Court-authorised caesarean section for a mother with sickle cell disease who wants her baby to “see her face first”

By Claire Martin and Laura Room, 5th August  2022

This case is another in a long series of court-authorised caesareans, some of which have been previously blogged by Open Justice Court of Protection Project[1].

In this case, the NHS Trust (Kings College Hospital NHS Foundation Trust, London [KHC], represented by Nageena Khalique QC of Serjeant’s Inn Chambers) had made an urgent application to court seeking authorisation for a planned caesarean section at 37 weeks for a woman with sickle cell disease. The application was supported by the NHS Trust providing mental health care (South London and Maudsley NHS Foundation Trust [SLaM]), the second respondent, also represented by Nageena Khalique.

The protected party at the centre of the case, RO, was represented by Conrad Hallin, also of Serjeant’s Inn, (via her litigation friend, the Official Solicitor). She was also present for some of the hearing and spoke to the judge. 

We observed this hearing  (COP 1396281T) on Monday 18th July 2022, before HHJ Morgan at the Royal Courts of Justice. We had no idea what the hearing was about in advance, because the RCJ Daily Cause List does not list the issues before the court. 

We will start the blog with Claire Martin discussing the issues of capacity and best interests in relation to this case, and then Laura Room will reflect on her experience as a first-time observer and consider mental health diagnoses that have been given to RO. 

Background to the case

RO is a 24-year-old woman who is 36 weeks pregnant. Her due date is the beginning of August – around four weeks’ away at the time of the hearing. She is currently under Section 2 of the Mental Health Act “because of deterioration in her mental health in June this year”, said Nageena Khalique QC, who gave a very helpful oral summary[2] at the start, which enabled us to understand the background of the application to court:

“RO has a troubled history and involvement with psychiatric services since age 14. The reason for detention is a working diagnosis of two types of mental health disorders – Emotionally Unstable Personality Disorder (EUPD)[3] and Dissocial personality disorder – and some evidence of behavioural disorders due to drug use (alcohol, morphine, and heroin). … RO has a long history of being violent to mental health professionals and she is banned from many NHS Trusts. KCH was the hospital which had previously banned her for assaulting staff but given she is in the locality of this Trust and they have a duty to provide care, KCH has relinquished the ban to allow her to access obstetric services. 

She has a diagnosis of sickle cell disease, which has an impact on obstetric care. In April 2022 she had a pulmonary embolism requiring treatment (anti-coagulant therapy). On 28th June 2022 she was admitted … with vaginal bleeding and during admission her mental health deteriorated, and SLaM liaison services assessment led to her being detained with aggressive and chaotic behaviour. The consultant who has provided evidence in relation to that detention is [Dr X] and for current and past psychiatric care.  She is currently at KCH on the labour ward with psychiatric support from mental health nurses and psychiatry. She will remain there until the birth of her child. … One of the most significant changes in her presentation developed at 34 weeks of pregnancy. A growth ultrasound revealed a diagnosis of intrauterine growth restriction – the unborn child was below the 5th percentile.  At a scan repeated at 35 weeks and 6 days, unfortunately growth of the foetus was even more restricted at the 3rd percentile. The likely cause is placental insufficiency. The recommendation is that delivery is consistent with [lost this next bit] …. gold standard is that delivery should be at 37 weeks. [Consultant obstetrician] can give more evidence. [She] conducted the capacity assessment with the psychiatrist and has been involved for some time.” (Nageena Khalique QC)

KCH is seeking authorisation for a planned caesarian section for RO at 37 weeks. RO was on the video-call at the start of the hearing and then again after the break, when she spoke to HHJ Morgan. 

Capacity and Best Interests, by Claire Martin

Capacity

The position statement (kindly provided by counsel) for the applicant NHS Trust stated that an issue for the case was whether RO lacked capacity to make specific decisions. 

The first thing that was evident at this hearing was that all parties, including the Official Solicitor (OS), seemed to agree that RO lacked capacity to make her own healthcare decisions. No evidence was examined in relation to capacity during the hearing, so I assumed that this had been discussed between parties beforehand and that it had been decided that an independent capacity assessment was not necessary. We as observers do not see the ‘bundle’ of evidence that is prepared for the court. 

The position statement went on to assert that RO lacked capacity to decide her “birth planning, mode of delivery and obstetric care”,  because of “an impairment of, or a disturbance in the functioning of, the mind or brain (namely (a) Dissocial Personality Disorder (F60.2) and (b) Emotionally Unstable Personality Disorder- Impulsive Type (F60.30) (s2 MCA diagnostic test) which renders her unable to understand, retain and/or weigh up the salient information (s3 functional test and causal nexus).” This was based on a capacity assessment to make these decisions, carried out by RO’s psychiatrist and consultant obstetrician. 

This conclusion clearly did not accord with RO’s own view. She had been listening to the hearing (without her camera on, and from the hospital) from the start.  When her consultant obstetrician had been sworn in and counsel spoke to her, RO interrupted as follows:

Nageena Khalique QC [to consultant obstetrician]: I want to ask you about the risks that face RO if she doesn’t undergo a C-section. There are risks associated with intrauterine growth restriction (IUGR) and pulmonary embolism. Could you explain to court how you would quantify those risks and what they mean in terms of clinical management?

RO: [interrupting] …. I am aware of the risk that comes with it – you keep repeating it …. The issue is that I chose a different option, that doesn’t mean I don’t understand … You keep taking it like that … once more, I understand, I get it, I also understand why you want to use it … just putting it out there because you keep repeating yourself … it’s not gonna change … I have explained why and I do so appropriately … you constantly go over the same thing over and over again ….

Judge: I’m going to ask you please to wait until it’s the moment for you to speak. I understand you have heard from the doctors but I haven’t yet.

RO: I apologise for butting in.

Judge: Would you mind whilst she gives her evidence not to butt in?

RO: This is the first time I have spoken and I’m sorry for cutting her off. 

Judge: Let me hear it for the first time. I do need to listen to it. [Doctor] could you carry on? You were asked to quantify the different risks there are. 

I (Claire) observed a different case (about capacity to decide about amputation and best interests) some time ago which has parallels here:  

“It suddenly struck me that ZA, who is currently in hospital with a delirium and infected bones of her foot, is, seemingly, being held to a much higher bar than the rest of us would be (when our capacity is not in question) in terms of needing to demonstrate an understanding….”

It struck me again, that the bar at which capacity is considered to be retained regarding the decision to opt for a vaginal delivery, with the risks associated in this case, seems higher than it might otherwise be for people for whom capacity is not in question. As soon as capacity is deemed to have been lost, the freedom to make (what others consider to be) an ‘unwise’ decision is also lost. It becomes a best interests decision that belongs to others (in this case the doctor and judge). The question then is how much weight to give to P’s wishes and feelings, as Lady Hale described in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 “The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want.”

Conrad Hallin explained that “The OS’ principal concern is just because RO is described as articulate and intelligent – she trained as a nurse. We have had it explained to our satisfaction as to why she doesn’t have capacity, nevertheless it is her wish to have a vaginal delivery, and this could be made clearer about why not.”

RO was said to have previously – and recently – expressed her capacitous wishes: 

Conrad Hallin: If we look at what the hospital thought was possible for her. …. A witness statement of Dr X on the 8th July, we can see here she was thought to have capacity at that stage. Of note …. [it said] that there is a ‘likely need to induce labour’. Why is it that induction was considered, notwithstanding her history of difficulty with professionals, but now no longer?

Obstetrician: Her instability, agitation and distress. We have all reflected on that. Her anger has escalated. Prior to this, we thought about an induction. At the moment I don’t think she would cope with how agitated she gets. 

I wondered what happened in between, that RO is now assessed as lacking capacity to make this decision. And what had happened in her interactions with health care professionals that their view of a possible induction had now been ruled out. 

In her final submissions, Nageena Khalique QC said: 

There are many references to observations made by clinicians, and leading up to her admission, where capacity around treatment and decisions she was having to make (including Sickle Cell Disease and interventions) were recorded. For example [there was] reference to her capacity being considered when asked about … consent to pain relief, and to agreement to scans and tests and treatment for anxiety or depression. It was a blanket over the eyes of those looking after her. As you’ve just heard, she’s an intelligent and articulate young lady. There was a critical point at the end of June, [when RO was] deteriorating mentally. There was no evidence prior to this that she was unable to make decisions – albeit that she was difficult to manage. And you can’t assume lack of capacity because of that. Just prior to the end of June she made unwise decisions. At the end of June there was a change, the 28th June, where her mother mentioned that she was ‘not in her right mind’. Then on 5th July she was transferred to SLaM PICU [psychiatric intensive care unit]. That fed into the rather worrying responses when asked about mode of delivery. It led to a full capacity assessment. When one looks at the context and background and then accelerated deterioration from the beginning of this month – the Trust should not be unduly criticised for bringing this case so late and with little notice to the court and OS. Events have taken place quickly around mental health and mental capacity and the findings of the IUGR scans which RO had great difficulty understanding that led to the suggestion of an elective c-section. It has been a complex and evolving picture, and relatively recently, the falling off of capacity around about the 12th July. (Nageena Khalique QC)

This sentence really hit me: “There was no evidence prior to this that she was unable to make decisions”.  It seems RO was not thought to have lacked capacity for decisions (seemingly any decisions) until the 12th July, six days before the hearing. She was said (by Conrad Hallin, above) to have been assessed to retain capacityto make birth plan decisions only ten days prior to this hearing, on 8th July. The reasons submitted for now lacking capacity were “(Dissocial Personality Disorder (F60.2) and (b) Emotionally Unstable Personality Disorder- Impulsive Type (F60.30)” [Position Statement of applicant Trust and Second respondent]. What seems to have happened between 8th and 12th July is that RO has been given a ‘working’ Personality Disorder diagnosis.  This feels uncomfortable to me. RO had made her wishes known about her birth plan at a time she was deemed to retain capacity. The treating team did not agree with her decision and four days later she was deemed to lack capacity for that decision. Had RO made an Advance Decision to Refuse Treatment when she was deemed to have capacity for birth plan decisions, this would (legally) have had to have been respected by her treating team. 

Best interests

Given that it seemed agreed (except by RO herself) that RO lacks capacity to make her own decision about whether or not to have a caesarean section, the question before the court was whether it was in her best interests to have one.

The position taken by RO’s litigation friend at this hearing, the Official Solicitor, was to support the orders sought by the NHS Trust, i.e. that it’s in RO’s best interests to have a caesarean section.  Clearly that isn’t what RO wants for herself.  Her legal representative is making a case to the court that is opposite to what she wants.

Alex Ruck Keene QC describes a similar case here, where the mother wanted a natural birth: 

“… the Official Solicitor as C’s litigation friend explored less interventionist procedures for the birth, after which he did not oppose the orders sought.

We mention this case as another clear example of the tension between P’s wishes and feelings and the position advocated on P’s behalf. The current practice in the Court of Protection looks to the litigation friend not to represent P in any conventional sense but to instead identify and relay P’s wishes and feelings, investigate and assess the available options, and present what the litigation friend considers to be in P’s best interests. In this case, it was to agree to a treatment plan which contradicted P’s position and not to oppose the application.

As a result, we would suggest, P’s wishes and feelings are not being given full effect to by those representing – as opposed to those ‘re-presenting’ – P. The history of the litigation friend is a long, tortuous and curious one and is in need of reform.”  [my emphases]

The published  judgment in the  case Alex Ruck Keene is writing about can be found here.

Cross-questioning of RO’s consultant obstetrician focussed on the risks to RO and her unborn baby: 

Conrad Hallin: Briefly if you had a mother with capacity who wanted to have a vaginal birth, and you advised that the baby was IUGR, and 77 in 100,000 would be still born, and she wanted vaginal birth, you’d respect that?

Obstetrician: We would suggest 37 weeks delivery. If she chose vaginal birth we’d respect that.[4]

CH: Paragraph 36 at the top, you set out the risks of vaginal delivery. You describe sickle cell disease (SCD) and anti-coagulant [treatment] for pulmonary embolism. Still birth is only associated with IUGR. Figures say IUGR at 39 weeks would be less than 1% risk (0.77%). Could you assist the court in relation to IUGR risk? 

Obs: The study would suggest 2% … plus other risks

CH: The best you can estimate is 2% plus a bit?

Obs: Yes

CH: So, a serious risk, but 97% chance it wouldn’t happen.

Obs: If you asked most mothers they wouldn’t take that risk.

I don’t have any knowledge at all of SCD and pregnancy, and of course RO had other physical health issues too (pulmonary embolism and was on anti-coagulant medication) and her unborn baby was very small as a result of SCD (at the time of the hearing birth weight was estimated, via ultrasound, to be 3rd percentile). Conrad Hallin (above) clarified that it is the IUGR (which for RO was as a result of SCD) that is associated with stillbirth (at a 0.77% risk at 39 weeks’ pregnant). The obstetrician and her team clearly had to consider the matrix of risks for RO and her baby, and communicate them effectively to RO. 

This 2014 study, looking at SCD and pregnancy, found that “Pregnancy in sickle cell patients is still associated with complications.” Notably, “The physiological adaptations that occur in the circulatory, hematologic, renal, and pulmonary systems during pregnancy can overburden organs that already have chronic injuries secondary to SCD, increasing the rate of obstetric complications.”

The Royal College of Obstetricians and Gynaecologists’ (RCOG) 2011 guidance regarding birth and SCD states: 

“Some older studies questioned vaginal delivery as the optimal mode of delivery for women with SCD. However, other studies demonstrating improved clinical outcomes all support vaginal delivery as the recommended mode of delivery with the need for caesarean section based on obstetric indications.” [p13]

For RO, my understanding is that it was the IUGR that was the ‘obstetric indication’ for caesarean section. 

This patient information leaflet for women with SCD who are pregnant (from Imperial College Healthcare NHS Trust) states: “If you experience more frequent crises, are unwell or the baby is not growing as expected it may be advised to induce labour early.“

The evidence provided by the consultant obstetrician at the hearing clearly cautioned against induction of the baby because of “[h]er instability, agitation and distress. We have all reflected on that. Her anger has escalated. Prior to this, we thought about an induction. At the moment I don’t think she would cope with how agitated she gets.”

Finally, these 2021 British Society for Haematology guidelines add information about caesarean risk: 

So, in the view of the consultant obstetrician, RO’s best interests for delivery of her baby was caesarean section ‘because of the increased obstetric complications’ and because she believed RO would not cope emotionally with induction. 

In a January 2022 blog post for Open Justice Court of Protection, Samantha Halliday reported on a similar case involving the same NHS Trust. This involved a very vulnerable young woman (JK) with Foetal Alcohol Syndrome. Whilst the details of that case differ, there are notable similarities: 

Like so many of its predecessors, this case was framed as urgent.  But JK was not due to give birth imminently – she was 36 weeks pregnant and so birth would normally have been expected in around four weeks.  What was imminent was the caesarean that had been scheduled for her in two days’ time.  Evidence was not provided at the hearing that the caesarean was immediately necessary, although the clinical evidence was that it would be dangerous for JK to give birth outside a medical setting, both for herself and the foetus, and that an emergency caesarean would be the most dangerous option of all.  Nevertheless, that an order might be necessary in this case was foreseeable, that JK would need support was foreseeable; the risk of JK disengaging from antenatal care and deciding to deliver in secret, without medical support was all too apparent as long ago as August.  This case should not have been allowed to become the subject of an urgent hearing.  Indeed, Katie Gollop QC reported that the Official Solicitor is in something approaching a state of despair about pregnancies such as JK’s.  She pointed out that “It is a tragedy that those who most deserve the most skilful, time intensive, patient, relationship-building, multi-disciplinary attention that the NHS can provide find themselves deprived of that consideration because of medical delay.”  (Samantha Halliday: Capacity and elective caesarean)

In this case, Nageena Khalique QC, in her final submissions, said “It is important that I address the timing of the application” to which HHJ Morgan replied “Yes I will need some help with that.” Due to what she described (see above) as “a complex and evolving picture” she argued that the Trust should not be “unduly criticised for bringing this case so late”.

Samantha Halliday noted [about the same applicant Trust] that “[a]t the request of the Official Solicitor, the judge agreed to include a recital to the order recording that the Trust has provided an assurance that the director of governance will be issuing a revised policy and some Mental Capacity Act training to staff in the hope that this might send out a message to other Trusts that there is a need to identify such cases as early as possible and to avoid the recurring situation whereby action is taken too late to facilitate support for the individual and proper representation of their interests.” (Samantha Halliday: Capacity and elective caesarean)

This case for RO might not be seen to have held the same predictability, especially given that RO had been deemed to retain capacity until very recently. However, we know that she had been banned from several NHS Trusts for assaults on staff and had been seen by mental health services from the age of 14. Sir Jonathan Cohen is quoted by Samantha Halliday from her observations of the case of JK, as taking a long view in relation to the predictability and the need for good planning: “I particularly refer to the long term diagnosis … about her cognitive ability and the other aspects of her psychiatric make up…” 

There have been earlier precedents too, where Trusts have been told to get cases to court earlier in a woman’s pregnancy. This example, again from Samantha Halliday’s blog: 

This is not a novel suggestion, guidance was issued by Keehan J in NHS Trust & Ors v FG [2014] EWCOP 30 emphasising that “Urgent applications … must be limited to those rare and few cases where a genuine medical emergency has arisen and an immediate court order is necessary. I do not consider a failure to plan appropriately and/or a failure to identify a case where an application to the court may be required constitutes a genuine medical emergency.”  It would appear that this message has not yet got through… (Samantha Halliday: Capacity and elective caesarean)

And finally, the RCOG guidelines (as above) do warn [p8] “A number of studies suggest that women with SCD are at risk of fetal growth restriction as well as pre-eclampsia. Serial growth scans allow early detection of fetal growth restriction and hence aid appropriate timing of delivery to reduce perinatal mortality and morbidity.”

Taking all of this in the round – especially the fact that services have clearly struggled to build safe, containing relationships with RO over time (leading to her being banned) – one could perhaps have predicted that all might not run smoothly, especially should she start to make decisions that clinicians deemed unwise. I would be interested to know, for example, whether there are documented conversations with RO early on in her pregnancy about the (predictable) IUGR risk for her baby, and what might be recommended to her, should different scenarios pan out, and what her views were about that, and her capacity at that time (if it were a concern). It is interesting to me, that, at the time RO did express wishes that concerned clinicians “working diagnoses of two types of mental disorders”  (Nageena Khalique QC) were given to her. 

