Promoting Open Justice in the Court of Protection

C-section and anaesthesia: An unexpected unified decision

By Rebecca Brione, 16th November 2021

On 28th October this year, there was a first hearing of the case of a pregnant woman with schizo-affective disorder who wanted a vaginal birth (COP 13837502). The Trusts caring for her wanted to carry out a Caesarean section under general anaesthetic. The case was brought as an emergency hearing but in the end was not resolved that day, being adjourned to allow for more evidence to be heard on the woman’s capacity and to support any best interests decision. You can read Celia Kitzinger’s blog about the hearing and reflections from a first time observer.

When the hearing was re-listed, it turned out that it was going to be held in person only (albeit with witnesses able to dial in) at the Royal Courts of Justice. This obviously has the severe disadvantage of restricting observations to those who are able to be in London at short notice. In addition, the case was going to be heard by Mr Justice Holman, who had earlier this year made the much-commented-upon ruling that a pregnant agoraphobic woman could be restrained and taken to hospital against her will. It was therefore with some dread that I mounted the steps to the Royal Courts of Justice buildings for the first time. I was glad to have other observers alongside me, from the law firms Bolt Burdon and Kemp, and Irwin Mitchell, and I give my thanks to (ex)-colleagues at Birthrights for corralling strength in numbers!

In a relatively empty court room we were quite noticeable, even in our unobtrusive positions at the back. Mr Justice Holman asked right at the start whether we were members of the public and, on being told yes, said that we were “incredibly welcome”. He turned his attention almost immediately to making sure that we knew that there was a “transparency order in place” (although actually getting hold of the transparency order has been more challenging). He returned to check our understanding that we could not identify the woman at the centre of the case in any way periodically throughout the hearing.

The early minutes of the hearing were spent checking who would be present during the hearing. Counsel for the woman at the centre of this case – via the Official Solicitor (OS) – Debra Powell QC, said that the woman, SM, predominantly referred to as “the mother” (because Mr Justice Holman felt it was “more human”) was “not feeling terribly well” and “currently does not wish to participate”. Mr Justice Holman made sure to check that she knew that she could if she did wish to, and that technology was in place should she change her mind in the course of the day. There was some back and forth about availability of witnesses. Whilst the consultant psychiatrist was ready and waiting to give evidence, it initially appeared that the consultant obstetrician would not be available until the afternoon due to clinic duties. Holman J commented that that was “terribly unfortunate” – that the case was “all really about the evidence” and could we “bend every reed to get” her there. Indeed, could it be made clear to her that “if she should say I can speak to you now for half an hour, we would instantly interpose her”. With moves underway to communicate this to the obstetrician, the hearing began.

Despite our welcome, Mr Justice Holman declined Counsel for the Trust’s (Conrad Hallin’s) suggestion to “briefly open” the case, getting straight into hearing evidence from the psychiatrist, Dr D, appearing by video-link. I am grateful for Celia Kitzinger’s blog which gave me sufficient background to feel comfortable with the facts – I might have struggled otherwise.

The Court heard first from the consultant psychiatrist, Dr D, who had treated SM on and off for a number of years. He recounted a complex history with multiple in-patient admissions and said that her “her mental state is highly fluctuant”, “especially when relapsing”. Counsel for the Official Solicitor asked about very recent evidence that SM’s mental state had deteriorated. The Court was told that SM’s mental state was “quite changeable on a day-to-day basis”, “better than in the community…but that doesn’t mean it’s not fluctuating”. On being asked about psychotic ideas, Dr D said that “she’s not expressing ideas, but if you ask her about them they’re still there”. These included beliefs that her organs might be stolen if she had a C-section, which she had shared with other women on the ward, and the belief that “if the baby was taken from her the baby would die”. Dr D said, on questioning, that he considered these to be both “emotional statements” and “delusional beliefs”, saying “I do think she’s psychotic at the moment”. Counsel for the OS asked about possible trauma from SM’s previous pregnancy, with Dr D describing “a very complex pregnancy”involving intensive psychiatric care, attempted vaginal birth followed by C-section and a subsequent removal of the baby from SM – commenting this was “all potentially traumatic”.

Counsel for the OS then turned to Dr D’s views on the likely impact of mode of birth on SM. Dr D said that it was “hard to predict” the impact of mode of birth on SM’s mental state, saying “It would be the distress, I think, that would be the main factor”. He said that SM was now more accepting of a C-section for the baby’s health, and expressed that on the basis of her recent history “I think that she would struggle to tolerate monitoring [during vaginal birth] as well as the process itself”. In answering Counsel for the OS, and in response to clarificatory questions from Mr Justice Holman, Dr D said that he felt that a C-section under regional anaesthetic, “if that’s [possible] and safe” would be most beneficial for her, and noted that the idea of having contact with her baby is very important to her, understandably so”. Counsel for the OS noted that in the previous hearing, SM had asked “if she were not awake, how would she know it was her baby?”.

In the course of this evidence, it became apparent that there had been two major changes in the situation since the first hearing a week ago. Firstly, SM’s baby was now in the breech position. Secondly, as expressed by Mr Justice Holman, the Trust was now “not necessarily resistant to doing some form of spinal anaesthesia on the day if that is her express preference and she is cooperative”.

Helpfully, the obstetrician, Dr C, had made herself available so that her evidence could be heard straight after Dr D’s. I will say upfront that whilst both witnesses were very clear, I was particularly impressed with Dr C (as was Mr Justice Holman), and her thoughtful and careful consideration of evidence, risk data and possible care plans for SM as an individual. She had provided an updated witness statement to the Court on 2^nd November (which I had not seen), two days before this hearing.

