Standoff about the appropriate expert: A pragmatic judicial solution

By Celia Kitzinger, 21 February 2023

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

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

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

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

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

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

Background

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

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

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

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

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

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

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

Hearing on 16th February 2023 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This seemed to me a wholly pragmatic and sensible solution.

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

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

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

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

By Upeka de Silva, 15 February 2023

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

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

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

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

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

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

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

The Review Hearing (14th February 2023)

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

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

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

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

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

According to my notes: 

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

EJ’s Wishes and Feelings

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

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

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

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

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

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

Next steps

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

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

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

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

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

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

A challenging capacity assessment and a professional witness in court

By Josie Seydel and Claire Martin, 19 February 2023

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

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

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

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

The parties were: 

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

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

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

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

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

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

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

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

Dr K’s Evidence: Our perspectives

Josie

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

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

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

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

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

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

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

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

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

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

Claire

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

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

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

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

Extract 1

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

Judge: Executing what Mr Bradshaw?

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

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

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

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

MB: Different in a heightened state of anxiety?

Dr K: Yes. 

Extract 2

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

Dr K: That’s right

Extract 3

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

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

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

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

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

Dr K: I’m finding it hard to process…

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

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

MB: And when heightened at home?

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

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

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

Extract 4

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

Judge: You lost me somewhere there.

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

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

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

Extract 5

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

Returning shortly afterwards to the issue of alcohol:

Extract 6

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

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

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

Extract 7

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

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

Closing Submissions (Claire)

Mark Bradshaw (MB) – Counsel for the Local Authority

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

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

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

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

Sophie Allan – Counsel for P’s Mother

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

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

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

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

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

Reflections

Josie

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

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

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

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

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

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

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

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

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

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

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

Claire

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

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

What is ‘relevant information’ for specific decisions?

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

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

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

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

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

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

Practice effects and hoping to please? 

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

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

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

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

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

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

Fluctuating Mental Capacity? 

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

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

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

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

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

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

Judgment

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

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

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

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

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

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

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

Forced Marriage Protection Order

By Celia Kitzinger, 16 February 2023

The young man at the centre of this case (M) is 24 years old and has been diagnosed with moderate learning disability and “autistic tendencies”.

Back in August 2020, M’s mother told social workers that she had found a ‘suitor’ for her son in Pakistan, and that she planned to take him there to be married in a couple of months’ time.  

There were concerns that M might not have capacity to make his own decisions about sex and marriage, and the local authority’s subsequent assessments found that he didn’t.  

So, on 12th October 2020, at a closed court hearing  (that is, one that the mother wasn’t informed about in advance and didn’t attend) a judge in the Family Court made a Forced Marriage Protection Order as an interim measure.

A week later, at another hearing she was invited to attend, his mother confirmed that she was planning a marriage between her son and a woman in Pakistan: she was “very candid” and was “not hiding her intentions”.  As a result,  the Forced Marriage Protection Order was renewed and it’s been renewed six more times since then. (I believe that M’s passport was also confiscated at that time.) 

In November 2020, the local authority made the application to the Court of Protection to consider M’s capacity to marry and consent to sexual relations and to ask the court to make declarations under the Mental Capacity Act 2005. Things then stalled somewhat, in part due to the fact that M’s mother has not been able to obtain legal aid (despite great efforts made to help her) and partly due to her illness: she is very seriously ill with a brain tumour and has a life-expectancy of only 12 months.  She’s consistently said that she’s not forcing her son to marry, but that it’s his right to do so, and “If he does not get married, he will live alone for all his life”.

I watched a previous hearing in this case before a different judge (Lieven J) back in April 2021 – a hearing which the mother had been unable to attend as she was in hospital at the time. (His aunt was looking after M at her own home.) At that hearing, the judge authorised an independent expert report on M’s capacity and ordered that an Urdu interpreter should be in court for the next hearing.  

According to s. 27 Mental Capacity Act 2005, nobody can make a decision to marry on behalf of someone else. (Other so-called ‘excluded decisions’ include sex, divorce, and adoption)

The judge back in in April 2021 explained to M’s aunt and other family members present at that hearing that:  “normally with decisions for someone in this court, the first question is ‘do they have capacity?’ and the second question, if they don’t, is whether what’s being proposed is in their best interests. But with marriage it’s a bit different. If he doesn’t have capacity, he can’t enter the legal contract of marriage, so we don’t get to a best interests decision.” 

The hearing of 8th February 2023

By the time of this hearing before Mrs Justice Arbuthnot (COP 13682498) on 8th February 2023, the aunt was looking after both M and M’s mother.  All three attended the hearing remotely, M’s mother as a litigant in person from her bed.

It was a hybrid hearing and I was observing remotely.  Counsel for the represented parties (Zimran Samuel for the applicant local authority and Abida Huda for M via his litigation friend the Official Solicitor) were in a courtroom with the judge in the Royal Courts of Justice in London.  M’s mother, aunt and M himself were attending via video-link from a bedroom in the aunt’s home. The interpreter was attending via a different video-link:  she provided simultaneous interpretation of what was being said in the hearing via a telephone link with M’s mother.  There was serious noise interference on the line and the interpreter kept having to ask the mother to repeat herself, and the judge kept having to ask the interpreter to repeat herself. 

The local authority had made an application to the court for a declaration that M lacks capacity to make his own decisions about sex and marriage, based on the independent expert evidence now before the court. The local authority asked the judge to make a Forced Marriage Protection Order. These applications were supported by the Official Solicitor.

The only difference of opinion between the local authority and the Official Solicitor was about whether or not M’s passport should be returned.  The Official Solicitor was concerned that there might be some emergency situation back in Pakistan (e.g. M’s grandmother becoming ill) and M would need to travel at short notice for a valid reason – so there should be some provision for getting his passport back without having to make a court application to do so. An added complication was that the passport was due to expire in April, so there was an issue about whether the local authority would renew it for M, or whether it could be returned to M’s aunt so that she could do it.  The judge was very concerned to ensure that the passport was renewed and would be ready for travel if needed.

The expert assessment ordered by the court had found that “M does not have the capacity to make decisions about the conduct of these proceedings, capacity to consent to marriage and capacity to consent to sexual relations”.  It originally found that “all practicable steps have been taken to support M to make a decision”, but the Official Solicitor raised some additional questions, on the basis of which the expert concluded that it is “possible” that “further work over a period of 18-24 months on his communication and understanding of more complex language and concepts” might make a difference.  So, the plan is that the Forced Marriage Protection Order should be in place for two years (only), while this educational work is undertaken (by a Speech and Language Therapist).  At the end of that period M will be reassessed to determine litigation capacity as well as capacity to consent to marriage and sex.

The possibility that M might gain capacity if he was provided with support and education had been considered in the early hearing I observed in April 2021 but Lieven J had considered that “it may be an impossible mountain to climb”.  In this hearing, Arbuthnot J also seemed not to think it likely that M would be able to gain capacity: reflecting on the educational programme, she said: “Hopefully it will bring M to a point where he will no longer lack capacity in relation to those things. That is the hope. Who knows whether it will work out”.

As a litigant in person, M’s mother addressed the court – but noise interference, and the fact that she and the interpreter often talked over each other, made it difficult for me  to understand what was being said. The judge had to ask several times for clarifications.  Here (as best I could capture it) is part of their exchange: 

Judge: Thank you for joining. This matter has been going on for a year and a half and various Forced Marriage Protection Orders have been made on an interim basis, and I’m being asked to make a final order today, for two years from today. And I’m told that M has been seen by experts, and that he – what we say ‘lacks capacity to conduct proceedings’ but perhaps more relevantly to you, he can’t agree or consent to marriage. And nor can he care for himself. And what they plan on doing is having some work with him, to help him understand what might be involved in marriage or agreement to marriage, and so educational work would take place for 2 years. […] Would you agree with the doctors who say M doesn’t have capacity to consent to marriage?

Mother: Yes, I know my son is slow in learning but I want him to get married.  I can’t leave him like this. He’s my son.

Judge: But at the moment all the doctors say he can’t agree to marry. He doesn’t understand what it means really.

Mother:  When he was in college, he tried to make a girlfriend ((there was a lot more said here in Urdu but I wasn’t able to understand the translation))

((later))

Judge: She needs to understand, this order, the Forced Marriage Protection Order is not forever. It’s for 2 years whilst this work is being done with your son so he understands more what marriage will involve.  Does the mother understand she can’t force or encourage him to get married – for two years?