Later in the hearing (after the lunch break), RO re-joined the hearing to speak to HHJ Morgan (she had left after the first encounter). She initially talked about her experiences on the psychiatric ward in SLaM saying “The situation … please excuse me if I get things wrong …. I basically am on Section 2 …. I believe it was Section 5 when I first came into hospital, and just before it ended it was quickly changed to Section 2 which I believe is up to 28 days. I was in the psych ward and I quickly learned I would struggle there – not because of fear it was simply because I noted that there weren’t many facilities or monitoring for my unborn child or to keep an eye”. The judge wished to move RO on to the specific issue before the court, the proposed caesarean section, rather than focus on what had happened previously: 

Judge: Is there anything particularly about the c-section the doctors say that they would like you to have?

RO: In terms of the c-section …. something was up with the placenta …. I have sickle cell disease and I was worried about the hygiene. I don’t want to be in a place like that and be pregnant [referring to the PICU unit in the mental health hospital]. Now in terms of performing the c-section – a couple of weeks ago – I had a similar situation – in [different hospital Trust] they said the same thing, we’re going to have to give you a c-section. I want to experience my pregnancy and labour with my partner. However, I was then released … and told to come back if I needed to. I left. When I went for a scan, they said they were surprised at how much weight my child had gained. So, after that I mentioned this to the doctors and nurses at KCH, that I had already been through that. I’m not putting my baby in danger, or myself. I want to have the opportunity – that chance to, I am all about negotiating, this is my first baby I don’t want to kill my baby, that is the last thing I want to do. [Other hospital Trust] have given me the opportunity – but KCH have refused to. I felt like I was put in a place where I was treated like a child. I wasn’t given the opportunity to be a part of my experience with giving birth to my first child, snatched from me by c-section. That is why I want my baby to see my face first when she comes out. I don’t want that experience taken away where I don’t get to enjoy that moment in time and I believe it will. They will have to provide some form of sedation …. I won’t be able to really know what’s going on and see what’s happening and I want that experience. I want the skin to skin and everything else. ….. I know I‘ve been rambling for a while so I am going to shut up and let somebody else speak.

J: I think you can’t see us – thank you for speaking to me and telling me your views. The most striking thing you have said to me is that one of your main reasons for not agreeing is that you want your baby to see your face first – is that right? 

RO: Well – yeah to an extent- but not the entire thing. It’s not just that …. 

J: But an important thing …. 

RO:  Yes .. but wouldn’t any mother? …. I am kind of confused.

J: Mr Hallin …. RO has given me a clear idea of why these things are so important. I propose now to hear submissions from you and Miss Khalique.

That was the extent of RO’s contribution to the hearing. When she spoke on this second occasion, she sounded very sleepy and as if she were trying to understand the process of what had happened to her and what was being said at the hearing. The sense I made of it was that she understood that she had been deemed capacitous to make decisions about the birth at an earlier stage [which we have seen earlier is true from Conrad Hallin’s cross-questioning of the consultant obstetrician] and had been allowed home from [a different] hospital. Nageena Khalique QC had said earlier that RO had had to be readmitted to hospital with bleeding, which then led to her current situation. The IUGR had then been discovered and the risks had therefore changed. It was these new risks that the applicant Trust was submitting RO did not understand and was unable to retain and weigh up in a decision. 

An exchange between counsel for the OS and the consultant obstetrician illuminates these issues:

Conrad Hallin: If we look at what the hospital thought was possible for her. The record is mostly transcribed … the witness statement of [psychiatrist] on the 8th July. We can see here she was thought to have capacity at that stage. Of note is the likely need to induce labour. Why is it that induction was considered, notwithstanding her history of difficulty with professionals, but now no longer?

Obstetrician: Her instability, agitation and distress. We have all reflected on that. Her anger has escalated. Prior to this, we thought about an induction. At the moment I don’t think she would cope with how agitated she gets. 

CH: Of course, she’s not asked for induction. There is a cohort with her conditions who would opt for and receive a vaginal delivery, isn’t there? 

Obs: Yes, she could have a vaginal birth. RO is interesting in the fact that she tells us she wants a safe baby. The two things don’t go together. 

CH: So, you say they contradict. In the first Position Statement, the application said general anaesthetic. Now the Position Statement says spinal anaesthesia, which requires a degree of cooperation. The question that follows is … is it not plausible, given 3% risk – to allow for that to be attempted and then to intervene?

Obs: It took me about an hour and a half on Thursday to [do the] ultrasound. An emergency c-section would need to be quicker. I cannot see her cooperating, she’d need pre-meds, lines in, a catheter, continual monitoring, going to theatre very quickly.  I can’t see that happening. 

CH: You have already planned for an emergency c-section though … you’d need to do that anyway?

Obs: Yes, there is a plan that if she goes into labour we would do it in the safest way possible.

CH: So, the question is the same. You have planned for it. Is your view that if you allow her to try to do what she wants to do, let’s assume she doesn’t need an emergency c-section (which is likely on the statistics) why is there a prospect of that not going well?

Obs: If we wait … there’s a risk of still birth and risk to her mental health or SCD crisis during that time. 

CH: Yes, they’re risks but they’re small risks. If the court decides her wishes are important … these risks are unlikely to eventuate. If she doesn’t need induction and all medical interventions, why couldn’t she deliver vaginally?

Obs: Some women do. Most first deliveries are not like that. You need to listen to the midwife about when to push.  You need continuous monitoring. It’s more likely to cause distress to her. 

CH: Understood. There are risks to doing an elective c-section as well? Higher because of her conditions. We haven’t discussed these yet. Your statement – p 54 – described risks uncommon to all mothers, risks for future pregnancies as well. The last paragraph “increased risk from c-section compared to others – SCD, and anti-coagulant for pulmonary embolism”. So bleeding is not that uncommon during c-section?

Obs: It’s not uncommon and given SCD would be more common. The advantage of an elective c-section is we can time her anti-coagulant, to be as low as it can be. Least unsafe is an emergency c-section, given her SCD and anti-coagulant. 

All of this made sense to me – the clinical team was trying to weigh up all the risks and minimise as many as possible, both for RO and her baby. Their plan for a caesarean section was not, however, what RO wanted for herself. At the same time, RO was very clear that she did not want to ‘kill’ her baby and a priority was for her baby to see her face first, and have skin-to-skin contact. What RO wants, though, might not be as straightforward as she may think it is, given that she wants a ‘safe’ delivery and a live baby.

I kept wondering though, how I would react if, as RO stated, it felt to me as if I were being ‘treated like a child’ and ‘the issue is that I chose a different option, that doesn’t mean I don’t understand’. I was pleased (at the end of the hearing) that HHJ Morgan directed the order to be referred to as a ‘planned’ caesarean section, rather than ‘elective’, recognising that there was nothing ‘elective’ about what was about to happen to RO. 

I felt very sad for RO throughout this hearing. She seemed to be trying to join in meaningfully with the process – but was struggling. I don’t know whether she did or did not understand the risks and potential complications for the birth of her baby, and for herself, but I did think that she had been rather cut off when she was trying to explain why she wanted a natural birth.

At the very end we heard that RO’s baby will be removed from her at birth. It made me think that the clinicians might (unconsciously) have minimised the relevance of RO’s own feelings and wishes because they knew that the baby would be taken away from her. Could any of us be pulled into thinking that this should not, therefore, be her decision to make anyway? I suppose it was this feeling throughout that niggled away at me – RO did not really seem important in this case: the OS was not asking for an independent capacity assessment (there was still time), had been given hardly any time to respond anyway (given the urgent application), and did not oppose the application for a planned caesarean section. Then RO herself struggled to join in and (I thought) was given very little time to speak (compared to other Ps in hearings I have observed). Even if she lacks capacity for the decision and it is in RO’s best interests to have a caesarean section, I felt so sad for this young woman who seemed to be at odds with everyone in her world, had lost bodily autonomy, was going to have her baby taken away at birth and now wasn’t really included in this hearing about her own birth experience – when she was not ‘agitated and distressed’ and could speak and listen.  

My reflections as a first-time observer, and some thoughts on the mental health diagnoses given to RO, by Laura Room

This was my first time observing a Court of Protection case. My supervisor, Claire Martin, had passionately told me about several cases she had observed as a member of the core group of the Open Justice Court of Protection Project, and so I was very excited to be attending a hearing. 

I remember feeling anxious on the morning of the hearing. I was unsure of what to expect and was also slightly overwhelmed by the procedure of applying to attend and waiting to be “let into” the hearing. However, the case we observed was fascinating, so I’m glad I sat with the anxiety and Claire persevered with ringing and emailing the court administrators to request access to what we initially thought was a vacated hearing. 

After much consideration around what would be important to reflect on, I’ve decided to reflect on my observations of what I believe to be subtle judgements about the person at the centre of the case, RO. 

The first of these judgments was when Conrad Hallin (CH) was questioning the Consultant Obstetrician about the risks of stillbirth. The Obstetrician said that there was around a 2-3% chance that RO would experience a stillbirth if she gave birth vaginally. The Obstetrician went on to say that “if you asked most mothers, they wouldn’t take that risk.” It seems implicit in this that RO is being described as different to “most mothers” in her wish to give birth vaginally. You could interpret this as her not being as caring as “most mothers”, or as being a bad mother for wanting to take the 2-3% risk of stillbirth. The word “most” in this quote also struck me. If the Obstetrician asked other mothers in RO’s position about their decision regarding a c-section, most of them would choose an elective c-section, although not all of them. I understand that legally RO does not have the capacity to make this decision, and she does not have an advance decision to refuse treatment. Therefore, the decision being made on her behalf in her best interests. However, it feels to me, as a person outside of the legal system, that ultimately RO’s wishes are not being respected.  

CH and the Obstetrician then went on to discuss RO’s engagement with clinicians and what a c-section entails. This is when things started to click together for me here. RO’s clinical team seemed to find her uncooperative and difficult to engage and manage. Were RO’s clinical team pushing for her to have a c-section so that she was easier to manage? Did they not want to manage inducing RO and then supporting her to meaningfully engage in this process for an estimated three days? I did find it difficult to consider these questions, because I can also empathise with how the clinical team might be foreseeing needing to restrain and sedate RO if she was to be induced. Understandably, this would be traumatic for both RO and staff involved in her care. 

It’s also interesting to me that RO has received working diagnoses of Dissocial Personality Disorder and Emotionally Unstable Personality Disorder – the two personality disorders that are so regularly stigmatised and viewed as “difficult” and “unmanageable”. I felt uncomfortable with the framing of RO’s personality difficulties and what I perceived as stigmatising language towards her mental health difficulties. For example, the Obstetrician said “because of her personality disorders, she has a low threshold for engaging. She creates explosive anger, which can last between 10 minutes to one hour. She has rigid thinking. I’ve never had a conversation with her where she doesn’t become angry within 20 minutes”. 

The timing of being given these working diagnoses also felt quite convenient to me. I wondered if these working diagnoses were giving the clinical team a licence to suggest that RO lacked capacity and, in turn, suggest their preferred plan of how RO gave birth to HHJ Morgan? On two occasions during the hearing, the Barristers referred to RO as an intelligent and articulate young woman, even referring to her starting her nurse training in her early adulthood. For some reason, this didn’t sit right with me. I wondered if by making these statements about RO’s character, it unconsciously justified them reporting that she lacks capacity and should have a c-section?

When RO had her time to speak to HHJ Morgan and express her views, I was struck when RO said “I don’t want to kill my baby”. I was already feeling disappointed for RO throughout the hearing, but these words left me feeling extremely sad for her. Was she feeling like the clinicians involved in her care were viewing her as killing her baby? 

Finally, HHJ Morgan concluded with her judgment. She requested that the c-section be called a planned c-section, rather than an elective c-section. Her reasoning being that RO is not consenting to the c-section. I felt pleased with this change in language and that HHJ Morgan was recognising that RO was not electing for the c-section to happen. However, I also quickly felt saddened again. Changing the name from elective to planned felt arbitrary to me. RO was still going to be undergoing a c-section that she did not wish to have because of, in my opinion, very reasonable reasons. To me, RO wanting “to be able to experience the birth of my first baby… for my baby to see my face first… to not be provided with some form of sedation… to be able to understand what’s going on” are very understandable reasons for wanting to have a vaginal birth.

As noted by Claire, the child protection plan and that RO’s baby would be removed from her care at birth was not mentioned until the very end of the hearing. It was also only mentioned briefly, as if not relevant to the case. I wondered if this detail played into the clinical team’s beliefs and decisions. Did they view her as unable to make a decision around birth, and believe that her feelings didn’t matter, because her baby would be taken away from her anyway? Did they see RO as not having rights as a mother because of this child protection plan? 

I also felt frustrated that an urgent application was made when RO was 36 weeks pregnant. A c-section is a serious and invasive medical procedure. An urgent application only added to the pressure of decision-making. I was left wondering why an application wasn’t put forward earlier? I believe that this is a common occurrence in the Court of Protection and an understandable concern for the Judges, and only adds to the great pressure they are already working under.             

Overall, watching this Court of Protection hearing was an amazing experience for me and I was captivated throughout the full five hour hearing. I am grateful that I was able to observe and reflect on an extremely important issue – making decisions about performing serious medical procedures on non-capacious people. It has given me greater insight into the legal system and the decision-making process, a perspective I don’t often see whilst working in healthcare. Observing the hearing, and writing my part of this blog with Professor Celia Kitzinger’s feedback, has been valuable for improving my legal education. I will endeavour to continue using this insight and education in my work as a Trainee Clinical Psychologist and when I qualify as a Clinical Psychologist in just over a year’s time. 

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

Laura Room is a Trainee Clinical Psychologist, Tees, Esk, and Wear Valleys NHS Foundation Trust. She is on placement with Claire Martin in the Older People’s Clinical Psychology Department, Gateshead. She tweets @LRoom92

[1] Previous blog posts on court-ordered c-sections include: Caesarean: An emergency hearing; Capacity and elective caesarean; Elective caesarean in her best interests; An urgent court-authorised Caesarean: Seeing behind a published judgment; C-section and anaesthesia: An unexpected unified decision.  We’ve also published blogs covering other court orders concerning pregnancy and mode or place of delivery, e.g. Refusing blood products during pregnancy and labour;  My midwife heart weeps: Opinion on a court-ordered hospital birth; “Not nothing”? The Late Term Foetus in the Court of Protection; Re: An Expectant Mother [2021] EWCOP 33: A lawyer’s perspective; Choice, human rights and childbirth in the Court of Protection; Human rights in maternity and the Court of Protection; Phobias, paternalism and the prevention of home birth.  Agoraphobia, pregnancy and forced hospital admission: Public responses to media reports 

[2] We are unable to audio-record the hearing and the quotes are as accurate as we are able to make them, given that we type notes during the course of observing the hearing. There are likely to be some words that have been recorded incorrectly.

[3] In the blog we use the psychiatric diagnostic language used by the NHS Trusts. This is not necessarily an endorsement of the use of this label for RO. There is a vast literature critically examining the concept and utility of the label ‘personality disorder’, which is beyond the scope of this blog. This statement by Recovery in the Bin posits a different perspective to that of the Trusts in this case.

[4] This is as required by the law, I believe. A person with capacity to make a decision is free to make whatever decision they wish (within the limits of the law) and pregnancy does not change that.

Who should take responsibility for property and financial affairs – the Local Authority or the family?

By Georgina Baidoun, 5th August

My interest in the Court of Protection is inspired by my experience of being appointed by the Court of Protection as Deputy for my mother’s property and financial affairs. I therefore jumped at the chance to observe this remote hearing in front of District Judge Eldergill, tweeted by the Open Justice Court of Protection Project like this:

The arrangements couldn’t have been more straightforward. I was asked to agree to abide by the non-disclosure rules set out in an email and sent the Local Authority’s position statement. Being the first to join the MS Teams meeting, I was then welcomed by a very relaxed and friendly person responsible for administering the hearing. She seemed to encourage me to remain unmuted and on camera but I thought muting was a better option. I did, however, remain on camera, only unmuting when the Local Authority barrister asked who I was before the hearing and when the Judge greeted me at the start.

The case was to decide who would be responsible for managing the property and financial affairs of a woman with a diagnosis of schizophrenia who was currently in a mental health facility, but judged ready for discharge if there was a suitable place for her to live. I understood from what was said in court that she had not lived in her own house since 2019 and it was, by all accounts, now uninhabitable due to extensive, damage including a leakage of water. 

The case was described in the listings as P v London Borough of Newham, P being the woman whose property and affairs needed to be administered by someone else due to her lack of capacity to do so herself. The Local Authority was seeking a court order so that they could take on this role but P’s mother had objected to this arrangement, while being unable to take on the role herself due to ill health. The Local Authority position statement in fact described the case as being between London Borough of Newham and P’s mother.

Neither P nor her mother was in court, neither were they represented. P’s two sisters were in court although they were not named as parties (they were linked only by phone, I think, since they couldn’t see any of the participants). I was confused about which of the sisters was speaking at any one time but it appeared that they were in the same room and probably sharing the same phone as they were clearly consulting each other at certain points in the proceedings.

District Judge Eldergill opened the proceedings with a summary of the situation. There was an on-going Deprivation of Liberty application being considered, with the next hearing listed for September 2022. P was apparently resisting attempts to move her out of the NHS facility, but the facility was anxious to discharge her as soon as possible in order to release a bed. I wasn’t clear about the financial aspects of this but I imagine that there would be no charges while she was under NHS care, whereas she would be paying some, if not all, of her own costs when she left (assuming she’s not eligible for Continuing Health Care funding). I am almost totally ignorant of this area, however. 

P was said to have very little in the way of savings but she owned her own house which would have to be sold. The idea was that the money from the sale of the house would cover the cost of a flat in which she could live with the support of carers. The option of moving into supported living accommodation was ruled out as P was resistant to it, having already had one bad experience.

The position statement said that the Local Authority’s Client Affairs Team had ‘failed to engage’ the sisters with the idea of them taking over P’s financial affairs themselves by applying to be Court of Protection Deputies. That situation now seemed to have changed because both sisters were participating in the hearing. However, they seemed to have almost no understanding of what being a Deputy involved and were also unaware of the progress of the Deprivation of Liberty application, which the judge explained while making it clear that it was not a matter for discussion here. 