Counsel for the OS first asked whether Dr C had had an opportunity to look at SM’s obstetric notes from her first birth. It emerged (via two stages of evidence-giving – a later clarification amending initial evidence given) that whilst “there had been a spontaneous rupture of membranes”, and syntocinon used to “kick-start contractions”, SM had experienced about 3.5 hours on a drip, experiencing “mild tightenings” but not “real contractions”. SM had had a family member with her at all times to manage possible agitation. She gave birth by C-section because the baby was assessed as being in an oblique position – there was “no hugely stressful situation”. Counsel asked about SM’s contention that she had previously had a Caesarean because the baby’s cord was around its neck, with Dr C commenting “that might have been the case but it was not the indication for Caesarean section”, explaining it is not uncommon. Dr C also noted that at that point SM had been discharged into community psychiatric care and “we are currently in different times”.

Dr C outlined the particular medical and obstetric risks in play, painting a complex picture including essential hypertension, gestational diabetes, anti-coagulation medication, heavy smoking and breech presentation. She said SM was “very complex obstetrically without her mental health issues”, and whilst her physical health conditions were well-controlled, national guidelines would suggest that birth from 37 weeks could be considered. She described a multifaceted, considered position on the overall medical picture – there is “no algorithm I can put risk factors in” – but the Trust was proposing a C-section one week hence, when SM would be 38 weeks’ gestation.

Dr C explained that “a variety of factors have been placed into that date”, including increasing levels of treatment for some of SM’s health conditions, the fact that a planned date would allow management of SM’s anti-coagulation regime which otherwise “can have an effect of the ability to offer regional anaesthesia”, and that a fairly early date would be “safest for mother and baby”. The particular date was also influenced by Dr C’s view that “it is very clear to me that to reduce agitation for this patient, it is ideal for there to be familiar faces” and that on the proposed date” [Dr C] perform the elective Caesarean sections”.

There was then a short exchange about capacity between Counsel and the Judge. Mr Justice Holman then said that there was a “currently a balance of evidence that SM lacks capacity” and asked about the likelihood of SM regaining capacity in the near future, thus the extent to which “one may try and wait”…and “seize the moment when she may have capacity” over, say, the next ten days. Counsel for the OS responded that there was “no evidence on which one could reasonably presume” SM would regain capacity in that timeframe and that they were “content to proceed on the basis” that SM lacked capacity. Mr Justice Holman confirmed “it’s a best interests decision then”.

Returning to evidence hearing, Dr C said that there was “no reason why the patient should not have regional anaesthesia”, and was then asked about the potential risks and benefits of vaginal versus C-section birth. Dr C noted the risk of scar rupture, “but also the risk of requiring an emergency C-section and the time frame under which we would be required to proceed”. She said that following a previous C-section, about 80% of women would have vaginal births of some form, with about 20% having Caesareans. She set out very clear percentage risks of scar rupture, differentiated by during pregnancy (0.1%), during labour (0.3-0.5%) and if labour were induced (0.8-2.4% depending on induction method). Mr Justice Holman commented it was “obviously a significant risk but of course it’s a low risk. I thought it was higher.”

Dr C went on to confirm that the baby had been found to be breech three days ago and was unlikely to move. On this discovery, SM had said she “would not consider” attempting to manually turn the baby, and similarly Dr C would not advise it in this case. When asked by Counsel for the OS whether “if you had a patient with this constellation of risks, but no mental illness, would you be advising her to have a C-section“ she gave an unequivocal yes. She also confirmed that SM had (in Counsel for the OS’s words) “quickly become more accepting of the recommendation for C-section when learning the baby was breech” and “she would want to do anything to keep her baby safe”. There was some discussion of what Dr C’s advice would be if the baby turned head-down for a woman with the same physical risk factors as SM, with her describing counselling for choice between recommended early induction or C-section – “no one definite way is safer” (I particularly welcomed how Dr C separated out of maternal and foetal risks). However, she then described concerns about SM’s ability to tolerate regular monitoring during labour, and needing to be in one place for a prolonged period of time. She described explaining to SM that “vaginal birth can take 12 – 16 hours…. she didn’t know that was a potential timeframe”, and that SM was often agitated and eager to leave by the end of her obstetric consultations of “not past half an hour”.

From this point on, the decision of the Court seemed to be more or less made. Mr Justice Holman asked Dr C “can I have a high degree of confidence that if there is a Caesarean next Thursday, you will be the one who performs it?”, and was told yes. Shortly after we adjourned for lunch and Counsel discussions.

On return, it was immediately obvious that the case would be finished that day. Counsel for the OS stated that “The Official Solicitor does not oppose the making of the order in the terms that have been sought” and “there is more than sufficient [evidence?] to displace the statutory presumption of capacity”. Counsel went on to say that it was “absolutely clear that whilst the baby remains in breech it is in her best interests to have a Caesarean with a spinal block if possible….that is what she, herself, wants”. Mr Justice Holman reflected that it was a “paradox that the coincidental fact that the baby has gone into breech…may have the effect that we have congruence with [SM’s] own subjective wishes, however capacitous”. The Official Solicitor still considered a C-section in SM’s best interests if the baby moved, albeit this would be a “more nuanced” call. SM had again been offered the opportunity to engage but did not wish to.

The Court then moved in short order onto the details of the order, and the Judgment. As observers, our understanding was much aided by Mr Justice Holman himself printing out copies of the order. The Court ruled that a Caesarean should be carried out on the proposed date, by Dr C if at all possible, using regional anaesthesia if this is what SM wishes at the time and she “is cooperative”. The lower preference options allowed for (2) C-section under general anaesthetic if SM wants “or is uncooperative with regional anaesthesia”. “Minimum necessary” sedation and restraint would be lawful (3) “If SM is uncooperative….and sedation and restraint is necessary”. The judgment is not yet available on BAILLI but will be posted here as soon as it is.

