specialist neuropsychologists. From what I have seen there is a need for these tests to take place to understand his neurocognitive function better.

Dr Elanjithara went on to explain that a further screening assessment had been conducted (as well as the ACE-III), which he had not administered himself, called the Cambridge Brain Sciences test. This is an online screening assessment that was developed to track recovery and cognitive function. It tests abilities such as short-term memory, reasoning, verbal ability and attention. There was some uncertainty about this test and the validity of the results for Mr A: 

HB: Your tests … at the bottom there’s a further table but I have not been able to find what that table references. Can you explain where those results are taken from?

Dr E: The Cambridge Brain Sciences further cognitive screening. …. [It is a] screening not a diagnostic test – it indicated the need for further comprehensive testing with more validity. Again, one has to put the screening tests – both of which show potential impaired cognitive and executive function – [with the] next step [which] is to ask for more robust testing, through neuropsychological testing. 

HB:  [MrA] … he’s explained to us today that when he completed the assessment [Cambridge Brain Sciences test] I understand you weren’t present?

Dr E:  [The one] online. … Yes I was not present.

HB:  The member of staff he found unhelpful, they ate a packet of crisps while he completed the assessment. Could this have impacted his performance?

Dr E: It could have impacted his understanding of the instructions. I have not relied on the [results] and …. there is need for further robust assessment. [It would be a] different picture if [Mr A] had scored high on these testings. I would have gone back and sought further assessment before completing the report.

This was an interesting exchange to me. Mr A had not scored highly on the online assessment, and Dr Elanjithara was confirming that this might have been because the administration of the test confounded the results. Yet the results had been included as part of the assessment report. The person doing the test with Mr A was eating crisps at the time! I found this quite astonishing. 

Hannah Bakshani continued to explore the meaning of the cognitive assessment results, checking that Mr A ‘would fall into the category of MCI (Mild Cognitive Impairment)?’ Dr Elanjithara said that ‘It is clear that [Mr A] does not have dementia’ and, at the same time, that the assessments indicated an executive functioning difficulty which concerned him in relation to the prospect of independent living: 

Executive function can impact on the ability to learn, if not orchestrating information appropriately and retrieving it appropriately, new learning is not as good. The screening test can only screen out MAJOR pathology and impairment – other things are missed out. This can have a devastating effect if he were to return to independent living without support. [Dr Elanjithara’s emphasis]

Dr Elanjithara went on to explain his reservations about the OT assessment and report that was carried out last year. He said that ‘it’s not impossible’ for Mr A to improve his capacity for the decisions in question, but cautioned that ‘an in-house assessment taking place within a short period of time with a therapist present in the room with him …. takes away the self-initiation part of it. The problem is executive function – self-governance’. 

For me, this echoed the discussion between Alex Ruck Keene KC and two addiction psychiatrists (Julia Lewis and Ken Wilson) in a recent podcast about ARBD and mental capacity. Interestingly, both emphasised the ‘paradox’ of frontal lobe functioning in ARBD: “in a cued environment [there is] a normative way of behaving. In more complex, social decisions, it falls apart.” (Ken Wilson) and asked about OT assessments to see functioning, to complement self-report, Julia Lewis said “OT yes, but a sparkly clean kitchen, all the cues are there. … At home, it’s not the same”. 

Hannah Bakshani asked how this has an impact on Mr A’s ability to manage his own self-care: 

Dr E: In the current setting he is looking after himself fine. … Things are likely to be different … there is a potential underlying deficit, if we expose him suddenly to independent living with limited support, it will overwhelm him quickly, and his default position is likely to go back into alcoholism. So any change has to be gradual supported and stepwise … 

HB: So, you weren’t able to test these because they were masked in the environment?

Dr E: Yes, and that’s the reason I have asked for more neuropsychological testing to put it into context. At the moment, from my assessment, those deficits are present – it is highly likely those deficits are present. 

HB: In which case, were you able to properly assess [Mr A’s] capacity without those tests available?

Dr E: To a great extent in terms of probable ability. [Now we need] fine tuning – we need those tests. From screening and superficial assessment there are lots of soft signs – so more comprehensive tests could then help us fine tune to help [Mr A]. 

I wondered why the further, detailed neuropsychological assessment had not been sought prior to the hearing. Perhaps there wasn’t time? Dr Elanjithara is an expert witness, not Mr A’s treating clinician, and was recommending this to the court though – and it made me think that, if this were necessary (as part of Mr A’s care) to understand his needs, why is Mr A’s care team waiting to be ordered by the court? Professionals carrying out mental capacity assessments need to understand what a person’s needs and limitations are to enable them to present relevant information in the assessment – this is to enable P to demonstrate an ability to understand and weigh up “reasonably foreseeable consequences of— (a) deciding one way or another, or (b) failing to make the decision” (Mental Capacity Act 2005 Section 3(4))

Capacity or Best Interests? 

I felt confused by Dr Elanjithara’s reasoning behind reaching the conclusions he did about Mr A’s capacity, given that he was recommending further assessment. This exchange about Mr A’s capacity to decide where to live highlights the issue: 

Dr E: The next steps are important to be more supported, based on further neuropsychological testing. The current placement is far too restrictive but going home at the present moment could unmask difficulties and cause a spiralling down. There is a step in between the two, as a clinician I would recommend for him to consolidate, then further steps could be taken. Currently he’s looking after himself, but it’s too restrictive.

HB: You have provided his best interests. I’m asking you about his capacity to make that decision. [counsel’s emphasis]

[later]

Dr E: There’s a helpful breakdown in the initial bundle 2018-2021 describing multiple incidents observed by paramedics over time, patterns repeated over and over again despite measures being put in. [Mr A] acknowledged those happened but clearly minimised the impact at the time and in future.

HB: [Mr A has] informed his solicitor during a meeting that when he lived at home he had carers – up, dressed, medicated – he now accepts he needs 4 calls a day. Does that not demonstrate understanding of his care needs in different settings?

Dr E: It represents some understanding. As it stands – those 4 visits are not sufficient to ensure his safety. I explained to him that he needs more robust support and could consider stepping down. Three states: highly exposed, highly supported, and a middle ground. 

HB: Your assessment is an assessment of capacity. What I am asking is: Was P able to understand the residential options, considering the information you’d provided him about care needs?

Dr E:  There’s overlap – [it is] important for me to understand what the care needs are. I would not be able to assess capacity without the knowledge of care needs. I wouldn’t be able to check his understanding. There were no clear pre-existing clinical recommendations that his care team was following. I would have tested his understanding against that. There were no available reports from the care side about his care needs. I would have checked this with him if I had had this.

HB: You were provided with information about his care needs — I can take you to C1 dated 14 December 2022. … Also to the OT assessment at F65: it shows that [Mr A] has independence with walking with aids, is able to use roads safely, is orientated and able to engage in familiar tasks, is able to learn, showers, manages oral care, is aware of medications regime. Although the OT identified some difficulties with meal preparation, they thought he could become independent if using a timer. So, you did have information about care needs.

Judge: Had you seen this assessment?

Dr E: Yes that’s correct. 

HB: So, it’s not quite right to say you didn’t have the relevant information to assess the residence options against. What [Mr A] has said is that he would like to go home with a package of care. The Local Authority has concluded that those residence options would be able to meet his needs. Why do you say different?

Dr E: I agree those reports were set out from an OT and social side of things. In a complex presentation such as [Mr A’s] it is important to have a more integrative MDT assimilation of the information and at the centre is an understanding of the clinical diagnosis and risks. At the time of my assessment, I did not have oversight of the comprehensive medical assessment of risks and prognosis. In the absence of this, from the available information, I put together and integrated information. An understanding of the progression of [Mr A’s] presentation, what are the future risks … [it] led me to integrate to a clinical understanding. [There are] areas of concerns and rehabilitation, as well as areas of improvement. The ability for new learning gives hope, there is also risk of significant destabilisation. 

HB: Are you not setting the bar too high for [Mr A’s] understanding?  You have taken a significant amount of information – clinical – are you not setting the bar too high for his capacity?

Dr Elanjithara said that he did not think he had set the bar too high when assessing Mr A’s capacity and that there has been a pattern of decline over the past 4-5 years when aspects of daily living overwhelm Mr A and he returns to drinking excessive alcohol. He argued that Mr A cannot weigh up this information in reaching a decision. 

HB: So, the assessment was based on how he previously presented in the community and risks on those occasions?

Dr E: It partly did involve that, but capacity is time specific so … it’s important to reflect on how he is able to use information generally, in the past as well. And to consider what has changed. What are the changes from the past to now? 

HB: What evidence do you have that he can’t adapt to those changes?

Dr E: At this moment – he’s in a supportive environment where those things are masked. The last 4 years or so [there have been] repeated patterns of how those risks – personal and environmental safety, risk of exploitation, health risks – have repeated over a period of time. That’s an important factor. It’s unfair on him to purely report on him in a very supported environment. Unfair to rely on day-to-day observations in his current placement. 

HB: You’re saying that [Mr A] needs to consider information about what could happen, what has happened, and analyse that from a clinical perspective. But what you’re being asked to do is consider whether he can use and weigh information in order to make a capacitous decision. Going back to residence – those 3 options. The Local Authority is suggesting he could live at home with a package of care. You have described that to him. Why is he unable to use and weigh that information to make a capacitous decision?

Dr E: It has to be based on the factors you see and the clinical presentation, risks etc. I was given a partial view of this, a report from the OT and other information. [There’s an] absence of a collective report. I wouldn’t be doing my job if I didn’t integrate the bigger picture. Is that clear? 

At this point, my notes say ‘No, not to me.’ I was getting really lost in the questioning and evidence. I don’t know whether Dr Elanjithara had asked, specifically, about ‘reasonably foreseeable consequences’ of deciding one way or another (S3(4) MCA), based on his established needs. I think he was saying that, when he did the assessment, he did not have a comprehensive picture of established needs to test Mr A’s understanding against, and that he was trying to ensure he did not miss anything important when he was assessing Mr A, especially because of the history and what that might indicate for Mr A in future. This was certainly a position put forward by Julia Lewis and Ken Wilson in the podcast mentioned earlier. They suggested that ‘performative decisions’ (future, complex scenarios) are harder to assess in ARBD than ‘decisional decisions’ (such as what to wear now), and that ‘you need to pick up on old behaviours to predict the future’, and that ‘it is almost negligent not to have baseline information from others in alcohol and mental capacity assessments’. 

There was a similar tussle over whether all of the relevant information was available to assess Mr A’s capacity to manage his finances. And a similar assertion that, in the confines of a structured environment, Mr A was able to demonstrate some financial understanding, but that if in a less supported place, Dr Elanjithara predicted this could break down, mainly due to the risk of alcohol relapse. And in relation to litigation capacity Hannah Bakshani noted that Dr Elanjithara’s report changed over time, from not rebutting capacity to the opposite. It wasn’t quite clear (to me) why that was. 

Cross-Examination

After a lunch break, Stephen Williams, counsel for the Local Authority cross-questioned Dr Elanjithara. I very much felt for Dr Elanjithara. Having recently given evidence myself at a hearing (not the Court of Protection), I empathise with how stressful and exposing an experience it is. 

SW: Throughout your evidence today, Dr Elanjithara, you referred to risks and [Mr A’s] understanding and ability to weigh up those risks. Is it your opinion, doctor, that the crucial issue for [Mr A] in lacking capacity to make relevant decisions, is his inability to weigh up and use the information about those risks?

Dr E: Yes that is a particularly important factor, I felt. 

SW: If I could refer you to your report at F127 in the bundle. At 6.3.4. – you say that [Mr A] struggles to [quotes Dr Elanjithara’s report – lost what was said here] … risk of rapid breakdown in safety – risk of rapid and severe relapse. ARBD (alcohol-related brain disease) falls etc. So you confirm that using and weighing in particular is an important factor. You answered questions about ability to retain information. Is it your view that the crucial element is the ability to use and weigh?

Dr E: That’s correct. 

[later]

SW: Would you agree that this inability to identify, initiate seeking help and the concern you had about self-governance, shows a lack of insight into the risks?

Dr E: There is an overlap. Insight is knowledge – what we are talking about is being able to use that knowledge when it is required to be acted upon. That is required for anyone to keep themselves safe.

Overall, I think this longitudinal perspective is what Dr Elanjithara was getting at. Stephen Williams enabled Dr Elanjithara to more succinctly state his position: 

SW: One final question. Does it remain your opinion that [Mr A] lacks capacity to make decisions as to residence, care and support, finances and these proceedings? And if yes why?

Dr E: I do agree with that. It is because of an organic brain impairment and functioning – neurocognitive impairment with the potential for worsening in future. The impairment in the function of the brain affects his ability to weigh up and use information to deal with those tasks mentioned. 

SW: No further questions.

Closing Submissions

Hannah Bakshani submitted that Dr Elanjithara had ‘treated a capacity assessment as a best interests assessment’ and assessed Mr A against those best interest options. She argued that people are ‘routinely assessed in care homes and this is not a barrier to assessing capacity’. She reminded the court that people are allowed to make unwise decisions. Reference was made to PB and Tower Hamlets [2020] EWCOP 34, a case of a man with alcohol-related brain disease heard by Mr Justice Hayden, in which the judge said: 

“Within this context, a person cannot be considered to be unable to use and weigh information simply on the basis that he or she has applied his or her own values or outlook to that information in making the decision in question and chosen to attach no weight to that information in the decision-making process.” (§14 (§14 PB and Tower Hamlets [2020] EWCOP 34, Hayden is quoting from Kings College NHS Foundation Trust v C and V [2015] EWCOP 80 at §38, MacDonald J).

“The professional instinct to achieve that which is objectively in P’s best interests should never influence the formulation of the criteria on which capacity is assessed.” (§51 (ii) PB and Tower Hamlets [2020] EWCOP 34, Hayden)

Judge Read confirmed that ‘we must never eclipse the fundamental right to make decisions when [they] have the capacity to do so.’

So Hannah Bakshani’s submission was that “the litigation friend would invite the court to consider further assessment. My position is that there are significant benefits to a further assessment taking place.” To which the judge replied: “We have already had two neuropsychiatrists! Never mind though there is no limit to that number”.

My notes at this point express my own view that the court needs a neuropsychologist as recommended by Dr Elanjithara. A neuropsychologist is a specialist psychologist (either clinical or educational) who has completed further post-graduate training in the assessment of the functioning of the brain. They use tests that assess in detail abilities such as attention, memory, language, visual problem solving and ‘executive’ function (the ability to organise and plan, as well as the ability to ‘regulate’ our responses, use judgment and the ability to inhibit or stop ourselves from acting inappropriately). Neuropsychologists often work alongside neuropsychiatrists who are medical doctors specialising in the diagnosis and treatment of brain disorders e.g. following traumatic brain injury, or in the context of mental health problems including alcoholism and other addictions.  

