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.
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
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
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:
Whether the Lasting Powers of Attorney are valid?
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.
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.
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.
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
1I 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.
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
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)
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 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:
On Monday 23rd January 2023 I attended a court hearing (via MS Teams) before Mrs Justice Lieven (Case number COP 13825449). The hearing lasted almost exactly one hour.
In introducing the hearing, Mrs Justice Lieven made a particular point of emphasising the importance of the Transparency Order (of which I have yet to receive a copy) protecting P’s anonymity and prohibiting the recording of the hearing.
The case concerns a 34-year-old woman, P, who was described as having “a diagnosis of learning disability in the moderate range and an autistic spectrum condition”. She had also been recently diagnosed as having an emotionally unstable personality disorder (EUPD) while in hospital last year.
P has been assessed by a clinical psychologist, Dr K. His section 49 reporthas been followed by disagreements between the parties as to how his evidence should be interpreted, and further questions asked of him had apparently led to “some inconsistencies in answers”. The view of the Integrated Health Board (ICB) was that it would be necessary for Dr K to give evidence in court in order to resolve these matters.
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 in relation to safety in the community (specifically around traffic when she is in a state of heightened anxiety), and some or all of the care and support she receives (especially in the community).
The area of capacity that seemed of particular concern was contact with others. Although Dr K was reported to be of the clear opinion that P does have capacity to make decisions about contact with others, this finding seemed not to accord with how her family and carers see her. It became clear during the course of this hearing that P is “over-familiar” with people. The social worker described how “she will tell you males she’s just met are already her boyfriend. Recently she approached someone randomly in the pub and got their telephone number and staff were saying, ‘you’ve only just met him – is it really safe’ and they were successful and she’s deleted the man’s number. But she puts herself in precarious situations. I’m surprised no harm has come to her.”[1]
This seemed to raise a question as to whether P was (capacitously) making unwise decisions, or whether she lacks capacity in relation to contact in the community.
The case was before a Tier 3 judge because the local authority had made an application to apply under the ‘inherent jurisdiction’. During the hearing, this application to the inherent jurisdiction was withdrawn.
The hearing
As this is only the second CoP hearing I have attended, despite the helpful introduction by Judge Lieven, I was still a little baffled and grappling with a number of new acronyms, concepts and a lot of names. I am hoping that with time, this will become less cumbersome and therefore be less of a distraction from being able to report in greater accuracy and detail.
Counsel for the local authority (LA) began by providing a brief biography of P (who wasn’t in court), including a brief history of her care and his current concerns regarding her care and safeguarding. The LA, along with the ICB (who had their own separate representation) are providing the care for P under section 117 of the Mental Health Act, following P’s discharge from hospital in November 2022 (where she was assessed and diagnosed as having EUPD). The care support involves 24-hour 2-to-1 carers for P, in what was described as a residential care setting, where P had agreed to reside following her discharge from hospital.
The LA are trying to establish how to safeguard P when she becomes dysregulated in public settings and around traffic, which both cause her heightened anxiety; they are also seeking clarification on how to manage her levels of care and carer support; as well as how to restrain her from inappropriate contact with strangers, when verbal dissuasion is ineffective.
An assessment of P, made in March 2022 by Dr K (who was not present at this hearing), came to the conclusion that P ‘had the capacity to be aware of the risks’ of her contact with strangers – but this was contested as being an inconsistent finding both within the assessment and (possibly) as evidenced by P’s inappropriate and risky behaviour in the community. It was explained by the LA representative, that “P will engage in conversations which may lead her to risky situations with unknown members of the public” and that she had a “history of sexualised comments with unknown males”. Verbal dissuasion and reasoning with P, if ineffective, the LA argued, would necessitate a degree of restraint. The LA explained this restraint as ‘placing a hand on an arm or leading her away’; if that was insufficient, then ‘low level physical intervention’; and then calling the police if P became aggressive.
The LA was making an application under the “inherent jurisdiction” (IJ) because they wanted the judge to authorise this course of action in challenging situations where P’s behaviour was deemed to be putting her at risk, even if P has capacity to make her own decisions about who she has contact with.
When I watched this hearing, I had no idea what was meant by “the inherent jurisdiction”, but Munby’s description gives a good summary:
“[T]he inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either (i) under constraint or (ii) subject to coercion or undue influence or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.” (Thisdescription given originally by Munby J in Re SA (Vulnerable Adult with capacity: Marriage) [2005] EWHC 2942 (Fam) at paragraph 77, then endorsed in Re DL).
This means, that P could legally be restrained by her carers and have her freedoms restricted when deprivation of liberty (in P’s best interests, under the Mental Capacity Act 2005) is not applicable.
In essence, my understanding is that, in this instance and similar cases, the IJ would function as a sort of legal loophole for authorising restrictions on someone who has capacity in the area on which restrictions are imposed – essentially overriding their wishes.
In advance of this hearing, counsel for P (via her litigation friend the Official Solicitor) had raised concerns about invoking the inherent jurisdiction. These concerns related to ‘the Wakefield case’, and ‘Re DL’ which I looked up afterwards. In the first of these cases, Cobb J concluded that “the inherent jurisdiction should not be used to deprive a capacitous person of their liberty” and described it as “a potentially arbitrary mechanism for authorising a deprivation of liberty”. In Re DL, MacFarlane J upheld use of the inherent jurisdiction for vulnerable adults who fall outside the protection of the MCA but whose capacity is overborne by non-MCA circumstances, e.g. coercion and undue influence. Rather than undermining autonomy, the inherent jurisdiction is to be considered part of a ‘great safety net’ that “is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity”[4] . In this hearing Judge Lieven said she was “bound by DL not the Cobb case” (because it is from the more senior Court of Appeal).