What is interesting to me as an observer was the mismatch I perceived between the focus of the narrative judgment as given in Court, and the nuance and flavour of the evidence that had been heard before. Whist the ruling’s content was not surprising given the evidence, in his dictation Mr Justice Holman emphasised scar rupture – “a low risk…However if it does occur, the potential risk to the mother or baby is severe” as a defining factor, given that (as ever in these cases) SM wished “a healthy baby undamaged by the process of birth”. Possibly for him this was the deciding factor in making the Court’s decision. However, for me it was a very one-dimensional account of the risks and benefits considered in relation to mode of birth and anaesthetic options, and I am not clear that this phrasing represented the evidence that I heard from the clinicians who did seem to be genuinely focussed on SM as an individual and their view of her best interests.

I also think that for me the case highlighted again the need to ensure that – as was the case here – the Court is informed by clear and thoughtful witness evidence. Mr Justice Holman, ahead of hearing from the consultant obstetrician, had commented that the baby “won’t come out from a breech, will it?”, implying surgery was unavoidable. These misconceptions about birth must be challenged to ensure that the Court can make fully informed decisions.

I very much hope that when the Judgment is published, it comes with a postscript to tell us a little about how SM is doing. It seemed to me that the Court did genuinely try to make a decision in her best interests – Mr Justice Holman asked Dr C to “pass on the sincere good wishes of the Judge” to SM – and whilst there was not a huge amount of exploration of her views on vaginal versus C-section birth, the evidence that was heard was fairly unanimous and did come from clinicians who seemed to have a reasonable relationship with her. However, observing in person did leave me very conscious of how intimidating the process and the formalities are, and how hard everyone involved needs to work to ensure that the Court has good quality, timely and reliable evidence before it both on women’s individual wishes and on pregnancy, birth and maternity care options to inform its decision-making.

Rebecca Brione is a PhD researcher at King’s College London in the Sowerby Philosophy and Medicine Project. Her work aims to conceptualise harms in non-consented intervention during maternity care. She blogs @RebeccaBrione

Photo by engin akyurt on Unsplash

Eight Litigants in Person

By Claire Martin, 12th November 2021 (with postscript by Celia Kitzinger added 25th January 2023)

The judgment has now been published: BR v NAR & Ors [2022] EWCOP 57

“Litigants in person” (LiPs) is the term used for people who don’t have a lawyer to represent them in court. They conduct legal proceedings on their own behalf.

Given the cost of lawyers and decreasing access to Legal Aid, especially since the implementation of the Government’s Legal Aid reforms in April 2013, litigants in person are now commonplace throughout the court system.

I have seen many cases involving LiPs, but never as many as in the hearing I attended before District Judge McIlwaine at Lincoln Family Court (COP 13339015). There were 8 LiPs – all members of the same family – at this final hearing.

The fact that there were so many parties, and that all but one party (the Office of the Public Guardian) were representing themselves, posed particular challenges to the judge (and to the one lawyer) in this case. In my view, these challenges were dealt with expertly and with grace and humility. The conduct of this hearing shows the Court of Protection at its best.

In this blog I will provide a brief outline of what the case was about and then focus specifically on what I believe was exemplary engagement with litigants in person by the court. Another observer, Clare Fuller, has also blogged about this hearing, with a focus on the substantive issues before the court in the case (relating to Lasting Power of Attorney) here.

The case

This was a hybrid hearing – meaning that some parties were in court and some attended remotely. It was listed for three days. I observed the hearing via Cloud Video Platform^[1] on Monday 27^th September 2021 and (part of) Tuesday 28^th September 2021. Celia Kitzinger attended for all of the third day (Wednesday 29^thSeptember 2021) and I have drawn on some of her notes (with attribution) in this blog.

I had also attended the directions hearing on 6^th September, so I already had some sense of the issues before the court.

The person at the centre of the case (“Mrs P”) is a 96-year-old woman with a diagnosis of Alzheimer’s disease, now advanced. She had moved to live with her daughter (BR) in February 2014. She was not represented in this case.

The applicant was BR, who has sole Lasting Power of Attorney (ss. 9-14 Mental Capacity Act 2005) for Mrs P, both for Health and Welfare and for Property and Finances. She was a litigant in person.

The other litigants in person were BR’s six siblings (four brothers – AD, MD, CD and DD, two sisters – AJ and HF) and her husband.

BR’s son (KR) was also present in court as a McKenzie Friend, and another son (AR) was present on remote link (also as a McKenzie Friend).

The only represented party was the Office of the Public Guardian (represented by counsel, Alex Cisneros).

Mrs P’s daughter, BR, had first made an application to the Court of Protection in October 2018 for gratuitous care costs for Mrs P (backdated to 2014 and ongoing) and for costs to adapt her property to make it more suitable for Mrs P. There have been several hearings since then.

The issues for the judge to consider at this final hearing were:

The amount of remuneration for gratuitous care provided by the applicant BR to Mrs P: both the care already given from 2014 until now, and in the future. “Gratuitous care” refers to the unpaid support BR has given to care for her mother, Mrs P. This includes helping her with all activities of day-to-day living.
Whether to authorise £21,649 from Mrs P’s account to extend the garage at BR’s house to create an additional bedroom for a carer to stay overnight, and to enlarge the existing bathroom area for Mrs P.
Whether, retrospectively, to approve the £25,490 that BR used to purchase a car using Mrs P’s finances.
Whether to make some form of order or declaration regarding the contact that Mrs P has with her family.
Whether to make some form of order or declaration regarding the contact that Mrs P has with her family.

Issues for Litigants in Person (LiPs)

The courts have expressed a great deal of concern about managing increasing numbers of Litigants in Person. The Equal Treatment Bench Book, November 2013 reminds judges about the issues that LiPs face:

Most litigants in person are stressed and worried, operating in an alien environment in what for them is a foreign language. They are trying to grasp concepts of law and procedure about which they may be totally ignorant.

