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

By Libby Crombie, 10th February 2023

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

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

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

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

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

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

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

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

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

The key issues in this case are two-fold:

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

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

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

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

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

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

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

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

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

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

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

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

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

By Celia Kitzinger, 8th February 2023

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

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

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

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

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

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

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

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

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

The Guidance can be read in full here.

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

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

Approving discharge arrangements and deprivation of liberty

By Celia Kitzinger, 8th February 2023

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

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

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

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

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

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

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

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

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

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

By Aswini Weereratne, 6th February 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Must the court always be involved?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Is there a best practice?

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

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

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

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

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

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

Covert medication by Claire Martin and Alan Howarth

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


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

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

Note: Image is a stock photo from Shutterstock

Uncertainty about capacity for contact – and the inappropriateness of using the inherent jurisdiction

By Josie Seydel, 2nd February 2023

On Monday 23rd January 2023 I attended a court hearing (via MS Teams) before Mrs Justice Lieven (Case number 13825449). The hearing lasted almost exactly one hour.

In introducing the hearing, Mrs Justice Lieven made a particular point of emphasising the importance of the Transparency Order (of which I have yet to receive a copy) protecting P’s anonymity and prohibiting the recording of the hearing. 

The case concerns a 34-year-old woman, P, who was described as having “a diagnosis of learning disability in the moderate range and an autistic spectrum condition”.  She had also been recently diagnosed as having an emotionally unstable personality disorder (EUPD) while in hospital last year.

P has been assessed by a clinical psychologist, Dr K.  His section 49 report has been followed by disagreements between the parties as to how his evidence should be interpreted, and further questions asked of him had apparently led to “some inconsistencies in answers”.  The view of the Integrated Health Board (ICB) was that it would be necessary for Dr K to give evidence in court in order to resolve these matters.

The parties agree that P lacks capacity to conduct legal proceedings, and to make a tenancy agreement.  They also agree that she has capacity to make decisions about her residence.  There is disagreement or uncertainty about her capacity in relation to safety in the community (specifically around traffic when she is in a state of heightened anxiety), and some or all of the care and support she receives (especially in the community).

The area of capacity that seemed of particular concern was contact with others.  Although Dr K was reported to be of the clear opinion that P does have capacity to make decisions about contact with others, this finding seemed not to accord with how her family and carers see her. It became clear during the course of this hearing that P is “over-familiar” with people.  The social worker described how “she will tell you males she’s just met are already her boyfriend. Recently she approached someone randomly in the pub and got their telephone number and staff were saying, ‘you’ve only just met him – is it really safe’ and they were successful and she’s deleted the man’s number.  But she puts herself in precarious situations. I’m surprised no harm has come to her.”[1]  

This seemed to raise a question as to whether P was (capacitously) making unwise decisions, or whether she lacks capacity in relation to contact in the community. 

The case was before a Tier 3 judge because the local authority had made an application to apply under the ‘inherent jurisdiction’.  During the hearing, this application to the inherent jurisdiction was withdrawn.

The hearing

As this is only the second CoP hearing I have attended, despite the helpful introduction by Judge Lieven, I was still a little baffled and grappling with a number of new acronyms, concepts and a lot of names. I am hoping that with time, this will become less cumbersome and therefore be less of a distraction from being able to report in greater accuracy and detail.

Counsel for the local authority (LA) began by providing a brief biography of P (who wasn’t in court), including a brief history of her care and his current concerns regarding her care and safeguarding. The LA, along with the ICB (who had their own separate representation) are providing the care for P under section 117 of the Mental Health Act,  following P’s discharge from hospital in November 2022 (where she was assessed and diagnosed as having EUPD). The care support involves 24-hour 2-to-1 carers for P, in what was described as a residential care setting, where P had agreed to reside following her discharge from hospital.

The LA are trying to establish how to safeguard P when she becomes dysregulated in public settings and around traffic, which both cause her heightened anxiety; they are also seeking clarification on how to manage her levels of care and carer support; as well as how to restrain her from inappropriate contact with strangers, when verbal dissuasion is ineffective. 

An assessment of P, made in March 2022 by Dr K (who was not present at this hearing), came to the conclusion that P ‘had the capacity to be aware of the risks’ of her contact with strangers – but this was contested as being an inconsistent finding both within the assessment and (possibly) as evidenced by P’s inappropriate and risky behaviour in the community. It was explained by the LA representative, that “P will engage in conversations which may lead her to risky situations with unknown members of the public” and that she had a “history of sexualised comments with unknown males”. Verbal dissuasion and reasoning with P, if ineffective, the LA argued, would necessitate a degree of restraint. The LA explained this restraint as ‘placing a hand on an arm or leading her away’; if that was insufficient, then ‘low level physical intervention’; and then calling the police if P became aggressive. 

 The LA was making an application under the “inherent jurisdiction” (IJ) because they wanted the judge to authorise this course of action in challenging situations where P’s behaviour was deemed to be putting her at risk, even if P has capacity to make her own decisions about who she has contact with.  

When I watched this hearing, I had no idea what was meant by “the inherent jurisdiction”, but Munby’s description gives a good summary:

“[T]he inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either (i) under constraint or (ii) subject to coercion or undue influence or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.” (Thisdescription given originally by Munby J in Re SA (Vulnerable Adult with capacity: Marriage) [2005] EWHC 2942 (Fam) at paragraph 77, then endorsed in Re DL).

This means, that P could legally be restrained by her carers and have her freedoms restricted when deprivation of liberty (in P’s best interests, under the Mental Capacity Act 2005) is not applicable. 

In essence, my understanding is that, in this instance and similar cases, the IJ would function as a sort of legal loophole for authorising restrictions on someone who has capacity in the area on which restrictions are imposed – essentially overriding their wishes. 

In advance of this hearing, counsel for P (via her litigation friend the Official Solicitor) had raised concerns about invoking the inherent jurisdiction.  These concerns related to ‘the Wakefield case’, and ‘Re DL which I looked up afterwards.  In the first of these cases, Cobb J concluded that “the inherent jurisdiction should not be used to deprive a capacitous person of their liberty” and described it as “a potentially arbitrary mechanism for authorising a deprivation of liberty”.   In Re DL, MacFarlane J upheld use of the inherent jurisdiction for vulnerable adults who fall outside the protection of the MCA but whose capacity is overborne by non-MCA circumstances, e.g. coercion and undue influence. Rather than undermining autonomy, the inherent jurisdiction is to be considered part of a ‘great safety net’ that “is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity[4] . In this hearing Judge Lieven said she was “bound by DL not the Cobb case” (because it is from the more senior Court of Appeal).

The Official Solicitor was “concerned that the court’s exercise of the inherent jurisdiction may be being sought to circumvent the assessment that [P] has capacity to contact others” and that in reality it may be that the local authority just disagrees with the conclusion as to P’s capacity to make this decision.  

Counsel for the Local Authority withdrew the application for the case to be heard under the inherent jurisdiction.

That left the need to decide whether or not P has capacity to make her own decisions on contact in the community.  Should a (new) expert be instructed to assess this?

Mrs Justice Lieven remarked that “a vast amount of lawyers and legal expenses” were being used on “a relatively small amount of issues, with very fine distinctions” and that further assessment “does not feel to me, like a proportionate way forward, in a cash-strapped system” where in the case of P “there are already 8 lawyers and 3 detailed assessments”, pertinently adding “What benefit is there to P in all of this?”

I strongly feel that her Ladyship’s comments here point to the loss of focus on the individual at the centre of the case that may arise when legal professionals become engaged in the minutiae of the law and academic arguments.  The consequence is that P, the person at the centre of the case, and her feelings and wishes, become at risk of being overlooked, as does the immediacy of her vulnerability and care needs. This judge repositioned P and her needs, as the focus of the hearing.

The Judge asked P’s social worker for an account of P’s history and current day-to-day life. She said P has a history of episodes of unpredictable behaviour towards staff and property. She repearted that P is experiencing heightened levels of anxiety around traffic, and in the community; being ‘overfamiliar’ with strangers; engaging in inappropriate and risky contact, often of a sexual nature, with unknown males; and, on occasion, running away from carers. These behaviours are a cause of safeguarding concerns for her welfare and for the welfare of staff (if she becomes hostile). Since a move to supportive housing last year, P’s behaviour and dysregulation, whilst not without incident, seem to have become more stable. The social worker also clarified that P is living in supported living accommodation and not residential care (where DoLS would apply).

In regards to P’s 24-hour, 2-to-1 care, Judge Lieven wanted to understand what P’s feelings were about the this, to ascertain if less restrictive measures could be found. P’s Social Worker said: “Staff try to give her space when she asks not to have 2-to-1 care as she has felt overwhelmed by staff. We want the least restrictive option”. In response, counsel for the LA again maintained that P lacks capacity to decide on appropriate care and again they seemed to contest Dr K’s assessment (that P does have capacity), particularly in the light of P’s recent diagnosis of EUPD, and they again sought permission for further assessments. It was hoped that maybe on further assessment of P,  and reflection from another expert, that all parties may come to some agreement –  they acknowledged that (as the judge pointed out) this could not, of course be guaranteed.

Judge Lieven was clear that “There isn’t going to be a simple answer” that “getting more and more assessments isn’t going to help anyone” and that the diagnosis of EUPD was “a diagnosis of outcome, not cause”, a brilliantly succinct summary of this highly contentious psychiatric disorder. (For further discussion regarding personality disorders and the Mental Capacity Act 2005, see “What does the Court of Protection need to know about borderline personality disorder?”)