On behalf of the Local Authority, Stephen Williams submitted that his client did not accept that Dr Elanjithara ‘set the bar too high’. He referenced the case of TB v KB and LH (Capacity to Conduct Proceedings) [2019] EWCOP 14 concerning executive dysfunction and alcohol consumption, quoting the judge stating that such capacity decisions are a ‘dynamic transactional process …. decisions to be taken over a number of years ….’ Stephen Williams said that ‘we do not think yet another report from yet another psychiatrist is necessary.’ 

Judicial decision

The judge referred back to previous decisions for Mr A, directions for assessments and court reports and then summed up: 

“There are a range of possibilities – if the court makes a decision in favour of [Mr A] having capacity, that’s the end of it. If the court holds he holds capacity in regards to some areas and not others, it would end in respect of those areas that he has capacity for and not for the others. If, however, either the court decides that [Mr A] is not capacitous to any extent, or decides he lacks capacity in one of the substantive areas, we have to move on and look at best interests. I don’t think the court can a make substantive decision for best interests without further evidence. This is a particularly finely balanced decision and I am not going to rush.” 

There was discussion about living options being explored, including a return home, but only in the spirit of enabling all options to be considered, pending a decision on capacity and best interests. 

At the end of the hearing, the judge said ‘Good to see you [Mr A] – thanks for bearing with us.’ Hannah Bakshani then said ‘[Mr A] would like to speak to you – perhaps now is not the forum.’ 

Judge: I said at the last one he could have one! Might be an idea to do it when I have handed judgment down. It would be a good idea then – couple or three weeks or so. You’ll remember I said if you’d like to speak to me again that is fine. 

This final exchange was curious to me. In previous hearings I have observed, when P has been present, able and willing to speak to the judge, they have been able to fully participate in proceedings. I wondered why this was not the case for Mr A. His counsel had not asked throughout the hearing for Mr A to be able to speak, though at the end she was aware that he wanted to. Clearly, from Judge Read’s comment, Mr A has spoken to him before. Perhaps the judge thought that the decisions regarding capacity were still so up in the air there was little point in discussing things further. In any event, Mr A sat quietly, listening throughout the day, from 11am to 3pm, with a lunch break, without being addressed (by the court) or speaking himself (to the court). I have imagined what that would be like myself – especially listening to other people discuss me, my abilities and my future. My image is not of myself sitting silently throughout the whole process! 

Reflections

I felt frustrated for Mr A that a final declaration regarding his capacity to make his own decisions about these things has not yet been made. And that further assessment is now recommended and being considered by the judge. However, the cognitive assessments carried out by Dr Elanjithara are screening tools (as he said) and do not provide a detailed assessment of Mr A’s abilities. Why hasn’t the system around him commissioned those assessments already? Perhaps this is what Dr Elanjithara meant when he said ‘at the time of my assessment, I did not have oversight of the comprehensive medical assessment of risks and prognosis’. 

Hannah Bakshani’s contention was that the expert witness strayed into best interests recommendations rather than focusing on a capacity assessment. Did he? I think he might have at times – in particular here: 

“The current placement is far too restrictive but going home at the present moment could unmask difficulties and cause a spiralling down. There is a step in between the two, as a clinician I would recommend for him to consolidate, then further steps could be taken.”

I empathise with Dr Elanjithara. Clinicians find it so hard to set aside what they think is best for people and, instead, solely focus on whether P understands (retains, weighs and can communicate) the relevant information about a decision – regardless of whatever decision is then made. But doing that is crucial to upholding the spirit and letter of the Mental Capacity Act. 

However, he was grappling with the difficulty of assessing capacity in the context of a calm conversation whilst knowing that Mr A would be acting upon such decisions in a completely different situation (as HHJ Lieven points out, below). Another case, observed and blogged by Jenny Kitzinger has similarities and also involved alcohol-related issues. I am not familiar with case law on addictions but I have had experience with patients (in the absence of dementia, but experiencing mental health problems or with other diagnoses such as Parkinson’s disease) who have been told, time and again, by various organisations (such as Social Services, NHS, banks), that they ‘have capacity’ to decide to drink or gamble. 

Is theoretical capacity the same as actual capacity if you are not making the decision, doing the ‘thing’, then and there? This particular point reminds me of a recent case that I observed (and blogged here with Josie Seydel). A key issue for P in that case was the difference between being able to talk, intellectually, about a future situation and what she asserted she would do, and being able to similarly weigh and use that information when actually in that future situation. As Lieven J. said in that hearing:

“This is a classic case of lawyers meeting clinicians, particularly psychologists and psychiatrists. Life just isn’t as simple as lawyers want it to be.  What I’m getting from your evidence is how complicated it is. We can’t dissect P’s mind to get at every instance. Things change depending on different variables. ….   I’m getting a picture of P being quite calm at home, less so in the community. My focus must be on decision-making – when she’s faced with an actual DECISION”.  (Lieven J, as blogged here)

The judgment in that case took a ‘longitudinal view’ of P’s capacity in different situations at different times, and the practicability (for people working with P on the ground) of acting on court orders. HHJ Lieven said, in that judgment: 

“It is a principle of statutory construction that the Court must have regard to the “mischief” of the statute. One of the mischiefs of the MCA is to seek to preserve an individual’s autonomy, but in a way that ensures that when they do not have capacity, their best interests are protected.” (Re PG [2023] EWCOP 9, Lieven J)

Perhaps Dr Elanjithara wrestled with this ‘mischief’ when trying to complete his capacity assessments. 

I very much hope that decisions will be made soon for Mr A, to enable him to get on with his life, wherever that may be. 

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

[1] I don’t know why it was thought necessary to refuse permission to identify the local authority in any publication about this case.  On the basis of what I have learnt about this case I could not see any reason why the Article 8/Article 10 balancing exercise should have resulted in a decision that it was necessary to conceal the name of the public body involved.

Emergency placement order in a closed hearing

By Celia Kitzinger, 20th March 2023

At a closed hearing by telephone, out-of-hours on Saturday 25th February 2023, Mr Justice Hayden granted an order that it was in P’s best interests to be removed from the home where she lives with her sister (Q) and taken to an emergency placement.  

Mr Justice Hayden also approved an injunction against P’s sister saying that she must not prevent or obstruct that move.  

The local authority, the Royal Borough of Greenwich, hadn’t told Q that they were making this application.  She didn’t know that the hearing was happening and was not invited to attend.  She is a litigant in person in ongoing Court of Protection proceedings and she was deliberately excluded from the Saturday hearing.

I didn’t observe this hearing. It was arranged at short notice, never appeared in any lists, and I doubt – even if I had known about it – that it was open to members of the public or to journalists.

The hearing I did watch, COP 13490547 on 6th March 2023 before Mrs Justice Arbuthnot, arose out of this earlier hearing and the events that followed.  

What had happened after the urgent closed hearing?

Presumably the first Q knew about any of this was when officials turned up with the court orders on 1st March 2023 and took her sister away.  

Counsel reported that it had all  “proceeded peacefully and without incident or obstruction” and P was “not visibly upset” but “came with the social worker willingly and has settled in well” at the emergency placement – whose location has still not (at the time of the return hearing) been disclosed to Q or to other members of P’s family.

What precipitated the urgent closed hearing?

The woman at the centre of this case (P) is in her sixties. She has Downs Syndrome, a “significant” learning disability, and autism. She was described as “non-verbal and registered blind”.  She was initially living with her parents, and then with her brother until 2018, when he couldn’t cope anymore.  She was then in residential accommodation (with the Royal Borough of Greenwich) for a period, since when she’s been living with her sister – and the circumstances under which P moved from the placement to live with her sister are disputed.

Before the emergency hearing, there was already a case concerning P in the Court of Protection, before District Judge Grosse.  It had started in February 2022 and concerned two matters:

1.  an application from the local authority under s.16 Mental Capacity Act 2005 to determine P’s best interests in respect of residence, care and support (i.e. is it in P’s best interests to live with and be cared for by Q); 

2. an application made by Q and her daughter (P’s niece) to be appointed as P’s joint Deputies for Property and Affairs. 

Two days before the last hearing before the District Judge there was an “incident”.  Q had been arrested on suspicion of assaulting a police officer.  

And although both Q and her daughter had communicated with the court and the other parties ahead of the hearing on 23rd February 2023 (though they failed to attend the hearing) and they did not mention the incident or Q’s arrest.  The local authority learnt about it from the police.  

The police had interrupted Q’s grandson in the course of committing an alleged attempted robbery somewhere near the block of flats where P and Q live.  He ran into their flat, pursued by the police, who were met at the door by Q who was “resistant” to allowing officers inside.  When they did make their way inside, the grandson resisted arrest: he “fought officers, trying to assault them, screaming and shouting”.  

Although Q had nothing to do with the robbery, it’s alleged (and she denies it) that she tried to assist her grandson in resisting arrest and that she “punched an officer in the face multiple times”.  She was also arrested, and has been released on bail but has not been charged: it’s “under investigation”.  

During this episode, according to the police, P was standing just inside the bathroom watching, and she appeared to be distressed: she was “visibly scared and rocking and shaking”.  It’s also alleged that the grandson was keeping an exposed knife in the bedroom he was staying in.

When the local authority received the police report, they became seriously concerned for P’s safety, which is why they applied for the order to remove P, which was granted by Hayden J at the closed hearing on Saturday 25th February 2023.

The hearing of 6th March 2023

The key issue before the court was whether to authorise P’s continued residence in the placement (which is what the local authority and the Official Solicitor ask for), or whether to immediately authorise her return home (which is what Q wants).  

And if the judge authorises P’s deprivation of liberty in the placement, then what is the plan for contact between P and Q (and the rest of the family)?

Applicant local authority

The applicant local authority (represented by Tara O’Leary of Cornerstone Barristers) said that P is “stable and settled” in her current placement.  She’s “struck up a friendly relationship with another resident” and doesn’t appear to be distressed by being away from home.  They don’t think it’s safe or in P’s best interests to return to her flat to live with her sister.  They’re also concerned about visits from Q because, they say, when P was in another placement, Q simply took her away to her home unilaterally.  “Given this history, and the strained relationship between the family and the local authority”, the local authority wanted to draw up a “contact plan” for supervised contact, and proposed to do so in the next 14 days. (The judge said that was a long time and asked them to sort it out within a week.)

Family

Two members of the family are in court: Q is a litigant in person and Q’s daughter is there to support her.  Q has submitted a list of concerns about P being in care.  She says that last time P was in care, she was neglected, assaulted, and abused: P suffered burns (she says)  and possibly sexual abuse at the hands of staff she labels “institutional criminals”.  

Apparently, Q’s submissions (which run to 100 pages or so) do not address the events of 21st February 2023.  What she’s written deals mostly with “historic complaints and allegations” about P’s former care placement and accusations against local authority staff.  The local authority disputes these claims.

When Q addresses the court, she focuses almost exclusively on her concerns about the alleged (“historic”) abuse. The judge establishes which care home this relates to and asks the local authority whether they can provide assurances that P is not currently in that care home or any care home associated with it. Ms O’Leary undertakes to find out about that. 

Q’s daughter (R) does address recent events.  She says it’s “really unfortunate, what happened” and that her son has agreed not to come to the flat except with his parents, not to stay overnight, and not to see P.  

Judge:  But the trouble is that on 21st February 2023, the police arrived to arrest your son. There was some kind of scrum, it’s said he was resisting arrest, and police officers  noted P was shaking and was frightened by what was going on.  That is not a safe placement – not at that moment.  I appreciate that [your son] is being removed from the scene.  And a knife! Whether it was on a kitchen surface or, as the police say, on a dresser in a bedroom.  And then not to mention it to the court, not to write an email saying, “we’ve had some problems with the police”.  In fact you were hiding it. That the police were arresting your son and grandson.

R:  I explained it in a phone call to the social worker on the 21st and again on 24th and said I was happy for someone to come to the property.

Judge:  But what about the court?

R: It didn’t come into our heads, to be honest.

Judge: But, I’m sorry!, there was a hearing on 23rd February in front of a district judge, so why not say to him-

R: We weren’t attending that hearing. We was never coming to the court. We wanted an adjournment to get legal representation.  But they went ahead.

Judge:  This incident is said by the local authority and the Official Solicitor to be the ‘final straw’.  Before this there was you not granting access, non-compliance with court orders, refusing to sign a Working Agreement, you and your mother holding yourselves out as P’s Deputy when this wasn’t the case, requesting medical procedures inappropriately (to find out if P had been sexually abused), saying she had hepatitis, which she doesn’t.  This is so upsetting for her.  That’s not a stable place for her to live.

This was followed by the judge asking for information about which members of the (large) family would want to make arrangements for contact with P, if P were to remain where she is. She doesn’t really get an answer.  Instead, Q and R talk about how much they love P, how difficult it would be for P to have her family visit and then go away and leave her there – and they describe activities they do as a family with P (including shopping and going to church regularly).

In a final plea to the court, R said:

“I feel completely awful over the incident with my son.  P has really had a bad deal in this situation. I would like to reassure the local authority that P is not an orphan. Please will the court consider her coming back home.  We’re happy for the therapist to visit.  We want to work with the local authority and do feel that in future we could work together.  I feel personally that P would benefit by getting back home to her bedroom and her community rather than starting all over again with people she’s not familiar with”.

Official Solicitor (for P)

Ms Alison Meacher,  counsel for P via her litigation friend the Official Solicitor, said:

“We support the application that P should remain where she’s currently living.  It is not a safe environment for her to live with Q, notwithstanding that she loves her very much.  The difficulty we have is that statements about wanting to work with the local authority have been made at previous hearings but that is not what happens after the hearing.  For example, the Working Agreement discussed in September and drafted by the local authority with counsel for Q, provided by Advocate on a pro-bono basis, was then not signed by Q.  It was agreed, but she then did not sign it.  There are other examples – e.g. the information sought by P’s deputy about P’s activities so that decisions can be made about whether to use part of P’s personal allowance to get a mobility car.  It was explained to Q that information was needed so a decision could be made. The information asked for has not been provided.  Then on 20th January there was a prearranged visit from the OS’s representative, and Q had agreed that she could have a small amount of time with P on her own – but she wouldn’t let her spend any time alone with P on the day.  So, agreement is proffered at the hearings, and intentions are set out – which is of course very positive. And we would love to see them then seen through, but they are not seen through.  Things are said in court, but that’s not what materialises afterwards.”