They may well be experiencing feelings of fear, ignorance, frustration, bewilderment and disadvantage, especially if appearing against a represented party. The outcome of the case may have a profound effect and long‐term consequences upon their life.

They may have agonised over whether the case was worth the risk to their health and finances, and therefore feel passionately about their situation.
Equal Treatment Bench Book, November 2013

The Equal Treatment Bench Book, November 2013 also provides guidance about the role of the judge when there are LiPs in court.

Role of the judge

Judges must be aware of the feelings and difficulties experienced by litigants in person and be ready and able to help them, especially if a represented party is being oppressive or aggressive.

Maintaining patience and an even‐handed approach is also important where the litigant in person is being oppressive or aggressive towards another party or its representative or towards the court or tribunal. The judge should, however, remain understanding so far as possible as to what might lie behind their behaviour.

Maintaining a balance between assisting and understanding what the litigant in person requires, while protecting their represented opponent against the problems that can be caused by the litigant in person’s lack of legal and procedural knowledge, is the key
Equal Treatment Bench Book, November 2013

Watching District Judge McIlwaine, I saw him put this guidance into practice, and that’s what I’ll address in this blog, as follows:

Arranging preliminaries to support LiPs in court
Supporting LiPs with requests for McKenzie Friends and other late applications
Managing difficulties associated with LiPs heightened emotion
Recognising and being sensitive to LiPs’ lack of knowledge of the law
Enabling a LiP to reconsider her role as Finance LPA (and to voluntarily relinquish it)

Arranging Preliminaries to Support LiPs in Court

We were due to start at 11am (on 27^th September 2021) but proceedings did not get underway until nearly an hour later (at 11.53am). This was in large part because the judge was clearly aware of the need to prepare the parties who were litigants in person for participating appropriately in the court process, and he took the time to do that.

At the directions hearing, it had been agreed that Mrs P would not be present at the hearing today, but as it turned out, she was in court (the physical courtroom in Lincoln) with her daughter (the applicant, BR) and her son-in-law (BR’s husband, NAR, also a party). Their son, KR was also present (supporting Mrs P) and had applied to be a party and a witness (more on this later).

Mrs P was talking almost constantly (it was not possible to hear what she was saying, though it did not seem to be connected to what was happening in the courtroom) and it was clear that she was unable to take part in any meaningful way in the proceedings.

DJ McIlwaine asked BR why Mrs P was present. BR said that the Local Authority was meant to be arranging care for Mrs P during the hearing but had not done so. Her grandson agreed to take her out for a walk and the judge asked the court staff to find a room that they could sit in when they came back. Thinking ahead to the next two days of the hearing, BR confirmed that they would not need a room for Mrs P as care could be arranged.

The judge then ensured that everyone attending remotely could hear and see the proceedings.

DJ McIlwaine explicitly referred to the potential difference in experience (for BR and NAR) of being physically present in court, in contrast to all other parties who were attending remotely. He noted that it would be ‘unlike your own home’. He commented on the potential feeling of insecurity in the courtroom and invited BR and her husband to give their evidence from their seats rather than the witness box.

To CD, who was experiencing microphone issues on video-link, the judge asked if others could assist: “[with humour] … have you got a teenager who could sort out your IT problems? I’ll see if the clerk can arrange a telephone line for you.”

I thought that the judge’s attention to the minutiae of the hearing was extremely helpful for all concerned. What was most clear to me, given that no evidence had been heard and no witnesses had been questioned and cross-questioned before lunch, was the meticulousness with which this judge set up the hearing. He ensured everyone’s accessibility, considered late applications and requests for additional witnesses, attended to preliminary points and did all of this in a friendly, warm and supportive manner, whilst maintaining the authority of the court.

It brought to mind the concept of ‘dynamic administration’ in group analysis. Cynthia Rogers describes the importance of this for setting up supervision groups, using the analogy of sailing a boat:

3. Sailing a boat might illustrate what I mean by dynamic administration. A sailor makes continuous minor adjustments, leaning out, tightening a sail, and moving the dagger board. It is not really possible to make these adjustments to order, they need to become intuitive in response to the feel of the boat, the wind and the tide. Pulling a rope in too quickly or too slowly will only make matters worse.

4. Dynamic administration is as important as rigging a boat. I am not sure anyone enjoys the time it takes to rig a boat but with sloppy rigging the boat simply doesn’t respond to the touch and fine control is lost. If you get the rigging right you should be able to sail your supervision group close to the wind or relax and goosing with sails billowing, allowing the momentum of the supervision group to carry you into fascinating territory without anyone falling overboard.

I certainly did not witness any ‘sloppy rigging’ in DJ McIlwaine’s administration of this hearing.

2. Supporting LiPs with requests for McKenzie Friends and other late applications

The applicant’s two sons had made late applications: one (KR, in the courtroom at the start) to be added as witness, party and McKenzie Friend; another (AR – via telephone) to be added as McKenzie Friend. I hadn’t heard of this term before.

The judicial guidance for litigants in person (referred to above) contains helpful information on McKenzie Friends:

In a climate where legal aid is virtually unobtainable and lawyers disproportionately expensive, the McKenzie friend and lay representatives make a significant contribution to access to justice. But reported cases tend to concentrate upon reasons why they should not be allowed rather than circumstances where they may be of assistance to a party and the court. The judge has to identify those situations where such support is beneficial and distinguish circumstances where it should not be allowed.