The judge then attempted what I thought was a poor explanation of what applying to be a Court of Protection Deputy involved. He emphasized here, and later on, the importance of obtaining an insurance policy to cover possible misuse of funds. Later on, he even suggested that obtaining this insurance could add to the time taken to get the Deputyship put in place. That was not my experience 3 years ago when I discovered that, despite being told ‘other insurance providers are available’ there was only one provider and the insurance was paid as part of the process of receiving the court order. In my view the insurance, which is paid from the money being administered, is the very least of a Deputy’s problems.

One of the sisters asked about outstanding bills. The Local Authority’s position statement  said that P had refused to pay for costs arising from her supported living accommodation prior to going back into the health care facility, so I imagine this was one of the bills about which she was concerned. The sister said she had thought that the Local Authority had been managing the finances and was clearly not aware that, until there is a court order, no-one is able to access someone else’s funds. The Local Authority did say that they had become DWP appointees, however, so had been receiving whatever benefits P was entitled to. The sister quite naturally wanted to know what had happened to this money but the judge said it was not a matter for the court. The Local Authority said something about it having been sent to the health facility where P was currently a patient – but that didn’t make much sense to me, unless it was a small sum suitable only for personal expenses.

The sisters were also concerned about other bills, I think. From my own experience, during the three years that my mother was unable to manage her finances and was still living in her own home, almost no bills had been left unpaid because essentials were on direct debit or standing order, but I can see how it might be a major concern. This is the problem when people do not set up a Property and Finance Lasting Power of Attorney in advance, appointing someone to manage their affairs when they lose capacity to do so.

I can’t help feeling that there is a serious gap in the law which is supposed to ensure the best interests of someone who has been judged to lack capacity and yet (in the absence of an LPA) leaves their property and finances in limbo until another quite separate and lengthy legal process has taken place. I was very lucky that my mother’s house was not vandalized, as P’s house obviously had been.

The sisters clearly didn’t want the Local Authority to act as Deputy and hesitantly agreed that they were prepared to take on the role themselves. They asked how this would proceed. The judge said they would be sent forms (again repeating the need for insurance, which is not part of the application process) and my heart dropped as I considered how long the process would take – currently 4-6 months. However, it was later agreed that the application, once completed, could be put before an urgent business judge. 

The Local Authority wanted assurances that P’s house would be sold. They were concerned that no bills had been received from the health facility but were to be expected (which I don’t understand since it’s part of the NHS). The sisters wanted the option of renovating the house before selling but the judge said time was of the essence, as the health facility had wanted to discharge P since the beginning of the year. Unless the house was sold there would be no money for a flat, which he said was clearly the only thing that would make P happy about leaving the facility. The sisters agreed but still thought the process couldn’t happen quickly. The judge didn’t think selling would be a problem since there was a shortage of houses on the market at present. To my mind, this did not take into account the condition of the house. My mother’s house wasn’t in anything like as bad a condition as P’s house and yet people were unwilling to buy something they couldn’t move into immediately. That’s not to mention the time the legal process seems to take these days. It also didn’t take into account how difficult it might be to buy or rent a suitable flat for P in the current market.

The judge suggested that the sisters should prioritize finding a solicitor and estate agent. Again, I thought of the timescale in my own case, with no estate agent being prepared to put the house on the market until the Deputyship order was agreed, but then it seems this order will be expedited. 

There were also problems with one of the sisters being busy at the moment, moving house herself, and a suggestion that the Local Authority might act as Deputy in the short term. The sisters were against this idea because they didn’t trust the Local Authority, which they believed was responsible for the water damage in the house. No details were given but, again, I wonder if the sisters understood how powerless everyone is without a Power of Attorney or Deputy order.

I was concerned when the judge, returning to the Deputyship application process, referred only to form COP4 (and the insurance, again) and said that he expected the Local Authority to provide it for the sisters to complete. This is only one of several forms that comprise an application, being the one in which the applicants agree to take on the role and say how they will act in P’s best interests. Other forms include the application itself, a statement of assets, and, hardest of all in my case, the ‘assessment of capacity’ which has to be completed by a professional; it took me two months to get mine. There are also forms to be sent to interested parties to get their consent, which is presumably the stage in the Local Authority’s application at which P’s mother had intervened, leading to the current hearing. 

The Local Authority responded by saying that their normal process in such cases was to guide people to the Court of Protection web site for the necessary forms. The judge seemed happy with this and I was left wondering if there had been a serious failure of understanding. It seems likely that the judge expected the sisters to be able to in some way piggy back on the existing application made by the Local Authority. That raises questions with me about the legal process but, also about the Local Authority’s willingness to help. In my own case, the Local Authority gave me no option but to apply to become Deputy and, having thrust the role upon me, offered me no help whatsoever, not even referring me to a website! I worried that the sisters were being cast adrift.

This feeling was strengthened when the judge once again mentioned insurance and one of the sisters was prompted to ask how costs would be reimbursed and would they need to keep receipts. From that I gathered that she still didn’t realize that being a Deputy means taking full responsibility for the person’s finances yourself, rather than claiming money back from someone else. The need to make an annual report to the Public Guardian had been mentioned in passing but I doubt if that was meaningful to the sisters at this stage. It certainly took me longer than an hour (the time taken for these proceedings) to get to grips with what was involved with being a deputy, understanding how deputies are held to account and the responsibilities and labour involved.

It was decided that the case would be revisited in the first week in September. I can’t say I’m optimistic that much progress will have been made unless the Local Authority take it upon themselves to provide the sisters with a lot more guidance than simply referring them to the Court of Protection website.

Georgina Baidoun was the lay Court of Protection Deputy for her mother’s Property and Financial Affairs until her mother died last year. Because of the difficulties she experienced with several applications to the Court, and with the Office of the Public Guardian in connection with her annual report, she has retained an interest in these areas, including attending recent Court of Protection Users Group meetings. She is keen to share her experiences in the hope that she can help others who have to engage with these institutions with very little help or guidance. The book Court of Protection Made Clear appeared to be a godsend but often failed to answer the actual questions that arose. She tweets as @GeorgeMKeynes

Anorexia and refusing nutrition: An observer’s perspective on A Mental Health Trust v BG

By Charlotte Buck, 4th August 2022

This case concerned Anorexia and the refusal of clinically assisted nutrition and hydration (CANH) – another sad case brought before the Court of Protection for which the circumstances are all too familiar. 

I have always been interested in complex medical-ethical cases and, having volunteered on hospital wards for six weeks myself, I empathise with the struggles of professionals and patients. 

During my master’s degree in Medical Law, I had to select a topic for my 15,000-word dissertation. My dissertation, titled ‘Anorexia Nervosa – the Assumption of Incapacity’, meant that I extensively researched Anorexia cases before the Court of Protection, all of which centred on the refusal of CANH. I discovered that in the cases I read, Anorexics were always found to lack capacity to refuse treatment. Cases were subsequently brought before the Court of Protection seeking an order that treatment be stopped in the patient’s best interests. Whilst the proceedings were ongoing, the Anorexic was compelled to endure forced feeding.

The graphic detail of what forced feeding involved and the impact on patients captivated me. On the one hand, individuals, often young women, were dying due to withdrawal of treatment being held to be in their best interests. On the other, these individuals had undergone extensive forced feeding which often contributed to the worsening of their condition.  

Having offered to observe Court of Protection hearings, I was, therefore, given my background interests, surprised to discover that my first case as an observer concerned withdrawal of treatment and an Anorexic patient.

I watched three hearings in this case – on 26th April 2022, remotely (before Cobb J) and then on 6th May and 23rd May 2022 in person in the Royal Courts of Justice (before Cohen J).  I am reporting on this case some months after these hearings because there was an unusually restrictive  Transparency Order preventing publication of details about this case.

The judgment has since been published: A MENTAL HEALTH NHS TRUST v BG  [2022] EWCOP 26 and this case has generated mass media attention: for example, “Teen with eating disorder dies, two months after judge said doctors could stop giving nutrition” (Sky News); “Teen with eating disorder dies weeks after court said she could refuse treatment” (Metro). Many people on social media have expressed concerns about the outcome, saying that she was “failed”, “considered a lost cause” or “condemned to death” by the Trust’s application to withdraw treatment, The judge’s decision has been described as “disgraceful” and “devastating”. 

However, from the stories published, and the reaction to them, I note that there’s a lack of awareness of what happened during the court hearings and why the decision was reached. I hope that by sharing this blog I can enlighten readers on what occurred during the three hearings and why the judge made the decision he did. 

THE CASE

The case (COP 13920979), before first Cobb J and then Cohen J concerned a 19-year-old female referred to in the judgment as “BG”,  diagnosed with Anorexia Nervosa, Anxiety, Depression, and Mixed Personality Disorder (although she denied the last). Personality disorder diagnoses are hugely contested  with many people challenging their diagnosis.  BG had also been diagnosed with Chronic Fatigue and Chronic Fibromyalgia.

The parties in this case were the NHS Trust, BG and BG’s parents. The Trust was represented by barristers from 39 Essex Chambers: Parishil Patel QC for the first two hearings and Nicola Khon for the final hearing. BG was represented by Sebastian Elgueta of Garden Court Chambers. The parents of BG were litigants in person. The Official Solicitor, Mr David Edwards, was in attendance throughout the proceedings. 

BG first encountered mental health services at the age of eight. She had been receiving continuous care from psychiatric services since 2018. In early 2022, she had 9 sessions of electro-convulsive therapy. Her nutrition was delivered via nasogastric tube feeding (defined as a ‘medical treatment’ following Bland 1993). It is estimated that she’s received over 1,000 nasogastric feeds under the restraint of no fewer than four staff members, which caused her immense distress.

As emphasised by BG’s psychiatrist, who appeared in court and gave evidence, it has consistently been her wish for all active treatment to stop, even though she is aware that this will lead to her death. 

If a person has capacity to do so, they can make their own decision to refuse medical treatment, including refusing CANH,  even if this results in death. 

While BG and her family asserted that she had capacity to make the decision to refuse nasogastric feeding, the treating team disagreed. 

Under Section 4 of the Mental Capacity Act, if a person is found to lack capacity, treatment decisions must be made in their ‘best interests.’ 

The Trust, therefore, sought an order that it is it would be lawful and in her best interests for BG not to receive any artificial nutrition and hydration against her wishes nor to receive any other medication or treatment against her wishes.

Hearing 1 – before Mr Justice Cobb, 26th April 2022

The first hearing was virtual in front of Mr Justice Cobb and was focused on whether BG had litigation capacity, i.e. the ability to conduct proceedings. 

Mr Patel QC emphasised that as BG lacked capacity regarding treatment decisions, the threshold for lacking litigation capacity had been met, meaning the main issue was ‘who should act as BG’s litigation friend?’ 

In support of this, he referenced Munby J at §49 Sheffield City Council v E [2004] EWHC 2808 (Fam), ‘… only in unusual circumstances will it be possible to conclude that someone who lacks subject-matter capacity can nonetheless have litigation capacity’. The case of Northamptonshire v AB [2020] EWCOP 40, a case in which it was accepted that a young woman with a Severe and Enduring Eating Disorder did have litigation capacity, was distinguished from the present case. Mr Patel QC relied on the psychiatrist’s report which found that although BG had the ability to understand and retain information relating to court proceedings, she could not weigh and balance the issues that the court needs to determine, meaning (he said) that she lacks litigation capacity.

BG’s legal representative and her mother disagreed. Mr Elgueta drew on one specific example where BG had previously agreed to undergo ECT treatment despite having strong feelings against this, because she had been advised that any future court would want to be satisfied that all possible treatment options had been exhausted. Mr Elgueta claimed that this ability to balance legal issues demonstrated BG’s litigation capacity.

Additionally, the consequences of denying BG’s ability to conduct proceedings would mean that she would be deprived of her autonomy and any control over the proceedings. Mr Elgueta emphasised the degree of trust and articulation that would be lost if BG was found to lack litigation capacity.

These concerns were echoed by BG’s mother who emphasised how insightful her daughter truly was and that ‘while she has a mental illness, she retains a level of thinking outside of her illness.’ 

As summarised as the beginning of the hearing, BG’s parents endorse their daughter’s decision to refuse further treatment, which they see as intolerable with no further therapeutic benefit. This is an incredibly hard decision for any parent to make, my greatest levels of respect were for BG’s mother during proceedings.

After five minutes of reflection and confirmation that the responsible clinician had nothing to add, Cobb J reached the decision that BG lacked litigation capacity.

Despite acknowledging that he must presume capacity to litigate unless proven otherwise, the report of the responsible clinician appeared to sway the decision. In reaching this decision, he emphasised that the responsible clinician was ‘of some standing’ and had treated BG for over a year. Referring back to Sheffield City Council v E [2004] EWHC 2808 (Fam), Cobb J stated ‘on the evidence seen, it has not satisfied the pretty rare criteria’. 

Although I had researched Anorexia Nervosa withdrawal of treatment cases extensively during my Master’s, witnessing the case play out was more of an emotional challenge than I had first anticipated. Seeing BG at the first hearing, albeit virtually, was difficult. I could see the pain and discomfort through the screen and her anguish when Cobb J decided that she did not have litigation capacity and therefore could not instruct her own legal team (although the same solicitor and barrister would be retained). One successful outcome of this hearing was that BG’s current litigation friend was permitted to represent her, rather than appointing the Official Solicitor.

In giving directions, Cobb J asked BG her preference on whether the final hearing be heard virtually, which was common practice during the pandemic, or in person. BG emphasised that this case concerned her life and all its aspects and requested that the next hearing should be in person.

It was acknowledged by all that the final hearing needed to occur as soon as possible.

Hearing 2 – before Mr Justice Cohen,  6th May 2022

Everyone, including myself, expected that this hearing in May would be the final hearing and that an order would be made permitting (or refusing permission for) withdrawal of treatment. At this point my view was that the judge would consider it to be in BG’s best interests that an order be made for withdrawal of treatment considering the emphasised urgency at the last hearing.

BG was present in court but behind a curtain, which I had never seen before. She was afraid of people seeing her.

However, this was a different judge.  

Whereas Cobb J, the judge at the hearing on 26th April 2022, had not ordered a second medical opinion – considering this not necessary and concerned that it would delay decision-making,  at this hearing on  6th May 2022, Cohen J expressed his concern that a second expert report had not been provided, despite the treating psychiatrist previously stating its desirability. ‘I am anxious that there was not a second opinion’ he said, emphasising that the decision before him is of ‘enormous gravity,’ and ‘I am not convinced all avenues have been explored’.

All parties made submissions that the case should continue despite the absence of a second opinion. 

Mr Patel for the Trust emphasised that treatment had become an ‘incredible burden’ for all with a significant degree of intolerability and that it should be stopped. 

Mr Elgueta emphasised that delaying the final hearing would result in ‘another 4 hours a day of forced feeding which is horrendous’ for BG.

BG (via her barrister’s submission) graphically described the nasogastric feeding as ‘acid under her skin’ and emphasised she found life intolerable.

BG’s mother submitted that although she and BG’s psychiatrist ‘don’t always see eye to eye’, she respects her. She went further stating that currently BG ‘spends 5 hours a day rolling on the floor screaming, scratching herself, pulling her hair… Enough is enough’.  

Despite BG’s mother and counsel for all parties making submissions that it was in BG’s best interests to continue and make an order at this hearing, Cohen J found that a decision of such gravity could not be made without a second expert report.  ‘I realise every single day is crucial and painful, but I am looking at this objectively’.

The final hearing was postponed for a month.

I heard the impact that this decision had on BG.  Her despair came in the form of screaming and wailing which echoed through the corridors of the Royal Courts of Justice. 

I kept thinking about this on my journey home. I was going home to have dinner with some friends; she and her family were going home to another month of continued pain and suffering. Another month of ‘acid under the skin’.

A month to you or me may seem a short period. However, when you have been facing a condition like Anorexia Nervosa for over five years and have continuously been restrained, force-fed and your control limited, a month can seem like forever. 

I returned home and awaited notice of the final hearing.

Hearing 3  – before Mr Justice Cohen, 23rd May 2022

Two weeks later, I received an e-mail that the case had been moved forward.

It was not until I arrived at the court that I learnt why. BG had taken an overdose to end the life she had seen as so intolerable. 

She had been placed at another hospital and the importance of the order was now greater than ever. 

BG and her family were willing to concede on the issue of capacity to make decisions to refuse medical treatment, since at that point she was in hospital following the overdose.

At the first hearing, Cobb J had emphasised the need to act quickly. This was reiterated by the barristers in the second hearing.   Yet the final hearing had been delayed while a second opinion was sought. While I understand the need for a second opinion in a case of such gravity, I couldn’t help but think that this delay could have been avoided if the necessary second opinion had been sought sooner. If an order permitting withdrawal of treatment had been made at the previous hearing, BG would have had no reason to take an overdose.

The court had now received the second expert opinion from Dr Tyrone Glover, a consultant psychiatrist with a specialism in eating disorder psychiatry.

Dr Glover has been the appointed expert in every Anorexia capacity case I have researched. He has, in previous cases, stated that ‘anyone with severe anorexia would lack capacity to make such a decision’regarding refusal of treatment (See A Local Authority v E).

In this case, Dr Glover agreed with the outcome of the best interests meeting that had concluded that it was in BG’s best interests for active treatment to be discontinued. In his opinion “medical treatment so far, no matter its well-intentioned nature, has not in any way helped BG’s suffering to reduce.  It is very reasonable to claim, and I suspect that Dr Z would agree, that it has added further pain.  It must be in her best interests now for this to stop”. (§47 of the judgment).

After a brief examination of the psychiatrist responsible for BG’s care, Cohen J made the order that withdrawal of treatment was in BG’s best interests and therefore lawful.

After the order was made, BG’s mother let the court know that her husband had texted her to say that BG had cried with joy and relief at the news. Treatment would be stopped, and she could go home.

Everyone had agreed that it was in BG’s best interests for treatment to be withdrawn. That was not a contentious issue. But what I found interesting was that the Trust’s solicitors notified their barrister after the oral judgment that the judge had not made a ruling on capacity. They had earlier reminded the judge that he had to rule on capacity to refuse treatment first, as a necessary precursor to ruling that treatment could be withdrawn in her best interests.  He found BG to lack capacity.