Mother: I agree with it.

Judge: This is a very serious order and if you force or encourage or tell M to get married in any ceremony at all, you could get into trouble. Do you understand that?

Mother: I will not ask him to get married then, for two years.

Judge: Good. And also she cannot remove, or allow or encourage anyone else to remove M from England and Wales for two years. Do you understand?

The mother will be sent an Urdu translation of the Forced Marriage Protection Order.

Reflections

According to the most recent statistics, over the course of 2021 the Forced Marriage Unit gave advice and support in 53 cases concerning marriage for someone with mental capacity concerns – more than half of them male, and about half involving marriages in Pakistan. 

Listening to the mother’s interaction with the judge, and understanding her reasons for wanting her son to marry (she wasn’t ‘forcing’ him, she was acting in his best interests by arranging for companionship and care), I was struck by the huge distance (ethical and cultural) between her position and the law.  

According to internationally-recognised forced marriage expert Mindy Mahill, the situation for this mother and son is not unusual:

[M]any parents want their children who have capacity issues to be looked after once they have passed away and they do not want the burden of them being looked after by their siblings. For this reason, they are taken ‘back home’ and married.  In many communities this is not looked upon as ‘wrong’ and is accepted that the family have done this in the best interests of their child. It can be said that some families do not even know that it is ‘forced marriage’ and a criminal offence. 

Forced Marriage Convictions: A view from the police

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 390 Court of Protection hearings since May 2020.  She tweets @KitzingerCelia

Is she detainable under s.3 Mental Health Act? Two Trusts disagree and a placement is in jeopardy

By Celia Kitzinger, 13 February 2023

The teenager at the centre of this case had a traumatic childhood, involving neglect and abuse. She has “suicidal ideation” and a history of harming herself and other people. 

Until recently (for the last year or so) she was living in a secure children’s home.  Counsel for the ICB (Integrated Health Board), David Lawson) said there were “difficulties in providing care and involvement in the criminal justice system”.  It also appears that she was restrained for lengthy periods – sometimes hours.  

On her eighteenth birthday (when she would have had to leave the children’s home), she was detained in hospital under s.2 Mental Health Act [MHA] 1983 but then self-discharged on 11 January 2023, after being assessed to have capacity to make this decision herself.  She left, only to be returned by the police the next day under s.136 [MHA] 1983.  Another assessment found that she did not meet the criteria for detention, following which she left the placement again, was picked up by the police, and spent the night in custody.  She was then re-admitted under s.2 MHA 1983 – and that detention expires on Monday 13 February 2023.  The hospital is very clear that she does not meet the criteria for detention under  s.3 MHA, and will not make an application for this.

The case is in the Court of Protection because there is reason to believe that she lacks capacity under the Mental Capacity Act 2005 to make her own decisions about where she lives and the care she receives.

When I logged on to the video-link to observe this hearing (COP 14036761, before Mrs Justice Theis, 10thFebruary 2023), I knew that a placement was urgently needed for after the weekend, and I expected to hear that it was all sorted.  I’d attended an earlier hearing in this case just last week and blogged about it here: “Approving discharge arrangements”), At that stage, just a few days ago, everyone was optimistic that there was a placement for her, and it was just a question of making final arrangements. It even seemed possible that the hearing would be vacated, if the parties could agree everything between themselves.

So I was surprised and saddened to find that everything had fallen apart in the last 24 hours.  

The hearing

The parties to this case are now:

  • the applicant local authority, represented by David Lawson, of Serjeants’ Inn Chambers
  • the young woman herself, represented via her litigation friend, the Official Solicitor (Benjamin Harrison, also of Serjeants’ Inn Chambers) 
  • the Trust of the hospital where she is currently detained (Avril Rushe of No. 5 Barristers Chambers), and which proposes to discharge her (“the discharging Trust”)
  • the receiving Trust which would be responsible for providing care when she moves to the new placement (represented by Olivia Kirkbride) (“the receiving Trust”)

The key difficulty that has arisen is with the provision of therapeutic care.  

The discharging Trust says that the criteria for detention under s. 3 MHA are not met and that continuing to detain the patient is causing her harm.  The receiving Trust says that those criteria are met and that discharging her into the community will cause harm. This difference of opinion only became clear in a meeting the day before the hearing.  This is, as counsel for the young woman at the centre of the case said, “very regrettable”, not least because she’s been given “mixed messages” about whether and when she will move out of the hospital.  The procedures followed (he said) are “not in line with NICE Guidance”.  If it had been clear last week that the receiving Trust was not going to provide therapy, then the hearing last week would have followed a very different course.  The judge has asked for a submission on how this situation has come about, and what can be done to make sure it doesn’t happen again.

The psychiatrist from the receiving Trust has reviewed the papers and reached the clear view that in her opinion this patient is detainable under s.3 MHA and that there’s a need of intensive therapeutic support that can’t be provided in the community.  The treatment needed, says the psychiatrist, can only be provided on an in-patient basis: what’s needed is a s.3 order and a placement with in-house support, i.e. transfer rather than discharge.  There are no services that the receiving Trust can or will offer in the community.  In their view, they cannot keep this young woman safe in the community.  

The discharging Trust had spent some time looking for other last-minute placements.  None were immediately available. Of those approached, some had already said no – concerned about the “aggression” (their word) and their ability to manage that.

The ICB was now asking for an order that, if discharged from detention under s.2 MHA 2005, the young woman will remain in the same placement (for the time being) detained under the Mental Capacity Act 2005.

The discharging Trust supported this position and said that since the receiving Trust was unable to provide care in the community, they would provide this care themselves via a community bespoke package (involving a specialist life-skills pathway and Dialectical Behavioural Therapy which, according to one doctor, she “absolutely requires”).  They need some time to put this package together, but hope to have it ready in a couple of weeks.

The receiving Trust reiterated that they cannot provide services that would meet this young woman’s needs (“so it would be an unsafe discharge”).  They have therefore declined the referral.  They are not accepting automatic transfer of this patient in six months’ time, but will assess, at that point, whether her needs can be safely met by their team.

The judge adjourned for two hours to allow the parties time to consult on, and rework, the draft Order they wanted her to approve.  I wasn’t able to rejoin in the afternoon, but I understand that the order remained in broadly the same form as was being fleshed out all morning.  The patient will remain in hospital upon the expiry of her s.2 detention on Monday 13th February and her ongoing detention will be authorised by the Court of Protection under the Mental Capacity Act 2005, while plans are put in place to secure therapy for her in the community.

The judge will hear the case again at 10.30am on 6th March 2023 (for half a day), when the court will consider any updated plan for a return to the community.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project.  She has personally observed more than 390 hearings since 1st May 2020.  She tweets @KitzingerCelia

Validity of Lasting Power of Attorney: Observing my first Court of Protection hearing

By Libby Crombie, 10th February 2023

On Tuesday 7 February 2023, finding some unexpected free time on my hands, I made a last-minute decision to observe my first hearing in the Court of Protection (COP 13890632, before DJ Gilmore at Coventry Family Court, via MS Teams).

I am currently studying the Barrister Training Course and following attendance at an education weekend in January this year, I was directed to the Open Justice Court of Protection Project. I am interested in practising in family law. Therefore, being aware both practice areas complement each other, I wished to expose myself to the Court of Protection. This morning, I decided to go onto twitter and see if there was anything I could observe today. Luckily for me, there was! 

I was a little apprehensive to join as I didn’t know too much about the Project beforehand. What I was most nervous about was the process of joining the hearing itself. I was unsure whether I was emailing the right place and whether I was even allowed to join. However, a lesson I’ve taken away is that as long as you follow the wonderful instructions that the Project posts, you are doing the right thing and you will be welcomed into the hearing with open arms. 

Prior to the hearing I was forwarded the Transparency Order and the Position Statement from the Office of the Public Guardian (the applicant in this case). Although I wasn’t sure if there had been a mix up, it turns out these documents were meant to be sent to me. I felt quite special! 

Top tip for those observing a hearing for the first time – be prepared to occasionally respond to questions from court staff and the judge. It’s nothing scary. They are just administrative style questions to ensure you can see and hear everyone clearly and have access to the required documents. I wrongly assumed beforehand that I would sit in the corner with my camera and microphone off for the whole hearing. Being involved in some way however did make me feel like I was really a part of the hearing, and that my attendance was valued in some way.