DJ McIlwaine asked each party for their view on the applications. He said the applications had been made ‘at the eleventh hour’, and that, after hearing all views, he judged that both of BR’s sons could be McKenzie Friends but neither could be added as parties to the case, or as witnesses. Counsel for the OPG had raised the issue that, if KR were to be added as a witness without a witness statement, there would be no opportunity for cross-examination preparation, which would be unfair. A concession was that, if KR could file a witness statement to the court and all parties by 4pm that day, the judge would determine if KR needed to speak at the hearing and would determine this at the time. KR did speak on day three of the hearing.

As such, at this point, the sons, as McKenzie Friends, were classed as observers and would need to be served the Transparency Order (which all observers and parties had received).

AJ, Mrs P’s daughter, requested a further witness to be permitted to attend court, from the Local Authority care home that Mrs P stayed in for a period in 2020. The judge asked why this was essential and AJ suggested that she would shed further light on the problems of contact between Mrs P and the rest of the family. It quickly became clear that the other family members were in significant conflict with BR and her husband. There was a suggestion that BR was preventing contact between the family and Mrs P, and that this witness would attest to that.

DJ McIlwaine probed about the additional relevant information that this witness would provide, asked all other parties if they objected, (none did) and said:

“Justice not only needs to be done, but needs to be seen to be done. My job is to ensure a fair hearing. I will allow parties to obtain a short narrative statement – about what the witness will state – then I will consider whether to allow it.” [Judge’s emphases]

The judge then asked for any further preliminary points. BR had some concerns about the indexing of some statements in the bundle of evidence, and it was directed that they would be checked.

The judge had not been given the witness template (which, I learned, was the order in which witnesses were to be heard). There was lengthy discussion about both of these things and then we broke for lunch, returning at 2.20pm.

What I observed was the judge holding his authority lightly, when possible, to foster an atmosphere where everyone can give of their best under what might be very taxing circumstances. This hearing must have been challenging for the whole family, given the divisions between the siblings, and I noted down that, had I been a member of that family, I would have felt listened to and respected by the judge.

3. Managing difficulties associated with LiPs’ heightened emotion: “Pouring water on the flames”

There were many occasions during the hearing in which family members displayed strong emotions. The judge was adept at handling these.

For example, at the beginning of the third day, Mrs P’s daughter said that she would accede to the request from other family members that if Mrs P were in future to “become bedridden”, she would allow them to visit her home for the purpose of being with their mother. She added that she did not want to meet with them herself. Her sister was very upset to hear this, and started to cry. The judge offered a break.

BR: It’s clear you care deeply about your mother and it wouldn’t be fair to stop you coming, but I can’t allow you anymore to see me. I can’t repair any more. I can’t mend bridges. And I don’t want to.

HF: (Cries)

Judge: (Offers HF 5-minute break – accepted)

When BR explained her plans for future contact arrangements, her brother DD said: “I don’t trust you to keep to an arrangement like that. You’re a divisive influence”. DJ McIlwaine intervened: “There’s not much gained by that sort of discourse in this courtroom. I would like to pour water on the flames and you are pouring petrol on the flames”.^[2]

The issue of why BR wouldn’t (her siblings said) allow them to visit Mrs P at her home, or imposed stringent requirements on them in relation to visiting their mother, came up over and over again, and was often the topic of lengthy rehashing of past events. The judge sometimes cut these off. At one point he said:

“I can see the benefit of a full and frank discussion taking place but, I’m so sorry, I don’t want to be unsympathetic, but I need to get everyone’s evidence before the court.”

One of BR’s brothers (CD) felt that one of his own visits had gone well, and wanted to know whether – and if so why – BR had found it problematic. The exchange – technically, he was cross-questioning BR at this point – went like this:

CD: I visited Mam in her annex for two days, basically a few hours every day, and for me it was fine. We went out to the hairdressers, and to a hotel for a cup of tea, and for me it worked fine. I want to ask [BR]: did you have a problem with it? I don’t think that it interfered with your day.

BR: I was wary. I thought you would report back. I feel some people are coming to see what’s going on and say “she hasn’t got this” or “there’s a step there”. I know she’s not in an ideal location. There are plenty of trip hazards. But I walk around with her from room to room. The feeling I get is that if there was a shoe on the floor you might say, “[BR] left shoes on the floor.

(CD is displaying incredulity – shaking his head, furrowed brow as she talks, indicating that ‘reporting back’ is far from his motive in visiting his Mam)

BR: You’ve signed your name to some horrible things You put your name to that joint statement. There’s more hate in that statement than I knew existed.

Judge: So, I can see that this process means that you are communicating in a way that perhaps you’ve not been able to. But I think [BR] you’ve answered the question. Your issue was that he might report back. You had no problem with the actual visit.

CD: I am taken aback by her reaction.

DD: She’s paranoid.

Judge: Can I ask you not to interject. That is not helpful.

DD: Sorry.

Judge: (to BR) Do you believe she enjoyed the visit?

BR: I believe she would have enjoyed it very much. When I take her out to the garden centre, or shopping, I believe she’s happy.

Judge: If I had the luxury of two or three weeks for this hearing I would give it to you, but I don’t (followed by something like “So please try to ask specific questions and please try to answer them”)

CD: You have a perception that people would just turn up to visit. Appear in your garden. Arrive on your doorstep unannounced.

Judge: What is your question?

CD: Do you think people want to turn up willy-nilly out of the blue and visit Mam?^[2]

This vividly illustrates some of the challenges faced by the judge. In these few minutes of ‘cross-questioning’ he assists the process by:

Intervening at the point at which BR becomes emotional and accuses her brother of having said “horrible things” and shown “hate”, to calm things down and to reformulate the answer to the question (“did you have a problem with it?”). The answer was “no problem with the actual visit”
When DD speaks out of turn and insults BR (“she’s paranoid”), the judge rebukes him – gently but firmly.
The judge asks a question of his own which is directly pertinent to the question of Mrs P’s best interests (“Do you believe she enjoyed the visit?”)
The judge acknowledges the importance for the family of sharing their experience and exchanging views but reorients them to the need – given time constraints – of asking direct questions and answering them.