I realise that BG’s capacity to refuse treatment was questionable, and I am not saying that Cohen J made the wrong decision. However, I found it rather sad that BG and her family conceded on their previous assertion that she had capacity to make decisions regarding refusal of medical treatment, and I could not help but wonder if this was to just get an order as soon as possible rather than what they believed (or perhaps the overdose had influenced their perspective).

Comment

After the case concluded, I thought about the future for BG. 

Her mother did not rule out the prospect that once BG returned home and “from the torture of NG feeding, BG might feel a little differently and might wish to try drinking a little supplement.”

BG’s treating clinician, Dr Z, when asked by the court, stated that in her opinion BG had roughly seven days left to live once treatment was withdrawn. 

In fact, BG went on to live for two months without forced feeding.

I have seen a great deal of concern about this case, and rightly so. No one want to hear that young individuals diagnosed with conditions from which recovery can sometimes be possible, have been allowed to die. 

But this case goes deeper than that. 

The law retains a strong presumption that all steps will be taken to preserve human life. This, however, is not absolute. “There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery” (Mental Capacity Act 2005 Code of Practice s42). The treatment in this case was CANH, feeding BG against her wishes, with restraint, which has clearly caused significant stress for BG.

After witnessing this case, hearing the poor prognosis and the exhaustion of BG, I agree that this is one of those exceptional cases where the ‘negative aspects of treatment outweigh any potential benefit.”

The decision that continuing treatment was not in BG’s best interests was not made by BG’s psychiatrist alone. BG’s family agreed that continued treatment was futile, as did the independent expert Dr Glover, who concluded that ‘medical treatment … has added further to her pain.’ Although CANH may allow others to retain a healthy weight and to receive further treatment that they want, and/or that is in their best interests, it had not worked for BG. Instead, it worsened her suffering.

The Court of Protection has developed a reputation as a “secret and sinister” court.  

Most people when asked why or under what circumstances they could end up in court, focus on the criminal justice system and do not even consider the Court of Protection. However, what this case demonstrates is that this court has the power to make significant decisions – including on life and death. If we lose capacity to make decisions about medical treatment, or where we live and receive care, or who to have contact with – through mental illness, or brain injury, or dementia for example – then any of us, or our loved ones, could end up being at the centre of proceedings in the Court of Protection.

Being an observer allowed me to witness for myself a case concerning the life and death of a young womanl of similar age to myself. It opened my eyes to the struggles of her, her family and the clinical teams who want the best for their patients. I would strongly recommend that anyone, whether they have an interest in the law or not, go and observe a case.

It is the only way to ensure that open justice in the so-called ‘secret’ court is upheld and it enables us to gain a greater insight into cases beyond newspaper headlines (and even the published judgment).  Instead of merely seeing the outcome, we experience for ourselves the process by which justice is done, as it unfolds in real time, and as we accompany those at the centre of the case through the weeks and months of the proceedings.   

Charlotte Buck is a current Bar Course Student with a particular interest in the Court of Protection and Anorexia cases. She has a Master’s in Medical Law from King’s College London. Charlotte has worked within a hospital setting as part of a BBC 2 documentary titled the Big Hospital Experiment, which focused on young people assisting the NHS. Educating others on Medical Law and the Court of Protection is her motivation for participating in the Open Justice Court of Protection Project. Charlotte tweets @charlotte_jb17

Editorial Note: For our blog posts about another anorexia case in the Court of Protection (Northamptonshire Healthcare NHS Foundation Trust v AB [2020] EWCOP 40 (16 August 2020) see:

Bearing Witness: Anorexia Nervosa and NG Feeding

A Patient with Severe and Enduring Anorexia Nervosa: The need for a declaration and the capacity to make a decision 

“I have reached a clear conclusion that AB lacks capacity to decide whether or not she should be tube fed.” – Commentary on Judgment 

Observing a s.21A hearing and the importance of correctly drafting a Lasting Power of Attorney

By Anna (daughter of a P), 3rd August 2022

This case concerned P, living in one care home but with a proposed move, against her wishes, to another. I found it particularly interesting in terms of the reach and limits of a Lasting Power of Attorney.

The hearing was listed (on the Open Justice Court of Protection website) as follows: 

Monday 25th July 2022

DJ Eldergill 

First Avenue House (remote) 

2pm COP 13832291 AJ -v- LB Waltham Forest (1 hour) 

Section 21a Deprivation of Liberty 

For access, email: courtofprotectionhearings@justice.gov.uk

(Tel 020 7421 8718)

I have already written about the experience of gaining access to this hearing and my thoughts about that (“Accessing a Court of Protection hearing as an observer”).  

In this blog post, I will write about the hearing itself and my experience of observing it. 

The hearing lasted 30 minutes. 

After the hearing, I emailed both barristers to ask for a copy of their position statements. I received a copy of the applicant’s statement (the Local Authority) the same day, but have not received the position statement from P’s litigation friend, the Official Solicitor.  After pursuing it on my behalf, it was sent to Celia Kitzinger, who has drawn on it in editing my blog post for accuracy.

I have to say that reading the applicant’s position statement afterwards shed light on a lot of what had been discussed in the hearing. I tried to follow what was being said during the hearing, but I think I made some assumptions that turned out to be wrong and realized this once I had read the position statement. This shows the importance to me of being able to read position statements in order to gain a much better understanding of the case. 

For this blog, I will first note what I learned from observing the hearing and will then supplement that by what was learned from the position statements, before finally making my key observations. 

Joining the hearing

Having received the MS Teams link for the 2pm hearing, I logged on 10 minutes before to ensure I was in good time. 

I’d been told that the hearing might not be going ahead, because the parties were working towards a consent order. Luckily, having logged on, I stayed in the waiting room and at 2.05 the meeting was opened. There were a number of other people already in the hearing when I was admitted, and I was the last to join before the judge, so it seemed to me as though there had been some sort of pre-meeting, probably to do with working towards the consent order. 

The clerk welcomed everybody and asked if they were ready and then said that she would join the judge. 

I had planned to email the barristers at the beginning of the hearing to ask for their position statements but, as it turned out, I wasn’t clear at first who the barristers were. I pulled up the list of participants but it was just names plus the words “external” or “guest”. Twelve people were participating in total,  but apart from the couple of times the clerk spoke, the only people with cameras on were the judge (DJ Eldergill),  Carol Knotts and Amos Waldman.  As they did most of the talking, I assumed that they were the barristers and after the meeting I googled them and sent emails asking for a copy of their position statements. If I hadn’t observed or been involved in a COP hearing before, I think I would have been a little confused about who everybody was. 

On a practical point, I had planned to type my notes as I observed as a means of speeding up my note-taking, but as the hearing started, I realized that it would be quicker for me to write by hand. I tried my best to keep up but am conscious that I missed out some things due to my speed. The hearing was being recorded and transcribed for the court, but of course I was not allowed to record it myself, and observers don’t have access to the recording or transcription. However, I am going to use the position statement to fill in the detail where necessary.

The first thing that happened after the judge joined was that he mentioned there was an observer, and named me. He asked me to confirm that I understood the confidentiality of the case and that nothing I did should enable the person being discussed (“P”) to be identified. I confirmed by voice, camera off, that I understood this. I haven’t received a copy of a Transparency Order.

For my benefit, he then gave a brief summary of the case, which he stated was a Section 21A application. This is the gist of the summary he gave. 

The protected party at the centre of this case, (“P”), is currently resident in a care home, which I gather is near her old permanent place of residence. The issue at hand is whether she should stay in that care home or be moved to another one (S) to be close to her son (“MS”), daughter-in-law (“AS”) and grandchildren. P herself has said that she wants to go back to her old home (the house she used to live independently in). 

Three of the parties – the Official Solicitor (representing P) and her son and daughter-in-law, who P appointed with Lasting Powers of Attorney (LPA) for Health and Welfare, believe that it is in her best interests to move to the new care home, which is close to them in “X county”. 

The local authority position is that it would be in her best interests to stay where she is. The case is to decide which care home she should reside in. 

A return to her own home, which is what she would prefer, is not an available option.

Counsel for P via the Official Solicitor explained that a Round Table Meeting had been held before the hearing and that the Official Solicitor believes it is in P’s best interests to move to the new care home (S).  There were currently two places available at “S” care home but they were not being held for P and therefore time was of the essence if the judge decided that she should move to there. 

DJ Eldergill did not report,  as part of his summary, what “impairment of, or… disturbance in the functioning of, the mind or brain” (s. 2(1) Mental Capacity Act 2005) P was said to have The word “dementia” was mentioned later in the hearing, and reading the applicant’s position statement later confirmed that P has dementia. 

I assume (though it wasn’t explicitly said) that P has been deemed to be not able to make the decision about where to live (i.e., she cannot “understand”, “retain” or “weigh” information relevant to that decision, s. 3(1) Mental Capacity Act 2005).  So, a decision needs to be made in her best interests.  

The position of the parties

I completed a lot of my understanding on reading the position statement. 

The applicant for the case was actually the local authority (unlike in my mother’s case, where it is my mother).  The protected party, P, is the first respondent and MS and AS are the second and third respondents (so the son and daughter-in-law are official parties to the case as litigants in person i.e., they did not have lawyers representing them).

Local authority

The applicant (the Local Authority) is I assume representing the point of view of the social worker, which is that P should stay in her current care home because force would need to be used to move her and it would be very distressing for her. It was reported that P is very clear that she does not want to move to the new care home.  She is quoted as saying that if her family want to see her more often, then they should move nearer to her.  She is “adamant” about not wanting to move. As the local authority position statement says: “Given P’s explicit objection to the move, in [the social worker’s] opinion it would be disproportionate to move P given that significant coercion or restraint would be necessary”. She would be “extremely distressed and unsettled, given her expressed views”. 

Official Solicitor 

However, P’s litigation friend, the Official Solicitor, believes that it is in her best interests to move to the new care home, even though she doesn’t want to.  The Official Solicitor is balancing P’s wishes and feelings against P maintaining contact with her family, and the fact that contact will be easier if she moves to the new care home.  The arguments for and against the move are (says the Official Solicitor) “very finely balanced” – but family contact has swayed the Official Solicitor who also “hopes that any such move will not lead to a breakdown in the relationship between P and her son, given his support for the move”.

I don’t think I had appreciated before that the Official Solicitor, who is appointed to represent the protected party, can take a position which is opposite to what that person says they want. This is because the Official Solicitor isn’t supposed to represent the incapacitated person’s wishes and feelings, but merely to elicit them and take them into account in making a best interests decision.  Many of us want to do things that others consider not to be in our own best interests.  When we have capacity to make our own decisions, we can do that.  When we are deemed to have lost that capacity, then decisions are made for us in our own best interests – which may be very different from what we would choose for ourselves.  (For more information see Alex Ruck Keene’s blog post: “Litigation Friend or Foe” and Jenny Kitzinger’s reflections on whether this is the way the law should be, drawing on a case she observed over many hearings: “Should P’s litigation friend instruct P’s lawyer to promote P’s wishes and leave best interests decision-making to the judge?”). 

MS and AS

It was then highlighted that P’s son MS had provided a statement for the court (at the last minute I gather) but due to technical difficulties (and this was not a criticism of him) not all of the paragraphs were visible in the document. 

I ascertained that it was not possible for the judge to make a decision today. My notes aren’t complete at this point, but I believe there was a question of a request for a judicial visit to P. (I later understood from the position statement that there was always going to be another hearing after more evidence had been gathered).  

The issue of timing was then discussed.  The judge explained that he worked 90% as a judge but 10% of the time in academia. Unfortunately, he explained, August would be taken up by his academic work. (I subsequently looked him up on LinkedIn and saw that he is a Professor of Law at UCL university, London).  He thought that it would be hard for another judge who had not been involved in the case previously to do the judicial visit, so this would have to be delayed until September (therefore delaying a final decision until then). 

The LPA documentation

At this point the judge raised a legal point – that the complete LPA documentation seemed to be missing from the bundle and that indeed the bundle seemed quite “short”. Ms Knotts confirmed that it was indeed short. At this point Ms Bashir (who I assume was the solicitor instructing Ms Knotts) spoke to say that she was new to the case (covering for a colleague) but she could check to see if there was a complete copy of the LPA in her bundle. 

MS, P’s son, confirmed that he had only sent the first two pages of the LPA and so the judge asked him to send full copies. 

The judge also asked MS to check the LPA to see if any reference had been made by P along the lines of “In case of incapacity I do not wish to be admitted to a care home”. The judge specifically asked “Do you remember if P wrote anything like that?”. MS replied “I’m not sure, I would need to check”. At that point P’s social worker (as I understood her to be once I had read the position statement) interjected to say that she had a full copy of the LPA and there was nothing in there about a care home. DJ Eldergill then asked MS if his mother had any savings, to which MS replied “No she doesn’t”. 

I believe that the following point made by the judge is really important and interesting and I will comment further on it below. 

The judge then made important reference to a precise point of law which unfortunately I didn’t catch. He explained that assuming that the LPA document the social worker had consulted was the only one in existence, then P hadn’t expressed a written wish, in the LPA documentation, about a care home. 

He referred to Section “L?” that there can be no (words not captured) if a person had not given their consent. He then referred to Paragraph 20 of Schedule A1.  He said it was open to MS and AS to withdraw their consent to P residing at her current care home and then the “standard authorization falls away”:  then they can give their consent to her residing at the new care home, closer to them.

His next words were very pertinent to my mother’s case and seemed to be at the crux of the issue of the authority granted by a doner of an LPA. DJ Eldergill stated that P had appointed her attorneys to make a decision, and a judge can only interfere if he thinks they are not acting in her best interests, in which case he can remove them as LPAs. He also said that a different judge could come to a different view that they should be removed as LPAs (implying if they felt MS and AS were not acting in Ps best interests.)

He then asked for thoughts (on his reasoning I suppose). 

Mr Waldman stated that the local authority would be funding both homes, I imagine to highlight that from a financial perspective the Local Authority was neutral as to which home P resided in. I later read in the position statement that the cost to the Local Authority would be the same whichever care home P lived in, so that confirmed to me that cost did not have a bearing on the decision, which in my opinion is a good thing. (I don’t know what the discussion would have been if there had been a vast difference in cost for the Local Authority). 

The judge asked the participants if they would like 30 minutes to discuss the best way of moving forward and Mr Waldman stated that they would prefer a few days, as some of the legal personnel dealing with the case were new to it. The judge asked the participants to discuss this between themselves. (Presumably this would be after the hearing, which is why I was asked to leave the meeting at the end of the formal hearing – see below)

The judge then asked his clerk to find a time in his diary when he could visit P at her current care home. He suggested that he would need a half day in September for the judicial visit (including travelling time), before a 2-hour final hearing in later September. The clerk found 3pm on 7th September (for the judicial visit) and 10.30am for a hearing the week after. The clerk mentioned “Box days (?)1” with reference to the diary and the judge said that he would have to “clear that with the senior judge”. He then said (partly for my benefit I thought, but also for all lay people present) that there were 40,000 applications a year (to the COP I assumed) and only six judges to try to get through the backlog. Therefore, he needs permission to do a hearing or allocate additional time (on a “box day”). He then confirmed there would be a 2-hour final hearing, in person at First Avenue House, in mid-September 2022, and asked if everybody agreed to that. 

DJ Eldergill then asked for it to be “clear”: Does everybody agree that only residence in a care home is a realistic option? 

There was then some comment about the family home that I didn’t catch. I think it was along the lines of the family home had been signed over to the children and the rights of occupation of P. The judge asked MS even if his mother had signed the home over to the children, was there the expectation that she would be able to live there?  MS explained that there were discussions about the size of the home (I got the impression it was too big a house and the question was whether she would be able to manage it) and whether she would move closer to them. 

The judge then said “to be blunt, most people who sign properties over to children do it to avoid tax or so as not to have to pay for care home fees, but the understanding is that they would be able to reside there”.

In response, MS replied that he had been paying the mortgage for the past 15 years as well as paying all the bills. 

The judge appeared satisfied with these explanations, as without further comment he asked Mr Waldman to confirm next steps. 

There was then a discussion as to the setting for the next hearing, and whether it should be at the care home so that P could attend or whether it should be remote. At this point P’s solicitor spoke, and said that P had not expressed a preference as to attendance at the hearings. The judge said that he wanted it to be an attended hearing as “final hearings should be in person if possible”. 

The discussion of timings of future hearings would be incorporated in the order. Mr Waldman then asked about the need for an “advocates meeting”, along with the solicitors. The judge said that this could be an allowable expense, because it could result in an agreement that would result in the final hearing being vacated. But then there was a concern expressed that this would exclude unrepresented persons and it was asked whether a Round Table Meeting would be better to agree a final order to which the reply was “yes”. (Subsequently I googled  “advocates meeting” and came across an explanation in the very useful downloadable pdf: A Basic Guide to the Court of Protection.)

At this point the judge asked me to leave the meeting as the hearing was over but the parties would then carry on their private discussions. It was 14.36 when I left, so the hearing had lasted just about 30 minutes. 

My key observations 

I would like to concentrate on certain aspects of this hearing. 

First, the role of the LPA. It struck me from this case, and from being involved in my mother’s case, that how the LPA is drafted is crucial. My mother’s involved a trip to a solicitor, but another I have been involved in was simply a form completed online. This case shows how important it is to clearly think about arrangements for future care and specify them if necessary. According to the position statement, MS and AS hold Lasting Powers of Attorney which expressly provide for their involvement in deciding where P should live. This presumably is why the judge said it was up to them, if they were deemed to be acting in P’s best interests. Families should make sure that the views of loved ones are known and expressed in the LPA to carry legal weight.  Many families probably think that holding LPA for health and welfare means the LPA can always decide on a person’s behalf, but from my mother’s case I know this isn’t true. 

I really wish that at the time we had completed the LPA with my mother we’d realized the importance of the Preferences and Instructions section of the form. That is addressed in an earlier blog (Lasting Powers of Attorney by Heledd Wyn) which I wish had been available to us. Maybe, in an ideal world, the wording on the form would be changed from “most people leave this section blank”, which implies it’s not important! 

I’m also conscious that I haven’t done an LPA myself and nor have most of my friends (all middle-aged). You never know when something could happen and it really is something that should be done sooner rather than later. 