The Official Solicitor was “concerned that the court’s exercise of the inherent jurisdiction may be being sought to circumvent the assessment that [P] has capacity to contact others” and that in reality it may be that the local authority just disagrees with the conclusion as to P’s capacity to make this decision.
Counsel for the Local Authority withdrew the application for the case to be heard under the inherent jurisdiction.
That left the need to decide whether or not P has capacity to make her own decisions on contact in the community. Should a (new) expert be instructed to assess this?
Mrs Justice Lieven remarked that “a vast amount of lawyers and legal expenses” were being used on “a relatively small amount of issues, with very fine distinctions” and that further assessment “does not feel to me, like a proportionate way forward, in a cash-strapped system” where in the case of P “there are already 8 lawyers and 3 detailed assessments”, pertinently adding “What benefit is there to P in all of this?”
I strongly feel that her Ladyship’s comments here point to the loss of focus on the individual at the centre of the case that may arise when legal professionals become engaged in the minutiae of the law and academic arguments. The consequence is that P, the person at the centre of the case, and her feelings and wishes, become at risk of being overlooked, as does the immediacy of her vulnerability and care needs. This judge repositioned P and her needs, as the focus of the hearing.
The Judge asked P’s social worker for an account of P’s history and current day-to-day life. She said P has a history of episodes of unpredictable behaviour towards staff and property. She repearted that P is experiencing heightened levels of anxiety around traffic, and in the community; being ‘overfamiliar’ with strangers; engaging in inappropriate and risky contact, often of a sexual nature, with unknown males; and, on occasion, running away from carers. These behaviours are a cause of safeguarding concerns for her welfare and for the welfare of staff (if she becomes hostile). Since a move to supportive housing last year, P’s behaviour and dysregulation, whilst not without incident, seem to have become more stable. The social worker also clarified that P is living in supported living accommodation and not residential care (where DoLS would apply).
In regards to P’s 24-hour, 2-to-1 care, Judge Lieven wanted to understand what P’s feelings were about the this, to ascertain if less restrictive measures could be found. P’s Social Worker said: “Staff try to give her space when she asks not to have 2-to-1 care as she has felt overwhelmed by staff. We want the least restrictive option”. In response, counsel for the LA again maintained that P lacks capacity to decide on appropriate care and again they seemed to contest Dr K’s assessment (that P does have capacity), particularly in the light of P’s recent diagnosis of EUPD, and they again sought permission for further assessments. It was hoped that maybe on further assessment of P, and reflection from another expert, that all parties may come to some agreement – they acknowledged that (as the judge pointed out) this could not, of course be guaranteed.
Judge Lieven was clear that “There isn’t going to be a simple answer” that “getting more and more assessments isn’t going to help anyone” and that the diagnosis of EUPD was “a diagnosis of outcome, not cause”, a brilliantly succinct summary of this highly contentious psychiatric disorder. (For further discussion regarding personality disorders and the Mental Capacity Act 2005, see “What does the Court of Protection need to know about borderline personality disorder?”)
I believe the Judge’s decision prevented P’s needs from becoming lost in discussion of on-going differential diagnoses and technical details, which could (further) marginalise P, rather than add anything of real value to her life and well-being, and could only serve to unnecessarily prolong the case.
Counsel for P’s mother spoke of P having previously resided with her mother, and although P often stated that she wanted to live with her mother again (although this fluctuated), that care at home was not feasible. This was in a large part down to issues of safeguarding where P had a history of “going missing”, “putting herself in precarious situations” and on one occasion fleeing from her carers “in a taxi and has later claimed she was raped”. P’s mother, said her counsel, was clear that she wanted P to be safe and felt that P did not have capacity to make decisions to keep herself safe. The mother was concerned about the carers’ minimal powers of restriction and that P was purchasing alcohol against advice and wanted the LA to record P’s alcohol use in the care and capacity plan. She also raised concerns about P staying in third party’s homes overnight and having recently self-harmed. She requested an updating statement from the LA.
It was clear that some fine details about P’s safety and care were missing, and that a fuller picture of P’s day-to-day fluctuations in capacity needed attention. I would argue that this would be more beneficial to the needs of P and to her capacity to consent (which could be adversely affected by alcohol and emotional dysregulation) and that a behavioural analysis from P’s carers and family members or representatives would be far more useful than diagnostic assessments from otherwise unknown ‘experts’.
Mrs Justice Lieven concluded the hearing by saying she “does NOT advise further assessments”. Instead she called for a half-day hearing with Dr K in order to try to establish greater clarity about P’s fluctuating capacity and loss of capacity when she becomes emotionally dysregulated. She suggested that Dr K may wish to meet with P again before the next hearing, which was set for early February. No interim order was given but 2-to-1 care and supervision in the home and community was to continue. In her final comments the Judge again remarked that “this is just not a case that is open to a simple answer”.
I appreciated the opportunity to observe this hearing, I found the judge to be decisive, clear and focused on P rather than on technicalities. She concentrated attention on P as an individual and away from endless, and arguably not productive, assessments which were unlikely to resolve the differences of opinion regarding Ps capacity.