When CD nonetheless makes what sounds like an accusation rather than a question (it’s a declarative sentence – “You have a perception…” – the judge asks him to rephrase it as a question (and he does).

An exchange of mutual grievances between BR and her sister, AJ, was delicately handled by the judge:

Judge: [following ongoing questioning from AJ about BR’s position in relation to allowing family visits to Mrs P, where BR had confirmed that she would object to any family visits in the proposed new annex]: Could I assist? BR stands by her statements.

AJ: There’s a discrepancy between the answer and the spreadsheets.

BR: I can confirm [getting very upset and angry, airing grievances about family relationships and events]

Judge [intervenes, asking AJ}: What is your question?

AJ: [started to discuss the Power of Attorney and being an alternative PoA herself and taking care of their mother, and BR not agreeing to this]…..

Judge: What’s your question?

AJ: Why didn’t she accept that offer [and continued to describe the situation in some detail].

Judge: I am trying to take the energy out of the dynamic here – hopefully some of those more skilled will comment on whether that’s been achieved. [addressing BR] Why did you not accept that offer?

[BR then went into a lengthy description of exchanges between herself and AJ; AJ started to intervene]

Judge: Excuse me! I appreciate emotions run high [brought the focus back to the question and evidence, referring to an email between the sisters].

And later:

BR: Why does AJ [uses full name] feel the necessity to concentrate on my life and feel she has the right to make decisions about my life.

Judge: That is not a helpful question. I appreciate there’s a family dynamic and it’s tragic to see it played out.

As illustrated above, these LiPs were often making statements rather than asking questions of the people they were supposed to be cross-examining, and the judge repeatedly asked “What is your question”. Even sentences with an interrogative format (like “why does XX feel she has the right to make decisions about my life?”) are not actually questions but accusations!

This issue has been documented in the Equal Treatment Bench Book, November 2013:

52. Often litigants in person phrase questions wrongly and some find it hard not to make a statement when they should be cross‐examining. Explain the difference between evidence and submissions, and help them put across a point in question form.

There were many examples of the judge needing to intervene when the LIP was making a statement, rather than asking a question. He did this in several different ways:

A LIP cross-examining a witness and beginning to make evidential statements, rather than asking a question. The judge assists in the framing of a question.

Judge: Do you have a question? [at other times: What is your question?]

LiP: I do [proceeded to express a view about a report that was wrong in their opinion]

Judge: [intervening] Perhaps I can paraphrase what I think the question is….. [framed the statement as a question for the LiP]

… and later, intervening when a LiP had spent a long time speaking to a witness:

Judge: The question – perhaps we can put it like this: are you satisfied that all sums withdrawn by [BR and NAR] have been accounted for?

The judge assists a LIP in summarising their thoughts:

Judge: You’re concerned about a scant understanding of the case?

LIP: Yes.

and also:

Judge: What you’re saying is – what is the relevance of the purchase of the car that precedes the capacity assessment?

What struck me, repeatedly, throughout the hearing, was the constant balancing act that must have been going through the judge’s mind. He (relentlessly) needed to pay attention to the content of questioning (Was it a question? Was it relevant to the application?), to the feelings and reactions of the LiPs, to gaps in knowledge, to sensitively corralling any derailing of the judicial process and to ensuring that the evidence considered was in the service of reaching a conclusion in the time available to the court.

4. Recognising and being sensitive to LiPs’ lack of knowledge of the law

On “Intellectual range”, judges are advised as follows:

24. Litigants in person come from a variety of social and educational backgrounds. Some may have difficulty with reading, writing and spelling. Judges should:

a. be sensitive to literacy problems and be prepared where possible to offer short adjournments to allow a litigant more time to read or to ask anyone accompanying the litigant to help them to read and understand documents;

b. exercise and be seen to exercise considerable patience when litigants in person demonstrate their scant knowledge of law and procedure;

c. not interrupt, engage in dialogue, indicate a preliminary view or cut short an argument in the same way that they might with a qualified lawyer.

DJ McIlwaine described what “submissions” are:

“We now move on to ‘submissions’, which means that everyone tells me in essence why their case should be preferred and why other parties’ case is not preferred.”

Judge to CD, when he apologises for not being able to “follow all the paperwork”: “I do appreciate it must be very difficult as litigants in person to manage all the paperwork at home.”

When the issue of the respective roles of lasting power of attorney and court appointed deputies was being discussed, both the judge and counsel stepped in to help the applicant understand aspects of law that were unfamiliar to her:

Alex Cisneros (to the OPG representative): Is it right that you don’t ask attorneys to send regular accounts – do you ask deputies and if yes, how often?

Mr H: Yes, I am not sure of the regularity.

Judge (offering explanation): With a deputy the court sets a bond so that, if there are problems, insurers step in. [Clarified with Mr H that there is no bond with an LPA, and further offered explanation to the applicant about deputies and bonds]

After that exchange I have in my notes ‘V v kind and facilitative approach from both’. It wasn’t just what the judge and counsel had said (which was in the service of extending the applicant’s knowledge), it was the way they had said it (with a kind and patient tone of voice, though not patronising at all).

A further exchange, between the applicant and counsel, exemplified ‘considerable patience’. It was regarding what, exactly, the applicant was claiming for gratuitous care:

Alex Cisneros: I am trying to work out how much you’re claiming for and why. … This is perhaps for submissions, the applicant can come up with days she’s claiming for.

Judge: It’s the applicant’s application – the applicant bears the burden of proof. [He then asked the applicant for a spreadsheet by the following morning to be provided to parties and the court].

BR (applicant); I would like to get some sleep tonight.