Observing this hearing made me think about my mother’s situation and ongoing case. We are quite happy with the care home that mum has been placed in and I have read that it is inadvisable to move somebody with dementia from a place where they’ve been living for a while, and are settled, to anywhere else. This view is obviously dependent on the current care home being of good quality.  I read this article which I found on the internet whilst doing some research: “Expert warns of risks of moving people living with dementia“. Even though my mother says she wants to move, hence the Court of Protection case, there seems to be evidence that moving her would be difficult for her and add to her symptoms. This is in fact one of our arguments for saying she should stay where she is. So, it was interesting for me to see that this had not been raised as an issue at this hearing and obviously each case is different. 

I really appreciated the summary by the judge, and his welcoming approach. I did miss a quick explanation of who was who and their roles though. I don’t know whether this is normally done or not. 

I was struck that continuity of personnel can be difficult and have an impact on time taken to settle cases. Certainly, there seemed to be some new people involved in this case, whether through holidays, COVID-19 etc. 

I was impressed that the judge wanted to continue his involvement in this case to ensure continuity. I was also struck by the demands on a judge’s time, especially if they have wider activities, as DJ Eldergill does. And the number of cases and backlog shocked me. I found it interesting that diary scheduling is done in the hearing and this highlights the important role of the clerk. 

The voice of P seemed to be absent in this hearing and it seems to me that a judicial visit to the care home would be beneficial to her. I thought it was good that the judge was making time to visit her in person rather than trying to do it by phone. 

The overall tone of the meeting was very positive, non-adversarial and there seemed to be a large degree of agreement between the participants. The judge was very welcoming and the overall impression from everybody was wanting to do the right thing for P. 

Ideally, I would like to attend the final hearing, but due to geographical constraints I won’t be able to. Remote hearings for me make observing a hearing much easier. I was glad I was able to attend and observe this one as I learned a lot from it. 

Anna is the daughter of a woman who is currently a P in a Court of Protection s.21A application.  She’s not using her real name because she wishes to protect her mother’s privacy, while also hoping that other families can benefit from reading about her family’s experience.  She hopes to blog in future about the hearings as the case progresses through the court.

1, ‘“Box work” is when a judge works on cases to make orders which do not require a hearing. Often this will involve giving directions in preparation for a hearing or asking parties to provide additional information before making a final decision.‘ (Thank you to Nicholas O’Brien @CoramNickOBrien for tweeting this response to the blog post.)

Accessing a Court of Protection hearing as an observer: My experience

By Anna (daughter of a P), 2nd August 2022

As a layperson completely new to observation in the Court of Protection (COP), I thought it would be useful to document my experience of what it is like to ask to observe a hearing. 

In this blog, I describe the process of gaining access to one hearing and I hope it will reassure people like me that it can be relatively easy once you know what to do. 

Background

I am contributing to the Open Justice Court of Protection (OJCOP) Project because I am involved in a COP case myself, as a family member. 

My mother, who has Alzheimer’s, was admitted to full time care under an emergency deprivation of liberty authorization in August 2021. She had nominated my sister as her Lasting Power of Attorney for Health and Welfare  – and both she, and the whole family, all agree that it is in my mother’s best interests to be in the care home. However, my mother is making a section 21A appeal via her litigation friend, the Official Solicitor, as she wants to return home, and so she is now involved in a hearing as P in the Court of Protection. 

Not knowing anything about how the Court of Protection works, I contacted the OJCOP Project back in April 2022 and have since learned a lot more through reading the blog postings, observing a s.21A hearing (and writing about it here: “A section 21A hearing”). I’ve since participated in a first directions hearing for my mother, and am joined as a party.  I want to observe further hearings so that I can carry on educating myself about how the Court of Protection works, as well as helping others who may find themselves in my situation. 

Asking to observe: my experience 

I am particularly interested in Section 21a Deprivation of Liberty cases, as that is the type of case I am involved in. I follow Open Justice on Twitter (@OpenJusticeCoP) and I saw that there was such a case listed on 25th July 2022. The tweet,  reproducing the listing for First Avenue House in London, read like this:  

Monday 25th July 2022

DJ Eldergill 

First Avenue House (remote) 

2pm COP13832291 AJ -v- LB Waltham Forest (1 hour) 

Section 21a Deprivation of Liberty 

For access, email: courtofprotectionhearings@justice.gov.uk

(Tel 020 7421 8718)

As I happened to have some time free, I decided to ask to observe this hearing. 

I am very happy to blog about my observations, although still slightly daunted about doing so. I contacted Celia Kitzinger, who suggested that I email the barristers, once I knew who they were, to ask for their position statements, which would help my understanding of the background to the case.  I should be able to identify the barristers, she said, because they’d have their cameras on and their names would appear on screen at the start of the Teams meeting.  I could then google them to discover their email addresses.

I was a bit anxious about my ability to take notes during the hearing – recording is not allowed so I would have to rely on the speed of my writing. To prepare in advance, I drafted an email to send once I knew the names of the barristers and had located their email addresses.

At 10.37, I sent an email to request to observe the 2pm hearing. I was slightly concerned that this was very late. I got an automatic reply stating the following: 

This response has been automatically generated

We are experiencing high volumes of emails. We’re currently prioritising all URGENT emails, please note due to large volume of emails, you will not be getting acknowledgment to confirm receipt of your email.

I decided that I would also ring to make sure that my request didn’t just get lost in the system. I rang the number provided in the listing at 11.39, and the call was answered after about 30 seconds. I stated that I had sent an email asking to observe a case, and provided the case number. The Court representative told me that they had received the email, which had been forwarded to the judge. The judge would give directions as to whether “I would be allowed” to observe the hearing and I should hear shortly. 

At 11.51, so a very short time afterwards, I received an email from the judge himself, with the Court staff on copy, stating that it was fine for me to observe the hearing but that the hearing was unlikely to go ahead as the parties were working towards agreement. I also had an email at 11.59 from the Listing Team, also confirming that the hearing might be “vacated”, but in case it did go ahead they provided me with a link to the MS Teams meeting through which the hearing would be conducted. 

The subject heading in the email from the court was as follows: 

“FW: 13832291 AJ v London Borough of Waltham Forest, Directions, Section 21a Deprivation of Liberty, Remote, Private Hearing Not Open to Public t/e 2 hours”

I hadn’t thought to ask how I would learn whether the hearing would take place or not,  so I emailed the court at 13.30, 30 minutes before it was due to begin, to ask how I would know. I didn’t hear anything back, so I joined the MS Teams meeting via the link at 13.50. I saw the standard message “ When the meeting starts, we’ll let people know you’re waiting”. By 14.05, 5 minutes after the meeting was due to start, I was still waiting. I told myself I would wait another 10 minutes. I also emailed DJ Eldergill to say that I would apply to observe another of his hearings, as this one didn’t seem to be going ahead. 

Then, unexpectedly for me, the meeting (hearing) started. I will write separately about how it went.  

It lasted about 30 minutes. 

When the hearing finished, I looked at my emails. To my surprise, the judge had replied to my email about attending another of his hearings, telling me this hearing was still going ahead and even re-sending me the link. 

Despite having planned to do so, I found it really hard to find the time to contact the barristers during the meeting as I was busy trying to keep up with what was going on. Everybody had joined at the same time (because they’d been together in a pre-meeting) – maybe if people had joined in the 10 minutes before the meeting I would have been able to do this. 

In any case, I looked up the contact details of the barristers after the meeting finished.  They were  Carol Knotts (I found a general contact email at No 5 Barristers Chambers, but not her individual one)  and Amos Waldman (his individual email address is provided on the Doughty Street chambers website).  I asked for their respective position statements. Amos Waldman sent his, after having received permission from his instructing solicitor, within an hour. I haven’t yet received the one from Carol Knotts. I’ve heard that they aren’t always sent. 

It’s interesting what you discover when you google barristers.  I have listened to Amos Waldman talk movingly on Sky News about his grandmother’s death, and being unable to visit her or to have an in-person funeral service at the time when Boris Johnson was partying in Downing Street.  And I learnt that Carol Knotts made the dress featured in the iconic Athena Tennis Girl poster when she was a teenager, from a ‘Simplicity’ pattern.  She lent it to a friend for a photoshoot and the rest is history.

Despite the formalities of a court hearing, learning this reminds me that barristers are human too!

Some thoughts

Despite my initial misgivings, this experience shows that it can be relatively easy to ask to observe a hearing. The Open Justice Court of Protection Project provides a lot of information about cases (where available), including the email address and phone number and information about how to write a letter requesting access (check out their home page). This helps to make Court of Protection hearings accessible to many people. 

I was particularly impressed that I could ask to observe so close to the time of the  hearing. I wasn’t very optimistic about my email being seen so close to the time of the hearing. I don’t know whether it would have been except for my follow-up phone call which was responded to very quickly. 

I was very surprised, and impressed, that DJ Eldergill emailed me directly to let me know that he was granting me permission to observe the case. (I gather it’s very unusual for judges to do this.)  He even used my first name, which made the tone of the message very approachable. Also by his messages telling me that the hearing was going ahead and even forwarding the link. He made me feel very welcome and that it was not an imposition asking to observe. I had given no indication of my involvement with the OJCOP Project either.  I would have thought that a judge would want to keep their direct email address private to protect them from unwanted messages. The tone of the email definitely made me feel as though I was very welcome to observe his cases. 

I know from my own experience that having access to the Position Statements makes understanding cases much easier. I was therefore grateful to receive at least one relating to this case, which certainly helped me understand the case better. Also just to mention that Amos Waldman was very responsive and friendly in the tone he used in his email messages to me – again, I didn’t feel as if I was being an imposition. I do appreciate that sometimes it won’t be possible to access them and how busy the barristers must be!

It was slightly disconcerting when I was told that the judge would consider whether “I would be allowed” to observe the hearing. This is the case because the hearing was listed as “PRIVATE” ( ead more about that here: “Why are so many Court of Protection hearings labelled “PRIVATE”)

In the event I was allowed, and with no difficulties, and no questions asked as to why I wanted to attend the hearing. Some people may have been unintentionally put off by this phrasing. It was also interesting to note that the heading of the email sent to me by the court saying that I could attend the hearing stated “Private Hearing Not Open to Public”. This wording, plus the use of capital letters at the start of the words, could definitely be interpreted as meaning that members of the public, like myself, could not be observers.  It seems that the majority of the time permission is granted, so this wording is very misleading.  Also The email subject heading stated “t/e 2 hours”. I assume that the “t/e” was short hand for “time estimate” but I wonder why it was longer than the 1 hour as per the listing. Luckily, I would have been able to observe for 2 hours (although it only lasted 30 mins as it turned out). 

I am not a legal professional, although I’m becoming more familiar with some of the legal terms relevant to Court of Protection hearings. Sometimes I feel that legal terms can be used without thought for lay people such as myself. Terms used in exchanges between me and court staff during the process of asking for access included “consent order”, “vacate”, and “sit on”, for example. From my knowledge I can guess what they mean but I just raise the point that this could make things more difficult for some people to understand. That said, observing a hearing will undoubtedly mean having to listen and trying to understand “legal speak”. 

It was hard for me to understand whether the hearing was going to take place or not, but I’m not sure what could have been done, other than me just waiting. The judge must have been in the same position – not knowing whether the parties would come to agreement or not.

I hope that my experience will encourage other people to observe hearings, in the spirit of open justice. It was certainly a learning experience for me and I will definitely be observing more often. My experience  – at least of this one hearing – is that accessing a COP hearing is not that hard, once the process is navigated. 

Anna is the daughter of a woman who is currently a P in a Court of Protection s.21A application.  She’s not using her real name because she wishes to protect her mother’s privacy, while also hoping that other families can benefit from reading about her family’s experience.  She hopes to blog in future about the hearings as the case progresses through the court.

A contested hearing about whether or not to have another hearing

By Celia Kitzinger, 26th July 2022

This hearing (COP 13452747 before by DJ Beckley at First Avenue House on 6th July 2022, via MS Teams) was originally intended to be a review hearing to consider how P, a man in his 20s with learning disability, autism and epilepsy, has settled into his new placement.

The plan had been to review P’s new placement six weeks or so after his move.  The date of this hearing had been fixed with that in mind.  

As it turned out, however, P had only moved to his new accommodation 12 days before this hearing.

Counsel for P (Jack Anderson of 39 Essex Chambers, via P’s litigation friend, the Official Solicitor) said that was too soon to be sure that the new placement is working out.  “The whole point of a 6 week review period is to recognise that it takes time to see how things bed down.”

The Clinical Commissioning Group (now known as the Integrated Care Board) represented by Rosie Scott, also of 39 Essex Chambers, disagreed.  The CCG (or ICB as it is now) submitted that P was “settling in well to his new property” and that a further review hearing isn’t needed.  This should be the final hearing, said Rosie Scott.  It should authorise P’s deprivation of liberty in accordance with his current care plans, subject to the usual safeguards, and bring the proceedings to a close.

In addition to the CCG/ICB (represented by Rosie Scott) and P (represented by Jack Anderson), P’s mother and father (I think they are divorced) and P’s sister were all, separately, parties to the proceedings as Litigants in Person. 

The judge summarised the issue before the court like this:

“It seems to me the question is whether I conclude these long-running proceedings today, or whether – given this hearing was to act as a review and to consider how P has settled in and it’s only 12 days rather than 6 weeks after the move – whether I should list another hearing.[1]”

Each party made submissions in turn and I’ll report them in the order they spoke in court: first counsel on behalf of the CCG/ICB, then P’s mother, father and sister (in that order) and finally the Official Solicitor.

Counsel for the CCG/Integrated Care Board (Rosie Scott)

Rosie Scott introduced this hearing by saying it was a “long running” case concerning a young man in his 20s with “severe learning disability, autism, and epilepsy” and “challenging behaviour”.  He’s also registered blind and requires 2:1 24-hour care and support.  Final declarations that P has no capacity in relation to litigation, contact, medication, care or residence were made, she said, in September 2020.

Previous hearings in this case (one of which I observed, on 27th August 2020) have concerned – in addition to issues of capacity – deprivation of liberty, provision of care, restrictions on P’s contact with his father, and covert medication (amongst other issues). 

This hearing had been intended solely to consider how P has settled into his new placement.

His previous accommodation was not ideal because it had no garden and was near a main road.  This had been noted at the hearing I observed nearly two years ago, but none of the participants back then thought there was any urgency to find a different place for P to live because P was accustomed to his flat, could move about it safely, and also because he finds change very difficult, and was facing other challenges, including eye surgery.

Almost two years later, though, this change of accommodation has been accomplished and (according to Rosie Scott) the move went “extremely well”.  P was calm on moving day and seems settled in very comfortably.

There are “some teething problems, like anybody moving” – including “snagging, very common in a move, but all in hand”.  This includes boxing in the shower attachments to render them “unbreakable”, creating a manual override on movement-sensitive lights, and ensuring that the curtains are appropriate.

P’s father had apparently raised a concern with damp at the property, claiming that this is why the previous tenants had left and the damp had been painted over instead of being fixed. Rosie Scott said there had never been any damp (although there had been a leak from a boiler overflow): “It’s certainly not been painted over, and it’s not why the last tenants left”.

There was also some discussion about the garden, which has 6-foot-high fences – so people in the garden can’t be seen from neighbouring gardens but can be seen from the upstairs windows of neighbouring houses.  The relevance of this seemed to be a concern that P likes to be naked in the garden.  “The purpose of being outdoors is Vitamin D and the experience of the great outdoors. It is not considered proportionate to cover over his garden like a tent or marquee – if he wants to be naked in his own garden, that’s up to him. He will be supported to wear clothes but it’s his choice.”

She ended her submission: “We say you could appropriately conclude the case today, given the move has gone well”. 

P’s Mother

P’s mother felt that “Ms Scott has covered everything” but added that “we’re not allowing him to go out naked. We insist he puts his shorts on at least.  He will resist, but in the end, he puts them on.”

She pointed out that the transition (from the old flat to the new one) “didn’t go as we planned”.  The Position Statement from the CCG lists some of (what she called) “the difficulties” she might have been alluding to here, though she didn’t spell them out.  There was the four-week delay in moving which “accumulated through difficulties finalising the adaptations and a combination of smaller issues, such as the removal van being delayed by rail strikes and staffing difficulties (around the time of the proposed move).”  Also, although it had been planned that P would visit the property several times ahead of his move, in fact he only visited on one occasion. 

“Nobody said it will be easy,” said P’s mother.  “It’s really difficult for P to move.  Hopefully it will be just this move and no more in his lifetime.  He was in the other area for 18 years and knows the area and was devastated to move.  But he is getting adapted.  It is still difficult, but we are hoping it will be okay.”

There was a short exchange between the judge and P’s mother:

Judge: How many times have you visited him?

Mother:  Six times.

Judge: When was the last time you saw him?

Mother: Monday.

Judge: Do you have any concerns? Is there anything you think needs sorting out for P to be happy and comfortable there?

Mother:  The shower and toilet are being sorted so they are safe.  We are trying to get him familiar with the area.  We are taking him out for walks and drives.  We are looking into taking him swimming.

Judge: Is there a swimming pool nearby?

Mother: Yes.

Judge: And a difference between the CCG and the Official Solicitor is whether I should conclude matters today or list a further hearing in about six weeks. Do you have a view on that?

Mother:  It is always nice to review the situation so I don’t mind if you are coming back to me in a month or two.

P’s father

P’s father took a very different perspective.

“The information given by the CCG is, as usual, not correct,” he said.  “P has not settled in at all properly.  He had six panic attacks – they are recorded in [care company’s] reports.  I wonder why the CCG keeps hiding things and trying to deny things recorded by the carers themselves.  He had a very major panic attack the day before the move when they were packing up his things – it lasted for over one hour.  On Saturday he had two major panic attacks – one at two in the morning and one at four in the morning.  There are incident reports.  A neighbour came down – they hadn’t told the neighbours about P’s condition – he was about to call the police.  They had only told the neighbours that P was blind.”