Counsel for the Local Authority again

Ms Tara O’Leary confirms that “the current placement is entirely unconnected to [the previous one]”.  She also confirmed that (as the family have apparently requested) P has only female carers at the moment.  The judge asked for a recital recording the expectation of the court that this would remain the case – at least in relation to “toileting and personal washing type care”.

She then said she wanted to “endorse every word Ms Meacher has said. The headline is the disconnect between what’s said in court and what happens afterwards”. 

She also raised a missed appointment. It had been agreed that a social worker would visit with an Occupational Therapist to discuss access to the community, but when they arrived at the flat, nobody was home.  “Q and R said they’d gone shopping to IKEA with P and hadn’t managed to get home in time – so it was a complete waste of time and resources.  That was on 25th January, and that visit still hasn’t happened.”

Judgment

The judge found it was in P’s best interests to stay in her current placement while assessments take place, with an expectation of female carers and a contact plan required within seven days.  She asked for a list of family members who ought to have contact and approved a timetable for witness statements, other evidence (including P’s wishes and feelings) and the date of a round table meeting.  She encouraged Q to contact another solicitor who (the OS said) would be willing to take her on.

The next hearing will be before District Judge Grosse on 10th May 2023.

Reflections

It is obviously a very serious matter for a court to make an order against a person without giving them an opportunity to be heard. All the cases I know about – with the significant exception of Re A [2022] EWCOP 44 (which I’ve blogged about several times, including: “Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44“) have concerned ’emergencies’. They include, for example, the risk of P being taken out of the country for a forced marriage, or physically abused by a partner, or (as in this case) some other possible high risk to P’s physical and emotional well-being. The court decides it needs to act quickly to remove P and does so without alerting parties who might cause harm to P.

Given the history of this case, as presented by the lawyers – even bearing in mind the different version of that history presented by P’s sister and niece – I could understand why the court felt it imperative to act as they did.

Given that Hayden J was the author of the recent ‘Closed Hearings’ and Closed Materials’ Guidance [2023] EWCOP 6, it is not surprising that he seems to have acted in compliance with it – in particular by fixing a date for a full hearing as soon as possible after the closed proceedings, giving the excluded party an opportunity to attend. This was that hearing.[1].

My concerns about the way closed hearings were managed in Re A [2022] EWCOP 44 are largely inapplicable to this case. In this case, the family was informed about the closed hearing and the order resulting from it very shortly thereafter; the case was back in court for full consideration; and the intractable problem of the parallel open and closed hearings that plagued Re A does not apply to this case.

It seems to me a good example – as in other cases I’ve watched (e.g. “Forced Marriage Protection Order“) of the court balancing the requirements of open justice (with parties on an equal footing) with the imperative of protecting the vulnerable adult at the centre of the case, and acting quickly and effectively in P’s best interests.

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

[1] Hayden J ordered that a return hearing should be listed in the urgent business list on Monday 27th February 2023.  That hearing was not effective because the local authority had been unable to locate P and Q.  So the judge (Roberts J) had adjourned the return hearing for a week, until this hearing on 6th March 2023.

‘Deprived of her liberty’: My experience of the court procedure for my mum

By Amanda Hill, formerly Anna, 17th March 2023

Update April 2025: Amanda can now reveal that she is the author of this blog and has updated the story: https://openjusticecourtofprotection.org/2025/04/09/our-ordinary-story-and-how-it-became-an-unbelievable-family-experience-of-the-court-of-protection/

“She’s been deprived of her liberty since 27 February 2020.” When I read this sentence in an Open Justice Court of Protection Project blog recently (“When wishes and feelings change”) it felt as though a shard of glass was piercing my soul. 

“Deprived of her liberty” is a common legal term that I have heard many times over the past few months and to some extent I have become used to it. But occasionally, like this time, it hits me emotionally. Because it is a term used to refer to my mother’s situation. 

And whereas the law regards her as being deprived of her liberty, we, her family, believe that she is a vulnerable adult who is somewhere safe, protected and well cared for. 

Due to my mother’s “deprivation of liberty”, I have experienced what it means to be part of a Court of Protection process. Through this, I have learned a lot about the Court of Protection and it’s safe to say that my opinion about it has vastly changed from the beginning to where I am now, at the end of the process. 

I am sharing these thoughts in the hope that it might help other families in similar situations – and I’m writing also for the legal and social work professionals involved in what is, for them, probably routine work, to help them understand more about what it feels like for a family member. 

Starting at the beginning

In 2013, mum was demonstrating the first signs of memory loss. 

Her four children all agreed that to help protect her, we should set in motion the process of helping her to appoint a Lasting Power of Attorneys (LPA), for Property and Finance, and an LPA for Health and Welfare. Mum agreed to this and it was done officially through a solicitor, who agreed that mum had mental capacity to understand what she was doing. For practical reasons, my sister and her husband were appointed LPAs. We as a family were very relieved that this legal position had been set up, so that we could ensure mum and her affairs were going to be looked after. 

Mum’s memory continued to decline, and in 2016 she was formally medically diagnosed with “Dementia of Alzheimer type, atypical or mixed type” (I’ll call this Alzheimer’s from now on to keep it simple.)  

My sister spent more and more time over the years caring for both my mum and dad, despite working full time and having school age children. Having the LPAs in place proved to be a godsend, especially for managing mum’s finances and arranging care. Mum didn’t have a formal care package herself, but the carers who went in to see my dad “kept an eye” on mum too. 

Then in 2019 dad died, and social services became involved directly with mum’s care, with a package being set up.  This was despite mum’s resistance. She believed that she didn’t need care, or if she did that my sister should provide it. My other sister offered to go and live with her but she refused that too. She was convinced she was going to get better and her health situation was only temporary. She refused to acknowledge that her memory was getting worse. It’s easy to feel that she should have accepted her diagnosis and not fought it, but I feel that it was her way of coping. I can’t imagine what it felt like for her. 

Things continued to deteriorate, despite the care package in place. Mum was becoming unsafe in her own house, dropping lit cigarettes on the floor and developing very unhygienic habits. Then she started going out on her own, putting herself at risk.  She went with a (thankfully well meaning) stranger into the town centre, and then one evening she was picked up away from her home by an off-duty police officer, with her having no idea where she was or what time it was. 

As a family, and after discussing the situation with mum’s social worker, we agreed that the time had come for mum to go into care, for her own well-being and protection. We believed that mum did not have the mental capacity to decide for herself and that it was in her “best interests”. 

An appropriate care home was identified with the help of the social worker, which specialized in dementia care and was known to us. Luckily it had space for mum.

The social worker informed the Care Home manager that mum would be coming in, initially for a 6-week period of respite care. She also added that the manager would need to apply for an “Urgent DOLS authorization” (DoLS meaning Deprivation of Liberty Safeguards). Of course, I now recognize those words but at the time we had no real idea of what that meant. Looking back at the exchange of emails with the social worker before mum went in, when my sister asked if the placement would be permanent, the social worker did clearly spell out that the placement was initially for the 6-week period and that she would complete a review at the end of that period. However, we weren’t overly worried as we could not see how there was any way that mum would return home, given the advancing nature of her dementia, and therefore her staying in full time care would be a formality. How naïve we were. 

We knew that mum would not agree to go in by herself: in fact that she believed she didn’t need any care at all, let alone care in a home. So, we came up with a plan. My brother would take her, telling her she was going there to buy cigarettes. True, it was deception but for us it was the means to a good end. We thought it was a kind way to carry out something we truly believed was in mum’s best interests. We were nervous when the day arrived, but she willingly went in. Later that day, the home sent a video to my sister, showing her singing along to some old melodies. She seemed happy. We were happy that she was safe. We all breathed a collective sigh of relief. 

But what we thought was the end of a process was really the beginning of another. A legal process that we had no knowledge and understanding of. 

It was August 2021: mum was 87 years old and, according to the law, she had just been deprived of her liberty. 

The limits of Lasting Power of Attorney

When my sister became mum’s LPA for health and welfare, we assumed that this was precisely to cover this situation: due to her Alzheimer’s, mum had lost the capacity to make decisions about her health and welfare and therefore my sister could make those decisions on her behalf. 

This is what the official LPA mum registered says on the front page: 

“This lasting power of attorney allows you to choose people to act on your behalf (as an attorney) and make decisions about your health and personal welfare[1], when you are unable to make decisions for yourself. This can include decisions about your healthcare and medical treatment, decisions about where you live and day-to-day decisions about your personal welfare, such as your diet, dress or daily routine.” [2]

We assumed that the Alzheimer’s diagnosis in itself was enough proof that mum was losing capacity to make decisions for herself, particularly (using the term I am now familiar with) “in her best interests”[3]. Her deteriorating condition that had led to the urgent entry to the care home seemed enough evidence to us that she had in fact lost capacity to make important decisions and therefore, the power to make those decisions had passed to my sister. 

What we didn’t know or understand ,was that in fact capacity can be deemed to “fluctuate”, even with a progressive condition like Alzheimer’s, and therefore the “Urgent DOLS authorization” under which mum had been admitted had only been made until a permanent order could be issued, establishing that mum’s loss of capacity was permanent and that her deprivation of liberty was fully authorized. We also didn’t realise that even once she had been deemed to have lost capacity, that the power to make decisions did not then belong to the person acting as Health and Welfare Attorney (my sister), but that a specific legal framework was relevant, relating to DoLS and ultimately, in some cases, a role for the Court of Protection with a judge making decisions based on evidence. 

Mum started to have Deprivation of Liberty assessments (DoLS) by independent Best Interest Assessors, as part of the legal process for making her admission authorised, as opposed to an “urgent” authorisation[4]. We knew about these because the social worker would update my sister, as the LPA. But as mum was objecting to being in the care home each assessment was another renewal/ extension of the urgent authorization. 

Each time mum was asked if she was happy in the home she said “no” and used words like “I’m a prisoner here”. When this was fed back to us, we weren’t surprised, as we knew that mum had never wanted to go into a home where she couldn’t smoke when she wanted to and because she felt that she could look after herself and was going to get better. We weren’t particularly worried about her saying this because we assumed that my sister would have the final say anyway. And the care home staff reassured us that unless she was specifically asked by someone official, she never mentioned feeling like a prisoner. I think that mum also had a Paid Relevant Person’s Representative (PRPR) appointed at this time too, although we didn’t know about this at first. It has only become apparent to me that this happened as part of going through the process, although there was still a lack of clarity around what their role was and why they had been appointed. I now understand (through attending a training course for families with Edge Training) that in some cases the LPA is also a person’s representative. To this day, it is still not clear to me precisely why my sister as LPA was not appointed as mum’s representative. Was it to do with the fact that my mum blamed my sister for “putting” her in the home? And that, as became apparent later, the lawyers mistakenly thought my sister was an only child and was abusing her power?

In the meantime, as a family we agreed that we should sell the family home. This was because there was an equity release contract on the house and under the terms of that arrangement the house had to be sold and the equity returned within one year of the last person living there leaving, either because of death or on going into permanent care. In any case, we needed the remaining proceeds from the sale of the house to pay for the care home fees – mum is what is known as a “self-funder”, paying for her own care home fees. And to us, there was no way imaginable that mum would be returning to live in the house. It was sold in November 2021 and the proceeds received in February 2022. We agreed not to tell mum as we didn’t think she would be fully able to take it on board and mostly because we didn’t want to distress her. Afterwards, we were told that somebody could query whether there was a mental capacity assessment about the house sale, but we had no idea about this, and again, assumed that the LPA authority my sister had covered this situation. 

Court Proceedings

Early in 2022, the social worker started to talk about the possibility of “court proceedings”. This started to concern us, although not unduly, as we didn’t think it would come to that, due to my sister having LPA.

And if I mentioned “court proceedings” to friends, they would say “Oh, it won’t come to that”.  Again, how naïve we were!

On 31st March 2022 I had the following WhatsApp message from my sister: “Had a call from [Social Worker] yesterday to confirm it is going to court and my input is required. I asked that you be consulted too”.

A court hearing had been set for June 2022. 

We were truly shocked, distressed and – to be honest – angry. We had no idea what this meant. We could not believe that it had got that far. What court? Why? What was the purpose? Would it mean mum being discharged from the care home? How would we be consulted? Were we as a family being judged – did they think we didn’t care for mum or were after the money from the house sale?  My immediate reaction was that it was a way of lawyers making money, and the only thing I could think of was to write to mum’s MP. Surely the whole point of the LPA was that my sister had the power to make decisions in mum’s best interests once she no longer had capacity. Which in our eyes was the case now, due to her Alzheimer’s and her resulting behaviour which was putting her at risk.

In early April, after I had contacted the social worker to ask her more about the court process, and what it was exactly, we had a brief 15-minute meeting using Microsoft Teams. I sensed a change in her attitude towards us. Whereas before we had communicated very effectively and openly, this time she seemed more cagey, as if she shouldn’t really be talking to us. I know that it was the first time she’d had a case going to “court” so maybe she was nervous about this. She told us that the court was the Court of Protection and the case was a Section 21A appeal. I subsequently learned that s21A of the Mental Capacity Act 2005 relates to appeals against standard or urgent authorisations (of deprivation of liberty of a person in a placement like a care home which is registered by the Care Quality Commission). 

The legal wheels began to turn.  A Litigation Friend was appointed to represent mum and she was going to become known as “P” (Protected Party) and she was apparently bringing a case against the Local Authority who had organized the standard authorization depriving her of her liberty. There was mention of the need to consider “less restrictive” living conditions. 

We were told that my sister, even though she had authority as the LPA, had no formal role in the proceedings and neither did the rest of us siblings. We were advised that if we wanted to become formally involved, we should find our own legal representatives, at our own cost. Mum’s costs would be covered by legal aid. 

It had all suddenly become very real and concerning. We had used deception to admit mum to the Home. We had sold the house. Mum said that she was a prisoner. I realized how it could look to other people. And we would have no formal role in the proceedings. We knew that if mum was moved it would be us picking up the pieces and dealing with the consequences. But most of all, with our lifelong in-depth knowledge of her, we believed she was in the right place for her well-being and safety: she had got to know the staff, she didn’t try and leave and we thought it would be cruel and distressing for her to move. 

I started by trying to contact the solicitors whose details had been provided to my sister. But they refused / couldn’t talk to me. First, because they weren’t aware that my sister had any siblings (the first of several errors of fact, which could have been avoided if we had been consulted earlier); and secondly, because I was not officially linked to the case and they were not allowed to talk to me. I fully admit that in my early email communications with them they could probably sense an underlying tone of anger and frustration (although I tried to keep my tone polite).  They probably felt threatened or that I was trouble. For my part, in my head they were “the enemy”, interfering in our family affairs. How could they know what was best for mum when they didn’t know her or her life story? 