In addition, I believe that dropping the use of the inherent jurisdiction discouraged actions which could have resulted in more controlling and restrictive measures being implemented. P already has 24 hour, 2-to-1 supervision and was stated as finding this ‘overwhelming’ at times. Further analysis, perhaps with the assistance of Dr K, will hopefully ensure that any actions are both necessary and proportionate, not arbitrary or capricious, and are sensitive to P’s capacity at the time insofar as that is practicable.
Fluctuations in capacity, like in this case, may mean that a consensus of P’s capacity can never be definitively achieved. This hearing highlighted to me the importance of the Mental Capacity Act’s Code of Practice: that capacity should be presumed and that ‘a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken’ may: a) have partial capacity; b) be temporarily incapacitated (e.g., P’s use of alcohol) c) be permanently incapacitated d) may be capable of making decisions with support.
I hope that the next hearing will allow remote access or be held online again as I would very much like to hear what Dr K has to add, as I have not heard an expert present in a hearing. I will be interested to see whether any this leads to any clarity or, even if not a ‘simple answer’, perhaps a resolution.
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
[1] I have written this report to the best of my ability with respect to the confidentiality of P. My quotations cannot be guaranteed to be 100% accurate since we are not allowed to record hearings, but I’ve endeavoured to present as true and accurate an account as possible. Any opinions stated are wholly my own, unless otherwise indicated.
By Brian Farmer and Celia Kitzinger, 1st February 2023
At a hearing on 16th January 2023, Mrs Lioubov Macpherson – the mother of FP, a protected party in the Court of Protection – was given a suspended prison sentence for breaching court orders against her.
At an earlier hearing, Mr Justice Poole had ordered that she must not video or audio record her daughter (or any of the staff caring for her daughter), that she must not post any such recordings on social media and that she must remove those she had already posted. He’d said that if she breached his orders, she might be sent to prison (i.e. he’d “attached a penal notice” to the orders.)
The judge’s reasons for making these orders, and his understanding of Mrs Macpherson’s reasons for breaching them, plus details describing the videos that Mrs Macpherson posted on social media (now removed) are all laid out in his published judgment: Sunderland City Council v Macpherson [2023] EWCOP 3 In essence, the judge says:
“The purpose of preventing the Defendant from posting films of her daughter and naming her through posts on social media platforms, is to protect FP. Not only is it a gross invasion of FP’s privacy to do so but, in this particular case, the nature of the Defendant’s publications about FP is to create the wholly misleading impression that FP is being abused and “tortured” by those caring for her, as sanctioned by a “corrupt” court system.” (§30)
This blog post is not about the hearing itself (see Claire Martin’s account of the hearing) but about problems with the way the public (including journalists) were informed about it, and the concerns raised for open justice by this committal hearing and others like it.
This practice direction says that open justice is “a fundamental principle” and that “the general rule is that hearings are carried out in, and judgments and orders are made in, public” (§3).
Committal applications should normally be publicly listed as follows:
FOR HEARING IN OPEN COURT
Application by [full names of applicant] for the committal to prison of
[full names of the person alleged to be in contempt]
Any derogations from the principle of open justice “can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice” (§4).
When a hearing is held in private: the court should:
“… notify the national print and broadcast media, via the Press Association’s CopyDirect service, of the fact of the committal hearing (whether it is brought on application or otherwise) when and where it is listed for hearing, and the nature of the proposed derogation; and (2) at the outset of the committal hearing the court shall hear submissions from the parties and/or the media on the question whether to impose the proposed derogation.”(§8(1))
And in all cases, the following applies:
“In all cases, irrespective of whether the court has conducted the hearing in public or in private, and the court finds that a person has committed a contempt of court, the court shall at the conclusion of that hearing sit in public and state: (i) the name of that person; (ii) in general terms the nature of the contempt of court in respect of which the committal order, which for this purpose includes a suspended committal order, is being made; (iii) the punishment being imposed; and (iv) provide the details required by (i) to (iii) to the national media, via the CopyDirect service, and to the Judicial Office, at judicialwebupdates@judiciary.gsi.gov.uk, for publication on the website of the Judiciary of England and Wales. (2) There are no exceptions to these requirements. There are never any circumstances in which any one may be committed to custody or made subject to a suspended committal order without these matters being stated by the court sitting in public.” (§13)
There is also a requirement to provide a written judgment (§14) and publish it “as soon as reasonably practical” (§15). Finally, “advocates and the judge… shall be robed for all committal hearings” (§16).
Failing to follow the practice direction
It may be, as the evidence suggests, that the committal hearings concerning Mrs Lioubov Macpherson did not comply with this guidance. And since becoming aware of her case, we’ve also come across a number of other cases – in the Court of Protection and other courts – where it appears the guidance was not followed.
In the past seven weeks (not counting the Christmas break), Brian has been aware of seven committal hearings. In addition to the two Court of Protection hearings before Poole J in Newcastle, there were: a Family Division hearing before Arbuthnot J at the Royal Courts of Justice; a Court of Protection hearing before Judge Beckley in Holborn, London; a Family Court hearing before Judge Evans-Gordon in the Central Family Court and a hearing before HHJ Cope in Bristol County Court.