I believe the Judge’s decision prevented P’s needs from becoming lost in discussion of on-going differential diagnoses and technical details, which could (further) marginalise P, rather than add anything of real value to her life and well-being, and could only serve to unnecessarily prolong the case. 

Counsel for P’s mother spoke of P having previously resided with her mother, and although P often stated that she wanted to live with her mother again (although this fluctuated), that care at home was not feasible. This was in a large part down to issues of safeguarding where P had a history of “going missing”, “putting herself in precarious situations” and on one occasion fleeing from her carers “in a taxi and has later claimed she was raped”. P’s mother, said her counsel,  was clear that she wanted P to be safe and felt that P did not have capacity to make decisions to keep herself safe. The mother was concerned about the carers’ minimal powers of restriction and that P was purchasing alcohol against advice and wanted the LA to record P’s alcohol use in the care and capacity plan. She also raised concerns about P staying in third party’s homes overnight and having recently self-harmed. She requested an updating statement from the LA.

It was clear that some fine details about P’s safety and care were missing, and that a fuller picture of P’s day-to-day fluctuations in capacity needed attention. I would argue that this would be more beneficial to the needs of P and to her capacity to consent (which could be adversely affected by alcohol and emotional dysregulation) and that a behavioural analysis from P’s carers and family members or representatives would be far more useful than diagnostic assessments from otherwise unknown ‘experts’.

 Mrs Justice Lieven concluded the hearing by saying she “does NOT advise further assessments”.  Instead she called for a half-day hearing with Dr K in order to try to establish greater clarity about P’s fluctuating capacity and loss of capacity when she becomes emotionally dysregulated. She suggested that Dr K may wish to meet with P again before the next hearing, which was set for early February.  No interim order was given but 2-to-1 care and supervision in the home and community was to continue. In her final comments the Judge again remarked that “this is just not a case that is open to a simple answer”.

I appreciated the opportunity to observe this hearing, I found the judge to be decisive, clear and focused on P rather than on technicalities. She concentrated attention on P as an individual and away from endless, and arguably not productive, assessments which were unlikely to resolve the differences of opinion regarding Ps capacity. 

In addition, I believe that dropping the use of the inherent jurisdiction discouraged actions which could have resulted in more controlling and restrictive measures being implemented. P already has 24 hour, 2-to-1 supervision and was stated as finding this ‘overwhelming’ at times. Further analysis, perhaps with the assistance of Dr K, will hopefully ensure that any actions are both necessary and proportionate, not arbitrary or capricious, and are sensitive to P’s capacity at the time insofar as that is practicable.

Fluctuations in capacity, like in this case, may mean that a consensus of P’s capacity can never be definitively achieved. This hearing highlighted to me the importance of the Mental Capacity Act’s Code of Practice:  that capacity should be presumed and that ‘a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken’ may: a) have partial capacity; b) be temporarily incapacitated (e.g., P’s use of alcohol) c) be permanently incapacitated d) may be capable of making decisions with support. 

I hope that the next hearing will allow remote access or be held online again as I would very much like to hear what Dr K has to add, as I have not heard an expert present in a hearing. I will be interested to see whether any this leads to any clarity or, even if not a ‘simple answer’, perhaps a resolution.

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


[1] I have written this report to the best of my ability with respect to the confidentiality of P.  My quotations cannot be guaranteed to be 100% accurate since we are not allowed to record hearings, but I’ve endeavoured to present as true and accurate an account as possible. Any opinions stated are wholly my own, unless otherwise indicated.

Committal hearings and open justice in the Court of Protection

By Brian Farmer and Celia Kitzinger, 1st February 2023

At a hearing on 16th January 2023, Mrs Lioubov Macpherson – the mother of FP, a protected party in the Court of Protection –  was given a suspended prison sentence for breaching court orders against her. 

At an earlier hearing, Mr Justice Poole had ordered that she must not video or audio record her daughter (or any of the staff caring for her daughter), that she must not post any such recordings on social media and that she must remove those she had already posted. He’d said that if she breached his orders, she might be sent to prison (i.e. he’d “attached a penal notice” to the orders.)  

The judge’s reasons for making these orders, and his understanding of Mrs Macpherson’s reasons for breaching them, plus details describing the videos that Mrs Macpherson posted on social media (now removed) are all laid out in his published judgment: Sunderland City Council v Macpherson [2023] EWCOP 3 In essence, the judge says:

The purpose of preventing the Defendant from posting films of her daughter and naming her through posts on social media platforms, is to protect FP. Not only is it a gross invasion of FP’s privacy to do so but, in this particular case, the nature of the Defendant’s publications about FP is to create the wholly misleading impression that FP is being abused and “tortured” by those caring for her, as sanctioned by a “corrupt” court system.” (§30)

This blog post is not about the hearing itself (see Claire Martin’s account of the hearing [forthcoming]) but about problems with the way the public (including journalists) were informed about it, and the concerns raised for open justice by this committal hearing and others like it.

The Practice Direction

There is guidance about how committal hearings should be conducted in a Practice Direction: Committal for Contempt of Court – Open Court

This practice direction says that open justice is “a fundamental principle” and that “the general rule is that hearings are carried out in, and judgments and orders are made in, public” (§3).  

Committal applications should normally be publicly listed as follows:

FOR HEARING IN OPEN COURT

Application by [full names of applicant] for the committal to prison of

[full names of the person alleged to be in contempt]

§5(2)

Any derogations from the principle of open justice “can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice” (§4).

When a hearing is held in private: the court should:

“… notify the national print and broadcast media, via the Press Association’s CopyDirect service, of the fact of the committal hearing (whether it is brought on application or otherwise) when and where it is listed for hearing, and the nature of the proposed derogation; and (2) at the outset of the committal hearing the court shall hear submissions from the parties and/or the media on the question whether to impose the proposed derogation.” (§8(1))

And in all cases, the following applies:

“In all cases, irrespective of whether the court has conducted the hearing in public or in private, and the court finds that a person has committed a contempt of court, the court shall at the conclusion of that hearing sit in public and state: (i) the name of that person; (ii) in general terms the nature of the contempt of court in respect of which the committal order, which for this purpose includes a suspended committal order, is being made; (iii) the punishment being imposed; and (iv) provide the details required by (i) to (iii) to the national media, via the CopyDirect service, and to the Judicial Office, at judicialwebupdates@judiciary.gsi.gov.uk, for publication on the website of the Judiciary of England and Wales. (2) There are no exceptions to these requirements. There are never any circumstances in which any one may be committed to custody or made subject to a suspended committal order without these matters being stated by the court sitting in public.” (§13) 

There is also a requirement to provide a written judgment (§14) and publish it “as soon as reasonably practical” (§15).  Finally, “advocates and the judge… shall be robed for all committal hearings” (§16).

Failing to follow the practice direction

It may be, as the evidence suggests, that the committal hearings concerning Mrs Lioubov Macpherson did not comply with this guidance.  And since becoming aware of her case, we’ve also come across a number of other cases – in the Court of Protection and other courts – where it appears the guidance was not followed. 

In the past seven weeks (not counting the Christmas break), Brian has been aware of seven committal hearings.  In addition to the two Court of Protection hearings before Poole J in Newcastle, there were: a Family Division hearing before Arbuthnot J at the Royal Courts of Justice; a Court of Protection hearing before Judge Beckley in Holborn, London; a Family Court hearing before Judge Evans-Gordon in the Central Family Court and a hearing before HHJ Cope in Bristol County Court.

  • In five of these seven (Poole J (x2)  Beckley, Evans-Gordon and Cope), the case was not listed in accordance with the Practice Direction on committals.
  • In two, Arbuthnot and Evans-Gordon, the lawyers involved seemed unaware of the Practice Direction and unaware of the requirement to notify the press if they wanted reporting restrictions.
  • In Arbuthnot, a barrister and a solicitor-advocate both said they would “prefer” the adult defendants to be anonymised.
  • In the Evans-Gordon case, the only lawyer, a solicitor, seemed to think he was in a private family court hearing. (The judge ticked him off for not being robed). The judge indicated that she would have to rely on my discretion not to report the names of children aired at the hearing.
  • In the Evans-Gordon case, I spoke to three members of Central Family Court staff to point out the error in the listing. None had heard of the Practice Direction. One checked to see whether the hearing was in public or private and said committals were “sometimes” in public.

Holding the Court of Protection accountable 

We’ve recently expressed our concern to Mr Justice Poole about the (apparent) lack of transparency of committal hearings, specifically in relation to the two hearings concerning Lioubov Macpherson (“Luba”).  

We’re reproducing those letters here because many members of the public are anxious about contacting judges with their concerns and we want to show how we’ve gone about it, and also that it can have positive outcomes.  

1.  Letter concerning the first committal hearing (on 8th December 2022)

19th December 2022

Dear Judge

Re: COP 13258625

We are concerned about open justice and transparency in relation to this case (COP 13258625) and would like to ask some questions about the hearing before you on 8th December 2022 in Newcastle and about the forthcoming hearing, which we understand will be on 16th January 2023, also in Newcastle.

PA Media reporter Tom Wilkinson was at the 8th December hearing, and we know that you made a Transparency Order preventing P being identified in media reports of the case.

We understand that the hearing was a committal hearing – an application by Sunderland City Council to commit Luba Macpherson.  

As such, we believe that the terms of the then Lord Chief Justice, Lord Thomas’ practice direction in 2015 on ‘Committal for Contempt of Court – Open Court  should apply. 

However, as far as we can tell, parts of this Practice Direction were not complied with: specifically,  §5(1)&(2) and §8.