I started searching the internet to try and find out more about the COP and s21A appeals. I was determined to do what I could to help my sister and mum and ensure that the family’s voice was heard. 

And then, by chance, I found the Open Justice Court of Protection Project website. I sent an email, explaining our situation and pleading for help. Celia Kitzinger (Co-Director of the Project) replied to my email and I am so thankful that she did. 

Over the course of a few months, Celia, acting personally to help me, completely changed my understanding of the COP, of the legal process, of the role of the lawyers, and the law behind s.21A. Although I still have questions about the process and thoughts on how it can be improved for families, I no longer see the legal representatives involved in the COP as “the enemy” and in fact I admire them for the work that they do in often difficult circumstances and for not very much money. I think they are unsung heroes (as well as social workers). 

Celia explained to me that, unlike a criminal court, the COP was was not an adversarial court but an inquisitorial one, with parties providing evidence that would enable the court to make the best decision for the individual. It is (usually) a largely collaborative process, with parties working together to find the best solution for P. She said that the case going to court did not automatically mean that mum was going to be moved: “less restrictive” meant making sure that her desires and wishes were being catered for as much as possible. For example, ensuring access to the community where possible, or ensuring that somebody’s religious and cultural needs were being catered for. And she explained about the concept of “fluctuating capacity”, that somebody deemed not to have capacity at a certain moment in time could be deemed to have capacity later, as it is time specific; and that people can have capacity to make some decisions (like what clothes to wear) and not others (like whether or not to consent to a medical treatment).

She suggested that I might like to observe some hearings before my mother’s hearing in court – to develop my understanding of how a hearing worked – and she was willing to come along with me to (virtual) court.  I will always remember that first hearing, as I was so nervous. But I learned a lot from it, especially about the tone of the meeting and how judges are. Each of the few hearings I have observed has been conducted in a positive spirit, even as difficult circumstances are discussed. Lay people involved have always been treated with respect and concern for their understanding. And the judge has always done their best to make observers welcome. 

I wanted my voice to be heard in the Court of Protection when the judge was making decisions about my mother. I now knew I could attend hearings as her daughter, but I decided that I would have more ‘entitlement’ to participate if I were formally joined as a party[5].  This meant I would be able, but also required, to participate in all court hearings. As I didn’t want to have to pay a solicitor and barrister, I would be a “litigant in person”, representing myself. I would be copied in on all communication between the two legal teams (my mother’s and the local authority’s) including having access to all orders. I would be granted permission to submit a Position Statement before each hearing, as well as having access to the other party’s Position Statements. And I would automatically have an allocated ‘speaking slot’ in court. I applied to be a formal party to the case and during the June ‘directions’ hearing, the judge agreed to this and I became Respondent 2. It did seem to cause some concern that it was me who wanted to be joined to the case and not my sister, as she was the LPA. But she really did not want to and my siblings were happy for me to undertake that responsibility. 

One aspect that has been the most difficult to deal with has been the Transparency Order (TO). Once I joined the case, I felt I had to agree to the TO, basically an injunction forbidding me to talk about the case in order to protect mum’s privacy. As it says on the front of the injunction, if I breach its conditions I could be held in contempt of court and sent to prison, fined, or have my assets seized. This is quite frightening and I have become slightly paranoid about what I can and cannot say and share. My sister was given express permission to attend court hearings and be given all documents too. We were also given permission to talk to our other two siblings about the case. It is sometimes hard to fathom that they were not automatically given access to information about a case involving their mother, especially as all four of us have always been in agreement about caring for her. Sometimes I wonder whether it wouldn’t be better to make access automatic to direct family members, and to expressly forbid sharing information where it is necessary. But of course, I’m no legal expert. And I accept that there will be cases where family members are sometimes the problem and not everybody’s relatives are loving and caring. It just feels to me, rightly or wrongly, that the presumed position is that the family are not loving and caring. 

I have since learned that I can apply to vary the TO (‘amend it’, in layman’s terms) to enable more visibility. This is something I may well consider at a later point, when I am not so worried about protecting my mother’s privacy. I am happy to share our story in the hope of helping other families, but mum has always been a very private person. This is one of the reasons why I am writing under a pseudonym. 

The hearing was conducted in June and there were two subsequent Round Table Meetings (RTMs) to discuss how things are going and to agree on ways forward. Mum did not attend any of these, as she would not have been able to understand what was going on and we believe it would have been distressing for her. 

A final agreed court order was approved after the second RTM, which meant the December hearing was ‘vacated’ (i.e. cancelled) and the case came to an end.  If for some reason future issues arise, this would mean a new case. 

There remains a standard authorization in place, depriving mum of her liberty and authorizing restrictive measures in the care plan. However, as a result of the case, conditions have been put in place, specifying actions such as ensuring mum’s cultural needs are met. This is a positive outcome as a result of the case. Mum still has an allocated PRPR to represent her, whose name was shared with us after the case, and who will review mum’s situation frequently. The social worker will still be involved too. I exchanged messages with the lawyers at the end of the case and we all agreed that we had worked well together. This is certainly not an outcome I would have expected without learning more about the COP through the Open Justice Court of Protection Project. 

It has been quite a journey. Learning from being involved and my experience, there are a number of observations and recommendations I would like to make in conclusion, as a family member: 

  1. Transparency with the family

 From the start, it felt as though this was a process that was happening “behind the scenes”. We didn’t understand what the legal process was or anything about the Court of Protection. We felt that it was a very secretive process and we were being excluded, almost to the point that we were being judged as a family and seen as not acting in mum’s best interests.

I feel that better communication up front, with all the parties working together, would lead to better outcomes. Families know their loved ones best, and notwithstanding the fact that the law is looking after the human rights of an individual, I imagine that in the vast majority of cases an individual’s family want the best for them.  The family working with the legal representatives to ensure the best outcome seems to me something to aim for, if at all possible.

In our case, it felt as if the presumed position was that the family had nothing to add and should not be consulted. Involvement of the family and transparency about the process should be immediate from admission to a care home under an urgent DoLS authorisation, so that the family understands the consequences and are not surprised if a hearing is eventually reached. It would also improve the chances of the family being on board with the process. We have no idea how mum came to be legally represented, for example.

I’m sure that being “sidelined/ excluded” was not deliberate, more a lack of communication or a lack of clarity for professionals about how families should be involved. (Participating in the Edge training session for families involved in COP hearings showed me that sometimes communication can work very well).  

Family involvement would also ensure that there are no errors of fact in documents such as Position Statements which are submitted to the Court, as happened in our case. In fact, Position Statements, such important documents for the hearings, are often not provided in advance to families, who unless they become parties, are not officially part of the process. Best practice guidance on how to involve families in the COP process could be provided to social care representatives and legal representatives.

I’m sure that many families believe that once they have a registered LPA for Health and Welfare, it allows them to make all decisions about their loved one’s health and welfare in the event that capacity is lost. We certainly thought that mum’s increasingly dangerous behaviour due to her Alzheimer’s had reached the point where she wasn’t safe in her own home, even with a care package in place, and therefore she lacked capacity to make decisions for herself. We didn’t understand the formal mechanisms for assessing whether that capacity had been lost forever (the issue of fluctuating capacity). And we certainly didn’t understand that once capacity had been lost, with regards to DoLS, there is a separate legal framework and it is the Court of Protection which can make decisions on that person’s behalf, in certain situations.

I have since learned that if somebody objects to their detention, as mum did, it is their human right to have access to a court/tribunal to challenge the decision-makers otherwise the people around them are ‘judge and jury’. However, I have also learned that only approximately 1.7% of DoLS authorisations are subject to ‘appeal’ under Section 21A and I still find it surprising that mum is in this small percentage. I come back to “why us”? Even at the end of our process, I still struggle with this.

I also feel that this limit to the power of an LPA is not fully appreciated.  Searching the internet, the implication is that the power for all matters of Health and Welfare, including where the person will live, will transfer to the attorney in the event of capacity being lost (see examples below). I imagine that many families believe this to be the case. Mum did have an attorney and there was no dispute over its validity. But an LPA cannot authorise deprivation of liberty.[6]Again, this is why DoLS and the role of the COP should be communicated more widely. 

2. Managing distressing information

There were certain aspects of the process that I believe increased our mother’s distress. For example, we didn’t tell her that the house had been sold, because we wanted to protect her feelings and save her from distress. We knew it would upset her. We also didn’t want to take away her hope. But we were told we should tell her as otherwise, at the hearing, it would look as though we were hiding things from her.

My siblings agreed that I would tell her, due to the dynamics of our family. It is a moment I will never forget. When I told her, mum told me she hated me and would never forgive me. She even told me that she didn’t love me anymore and not to go to her funeral. She was very upset and distressed and obviously I was too. I left. The next day I went to see her again, not sure what reaction I would get. When I saw her, she was pleased to see me and had forgotten about the previous day’s conversation. However, she had retained an element of the conversation as she knew that the house had been sold. To this day, she blames my sister for that. I do question whether mum really needed to be told about the house being sold, even if I understand why it was suggested we needed to tell her. I have since been told that in order to assess people’s mental capacity, they need to be given the ‘relevant information’. Even if there is an LPA in place, it doesn’t mean a person automatically loses mental capacity over all their decisions. Sometimes this means telling people information that they will find distressing to hear. 

The other aspect that increased mum’s distress were the meetings with various official people as part of the process, for example the expert commissioned to write the section 49 report on mum’s capacity, mum’s lawyer and the social worker. Mum has always reacted badly to people in authority and just “wanted to be left alone”. For the final meeting with her (new) social worker, the social worker described herself as a “helper”. This really alleviated any potential distress for mum and in these circumstances, I believe that some deception was justified and helped the process. There is no doubt in my mind that the whole process added to mum’s distress but maybe that is just a necessary part of ensuring that the best decision was made on her behalf. 

3. Becoming a litigant in person

Applying, and being approved, to be joined as a party to the case led to the family definitely feeling that we had a formal voice in the proceedings. I believe it really helped the case to be conducted in a positive spirit. I would encourage other family members not to be fearful about being joined as a party and becoming a Litigant in Person. This not only avoided legal costs for us but helped us to feel more directly included. The legal profession should have the confidence to involve family members in this way and indeed the Equal Treatment Bench Book provides guidance for legal professionals on how to treat Litigants in Person. For our part, we didn’t want to threaten the legal personnel involved but to help them. Again, however, this attitude was really informed and helped by the Open Justice Court of Protection Project and by being able to observe hearings to understand more about how they worked. 

4. Communication

One aspect of having family members involved in hearings and meetings such as Round Table Meetings (RTMs) is for legal professionals being mindful in their use of language, and modifying it as necessary. For example, “P “is the legal term for the “Protected Party”, and often that person is referred to by their initials to protect their privacy, even though anyone observing or involved is subject to a TO. It’s important to remember that P is a human being. To illustrate this point, suppose that my mum is called Elizabeth Jones (not, obviously, her real name). In our last RTM, one lawyer referred to her as “EJ”. The barrister initially called her “Elizabeth” and the care home worker called her “Betty”, as that is how she is known to them. The barrister picked up on this, and started using Betty too. However, one of the solicitors, not intentionally I’m sure but just by habit, kept referring to mum as EJ. Again, it’s probably a question of confidence and knowing what is allowed. For us, mum being referred to as “Betty” helped us to feel that Betty-the-person was at the centre of discussions, and not some abstract P. The use of acronyms is also very common to those who are involved in the COP routinely, but I appreciated the barrister correcting herself to “Official Solicitor” just after using the initialization “OS”, for example. 

5. Benefits

Looking back, I can now see that the case has had benefits for mum. Part of the case was seeing how mum’s care arrangements could be made “less restrictive”. This included assessing what community access could be available to her and how her cultural and spiritual needs could be catered for in the home. I don’t believe that we as a family would have thought about this as much if it wasn’t for the case. We assumed care meant she was safe and well looked after in terms of her basic needs. We also didn’t realise that the COP has a role in directing care providers to consider wider aspects of well-being.  Ensuring that this happens, though, when care home staff are so stretched is a different matter. The case directly led to me taking mum out into the community more than I thought was possible. The memory of those trips and the enjoyment for her and me will stay with me, and for that I am grateful. 

6. COP overload

The system is under a lot of stresses and strains. I observed one hearing during the course of which the judge mentioned that there were 44,000 outstanding COP cases. I admire how the judges can assimilate all the information that they have to for each individual case, sometimes information that has been received at short notice, and with at least three cases to be heard in a few short hours. The court staff, too, have a lot to deal with, in what is I understand not very lucrative work. Involving families earlier could help with the efficiency of this process. At the very least, educating families about the COP could help with understanding of how the law works so that families don’t misunderstand the nature and purpose of the COP. 

Conclusion

Open justice and transparency don’t just belong to court hearings. Exposing more widely how the Court of Protection works and why it exists is vital. Ensuring that families caring for loved ones know how the COP works could prevent a lot of angst for families, especially if they have LPAs which they think gives them the power to make all decisions with regards to Health and Welfare if that loved one loses capacity. I’m sure greater understanding for families would lead to a better process for everyone. 

When I imagine what it would have been like for our hearing if I hadn’t come across the Open Justice for Court of Protection Project, I imagine a much more conflictual process, due to our lack of understanding. I like to think that our family’s involvement in the case helped to ensure that the process ran smoother for everyone involved. 

And whilst a case like this is usually P vs Local Authority, where there is an LPA and other family members who have been involved in the care of their loved one for many years, it is so much better if they can bring that knowledge to the process and feel a part of it. For most families in this situation, it is a highly emotional time anyway, watching their loved one fade away to become a different person due to Alzheimer’s. Whilst the focus of the law is, quite rightly, on their loved ones, better awareness would help families understand the legal process better and enable emotions to be channeled positively, to ensure the best outcome possible. 

I’d like finally to come back to the term “Deprivation of Liberty”. It is such a loaded term. To us, mum was being supported in a caring and safe environment where, mostly, she seemed happy. And what is liberty? For us, she had more freedom when in care than at home. At home she had lost the ability to do most things. She couldn’t use the remote control to change the channel on the television. She couldn’t use a telephone to contact people. She couldn’t heat up a meal in the kitchen. She spent most days alone, apart from visits by carers or family members. In my eyes, the Alzheimer’s had taken away her liberty. But I now understand that the law views things differently. And of course, not all families are good families, with their loved one’s best interests at heart. But I imagine that most are. And I hope that sharing our experiences will help shine a light on the Court of Protection, to help other families in similar situations. 