In five of these seven (Poole J (x2) Beckley, Evans-Gordon and Cope), the case was not listed in accordance with the Practice Direction on committals.
In two, Arbuthnot and Evans-Gordon, the lawyers involved seemed unaware of the Practice Direction and unaware of the requirement to notify the press if they wanted reporting restrictions.
In Arbuthnot, a barrister and a solicitor-advocate both said they would “prefer” the adult defendants to be anonymised.
In the Evans-Gordon case, the only lawyer, a solicitor, seemed to think he was in a private family court hearing. (The judge ticked him off for not being robed). The judge indicated that she would have to rely on my discretion not to report the names of children aired at the hearing.
In the Evans-Gordon case, I spoke to three members of Central Family Court staff to point out the error in the listing. None had heard of the Practice Direction. One checked to see whether the hearing was in public or private and said committals were “sometimes” in public.
Holding the Court of Protection accountable
We’ve recently expressed our concern to Mr Justice Poole about the (apparent) lack of transparency of committal hearings, specifically in relation to the two hearings concerning Lioubov Macpherson (“Luba”).
We’re reproducing those letters here because many members of the public are anxious about contacting judges with their concerns and we want to show how we’ve gone about it, and also that it can have positive outcomes.
1. Letter concerning the first committal hearing (on8th December 2022)
19th December 2022
Dear Judge
Re: COP 13258625
We are concerned about open justice and transparency in relation to this case (COP 13258625) and would like to ask some questions about the hearing before you on 8th December 2022 in Newcastle and about the forthcoming hearing, which we understand will be on 16th January 2023, also in Newcastle.
PA Media reporter Tom Wilkinson was at the 8th December hearing, and we know that you made a Transparency Order preventing P being identified in media reports of the case.
We understand that the hearing was a committal hearing – an application by Sunderland City Council to commit Luba Macpherson.
However, as far as we can tell, parts of this Practice Direction were not complied with: specifically, §5(1)&(2) and §8.
Paragraph 5
5 (1) says “All committal hearings, whether on application or otherwise and whether for contempt in the face of the court or any other form of contempt, shall be listed and heard in public.” (our emphasis)
5 (2) explains how committals should normally be listed: “Application by (full name of applicant) for the Committal to prison of (full name of the person alleged to be in contempt).”
As far as we can tell the Committal hearing wasn’t listed at all until sometime in the morning of 8th December 2022, just hours before it was due to start. It then appeared on Newcastle County Court Daily Cause list, not the Court of Protection list (as, too, did another hearing in the same case on 6th December 2022). We have photographed the listing as it appeared in CourtServe and reproduce it below. As you can see, it gives no hint that you were dealing with a committal: the words “Committal to prison” do not appear. The name of the person alleged to be in contempt does not appear.
Paragraph 8
“Where the court, either on application or otherwise, is considering derogating from the general rule and holding a committal hearing in private, or imposing any other such derogation from the principle of open justice: (our emphasis)
(1) it shall in all cases before the hearing takes place, notify the national print and broadcast media, via the Press Association’s CopyDirect service, of the fact of the committal hearing (whether it is brought on application or otherwise) when and where it is listed for hearing, and the nature of the proposed derogation; and
(2) at the outset of the committal hearing the court shall hear submissions from the parties and/or the media on the question whether to impose the proposed derogation.
We appreciate that the hearing wasn’t held in private. However, you made an order which prevents the media from identifying the accused person. We would say that must be a “derogation from the principle of open justice”. We’re not aware that any notification was given to the national media via Press Association’s CopyDirect service. (Times have changed since 2015: the Press Association is now PA Media and CopyDirect is now the Alerts Service.)
Tom also had great difficulty getting into the hearing. He was told by a security guard at the Newcastle Civil and Family Courts Centre that the hearing was a family court matter, was in private, and that he had no right to attend a private family court hearing.
(We’re aware of several similar recent problems relating to court staff, private signs wrongly being left on doors and listings. Brian had problems at the Central Family Court in London, when an usher said he couldn’t attend a private hearing, said journalists were expected to give advance warning if they were attending, and insisted that he had to discuss his attendance with a manager. Celia has experienced signs saying “IN PRIVATE: NO ADMITTANCE” at the two most recent COP in-person hearings she attended before Mr Justice Hayden (both were listed as “in open court”), and private signs were left on the doors at a public CoP hearing before Arbuthnot J on 7th December 2022. A member of the public aiming to attend left because he thought the hearing was in private and Brian entered the court only after emailing Arbuthnot J’s clerk to make sure that he could do so. Additionally, a Family Division committal hearing FD22P00427 before Sir Jonathan Cohen was wrongly listed on December 14. The list said the case was in open court but gave no hint that it was a committal. The listing was changed after Brian queried the listing with the judge’s clerk.)
Our questions are these:
Why did the listing for the committal hearing on 8th December 2022 depart from the directions set out in the Practice Direction on Committal for Contempt of Court?
Why (contrary to the Practice Direction on Committal for Contempt of Court) was no notification given to the national media about the committal hearing on 8th December 2022?
Why (contrary to the Practice Direction on Committal for Contempt of Court) was a representative of the media not permitted to make representation at the outset of the hearing (as opposed to at the end of the hearing).
We understand that there is another committal hearing on 16th January 2022. Will this be listed and conducted in accordance with the Practice Direction on Committal for Contempt of Court, and if not, why not?