There wasn’t an opening summary of the case, but the listing stated that the issue before the court was: “Directions required for OPG’s applications to revoke LPAs for P&A and H&W and appoint a Panel Deputy to manage the property and affairs of [P]”. (To unpack this: OPG = Office of Public Guardian; LPA = Lasting Power of Attorney; P&A = Property and Affairs; H&W = Health and Welfare.) 

The hearing began in the absence of the respondents (three family members of the person at the centre of the case, who purportedly held the roles of Attorney or replacement attorney) –  because, it turned out, they had not been served with the directions order. 

The court was immediately faced with a dilemma – should the hearing be adjourned or should the hearing continue? DJ Gilmore concluded that she was satisfied she could make directions in this case without prejudicing the respondents, as the order sought was essentially an order for evidence to be served. Considering that an adjournment would create unnecessary delay to proceedings, DJ Gilmore continued the hearing. 

The hearing progressed by DJ Gilmore going through the draft order filed by the OPG with him (and with the interim deputy who was also in attendance), making amendments where necessary.

The key issues in this case are two-fold:

  1. Whether the Lasting Powers of Attorney are valid?
  2. If not, who should be the deputy for finance and property?

The question as to whether the LPAs are valid arises from a concern as to whether the donor (P) had capacity to execute them within ss.2 and 3 of the Mental Capacity Act 2005. 

The protected party (P) is a man in his 30s who lives in a supported living residence. In November 2020 he made LPAs appointing his parents to manage his financial affairs and his health and welfare (with his brother and uncle as replacement attorneys). The local authority raised concerns about his capacity to make these LPAs. (For information about what a person needs to be able to understand, retain and weigh in order to make an LPA: see §16, The Public Guardian v RI & Ors [2022] EWCOP 22.

The case had already been heard previously before another judge who had suspended the LPAs and appointed an interim deputy. A Special Visitor had also been appointed (a medical practitioner with expertise in assessing the retrospective capacity of people with neurodevelopmental challenges). In this case the Special Visitor had concluded.:

  • P has a diagnosis of ‘mild’ to ‘moderate’ intellectual (learning) disability;
  • P lacks the capacity to manage his [property and financial affairs], deal with the concerns raised, revoke his LPA or make a new LPA; and
  • P did not have the capacity on 15 November 2022 to execute the LPA in question.

The validity of the LPA is the primary issue to firstly be determined at a final hearing, which was set for a few months’ time. 

The judge directed that the family should be asked: “Do they contend that P had capacity within the meaning of ss. 1 and 2 of the Mental Capacity Act to execute the LPA on 15 November 2020. If so, they should set out their evidence, supported where possible by contemporaneous documentary evidence”.  If the judge decides (in accordance with the professional advice above) that P did not have capacity to make an LPA, and that he lacks capacity now to manage his own affairs, then it will be necessary to appoint a deputy. That could be either a family member or a professional deputy (e.g. the interim deputy appointed by the court).   DJ Gilmore also directed that P’s participation in these proceedings should be facilitated “to the extent that he wishes to participate”.

Mr Thomas Francis of 4-5 Gray’s Inn Square Chambers, counsel for the OPG, raised concerns about financial mismanagement by family members, and asked for this to also be considered at the final hearing, when considering who should be appointed as deputy. 

DJ Gilmore commented that the draft order, which required the respondents to respond to allegations of financial mismanagement did not make it very clear exactly what those allegations were, and asked the OPG to set them out more clearly. It seems there was a large outstanding debt, and family members were, the deputy said, not responding to requests for clarification or explanation about P’s various bank accounts. There was also (said counsel for the OPG) a concern about a reduction in the number of days per week that P was attending day activities, with a suggestions that this is to reduce financial expenditure – although it was agreed that P has capacity to make his own decisions about activities, and he’s said he doesn’t wish to attend 3 days a week. The judge reworked the order to read: “The allegation is that it’s alleged that for reasons of finance, you decided that P should attend the day activities for two days a week instead of three days a week. Please address whether this is correct. If not, why not? If it is correct, please explain your reasons”. 

The final hearing should be in person on Thursday 13th April 2023, starting at 10:30am. There was a discussion about whether it should be in person or remote, and the challenges of online hearings were mentioned with the judge concluding that it would be “prudent to list it in person – to avoid connectivity problems”. I personally was happy to see the court decide to have the hearing in person – as a bar course student, in-person advocacy is what it’s all about! However, the convenience of holding online hearings is also something that shouldn’t be lost.

Having the opportunity to attend this hearing was invaluable. This has given me confidence to join more in the future, observing other areas of Court of Protection work. I was unaware until recently that Court of Protection hearings could be observed by the public. This is an area of the law that we are unlikely to observe during a mini-pupillage, so the work done by the Open Justice Court of Protection Project is extremely beneficial for those with an interest in this practice area. It’s impossible to know whether you truly like something until you see it in practice. Today’s hearing really helped to confirm my interest in the Court of Protection. 

Libby Crombie is a Durham University LLB graduate and current Bar Practice Course Student at the University of Law (Liverpool),  Gray’s Inn Uthwatt Bar Course Scholar. 

New Guidance on Closed Hearings from the Vice President of the Court of Protection

By Celia Kitzinger, 8th February 2023

My first experience of a case involving closed hearings was as an observer of Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44. It shook my faith in the justice system.

The protected party (A) was in residential care, against her own wishes and those of her mother. While A’s mother was making applications to court to get her daughter home, closed hearings were being held, in secret, over the course of two years. The mother’s arguments to get her daughter home were doomed from the outset because hugely salient information from the closed hearings was withheld from her.  And observers of the public hearings that ran alongside the closed hearings published false information as a result of the court’s secrecy.

We wrote about our experience of the hearings across several blogs (e.g. Statement from the Open Justice Court of Protection Project; Reflections on open justice and transparency) and I made a formal submission to the Court of Protection Rules Committee about the use of closed hearings.

Now the Vice President, Mr Justice Hayden, has published some Guidance, which goes some way towards ensuring that what happened in Re A will never happen again.

 It makes absolutely clear that closed hearings (and closed material hearings) are a matter of last resort, and that the expectation is that any closed hearing should be conducted before the most senior (Tier 3) judges – which HHJ Moir, the judge for the closed hearings in Re A, was not.

The Guidance states that it is “difficult, if not impossible” to contemplate circumstances where running closed and open hearings in parallel will be compatible with human rights principles. I hope this rules out in future anything similar to the charade of the open hearings in Re A.  

The Guidance emphasises the importance of keeping under review whether it’s possible to disclose the fact and outcome of the closed hearing during the course of ongoing proceedings – to the excluded party and to observers.  And it requires publication of a reasoned judgment at the earliest possible opportunity to explain the rationale for a closed hearing and the substantive decision reached at that hearing. (That has yet to happen in Re A)1.

Although I welcome the Vice President’s Guidance, I still have some concerns. My reading of the Guidance is that “active deception” from the court when answering questions from the excluded party and court observers is permitted as “a last resort”.  I find that quite shocking. There is no mention of monitoring of closed proceedings, so we will never know how many there are – though I will now try a Freedom of Information request. Nor are observers permitted in closed hearings, despite the fact that the observers’ role in ‘guarding against improbity’ is arguably more important in closed hearings than in ordinary hearings attended by all parties.

Overall, though, the Guidance does address some of the key concerns I have about what happened in Re A, and I welcome, in particular, the sections called “The Starting Point” and “The Governing Principle” which lay out the key principle of open justice as fundamental to a modern democratic society, and seek to limit and constrain any derogation from it.

The Guidance can be read in full here.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has personally observed more than 390 Court of Protection hearings since 1 May 2000. She tweets @KitzingerCelia

1 I first requested publication of the relevant judgment from HHJ Moir (the closed hearing at which she authorised covert medication for A, and the concealment of this from A’s mother) on 21st September 2022 and again on 12th November 2022: on 14th November 2022,  Poole J directed it should be published. I chased it on 31 January 2023.  It is still not published, although I am told it is on its way.

Approving discharge arrangements and deprivation of liberty

By Celia Kitzinger, 8th February 2023

This is yet another case reflecting the problems caused to individuals due to the national shortage of appropriate accommodation for young people with complex needs. 