Epilogue

This time last year, we had no idea we would be going to court. However, it’s my understanding that most cases are not resolved as quickly as ours was. I mentioned that the case was closed in December. In fact, in many ways, time caught up with mum and the legal process. Discussions about community access became moot after mum’s physical condition deteriorated. Access to outside space to be able to smoke, an issue that had been so important for mum, became irrelevant as she has now mostly forgotten that she smokes. Mum forgets within an hour that somebody has visited her. We take comfort that she is being well looked after and cared for. But it is also important to recognize that the law is looking after her too, something I have come to learn over the last few months.

Anna was the pseudonym of a woman whose mother was a P in a Court of Protection s.21A application.  Since March 2025, Amanda Hill is allowed to reveal that she is Anna, because the Transparency Order covering her Mum’s case has been varied (changed). Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is a core team member of OJCOP. She is also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She is on LinkedIn (here), and also on X as (@AmandaAPHill) and on Bluesky (@AmandaAPHill.bsky.social). 

Appendix

Searches on “Lasting Power of Attorney for Health and Welfare” – some examples of what the internet says (searches don’t routinely reveal results that mention the role of the Court of Protection): 

  1. From the NHS UK website: https://www.nhs.uk/conditions/social-care-and-support-guide/making-decisions-for-someone-else/giving-someone-power-of-attorney/

« A health and welfare LPA gives your attorney the power to make decisions about your daily routine (washing, dressing, eating), medical care, moving into a care home and life-sustaining medical treatment. It can only be used if you’re unable to make your own decisions. »

The guidance on the website goes on to say: “What health and welfare power of attorney cannot do: A health and welfare LPA does not come into force until the donor has lost the capacity to make decisions for themselves. »

2)    From the UK Government website: https://www.gov.uk/lasting-power-attorney-duties/health-welfare. “Health and welfare attorneys: As a health and welfare attorney, you make (or help the donor make) decisions about things like:

  • daily routine, for example washing, dressing and eating
  • medical care
  • where the donor lives

You can only make decisions when the donor does not have mental capacity to make them.You must tell people involved in the donor’s care when you start making decisions. This includes the donor’s:

  • friends and family
  • doctor and other healthcare staff
  • care workers, social worker and other social care staff

You may need to use your lasting power of attorney to prove to staff that you can act for the donor.

3)    What does a Lasting Power of Attorney for Health and Welfare involve? (https://ukcareguide.co.uk/lasting-power-attorney-health-welfare/)

There are two types of Lasting Power of Attorney. One is responsible for your assets and financial affairs – this is known as a Lasting Power of Attorney for Property and Financial Affairs. The other type is a Lasting Power of Attorney for Health and Welfare.

An LPA health and welfare enables a nominated family member or friend to make decisions on your behalf regarding your day-to-day care and wellbeing. These include:

  • Personal care and care provision (such as choosing a home care company or residential placement for you, arranging meals, enabling you to take part in social activities)
  • Medical treatment (your attorney may be asked to make decisions on your behalf regarding your medical care )
  • Palliative care (your attorney may be asked to make a decision regarding life-saving treatment or end of life care)

The responsibilities listed above will directly affect you. For this reason, it is very important that the person you choose as your LPA for Health and Welfare is somebody you know and trust.

4)    From Age UK:  https://www.ageuk.org.uk/information-advice/money-legal/legal-issues/power-of-attorney/

LPA for health and care decisions

This covers health and care decisions and can only be used once you have lost mental capacity. An attorney can generally make decisions about things such as:

  • where you should live
  • your medical care
  • what you should eat
  • who you should have contact with
  • what kind of social activities you should take part in.

You can also give special permission for your attorney to make decisions about life-saving treatment.

Endnotes

[1] Bold on the form itself

[2] This seemed to us to suggest power for making decisions would pass to the LPA. See below for the results of internet searches on this matter, which seem to suggest the same. 

[3] If a person is deemed still to have capacity, they can make decisions that others may consider not to be in their own best interests, for example to live in a house that is full of stuff (evidence of hoarding). It’s not a way for others to judge a person’s individual choices.

[4] I’ve since learned that the DoLS makes admission legal and puts the legal safeguards in for P, to authorise the breach in her human rights

[5] With the court’s agreement, family members can attend and be listened to, without being formally appointed as parties, but would not always have access to all documents 

[6] See Section 4A Mental Capacity Act and para 7.44 MCA Code of Practice.

Where shall P live?

By Celia Kitzinger, 16th March 2023

“The person at the centre of this case, JF, is a woman in her early 70s with dementia and a delusional disorder. She’s living in a care home and she’s very unhappy there and would like to leave. This application was brought around nine months ago and the court needs to decide whether it’s going to work for her to go home, and if not, would she be better off in some other care home; and if not, can something be done to improve her lot where she is. These cases are very common in the Court of Protection. Questions like these are hugely important tasks for the judges of this Court, especially in relation to older people.  One issue in this case is whether she needs care in a specialist nursing home given (especially) her mental health needs.[i]” (Ben McCormack, counsel for JF)

The applicant in this case is Mrs F herself, via her litigation friend, represented by Ben McCormack of Garden Court North – and this was his summary of the case at the beginning of the hearing.  

It is thanks to this lawyer’s keen awareness of, and commitment to, the needs of transparency that I’m able to quote this introductory summary, since the judge didn’t invite one. When Ben McCormack suggested “spending a few minutes sketching out the background”,  the judge simply said (rather discouragingly) “you must do as you wish”.  For any judges reading this – please realise that transparency means more than simply letting observers into the courtroom: we need to be able to understand what we’re observing, and without an opening summary that’s often difficult.

The judge, HHJ Simon Burrows, was hearing the case from home because he’s tested positive for COVID-19.  He apologised for the “slightly odd backdrop”: instead of a courtroom, he’s seated in what looks like maybe a spare bedroom, with deep blue floral wallpaper. He doesn’t show any signs of not feeling well.

The two respondents are Cumbria County Council represented by Judith Nailer and Mrs F’s sister who is a litigant in person.

The case (COP 13948314 on 9th March 2023) is a s.21A challenge brought by Mrs F against her deprivation of liberty in the care home.

Issues before the court today

This is a ‘case management’ hearing.  The court won’t decide today where it’s in Mrs F’s best interests to live.  What’s happening today is (mostly) making sure that the necessary information is obtained in order to make that decision in the future – including what Mrs F’s options are. 

Nobody is arguing that it would be in Mrs F’s best interests to return home – she simply couldn’t be safe there.  The question is whether it’s in her best interests to stay in the familiar environment of her current care home, or whether she would be happier in another care home – although “one of the problems in Cumbria – and in other areas of the country too – is lack of availability of care homes” (says her counsel).

And there’s another problem too.  The Trust (Cumbria, Northumberland, Tyne and Ware NHS Foundation Trust) is not a party to the case, but they are are jointly responsible, along with the local authority, for Mrs F’s accommodation and support package.  They have provided a statement to the court saying that Mrs F needs to be in a nursing home (i.e. a residential care facility that has on-site nursing care available). 

Mrs F’s representatives don’t agree that she needs a nursing home. Although she’s currently on the nursing floor of the care home she’s living in, her needs are much lower and less complex.  She’s able to do many things for herself and is physically very well.  She recently walked with her sister for about a mile (unaided) on a trip to a local beauty spot.  Her solicitor has reviewed her day-to-day records and can’t see any reason for requiring her to live in a nursing home.  Her legal team wants further information about why the Trust is saying that she needs nursing care – and the Trust (which would prefer not to be joined as a party) has said they will provide information within 14 days about that.  

Counsel for Mrs F is concerned that limiting the search for an alternative residence to nursing homes will greatly restrict what’s available.

“You might think ‘what’s the benefit to Mrs F of moving to another care home when she’d like to live at home?’ She’s not interested in living in another care home. But if she can’t go home, her sisters think if she lived in a more rural area, with a garden she could help to tend, she would be happier.  In not quite such an urban landscape as her current home, where she’s confined to the upper floor of a care home, with another resident who – as a result of his own mental impairments –  make a  lot of noise that she finds disturbing and upsetting.  At the moment, her sister says, she has “no quality of life”.  This is a woman who led walking groups for much of her adult life, loved the outdoors, loves gardening and has found great-   what in modern parlance we’d call ‘well-being’ in those things, but really they are things she enjoys doing and has found in them great joy and solace.  So, even if at the minute she can’t see the benefit of a different nursing home – she’s fixated on ‘I’d just like to be back in my own home please’ (no disrespect to her),  but parties are agreed it’s definitely worth a try. To do that, we need to see if there’s somewhere else available and it  would greatly assist to be able to interrogate the Trust more and ask them ‘what are P’s needs that require a nursing home?’.  And the Trust answer will be what it is. That will be their professional opinion.”

Mrs F’s sister has identified two potential homes on the Cumbrian coast that she thinks would suit her.  There are often difficulties when moving patients with dementia from one care home to another, but Mrs F’s sister said in court that if she can move some of Mrs F’s furniture and possessions into her room before she moves into the new placement, she may settle in much better, perhaps believing it to be her own home.  (She’s refused to have her own belongings brought into the current care home because she doesn’t wish to stay there.)  But it seems the new placement possibilities won’t work if a nursing home (rather than a care home without a nurse on site) is what the Trust says is required.

Meanwhile, her legal team is asking for steps to improve her lot where she is – for  help to get her out and about, gardening, walking, “breathing in a bit of fresh air”. Counsel reported that Mrs F has not been offered any outside activity recently and, when asked about this, a member of staff at the care home said ““we might do that when the weather improves”.  This demonstrates, said counsel, “a poverty of ambition” for Mrs F.  “People who like to go walking don’t wait ‘til the weather is nice – they put their boots and coats on and go out in it!”.  And Mrs F has some money of her own that her deputy can put towards one-to-one support for trips out into the community.

The next hearing is listed for 3rd May 2023.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project.  She has observed more than 400 hearings and is a frequent blogger.  She’s on LinkedIn and tweets as @KitzingerCelia

[i] The court is making decisions about JF’s best interests because it has already been declared (I see from the position statements) that she lacks capacity to make this decision for herself.  She does not understand that she has dementia, nor the risks that her dementia causes her, nor how her current residence and care arrangements help to keep her safe.  This quotation from the court hearing is, like others in this post, as accurate as I can make it given that we are not allowed to audio-record hearings.  

Treatment escalation for a teenager in ICU

By Rhiannon Snaith, 16th March 2023

Editorial note 3: (added 30 April 2024) There is a Court of Appeal hearing on 1st and 2nd May 2024 – the parents (supported by Christian Concern) are challenging Mrs Justice Roberts’ finding that ST lacked capacity to litigate the case, and lacked capacity to make her own medical decisions. You can watch the hearing (live-streamed, no need to request the link, and you can drop in and out, like watching TV, here: https://www.youtube.com/channel/UCn_a8COiB_KbaEvXKFk7lng?view_as=subscriber). It will also be recorded and available on You tube afterwards.

Editorial note 2 (added 14 September 2023): Sadly, the Mail reported today that ST has now died.

Editorial note 1 (added 9 September 2023): Since the hearing reported here (in March 2023) there have been other hearings in this case, which we’ve not observed. A judgment was published following a hearing on 7 August 2023 (so 5 months after the hearing reported here) at which Roberts J found that ST lacks capacity to make her own decisions about her medical treatment due to her “complete inability to accept the medical reality of her position, or to contemplate the possibility that her doctors may be giving her accurate information” which “is likely to be the result of an impairment of, or a disturbance in the functioning of, her mind or brain” (although the judge did not attach a diagnosis). She also found that ST lacks capacity to instruct her own legal team. That judgment is here (click on the case name): A NHS Trust v ST & Ors [2023] EWCOP 40 (25 August 2023). The Daily Mail has also covered the case since that judgment (click on the title of the article): “EXCLUSIVE: My doctors insist it’s time I died – but I will fight them“. The next hearing will address the question of whether or not continued treatment is in ST’s best interests or not. The case will be back in court shortly and we’ll announce the date when we know it.

*******

I am a PhD student at Cardiff University researching media representations of end-of-life decisions. I have previously observed a number of hearings in the Court of Protection (CoP) and have blogged about several cases (see bio). I was keen to watch this hearing as I’d learnt that it was about serious medical treatment, and as it turned out, it was different from other cases I had observed in the sense that P may have the capacity to make her own decisions, which I’d not seen in hearings that I’d previously observed. 

This case (COP 1405715T, before Mr Justice Francis) was heard in the Royal Courts of Justice, on the morning of Tuesday 14th March 2023. It was listed as a ‘hybrid’ hearing, which meant that some people would attend in the physical courtroom in London, while others would attend (as I did) remotely via Cloud Video Platform. 

At the heart of this case is ST, a young woman who has been in intensive care since August 2022 after contracting COVID-19. Prior to this, ST had numerous health problems due to a genetic mitochondrial disorder, though none that caused any neurological problems. It was only after contracting COVID-19 that ST became ill with pneumonia and was admitted to an intensive care unit and was placed on mechanical ventilation, and regular and frequent kidney dialysis. 

It seems that the primary goal of this hearing was not to determine whether treatment should be withdrawn/continued but to ascertain what should happen if ST’s condition deteriorates. Questions relating to ST’s capacity to make such decisions for herself was also raised, as well as the issues relating to her awareness of her condition and prognosis. It seems that ST’s parents had initially not wanted to distress ST by telling her about her condition, and that ST herself had expressed the view that she did not want to acknowledge it. However, it was important for all parties that ST’s wishes be taken into consideration.

The hearing

The applicant in this hearing was the Trust, represented by Victoria Butler-Cole KC. The parents were represented (pro bono, via Advocate) by Jake Thorold (they were not eligible for legal aid). Katie Gollop KC was also present as a potential advocate for ST via her litigation friend, the Official Solicitor, though she played only a minimal role in this hearing and it was decided during the hearing that she would not be taking an active role unless otherwise advised. 

Counsel for the Trust 

Victoria Butler-Cole KC, counsel for the Trust, gave a helpful introduction to the case for those attending the hearing. She explained that while ST had underlying health conditions, it was not simply her genetic disorder that had led to her current condition, but COVID-19. After contracting COVID-19, ST was placed in intensive care, has been put on mechanical ventilation and is in need of regular dialysis. Attempts to wean ST off mechanical ventilation had been unsuccessful: the doctors believe it will never be successful and that she will require mechanical ventilation for the rest of her life. Counsel also said that ST is not a candidate for a kidney transplant: “the very sad view of medical doctors that she’s now to be treated as someone who’s in the terminal phase of her underlying medical condition. A kidney transplant is not on offer. That is something the parents understand”.