P’s father also raised the matter of a complaint he’d made “about the way you [i.e. the judge] conducted the hearing” on an earlier occasion and there was reference to the Judicial Ombudsman and Lord Chief Justice.  I gathered that P’s father had sought permission to appeal orders made on 17th May 2022. I didn’t attend this hearing and don’t know what it concerned but the Transparency Order for the (in-person) hearing on that date  says “the Court will consider allegations made by the CCG in relation to [P’s father]”. I don’t know what these “allegations” were, but I think one of the orders was the Contact Schedule with a penal notice attached that limits his contact with his son.  I understood P’s father to be saying that he had not attended this hearing because he had been refused permission to attend remotely. Permission to appeal the orders of 17th May 2022  had been refused.  The judge said “I can’t deal any further with those matters today. I am focussing on P’s best interests”. 

P’s father then said that “the move was done without preparation – the flat wasn’t ready for him”.  He reiterated his concern that there were problems with damp and moulds (“it’s full of dampness”) which have been covered up with paint.  He was also concerned that “there’s a prison rehabilitation centre 100 yards from P’s flat”. 

Summarising his position, he referred to “the unprofessional way this case has been handled by the CCG and their lawyer”.  He said: “All of these [problems] the CCG wouldn’t mention at all.  So how the hell did it go well?  This is the most ridiculous case I ever heard in my life with the way the solicitors and barristers are acting.  And unfortunately, Sir, you always go with them in what is lies after lies, just to victimise the father.”  

He saw the hearing that happened without his having attended as evidence that “You [i.e. the judge] wanted to go the way you want and the way the CCG wants. This is judicial misconduct by you and misconduct by the CCG and their solicitors.  His mother doesn’t care. I’m the only one fighting for our son.”

The judge intervened.

Judge: I am not going to allow you to use these proceedings to attack your former wife.

Father: Forget about my wife. What about the things I said about you and the CCG?  You have got my son out into a flat that is not fit for purpose. […] I don’t want my son to move to an area with a prison rehabilitation centre.  It’s not safe, according to the neighbours.  There’s a damp problem – and that’s denied by the CCG.  It’s all covering and covering and covering.  There are soft tiles in the garden – I took pictures to provide evidence. The tiles are not fixed or levelled – it’s wavy and P can trip on it easily.  The toilet is broken. The shower is broken.  The curtains only cover half the window – and P hates the light when he’s sleeping.  They just want to get on with it, get him out of [previous accommodation] and finish with all these headaches.  That’s why I told the Judicial Ombudsman.

The judge asked whether P’s father supported the Official Solicitor’s view that another review hearing was needed and he confirmed that he did.

P’s sister

P’s sister said she too would like a further review hearing.  In part,  this is because “it will take a little more time to see how P gets used to it”. 

There’s also the continued work needed on the property – and she’d appreciate a hearing after some of the works have been done and when “communication with the landlord” is established and “we understand the landlord’s level of support”.  

She mentioned the curtains, the shower, the lights, and the judge added “and the loo which is being refixed to the wall today. Anything else?”.  

There were issues with storage space, she said, which needed sorting “so we can move stuff out of the way for him”.  And there’s a problem with locking the front door: the door needs a security pad “similar to the one at the previous flat, so it would be harder for P to open”. 

Counsel for P via the Official Solicitor (Jack Anderson) 

Jack Anderson was brief and to the point: “The key issue,” he said “is whether a further review hearing is needed. The Official Solicitor submits the court should hold one.  As a result of delays in the move of some four weeks, there’s only been a very limited opportunity to see P in his new environment.”  

He had submitted a COP form to the court which had not reached the judge (“the court staff have been badly hit by COVID again,” said the judge, “which is why I guess the COP form hasn’t made its way to me”).  It was sent and he read it (silently) while we waited. I don’t know what it concerned.

Judge’s decision

The judge said that given the snagging issues, the factual dispute about damp, and the fact that P had only lived in the property for 12 days, he had decided that he shouldn’t end proceedings today.

There were difficulties in fixing the date of the next hearing (“August is generally quite hideous for me,” said Rosie Scott; “I’m largely unavailable in August”, said Jack Anderson).  I think the date for the next hearing was eventually fixed for 5th September – although as it turned out neither barrister could make the first week of September either.

A schedule was agreed for the date by which P’s father must file evidence about the (alleged) damp and other property issues and how he considers P has or has not settled in; subsequent dates were agreed for the Position Statements from the represented parties, and for a statement about P’s wishes and feelings.

It seemed that the hearing was about to end but P’s father intervened with new concerns that the care providers were not buying food for P (“when I visited him on Thursday and Sunday, he didn’t have gluten free bread, or water, or wipes. I had to buy it”).  He said “the nearest shop is a 12-minute walk which none of them is willing to do”.  The judge said he was not going to deal with evidence at the end of the hearing. P’s mother said she’d made sure the essentials had been purchased and that “they can order everything for delivery”. 

Father: I would like to be able to buy gluten-free bread for my son.

Judge: The order remains as I made it in May.

Father: I would like to make changes to the order.

Judge: The order I made on 17th May stands.

Father: If I want to ask for changes how can I pursue that.

Judge: You need to take legal advice. I am not able to give you legal advice in this hearing.

The judge then ended the hearing by thanking the two lawyers (who would not be at the next – and hopefully final – hearing) for their “helpful submissions and advice and absolutely professional behaviour in the course of these proceedings”. 

Reflections

Until I started observing hearings, I had no idea that Court of Protection cases could run over several years and multiple hearings – sometimes dozens.  I had no idea how intimately involved in the details of case management the Court can become.  I do wonder whether this is the most effective use of judicial time (and the public purse) but sometimes there doesn’t seem another forum or any other appropriate mechanism for these matters to be resolved.

In this case, the hearing might never have happened if the parties had been able to agree in advance of the hearing and make an application for it to be adjourned and heard at a later date, on the grounds that it was simply too soon after P’s move for an effective review to take place. I imagine that the judge would readily have granted permission to vacate the hearing.  Instead, it took place because the CCG/ICB maintained that the 12-day time period (in place of the six-week one previously agreed) was adequate for a ‘final hearing’. That turned out to be an expensive decision in terms of court time.

This hearing was also painful to watch (as was the earlier one in this case) because of the evident anger and distress of P’s father.  I don’t know what  “allegations” were made against him at the 17th May 2022 hearing, but I heard allegations in the previous hearing I observed about his removing P from his home without consent, and providing P with food considered to be inappropriate for him (on the grounds of possible gluten sensitivity, contested by P’s father at the time).

The issue of contact between father and son was something of a flashpoint at the August 2020 hearing – which took place at the height of the COVID-19 public health emergency.  There was a penal notice attached to the contact schedule then too, and family members were prohibited from removing P from his home without two members of staff to assist.  The rationale for this was, in part, because P would not tolerate a face mask and was unable to comply with social distancing.

P’s father found these restrictions intolerable. “It is not a crime I should be penalised for to have a meal with my son in a restaurant. I need the penal notice to be removed – it wasn’t fair for the CCG to persuade you to agree to it and it’s created grievances between parties for no reason. It became like a stupid thing to call the police every time I took my son out.  It’s ridiculous. It’s against human rights, it’s against humanity.” (Hearing of 27th August 2020)

There had also been conflict over P’s diet: in August 2020 his father had bought him crisps, chocolate and pasta that wasn’t gluten-free.  There is mention, too, in the CCG’s/ICB’s Position Statement for the 6th July 2022 hearing that P’s father had brought food to P’s property (including apples and Smarties) “but that staff threw away the food and none was given to [P]”. 

As a family member of someone who lacks capacity to make almost all decisions for herself, I am acutely aware of how it feels to have the long arm of the state intervene into family life and take over daily decision-making on behalf of one’s relative.  It can feel as though the vulnerable person has been kidnapped by the state – and I imagine it must feel even more acutely the case when that person is someone you’ve cared for since birth, and someone who has never had capacity.  At the hearing back in August 2020, this came through clearly from what P’s father said.  Protesting against the restrictions on spending time with his son he said: “He’s our son – we need family time, that’s what you people need to understand” and “We have to have normal family time. These restrictions are not acceptable, Sir.”  He referred to his own long history with, and detailed knowledge of, his son – all of which (he felt) was now being overlooked and erased:  “I’ve been responsible for my son for 24 years.  He wasn’t born yesterday. He didn’t become autistic 2 years ago”. (Quoted from the hearing in August 2020) 

But this case is not straightforward.  There have been breakdowns in relationships between P’s father and the care providers. There has been “animosity” and “conflict” between family members, and P’s mother and sister are concerned about P’s father’s involvement with P.

Watching this case brings home vividly how poorly equipped we are as observers to assess some of the rights and wrongs of these hearings.  There is a lot I don’t know about this case – because I haven’t observed most of the hearings, I don’t have access to the bundle, and I have no way of deciding for myself which way the evidence points on most matters since I don’t have direct access to that evidence.  Even if I did have all of this information, I’d be in the same position as the judge, but without his extensive legal training and experience.  No more, no less.

I’m confident, though, that the judge made the right decision (and it was a decision supported by four of the five parties) not to make final orders today approving P’s deprivation of liberty, but to hold another hearing after there has been more opportunity to assess how P has settled in.  As the judge said, despite – or perhaps because – these proceedings have already been running for a long time, anything else would simply seem like an attempt at premature closure.

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

[1] We are not allowed to audio-record hearings.  All quotations from the hearing are taken from contemporaneous touch-typed notes and are as accurate as I can make them. They are unlikely to be entirely verbatim, though, despite my best efforts. 

A deputy’s first experience of observing a Court of Protection hearing

By Jamal L. Din, 27th July 2022

For some time now I’ve wanted to observe a hearing in the Court of Protection to gain experience of how the court hearing is run, and understand how the interests of the protected parties (and their families) are supported.

I am a Deputy for Property and Finance for my son and have made several COP applications that have been decided “on the papers”, i.e.  without a hearing. It can only be a matter of time before, as a family, we are likely to be more involved as parties in a COP hearing. 

I have previously tried to observe remote hearings in the COP with mixed success. Having read through the guides, set aside some time and meticulously prepared the email requests to the courts, I waited. The auto-email responses from each court came through so all looked positive but then nothing, no response and the court times passed me by.   

The Open Justice Court of Protection Project made some enquiries on my behalf and discovered that one of the hearings was cancelled; at another, a member of staff sent my contact details to the wrong person asking them to provide the link;  and another  (the RCJ) had a technical issue that day which prevented them from responding (and I’d only sent to one of the two email addresses provided).  

For another hearing I asked to observe, I received a response saying “Her Honour Judge Cronin has asked for more information, such as occupation, for yourself, and if you have any link to the case at all”.  I replied saying that I had no link to the case, but I didn’t provide my occupation, simply explaining that I was “applying to observe the hearing as a member of the public, in line with the Court of Protection’s transparency project”.  I didn’t receive an MS link and was not able to observe the hearing.

The hearing I was finally able to observe (COP 13913527 BR-v-LB Richmond & MR) on 22nd July 2022 was before DDJ Kaufman at First Avenue House and was listed as concerned with s.21A and Deprivation of Liberty.  I located it from the Open Justice Court of Protection twitter feed.

I received the MS Teams link 40 minutes before the listed hearing time, and a copy of the Remote Hearing Order was attached to email.  I was not sent a Transparency Order but the judge made it very clear to me (and the parties) that it was important to keep the identity of P (the protected party at the centre of this case) and his family confidential.  The judge also asked all parties individually if there were any objections to an observer being present and then approved my presence as an observer. 

At the beginning of the hearing the judge asked counsel for P (via his litigation friend the Official Solicitor) for a summary for my benefit as an observer – and for everyone’s benefit.   Counsel only stated the current position and nothing about the history of the case. The judge picked up on that and confirmed this was a challenge under s.21A of the Mental Capacity Act [MCA] 2005. At this stage I was unaware of the nature of P’s impairment (more on this later) or what his objections were to the Deprivation of Liberty Order or with the current Care home.  

Later I was able to work out that P was unhappy with where he lived and was challenging the DOL Standard Authorisation. He sought either an alternative home or care in the community with a bit more freedom. The local authority and current care home were respondents. 

P’s daughter had previously stated that she didn’t want to be litigation friend (this had been established at an earlier hearing). However, she was on the video call. It  was challenging for her as she had her 2-year-old daughter on her lap. The judge was very particular to ensure that she was included in the discussions and carefully tried to understand her views and thoughts. She was asked if she had visited the current care home or any of the alternatives. P’s daughter said she just wanted her dad to be happy.

P was also present on the call. His current care home had facilitated a room for him to participate (not on screen though). The judge specifically addressed P whilst acknowledging that P may be able to hear but not respond.

The Judge offered P a face-to-face meeting with the judge appointed to decide the case at either at the care home, the court’s offices or at the offices of counsel for the Official Solicitor. Alternatively, she offered him the opportunity to have a discussion on the telephone, whatever works best.   

P did not speak to the court.  I also don’t know how much of the hearing P understood or knew what was going on.

Counsel for the local authority was adamant that their position was unlikely to change, irrespective of any further care home assessments. In their view, the current care home is in P’s ’s best interests as P needs 24-hour care. 

The judge summarised the order she was going to make, and the next steps, to P’s daughter to ensure she understood it and was happy with it.  The judge ordered:

  • An assessment of the possible alternative care home in question.
  • Final witness statements from all parties.
  • Extension of the current Standard Authorisation to expire at midnight on the day of the final hearing.
  • A final attended hearing in mid-August with a time estimate of one hour and hearing to be on a submission basis.  

I was pleased that the judge made a great effort to involve P and his daughter in the hearing.  I hope this is followed through at the final hearing where it appears that the options are limited for P’s care.  

In terms of transparency and open justice, my sense was that the court clerk, the judge and the office were very accommodating – the judge especially so in making sure all parties were aware of the observer and the legal responsibilities that attach.  

There are some unanswered questions. What are P’s objections to the current care home or the DOL? To what extent will P be able communicate his concerns during his face-to-face meeting with the judge who will make the final decision?  What are the LA’s reasons why 24-hour care cannot be provided in the community for P?  I am sure all of these questions are answered in the ‘bundle’ of paperwork before the judge, but as an observer I was left in the dark.

The courts are complex and can be daunting.  My previous dealings with the COP gave me an advantage,  however I was still apprehensive.  I didn’t want to attract attention to myself.  I didn’t expect to be addressed directly by the judge at the beginning of the hearing.  (She asked me to confirm that I understood and agreed to keep P’s identity confidential. In addition, I had to confirm there was no one with me on the call: she explained that these would be a contempt of court risk.)

Overall, my impression of this hearing was very positive, and I am encouraged by the emphasis placed on P and his family. Watching this hearing was really helpful for me as someone who may be involved in a Court of Protection hearing in future.

Jamal L. Din is a volunteer supporting people and charities, offering support and campaigning for the rights of people, a voice for people who cannot be heard. He is also a court-appointed Deputy.

Determining capacity for sex with her abuser

By Celia Kitzinger, 25th July 2022

UPDATE: We’re sad to learn (from Mr Justice Poole on Thursday 27th October 2022) that the woman at the centre of this case (KF) has recently died.

This is a desperately sad story about a woman (KF) who is pleading to have intimate unsupervised contact with her abuser before she dies[1].  

She’s been diagnosed with triple negative breast cancer which has spread to her bones, liver and lungs.  Her life-expectancy is somewhere between a matter of months and (at the very most) two years.

Her abuser ( W ) has entered a guilty plea and is due to be sentenced on 29th July 2022. He’s likely to be facing a custodial sentence, and there’s a realistic chance that by the time he’s released from prison, she’ll have died from her cancer. In light of these facts, she’s “expressed a very strong wish to have unsupervised overnight contact with him” before 29th July 2022.

The sexual assault W committed against KF was very serious.  Joseph O’Brien described it as “horrific”.  It resulted in serious internal damage requiring hospital admission, surgery and a blood transfusion.  More broadly, W is said to have been violent and abusive towards KF and to have engaged in “coercive control”. There’s also a history of concern about his financial abuse of her.

Initially KF requested contact with W at the flat where she and W lived – and from which she was removed by court order on 23rd February 2022.  She’s willing, alternatively, to have that contact at a hotel.

Since she was removed from their flat, contact between the two “has taken place sporadically”  There was mention of “concern about things said during telephone and video contact”. 

According to Joseph O’Brien QC (acting for KF via her litigation friend), “it is a fact in this case that it may well be that that contact will be intimate and could lead to sexual activity between her and W. Both KF and W are adamant that they would object to very close supervision of that contact.  And so, in the light of [KF’s] expressed wish, this application was made on 8th July for the court to determine whether it’s in KF’s best interests to have unsupported unsupervised contact with W in the knowledge that could lead to sexual intimacy between them”. 

The case was heard before Mr Justice Poole on Wednesday 13th July 2022.  He was sitting in Teesside at the time, and brought the case with him – meaning that it was not (as would be usual for cases heard before Tier 3 judges) listed in the Royal Courts of Justice cause list[1]. I almost missed the opportunity to observe it as a result. It was listed for a 30 minute hearing, but actually lasted for around an hour and a quarter.

Capacity issues

KF is 34 and has a moderate learning disability (diagnosed in the 1990s).  She has been assessed by an experienced independent expert (Dr Laurence Mynors-Wallis) as lacking capacity to conduct proceedings, as well as to make decisions about where she lives, the care she receives, her contact with others, and her property and affairs. She does however have capacity to engage in sexual relations, on the basis of the test applied by the independent expert following the Supreme Court decision in Re JB.

According to Joseph O’Brien QC, “The case of JB in the Supreme Court was a bit of a watershed in terms of how we approached capacity to engage in sexual relations.  We’d regarded it as a decision-specific and act-specific test, but certainly not as a person-specific test.  There had been a chipping away over the years at the actual test.  So, pregnancy would not be relevant information if you had two 85-year-olds, and where certain relationships were monogamous the court was unwilling to say that the protected party needed to understand information on sexually transmissible disease,s when it was clear there was no risk of sex with other partners.”

Joseph O’Brien QC referred to §§72-74 of the judgment in Re JB to make the point that the court had recognised “that person-specific characteristics of a sexual partner could be relevant, and the court is not prepared to lay down when or how, because each case is truly fact-sensitive.”

In this case, said Joseph O’Brien QC, the local authority has a significant concern that if W has sexual contact with KF, “there is a real risk that W may inflict physical harm on KF”.  