I observed the hearing (COP 14036761) on 3rd February 2023 before Mrs Justice Theis sitting (remotely) in the Royal Courts of Justice.

A teenager is still in hospital (under s. 2 of the Mental Health Act 1983). She’s been ready for discharge for some time – but there’s nowhere for her to go.

She  experienced a traumatic childhood, including neglect and (alleged) sexual abuse. She’s been violent and abusive to staff to the extent that she was moved to seclusion (“like a prison”, she says) in mid-January  – which is where her solicitor spoke to her, through a viewing window.  She said she “does not want support, because she wants to be dead”.  

She expresses “suicidal ideation” and has self-harmed (attempts to ligature, head-banging). There’s no clear diagnosis – various possibilities were mentioned including “borderline personality disorder, emotionally unstable personality disorder, complex post traumatic stress disorder, reactive attachment disorder of childhood and learning disability”.  There was also a (contested) opinion that she may have “autism spectrum disorder”. Many of the current issues with her behaviour may be linked with her ongoing presence of a busy and noisy hospital ward, where her sensory needs cannot be properly addressed.

In the opening summary, counsel for the Integrated Care Board [ICB] (David Lawson of Serjeants’ Inn Chambers) described the difficulties faced by this young woman, and the work done to try to support her – with the community trust, the police, and via implementation of “positive risk taking”.  They “can’t find secure accommodation” and are planning discharge into the community – which I understand has been tried before (recently) and was not successful.  She currently receives 5:1 support. He briefly mentioned issues relating to physical restraint in public “and how that would look to the public and how feasible it is and whether people would intervene”. The ICB has made an application to scrutinise the discharge plans being developed (they hope for discharge on 13th February 2023)  and to approve the deprivation of liberty that will arise when she is discharged.

Counsel for the protected party via the Official Solicitor (Benjamin Harrison of Serjeants’ Inn Chambers) outlined the kind of evidence they would hope to see about where she moves next: that it is adapted appropriately (e.g. the lighting) to meet her sensory needs; that community mental health support is available; and that her support needs are organised proportionately – including therapeutic support, and crisis planning. Her counsel is also concerned to ensure there are activities she’ll be able to engage in:  “She is very keen to be outdoors… she really wants to be out and about, sporty and energetic activities… gym membership”; she’s said “I love animals” and would like to volunteer on a farm. According to her counsel, “a robust and functional MDT [Multi Disciplinary Team] will be key to securing [her] safe discharge from hospital”.  The concern is that she should not remain in an inappropriate acute inpatient setting for any longer than is absolutely necessary, but nor should her discharge plans be rushed to the extent that a return to the community (or any other setting) is set up to fail – with potentially fatal consequences.

The case is likely to be back in court on Friday 10th February 2023, unless the parties (which also include the Local Authority and Mental Health Trust) reach agreement on all the plans before then – in which case they’ll lodge a consent order asking the judge to approve them, and to vacate the hearing.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project.  She has observed more than 390 Court of Protection hearings since May 2000. She tweets @KitzingerCelia

A committal hearing to send P’s mother to prison – and the challenges of an in-person hearing

By Claire Martin, 8 February 2023 

Editorial update: After the decision in this case (a suspended custodial sentence of 28 days), Mrs Lioubov Macpherson made an unsuccessful appeal to the Court of Appeal. The Court of Appeal judgment is here. Lioubov Macpherson v Sunderland City Council {2023] EWCA Civ 574 (4 May 2023).

The hearing I observed, COP 13258625, in person at Newcastle County Court, was about whether Mrs Lioubov Macpherson, who is the mother of a protected party in Court of Protection hearings, should receive a prison sentence for breaching court orders.  

She has been ordered not to post videos and images of her daughter (FP) on social media and to take down material she’s already posted.  She had refused to comply.

Lioubov Macpherson believes that her daughter is being mistreated at her current placement – in particular that one of the medications her daughter is being given causes the psychosis it is supposed to treat. Her social media posts are designed to demonstrate the nature of her concerns to members of the public.  She wants, she says, “ to show the distress that my daughter suffers daily, because so-called professionals keep my daughter in deliberately induced illnesses to suit the agenda that she lacks mental capacity“.  She refers to her daughter’s treatment as “torture” (all quoted in the judgment, Sunderland City Council v Lioubov Macpherson  [2023] EWCOP 3).  

Some of the material she has posted shows her daughter’s face (usually pixelated) but often it’s just her voice – because the contact between them is now limited to phone conversations and it’s those that she records. Members of staff at the placement are sometimes audible too, because they are monitoring phone conversations to prevent certain topics being discussed between mother and daughter.  She had also named her daughter’s care home in some of her posts.

At an earlier hearing, Mr Justice Poole said that it was ”demeaning to FP and a breach of her right to privacy to film her and then post recordings for others to see”.  She had been ordered to remove video and audio recordings from You Tube and any other social media platform, whether posted privately or publicly, by noon on 30 June 2022.  She had not done so, and since a ‘penal notice’ had been attached to the order, she was now in court.

Background to the case

Prior to the hearing I observed, there was a hearing on 28-30 June 2022, before Mr Justice Poole. It concerned the following (from the judgment):

“The challenging issue for the court to determine in this case is whether it is in the best interests of a vulnerable 36 year old woman, FP, …… to be deprived of direct contact with her mother, [Lioubov Macpherson], with whom she wants to have contact, for a period of at least five months. [Lioubov Macpherson’s] behaviour forms the basis of the Local Authority’s application to prohibit contact with her daughter for a long interim period, and her behaviour as an unrepresented party made it very difficult to manage the hearing of the application before this court. [Lioubov Macpherson] showed no respect for the authority of the court and no appreciation of the need to ensure a fair hearing for all concerned.” (§1, SCC v FP & Ors [2022] EWCOP 30)

The outcome of that hearing was that Luba (the shortened name she goes by which she tells us she is content for us to use in blogs) and her daughter were restricted to one half-hour supervised, telephone call a fortnight, for a period of five months. Luba was restricted in terms of the content of conversation with FP. As mentioned above, there was also a court order for Luba not to video- or audio-record FP (or any staff) or publish any recordings on social media and to remove those she’d already posted. This judgment was to be reviewed in December 2022, and was adjourned until the hearing we observed on 16th January 2023. 

I read Mr Justice Poole’s judgment prior to attending court. HHJ Moir’s judgment has not been published – and it was on this judgment that many of Poole J’s findings relied. So I don’t know how HHJ Moir reached her judgment. I believe that judgment may be published in due course (as requested during the course of the hearing by Celia Kitzinger).

The full background to this case is available in Mr Justice Poole’s earlier judgment of 30 June 2022, SCC v FP and others [2022] EWCOP 30.  It relies on HHJ Moir’s judgment which made various findings against Luba which she continues to dispute (e.g. that she has an “enmeshed relationship” with her daughter, that their interaction displays “high expressed emotion” and that “the dynamics of the relationship” have a negative effect on FP leading to “increased agitation and a decline in her mental health” (§3 Poole J quoting from HHJ Moir’s judgment).  This is why the court has restricted Luba’s contact with FP to phone conversations only, and care staff are supposed to terminate contact when she talks to her daughter about the harm that she believes her daughter is suffering at the hands of those charged with caring for her.  

According to the judge, who watched the recordings that Luba posted on social media:

“The published recordings disclose conduct that is harmful to FP. The Defendant manipulates conversations with her vulnerable daughter and feeds her the line that she is being harmed by those caring for her and by her medication. Since FP has paranoid schizophrenia and believes she is being persecuted, the line fed to her by the Defendant is particularly dangerous to the mental health of her daughter.” (§54, Sunderland City Council v. Lioubov Macpherson [2023] EWCOP 3)

A journalist’s account of the case is also published here (“Sunderland mum spared jail over ‘bizarre’ claims about daughter’s care”).

I knew that Luba would be in court and that she was now represented by Dr Oliver Lewis.  (She’d had legal aid representation from a solicitor at the previous committal hearing, but she’d represented herself at all or most of the other hearings in the case.)

FP (Luba’s daughter) was represented, via her Litigation Friend the Official Solicitor, by Joseph O’Brien KC. Sunderland City Council was represented by Simon Garlick. Luba’s husband, ST, was also a respondent but was not at the hearing. 