The application made by the Trust was to address the question of what should happen if ST’s condition deteriorated. It was made clear that the hospital was not willing to offer certain treatments. They were not willing to offer a kidney transplant or CPR (in particular, chest compressions). These were not ‘best interests’ decisions but clinical decisions by the hospital. Counsel said they were made on the grounds of futility. For example, “If it got to the point that chest compressions were needed, there would be no prospect of her coming back to life, if I can put it in very lay terms –  or if she did, only for very short period”.

It seemed that the main issues between the hospital and ST’s parents were in determining what limits should be placed on treatments in future if there is deterioration, e.g., in relation to infection, or problem with organ function.  

Counsel for the Trust said there was a question about ST’s capacity and her ability to make decisions about her medical treatment for herself.  In order to have capacity to make a decision, a person needs to be able to understand, retain, and weigh information relevant to the decision they need to make (s. 3.1 Mental Capacity Act 2005) and then communicate their decision.  But at the time the application was made to court, ST’s parents did not want ST to be told about her condition or prognosis as it would be very distressing for her. There are also “certainly times when ST herself has expressed unwillingness to talk about very upsetting matters”. But the doctors need to know the basis on which they are providing medical treatment.  Is it because ST capacitously consents to it, or is it because it is in her best interests?  And capacitous consent can only be established if ST is given the information about her illness and her prognosis (and so is potentially able to understand, retain and weigh it).

An additional complication is that ST registered a Lasting Power of Attorney (LPA) in 2022. However, concerns were raised as to its validity as ST had just had major surgery and doctors thought she was not in a position to make such a decision at that time. Counsel added that ST was in a better condition now than she was at that time and she may now have capacity to make an LPA. 

It is important to note here that since the application was made, and since ST’s barrister was appointed (on Friday), ST’s parents no longer object to ST being provided with the relevant information. 

It was only at a meeting yesterday that ST has expressed her own views in any level of detail.  She says she doesn’t trust the doctors and believes they are making things worse. This is also the view of her parents. The doctors had told ST that she would have to be on a ventilator for the rest of her life.   Counsel said: “She was very upset by that, understandably.  She’d wanted to go home and thought she would come off the ventilator and be able to do so, and now she is looking at spending the rest of her life in hospital or possibly a nursing home if one could be found that could manage both dialysis and ventilation. This is devastating news for a [teenager] who until she got COVID was doing very well”.

According to Counsel, common ground had been reached following recent discussions between the hospital and family members trying to establish a practical way forward. It was agreed that if ST has capacity to make her own medical decisions, then everyone wants her to do that, but on the basis of informed discussions. It was also stressed that any information passed on to ST should be set out beforehand to ensure minimal distress and confusion. This was agreed upon by the hospital and the parents. As communicating with a tracheostomy is difficult, it was stated that ST would be able to communicate via writing (on an iPad), a method of communication which she had previously expressed a preference for.

It seemed imperative that the process of involving ST in discussions regarding her condition and prognosis be handled in a sensitive way, and that ST would be able to have discussions without her parents present in some cases. It may be that she has capacity to make her own decisions if she is given the information sensitively and supported to understand it. 

Counsel for the Trust concluded by putting forward three options in terms of the possible next steps:

Option 1: The hospital brings in an intensive care consultant from outside the Trust, who has no links to either ST or the hospital she is currently in and who can provide independent information to ST and her parents. In this instance, the Trust would be happy to facilitate (and pay for) this.

Option 2: Follows a similar process to option 1 but with the Official Solicitor (OS) involved. There is currently sufficient evidence (said counsel) for an interim order that ST is unable, at the moment, to make decisions as she is overwhelmed by her condition and does not have all the relevant information.

Option 3: A ‘Harbin v Masterman’ order was the third option (See here). This allows the Official Solicitor to advise the court, rather than represent ST. 

“So, you are not asking me to make a decision about capacity today”, asked the judge.

It seemed not.  

Counsel stated that a discussion to discern what issues the court may need to deal with was needed.  

Counsel for ST

Katie Gollop KC spoke next. She was present as the potential advocate for ST via her litigation friend, the Official Solicitor [OS]. She acknowledged the very sensitive nature of the case and said she did not know much about it at present. She said her “instinct” at the moment was to take a step back for now, particularly when there is a possibility of a contested hearing. Additionally, she made the point that “it is not immediately obvious that ST lacks litigation capacity – especially having looked at the note of yesterday’s meeting”.

Counsel was also concerned that the way the application was originally framed was the OS giving ST information (about her illness and prognosis) that was going to be life-changing and very upsetting – purely for the purposes of giving her a capacity assessment.  This didn’t seem the best use of the time ST has left to her.  

She added that Issues regarding communication were very unclear as well. The Trust has said ST is blind while her parents said they didn’t believe this, and there was evidence in a note by ST’s nurse that says she facilitates communication by providing ST with a pen and paper. As a result, the OS is unsure of ST’s communicative ability. She suggested that an intermediary or a speech and language therapist could be involved, or that a speaking valve could be fitted to ST’s tracheostomy tube.

In summary, it may be more beneficial for the OS to not withdraw from the proceedings but to take a step back while ‘option one’ was explored. 

Counsel for Parents 

The court heard next from Jake Thorold as counsel for the parents, but there was an adjournment of around 45 minutes for him to consult with the parents before he made his submissions. This was because he had been so recently appointed and matters had been evolving so rapidly that he had not had time to take full instructions from them.  Also, ST’s mother is not fluent in English.  There was no interpreter in court for her today and her husband had taken on that role. 

When the hearing started again, the judge checked with counsel: “Are you satisfied you’ve had enough time with your clients, bearing in mind you’re dealing with them remotely and there are language issues?”  He said he was.

Counsel said that there was some upset from ST’s parents that the case had been brought to court. They had now discussed the issues with him, and subsequently with ST (during the adjournment), and they were happy for all the relevant information to be given to ST regarding her condition and prognosis. They were also happy with the proposal to bring in an independent expert, as long as agreements were made as to what the process would be in providing this information and what is told to ST. It was also stressed that ST’s parents were happy for some conversations to happen with just ST and the expert present (without their involvement) as long as nobody from the Trust was present at that time.

Counsel had also explained the Transparency Order (TO) to the parents (who had now discussed it with their daughter). Counsel informed the court that both ST and her parents “want these proceedings to take place in public and for all parties to be named”.  This clearly surprised the other parties, and the judge. Counsel for the Trust responded by stating that the names of the Trust, hospital and staff should not be made public because “inevitably there’s a risk that completely unacceptable behaviour by the press or members of the public will occur, as have occurred before in cases involving children”.

The judge was concerned and said, “once we unbolt the door, we can’t close it again”.  The judge’s view was that it would be best to keep the Transparency Order as it is and review it at the next hearing.

The last 5 or 10 minutes of the hearing were difficult to hear due to distorted sound – which was particularly unfortunate for ST’s parents: the judge reassured the parents and those attending online that discussions within this time frame were purely in relation to the transparency order.  

Reflections 

Three things struck me about this case. 

The first, and perhaps most obvious, was the fact that ST may have capacity to make her own medical decisions. This was striking as up until this point the cases I had previously observed did not involve Ps for whom there was any possibility of capacitous medical decision-making (because they were not conscious). The diversity of cases that come through to the CoP often stands out to me and as someone who is studying representations of end-of-life decisions, specifically for those without capacity, it is always interesting to see how the decision-making process is handled in court – including, in this case, the question of support for ST to enable her to make her own decision about treatment if she has capacity to do so.

The second thing that struck me, as has been clear to me previously, is the care and consideration taken by the judge and legal teams when it comes to P, and also their family. In this case, the judge made it clear throughout the hearing that a priority was to ensure that ST’s parents were given and understood all the relevant information, including the potential ramifications of making all information regarding the case public. It is something that I would want to be assured of for my family if I were ever in a similar position. 

The third thing that struck me was how young ST is to be facing such a challenging situation. Often, when I attend hearings, I am struck by the emotional aspects of these cases. In this case, ST is a young woman, younger than me, who not only is facing the very upsetting prospect of her condition and her prognosis, meaning she will not be able to return home, but may also have to make very difficult decisions in terms of her treatment. I can’t help but think about how I might feel in that situation. Would I want to be fully aware of my condition and prognosis? What limits, if any, would I put on my treatment if my condition worsened? They are difficult questions to consider for anyone, and perhaps especially for a teenager.

Attending hearings is always an eye-opening experience for me, not just in terms of developing an understanding of the court process and how decisions are made but also personally. In this case, it brings home to me the many devastating and, frankly, scary implications of ST’s condition, both emotionally and physically on her and her family. I wish both ST and her family well and hope that the plans developed help to ensure that she feels supported and cared for.    

Rhiannon Snaith is an ESRC funded PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on media representations of decisions about life-sustaining treatment, specifically for those without the capacity to make such decisions for themselves. She has previously blogged for the Project here and here.  You can learn more about her work by checking out her academic profile. She tweets @Rhiannon_Snaith

When P objects to an expert

By Celia Kitzinger, 14th March 2023

“Professor X has no expertise”, says Laura Wareham[1] – the protected party at the centre of this case.  She does not want him involved in drawing up her care plan.  

This is partly (she says) because of very negative things she’s heard about him from a friend and partly because Professor X “doesn’t believe in Hypermobile Ehlers-Danlos Syndrome. His job is to discount it” (click here for more information about hEDS).  She makes an accusation of criminal behaviour against him too, which seems to startle the judge. Her parents, who are parties to this case, also object: “Laura, don’t say that!”.  

Laura  – who has “a hugely complicated medical background”, including “autistic spectrum disorder”, “bipolar affective disorder” and “Bodily Distress Syndrome – has been in hospital  since April 2022 following an emergency admission.  She’s been intubated, ventilated and very seriously ill.  She’s now stable and is attending the remote hearing (COP 1397774T) from her hospital bed.

Everyone agrees that Laura doesn’t require care in an acute hospital setting and hasn’t done for some time. Everyone agrees she should be discharged.  An expert (Dr A) is currently developing a care plan for her and there is a view (from whom is not quite clear) that he needs to work jointly with an expert in infectious diseases.  The expert he chose, Professor X, is not someone Laura wants involved.

Background

This case has been in court at least three times before (since August 2022), and I blogged the February hearing at which the problem of the expert was first raised (“Standoff about the appropriate expert: A pragmatic judicial solution”).  

At the February hearing, the judge had come up with a pragmatic solution.  Since Professor X wasn’t acceptable to Laura, counsel should go back to Dr A and “explain that the confidence of Laura and her parents will be fatally undermined by Professor X’s involvement. Ask [Dr A] if there is someone else who can fulfil that role” – and then see if that person could be available to help with Laura’s care plan.  Laura’s parents recommended the name of someone they thought could help and the judge required that name to be put to Dr A as a candidate expert too (if in fact that expert was available).

I hoped to hear today that a suitable infectious diseases expert had been found to work with Dr A,  and that Laura’s care plan could be finalised so that she could be discharged soon.

Today’s hearing: 22nd February 2023

The case was heard by Mrs Justice Arbuthnot. At the beginning of the hearing, Scott Mathewson, counsel for the Health Board, briefly summarised the case to date and reported that the parents’ preferred expert was not able and willing to take instruction.  But there was “good news”: “There is another doctor, a colleague of Professor X, who is an infectious diseases expert, Dr N. He is also an international expert and he has accepted instruction and Dr A is happy for him to act as his second. My Lady, we regard this as a breakthrough.” (Counsel for the Health Board)

Laura wasn’t happy.  In response to the judge’s observation that “Laura has no confidence in Professor X”, Laura added “Or anyone contaminated by him.  Which includes a colleague.”  Later she said, “I don’t want to be condemned for the rest of my life by someone who isn’t educated or compassionate enough to….” (I don’t know where she was headed with that because her father intervened and spoke over her.)

The view of the Health Board is that “in an ideal world, only experts that Laura approved of would be instructed” but that given the need to find someone quickly (Dr A was to assess Laura in two days’ time and then submit a report with a proposal for discharge), “the balance falls in favour of making the order so that Laura may be discharged to a suitable placement as soon as possible”.

Laura’s father raised a question as to whether in fact an infectious diseases expert was needed: “We’d always been surprised at Dr A’s apparent request to have input from someone in infectious diseases…. Looking at the correspondence we got this morning from our ex-solicitor, it seems it was at the suggestion at the Health Board that an infectious diseases specialist was brought in.  And Dr A simply agreed – presumably in ignorance of the extreme distress that would bring to Laura.” (Laura’s father)

Ian Brownhill, counsel representing Laura (via her litigation friend the Official Solicitor) said it is “perfectly clear from Laura that she doesn’t want anything to do with Professor X” and suggested that when Dr A visits Laura in two days’ time to conduct his assessment, he should say what other expert input (if any) he needs, acknowledging that (as the judge put it) Professor X is “out of the question now”.  He said: “The Official Solicitor’s position remains the same – Laura ought not to be where she is.  Laura doesn’t want to, and ought not to be- I don’t want to say ‘stuck with’- but have something on her medical records that she feels is fundamentally flawed.  We are trying to find an even keel while progressing this case.  This is important, but there are are many other important issues to resolve – her capacity, her contact with her parents.” (Counsel for Laura)

Both counsel invited the judge to order that Dr A should be “in the driving seat… so if he deems it necessary to have input from Dr N he has permission to rely on that input, and also if the Warehams believe further input is required, there is no objection to them obtaining additional evidence”.

I haven’t seen the final order, but I think it’s to the effect that Dr A should decide if he needs any additional input or not, and if so what kind of additional input, and that he can ask anyone he wants except Professor X (including Dr N,  Professor X’s colleague).  The judge (apparently reluctantly) indicated that Dr N could be considered as an “expert desktop reviewer of Dr A’s work … if there is nobody else available and the discharge proposals can’t otherwise be done within the timescale.  But Dr A will realise there is a risk his work will be undermined by [the Wareham’s] strong views about Dr N – whatever the rights and wrongs of the case, and this is no reflection on either Dr N or Professor X by the way”.

An articulate and eloquent ‘P’

It’s unusual, in my experience, for a protected party to speak out as clearly and confidently as Laura does throughout this hearing.  

But Laura Wareham has spoken out publicly before – about her own medical treatment for Ehlers-Danlos Syndrome and the death of her sister Tania who suffered from the same condition and also had cancer (Nottinghamshire Post) and about her fundraising activity for an operation, not available to her on the NHS, to stabilise her neck (ITV, Daily Star)

She’s been very ill and her parents accept that Laura lost capacity to make some or all of her own decisions for a while, but they believe that she has now regained it.  So does Laura.

When counsel for the Trust provided a helpful introductory summary for observers, he mentioned the finding from consultant psychiatrist Dr Claudia Camden-Smith that Laura lacks capacity to make her own medical decisions.  Laura intervened: “It’s been disputed”.  He  acknowledged this,  explaining that “the matter of capacity is to be determined at the final hearing”.  Laura’s intervention led to a rebuke from the judge. 