Judge: Could your husband do those figures? The alternative is … an actual figure can be inserted when we have the information and I can agree it or not. Counsel?

Alex Cisneros: Yes – it’s not a problem. I am trying to be fair to the applicant – normally I’d be saying the case is not proven. It’s because the applicant is a litigant in person.

During the last day, in relation to issues of contact between the wider family and Mrs P, Alex Cisneros noted that the court had ‘no authority to enforce the contact arrangements’ that the family were asking for. He said that the court could not force the applicant to open up her home to the others if she did not want to. However, some agreement between the family seemed possible. Counsel therefore offered to assist the court by drawing up an agreement about how contact could work e.g. Skype one at a time; Face to Face contact arrangements, and what would happen if Mrs P’s health deteriorates. He said that the OPG did not take a view on the issue of contact but offered to draw up a contact document for the family so that everyone was clear what they were agreeing to.

DJ McIlwaine said that this was a “remarkable offer” and “I’m extremely grateful to you”. These examples illustrate the efforts that counsel and the judge made to facilitate LiPs’ involvement in the legal proceedings, despite their lack of experience and knowledge, to secure a truly best interests outcome for Mrs P (and, I think, for the whole family – as far as was possible).

5. Enabling a LiP to reconsider her role as Finance LPA (and to voluntarily relinquish it)

DJ McIlwaine skilfully discussed the issues of concern about BR’s management of Mrs P’s finances and the proposed building works to her home (she was proposing a change of use of a garage to make space for carers to stay over, easier visiting for others, and a bathroom).

The judge (on the second day) asked about quotes for the building works, whether those quotes had been updated, whether BR had undertaken (at the request of the Official Solicitor) an estimated valuation of her home pre- and post-building works (“No”) and whether BR ‘resisted’ being removed from her LPA status for Mrs P’s finance attorney (“I do – I don’t understand what I’ve done wrong”). The judge referred to a large sum of money (around £300k) in one bank account – against the advice of a financial advisor to spread assets. BR explained that she had been unable to touch that money because it was in a foreign country (where Mrs P lived prior to coming to the UK to live with BR) and she did not have authority to move it, though she has now written to the bank in that country to inform them that Mrs P lacks capacity for financial decisions.

Judge: A theme is lack of trust. One way to remove that is to allow a professional deputy to manage your mother’s finances – you can walk away.

BR: Who pays me? On a day-to-day basis how would it be managed? There’s a cost that goes out.

Judge: Have you investigated what a professional deputy does?

BR: No … [then mentioned the internet]

Judge: I’m not trying to trick you. Would it be helpful to you that financial decisions are made by a professional?

BR: Yes

Judge: Would it be helpful to have the gratuitous care paid by a professional?

BR: [uncertain] ….. Yes

Judge: Would that reduce the strain on you?

BR: Are you saying remove the power of attorney?

Judge: Parties might agree that the time has come for a professional deputy – I float it – I’ve not decided yet. You want to continue to manage your mother’s affairs?

BR: Yes

Judge: But you’ll accept financial advice?

BR: Yes.

This exchange was interesting to me – what I observed was DJ McIlwaine carefully and systematically assisting BR to think through her role as LPA, the exigencies of that role, the impact on her time and risk of being thought to be managing it poorly. At this point, BR remained of the view that she wished to retain her finance LPA status. I did think that she sounded a little less certain than the day before, however, and wondered whether the fact that the judge said that she could ‘walk away’ from these responsibilities might have felt tempting for her, at this stage in proceedings. The exchange was gently executed, and although it was clear to BR that the judge could decide to revoke the LPA, I thought that the conversation was genuinely aimed at assisting BR to think through her position in relation to this role. I did wonder whether the judge had done some training in Motivational Interviewing which is an approach to help people consider change in their position or behaviour. It is “designed to empower people to change by drawing out their own meaning, importance and capacity for change” (Miller, W.R. & Rollnick, S. (2013) Motivational Interviewing: Helping people to change (3rd Edition). Guilford Press).

On day three, the final day of the hearing, DJ McIlwaine said to BR that it was entirely up to her whether she wanted to rescind the LPA. He wasn’t putting any pressure on her. Before final submissions, the judge said: “If you want to rescind the LPA you can do it at any point today”. This, of course, is different to having an LPA revoked (which means removed from the attorney by law).

At 17.08 on the final day, BR said she relinquished the LPA for Finance for Mrs P.

The judgment for this hearing will be published and we will attach the link to it when it is available.

Guidance for Litigants in Person

There is guidance available for LiPs.

Advice Now’s (2020) “A survival guide to going to court when the other side has a lawyer and you don’t” covers:

•Lawyers and what their role is, including what they can and cannot do.

•When and how to report a concern about a lawyer to their regulator.

•The skills you need to represent yourself so that you can keep calm, focus on the practicalities and come out the other end

The overview of this report in 2013 entitled “The Judicial Working Group on Litigants in Person: Report”, published by the Judiciary of England and Wales, states:

“2.1 In November 2011, the Civil Justice Council produced its helpful and informative report ‘Access to Justice for Litigants in Person’2. The Council’s report rightly emphasises that the judiciary has an important part to play in meeting one of the principal challenges posed by the Legal Aid reforms, namely a substantial increase in the number of litigants in person and the types of proceedings in which they appear. This report is focused on equipping the judiciary to fulfil that role.”

This report is not primarily aimed at LiPs but does set the scene and might be helpful for LiPs who are interested in knowing what is expected of the judiciary in hearings involving LiPS. It sets out recommended measures to assist LiPs, including the role of McKenzie Friends as supporters.

Jess Mant (2018) in “Doing it yourself: Litigants in person in the post-LASPO family court”, in an online magazine called The Justice Gap, comments:

“Despite more than 80% of cases now involving LIPs, there has been no further investment in reforming the court process to adapt to this new reality.”