Arriving at Court and Finding the Right Courtroom

The hearing was listed for 2pm. I attended the hearing with Celia and on her advice we arrived at Newcastle County Court at 1pm. This was to allow plenty of time for the security process. I didn’t know what to expect. In the foyer were two airport-style body scanners and a conveyor belt with trays for belongings. Everything had to be put into those trays before walking through the body scanners. 

My bag had to be emptied and items searched. I had got items in my bag that had to be taken away until after the hearing – a brush with a mirror (glass being the offending object) and a pair of tweezers. When I walked through the scanner, it beeped – I am still not sure why. A security official used a scanning wand to check I was safe to enter. Then I could take my bag and check-in my offending items by signing them in and getting a ticket to collect them later. This all took around 20 minutes – if the queue had been longer this could have taken a considerable amount of time. I made a mental note to always leave lots of time in future. 

We hadn’t even found the correct court room yet. I assumed that would be a straightforward matter. Once through security, we spotted several rows of A4 notices on a board on the wall.  They had the different courtroom numbers and cases being heard, with judges’ names and hearing numbers. Mr Justice Poole was not listed. What to do? A security guard suggested going to the first floor where courts and a reception desk were located. ‘Ask there’ he said. 

The reception desk on the first floor was empty. The listing boards on the first floor also didn’t include the hearing we were looking for. There were people walking about – some looked as if they were trying to locate their court room (like us!), others looked like lawyers (dressed in smart dark suits) and were walking considerably more quickly and with purpose. There was a conspicuous absence of people whose job it was to ensure everyone knew where they were going. Perhaps these jobs don’t exist – or perhaps it was lunchbreak? We managed to intercept one person, a lawyer I think, who said she was really not sure but pointed us to a waiting area. 

The waiting area also had boards with listings, but ours wasn’t on these either. Celia attempted to identify whether the lawyers from the hearing we hoped to observe were in any of the six small consulting rooms (with small windows in them) leading off the waiting area, but was unsuccessful.  Celia went off on a hunt and returned with a very helpful court official who explained that, for some unknown reason, the hearing we were observing had not been listed anywhere in the building. We were in the right place though and the courtroom we needed was adjacent to the waiting area. 

At that point, we saw Joseph O’Brien, counsel for FP, arrive. Then we knew we were definitely in the right place. 

The court official gave us the revised Transparency Order (though she first had to rip off part of the back page as it had accidently been printed with names of the people whose names we weren’t allowed to report).  This was very helpful: we often don’t get Transparency Orders at all, despite requesting them (and nothing much has changed on that front in the last couple of years, see: “Transparency Orders”). The language is frightening, perhaps necessarily so. It tells us that if we ‘disobey’ the ‘injunction’ forbidding us from reporting certain details we ‘may be found guilty of contempt of court and may be sent to prison, fined or have [our] assets seized’. It also says we have the right to ask to have the order ‘varied or discharged’. 

In fact, that is what the experienced journalist, Brian Farmer, had done in this case. He had written to the court saying that, in his view, the Practice Direction for committal hearings had not been complied with, either at the previous committal hearing or at this one.  On both occasions, he said, the name of the person who might be sent to prison (the defendant, in this case Luba) should have been included in the public listing.

The Open Justice COP Project has reproduced Brian Farmer’s submission, along with an account of what led up to it and an earlier letter from both Brian Farmer and Celia Kitzinger expressing concern about the listing of Luba’s  8th December 2022 committal hearing (See: “Committal hearings and open justice in the Court of Protection”)

Poole J accepts that Luba‘s full name should have appeared in the list for the hearing of 8th December 2022 (§33 Sunderland City Council v Macpherson [2023] EWCOP 3 (20 January 2023)). He had, at that point, made no order that it should be redacted.  However, he subsequently did make an order restricting publication of Mrs Macpherson’s name, and extending the Transparency Order to cover the committal hearing – and so this hearing, on 16 January 2023 was listed without her name – which (as Brian Farmer points out) doesn’t seem compliant with the Practice Direction. 

In committal hearings, the name of the defendant should normally be publicly available and there should be no reporting restriction preventing journalists or members of the public from publishing the defendant’s name.  In the rare and “exceptional” circumstances where the court decides to make an exception and withhold the name of the defendant, there is a procedure to be followed (which includes notifying the press) which had not been followed here.

The court official asked me to sign a form that confirmed that I had read the Transparency Order. The form asked for an address which surprised and somewhat alarmed me. In remote hearings we are not asked for our addresses – but of course the court already has our email address (because that’s how we request the link to observe).  It’s not clear to me why the court needs the address of an observer: I put an address at which I can be contacted, but not my home address. 

The Hearing 

It struck me, having read the previous judgment, that there was an inevitability to the fact of this committal hearing taking place.   The judgment clearly outlines Luba’s strongly held beliefs, opposing FP’s diagnosis of paranoid schizophrenia and challenging the medication she is on. Knowing about Luba’s sustained attempts to garner public support for her cause via social media, when that injunction was put in place, it seemed predictable that she would not desist. Therefore, it seems axiomatic – given the injunction – that this application (to commit Luba to prison) was something that Sunderland City Council would have to pursue. So, here we were. 

The judge entered via a separate door to the rest of us, a door at the back of the courtroom, behind the ‘bench’ (an elevated seat). The court clerk sat in front and below him on the same level as the rest of us. This physical hierarchy of the court works to establish the judge as a higher authority. We all have to look up to the judge’s chair. 

Having said that, I thought that Mr Justice Poole, whilst commanding authority, conveyed a sense of approachability and reasonableness. He had certainly read all documents and had a grasp of the matters at hand, perhaps enabling him to convey an atmosphere of calm and containment. 

He explained to the court that the hearing scheduled for 8 December 2022 had been adjourned to consider sentencing at this hearing. He said: “The defendant has admitted twelve breaches of the injunctive orders” (this was disputed by Luba).

Poole J then detailed the considerable complexities to be addressed, such as whether Luba had admitted to the breaches and how to proceed if she now wished to withdraw that (alleged) admission; the fact that Sunderland City Council confirmed it did not serve the injunction papers to Luba personally (as required)  and, therefore, whether an adjournment should occur; the content of the Transparency Order and whether Luba’s name had to remain secret; and whether or not an appeal was still possible, given the history of the case. 

After hearing from Simon Garlick (counsel for the Local Authority) Poole J. said that he’d already decided to ‘vary the order in order to permit the sharing of [Luba’s name]’.  Having received the submission from Brian Farmer, all counsel were agreed that there was no reason to depart from the Practice Direction in that respect. Luba’s husband can also be named, as can Sunderland City Council. This meant that we can name Luba in our blogs and link to the previous judgement, without fear that we might be in breach of the order by ‘indirectly’ identifying FP. 

Simon Garlick then went on to address which of the video-recordings Luba had posted on Facebook and YouTube were being pursued by the local authority as breaches of the court injunction, and thus contempt of court. He said the videos were still accessible on the internet. 

Throughout this initial address, Luba sat very still and quietly. This was in contrast to how the judgment described her demeanour at the hearing in June 2022, at which Luba was unrepresented. It must have felt very difficult for her to feel heard and able to convey the importance of her views without legal representation. I wondered whether having representation at this hearing, in the form of a very experienced human rights barrister, was helpful for her to feel that someone had her best interests as a priority. Maybe this enabled her to listen to proceedings. It did lead me to think that, no matter how articulate and in possession of solid arguments we might think ourselves, the services of a barrister are likely to be invaluable, should we find ourselves in court. 

Luba’s case

The next part of the hearing entailed Oliver Lewis, counsel for Luba, presenting her case. He informed the judge that ‘there has been some progress’. 

“I have persuaded my client to remove the Facebook page videos that name the care home.  That is progress. I’m in the middle of discussions with my client, trying to persuade her to see that if the court finds that these do amount to contempt, then the nature of the possible sanctions include a prison sentence and she could face immediate imprisonment. I’m desperately trying to avoid that. I’ve explained it would be much easier for me to persuade the court not to send her to prison if she were able somehow to remove the videos. My Lord, we’re not there yet. My client’s position is that she sees herself (along with her husband) as the only person who is looking out for [FP], who is being tortured.  She believes her daughter is being tortured and that the court has just not seen it. She disagrees with many of the orders from the court and sees it as her role to keep fighting for justice. So my client and I have discussed what kind of renegotiated outcome might be possible for the court to agree – such as an independent person, a psychiatrist or other expert to conduct a medication review. Because one of her chief complaints is that P is being tortured because she’s on the wrong medication.  I have suggested that as something that other parties might be able to agree with. I am in the middle of that discussion with my client. I have tried to explain that it would be a better outcome for my client that she remains free and not in prison and in contact with [FP]. Her position is that her life has already been ruined, so has [FP’s] and her husband’s, so what does it matter if she gets sent to prison.” 