Paragraph 5

5 (1) says  “All committal hearings, whether on application or otherwise and whether for contempt in the face of the court or any other form of contempt, shall be listed and heard in public.” (our emphasis)

5 (2) explains how committals should normally be listed: “Application by (full name of applicant) for the Committal to prison of (full name of the person alleged to be in contempt).”

As far as we can tell the Committal hearing wasn’t listed at all until sometime in the morning of 8th December 2022, just hours before it was due to start.  It then appeared on Newcastle County Court  Daily Cause list, not the Court of Protection list (as, too, did another hearing in the same case on 6th December 2022).  We have photographed the listing as it appeared in CourtServe and reproduce it below.  As you can see, it gives no hint that you were dealing with a committal: the words “Committal to prison” do not appear.  The name of the person alleged to be in contempt does not appear.  

Paragraph 8

“Where the court, either on application or otherwise, is considering derogating from the general rule and holding a committal hearing in private, or imposing any other such derogation from the principle of open justice: (our emphasis)

(1) it shall in all cases before the hearing takes place, notify the national print and broadcast media, via the Press Association’s CopyDirect service, of the fact of the committal hearing (whether it is brought on application or otherwise) when and where it is listed for hearing, and the nature of the proposed derogation; and

(2) at the outset of the committal hearing the court shall hear submissions from the parties and/or the media on the question whether to impose the proposed derogation. 

We appreciate that the hearing wasn’t held in private. However, you made an order which prevents the media from identifying the accused person. We would say that must be a  “derogation from the principle of open justice”. We’re not aware that any notification was given to the national media via Press Association’s CopyDirect service. (Times have changed since 2015: the Press Association is now PA Media and CopyDirect is now the Alerts Service.)

Tom also had great difficulty getting into the hearing. He was told by a security guard at the Newcastle Civil and Family Courts Centre that the hearing was a family court matter, was in private, and that he had no right to attend a private family court hearing. 

(We’re aware of several similar recent problems relating to court staff, private signs wrongly being left on doors and listings.  Brian had problems at the Central Family Court in London, when an usher said he couldn’t attend a private hearing, said journalists were expected to give advance warning if they were attending, and insisted that he had to discuss his attendance with a manager.  Celia has experienced signs saying “IN PRIVATE: NO ADMITTANCE” at the two most recent COP in-person hearings she attended before Mr Justice Hayden (both were listed as “in open court”), and private signs were left on the doors at a public CoP hearing before Arbuthnot J on 7th December 2022.  A member of the public aiming to attend left because he thought the hearing was in private and Brian entered the court only after emailing Arbuthnot J’s clerk to make sure that he could do so.  Additionally, a Family Division committal hearing FD22P00427 before Sir Jonathan Cohen was wrongly listed on December 14. The list said the case was in open court but gave no hint that it was a committal. The listing was changed after Brian queried the listing with the judge’s clerk.) 

Our questions are these:

  1. Why did the listing for the committal hearing on 8th December 2022 depart from the directions set out in the Practice Direction on Committal for Contempt of Court?
  2. Why (contrary to the Practice Direction on Committal for Contempt of Court) was no notification given to the national media about the committal hearing on 8th December 2022?
  3. Why (contrary to the Practice Direction on Committal for Contempt of Court) was a representative of the media not permitted to make representation at the outset of the hearing (as opposed to at the end of the hearing).
  4. We understand that there is another committal hearing on 16th January 2022.  Will this be listed and conducted in accordance with the Practice Direction on Committal for Contempt of Court, and if not, why not?

We have considered carefully what may be at issue in this case (and in other committal hearings in the CoP).  On the one hand, a CoP judge makes made a Transparency Order preventing P from being identified, and suppresses publicity relating to relatives of P associated with the case because this is a means of identifying P.  On the other hand, committal proceedings are quasi-criminal, and the starting point is that people should not be given jail terms in secret and the accused should be named.

MacDonald J had the same problem in relation to committal proceedings for a relative of P, Dahlia Griffiths ([2020] EWCOP 46).  In that case, the judge approved an agreement reached with the parties, that the accused could be named but P referred to only as an unspecified “relative” of the accused.

We’re not saying that’s the answer here, but we do think there are arguments to be made before the court decides upon a derogation from open justice that conceals the full name of a person alleged to be in contempt of court – a vulnerable woman who may be sent to prison.  

At the moment, the only story we can write is that a woman who we can’t identify could be jailed – for reasons probably now apparent from the June 2022 judgment (SCC v FP & Ors [2022] EWCOP 30) that has recently been made publicly available – and that she appeared at a committal hearing which wasn’t listed as a committal hearing.

We also think that other media organisations, including media organisations in the north-east, should be notified that there’s an order saying the accused can’t be named, so they can make arguments if they want to. 

Thank you for your attention to these matters and for your concern to ensure open justice.

Celia Kitzinger, Open Justice Court of Protection Project

Brian Farmer, PA journalist

In his published judgment, Poole J accepts that Lioubov Macpherson’s full name should have appeared in the listing of the 8th December 2022 hearing  (§33):  he had (at that point) made no order that it should be redacted.  

2.  Letter concerning the second committal hearing (on 16 January 2023) 

The second committal hearing was listed as shown below (also in the Daily Cause list for the county court and not in the Court of Protection list on CourtServe). Notice that, again, the name of the defendant (Lioubov Macpherson) is not provided.  But this time it was not an oversight.  

At the 8th December 2022 hearing, Mr Justice Poole made an order restricting publication of Mrs Macpherson’s name.  The judge says: 

“Whilst the 2015 Practice Direction does not expressly allow for such a restriction, it does allow for derogations from the principle of open justice ‘in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. Derogations shall, where justified, be no more than strictly necessary to achieve their purpose.’ The COPR allowed for the reporting restriction and I regard the ordered restriction as being properly justified at the time that it was made.”

So in the cause list making public the next committal hearing, the fact that Lioubov Macpherson’s name does not appear is deliberate.  

 This time, though, the words “COMMITTAL TO PRISON” do appear.

Celia was on annual leave, overseas, and without her laptop, so Brian wrote the next letter to the court.  

January 9, 2023

Dear Judge

Re: COP 13258625

Application by Sunderland City Council for the committal to prison of Luba Macpherson. 

Thank you for giving me an opportunity to make an argument on behalf of PA Media.

Hopefully, my colleague Tom Wilkinson will be at the hearing.

I appreciate that the applicant and respondent have been involved in Court of Protection proceedings and a standard Transparency Order, preventing P being identified, has been made. However, my understanding is that the litigation has now reached a stage where you have to take account of the terms of Lord Thomas’s 2015 Practice Direction: Committal for Contempt of Court – Open Court  https://www.judiciary.uk/wp-content/uploads/2022/07/practice-direction-committals-for-contempt-2-2.do_.pdf#

(I’ve read the Amendments to Practice Directions… published on January 4, 2023. 

https://www.judiciary.uk/amendments-to-practice-directions-supplementing-the-court-of-protection-rules-2017/…

I don’t think they undermine any of the arguments below.)

I think that you have a problem judges commonly face when family proceedings or CoP proceedings reach a committal stage: you are caught between a rock and hard place.

In family proceedings the media is, normally, prevented from identifying the child, therefore if parents are named there is an obvious risk of jigsaw identification of the child. In CoP proceedings orders, normally, prevent P being identified, therefore if a relative is named there is an obvious risk of jigsaw identification of P. You have an additional problem here in that the “accused” is being criticised for making details of the case public in breach of orders.

On the other hand, the then Lord Chief Justice’s Practice Direction clearly indicates that both the ‘accuser’ and the ‘accused’ should be publicly named. In any event, publicly identifying people who face jail terms must be a basic principle of open justice. 

That common law principle of open justice was explained by Lord Atkinson in Scott v Scott: https://www.casemine.com/judgement/uk/5a938b3d60d03e5f6b82ba1f 

“The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses…”

Judges, in my experience, normally solve the problem you face by naming the “accuser” and the “accused” but notnaming the child or P. 

I would refer you to two cases (one family and one CoP) overseen by MacDonald J, as examples

https://www.bailii.org/ew/cases/EWFC/HCJ/2022/160.html

https://www.bailii.org/ew/cases/EWCOP/2020/46.html

I’m not aware that taking such an approach has led to children, or Ps, being widely identified, or harmed. Certainly, no problem has been raised in relation to any report I’ve written. I’ve never heard it suggested that taking such an approach undermines the proper administration of justice.

I’d urge you to take a similar approach to the approach MacDonald J took in the above CoP case.

We would argue that the media should be able to name the “accused” mother, and the applicant local authority, in reports of these quasi-criminal committal proceedings. (More than that, I think we should be able to report the mother’s age and full address, as we normally would in criminal cases, to ensure that we identify the right person.)

We would say people have a fundamental right to know the names of members of the public who are facing jail sentences, and the names of people or bodies “prosecuting” them – and that right should prevail here.

The Practice Direction does not say that the name of any child or any P at the centre of proceedings should be made public. We’re not proposing to name P, and we’ll happily agree to any ideas anyone has for muddying P’s identification.

There are many things you could do to make P’s identity hard to find: don’t reveal her name, age or gender; refer to her as a relative or family member; be vague about how information has already been made public, simply say mother has put information into the public domain; be vague about how much information has been made public.

I’d also urge you to step into the real world and consider how much harm P is really likely to suffer if her mother is named.

The vast majority of people won’t read your published judgment, they’ll find out about the case through the media. In reality, how many passengers on the Seaburn omnibus are going to read a report in the Sunderland Echo then try to piece together an information jigsaw? Dr Kitzinger and I might have the inclination and ability to track down your earlier anonymised judgment on Bailii, but will the average person really even try? Will they really start searching for the mother’s Facebook and Twitter accounts? Why would they? People have a lot on their minds at the moment. They’re struggling to heat their homes, struggling to pay food bills, war is raging, Prince Harry is on the front pages, Sunderland look like they’re going to miss out on promotion. In reality, this case isn’t big news and I suspect the vast majority will glance at any report, think how sad life is and how lucky they are, then turn to the back page to check the league table. 