We have considered carefully what may be at issue in this case (and in other committal hearings in the CoP). On the one hand, a CoP judge makes made a Transparency Order preventing P from being identified, and suppresses publicity relating to relatives of P associated with the case because this is a means of identifying P. On the other hand, committal proceedings are quasi-criminal, and the starting point is that people should not be given jail terms in secret and the accused should be named.
MacDonald J had the same problem in relation to committal proceedings for a relative of P, Dahlia Griffiths ([2020] EWCOP 46). In that case, the judge approved an agreement reached with the parties, that the accused could be named but P referred to only as an unspecified “relative” of the accused.
We’re not saying that’s the answer here, but we do think there are arguments to be made before the court decides upon a derogation from open justice that conceals the full name of a person alleged to be in contempt of court – a vulnerable woman who may be sent to prison.
At the moment, the only story we can write is that a woman who we can’t identify could be jailed – for reasons probably now apparent from the June 2022 judgment (SCC v FP & Ors[2022] EWCOP 30) that has recently been made publicly available – and that she appeared at a committal hearing which wasn’t listed as a committal hearing.
We also think that other media organisations, including media organisations in the north-east, should be notified that there’s an order saying the accused can’t be named, so they can make arguments if they want to.
Thank you for your attention to these matters and for your concern to ensure open justice.
Celia Kitzinger, Open Justice Court of Protection Project
Brian Farmer, PA journalist
In his published judgment, Poole J accepts that Lioubov Macpherson’s full name should have appeared in the listing of the 8th December 2022 hearing (§33): he had (at that point) made no order that it should be redacted.
2. Letter concerning the second committal hearing (on 16 January 2023)
The second committal hearing was listed as shown below (also in the Daily Cause list for the county court and not in the Court of Protection list on CourtServe). Notice that, again, the name of the defendant (Lioubov Macpherson) is not provided. But this time it was not an oversight.
At the 8th December 2022 hearing, Mr Justice Poole made an order restricting publication of Mrs Macpherson’s name. The judge says:
“Whilst the 2015 Practice Direction does not expressly allow for such a restriction, it does allow for derogations from the principle of open justice ‘in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. Derogations shall, where justified, be no more than strictly necessary to achieve their purpose.’ The COPR allowed for the reporting restriction and I regard the ordered restriction as being properly justified at the time that it was made.”
So in the cause list making public the next committal hearing, the fact that Lioubov Macpherson’s name does not appear is deliberate.
This time, though, the words “COMMITTAL TO PRISON” do appear.
Celia was on annual leave, overseas, and without her laptop, so Brian wrote the next letter to the court.
January 9, 2023
Dear Judge
Re: COP 13258625
Application by Sunderland City Council for the committal to prison of Luba Macpherson.
Thank you for giving me an opportunity to make an argument on behalf of PA Media.
Hopefully, my colleague Tom Wilkinson will be at the hearing.
I appreciate that the applicant and respondent have been involved in Court of Protection proceedings and a standard Transparency Order, preventing P being identified, has been made. However, my understanding is that the litigation has now reached a stage where you have to take account of the terms of Lord Thomas’s 2015 Practice Direction: Committal for Contempt of Court – Open Court https://www.judiciary.uk/wp-content/uploads/2022/07/practice-direction-committals-for-contempt-2-2.do_.pdf#
(I’ve read the Amendments to Practice Directions… published on January 4, 2023.
I don’t think they undermine any of the arguments below.)
I think that you have a problem judges commonly face when family proceedings or CoP proceedings reach a committal stage: you are caught between a rock and hard place.
In family proceedings the media is, normally, prevented from identifying the child, therefore if parents are named there is an obvious risk of jigsaw identification of the child. In CoP proceedings orders, normally, prevent P being identified, therefore if a relative is named there is an obvious risk of jigsaw identification of P. You have an additional problem here in that the “accused” is being criticised for making details of the case public in breach of orders.
On the other hand, the then Lord Chief Justice’s Practice Direction clearly indicates that both the ‘accuser’ and the ‘accused’ should be publicly named. In any event, publicly identifying people who face jail terms must be a basic principle of open justice.
I’m not aware that taking such an approach has led to children, or Ps, being widely identified, or harmed. Certainly, no problem has been raised in relation to any report I’ve written. I’ve never heard it suggested that taking such an approach undermines the proper administration of justice.
I’d urge you to take a similar approach to the approach MacDonald J took in the above CoP case.
We would argue that the media should be able to name the “accused” mother, and the applicant local authority, in reports of these quasi-criminal committal proceedings. (More than that, I think we should be able to report the mother’s age and full address, as we normally would in criminal cases, to ensure that we identify the right person.)
We would say people have a fundamental right to know the names of members of the public who are facing jail sentences, and the names of people or bodies “prosecuting” them – and that right should prevail here.
The Practice Direction does not say that the name of any child or any P at the centre of proceedings should be made public. We’re not proposing to name P, and we’ll happily agree to any ideas anyone has for muddying P’s identification.
There are many things you could do to make P’s identity hard to find: don’t reveal her name, age or gender; refer to her as a relative or family member; be vague about how information has already been made public, simply say mother has put information into the public domain; be vague about how much information has been made public.
I’d also urge you to step into the real world and consider how much harm P is really likely to suffer if her mother is named.