A couple of times, Oliver Lewis turned to check things with Luba and at one point she said ‘… if I breached, I’ve got very good reason’. We learned that, in the previous two hours, Luba had removed the Facebook material naming the care home – but many other posts and video-recordings remained, including some which had recordings of care staff. Oliver Lewis requested a short adjournment to further discuss the issues with his client. I could see that he was working very hard to try to enable the court to find a reason not to commit Luba to prison. 

When we resumed, Oliver Lewis raised a number of other points on behalf of his client including:

  • a possible Court of Appeal application (but it transpired that permission to appeal had already been refused) 
  • the fact that FP’s capacity to consent to being recorded (and to those recordings being made publicly available) has never been assessed (her mother says she has capacity and does consent and therefore the court has no jurisdiction to prevent this), and 
  • that Luba had not, in fact, admitted the breaches (as stated in the published judgment) and that any apparent admissions were made by her solicitor without instruction (this claim seems later to have been withdrawn). 

Keeping the focus on the protected party [FP] – even in this committal case –  the judge expressed his own concern that “In this case I do have evidence that [FP] is aware that her mother may face prison and I can take into account the impact on her of knowing, if it transpired, that her mother had gone to prison.”

There was a break of around 30 minutes, until 4pm. The judge had previously said he had to leave the court by 4.30, so this was cutting things very fine. I have often witnessed judges trying their best to come to a resolution during a hearing, and, when pressed for time, over-running to achieve this goal. So many hearings are scheduled close to each other in time, and the whole system seems perpetually pressed for time and court space.

When the hearing resumed, Oliver Lewis said he was pleased to report that “All the videos on Facebook have been unpublished and are no longer available“,  He also said “I have explained to Mrs Macpherson what an ‘admission’ means in law, and she’s instructed me that she has signed saying that she admits to uploading videos. … In our skeleton argument … we are not seeking to withdraw the admissions on the 8th December but to explain why she breached them.”

There was further discussion about what Oliver Lewis was seeking on behalf of Luba. He was very clear, notwithstanding other issues (such as seeking appeal), that his “job today is to ensure my client stays out of prison“. If the court were to decide on prison, he would be seeking an adjournment of the case. Oliver Lewis argued that ‘prison is too much for this breach’. 

“My main point is that, now there’s no ongoing breach and we’ve fixed the problem – albeit I acknowledge there was a breach until today – this case has been fraught with emotions and the love for FP by her mother and vice versa is very important for both of them and the main point that the court in my submission should focus on is FP’s wishes and feelings. Although a committal decision is not a best interests decision, this is the Court of Protection, and should make a decision that is in line with her best interests… Sending her mother to prison would be contrary to FP’s wishes and feelings and cause a drastic deterioration in her mental health.” (Counsel for Luba)

Oliver Lewis cited the case of Theresa Kirk, who was sentenced to prison for contempt of court. In that case, Theresa Kirk had moved the protected party (her brother, MM) out of the country to prevent him being placed – in accordance with the court’s determination of his best interests – in a care home in England. She firmly believed she was protecting him. Her permission to appeal the committal was successful. Lord Justice McFarlane, in his judgement, said: 

“I am bound to record that I find the circumstances of this case to be of significant concern. The Court of Protection has sentenced a 71-year-old lady to prison in circumstances where the lady concerned is said to be of previous good character and where, as the judge acknowledged, she has been acting on the basis of deeply held, sincere beliefs as to the best interests of MM for whose welfare she is, as the judge found, genuinely concerned. The ultimate purpose of her incarceration is to achieve the removal of an 81-year-old gentleman, who has suffered from dementia for a number of years, from a care home in one country to a care home in Devon which is near his longstanding home and within a community where he is well known. Those stark facts, to my mind, plainly raise the question of whether the COP was justified, on the basis that it was in MM’s best interests to do so, in making an order which placed Mrs Kirk in jeopardy of a prison sentence unless she complied with it.” (§27 Devon County Council v. Kirk [2016] EWCA Civ 1221)

I can see the similarities between the two cases. In Luba’s case, though, the ‘ultimate purpose of her incarceration’ was not really clear to me, especially in relation to any material impact on FP’s welfare. 

Other committal hearings that we could find, mostly involve actions in contempt of court that are arguably worse than Luba’s. For example:

My sense, at this point, was that no one, really, wanted to impose a prison sentence on Luba. However, the injunction not to make and post videos of FB had been (seemingly predictably) breached. The court was in something of a Catch-22. It had used its injunctive powers to try to prevent what it deemed were harmful videos of FP (and her carers) being made and shared on social media, I assume in the hope that this would be a deterrent for Luba. 

Yet, as seems starkly clear from previous hearing and as Luba herself stated in this hearing, she believes she has ‘good reason’ to make and share these videos. This presents the court with a dilemma – to send her to prison (which would mean no contact with FP at all, likely a very distressing scenario for both mother and daughter) or not to send her to prison (thus rendering the injunctive orders toothless). (A fine was briefly considered and led to a short adjournment, but turned out not to be practicable.) I thought that Sunderland City Council had backed itself into a corner.

Counsel for Luba said that sending Luba to prison would be ‘futile with no useful consequence apart from signalling the court’s displeasure’. Further, Luba cares for her 71-year-old husband and there would be no care available were she imprisoned. He said that Luba’s own view was that her life has been ruined already and that sentencing her to a term of imprisonment would serve no useful purpose whatsoever, especially when she’s agreed to remove videos and taken sensible suggestions as to how case might progress. He continued:

“In my view, justice would not be served by sending my client to prison. It would be a wrong decision and signal to families of adult children who have disabilities that – of course everyone must obey a court order – but it would have a chilling effect on campaign groups and would mean that court is not taking into account the trauma that bringing up a disabled child has on Mrs Macpherson and her partner. A suspended sentence would be most appropriate. Contact would continue and there would be no effect on [FP’s] mental health.”

Joseph O’Brien (for FP via the Official Solicitor) said in court: “I don’t want a deterioration in her [FP’s] mental health. A young girl who loves her mother. I would not wish her mother to go to prison for something she understands her mother is doing for her.”

In the confines of the court, with her counsel imploring her to remove the offending videos from social media, Luba complied. I began to think, though, that she might start to feel differently when back at home, with restricted contact with her daughter, and still firmly of the belief that the care and treatment she is receiving is harming her. 

Poole J expressed this concern later in the hearing: “My concern is that if a sentence is imposed but suspended, then if your client has not reflected on what she’s done, she needs to understand what the consequence would be“.

Would justice ever be served by sending Luba to prison for posting these videos? I have not seen the videos. In the hearing we were told that Luba would engage FP in conversation about her own (Luba’s) worries about her care, in a leading manner, which would then distress FP. For example, Poole J described one video of a telephone call between them in which Luba says to FP ‘I think you are in big, big danger, something is going on’. FP replies ‘I need a doctor’ and Luba says ‘Good girl’, to which FP replies ‘I think I am going to be killed’. Evidence has been presented that FP is often distressed after contact with Luba. 

I sat in court wondering how on earth this can be resolved. There seems an unbridgeable chasm between the judicial, mental health and care systems’ views on the one hand, and Luba’s views and beliefs on the other, which Poole J. acknowledged were ‘sincerely held’. The diagnosis of paranoid schizophrenia (applied to Luba’s daughter) is contentious and disputed. There are no laboratory tests to diagnose it and it has been criticised conceptually by some scholars and social justice campaigners (see here and here). How do we differentiate Luba’s views from those potentially shared by many others, including within mental health care and research? 

One thing Poole J said when giving his judgment was that Luba’s beliefs are ‘bizarre’ and that, although ‘sincerely held’, there is ‘no justification for acting on them’. I thought this was a curious statement.  In his judgment, Poole J. said: 

“The Defendant’s conduct has therefore placed the court in an invidious position. If she is imprisoned for her deliberate and repeated breaches of court orders designed to protect her daughter, the fact of the imprisonment may well cause distress to the very person the court has sought to protect. A sanction other than imprisonment risks sending a signal to the Defendant and to others that the court will tolerate deliberate breaches of its orders.” (§59 Sunderland City Council v Macpherson [2023] EWCOP 3 (20 January 2023))

The final judgment was that the breaches ‘justif[ied] a custodial sentence of 28 days’. Noting the potential impact on Luba’s husband, Poole J. suspended the sentence for 12 months, on the condition that Luba does not further conduct herself in breach of court proceedings. She also has a right to appeal this judgment. 