Likewise, how many people are really keeping track of what the mother is putting into the public domain?  She’s not the BBC, she’s not Prince Harry. This case hasn’t been the focus of enormous media attention.

I’d ask you to consider what Hayden J said in paragraphs 16, 17, 18 and 19 of the below ruling:

My proposal will obviously create a risk of jigsaw identification; however, I think you can take steps to greatly limit that risk.

Someone always knows the identity of the child, or P. Social workers know, court ushers know, friends of families know, neighbours know. Any report will identify the child, or P, to someone. We’d argue that the test must be “will the passenger on the omnibus, the average person, identify the child, or P?” The test should not be “will anyoneidentify the child, or P.” If the test is “will anyone identify…?” then the media can never report any family case, or Court of Protection case, because someone will always be able to work it out.

The Court of Appeal recently considered this issue, when answering a slightly different question –https://www.bailii.org/ew/cases/EWCA/Civ/2022/1221.html, paragraph 46 onwards.

I suspect that, in reality, only the people who know the family will know the identity of the P, and they must already know.  I also suspect that, in reality, relatives, friends, neighbours etc will already know what has happened in this case – and will probably learn of the outcome regardless of whether or not there are media reports. 

I have no doubt that P can be protected from any risk of teasing or bullying, and I don’t imagine that she will reading reports in the Sunderland Echo or on the internet. 

(We’d normally argue that there’s also a broader issue in cases like this. The public should be told that there are consequences if judges’ orders are breached. In that vein, we’d normally make the “what’s in a name?” argument. Lord Rodger in re Guardian News and Media Ltd and others https://swarb.co.uk/in-re-guardian-news-and-media-ltd-and-others-hm-treasury-v-ahmed-and-others-sc-27-jan-2010/: “What’s in a name? ‘A lot’, the press would answer…” Reports with names have more impact than anonymous reports. However, as I said above, I’m not suggesting that this case is big news and more than anything we’re making arguments on a point of principle. Nevertheless, the case may attract some publicity and it may be that publicity will have some deterrent effect and protect other Ps and children. On that basis, I’d ask you to take account of Lord Rodger’s analysis.)

We’d say that the council should be named, regardless of your decision about naming P’s mother. The Practice Direction says the applicant in committal proceedings should be named. Taxpayers have a right to know what councils do in their name and with their money. If the council isn’t named, council members may well not know their council is involved. They certainly won’t be able to debate the case in public. The local MP won’t know that the council is in their constituency. Not naming the council will stifle political discussion, particularly local political discussion. We’d say limiting debate about such important, and difficult, cases as this, will make it harder for lessons to be learned and is not in the best interests of this P, or Ps generally. 

My understanding is that concerns are centred on the publication of P’s mother’s name. I’m not aware of an argument that naming the council would create jigsaw identification of P, or even create a risk. If P’s mother isn’t named, how could the average person work out P’s identity simply by knowing the name of the council involved? 

I think in any weighing of the Article 8 rights of P, and P’s mother, against the Article 10 rights of the media and the public, the balance here falls on the 10 side. Naming the applicant and respondent would create a limited risk to P: not naming would effectively be secret justice.

If I can help with any other points, please let me know. 

Brian Farmer, Reporter, PA Media

Brian submitted this letter in advance of the hearing.  At the beginning of the hearing, Mr Justice Poole said that he did not need to hear submissions on this matter.  He referred to. Brian Farmer’s “very helpful submissions” and in particular to these passages from Hayden J’s judgment in the family court case: PA Media Group v London Borough of Haringey[2020] EWHC 1282 (Fam):

16. Ubiquitously, it is now recognised that the primary risk to children’s privacy arises in consequence of public postings on social media. Ms Wilson speculates that the crowd funding scheme, organised by the mother with great effect, most probably involved a significant number of small donations rather than a few particularly generous individual benefactors. Ms Wilson reasons from this that many donors might be alerted by the judgment to investigate, by search engine, whether this was the family they gave financial support to. This, it is hypothesised, might lead to a plethora of social media posts which would be difficult to monitor. Ms Wilson also states, that whilst Ms Tickle focuses on the risk to child B by way of “playground taunts” the greater risk probably arises online and insidiously.

17. Mr Farmer considers that these concerns, though intellectually sustainable, are not, as he puts it, “rooted in the real world”. Mr Farmer is a seasoned journalist, he argues the following:

“I don’t think the concerns are enough to justify the Council’s anonymisation. I think, in the real world, the chances of people putting together an identity jigsaw are small and the chances of someone putting together that jigsaw and causing harm, smaller still.”

18. In admirably simple language, Mr Farmer makes the important link between “jigsaw identification” and the likelihood of “harm” (i.e. emotional distress) to the children. He is correct to emphasise the indivisibility of the two. Furthermore, both Ms Tickle and Mr Farmer respectfully suggest that very few members of the public will take the time to seek out and read my actual judgments, relying instead on what they read in the media. I have no doubt, at all, that this is largely true. Whilst it may mean that the public has an incomplete understanding of the case, it also follows that they may not be alerted to the pieces of information which might provide a jigsaw to identification.”

PA Media Group v London Borough of Haringey[2020] EWHC 1282 (Fam):

Similar considerations apply to a case in the Court of Protection”, said Mr Justice Poole.  “In fact, all three Counsel agreed that I should permit the Defendant to be named in reporting of these committal proceedings. I indicated that I too had formed that view.”

Some questions for the Court of Protection

Two Practice Directions have been issued in the past decade: the first issued in May 2013, superseded by another in March 2015. They are written in pretty simple, plain, English and both underline basic principles: justice should be seen to be done and people shouldn’t be jailed in secret.

Yet the evidence of the past two months alone seems to show that the 2015 Practice Direction is not being followed to the letter in Family and Court of Protection committal cases.

Evidence shows listings are done wrongly – and may not even include the words “Committal Hearing”. Defendants are sometimes not named, without any formal advance notification to journalists and without giving journalists the opportunity to make submissions about the reporting restrictions at the outset of the hearing.  

It makes us wonder why this is happening. This is British justice we’re talking about. We refuse to believe that it’s deliberate. Nothing we’ve ever seen in Family courts or the Court of Protection leads us to believe that judges or lawyers would deliberately breach Practice Directions. Is it simply carelessness? Listing staff making errors which are not spotted until it’s too late? Is it a lack of training? Are court staff being made aware of the Practice Direction? Or are mistakes inevitable because everyone is overworked? Do judges and lawyers need a bit of revision, perhaps? Is the problem that lawyers specialise in certain areas but hardly anyone specialises in contempt or committal? Is it the media’s fault? Should journalists be waving more red flags when things go wrong? 

We think these are questions everyone involved should think about.

An inaccurate listing on a court noticeboard might seem a small thing. But in contempt cases, that inaccurate listing might lead to your neighbour being sent to jail in secret. That would be a very big thing indeed.

Brian Farmer is a PA journalist with extensive experience in both the Family courts and in the Court of Protection for more than a decade.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She’s observed more than 380 COP hearings since May 2020.

‘Test case’ on Lasting Powers of Attorney – with troubling delay

By Celia Kitzinger, 31st January 2023

At some point in the future, there may be a time for all of us when we can’t make decisions for ourselves. 

It may come suddenly, as it did for my younger sister, Polly, who was catastrophically brain-injured in a car crash in 2009.  

Or we may lose capacity to make our own decisions slowly, little by little, with a neurological illness such as dementia.  

For some people it comes as a nasty shock to realise that family members are NOT able to make decisions on behalf of an incapacitous adult.  “Next of kin” has no legal meaning in this situation. Instead, if you haven’t made a Lasting Power of Attorney, the state takes over – decisions are made by doctors and social workers, court-appointed Deputies, and (at last resort) by the Court of Protection.

That’s why many of us have appointed someone we trust to make decisions for us in the future, if that’s ever needed.  The mechanism for doing this is a Lasting Power of Attorney – and there are two different kinds: one covers decisions about property and finance; the other covers decisions about health and welfare. (There was no information in this hearing about whether the court is concerned with only one or the other kind of Attorney, or with both.)

I have appointed both kinds of attorney for myself because I was horrified and dismayed by what happened after my sister’s brain injury.  The people who knew and loved her were not able to intervene effectively in decision-making about her health care, meaning that they gave her treatments we were all sure she would have refused if she could. And dealing with her bank accounts and bills and the sale of her house was very difficult.  I don’t want to leave anyone in my family struggling like that again – so I’ve given them the legal power to make decisions. 

My own choices for attorneys are simple. For both ‘Health and Welfare’ and for ‘Property and Finance’, my wife is my attorney: she’s the person I want as my decision-maker.  I trust her to decide (if I cannot) where I should live, what kind of care I should have, and how to manage my money.  If she’s not able to act (e.g. because we are in a car accident together), then one of my sisters is named as my ‘replacement attorney’.  My choices of attorney are recorded on my Lasting Power of Attorney forms and registered with the Office of the Public Guardian.

What I gathered from this short hearing before Mr Justice Peel[1] was that some people are trying to make more complicated arrangements.