The vast majority of people won’t read your published judgment, they’ll find out about the case through the media. In reality, how many passengers on the Seaburn omnibus are going to read a report in the Sunderland Echo then try to piece together an information jigsaw? Dr Kitzinger and I might have the inclination and ability to track down your earlier anonymised judgment on Bailii, but will the average person really even try? Will they really start searching for the mother’s Facebook and Twitter accounts? Why would they? People have a lot on their minds at the moment. They’re struggling to heat their homes, struggling to pay food bills, war is raging, Prince Harry is on the front pages, Sunderland look like they’re going to miss out on promotion. In reality, this case isn’t big news and I suspect the vast majority will glance at any report, think how sad life is and how lucky they are, then turn to the back page to check the league table.
Likewise, how many people are really keeping track of what the mother is putting into the public domain? She’s not the BBC, she’s not Prince Harry. This case hasn’t been the focus of enormous media attention.
I’d ask you to consider what Hayden J said in paragraphs 16, 17, 18 and 19 of the below ruling:
My proposal will obviously create a risk of jigsaw identification; however, I think you can take steps to greatly limit that risk.
Someone always knows the identity of the child, or P. Social workers know, court ushers know, friends of families know, neighbours know. Any report will identify the child, or P, to someone. We’d argue that the test must be “will the passenger on the omnibus, the average person, identify the child, or P?” The test should not be “will anyoneidentify the child, or P.” If the test is “will anyone identify…?” then the media can never report any family case, or Court of Protection case, because someone will always be able to work it out.
I suspect that, in reality, only the people who know the family will know the identity of the P, and they must already know. I also suspect that, in reality, relatives, friends, neighbours etc will already know what has happened in this case – and will probably learn of the outcome regardless of whether or not there are media reports.
I have no doubt that P can be protected from any risk of teasing or bullying, and I don’t imagine that she will reading reports in the Sunderland Echo or on the internet.
(We’d normally argue that there’s also a broader issue in cases like this. The public should be told that there are consequences if judges’ orders are breached. In that vein, we’d normally make the “what’s in a name?” argument. Lord Rodger in re Guardian News and Media Ltd and others https://swarb.co.uk/in-re-guardian-news-and-media-ltd-and-others-hm-treasury-v-ahmed-and-others-sc-27-jan-2010/: “What’s in a name? ‘A lot’, the press would answer…” Reports with names have more impact than anonymous reports. However, as I said above, I’m not suggesting that this case is big news and more than anything we’re making arguments on a point of principle. Nevertheless, the case may attract some publicity and it may be that publicity will have some deterrent effect and protect other Ps and children. On that basis, I’d ask you to take account of Lord Rodger’s analysis.)
We’d say that the council should be named, regardless of your decision about naming P’s mother. The Practice Direction says the applicant in committal proceedings should be named. Taxpayers have a right to know what councils do in their name and with their money. If the council isn’t named, council members may well not know their council is involved. They certainly won’t be able to debate the case in public. The local MP won’t know that the council is in their constituency. Not naming the council will stifle political discussion, particularly local political discussion. We’d say limiting debate about such important, and difficult, cases as this, will make it harder for lessons to be learned and is not in the best interests of this P, or Ps generally.
My understanding is that concerns are centred on the publication of P’s mother’s name. I’m not aware of an argument that naming the council would create jigsaw identification of P, or even create a risk. If P’s mother isn’t named, how could the average person work out P’s identity simply by knowing the name of the council involved?
I think in any weighing of the Article 8 rights of P, and P’s mother, against the Article 10 rights of the media and the public, the balance here falls on the 10 side. Naming the applicant and respondent would create a limited risk to P: not naming would effectively be secret justice.
If I can help with any other points, please let me know.
Brian Farmer, Reporter, PA Media
Brian submitted this letter in advance of the hearing. At the beginning of the hearing, Mr Justice Poole said that he did not need to hear submissions on this matter. He referred to. Brian Farmer’s “very helpful submissions” and in particular to these passages from Hayden J’s judgment in the family court case: PA Media Group v London Borough of Haringey[2020] EWHC 1282 (Fam):
16. Ubiquitously, it is now recognised that the primary risk to children’s privacy arises in consequence of public postings on social media. Ms Wilson speculates that the crowd funding scheme, organised by the mother with great effect, most probably involved a significant number of small donations rather than a few particularly generous individual benefactors. Ms Wilson reasons from this that many donors might be alerted by the judgment to investigate, by search engine, whether this was the family they gave financial support to. This, it is hypothesised, might lead to a plethora of social media posts which would be difficult to monitor. Ms Wilson also states, that whilst Ms Tickle focuses on the risk to child B by way of “playground taunts” the greater risk probably arises online and insidiously.
17. Mr Farmer considers that these concerns, though intellectually sustainable, are not, as he puts it, “rooted in the real world”. Mr Farmer is a seasoned journalist, he argues the following:
“I don’t think the concerns are enough to justify the Council’s anonymisation. I think, in the real world, the chances of people putting together an identity jigsaw are small and the chances of someone putting together that jigsaw and causing harm, smaller still.”
18. In admirably simple language, Mr Farmer makes the important link between “jigsaw identification” and the likelihood of “harm” (i.e. emotional distress) to the children. He is correct to emphasise the indivisibility of the two. Furthermore, both Ms Tickle and Mr Farmer respectfully suggest that very few members of the public will take the time to seek out and read my actual judgments, relying instead on what they read in the media. I have no doubt, at all, that this is largely true. Whilst it may mean that the public has an incomplete understanding of the case, it also follows that they may not be alerted to the pieces of information which might provide a jigsaw to identification.”