Joseph O’Brien QC pointed out that the independent expert who’d assessed KF as having capacity to engage in sex also said that “KF is not able to weigh up the reasonably foreseeable risks if she has contact with [W]”.  He suggested that must surely mean that in fact she lacks capacity to engage in sex, since that must be relevant information for the decision that needs to be made. 

O’Brien:  That must raise the real likelihood, bearing in mind the factual scenario, that this is relevant information for capacity to consent to sex.  As I say in my Position Statement, it’s difficult to see, in the facts of this case, how this could not be relevant information.

Judge: In terms of contact, at the moment the court’s position is not only a declaration that she lacks capacity concerning contact with others, but also that it’s not in her best interests to have contact with W save in a public place and supervised.  That being the position, isn’t that the end of the matter, if the court considers that best interests decision remains applicable? 

O’Brien: It would, My Lord, except that she has capacity to consent to sexual relations.  She wishes to exercise that capacitous right. The circumstances she faces are such that she’s saying that this may be her last chance to have intimate contact with W.  The local authority has not ruled that out, but is anxious as to whether that can be achieved without serious risk.

Judge:  There are no conditions on W’s bail?  I find that slightly surprising, that there are no restrictions on his contact with KF.

O’Brien:  Nothing like that appears on W’s bail.  So, the court’s available options are not restricted by the jurisdiction of the Crown Court.  The decision has to be taken by this court.

It was agreed that the independent expert should be asked to reconsider the question of KF’s capacity to engage in sex, given the specific facts of this case.  “If he changes his view that KF has capacity to enter into sexual relations, then in those circumstances the court is in a very different position from if she has capacity.  If she lacks capacity, there can be no intimate relations” (said Simon Batt, the solicitor for the local authority, Hull County Council).

The judge remarked that “KF is not able to weigh up the reasonably foreseeable consequences of contact with W, so it might be difficult to see how that could be different if the contact was sexual.”

“Without pre-judging what [the expert] will say,” said Simon Batt, “the writing may be on the wall, if I may put it that way”.

Advance plans

Given that time is tight (due to the sentencing and likely custodial sentence on 29th July 2022), contingency plans were put in place, in the event that the expert assessment continues to find that K has capacity for sexual relations.  

Discussions have already taken place about booking a hotel for KF and W “without prejudice to any decision, just so we’re not stymied, and we’ve had discussions about what the hotel needs to be told”.

The solicitor for the local authority (Simon Batt) said they would be content, given the circumstances, to fund the cost of a hotel room for the carers, and the cost of the carers themselves: “we’d require the carers to be awake throughout the night in case their assistance is required”. 

There was a question about whether W should be a party to this case.  I think it was agreed that he would be notified of the application and invited to join as a party.

The judge also made clear his willingness to speak with KF prior to the hearing.  “It’s very clear she wishes to discuss matters directly with you, and to ensure that her views and her reasoning behind those views are clear to the court,” said Simon Batt

The decision before the court

Joseph O’Brien summed up the dilemma before the court:

“Many people would ask objectively why would anyone allow a woman in the circumstances of this case to have contact with the man who has inflicted this harm on her, four days before he’s sentenced for inflicting that harm.  There’s no doubt the risk is real.  But My Lord, you are dealing with someone facing the end of her life, and she is very clear about what she wants.”  (Joseph O’Brien)

The next hearing is listed for 10.30am on Tuesday 26th July 2022 before Mr Justice Poole in the Royal Courts of Justice, via MS Teams.  It will be heard in open court. The judgment has since been published: Hull City Council v KF [2022] EWCOP 33 (28 July 2022).

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

[1] This was a “hidden” hearing, inaccessible to most members of the public who might have wished to observe it.  It was not in the Court of Protection list on CourtServe, nor did it appear in the Royal Courts of Justice Daily Cause list where hearings before Tier 3 judges usually appear. I found it because I was trawling through the court lists for the County Courts, knowing that important hearings are sometimes incorrectly listed there. And I found this (see photo) under the heading, “Teesside (Middlesbrough) Daily Cause”.   Nowhere does it say it’s a Court of Protection hearing.  I only recognised it as such because of the case number: I know that eight-digit numbers with no letters are characteristic of Court of Protection case numbers.  It was also impossible to read what time the hearing was listed for: the cut-off left hand margin is as it appeared on CourtServe (not my error).  I’m grateful to the staff at the Newcastle hub who spent time sorting this out so that I was able to observe the hearing, but this really shouldn’t be happening – and these hidden hearings happen repeatedly. Between a quarter and a half of all COP hearings each day do not appear in the COP list but are ‘hidden’ in the County Court lists instead. Note also that I have also not received Position Statements from the parties so have had to rely in this blog post solely on what I heard in court. Quotations are as accurate as I could make them, based on contemporaneous touch-typed notes, but they are unlikely to be entirely accurate.

From CourtServe, under the County Court list for Teesside (Middlesbrough) County Court

Serious Medical Treatment and Restraint: A young woman with HIV

By Daniel Clark, 25th July 2022

This case (COP 139622855) was heard before Mrs Justice Artbuthnot as an “Urgent” application at 10:30am, on Tuesday 19th July.

I asked for the link to observe the hearing late on Monday night, and received the link at 8am Tuesday morning. This was a refreshing change to having to send repeated requests, and allowed me to ensure I had everything I needed prior to the hearing. 

I requested a copy of the Transparency Order, which I did not receive (though Celia Kitzinger, who observed the first half hour of this hearing, did receive it). The key restrictions in the Transparency Order were explained verbally at the start of the hearing. Unfortunately, despite requesting them, I also did not receive Position Statements from either parties. This is unfortunate as it would have allowed me to better understand P, and the decisions to be made.

I chose to observe this case at random as (characteristically of hearings listed in the Royal Courts of Justice) there was no information available as to what matter was before the Court. This is a great shame as I believe more people may have requested to observe the hearing if its content matter (in this case, serious medical treatment) was made known. To observe a Court of Protection hearing can be educational, and it would improve the transparency of the Court if there was a more concerted effort to ensure that information about the issues before the court was available in advance on the daily cause list.

This hearing was particularly technical at times, and concerned multiple medical conditions and treatments. I am grateful to Conrad Hallin, of Serjeants’ Inn Chambers (Counsel for the applicant NHS Trust) for acknowledging the presence of observers, and for providing a detailed background of the case. I have tried my best to make the medical information as clear and concise as possible, and have chosen to focus here on two particular issues that stood out for me in observing this hearing: the extent to which P was (or wasn’t) involved in the hearing; and the question of restraint.

It is worth noting that P’s family (her aunt and brother) were not present but that they have expressed support for the proposed treatment plan at a previous best interests meeting. 

Background to the case

At the centre of this case is a 17-year-old woman (P), born overseas, who is living with HIV. It is believed she acquired HIV vertically at birth, and her mother died when she was young. P has been raised by her grandmother in this country, and in recent years it appears that she has been looking after her grandmother, who is now elderly with health issues of her own.

P requires consistent and regular antiretrovirals to keep HIV “at bay” but “consistent compliance hasn’t happened in the community and in recent times P has suffered a deterioration of her condition[1]”. 

In May, P was admitted to hospital, complaining of headaches, vomiting, and a general feeling of being unwell. It transpired that “she has been inconsistent with her antiretrovirals” since last year, and possibly stopped them altogether in January. Whilst in hospital, she was diagnosed with Progressive Multifocal Leuko-encephalopathy (PML), which is a neurological condition in which a virus targets the cells that make myelin. It has affected P’s brain, causing cognitive difficulties and particularly damaging her short-term memory. Her capacity to consent to treatment has been assessed on a number of occasions in hospital and each time she’s been found to lack capacity due to impairment in her cognitive functioning.

The treatment for PML is sustained re-introduction of antiretrovirals. However, a possible complication of this is Immune Reconstitution Inflammatory Syndrome (IRIS). This occurs when a person’s immune system begins to recover from immunosuppression but responds to a previous infection in an aggressive way. Paradoxically, this makes the infection worse. It is feared, as a result of a deterioration in P’s condition, that she now has IRIS. This needs to be confirmed via MRI, so that steroid treatment can begin. Without treatment, the condition “could be damaging her brain further”. However, although P has previously agreed to the idea of an MRI in principle, clinicians have tried unsuccessfully a number of times and found that P is “incapable of seeing it through”. This is because “she doesn’t tolerate at all well any injections or cannulation”, which is needed for the MRI contrast. Without treatment P’s prognosis is poor, and she may only live for another year. 

The applicant Trust has brought proceedings for orders to allow the MRI scan to be undertaken under a general anaesthetic – with physical restraint and sedation if necessary to provide the anaesthesia safely. 

It took a while for the point of contention between the applicant Trust and the Official Solicitor (represented by Parishil Patel of 39 Essex Chambers) to become clear. 

Both parties agreed that P lacks the capacity to make the decisions before the Court. Both parties agreed that it was in P’s best interests to be administered general anaesthetic for the purposes of having an MRI scan. During this period, a PICC line would be inserted so that some medication could be administered to her, and bloods could be taken. Both parties also agreed that it was in P’s best interests to have a PEG inserted, so that she can receive some nutrition and her HIV medication (which cannot be administered via a PICC line). The point of contention was the timing of the procedures. 

The MRI and insertion of the PICC line could happen as soon as Friday, when a specialist clinic is held. A clinician who can insert the PEG, however, is not available until next week. The position of the Official Solicitor is that it is least restrictive, and “less risky”, for all of this to happen ‘in one go’; that is, be administered general anaesthetic once, and all three treatments be given. The applicant Trust argues that diagnosis and treatment of IRIS is urgent, and the MRI cannot wait until next week.

The involvement of P

P was present on camera at the start of the hearing – a young, slender woman, in a hospital bed propped up against the pillows, and at one point snacking on something (dried fruit and nuts?) from a tub. She was being supported by a member of her healthcare team, who was holding her hand. 

Parishil Patel referred to her presence (“P is with us”) at the beginning of the hearing.. However, it didn’t seem to me that P’s participation in the hearing was managed at all well.

It transpired that the consultant was to give her evidence in the same room as P, who had just listened to Conrad Hallin providing an opening summary of the case.

Arbuthnot J observed that P seemed to be becoming distressed.

Consultant: She’s a little bit bewildered by the conversation that seems to be about her but isn’t really including her.

Judge: I don’t want to exclude her but if she’s going to be harmed by it [hearing the evidence], would it be better to proceed without her?

Consultant: Her main question is ‘what do you want from me’, and if she was able to respond to that it would be helpful.

Parishil Patel intervened to say that P had expressed a wish to attend the hearing and to speak to the judge in court: “maybe she can do that and then we can carry on without her”.

Judge: We’re all talking about you and what treatment you should have. What treatment would you want?

P: Nothing at all

The judge then asked P if she would like the consultant and laptop to move to another room, to which the answer was yes.

This brief exchange struck me as quite surprising. It had already been established that P is living with a significant cognitive impairment which affects her memory. I feel it would have been beneficial for the judge, or the consultant, to reiterate (for P’s benefit), what was happening, and what sort of decisions were going to be made. She then may have had something to offer. 

Furthermore, Arbuthnot J said that the hearing may return to P’s bedside if there’s anything she wanted to know from her but this never happened. As a result of these two decisions, P’s opinion was never really heard. 

In fact, P’s voice didn’t really shine through in this hearing at all.

It was reiterated on multiple occasions that P has a history of not taking her antiretrovirals, and (according to her consultant) will “delay and procrastinate” taking them whilst in hospital. It was not discussed in the hearing why P has been so resistant to taking her medication, which is all the more surprising given that one of the purposes of inserting a PEG was so that she could be given her antiretrovirals consistently. The Mental Capacity Act (2005) stipulates that those making a best interests decision should consider “the person’s past and present wishes and feelings” (s.4(6)). It struck me as rather odd, therefore, that time was not given to P’s long history of aversion to medication.

Although it was not raised orally in the hearing, Celia Kitzinger notes that the Official Solicitor’s Position Statement (which I don’t have) records that P has had the treatment explained to her on a number of occasions and is unable to recall the conversation when asked about it shortly afterwards, and is “unable to articulate what cause[s] her alarm or upset about the treatment”. She has also “consistently expressed the view that she does not wish to die”. 

After the consultant left P’s bedside and had moved to another room, she was affirmed as a witness, and questioned by both counsel.

Restraint

During Conrad Hallin’’s questioning of P’s consultant, it became clear that nobody knew whether P’s antiretrovirals were working because they have been unable to take bloods. The importance of this became clear during examination by Parishil Patel. 

In sum, it is important for blood tests to be carried out to see whether P’s CD4 count is rising. If it is, her antiretrovirals are working, and would therefore indicate that it is IRIS that has caused her cognitive deterioration. If they have not, it would indicate that her deterioration is a result of the progression of PML. 

If the medical team had this information, they could start steroid treatment for IRIS and delay the MRI until it was possible to insert a PEG on the same day. As they do not, and because P is continually declining, the consultant believes it is extremely important to go ahead with the MRI on Friday rather than delaying it so that it can be done at the same time as the PEG insertion. To begin steroid treatment without some confirmation could, the consultant explained, “precipitate psychosis”, which would make the eventual MRI very confusing to interpret.  

Parishil Patel then made a suggestion that I found quite disturbing. After clarifying that P may not accept an oral sedative ahead of her MRI, and therefore require an intramuscular injection for which she would have to be restrained, he explained that his job is to “see the least restrictive path”. Therefore, he suggested, would it be the “least restrictive option” if P was physically restrained for the purposes of blood taking, and then the MRI and PEG insertion can all happen on the same day. The consultant’s response was quick: “It doesn’t appeal to me because it would be traumatising for her and the staff”. There is an increased risk of needle stick injury, and could involve half-an-hour of physical restraint. She concluded that “having been in a similar situation before, I don’t relish it”. I absolutely understand why she took this position. 

Unfortunately, during the course of my work in health and social care, I have physically restrained people. I say unfortunately because physical restraint is far from pleasant. It’s physically and emotionally demanding, and consists of at least two people forcing somebody to do something that they do not wish to do (because they are a danger to themselves or others). During restraint, I’ve been kicked; I’ve been spat at; I’ve been seriously verbally abused (the most disturbing of which occurred when I was called a paedophile, which was followed by a long description of the abuse of children). The people I have restrained have been extremely angry but, at times, have cried. A lot of the restraint I have been involved with has been for the purposes of supporting somebody with their personal care following incontinence, and this has been re-traumatising for people who have experienced sexual abuse. As a trainer on a recent course put it, a room where restraint takes place ‘is a room full of trauma’. 

One type of restraint I’ve never been involved with has been restraint for the purposes of blood taking. This is because it’s relatively rare. It can be dangerous for all parties, and is usually reserved for when there is a desperate need to take somebody’s blood. In this case, no such desperate need was evident. With the insertion of the PICC line, under the same round of general anaesthetic as when the MRI takes place, nursing staff will be able to take blood with ease, and assess the efficacy of P’s antiretrovirals. I imagine the Position Statement might have shed more light on how and why the OS came to suggest this. Unfortunately, as I did not receive the position statement, I can only write about what happened in the hearing.

In this case, restraint may be necessary to give P a sedative through the intramuscular route, if she does not accept one orally (or, it is not effective). However, this restraint would take “a matter of seconds”, and would be much less traumatic. To put P through a traumatic (and potentially prolonged) restraint, when it could be wholly avoided, would not be the least restrictive option at all. If anything, it was the most restrictive option put on the table. I’m relieved that P’s consultant was so firmly against it but also shocked that it was proposed as a viable option – especially when you consider that, if P’s CD4 count is high enough, she would still potentially have had to be restrained again for the administration of sedation. In my view, one possible restraint is better than one definite restraint and one possible restraint. 

Some cause for hope

Towards the end of giving evidence, P’s consultant informed the Court that “she [P] may have capacity for neuro-regeneration” following treatment and (possibly) neurological rehabilitation. This was a glimmer of hope in an otherwise sad story, and was well received.

During final submissions, Conrad Hallin asserted that the Trust’s “submission remains as was” and Parishil Patel said “the evidence is clear all three treatments are necessary and in her best interests”. Therefore, as it is not practically possible for all three treatments to occur at the same time, “we can agree that these orders should be made”. 

Arbuthnot J was in agreement, and made clear that the Order should “cater for” the possibility of P regaining capacity (which included instructions on accommodating a further capacity assessment as and when it seems to be appropriate). It was also clear that, should an appropriate clinician become available on the day of the MRI, the Order did not stand in the way of the PEG being inserted on the same day. 

The possibility of P regaining capacity is a very real one, and I sincerely hope that P goes on to live a fulfilling life.

Daniel Clark works for the NHS as a healthcare assistant. He is also deputy director of Backbench: an unaffiliated, open platform, blog that publishes a range of articles about current affairs. In October, he will start a PhD in the Department of Politics and International Relations at Sheffield University on the changing meaning of old age. He has written and contributed to previous blogs for the Open Justice Court of Protection website including: “Challenging behaviours? The importance of language” and “The politics of the pandemic in the Court of Protection” He tweets@DanielClark132.

[1] We are not allowed to audio-record hearings.  All quotations from the hearing are taken from contemporaneous notes and are as accurate as I can make them but are unlikely to be entirely verbatim.

An “unacceptable” care placement – and why public observers help to hold the state to account

By Jordan Briggs, 22nd July 2022

This hearing, listed before His Honour Judge Berkley at Manchester County Court (via MS Teams) on Wednesday 20th July 2022, concerned a woman in her early twenties with complex emotional needs (‘P’) who had absconded from her placement on 18th March 2022. 

There’s a previous blog post on the Open Justice Court of Protection Project site about two of the earlier hearings in this case (COP 138365220) under the title “Absconded”.

She had moved to the current placement in February 2022 from prison. 

It’s a specialist placement with restrictive care conditions (e.g. accompaniment by two staff members at all times and use of a security vehicle for transport).

P was still missing and nobody knew where she was at the last hearing on 24th March 2022.

At that hearing, Ben McCormack (acting for P via her litigation friend the Official Solicitor) made three key points:

  1. The court, other parties and probation service need a proper explanation of what has happened since P ran away.
  2. The local authority needs to think about and explain what will happen when P is brought back unwillingly into the restrictive special placement. 
  3. The case should come back for an urgent hearing, preferably with P attending. 