Reflections

Observing a hearing in person (as opposed to remotely) was a really good opportunity to see the nuts and bolts of how hearings are conducted, the nuances of non-verbal communication between the various people in court and the feel of being in a place where justice is done. All of that is lost when only faces are on a screen on my computer at home. Just being with other people is really quite a nice experience. What is lost though, to an observer at an in-person hearing, is actually seeing the faces of all the people there, apart from the judge and their clerk. Observers sit at the back (or at least in this courtroom we did) and, along with everyone else, face the judge. 

I can understand why many judges and counsel prefer in-person hearings. Particularly for counsel, their role isn’t just stating a case, it is a performance as well – and elements of that performance disappear when they are reduced to a cell on a 6-square screen, or via telephone. I wonder what Ps and their families and supporters think? Do we know? That would be helpful to understand. When is it helpful to have an in-person hearing, and when not – from the perspective of Ps who are able to express a view? P is, after all, the focus of the work of the Court of Protection. In a recent blog that Open Justice Court of Protection has published, with P’s own account of his hearing (a first for the project), it seemed that, although the outcome for JH was a good one for him, his experience was that his hearing had been ‘sprung’ upon him: “I was told the Judge would call me at 9am on Tuesday, the next morning.  At this point we still didn’t realise that it was an actual hearing as I was told it was just a chat with the judge. …  I felt angry that it had been sprung upon me“.

I don’t think the court proceedings were ‘sprung’ upon Luba, although it was clear from the discussions in the hearing that she had enlisted the services of Oliver Lewis pretty hastily. I felt privileged to observe how Luba was supported by her barrister in what was, essentially, a stand-off between her and the system. I observed him speaking to her respectfully, checking things out, using non-verbal communication to reassure her throughout the hearing. This is in parallel to taking the role of presenting her case to the judge. It is one thing putting forward an argument, it is another supporting (at the same time) someone quite vulnerable (as well as potentially confrontational due to a firm belief that they are doing the right thing). Oliver Lewis himself was accompanied by a junior colleague who sat beside Luba throughout, so she had two people officially in her corner. Perhaps care and support enabled her to refrain from interrupting proceedings as she had done in previous hearings. I have observed litigants in person (LIP) in previous hearings (one hearing I observed had eight LIPs!) and thought how hard it must be for people, unfamiliar with court proceedings, there due to a difficult, contentious and usually emotionally charged reason, to know (and therefore follow) court etiquette. 

The judgment: what else could the judge have done? I agreed with his decision. Given that the penal notice route had been taken, he had no option. Luba had, albeit late in the day (and with some persuasion from her counsel, and clear explanation of what might happen if she didn’t) removed all of the video and audio recordings from public platforms. My understanding was that this left him with a bit of wriggle room and he could suspend the sentence. 

However, I am left wondering whether Sunderland City Council would do anything differently, were they able to rewind the clock and do it all again. Listening to the reasons for not incarcerating Luba (mainly so as not to distress FP, as well as enabling her (Luba) to continue to care for her husband) I couldn’t really understand why the recordings (and their publication) had been part of the injunctive order. FP did not know (or the court thought she did not know) about the recordings – she therefore did not know they had been posted online. That is not to say it wasn’t an intrusion into her right to privacy (Article 8 rights); though Luba would contest that claim: she believes that FP has capacity to decide to be recorded and share those recordings and that FP had consented.  What seemed more harmful to FP though (from the Council’s perspective) was Luba’s influence and what they described as ‘manipulation’ of FP. It felt as if they had got themselves into a pickle over the recordings when maybe it is the contact (i.e. the actual experience of FP) that should be the focus. Luba was still allowed contact with FP, and I couldn’t understand how threatening Luba with jail would foster a situation where she might temper her conversations with FP? Surely it is more likely to inflame her views and become more entrenched in her position.

Oliver Lewis was trying to explore whether Luba would accept an independent assessment of FP, from a clinician acceptable to her. I did think this was a sensible line of enquiry, to potentially mediate the relationship between Luba and the system, with the aim of enabling their (Luba and FP’s) relationship to continue with less external control over time. Of course, there is a possibility that Luba would accept no assessment that did not accord with her view of FP’s difficulties. You could, though, say that about ‘the system’ too! 

I have heard judges talk about what can be done legally, not necessarily having to be done. There are always decisions to be made. I am not convinced that turning down this road was the right route to take. Especially given Luba’s fierce certainty of her position. 

I really hope Luba manages to stick to the court order and not breach her suspended sentence so that she and her daughter can spend time together that they can both enjoy. 

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

Covert medication of persons lacking capacity: What guidance is there?

By Aswini Weereratne, 6th February 2023

Covert medication is the troubling practice of medicating a person without their knowledge because they have refused treatment considered medically necessary. This is often done by disguising medication in food or a drink.  A few cases before the Court of Protection have placed this practice into the spotlight and raise the question of how prevalent it might be, and what guidance is available for practitioners, and indeed families.

An adult with mental capacity has the right to refuse medication even if others consider this to be ill-judged, unwise or it goes against medical advice.[1]

NICE guidelines are unequivocal “adults should not be given medicines covertly unless they have been assessed as lacking mental capacity to make decisions about their health or medicines”.   Thereafter, a person may be given covert medication, without knowledge or consent, if it has been assessed to be in their best interests.  Health and care staff need to be aware of the Mental Capacity Act 2005 (“MCA”), its Code of Practice, and the Deprivation of Liberty Safeguards. This is so as to protect the person from assault and trespass and violation of their human rights, and themselves from liability.

The CQC issued updated guidance in November 2022: “Covert administration is only likely to be necessary or appropriate where: 

  • A person actively refuses their medicine and
  • That person is assessed not to have the capacity to understand the consequences of their refusal. Such capacity is determined by the Mental Capacity Act 2005 and
  • The medicine is deemed essential to the person’s health and wellbeing.”

Decisions should be recorded in a management plan.  Consideration should be given to how or whether the use of covert medicines, such as sedatives, may be a factor in depriving the person of their liberty.  Covert medication must be the least restrictive option after trying all other options including different medicines and methods of administration.

The Court of Protection is of course empowered under the MCA to make decisions to accept or to refuse medication on behalf of an adult lacking capacity, in their best interests, including through the use of covert medication.  There is no express power in the MCA to authorise covert medication except following a proper assessment of capacity and best interests.   The issue has emerged for determination when the court or local authority has been concerned with other matters, such as that a person’s health or social care needs are not being met, or it is being asked to consider authorising a deprivation of liberty.  It would appear that it is rarely brought to the court as a stand-alone issue for specific authorisation. 

Medicating a person without their consent constitutes the tort of battery or assault under the common law, and the courts have confirmed that it is also a serious infringement of a person’s article 8 ECHR rights[2], and must be strictly justified, in order to be lawful.  Further, it may also be a factor contributing to a deprivation of liberty under article 5 of the European Convention on Human Rights (ECHR).  All of this points to the need for strict justification and proper scrutiny.

The issue of covert medication was considered most recently by Mr Justice Poole in Re A [2022] EWCOP 44, a highly unusual case which has attracted attention because an earlier judge (HHJ Moir, in June 2020) had exceptionally (in an as yet unpublished judgment) made the decision to permit covert medication in closed proceedings excluding A’s mother. This was because she found evidence of a significant risk that A’s mother would find a way to inform her of the covert medication and that she would then refuse it.  The closed proceedings caused acute logistical problems when deciding the mother’s residence and contact application because she did not know that her daughter was being covertly medicated.  It also caused confusion for those observing the hearings who were also unaware of the closed proceedings. The issues around the closed proceedings are set out in detail in Poole J’s judgment.