Judge: Don’t interrupt!

Laura: I had my hand up and you ignored me.

Judge: You will have your moment, but not now.

Laura: Fine! (My note: this was said as the kind of ‘fine!’ that means exactly the opposite.)

Later,  Laura’s mother raised concerns that Laura’s psychiatric diagnoses amount to a claim that “there’s nothing wrong with [Laura], it’s all in her head” and was going on to explain this when the judge interrupted her, saying “Let’s go back to-“.  

Laura:  No. I would rather you let her finish her sentence.

Judge: If you interrupt, I’m afraid I’m going to exclude you from the hearing.

I found this quite a challenging exchange: the judge ‘interrupted’ Erica Wareham (literally mid-sentence), but objected to Laura Wareham interjecting in just the same way, to call her out on that. What’s happening here (and in the judge’s earlier exchange with Laura on the matter of ‘interruption’) is a consequence of the judge taking for granted the specialised turn-taking system of the courtroom[2], of which Laura (like most lay participants) is unaware. 

Court of Protection hearings are supposed to put “P” (the protected party) at the centre of the case, and that’s clearly where Laura wants to be.   She’s asked for full access to both her own medical records and to the Court of Protection bundle. (It wasn’t clear to me that either was forthcoming.)

Laura also complained about the way the case had been listed on the Royal Courts of Justice Daily Cause List  (using just her initials, “LW”):

Laura: I’m offended that you’ve taken my name off the case.

Judge: I don’t know what you mean.

Laura:  It says ‘LW’.  I am me, and I will be referred to as me.

Judge:  Oh, right. That is to do with listings.

Laura also corrected the judge at one point when she heard the judge mis-speak the family name: “Our name is WareHAM, not WareING”.

This was an interesting hearing because – like other hearings in which articulate and determined protected parties participate fully – the role of the person’s own wishes and feelings, and their place in ‘best interests’ decision-making is thrown into sharp relief.  I have no doubt that Laura (and her parents) will oppose a court determination that Laura continues to lack capacity.  And whatever the court finding on capacity, Laura’s wishes are going to have to play a key role in any future ‘best interests’ decisions made about her[3].

The next hearing will be for a date after 17th April 2023 (we’ll update when we have a precise date), and I believe it will be concerned with Laura Wareham’s capacity to make her own decisions.  I will be interested to see if Laura’s name appears on the listing, as she has requested.  The Open Justice Court of Protection Project has many concerns about errors and omission in listings and regularly raises them with HMCTS, with mixed success!

Celia Kitzinger is co-director of the Open Justice Court of Protection Project.  She’s observed more than 400 hearings and is a frequent blogger.  You can find her on LinkedIn, and on Twitter @KitzingerCelia

[1] The court order enables me to name Laura Wareham (and her parents, Conrad Wareham and Erica Wareham) but not the hospital where she is being treated, or any of the professionals involved in her care.  All quotations are based on touch-typed contemporaneous notes and are as accurate as I can make them, given that we are not allowed to audio-record court hearings. They are unlikely to be 100% verbatim.

[2] See J Maxwell Atkinson & Paul Drew, Order in Court (1979) Palgrave Macmillan

[3] Compare Influencing ‘best interests’ decisions: An eloquent incapacitious P and Articulate, Eloquent and Passionate – but does P have the Mental Capacity to Make Decisions about Four Areas of her own Life

“This is a quagmire and it needs to be urgently done”: LPA objections, disputed capacity and an imperative need for a panel deputy

By Eleanor Tallon, 12th March 2023

Very little was revealed about the woman at the centre of this case – other than she has been living in a care home since the end of 2021, whilst her son remained living in her home. 

In June 2021, she had made a Power of Attorney for Property and Affairs appointing her son as her attorney. Then in March 2022 she instructed solicitors to revoke that LPA to appoint her daughter-in-law and grandson as joint LPAs instead. But then both she and her son objected to this change. This led to questions being raised about her capacity to make an LPA and to revoke the registered LPA. 

A Special Court Visitor was instructed to assess retrospective capacity for the LPA, and various other decisions, but her son disputes all the conclusions reached. Further complicating issues include concerns raised around her son’s conduct in managing her affairs, his occupational interest in her property and the fact that the woman does not want contact with the other family members.

No one is able to administrate her affairs and the Local Authority cannot proceed with financial assessments to secure payment for the care home placement, which leaves her in a tenuous position.

“This is a quagmire, and it needs to be urgently done. A panel deputy could resolve this, though there may be an issue about getting one on board quickly. The end result would be the court making full enquiries as to appointing a panel deputy, or her son, or indeed anybody else.” (Carol Davies, Counsel for the Applicant)

The woman isn’t party to the proceedings, but she is aware of them and wants to explain to the judge directly how she feels.

Access to the hearing

Having held a professional role within Court of Protection proceedings, I have a keen interest in the Open Justice Court of Protection Project to support my continuing development. I have observed several hearings before (and have blogged about three of them here, here, and here) so I felt somewhat prepared as to what to expect as a public observer. I knew it was best to email the court staff the evening before, and to choose 2 hearings in succession of each other (to provide a back-up plan in case my first choice was vacated). 

On the evening of 21st February 2023, I scrolled through the listings (which are helpfully provided on the Twitter feed for the Open Justice Court of Protection Project [OJCOP]) and I noticed two hearings related to DOL, one at 9.30am and another at 3pm. I emailed to request access for both hearings, feeling suitably organised.

However, the next morning, I chased up the access link for the 9.30am hearing, only to receive an email from the court enquiries officer (shortly before the hearing was about to start), advising that I had sent the request to the wrong place (I sent the request to the ‘enquiries’ address rather than the ‘hearings’ email address) and they had only just passed it on. How frustrating!

This was a regrettable faux pas, as it was clearly too late to gain access and I didn’t hear back. I did hear back about my second choice, but unfortunately that one had been vacated. 

I felt dismayed (mainly with myself) and was reminded of my first hapless attempts at gaining access to a COP hearing as a public observer. I decided to admit defeat for that day and re-strategise for the following day, as I had a meeting that had been cancelled in the afternoon. 

That evening I looked at the listings and the following case (at 2pm) – tweeted by OJCOP – stood out to me:

I was interested because a Local Authority Solicitor (Laura Wrixon) had publicly commented on the tweet explaining:

“The 2pm hearing is not as listed. It’s about capacity re finances, registration of an LPA/appointment of a deputy and P’s participation in the proceedings.”

This was appealing, particularly when considering some of my recent work (as an Independent Social Worker), where I have been involved more often in assessing decisions around finances and litigation capacity. It’s been interesting to explore related case law, after spending many years (as a Social Worker and Best Interest Assessor) mainly focusing on capacity decisions around welfare, support, residence, and DOL. I felt enthused to observe the hearing, as a further learning tool for assessing capacity on financial affairs and understanding the legal processes related to deputyship. 

That night I emailed the County Court, as well as requesting another hearing as a reserve. On the morning of 23rdFebruary, I chased up the request and by lunch time I received an email back with confirmation that the judge had approved my request, and a link to the hearing was provided.

Further to this, I noticed that the link had been passed on directly by a solicitor, named Laura Wrixon (presumably the same solicitor who had commented on the Tweet). It seemed that she was the instructing solicitor for Local Authority in the case, which gave me a perfect opportunity to request the transparency order and position statements, which I did. 

Shortly after I received the transparency order (and my request for position statements was being considered). It certainly felt like the obligations around open justice were being upheld, and maybe synchronicity was working in my favour?

I read through the transparency order, which highlighted the typical subject matters (which basically prevent attendees from sharing any personal details or sensitive information disclosed, which could identify those involved in the proceedings).

So, to protect confidentiality, I will use the pseudonyms; Mrs King, who is subject to the proceedings and her son will be referred to as Mr King (first respondent).

By reading the transparency order, I also gleaned that the original application was made in September 2022 by Hampshire County Council, with Mr King as first respondent and the Southern Health NHS Trust as second respondent. 

It was also apparent that an earlier hearing took place in November 2022 which considered issues of capacity around welfare and property and affairs. 

The hearing

Upon gaining access to the hearing (COP 13994886), Judge Emerson was already in the process of leading the introductions. I initially attempted to familiarise myself with who was who from the assortment of faces and names on screen, and I observed the following attendees:

  • Mr King, first respondent, who was represented by a Legal Executive, Clare English (CE) of Martin Searle Solicitors
  • Carol Davies (CD), Barrister of College Chambers and Counsel for the Applicant (Hampshire County Council).
  • Laura Wrixon (LW), Instructing Solicitor at Hampshire County Council (the Applicant).
  • Mr Christopher McGowan (CM), Solicitor at the Office of Public Guardian (OPG). 
  • Ms Y, Social Worker at County Council.

The judge then advised the court that that I (Eleanor Tallon) had requested to observe the hearing, 

Judge: I have been made aware and I have no issues with it, does anyone else? I take it from the resounding silence that everyone agrees to Ms Tallon observing the hearing.

Counsel for the Applicant: Ms Tallon has received the transparency order. She has also requested position statements which we have considered, but it may be that Ms Tallon hears enough today to not need the position statements.

The judge then discussed the papers he had before him, which included a draft order, an order for a section 49 report, the statement of the Special Court Visitor, and position statements for the County Council, Mr King, and for the OPG.

At this point I was wondering whether the NHS Trust was no longer a respondent and if the OPG had now been joined as a respondent? And if so, was that the reason that a section 49 order had required a Special Court Visitor to conduct the capacity assessments? (Position statements would certainly have been helpful to make more sense of it all!)

Having checked the government website I was informed of the following:

Section 49(2) of the act provides that the Court of Protection (‘the court’) may request a report to be made to itself, either by the Public Guardian or by a Court of Protection visitor, to help with decision-making.

Court of Protection visitors can visit anyone they are directed to by the court. They can be directed by the Public Guardian to visit people who have a deputy appointed by the court to make decisions for them, as well as donors and attorneys acting under registered enduring or lasting powers of attorney. (A ‘donor’ makes a power of attorney; an ‘attorney’ makes decisions for the donor.) They may in some circumstances visit someone before the registration of a lasting or enduring power of attorney.

The judge asked whether there were any disputes regarding the reports.

Counsel for the Respondent: There is a disagreement on capacity, Mr King has some key points to make.

The judge advised that although the disputes would be considered, today’s case management hearing was not to determine factual issues about capacity. There was then some discussion around Ms English (Counsel for the Respondent) having access to Judge Emerson’s email address. It was agreed that Ms Wrixon would arrange this, followed by the judge requesting that an overview of the case was provided to the court for the benefit of the observer.

Ms Davies, Counsel for the Applicant,  then proceeded to outline the events which had led to the current position, which appeared to be quite complex, contentious, and protracted. 

From what I could gather, it seems that Mrs King spent some time in hospital from September 2021, following which she was moved to a care home, but there was a dispute as to her capacity to decide on where to reside. This wasn’t resolved until January 2023, at which point it was concluded that she had capacity to decide on residence, and her decision was to remain living in the care home.

However, there remained an issue around Power of Attorney. Mrs King had apparently appointed her son Mr King as her Lasting Power of Attorney (LPA) in June 2021. However in March 2022 she instructed solicitors to revoke the LPA in favour of her son, and instead appoint her daughter-in-law and her grandson (who both live in overseas) as joint LPAs. The LPA paperwork was sent to the OPG to be registered.

Following this, objections were raised by Mr King and Mrs King via a letter, which stated that she did not want her daughter-in-law or grandson to be registered as LPAs.

The OPG then considered the aspect of the LPA (for Property and Affairs) being revoked. Mrs King’s capacity to decide on appointing an LPA was in question, along with other decisions. Dr B was instructed to assess her capacity, followed by another expert, Dr H being asked to give further opinions. 

The parties then agreed to Dr N, Special Court Visitor, being appointed to provide a further capacity report, which was due to be completed by the end of March 2023 but had already been submitted some weeks early. 

The Special Court Visitor identified that Mrs King had capacity when requesting to revoke the LPA in favour of her son and had capacity to appoint her daughter-in-law and grandson. The Special Court Visitor also concluded that Mrs King currently lacks capacity to manage her property and affairs, lacks capacity to make decisions on the proceedings, lacks capacity to make a will, and lacks capacity to decide on the occupation of her home (as well as a couple of other issues which I was unable to capture, as I couldn’t write them down quickly enough!)

Counsel for the Applicant then highlighted that there is now an agreement that an update report is required as to Mrs King’s cognitive impairment and capacity. It wasn’t specified as to which decision this would be for and without having seen the position statements for this case (and with so many sub-issues) it certainly wasn’t clear what exactly was being contested, but I assumed a further report was agreed on account of ongoing disputes. 

I felt quite sorry for Mrs King, who I knew so little about, other than the fact that she had been subject to various mental capacity assessments on a number of convoluted matters, which could be an arduous and emotive process for anyone, with or without a cognitive impairment.

Further to this, Counsel for the Applicant related that Mr King had made an application via a COP 9 form for a judicial visit to his mother, and that this was the main purpose of today’s hearing.

Judge: I need to understand the need for the visit and what the practicalities would entail, instead of simply agreeing to it.

Counsel for the Respondent: The position statement from Mr King explains his reasoning for the request.

Judge: I also have to consider the timing of the visit. I have some hesitation. If I was to visit, I need to consider when it should take place. From what I’ve seen, it struck me that we don’t have an update on capacity on a number of issues. If I was to visit it should be done after the assessment has been done and people have had a chance to consider the outcome. One of the issues is capacity to litigate, and that’s one of the concerns I have.

Counsel for the Respondent referred to Mr King’s position statement and highlighted a point around Mrs King’s ability to participate and have her voice heard in the proceedings.

Counsel for the Respondent: Mrs King is aware of the proceedings and wants to explain to you directly how she feels.

Judge: I understand that, but do you understand my point?

Counsel for the Respondent: Yes, though if she does lack capacity her wishes and feelings are still pertinent and her comments will inform the court.

(My BIA senses were tingling listening to this exchange).

Judge: Absolutely. The point I’m making is this. You are effectively asking a Special Court Visitor to review all capacity issues. I understand the point about participation but not knowing what the answers to the capacity questions are… If I don’t know what any difficulties are and how to approach her, I fear that I will be beating around in the dark not knowing the answer.

Counsel for the Respondent conceded that if Mrs King was found to have capacity overall then a visit might not be necessary.

Judge: I understand that practice directions mean there is a desire to enable participation and there is an indicated desirability for judicial visits, which I have sympathy with. But I don’t think at the moment, I should make a decision until I know what the mental capacity assessment says.