The hearing

Matters weren’t laid out in any detail (that will happen at a later hearing) but it seems that some people want to appoint two (or more) attorneys to act jointly (meaning they must agree each decision between them)  –  or jointly for some decisions and severally for others (meaning that they must make certain decisions together and agree them unanimously, but can make other decisions individually).  That’s provided for on the forms,  though the instructions for filling them in do say that if you appoint your attorneys to act “jointly” on everything, this could cause problems, because “If your attorneys can’t all agree on a decision, it can’t be made“.

The forms encourage the person completing them to consider the “jointly and severally” option saying “some people pick this option because they don’t mind their attorneys taking everyday decisions alone but want them to make important decisions together, such as selling a house”.  There’s an example of what this would look like:

“My attorneys must act jointly for decisions about selling or letting my house and may act jointly or severally for everything else”

“My attorneys must act jointly for decisions I have authorised them to make about life-sustaining treament and may act jointly and severally for everything else”.

The forms also offer the opportunity to appoint a ‘Replacement Attorney’ who can step in if the nominated attorneys can’t act (e.g. they’ve died or lost capacity themselves). 

I don’t know the details of what the people whose forms are now before the Court of Protection were trying to do in their applications – but whatever it is, their forms have raised questions for the Public Guardian about whether what they want is compliant with the law, i.e. does the Mental Capacity Act 2005 permit it.  

Counsel for the Public Guardian, Neil Allen, said: “These LPAs have been carefully chosen by the Public Guardian as test cases to illustrate the legal issues requiring the court’s determination and guidance”.  

In his opening summary he said that the people whose applications have been consolidated for this case “have either tried to create a lead attorney or provide for a majority rule or organise for the replacement of replacement attorneys. This raises validity issues, and whether any provisions need to be severed.  There are over 100 similar cases which the Public Guardian is considering and will be affected by judgment in this case”.

I’m trying to imagine what people have done to cause the Public Guardian these concerns, and what that would look on the completed forms (which of course I haven’t seen).  Maybe people have tried to complete the forms to achieve effects like these (examples invented by me!). 

  • “I appoint my three daughters, A, B and C as my attorneys to act jointly and severally but in any situation where they are acting jointly and they can’t agree, I want my daughter A’s decision to be final”
  • “I appoint my three daughters A, B and C as my attorneys to act jointly and severally but in any situation where they are acting jointly and they can’t agree, I want the majority decision that any two of them agree on to be final”
  • “I appoint my three daughters A, B and C as my attorneys to act jointly and severally, and my son D as a replacement attorney if any one of them becomes unable to act. If D is also unable to act, then I authorise A to choose another replacement attorney.”
  • “I appoint my three daughters A, B and C to make decisions jointly and severally. Any decisions about life-sustaining treatment must be made jointly, and other decisions can be made severally. Decisions about where I live and am cared for must be made only by A, and decisions about my religious worship and diet must be made only by B.  

These are entirely invented examples and I’ve no idea whether they accurately reflect the problems before the court.  I will learn more (I hope) at the next hearing.

The case will be heard on 19th April 2023 (probably in person) by Mr Justice Hayden in the Royal Courts of Justice. It’s anticipated that none of the people who actually filled in the forms that are raising questions for the Public Guardian will be there (though they have been informed of the case and told that they can apply to be joined as a party).  Instead, the Official Solicitor will be invited to act as Advocate to the Court.  This role is described in a practice note:

“The Official Solicitor is also sometimes invited to act as Advocate to the Court. A court may seek the assistance of an Advocate to the Court when there is a danger of an important and difficult point of law being decided without the court hearing relevant argument. The Advocate to the Court’s function is to give to the court such assistance as they are able on the relevant law and its application to the facts of the case. An Advocate to the Court does not represent any party.” (Appointment of the Official Solicitor in property and affairs proceedings [2021]) 

At the short hearing I observed, the judge agreed that all the applications could be heard together (only seven appeared in the court listing, but there was reference to nine in court). He also agreed that the Official Solicitor would be invited to act as Advocate to the Court, and that the hearing would be on 19th April 2023 (before Hayden J). Finally, he made some suggestions for improving the wording of the matters that needed to be determined.

Delay

I’m left worrying about the position of the (seven or nine) people who filled in the forms, said who they wanted to make decisions for them, and who are now waiting for the court to decide whether or not their forms are validly made (as well as the “over 100 similar cases” referred to by counsel for the Public Guardian). 

Until these people’s forms are registered and given a special ‘date stamp’ by the Public Guardian, they’re not valid.  If they lose capacity to make the relevant decisions while the Public Guardian is still waiting for a court ruling about whether what they’re asking for is compatible with the requirements of the Mental Capacity Act 2005, then the effect is that they haven’t appointed anyone to make decisions on their behalf, and the risk is that it would then be too late to do so (because they might also have lost capacity to make an LPA). And certain provisions from their LPA may be severed – without them having the chance to consider the impact of this on their LPA choices.

 If this were me, I’d be extremely anxious.  I’d want (at least) to know right away what bit of my form was causing problems, and to be given the opportunity to submit a revised version even if it wasn’t exactly what I really wanted – because that way at least I’d have put something in place to protect myself and my family while the wheels of justice moved slowly on.  I hope they’ve been offered suitable legal advice (for free) about what they might do in this situation. (This wasn’t addressed in court, but I understand something along these lines might have occurred.)

I don’t know when these people submitted their forms to the Office of the Public Guardian but there was reference to the applications having been sent to another judge (HHJ Hilder) in May 2022.  According to the website: “It takes up to 20 weeks to register an LPA if there are no mistakes in the application”, so these people would have realistically expected to have had their attorneys lawfully appointed by October 2022 at the latest.  

As it turns out, they haven’t made “mistakes” – they’ve just said they want to appoint attorneys in ways that the lawyers aren’t sure are lawful.  But they are having to wait a further six months from the date by which they might reasonably have expected their LPAs to have been registered for a hearing in April 2023 which (according to Peel J) will be only a directions hearing, and not a final hearing.  I imagine that a final decision is unlikely to be made until Summer 2023, more than a year since their applications to register their LPAs were made.  And in the meantime, there is a real risk that some of them will lose capacity and find that they don’t have the protection of attorneys in place and that its too late for them to re-submit the forms in compliance with whatever the court decides is lawful.

I’m a bit troubled by the delay”, said the judge.  “I’m just not sure why it’s taken so long. I’m very sorry it has.”

I am too.  

And I hope the Public Guardian is taking appropriate steps to protect the autonomy of the hundred or more people whose advance planning (for care, for finance, or for both) might be very seriously affected by the current uncertainty about the law.

Celia Kitzinger  is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She has personally observed more than 380 hearings in the Court of Protection. She tweets @kitzingercelia 


[1] COP Nos: 13954400, 13954481, 1395439T, 13954446, 13954475, 1395443T, 13954383, 13954498, 13954423

‘Vindicated!’ The experience of P in the Court of Protection

By JH and NB (with an introduction from Celia Kitzinger), 29th January 2023

Editorial Note: The judgment has now been published: NHS Surrey Heartlands Integrated Care Board v JH [2023] EWCOP 2

Introduction (by Celia) 

There was an urgent Court of Protection hearing at the end of last year before Mr Justice Hayden.  In this blog post, the person at the centre of the case (JH) describes – in his own words, as recorded by a family member- his experience of the hearing. This is a first! 

The Open Justice Court of Protection Project was set up (in 2020) to support members of the public to observe hearings and to blog about their experience of the court.  We’ve very occasionally published blog posts in which family members describe their experience of cases we’ve also observed (e.g. here and here).  But this is the first time we’ve had the opportunity to publish an account of a hearing by the person most affected by it, the person at the very centre of the case.  

Ethics

It’s really important that the people most affected by the justice system are supported to speak out about their experience – and that the rest of us listen to them.  It’s a vital part of open justice.  But it’s new territory for us.  When JH contacted me (via a family member) and offered to contribute to a blog post, I had to think carefully about the issues involved.  I consulted with other members of the Project team (which includes people with personal and family experience of autism) and put out a call for input via our twitter feed (receiving more than 30 responses from Court of Protection lawyers, social workers, and others). 

I have no reason to doubt that JH has capacity to decide to tell his own story in public and to give consent to publication. In the published court judgment of his case there is no finding of lack of capacity in any domain. He was found to have capacity to litigate, and did so as a Litigant in Person during a hearing of several hours.  

He chose to contribute via an ‘interview’ with a family member.  I was reminded (thank you Daniel Cloake aka @MouseInTheCourt) of the BBC Guidance on working with (potentially) ‘vulnerable’ contributors or anyone who might be at risk of harm as a result of contributing their story.  I’ve read and discussed this guidance with NB, who is JH’s cousin and ‘interviewer’.  She supported JH to tell his story, and will provide ongoing support after it is published.  

After typing up his interview, NB checked it with him and I’ve seen the text message in which he confirms that he is “fine” with publication of his interview, and that he “hopes it helps someone else” to know that it is possible to stand up for one’s rights against (what he experienced as) coercive attempts to impose medical investigations that he did not want.  He was also happy to contribute his story anonymously – as required by the Transparency Order, which was a relief as otherwise I’d have needed to help with an application to vary the Order.

After we’d agreed the text of his interview, NB wrote her own account of the background to the case, and I wrote the first draft of this “Introduction”, to contextualise what JH said in relation to the published judgment.  Then NB read the whole thing – my introduction, her background account, and his story – out loud with JH, checked he was happy with it, and returned it to me with some suggested additions and changes, all of which I’ve incorporated.  Finally, I received an audio-recorded  message:  “I’m just giving you my permission to publish it, and thanks for your support and help. It’s very much appreciated”.  (JH also chose the illustration for this blog post from a selection of four candidate images I sent over for him to look at.)