“Similar considerations apply to a case in the Court of Protection”, said Mr Justice Poole. “In fact, all three Counsel agreed that I should permit the Defendant to be named in reporting of these committal proceedings. I indicated that I too had formed that view.”
Some questions for the Court of Protection
Two Practice Directions have been issued in the past decade: the first issued in May 2013, superseded by another in March 2015. They are written in pretty simple, plain, English and both underline basic principles: justice should be seen to be done and people shouldn’t be jailed in secret.
Yet the evidence of the past two months alone seems to show that the 2015 Practice Direction is not being followed to the letter in Family and Court of Protection committal cases.
Evidence shows listings are done wrongly – and may not even include the words “Committal Hearing”. Defendants are sometimes not named, without any formal advance notification to journalists and without giving journalists the opportunity to make submissions about the reporting restrictions at the outset of the hearing.
It makes us wonder why this is happening. This is British justice we’re talking about. We refuse to believe that it’s deliberate. Nothing we’ve ever seen in Family courts or the Court of Protection leads us to believe that judges or lawyers would deliberately breach Practice Directions. Is it simply carelessness? Listing staff making errors which are not spotted until it’s too late? Is it a lack of training? Are court staff being made aware of the Practice Direction? Or are mistakes inevitable because everyone is overworked? Do judges and lawyers need a bit of revision, perhaps? Is the problem that lawyers specialise in certain areas but hardly anyone specialises in contempt or committal? Is it the media’s fault? Should journalists be waving more red flags when things go wrong?
We think these are questions everyone involved should think about.
An inaccurate listing on a court noticeboard might seem a small thing. But in contempt cases, that inaccurate listing might lead to your neighbour being sent to jail in secret. That would be a very big thing indeed.
Brian Farmer is a PA journalist with extensive experience in both the Family courts and in the Court of Protection for more than a decade.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She’s observed more than 380 COP hearings since May 2020.
At some point in the future, there may be a time for all of us when we can’t make decisions for ourselves.
It may come suddenly, as it did for my younger sister, Polly, who was catastrophically brain-injured in a car crash in 2009.
Or we may lose capacity to make our own decisions slowly, little by little, with a neurological illness such as dementia.
For some people it comes as a nasty shock to realise that family members are NOT able to make decisions on behalf of an incapacitous adult. “Next of kin” has no legal meaning in this situation. Instead, if you haven’t made a Lasting Power of Attorney, the state takes over – decisions are made by doctors and social workers, court-appointed Deputies, and (at last resort) by the Court of Protection.
That’s why many of us have appointed someone we trust to make decisions for us in the future, if that’s ever needed. The mechanism for doing this is a Lasting Power of Attorney – and there are two different kinds: one covers decisions about property and finance; the other covers decisions about health and welfare. (There was no information in this hearing about whether the court is concerned with only one or the other kind of Attorney, or with both.)
I have appointed both kinds of attorney for myself because I was horrified and dismayed by what happened after my sister’s brain injury. The people who knew and loved her were not able to intervene effectively in decision-making about her health care, meaning that they gave her treatments we were all sure she would have refused if she could. And dealing with her bank accounts and bills and the sale of her house was very difficult. I don’t want to leave anyone in my family struggling like that again – so I’ve given them the legal power to make decisions.
My own choices for attorneys are simple. For both ‘Health and Welfare’ and for ‘Property and Finance’, my wife is my attorney: she’s the person I want as my decision-maker. I trust her to decide (if I cannot) where I should live, what kind of care I should have, and how to manage my money. If she’s not able to act (e.g. because we are in a car accident together), then one of my sisters is named as my ‘replacement attorney’. My choices of attorney are recorded on my Lasting Power of Attorney forms and registered with the Office of the Public Guardian.
What I gathered from this short hearing before Mr Justice Peel[1] was that some people are trying to make more complicated arrangements.
The hearing
Matters weren’t laid out in any detail (that will happen at a later hearing) but it seems that some people want to appoint two (or more) attorneys to act jointly (meaning they must agree each decision between them) – or jointly for some decisions and severally for others (meaning that they must make certain decisions together and agree them unanimously, but can make other decisions individually). That’s provided for on the forms, though the instructions for filling them in do say that if you appoint your attorneys to act “jointly” on everything, this could cause problems, because “If your attorneys can’t all agree on a decision, it can’t be made“.
The forms encourage the person completing them to consider the “jointly and severally” option saying “some people pick this option because they don’t mind their attorneys taking everyday decisions alone but want them to make important decisions together, such as selling a house”. There’s an example of what this would look like:
“My attorneys must act jointly for decisions about selling or letting my house and may act jointly or severally for everything else”
“My attorneys must act jointly for decisions I have authorised them to make about life-sustaining treament and may act jointly and severally for everything else”.
The forms also offer the opportunity to appoint a ‘Replacement Attorney’ who can step in if the nominated attorneys can’t act (e.g. they’ve died or lost capacity themselves).
I don’t know the details of what the people whose forms are now before the Court of Protection were trying to do in their applications – but whatever it is, their forms have raised questions for the Public Guardian about whether what they want is compliant with the law, i.e. does the Mental Capacity Act 2005 permit it.