Counsel for the Respondent: If she has capacity to litigate then that makes a difference.

Judge: The purpose is not to gather information.  If she has capacity, the court has no jurisdiction in any event.

A recent blog from the Open Justice Court of Protection Project springs to mind here, which relates to situations in which a person may have capacity to litigate but not to make the decisions in question, though in practice this appears to be fairly unusual.

Judge: We will wait for the assessment, and we can make a decision at that point. It’s not helpful to make a decision today.

Counsel for the Applicant: That matter can be adjourned until the next hearing. I don’t know if a Special Court Visitor could complete the report within that period. We may need to think about vacating the hearing for the 25th April.

Judge: I suggest we keep that hearing for now. In terms of the directions for the report, how quickly can it be provided?

There was discussion about hearing dates and timescales for the report. The judge then went through recitals for a further draft order, and the issues that need to be covered going forward which included: the need for an updated mental capacity assessment;  a note of what experts did agree on; Mrs King’s views on contact with her daughter-in-law and grandson; and the reasons to believe that Mrs King may have lacked capacity on appointing a Power of Attorney (Property and Affairs). (I assumed that this latter issue was in reference to the subsequent application made for her daughter-in-law and grandson but it wasn’t entirely clear).

Mr McGowan, Solicitor for the OPG, discussed whether there was a pragmatic solution as an interim position which could be agreed between parties.

Counsel for the Applicant: Mr King does not agree for a panel deputy.

A panel deputy is a professional deputy appointed by the Office of Public Guardian. The Court of Protection will choose such deputies from a list when no one else is able to act for a person who lacks capacity on the relevant scope of decisions.

Counsel for the Respondent: Mr King refutes the statement that he’s unsuitable to act as deputy and is concerned that the costs for a panel deputy would impact on her estate.

Judge: I’m not going to make a determination as to a final appointment of a panel deputy, but we need to consider what should happen in the interim. What do you say Ms Davies?

Counsel for the Applicant: It’s a hornet’s nest, as to registering the previous LPA. The report from the OPG last year, raised concerns as to Mr King being responsible. We are not recommending a deputy, other than that an interim deputy would be appropriate. The County Council Charging Assessment Team are extremely busy and it wouldn’t be feasible for them to act, as they would not want to hold the deputyship whilst there is a dispute. The only option is for a panel deputy to ensure neutrality. There are ongoing difficulties to date as there is no control over Mrs King’s finances, which means the council can’t get going with the financial assessment to work out what she should contribute to the costs of her care. This is a quagmire, and it needs to be urgently done. A panel deputy could resolve this, though there may be an issue about getting one on board quickly. The end result would be the court making full enquiries as to appointing a panel deputy, or Mr King, or indeed anybody else.

Solicitor for the OPG: I just want to point out a further nuance when deciding whether Mrs King’s property should be considered into the financial assessment. If Mr King remains in the property that would raise issues.

I would just explain here for the reader that when a Local Authority arranges a permanent care placement, they complete a financial assessment in terms of the personal contribution the resident is able to make towards the costs. The LA takes the person’s property into account, possibly initiating a deferred payment agreement (DPA) until the property is sold. 

However, there are certain conditions in which a property owned solely by the individual can be disregarded, and this includes when a family member is still living in the property as their main or only home (and therefore has ownership rights). This is known as ‘the relative’s property disregard’ and guidance on how LA are to apply the disregard is provided by DoH in the light of the Walford v Worcestershire County Council judicial review [2015] EWCA Cov 22.

Mr King’s age wasn’t confirmed and the disregard can be applied regardless of age, but the property must be disregarded where the relative meets the qualifying conditions (i.e. is aged 60 or over or is incapacitated) and has occupied the property since before the resident entered the care home.

Judge: What you are suggesting is a potential conflict of interest between Mr King and Mrs King in respect of ownership of property, in that the management of her affairs could be compromised. Yet the property and affairs of Mrs King do need to be administrated. The council have concerns as to Mr King being suitable to exercise the deputyship and the OPG has also raised concerns to this effect. I’m only dealing here with the interim and to decide the best interests of Mrs King before we get to a final hearing. There is a need for her Property and Affairs to be dealt with urgently and an assessment of her care fees. There were concerns regarding the previous conduct of Mr King and Dr H reported issues. Within the position statements there is evidence of a conflict of interests. Mr King has an occupational interest in the property. I must consider the proportionality of a deputy being appointed, as well as the potential delays in a professional being appointed when there is a family member willing, but the concerns are reiterated. On balance, for an interim position, it seems an interim deputy is appropriate notwithstanding the costs and delays that may cause. I have not made this decision based on findings of fact against Mr King. It’s a holding position until that determination can be made.

However, the quagmire didn’t end there.

Respondent for the Applicant: I’m just flagging the point on the current LPA, we don’t have a registration of the LPA made in favour of the grandson and daughter-in-law and it is unclear whether a deed of revocation has been registered for the LPA made in June 2021. Maybe Mr McGowan can assist.

The judge queried whether any current LPAs were suspended.

Mr McGowan (Solicitor for the OPG) discussed the process of removing an LPA in order to appoint a deputy and highlighted that there stands an objection (I assumed he meant from Mr King?). Mr McGowan went on to say that the OPG could not be sure that Mrs King had capacity to revoke the LPA for her son and said that the LPA is still live but needs to be suspended. 

(I hadn’t heard of an LPA being suspended but it does seem to be ‘a thing’. Please see this commentary for further clarity).

Judge: I just about understood that.  Thank you for explaining. I will now move on to the next recital that needs to be determined.

The judge then made reference to the recitals asking the parties if they were happy with (a) to (g) (which I was not privy to, so I found this difficult to follow). However, it appeared that Mr King was not in agreement with some of the points.

Counsel for the Respondent: Mr King disputes that he moved into the home after his mother was hospitalised and he has evidence that he occupied the property for 7 years. He has concerns regarding (f) to (g).

Solicitor for the OPG: We need to determine Mrs King’s capacity to object to the LPA in March 2022. We need an opinion on her capacity to make that objection.

Counsel for the Applicant: In relation to the purported attorneys, Mrs King’s grandson and daughter- in-law, we are all clear that she doesn’t want contact with them. The question is around the position of these two people, should they challenge the revocation. They have not been notified of these proceedings or asked whether they want to be actively involved to push for their LPA. I am proposing whether to make a provision for them to be notified and if they seek to join, to file a COP 5. 

A discussion ensued around gaining permission to serve notice by email (given these relatives live overseas) and the limits of information that would be shared with them when notifying them of the proceedings. Dates were discussed for a further hearing in June and it was agreed that Mrs King would be offered an opportunity to attend the next hearing in April if she so wishes.

The judge then went through the requirements for a further section 49 order and systematically went through the recitals for directions, commenting that it can be ‘painstaking and difficult’ to go through the order but it’s helpful to clarify the directions and decisions needed. 

Finally, the judge asked whether there was anything further from the representatives, which they declined, and he thanked those involved and brought the hearing to a close.

Reflections

Counsel described this situation as a hornet’s nest and indicated that the legal ground they were covering was a quagmire. These metaphors seem entirely fitting. Though, what didn’t come across enough for me, was any real impression of Mrs King, or her views. 

I was concerned that Mrs King had indicated that she wanted to play a part, yet had she been offered the opportunity to attend the hearing? The social worker was present within this hearing: could Mrs King have attended alongside her social worker to support her participation?

I accept the point that the judge made in relation to not wishing to visit with Mrs King until a further mental capacity assessment had been completed, though I envisage from her point of view, that she might be tired of repeated assessments covering the same boggy issues, only to find that parties have remained in conflict as to the conclusions made, thus leaving her in a place of uncertainty and confusion. Could it be that she simply wants to be involved and retain a feeling of dignity and control within these proceedings?

In my professional experience, I have often seen families feud when it comes to decisions around finances and property, and not infrequently, this can be the subject of safeguarding concerns. Under the Care Act (2014), the person must remain at the heart of safeguarding enquiries and their wellbeing and what they want as an outcome should be ascertained and upheld as much as possible throughout the process. 

The principles of the Care Act (2014) and the Mental Capacity Act (2005) are clear and congruent to one another, and both advocate for participation. To that end, I hope that Mrs King gets the opportunity to have her say, in a way that is meaningful to her. I also hope that these complicated matters are resolved soon, to enable her to feel settled, rather than being stuck in the middle of crossfire.

Of course, I am mindful that the purpose of the proceedings is certainly not to disempower Mrs King. On the contrary, the objective of the Court of Protection is to uphold the rights of vulnerable individuals who are assessed as lacking capacity to make decisions, promoting their autonomy and happiness, whilst balancing this with an acceptable level of risk. 

At times, the complexities of a situation are such that the court will need to take meticulous steps to work towards achieving the best and most appropriate outcome for the individual concerned. This often means wading through a treacherous waste ground before that solution is reached.

In terms of determining that elusive balance between empowerment and protection,  I pose a few reflective questions:

  • How will the mental capacity assessment be re-approached to ensure the conclusions withstand further challenge?
  • Has the relevant information been broken down in a way which is accessible to Mrs King, to support her in making the requisite decisions?
  • Has Mrs King been made aware of the concerns raised around her son managing her finances, and what are her views on him continuing to live in the property? 
  • If Mrs King has capacity around contact with her family who live abroad (and is declining to share information with them), would it even be viable for them to seek to be her POA?
  • Does she have an advocate to support her (or an IMCA if there are statutory investigations around financial abuse)? 
  • Are there any suggestions as to further ways in which she could regain capacity on specific areas?

I was left with many unanswered queries, which may have been addressed by the professionals involved already. This might have been clearer had I been provided with position statements, which I have pursued and not received, though I recognise the workload pressures (which create ever-increasing to do lists!).

Further thoughts

Overall, what struck me about this case, was the importance of providing a clear record of a person’s decisions and reasoning, at the time when their capacity isn’t questioned. In contrast to appointing a deputy through the court (after the person has lost capacity to make decisions on managing their financial affairs), appointing a Power of Attorney (whilst the person has capacity to do so) is a relatively simple process. The court is rarely involved, the documentation can be completed online by the person (or their representative) fairly quickly and with minimal expense (here https://www.gov.uk/power-of-attorney/make-lasting-power).

But if the evidence that supports the LPA application is less than comprehensive, then this lends itself to controversy if the person’s capacity to appoint an LPA is later challenged.

When supporting a person to apply for an LPA, it would be prudent to record the discussions held with the person, which clearly evidence their ability to understand, retain, weigh and communicate the following (as set down by Mr Justice Poole in the following judgment, paragraph 16):

The Public Guardian v RI & Ors [2022] EWCOP 22

I proceed on the basis that the relevant information in relation to the execution of an LPA is: 

a. The effect of the LPA. 

b. Who the attorneys are. 

c. The scope of the attorneys’ powers and that the MCA 2005 restricts the exercise of their powers. 

d. When the attorneys can exercise those powers, including the need for the LPA to be executed before it is effective. 

e. The scope of the assets the attorneys can deal with under the LPA. 

f. The power of the donor to revoke the LPA when he has capacity to do so. 

g. The pros and cons of executing the particular LPA and of not doing so.

And when considering capacity to execute an LPA, it is emphasised that the bar for capacity should not be set too high and that explanations should be given in a way that is appropriate, for example by use of simple language. There should be a clear breakdown as to the relevant information which is shared with the person, using communication aids and other support as necessary. 

An independent report from a suitably trained professional may help to ensure that a POA application is rigorous, with accurate recording that stands up to future scrutiny. This might help to avoid a legal quagmire such as the one Mrs King has found herself in, and to ensure that the most empowering decision is made.

Yet, there is the potential for unforeseen circumstances, such as concerns arising from the conduct of a registered LPA, which may mean that an investigation needs to be carried out by the OPG (possibly alongside the Local Authority) and further steps may be required, to safeguard the person’s financial security and well-being. 

As noted within this case, appointing a professional deputy in such circumstances is not a decision that is made lightly. It follows a conscientious decision-making process with careful regard to the merits and disadvantages, when weighing up the options. But ultimately, this may be the only feasible option where a higher level of scrutiny, neutrality and professional accountability are warranted. 

From my observation of this hearing, I feel reassured that Mrs King’s case will be dealt with diligently, when a final determination is made on the appointment of a deputyship.

Eleanor Tallon is an Independent Social Worker and Best Interests Assessor. She can be contacted via her website mcaprofessional.co.uk and found on LinkedIn. She also Tweets @Eleanor_Tallon

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

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

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

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

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

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

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

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

Open Justice

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

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

P’s presence at the hearing

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

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

The care package 

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

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

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

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

An incident

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

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

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

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

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

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

Going Forward

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

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

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

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

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

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

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

UPDATE: HEARING ON 16 MARCH 2023

By Celia Kitzinger

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

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

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

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

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

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

Injunction against a mother: ‘Biting the bullet’

By Avaia Williams, 8th March 2023

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

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

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

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

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

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

The Hearing

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

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

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

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

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

Counsel for DS

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

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

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

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

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

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

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

Solicitor for the ICB

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

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

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

Counsel  for the Local Authority

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

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

Counsel for the applicant – DS’s mother

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

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

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

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

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

Response from Counsel for DS

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

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

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

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

Judgment 

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

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

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

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

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

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

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

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

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

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

Reflections

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

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

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

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

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

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

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

By Ruby Reed-Berendt, 3rd March 2023

Editorial update: The woman in this case has more recently (in October 2023) been the applicant in a case before the Family Division of the High Court, concerning vaccination of her baby son, now 9-month-old, and in the care of the local authority under an interim care order. She asked the Court to make an injunction preventing the local authority from exercising its parental responsibility to arrange for the child to receive “routine childhood vaccinations” including diphtheria, tetanus, whooping cough, and polio. Her position was that it is not in the child’s best interests to be vaccinated and that to vaccinate him without her consent would violate her rights under Article 9 of the European Convention on Human Rights. She considers that it would be contrary to her Muslim faith for him to be vaccinated. The judge dismissed her application. You can read the judgment (about the vaccinations) here: Re WSP (A Child: Vaccination: religious objection) [2023] EWHC 2622 (Fam). At the moment there is no published judgment of the COP hearing described below, but it is possible that one will be published shortly (see the footnote to the Family Court judgment – which we have pursued with Mr Justice Moor).

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

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

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

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

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

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

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

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

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

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

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

Mr Westgate for SEM

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

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

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

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

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

Ms Kohn for the Trusts

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

She continued 

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

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

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

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

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

Her next submission was as follows: 

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

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

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

2. Did SEM have litigation capacity? 

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

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

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

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

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

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

Reflections

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

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

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

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

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

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