For JH, the process of telling his story for this blog post has been (he says) “empowering”. He is rightly proud of his role in the Court of Protection proceedings and feels that the outcome of the case has enabled him to be “a free man. Vindicated!”.  It’s a story he wants to tell so that other people who get caught up in disputes with health or social care teams can learn a bit more about how those disputes can be resolved in the Court of Protection – and perhaps they will be a bit less stressed and anxious by the idea of going to court when they realise from this blog post how “friendly” the judges can be.  He also wants to encourage other people to make Advance Decisions: “If you don’t have one of them, you have no chance! If you do, you have some protection for yourself”. 


The case of JH

The case concerned the validity of an Advance Decision made five years before.  (The Mental Capacity Act 2005 deals with Advance Decisions at ss. 24-26.)

The person at the centre of the case, JH, is in his 40s and was diagnosed with what the judgment refers to as “Asperger’s Syndrome (now recognised as Autistic Spectrum Disorder)” when he was 16.  He suffers from gastrointestinal pain and discomfort which has plagued him since childhood, and which now makes it difficult for him to eat.  For some years he’s been consuming only Fortisip high-calorie drinks and mineral water. He now weighs around six stone (says his GP) and has multiple vitamin deficiencies.  Doctors say his life is at risk.

In the past, he’s had lots of investigations, which he’s found intensely distressing, and he has consistently refused colonoscopy and gastroscopy. According to the published judgment (NHS Surrey Heartlands Integrated Care Board v JH [2023]  EWCOP 2):

Such investigations were considered necessary and appropriate by his treating clinicians then, and by Dr W [his GP] now, to enable direct visualisation of the bowel and to allow biopsies to be taken to facilitate any diagnoses of a further range of bowel conditions that may be responsible for his symptoms. It is very clear from the evidence I have read and what from what JH has told me directly, that these extensive investigations of his childhood which necessitated such incessant hospital involvement has left him profoundly anxious and he is now entirely unprepared to attend hospital. Additionally, JH is deeply resistant to any form of invasive medical treatment.” (§2, Re JH)

I’ve been in touch with members of JH’s family since 2020, when JH’s cousin contacted me because JH was feeling “hounded” by health professionals who wanted to investigate his eating problems. I was told they had raised doubts both about his capacity to refuse those investigations and about the validity of his Advance Decision to refuse them.  He was feeling “disempowered” by their “paternalistic” approach. 

With JH’s knowledge and agreement, his aunt sent me a copy of his Advance Decision and details of the concerns raised by the local authority. His cousin, NB, also consulted a lawyer.  Apparently, the lawyer and I gave broadly the same advice about how to make his pre-existing Advance Decision ‘watertight’.  My suggestions included sorting out the date (the year was given as “20027” which doesn’t make sense) and separating out treatment refusals from broader wishes and feelings (which properly constitute an ‘advance statement’ (MCA s. 4(6)(a) rather than an Advance Decision).  I also suggested adding a specific refusal of clinically assisted nutrition and hydration (a feeding tube).  In my view, this was covered anyway by the refusal of “tubes inserted into my body” but I thought refusing the feeding tube should be separately listed since some people (including some doctors) don’t understand that food and water delivered through tubes is considered by law a ‘medical treatment’ (and not basic care).  

These amendments were discussed with JH and he planned to make changes to his Advance Decision (or to redo it) but for various reasons – including the challenges of the COVID-19 pandemic – he didn’t actually do so. So, the Advance Decision before the judge in December 2022 was the original version.  

The case finally came to court well over two years after I’d been alerted to the serious conflicts between health professionals and JH: for years there had been ongoing suggestions that he lacked capacity to make his own decisions, and might have done so when he made his (purported) Advance Decision. It seems to me that JH might have been spared a lot of distress if the case had been brought sooner, so that matters could have been resolved earlier.  It seems that it finally came to court when it did because professionals thought he might die over the Christmas period and wanted to be sure that they would not be held liable for withholding the tests and treatment that JH was refusing.  As the judgment says:

…. whilst Dr W considered that it was feasible that JH had made a valid advance decision in 2017, a court determination was requested due to the stark consequences to JH if investigations leading to potential treatment did not take place, which would include his premature death.” (§2, Re JH)

Typical of Mr Justice Hayden, his judgment conveys a strong sense of the person at the centre of the case:

“Initially, I had formed the impression that JH had led something of a reclusive life, but in fact, it is clear that he sees his family his son, mother and daughter (in particular) on a very regular basis. They are all and each of them hugely important to JH.  attentive, kind, loving family, who bring much warmth into his life. He is a man whose interests in nature and the outdoors can find expression even within the limited confines of his own garden. His enthusiasm for birds and nature is one which he has passed onto his son. He is a keen musician. At 12 years of age, he saved up his pocket money and bought a Fender Stratocaster American guitar. It brings obvious pleasures to JH who plays it every day. He is, from what I have been told, an accomplished guitarist. He is modest about his own accomplishment, but Dr W has told me that JH has played for him and that he considers JH plays very well indeed.” (§25, Re JH, punctuation etc as in published judgment)

The judge was very complimentary about Dr W, the GP, who has been for the last 13 years  “absolutely dedicated to [JH’s] care, above and beyond professional duty or obligation”: JH and his GP have “a convivial relationship and there is obvious mutual respect” ((§4, Re JH)).  He drew attention to the fact that Dr W considered that JH was likely to have had the capacity to make the Advance Decision in December 2017, and “It is important to record that a capacity assessment undertaken in 2017 also concluded that JH had capacity” (§19, Re JH).

The legal situation, as outlined in the judgment is that there is:

“… no obligation on a patient, who has decision-making capacity, to accept life-saving treatment. Doctors are not obliged to provide treatment and, perhaps more importantly, are not entitled to do so in the face of a patient’s resistance. This reflects a mature understanding of the importance of individual autonomy and respect for human dignity”.  (§9, Re JH)

The judgment quotes from several earlier judgments which have established this point, including this extract: 

“Even when his or her own life depends on receiving medical treatment, an adult of sound mind is entitled to refuse it” (St George’s Healthcare NHS Trust v S [1999] Fam 26 cited at §12, Re JH)

The judgment describes the Advance Decision  made by JH in 2017 as being – apart from the muddled date –  “pellucidly clear” in relation to the current decision before the court concerning colonoscopy or gastroscopy.  I agree!  

The judge added that if the Advance Decision had not been valid (or not applicable to these investigations) and he’d been in the position of having to make a best interests decision, he “could not have contemplated a situation in which the envisaged investigations could have been forced upon him” – not least because JH had told Dr W that he would continue to refuse them, that it would need physical restraint to compel him to have them, and that he would feel “violated” by the investigations:

“The strength of his feelings, the consistency with which they have been held, for so many years, and his obvious distress at the contemplation of such an intrusive investigative process would, in my judgement, be brutally corrosive of JH’s autonomy. It would both compromise his dignity and cause him great personal trauma. It could not be reconciled with any concept of “best interests” in the manner required by the MCA.” (§23, Re JH)

There are at least two other published reports about this judgment. Legal commentator Alex Ruck Keene raises issues about retrospective ‘presumption of capacity’ (here) and journalist Brian Farmer, who attended the hearing, produced a report which appeared in the Evening Standard and the Independent (here). Neither of these reports –  nor the judgment itself – tells the ‘full story’.  

In what follows JH’s cousin and then JH himself tell the story of this case from their own perspectives.

1. Background to the hearing: By NB

JH is my cousin.  We spent a lot of time together growing up. Family has always been really important to us. Our Grandmother ‘Nanny Mary’ was from a big Irish family and her door was always open. She looked after everyone and we all looked after each other. 

In 2008 I was working for a local charity for people with profound and multiple learning disabilities. One of our trustees ran a training session on the Mental Capacity Act 2005 (MCA), he was a lawyer and had been involved in writing the Code of Practice for the MCA. I thought it was really interesting.

In 2017, JH’s Mum told me that he was being assessed by a familiar dietician and another less familiar clinician. She and he weren’t sure why –  but I suggested the learning disability team might be assessing his ability to make decisions for himself. They both looked horrified and had no idea that it was a mental capacity assessment. I’d remembered enough of the training to realise this wasn’t how the MCA was supposed to work. JH has made the same decisions around his health for over 20 years, never wavered.

I contacted another lawyer trustee who put me in touch with a human rights lawyer. She suggested completing an Advance Decision and directed us towards the website ‘Compassion in Dying’ for the template. I also called their helpline for advice and spent two evenings reading the whole of the Code of Practice for the Mental Capacity Act.

Then I printed out the Advance Decision forms from Compassion in Dying and gave them to JH to read in his own time. When he was ready, I sat at the computer with JH at the end of the phone and read out the questions to him. I typed up his responses, printed them up and gave the Advance Decision to him to check through and make any amendments. He also talked through it with his Mum. I made any changes and gave them both a final copy to check. I trained as a community advocate in the 1990’s, and knew it had to be JH’s words. I informed JH that he could change the Advance Decision at any time and we could use the same process.

A school friend of mine who had known JH for many years agreed to witness his signature.  She said to me at the time that she couldn’t understand why the team were questioning his capacity as she thought it was obvious that he had full capacity. 

Here is a crucial part of JH’s Advance Decision. It’s also reproduced in the judgment. It shows how an Advance Decision can be used to convey a clear sense of what someone wants.

“If my health deteriorates or if I should collapse and not have capacity to make decisions: 

I do not wish to attend any hospital/ medical setting. 

I do not wish to have treatment which involves inserting tubes into my body, operations, x rays or MRI scans. I am willing to have bloods tests at home and to be weighed. I wish to continue with diabetic treatment and medicines around that. 