A had experienced primary ovarian failure which had remained untreated while living with her mother. She had not gone through puberty and required hormone treatment which the expert evidence was firm would prove 100% effective and carried no risks.  Expert evidence was to the effect that the best health benefits to A are from lifelong maintenance hormone treatment.  Without such treatment she was at serious risk of health complications,  including increased seizures, osteoporosis, fracture risk and cardiovascular disease.  An “enmeshed” relationship with her mother meant that A was refusing treatment and her mother maintained that her daughter’s decision should be respected, because she was capable of making that decision.  

The care plan for medicating A with hormone treatment involved her being offered a tablet each day.  She had always declined it so that it was then given in accordance with a detailed covert medication plan which only a limited number of personnel at her care home were aware of. 

By the time of a hearing on 15 September 2022 A had achieved puberty and the covert medication plan was working. The judgment sets out the significant benefits of the treatment. The difficulty of sustaining a covert medication plan in the long term was acknowledged.  Neither A nor any other member of her family commented on the physical changes caused by the hormone treatment.  It was feared that A might inadvertently discover that she had been covertly medicated at any moment with the risk that she would cease taking it.

Pursuant to the principle of least restriction (section 1(6) MCA), the court is currently exploring the most effective way of transitioning A from covert to open medication, and/or ending covert medication in a way that is likely to cause the least harm to her.  

By the time of hearings on 20-22 September 2022 the health risks to A from medication ceasing were not as significant as they had been.  An injunctive order was used to prevent her mother from revealing to her the fact of covert medication.  Closed proceedings were held to be no longer justified. 

As a matter of principle there is no requirement that all decisions to medicate someone covertly in their best interests must be brought to the court, nor indeed that once in court proceedings must be held behind closed doors.  The decision to hold closed proceedings was taken on the specific facts of this case pursuant to COP rules.

Must the court always be involved?

Guidance published in January 2020 by the Vice President of the Court of Protection on applications concerning medical treatment states that if a proper decision-making process under the MCA has taken place including consideration of any relevant professional guidance and the Code of Practice leading to agreement then no application is necessary.  However, if there remains a concern as to the proposed course of action after that decision making process is completed because, for example, the decision was finely balanced or there was a difference of medical opinion, or a conflict of interest, or a lack of agreement, then it is highly probable that an application to the court would be necessary and consideration must always be given to whether an application is required.   

The guidance also highlights that where a serious interference with rights under the ECHR is concerned, falling short of life-sustaining treatment, it is ‘highly probable’ that an application should be made. This is to facilitate a comprehensive analysis of capacity and best interests with the benefit of legal representation and expert medical advice and “this will be so even where there is agreement between all those with an interest in the patient’s welfare.”  The examples given do not include covert medication, except for covert contraception, but the list is not exhaustive.  An application to the court ‘may also be required’ where what is proposed involves a degree of restraint or force going beyond section 5 and 6 MCA and potentially creating a deprivation of liberty which will require the court’s authorisation.

More recently the Court of Protection has stated, in a case in which there was no opposition to the orders sought but the family wanted independent consideration of the decision to medicate covertly, that a speedy application must be made to the court, or at least serious consideration to doing so is necessary. This was in the context of anti-hypertensive medication for a patient diagnosed with paranoid schizophrenia. (See: NHS Trust and XB and others [2020] EWCOP 71, Mrs J Theis) 

Lady Black in the Supreme Court in NHS v Y [2018] UKSC 46 (which concerned life sustaining treatment) recognised that while an application to the court is not necessary in every case there will be cases in which it will be required or desirable because of the particular circumstances, and there should not be any hesitation to do so.  

AG (by her litigation friend, the OS) v BMBH and SNH [2016] EWCOP 37 was a challenge under s 21A MCA to a standard authorisation of a deprivation of liberty (DOL) under schedule A1 MCA on behalf of AG.  It was a welfare case and AG was being accommodated in a care home (SNH).  It came to light during the proceedings that she was being covertly medicated with promethazine and later diazepam.  This was not referred to in the DOL authorisation.  AG had a diagnosis of dementia, and it was agreed that if no medication was administered to her then she was at risk of deterioration in her physical and mental health and therefore the decision to administer medication covertly was in her best interests, proportionate and necessary at the time it was taken. A risk of serious harm through self-neglect, night-time wandering and aggressive behaviour, and of potentially becoming seriously unwell without thyroxin was identified.  No family member, social worker or relevant person’s representative (RPR) had been involved in the decision.  

The court identified that the use of covert medication was not subject to proper reviews and safeguards.  The medication was potentially a restriction contributing to the objective factors creating a deprivation of liberty under article 5 ECHR.  The principle of minimum intervention consistent with her best interests applied (s 1(6)MCA).  The court said that there could be no covert medication until a best interests assessment in line with NICE guidelines had taken place and only after a management plan had been agreed on consultation between healthcare professionals and family. There needs to be clear communication between the supervisory body and the managing authority where there is a deprivation of liberty.

The court provided the following guidance in the context of DOL authorisations:

(a) Where there is a covert medication policy in place or indeed anything similar there must be full consultation with healthcare professionals and family.

(b) The existence of such treatment must be clearly identified within the assessment and authorisation.

(c) If the standard authorisation is to be for a period of longer than six months there should be a clear provision for regular, possibly monthly, reviews of the care and support plan.

(d) There should at regular intervals be review involving family and healthcare professionals, all the more so if the standard authorisation is to be for the maximum twelve month period.

(e) Each case must be determined on its facts but I cannot see that it would be sensible for there to be an absolute policy that, in circumstances similar to this, standard authorisation should be limited to six months.  It may be perfectly practical and proportionate provided there is a provision for reviews(or conditions attached) for the standard authorisation to be for the maximum period.  

(f) Where appointed an RPR should be fully involved in those discussions and review so that if appropriate an application for part 8 review can be made.

(g) Any change of medication or treatment regime should also trigger a review where such medication is covertly administered.  

(h) Such matters can be achieved by placing appropriate conditions to which the standard authorisation is subject and would of course accord with chapter 8 of the deprivation of liberty safeguard’s code of practice.  

AG (by her litigation friend, the OS) v BMBH and SNH [2016] EWCOP 37 at [42]

Is there a best practice?

Clinical and legal practitioners must bear in mind that whether the issue is categorised as one of medical treatment or arises in the context of wider welfare, the administration of medication covertly amounts to a serious interference of a person’s private life rights under article 8 ECHR.   Sometimes, as in AG it may also contribute to a deprivation of liberty under article 5 ECHR for example through the use of sedative medication.  It is also a tortious act under the common law.  As such robust assessment under the MCA, strict justification and a management plan to include reviews are essential.  

The starting point to justify such treatment is always a robust assessment of the person’s capacity and best interests under the MCA.  This must involve professionals, carers, and family and take into account relevant professional guidance on covert medication such as that produced by NICE.  The decision made must be recorded in a care or treatment plan, and in any DOL authorisation, along with a management plan for periodic review, to capture for example any changes in medication.  The guidance in AG above remains useful.

The question of when to make an application to the court has no clear answer.  It requires a judgment to be formed following robust MCA assessment, and reference should be made to the Vice President’s guidance.  As always the extremes are easiest to identify.  If there is full agreement after proper assessment and consultation with appropriate people, then an application is highly unlikely to be needed.  Even then, if the proposed medication risks harming the patient, or the decision is finely balanced in any respect, the sanction of the court, with expert guidance, should be considered.  If there is no agreement between those properly consulted, then an application to the court must be made.   The shades in between will depend on the particular circumstances as recognised by Lady Black.    There can surely be no close prescription because the answer is one of approach and process on individual facts. 

The guidance suggests that an application to the court should be considered in every case, and that decision documented. This will focus minds on robust MCA assessments.  It would hasten any application which must be made speedily.

Aswini Weereratne KC of Doughty Street Chambers is an expert in human rights, particularly in relation to vulnerable adults and children and mental capacity.

Editorial note: Other blogs we’ve published covering covert medication include:

Covert medication by Claire Martin and Alan Howarth

No ‘exit plan’: Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44 by Celia Kitzinger

[1] Section 1(4) MCA 2005. And see, for example, MacDonald J in Kings College Hospital NHS Foundation Trust v C and V [2015] EWCOP 80, [1]–[3].

[2] A Local Authority v P [2018] EWCOP 10 per Baker J (as he then was) at [55]; AG (by her LF) v BMBC, and SNH [2016] EWCOP 37at [25]; Re A [2022] EWCOP 44 at [36] and [37] citing and endorsing the approach in P and AG.

Note: Image is a stock photo from Shutterstock