Counsel for the Public Guardian, Neil Allen, said: “These LPAs have been carefully chosen by the Public Guardian as test cases to illustrate the legal issues requiring the court’s determination and guidance”.
In his opening summary he said that the people whose applications have been consolidated for this case “have either tried to create a lead attorney or provide for a majority rule or organise for the replacement of replacement attorneys. This raises validity issues, and whether any provisions need to be severed. There are over 100 similar cases which the Public Guardian is considering and will be affected by judgment in this case”.
I’m trying to imagine what people have done to cause the Public Guardian these concerns, and what that would look on the completed forms (which of course I haven’t seen). Maybe people have tried to complete the forms to achieve effects like these (examples invented by me!).
“I appoint my three daughters, A, B and C as my attorneys to act jointly and severally but in any situation where they are acting jointly and they can’t agree, I want my daughter A’s decision to be final”
“I appoint my three daughters A, B and C as my attorneys to act jointly and severally but in any situation where they are acting jointly and they can’t agree, I want the majority decision that any two of them agree on to be final”
“I appoint my three daughters A, B and C as my attorneys to act jointly and severally, and my son D as a replacement attorney if any one of them becomes unable to act. If D is also unable to act, then I authorise A to choose another replacement attorney.”
“I appoint my three daughters A, B and C to make decisions jointly and severally. Any decisions about life-sustaining treatment must be made jointly, and other decisions can be made severally. Decisions about where I live and am cared for must be made only by A, and decisions about my religious worship and diet must be made only by B.
These are entirely invented examples and I’ve no idea whether they accurately reflect the problems before the court. I will learn more (I hope) at the next hearing.
The case will be heard on 19th April 2023 (probably in person) by Mr Justice Hayden in the Royal Courts of Justice. It’s anticipated that none of the people who actually filled in the forms that are raising questions for the Public Guardian will be there (though they have been informed of the case and told that they can apply to be joined as a party). Instead, the Official Solicitor will be invited to act as Advocate to the Court. This role is described in a practice note:
“The Official Solicitor is also sometimes invited to act as Advocate to the Court. A court may seek the assistance of an Advocate to the Court when there is a danger of an important and difficult point of law being decided without the court hearing relevant argument. The Advocate to the Court’s function is to give to the court such assistance as they are able on the relevant law and its application to the facts of the case. An Advocate to the Court does not represent any party.” (Appointment of the Official Solicitor in property and affairs proceedings [2021])
At the short hearing I observed, the judge agreed that all the applications could be heard together (only seven appeared in the court listing, but there was reference to nine in court). He also agreed that the Official Solicitor would be invited to act as Advocate to the Court, and that the hearing would be on 19th April 2023 (before Hayden J). Finally, he made some suggestions for improving the wording of the matters that needed to be determined.
Delay
I’m left worrying about the position of the (seven or nine) people who filled in the forms, said who they wanted to make decisions for them, and who are now waiting for the court to decide whether or not their forms are validly made (as well as the “over 100 similar cases” referred to by counsel for the Public Guardian).
Until these people’s forms are registered and given a special ‘date stamp’ by the Public Guardian, they’re not valid. If they lose capacity to make the relevant decisions while the Public Guardian is still waiting for a court ruling about whether what they’re asking for is compatible with the requirements of the Mental Capacity Act 2005, then the effect is that they haven’t appointed anyone to make decisions on their behalf, and the risk is that it would then be too late to do so (because they might also have lost capacity to make an LPA). And certain provisions from their LPA may be severed – without them having the chance to consider the impact of this on their LPA choices.
If this were me, I’d be extremely anxious. I’d want (at least) to know right away what bit of my form was causing problems, and to be given the opportunity to submit a revised version even if it wasn’t exactly what I really wanted – because that way at least I’d have put something in place to protect myself and my family while the wheels of justice moved slowly on. I hope they’ve been offered suitable legal advice (for free) about what they might do in this situation. (This wasn’t addressed in court, but I understand something along these lines might have occurred.)
I don’t know when these people submitted their forms to the Office of the Public Guardian but there was reference to the applications having been sent to another judge (HHJ Hilder) in May 2022. According to the website: “It takes up to 20 weeks to register an LPA if there are no mistakes in the application”, so these people would have realistically expected to have had their attorneys lawfully appointed by October 2022 at the latest.
As it turns out, they haven’t made “mistakes” – they’ve just said they want to appoint attorneys in ways that the lawyers aren’t sure are lawful. But they are having to wait a further six months from the date by which they might reasonably have expected their LPAs to have been registered for a hearing in April 2023 which (according to Peel J) will be only a directions hearing, and not a final hearing. I imagine that a final decision is unlikely to be made until Summer 2023, more than a year since their applications to register their LPAs were made. And in the meantime, there is a real risk that some of them will lose capacity and find that they don’t have the protection of attorneys in place and that its too late for them to re-submit the forms in compliance with whatever the court decides is lawful.
“I’m a bit troubled by the delay”, said the judge. “I’m just not sure why it’s taken so long. I’m very sorry it has.”
I am too.
And I hope the Public Guardian is taking appropriate steps to protect the autonomy of the hundred or more people whose advance planning (for care, for finance, or for both) might be very seriously affected by the current uncertainty about the law.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She has personally observed more than 380 hearings in the Court of Protection. She tweets @kitzingercelia
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