I wish to have involvement with G.P, G.P practice nurses, Social Worker and Dietician but no involvement from other team members. 

I do not wish to have any unannounced visits from the Dietician. If the Dietician attends, I wish for the appointment to be pre-arranged and for a family member or my advocate to be present. 

I do not give permission for practitioners to be looking back through historical case notes. 

I do not wish for Multi-disciplinary meetings to be carried out without my knowledge and if a meeting needs to be carried out about my care, I wish to be fully informed beforehand. 

I wish to be fully informed of any discussions between practitioners about my case. 

I would like to be included by telephone or if I am unable to be present or on the phone, I wish to receive an agenda beforehand and written notes to inform me what has been discussed. 

I do not wish to be kept in the dark about my care or for practitioners to talk about my care without fully informing me. 

I do not wish for any assessments to be carried out on me without full written information regarding the assessments. 

I do not wish to discuss my history going back to my childhood treatment. 

I do not wish to make on the spot decisions about my care. The best way to enable me to make a decision is to provide the information and then give me time to think about the decision when I don’t have the pressure of time restrictions”

We requested a copy of the capacity assessment from the Learning Disability team, which was never forthcoming. I was told over the phone by the dietician that the outcome of the assessment was that he did have capacity. It is our view that a lead clinician in the team who had never met JH, later questioned the Advance Decision and his capacity at the time he made it.

Over the years, more and more clinicians within the Learning Disability team became involved. They had meetings about him, without him. The more they pushed, the more JH backed off. Some of them spoke to him like a child. They didn’t listen to him. They were at his door relentlessly. He asked me to phone them to say that he hadn’t given permission for them to attend his house. I called them and they still turned up banging on his door. They asked for a key to his flat. They gained a court warrant (JH still has the copy) resulting in police officers breaking into his flat. He was out at the time and they left a note for him to contact them immediately. As soon as the police officers spoke to him face to face and saw his Advance Decision, they realised he had capacity and left. 

I wish the Learning Disability team members instigating this had stopped for one minute and thought ‘how would I feel if someone treated me this way?’

It seemed as though they were looking for loopholes in the Advance Decision. Unfortunately, none of us had noticed that JH had made a mistake with writing the date. 

Over time , JH put a complaint in about certain members of the team and received a written apology. He took the complaint to the LGSCO (the Local Government and Care Ombudsman). These complaints weren’t highlighted in the hearing!

At this point I connected with Celia Kitzinger and observed a couple of hearings with the support of the Open Justice Court of Protection Project. I read many of the blogs and kept a close eye on the cases which I thought might be relevant to my cousin’s case. One case gave me hope. It was a case before Mr Justice Hayden involving a young man who had been given a colostomy, despite his (unwitnessed)  Advance Decision saying he wanted to refuse anything that would lead to a permanent stoma (which this had). In this case (Barnsley Hospitals NHS Foundation Trust v MSP), his family (like ours) agreed that his wishes were of utmost importance. There was another case where a ‘best interests’ decision was made not to force a feeding tube on someone, even though the young woman concerned was viewed as not having capacity to refuse it at the time: there’s a blog post about that case here: “Just listen to me please”. 

As a family member, I have been appalled at the paternalistic approach of the Learning Disability team and feel that JH was dehumanised by them. At every turn I thought it would be resolved, as to us it was obvious he had capacity and what his wishes were, but they continued to chase him. 

JH’s choices aren’t easy for us to accept, especially for his Mum and Dad and his children.  But others controlling his life and removing his ability to choose what he does would be a thousand times worse. 

He is his own person. He lives independently – near to family. He has a wicked sense of humour and he has such a blunt but lovely way of saying things. I remember when a psychiatrist (the one we suspect of having opened up questions about his lack of capacity) told him she was an expert in autism, JH replied: “So am I. I’ve had it all my life“.

So many decisions of the team were absolutely not in his best interests –  in his view and in the view of the family.  Maybe the Learning Disability team should have brought this to the Court of Protection years back? We were aware of their lawyers checking the Advance Decision a few years ago. Why was his case not referred then?

Now to the hearing, which JH didn’t realise was going to be a hearing until he was on the phone that morning with his Mum (my Aunt) by his side.  He just thought the judge was calling to ‘meet’ him and hear his views.  

He’d messaged the night before to say the judge was calling and I texted back ‘You’re amazing! You can eloquently put your point across. I have faith in you’. I imagine it was to his benefit that he had little time to stress,  but that night sleep did elude him, unsurprisingly. 

The next day I found out that he had represented himself in a five-hour long hearing and had won the case. He is absolutely amazing. It just goes to show what we all knew all along. 

My aunt said she felt like her brain was about to explode when she realised it was an actual hearing but said she had to remain really calm on the outside for JH. 

Most of the hearing is a blur to my aunt, but JH was able to recollect a lot of it and agreed for me to interview him. 

I have to finally add our thoughts about his amazing GP, Dr W. This man is the epitome of care and empathy. He has empowered JH, listened to him, given him time and treated him like a fellow human being. All these things built trust and safety. JH has said he is indebted to him. When JH completely disengaged from the Learning Disability team, I suspect Dr W spent a lot of time dealing with them on JH’s behalf, and this must have been a challenge at times. He spoke up for JH at the hearing with honesty and integrity. Our family and JH himself cannot ever thank Dr W enough. 

2. JH’s account of the hearing (as told to his cousin NB)

NB:  What was your first point of realising the Court of Protection was going to be involved? 

JH:  Dr W phoned at 8:30 on Monday morning to tell me that the NHS was taking it to the Court of Protection. He apologised for the distress, worry and upset.  He then arranged to come out the same day with a mountain of paperwork and explain things.  Dr W said he didn’t think it would be in court until after Christmas or the New Year which would give me time to find a lawyer and he gave me a list of lawyers’ names.  He marked down the recommended lawyers.  So, I thought at that time I had a few weeks to get a lawyer for after Christmas. 

Dr W then called again the following Sunday and said it was going to court next week and he came out Monday morning with yet more paperwork. At 5:30pm on Monday I got a phone call [we think from the NHS lawyer] demanding I get a lawyer and I was told the Judge would call me at 9am on Tuesday, the next morning.  At this point we still didn’t realise that it was an actual hearing as I was told it was just a chat with the judge.  

At 9am on Tuesday morning I was by the phone with my Mum.  Court admin called and told us that it was a hearing, here and now,  and asked where my lawyer was.  I said I didn’t have one.  At the time, I was on a £10 mobile from Tesco. It wasn’t fully charged and had around £10 credit on it.  Court admin wanted to hold the hearing online but I am not connected to the internet,  so Mum and I ended up on the phone with everyone else present in the courtroom. Dr W was also on a phone link.  The phone line wasn’t that great: at times it cut out but we were able to understand the overall themes.  We both took the oath before giving evidence.

NB: How did you feel at this point?  

JH: I felt angry that it had been sprung upon me.  But before the oath I was given the option to delay the hearing to allow me time to get a lawyer and I said I’d just about had enough, I wanted to get the decision over and done with and I still wouldn’t have had the treatment anyway.  My GP spoke up for me nicely.  He was very protective in his attitude towards me and manner. He did everything he could to get them to leave me alone.

NB: How did you find the experience of giving evidence.

JH: By this point I thought I’ve taken the oath and I’m going to tell the truth anyway and if people don’t like it, it’s up to them. The judge didn’t interrupt me. He gave me time to talk, time to explain things. He listened and took notice of me.  He came across as very genuine and understanding of my difficulties.  It felt like he was really listening to me and my voice.  The judge asked me about my family, so I told him.  He asked about my hobbies, so I told him about those too. 

Listening to what the NHS had to say, it felt like it was all about them and what they wanted to do to me. I’ve had about ten years of bullying and harassment and being told to ‘do as you’re told’ kind of attitude. It made me feel like I was worthless and had no control over anything. Like I was a criminal and I was being punished for something. I was ducking and diving and hiding from them and going out all day to avoid them. 

They said my Advance Decision might not be valid because it was from an internet service and they queried the date and thought I didn’t have capacity at the time.  The judge asked how I got the Advance Decision written and who helped me.  I said my cousin got it from the internet and my cousin and mum helped, and my cousin’s friend witnessed my  signature.  I told the judge they were all my own thoughts, wishes and words but my cousin typed it up as my writing isn’t neat.

It felt like every time I had something to say, they produced another piece of paper about me.  My IQ was mentioned and all. They couldn’t find the correct documents for my diagnosis. Also, the judge said he was led to believe that I was a recluse!  Not true!  

The judge asked me if I wanted a summary and decision today and I said yes, today.  Then, they broke for about 30 minutes and cut the phone off.  They asked me to ring back but I said I didn’t have enough credit, so the court called me back and I got the judge’s summary of the evidence and the decision.

NB:  And what was the decision?

The judge said that my Advance Decision was completely valid and that when I made it,  I had capacity.  He said (about the date) that many people make mistakes on paperwork.  As far as he was concerned, what I do from this day onwards is no one else’s business but my own.  The judge asked if I would like to say anything and I said, yes I would.  I said, thank you for your time, your patience, for listening to me and respecting my wishes.  Then it was all over. I was a free man, vindicated.

I am happy with the judge’s decision and his attitude towards me as he was really nice to me.  He came across as a friend, not at all like a judge, all stiff collared!

I was pleased I represented myself as I know myself better than anyone else.  I feel elated now that I never have to worry about being made to have investigations and treatments again.  I hope that no one else has to go through the same harassment that I got from them, and their controlling and paternalistic attitude.  I really hope this helps other people to stick up for themselves. 