We’re told there were subsequently three hearings in this case (on 1 April, 14 April and then 27 May 2022), ie between the hearing on 24 March and the one on 18 July which I observed. They were all in court in Manchester rather than online, and I’m not aware that any member of the public observed them. So I don’t know what active case management had been done during that period – only what was revealed in the hearing I observed.

The Local Authority was represented on this occasion by Adam Fullwood.

Although nobody said expressly that P had returned to her placement (and she didn’t attend this hearing), updates on her progress therein implied that she has. 

My blog post deals first with issues concerned with open justice and accessing this hearing, and then with its substantive content. 

Accessing the hearing

Accessing this hearing was hard. I initially emailed Manchester County Court for the link, first at 10.16am and again at 12.21pm. I didn’t receive a reply to either email. 

I then telephoned Manchester County Court, first at 2.23pm. I was told that I would be emailed the link at 2.45pm. That didn’t happen. I called again at 2.53pm. I was told that HHJ Berkley was still hearing the case before this one, meaning this one would be delayed. I was assured that the link would be emailed to be in due course.

I received the link at 3.04pm. It said “the ink will be available for advocates discussions” [sic] and “His Honour will join the link at the allotted time”, which was (now) at 3.45pm. I clicked the link. Microsoft Teams displayed a message saying “When the meeting starts, we’ll let people know you’re waiting”. I presumed that the meeting had started, but that the advocates were discussing the case privately, which the public would not be allowed to observe even during in-person hearings. So, I waited.

Nothing changed at 3.45pm, save for a car outside the library in which I was seated beginning to very loudly play Thin Lizzy’s “The Boys Are Back In Town”. The irony was not lost on me: on my screen precisely nobody – boys or otherwise – had returned to public view.

At 3.51pm, Microsoft Teams asked for permission to use my microphone. I granted it, yet still nothing changed. At 4.05pm, the hearing began. 

Beginning the hearing

At the beginning of the hearing, only HHJ Berkley and Adam Fullwood had their cameras switched on. HHJ Berkley apologised for the delay, but hoped that that “some progress could be made moving forward”. HHJ Berkley specifically welcomed observers to the hearing, but reminded us that transparency and confidentiality orders prevent us from revealing the case’s sensitive details (although I’ve not been sent the Transparency Order). 

The judge asked whether advocates had been discussing the case whilst he was delayed. Adam Fullwood nodded. The judge accordingly invited Adam Fullwood to “assist… with whether they’ve been productive and where the parties stand at the beginning of the hearing”.

Adam Fullwood: Counsel for the Local Authority

Adam Fullwood obliged by saying that the directions he would invite the court to make were “almost all agreed” between the Official Solicitor and the Local Authority, who had discussed them while waiting for the hearing to start. 

The directions fell into two categories, namely that the court should: (i) authorise a continuation of P’s current arrangements, which amount to a deprivation of liberty, and (ii) have another hearing in about 4 weeks’ time.

Adam Fullwood did not, at this stage, provide an opening summary of the facts of the case, despite  Mr Justice Hayden in March 2020 stressing that it is “helpful, for a variety of reasons”, for advocates to do so. The facts were eventually summarised, but halfway through the hearing by Ben McCormack. The absence of an opening summary did not inhibit my understanding, because I had read previous blogs from the Open Justice Court of Protection Project, and I’d familiarised myself with the case before joining the hearing. But, without that assistance, the absence of an opening summary would have prevented me from understanding the hearing’s facts and history. 

Rather, after outlining the two categories of directions, Adam Fullwood expanded on them by listing seven issues that were agreed between the Official Solicitor and Local Authority. 

Issue 1: Capacity

Adam Fullwood said that he had received a report from ‘Dr Todd’. Adam Fullwood did not explain what that report contained, but Ben McCormack later mentioned that Dr. Todd was a clinical psychologist. 

Adam Fullwood said it was agreed that Dr Todd needed to be asked two further questions. These concerned clarification of: (i) what is causing P to lack capacity and; (ii) what “model” of care Dr Todd considers is in P’s best interests.   

Expanding the need for a different care “model”, Adam Fullwood said that P’s existing care placement was “fraught”. Eighteen staff members, Adam Fullwood said, have now refused to work with P on account of her behaviour. Accordingly, while previously only restraint-trained staff would supervise P, the care placement is now using staff without formal restraint training albeit with instructions to nevertheless restrain if necessary. 

In light of this, Adam Fullwood reminded the judge that the Local Authority “has always accepted and continues to accept that the [current] placement itself is unacceptable”, thereby underlining the aptness of its revision.

Issue 2: Alternative placement options

Adam Fullwood said that the Official Solicitor has been provided with “limited evidence” about the parameters of a search for alternative placement, but wished for richer evidence – showing precisely what had been looked for, and why no search had yet succeeded. This point was taken no further. 

Issue 3: Drug misuse 

Adam Fullwood said there was a “dramatic conflict of evidence” about whether P was currently misusing drugs. P’s care staff say there’s no evidence that P is misusing drugs. Yet P says that she is. Adam Fullwood suggested that the matter be kept under review. Ben McCormack would shortly return to the issue, as detailed below.

Issue 4: Smartphone

Adam Fullwood said that P had recently purchased a smartphone, and had said that she uses it to contact her “sugar daddy”. There was, he continued, no evidence that she had met this man in person.

Here, my internet momentarily failed. I regained access to the hearing within twenty seconds. I heard Adam Fullwood saying that he was not applying today to restrict P’s smartphone use, but that he may do so in future if that becomes appropriate. 

Issue 5: Community access and transport

Adam Fullwood relayed that, in the words of P’s social worker, P has “caused chaos” travelling into – and when in – the community. Adam Fullwood explained that, although secure vehicles have been commissioned specifically to transport P, their drivers are refusing to drive her because P threatens to cause them to crash during the journey. Once in the community, Adam Fullwood explained, P has participated in “street homeless and/or begging activities” . 

In light of this, Adam Fullwood invited the judge to direct that placement staff may adopt a “consequential approach” with P. That envisages P’s community access continuing, albeit under the proviso that if P misbehaves, the following day’s access would be cancelled. I think I saw the judge nod, ever so slightly. 

Issue 6: “Restrictions”

This issue was difficult to follow. Adam Fullwood directed the judge to page 271-2 of “the bundle”. “The bundle” is legal shorthand for a package of documents given to the judge by a lawyer. It usually contains relevant evidence and documents expressing the lawyer’s submissions about how the case should be decided. (There’s a previous blog post explaining what ‘the bundle’ is” (”Bundles and bundles of Documents”) 

The public rarely has access to these bundles. Accordingly, when advocates invite judges to read parts of the bundle without explaining in open court what those parts contain, it is impossible for the public to know what the judge is reading (unless they read it aloud).

I understood, from what passed between Adam Fullwood and the judge, that P’s care team would not allow her to use public transport to access the community. Accordingly, until P’s drivers resumed transporting her, she presently had no practical access to the community. However, once P’s drivers resume transport, I understood the plan to be that P travels with them and under two staff members’ supervision.

Issue 7: Property and affairs deputyship

A ‘deputy’ is someone appointed by the Court of Protection to make decisions on behalf of somebody who lacks capacity to make those decisions for themselves. There are two types of deputy: (i) a ‘property and financial affairs’ deputy, who can make financial decisions like paying bills or organising a pension, and (ii) a ‘personal welfare deputy’, who can make decisions about medical treatment or care. [For more information about deputies, see: https://www.gov.uk/become-deputy)

Adam Fullwood reported that the Local Authority had applied to become P’s financial and affairs deputy, so as to make financial decisions on P’s behalf, but that they had not yet been approved to so act. Adam Fullwood said that “there’s a delay of up to six-months when we send [the application] to London” before applications are answered. 

Accordingly, Adam Fullwood invited the judge to approve the Local Authority’s deputyship application. The Court of Protection is empowered to approve these applications by virtue of ss 16(1)(b) and 16(2)(b) of the Mental Capacity Act 2005 (which say that “if a person (“P”) lacks capacity in relation to a matter or matters concerning… P’s property and affairs…The court may… appoint a person (“a deputy”) to make decisions on P’s behalf in relation to the matter or matters)”. Again, I think I saw the judge nod. 

Adam Fullwood concluded by asking that the court reconvene on the 18th or 19th of August 2022. He conceded that “whilst arrangements are clearly suboptimal, we invite, at least in the interim, for the court to authorise this deprivation of liberty”. 

Adam Fullwood also said that, rather soon, it may become necessary to hold a full hearing conclusively addressing whether P has capacity. Saying “the longer someone is deprived of liberty, the greater the need to consider grappling [with] and determining capacity becomes”, Adam Fullwood invited a capacity hearing sometime after the above mid-August hearing. By that time, he hoped, Dr. Todd should have answered to the additional questions that the Official Solicitor and Local Authority would shortly put to him.  

HHJ Berkley thanked Adam Fullwood, then asked Ben McCormack whether he had anything to add. Ben McCormack turned his camera on and began speaking. 

Ben McCormack: Counsel for P (via the Official Solicitor)

Ben McCormack began by repeating the facts of the case, and saying that the “nub of the problem” was finding suitable arrangements for P. There was “no doubt that [care staff] are doing the best that they can”, he said, “but the bottom line is that they’re just not equipped” to deal with P. 

Ben McCormack accepted that the existing arrangements are the “best option for [P]”, given that the alternative was life “effectively on the streets or close to that”, which brings a “far greater risk of harm”. Yet Ben McCormack underlined the inappropriateness of a care plan which envisages restraint, but knowingly allocates staff who have no training in it.

Ben McCormack suggested that P was exhibited disruptive behaviour because she was “just bored” in her current arrangements, leading her to do things which “she probably shouldn’t”. Connectedly, Ben McCormack said P is “lonely, meaning when people reach out to her on the internet, she says yes”. 

Against this background, Ben McCormack revisited five of the seven issues which were agreed between the Local Authority and Official Solicitor. 

Issue 1: Smartphone

Ben McCormack said that P’s smartphone use had generated some discussion amongst her multidisciplinary team. All in that meeting knew that she is now contacting a “sugar daddy”. Ben McCormack related that, according to one social worker, “someone had been paying [P] for ‘certain services’”, but Ben McCormack had “no idea” whether that was true.  What was clear, Ben McCormack said, was that P was no longer seeing the “boyfriend” who had been mentioned in previous hearings.

Yet, Ben McCormack re-stressed that P was simply “bored out of her skull” in her current arrangements. “Taking her phone off her”, he said, “would be quite a step in that situation”.

Ultimately, Ben McCormack said that the court needed “better and clearer evidence about the edges of [P’s] life that need intervention”. That is, whilst in future the “dial [c]ould tip towards problems” which clearly necessitated intervention, Ben McCormack said that the facts were presently too unclear to justify restricting P’s smartphone use.

Issue 2: Drug Misuse

Ben McCormack said that his instructing solicitor had recently visited P three times. On the first and second occasions, the instructing solicitor had smelled cannabis in her residence. On the third, P told the instructing solicitor that she was smoking cannabis “every day”. Ben McCormack said “it seems odd that she’d lie about that”.

HHJ Beckley interjected, adding “especially [so] given her history”. The judge suggested that perhaps “the monitoring of that issue hasn’t been as good as it ought to have been”, and said he had “no doubt that [P] will continue to misuse cannabis”. 

Ben McCormack suggested that social workers’ and P’s evidence are not mutually exclusive: P could have been smoking cannabis, perhaps late at night, with staff simply not noticing it. The judge did not reply.  

Issue 3: Alternative placement options

Ben McCormack accepted that Dr Todd could be asked his opinion on the “model” of care that might suit P. Realistically, Ben McCormack doubted that Dr Todd could recommend specific locations to house P, as Dr Todd was not based locally, but had “no problem with him being asked”.  

As regards the search for alternative placements, Ben McCormack said that it would be useful if lawyers were given the minutes of P’s multidisciplinary team meetings. At present, Ben McCormack said, he was only being updated about complaints towards the end of P’s caring periods. Reading minutes throughout the period, and not merely at their end, would allow him to “spot in advance [any] issues that are properly the business of this court”. Later the judge asked Adam Fullwood whether he disagreed with his suggestion: he did not.

Issue 4: Capacity

Concluding his remarks, Ben McCormack related that, according to Dr. Todd, “emotional dysregulation” and,“probably”, a “learning disability” together rendered P incapacitous, with the former being the more significant. Against that background, Ben McCormack aligned with Adam Fullwood by saying that at some point “reasonably soon”, the Court of Protection would have to deal with P’s capacity head-on.

Ben McCormack said there was “no doubt that [P] can’t make decisions – the question is why”. He was “not absolutely sure that ‘emotional distress’ is a sufficiently good explanation of ‘impairment in the functioning of mind or brain’”, as must be the case if a person is deemed to lack capacity under s.2(1) Mental Capacity Act 2005. 

Ben McCormack assured the judge that the court could proceed on an interim basis because there is “reason to believe that P lacks capacity”. He  was referring to s.48 of the Mental Capacity Act 2005, which says “[t]he court may, pending the [final] determination of an application… make an [interim] order or give directions if […] there is  reason to believe that P lacks capacity… [and] it is in P’s best interests to make the order, or give the directions, without delay”). However, Ben McCormack said that there was a “lot riding on the capacity issue”, and so agreed that a full capacity hearing may well be necessary. 

HHJ Berkley

The judge began his concluding remarks by saying that, in his “instinctive view”, a full capacity determination would be necessary after the next directions hearing. He suggested that next directions could fall on 18thAugust 2022, but was concerned that Dr Todd might not supply “full and proper replies” to his new questions by that date. 

Ben McCormack assured the judge that the 18th August date was workable in two ways. First, Ben McCormack said that Dr Todd’s provision or non-provision of answers doesn’t affect the court’s continuing jurisdiction to hear the case. Rather, “if [the court] has it [i.e. jurisdiction] today, nothing will have changed by the 18th of August”, so the court needn’t worry. Second, Ben McCormack said Dr Todd is not a “necessary ingredient” in the search for P’s alternative placement. That search would fall to the Local Authority in any event. Indeed, Ben McCormack said, given “all the indications of a place[ment] that isn’t working”, the search “has to start right away”, with or without Dr Todd’s help.

Satisfied, HHJ Berkley proceeded to authorise all the directions above. Namely, he had “no difficulties with the proposed way forward about capacity or best interests”, and accepted that smartphone use and community access would be kept under review. He said there was “no alternative” to authorising the continuation of P’s deprivation of liberty, adding that it was “absolutely necessary given the risk that she currently faces”. He also approved Adam Fullwood’s “consequential approach” (i.e. community access is revoked if P exhibited disruptive behaviour) as “necessary and proportionate at this point in time”.

HHJ Berkley also accepted control of the property and affairs deputyship issue, saying that he had issued a similar direction in another recent hearing. 

And he approved P’s multidisciplinary team meetings being shared with lawyers, adding that it would “no doubt help the Official Solicitor’s understanding between hearings”.

Finally, the judge fixed the return date for 2pm on 18th of August 2022, “on an attended basis” (i.e. in person). The judge gave no reason for moving the hearing offline. 

Adam Fullwood indicated that he would draft the directions order, and that if any application to restrict smartphone use became necessary, he would draft it as soon as possible. 

Reflections

I think there were three barriers to open justice in this hearing.

The first barrier was the onerousness of obtaining the Microsoft Teams link. Two emails and two telephone calls were required to discover whether I could observe. I don’t criticise the court staff for that: courts are busy places, and I think it’s unreasonable to expect administrative staff to email and mediate between lawyers, judges, Ps and other implicated parties, all at the same time, and over numerous hearings happening all at once. 

Yet, it would have been helpful to receive a brief reply to my 10.16am email, saying that I would receive the link 15 minutes before the hearing, whether that be at 2.45pm as planned, or later if there were delays. Ultimately, I persevered with accessing this hearing because I had successfully accessed hearings before, and because I was supported by the Open Justice Court of Protection Project. Had I been a curious first-time observer, however, I probably would have given up. It’s not optimal, in my view: open justice shouldn’t require such determination and stamina from would-be observers.  

The second barrier to open justice was the public’s exclusion from advocates’ discussions. Effectively, in this hearing advocates agreed all matters off-camera, then had them ‘rubber stamped’ by the judge in open court. 

However, again, this barrier is not necessarily objectionable. I have undergone work experience as a barrister and so have observed advocates’ discussions myself. I therefore know that advocates’ discussions involve openly exchanging relevant but sensitive details about P (and connected persons).

So, whilst open justice favours transparency, individual privacy points the other way. In my view, it’s right that advocates’ discussions aren’t indiscriminately broadcast to the public,  especially where P is highly vulnerable. Yet, I remain somewhat uneasy that in hearings like today’s, all open justice exposes is a hearing’s scripted and closing act.  

The third, and least forgivable barrier, was the absence of an opening summary. The judge effectively reminded advocates that observers were attending when he welcomed observers at the outset. Especially after such a reminder, there was no good reason why an opening summary did not follow. 

To my mind, opening summaries transform observers from mere spectators into helpful scrutinisers. Without a basic understanding of the facts and issues in the hearing, observers cannot tell whether important issues are given due weight, or whether the court is exercising its power appropriately. With a basic understanding, however, observers are empowered to hold the court and its actors to account. 

Accordingly, while the absence of an opening summary did not inhibit me today because I could read online blogs on the case, its omission in other cases risks undermining the comprehension and utility of public observers.

The facts of this case justify my protracted focus on open justice. P is a young lady who, without having had her lack of capacity firmly established, is being subjected to highly restrictive conditions that are agitating her and resulting in harm to persons around her. Effectively, the state is expending its scarce resources to coercively restrict the autonomy of somebody whose decisions, while perhaps reckless, cannot yet be attributed to a mental disorder. 

The idea that the state could privately so restrict is frightening. Accordingly, cases like these are precisely those in which open justice becomes a functionally important principle, as a means of holding courts to account for their treatment of vulnerable persons. That is why the three barriers to open justice in this case merited such close, balanced reflection.  

Jordan Briggs works as a Paralegal and is a trained, unregistered Barrister. His previous blogs on legal matters include a brief history of legal aid and a 3-part series on the government’s response to Covid-19 and the rule of law. Jordan has previously published blog posts for the Open Justice Court of Protection Project including “Advocacy in the William Verden hearing” and “Covid vaccination and a Christmas visit”.  He tweets @JordanBr1995