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project.  She is very grateful to NB and JH for their contributions to understanding the work of the court and the way it impacts on families.

Observing my first hearing: Plan to terminate contact if father is abusive to carers

By Josie Seydel, 23rd January 2023

On Tuesday 17th January 2023, with encouragement from Celia Kitzinger (thank you!) I decided to observe my first hearing in the Court of Protection. I have been studying the Mental Capacity Act (MCA) 2005 online, (with e-Learning for Healthcare run by Health Education England NHS) as part of my return to practice as a Practitioner Psychologist, and re-registering with the Health Care Professionals Council (HCPC), after a 5-year career break. I have found studying the MCA 2005 surprisingly enlightening and interesting but like so much of my personal experience of study it only really comes alive with ‘real world’ application. 

I actually had no idea that it was possible to observe a Court of Protection hearing and had made the false assumption that these were not open to the public until I was pointed towards the Open Justice Court of Protection Project (by following up on case law referred to in the course). Since the pandemic, many hearings are now online, making them even more accessible. I am not very ‘techy’ so my biggest anxiety was actually about joining via MS Teams and using the software correctly and not accidentally putting on my microphone or camera during the proceedings, but it all went very smoothly and I was able to listen to the whole hearing without any technical issues, even on my ancient laptop.

The hearing before Sir Jonathan Cohen (Case COP 11895778) concerned a 29-year-old man (P) described by counsel for the applicant local authority (in her introductory summary) as having Autism, a Learning Disability and, at times, ‘challenging behaviour’ (one example was given of him ‘ripping his clothes’ when distressed). I had no other background information about the case and none was specifically given. I also had to intuit who was who at the hearing as the barristers were not introduced as part of the opening summary and I wasn’t familiar with them, or court hearings in general to know. However, the Judge was obvious and fulfilled my stereotype! P’s father was expected to attend also.  When the judge observed that “we don’t yet have the benefit of P’s father here”, someone explained that he was often late, and it wasn’t unusual for him not to be present at the start of the proceedings.

The case has, I believe, been on-going for some time (possibly years). At this point, P is receiving 24-hour care in his own home through a care agency. It appeared from reports made by the Local Authority in charge of his care, that he is generally doing well – occasionally going out to the shops or to the park – but his regular, day-to-day activities and access to regular outings (such as day-care centres, education and recreational activities) were not detailed, and the Judge was concerned about this and requested that these be recorded and brought to his attention before the next hearing. 

After some further discussion about P’s general care and welfare, safeguarding issues were raised and requests made for additional powers to be granted to the Local Authority in charge of P’s care. Initially, knowing nothing of the case, I was confused as to the nature of these issues and thought they were about P himself, but it became clear that they actually concerned P’s father. He was described as often ‘kicking off’ and becoming verbally abusive to staff, at times requiring the threat of, or actual intervention from, the Police.  This, it was explained, was distressing to P and to staff caring for him, and there was concern about how to set clear boundaries with P’s father without creating a further breakdown in his relationship with P’s carers.

At this point, 30 minutes late, P’s father made his virtual entrance (by telephone). His behaviour in court vividly illustrated the problems the staff must be facing when he visits P.  For the next 12 minutes he produced a torrent of ‘colourful’ language directly insulting the judge, alongside allegations of staff abusing P, not washing him, not feeding him properly and denying the father access to his son. The Judge remained calm and did not display much of a reaction (apart from one brief wry smile and raised eyebrows) despite some pretty offensive insults! 

The Judge asked P’s father to desist and to stop interrupting, but he seemed incapable of doing so. The Judge warned him that he would be removed from the hearing if he continued to behave in this way and indeed, after a brief, but very feisty 12 minutes of attendance, court staff removed him from the (virtual) hearing.

Despite his challenging attitude, I was concerned that P’s father had raised some very serious allegations and that these might be lost amongst the necessity of dealing with his difficult behaviour in court and towards the Judge. I was assured, in an email later with Celia, who has been following this case for some time, that at least some of these concerns had been raised before and dealt with at previous hearings (though clearly not to the father’s satisfaction). It is an important part of the considerations of this case that, despite his contentious approach, P’s father has a right to be heard and have his concerns treated with due consideration. Disregarding his concerns would be a serious breach of justice, yet his offensive and threatening behaviour clearly needed addressing. 

The Local Authority asked the Judge to endorse a risk management plan enabling staff to terminate the father’s contact with his son if he becomes abusive towards staff.  They made clear that they were not seeking a penal notice in connection with this. The Judge endorsed this.  It seems that the father’s contact arrangements will be further reviewed at a later (final) hearing and in the light of a third party Disclosure Order for a police report about the father’s behaviour toward staff, which was also approved by the judge. 

It concerned me that P’s father did not have legal representation (I’m not sure why, but I made the assumption that this was for financial reasons) and that he could benefit from some emotional support and assistance so that his actions and behaviours do not actually become detrimental to the welfare of his son, which I think appears to be the crux of this case.

At this first hearing I think I was given quite a spectacle. I have a great deal to learn still about the case, the Mental Capacity Act and legal processes, but this was a really beneficial, though-provoking and useful experience and I feel very grateful to have been an observer.  My appetite is definitely whetted for more.

Josie Seydel is a Chartered Counselling Psychologist, based in Devon, with a background in forensic, adolescent, in-patient, and complex mental health care. She tweets @JosieSeydel76

Deprivation of Liberty Safeguards: A course for families

By Anna (daughter of a P)

I’m involved in a Court of Protection s 21A application concerning my mother and the origin of this case was a Deprivation of Liberty Safeguards (DoLS) application.

So when I learnt about this course run by Edge Training specifically for family members of people in care homes and hospitals under DOLS, I was interested in finding out more. 

The day before the course (on 8th December 2022), I received an email containing the Zoom link and a copy of the pack of slides for the course. This proved to be very useful. I had a quick flick through them before the course but I also had the slides on my ipad during the course, which I accessed from my laptop, and of course they will be handy to refer back to in the future. I’ve attended a lot of courses where participants have asked whether the slides will be available afterwards, or I’ve had to take screen shots myself, so I appreciated being sent the slide pack in advance. 

I logged on a couple of minutes before the scheduled start time. Normally you sit in a waiting room but this time I was admitted straight away. I heard soft piano music and saw a couple of slides on rotation, informing participants to get in touch with the administrators if they couldn’t hear anything, or hadn’t received the slides, and information about how to ask questions. I could see other participants had joined too, although all cameras and microphones were off. Overall, I found registration and access to the course very efficient and organized, and helpful for participants. 

The course was led by Aasya Mughal, who started by introducing herself and Edge Training. She explained that Edge Training is a firm that provides legal training, particularly in the field of human rights issues, mainly concerning the health and social care sector but also for other organisations such as the police and the military. The trainers come from a range of professions and include judges, lawyers and social workers. Aasya is a barrister and director of Edge Training. 

I was quite surprised when, after her introduction, Aasya asked participants to introduce themselves and why they had wanted to attend. She stressed that the course was not being recorded and all personal details would be confidential, and she made it clear that people should only speak about what they felt comfortable saying. There were only six participants, and the course is always capped at 20, so this ‘personal’ approach is always possible. Everyone introduced themselves and most people put their cameras on to do this. This set the tone for the course, as it was quite interactive. Aasya encouraged participants to ask questions either through the chat or through raising a virtual hand (cameras stayed off whilst Aasya was going through the slides), and she mostly answered them as they came in. This approach was an alternative to going through all the slides and then having questions at the end, and it worked quite well as it meant the questions were relevant to the information on the slides.  

The content of the course was very informative. It covered the legal background to DoLS, some relevant statistics, what it is and who is concerned, the process, different types, criteria, the role of different professionals, protection and rights for those under DoLS, what can happen if procedures are not followed correctly and some other interesting legal information. 

The content could have been difficult to follow for us lay people attending, but Aasya explained it all in a very easy-to-understand way. And she took the time to explain anything that anybody said they didn’t understand. She made it very accessible. 

From my perspective, I also feel that what added to the value of the course was participants sharing experiences and stories, and in this way, we could learn from each other. This wasn’t “overdone”, it was mainly Aasya talking, and it was done in a safe way so that everybody only said things that they felt comfortable saying. This aspect of the course is dependent on the people who attend, but Aasya’s manner certainly helped:  nobody felt pressurized to speak. Some people had positive experiences of the DoLS process and some more negative and it was helpful to discover different perspectives. 

One thing I came away with is that (as I’ve experienced with my mother) families can feel at sea in relation to DOLS and unsupported. The more knowledge gained, the better the ability to navigate the process. This course would be really beneficial to family members whose loved ones are subject to, or likely to be subject to, a DoLS authorization. Most of the participants on this course were a certain distance along the path but it would definitely be useful for people at the start of the process as well. Aasya answered individual questions where possible or pointed people in the right direction to find out more. 

Aasya explained that more courses for families, like this one, would be run if there is enough interest. I for one would thoroughly recommend it for relevant families and I wish I’d had the opportunity to attend it earlier, at the time when my mum first became subject to a DoLS authorization. It would certainly have helped me to understand the whole process and its implications much more. There are still certain aspects that I don’t fully understand but this was not a bespoke consultation for me and I learnt a lot in a short time. I would encourage any families seeking to understand DoLS more to attend future courses. 

The next course is on 20th June 2023 at 2-5pm and there are free DoLS Rights resources if you need information before then (click here). 

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.  Anna has also observed and blogged about a number of s.21A hearings as a way of learning more, e.g. Accessing a Court of Protection hearing as an observer and A section 21A hearing: Impressions from a veteran observer and the daughter of (a different) P in a s.21A case

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