This comment paints the environment in which LiPs will find themselves in a light that suggests they might struggle to navigate what might feel like a hostile and unintelligible system and to know how to prepare their evidence and skill in cross-examination. For people for whom there are no funds for representation, nor the ability to navigate this system, this could present insurmountable obstacles (Mant mentions that in her project there were “many interviewees [who] were unable to do this as a result of a range of different pre-existing issues like communicative problems, anxiety or learning difficulties.”)

Final Comments

At points throughout the hearing, DJ McIlwaine expressed sympathy for the predicament the whole family was in – bitterness and resentment, accusations of ‘aggressive’ behaviour and the prevention of Mrs P seeing (some of) her children. The judge said that ‘there are dynamics in the family that do not need to be aired in the courtroom’. It was, at times, very hard for the judge to prevent this, and hard to listen to, though I thought the judge did a very calm and professional job of redirecting people when questioning strayed off-track.

My sense, for this family, was that they had not had the opportunity to have a conversation with one another about their various grievances – and they seemed to have an appetite to do so, or at least to air them and have them heard. The court setting is not able to facilitate this in the way they might have needed emotionally, yet I thought DJ McIlwaine offered a textbook illustration of how to, sensitively yet determinedly, conduct a hearing with LIPs – quite a feat with so many LIPs to boot!

I very much hope that this family can find a way to be with their mother in the last years of her life, without being in conflict with one another. I suspect that the outcome of this hearing will assist enormously with this possibility, setting out clearly who is in charge of Mrs P’s finances, what is paid for out of those finances and – most crucially – drawing up a contact agreement to enable everyone to spend time with Mrs P.

Postscript by Celia Kitzinger (25th January 2023)

We were surprised to see this case listed before DJ McIlwaine on 24th January 2023 – and very surprised to discover that this was not a hearing about a new matter, but a formal handing down of judgment from the hearing we’d observed more than a year ago. It turned out that DJ Mcllwaine had been (as he put it) “taken from the pitch due to ill health and subsequently had to have surgery” so he had been unable to write a formal judgment. Instead, he had arranged for a transcript of the hearing to be made and circulated to all parties – and to the newly appointed Deputy managing Mrs P’s finances (and she was also sent the whole court bundle).

The delay in formally handing down the judgment does not seem to have caused problems for any of the parties. The only person who seemed concerned about it was the judge. Family members appeared to be a lot more relaxed with each other than last time I saw them in court, and agreed that their positions were “not that far apart“. They also seemed to be benefiting from the appointment of the Deputy (also in court) who was communicating well with them about Mrs P’s finances (e.g. she was supporting understanding of a spreadsheet they had questions about, and confirmed the existence of a separate pension account in another country when one of the daughters raised it). I picked up from something a family member said that Mrs P is now living in a care home – which must make visiting her much less stressful for family members.

Less positively there was talk of a new COP application to seek judicial determination of matters relating to rent – although this had not yet arrived with the judge. His view about “blasting off down another set of proceedings” was clearly expressed. “If there are, shall we say, burning embers, I’ll deal with them in due course.. but would strongly urge you to see if you can resolve matters between you“. He also recommended mediation.

The judge had circulated the draft judgment well before the hearing (I think in early December) to all the parties. During the hearing he offered each of them in turn the opportunity to address any issues relating to it. In addition to the inevitable typos, there was some concern from the applicant daughter about factual inaccuracies (e.g. relating to joint accounts and whether or not Mrs P is aware of the proceedings) which the judge promised to review and other family members raised questions about what parts of the judgment actually mean (e.g. what does his dismissal of the application for retrospective authorisation of the car purchase mean for who actually owns the car?). Also Lasting Power of Attorney for Health and Welfare had been transferred from one daughter to another, which (after the new Attorney raised it) the judge decided to add to the judgment.

I have asked for the judgment to be made publicly available (ie. published on BAILLI and the National Archives) when it’s ready (or as judges say, when it’s been ‘perfected’) and will link to it from this blog post if my request is successful. There is guidance about when judgments should be published here (it’s a downloadable pdf) by then President of the Family Division Sir James Munby which says: “At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name.” This is still a serious problem, as indicated in a recent report from the ICLR (Incorporated Council of Law Reporting for England and Wales).

This case is now formally concluded, with (it seems to me) as good an outcome as possible under the circumstances.

The judge ended by thanking Alex Cisneros, the sole barrister in this case, for his “exemplary professionalism in what was … well, I’m not aware of any other case involving eight litigants in person” – and addressing the family members he added, “you were trailblazers“. Having watched two of the hearings, I too think Alex Cisneros did an excellent job, especially in supporting the lay participants in the case. So too, of course, did the judge – as Claire Martin bears witness in this blog.

I’m glad I got the opportunity to observe the final hearing and see for myself the positive outcome of the Court of Protection case for this family.

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

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She has personally observed more than 380 COP hearings since May 2020.

^[1] Just a note on gaining access to the hearing. Since I knew when the final hearing was going to be, I was able to email the court in advance requesting access. The court staff were extremely helpful in arranging access, asking me to attend 10 minutes prior to the start to iron out any connection problems. Because I’d had trouble using the Cloud Video Platform at the directions hearing, they also sent me written guidance on how to use that remote platform (a link to which is now on the home page of the Open Justice Court of Protection website here – see point 4 under “How to access a hearing”). When I logged on for this final hearing, the court clerk checked (by email) that I could see and hear, and asked me to ‘be a guinea pig’ and test the acoustics and visuals in the courtroom with him, since this was a hybrid hearing, to ensure others would be able to see and hear when they joined. Joining hearings can be very stressful as an observer (and I am guessing as a remote LiP) and I appreciated this dry run.

[2] This example is taken from Celia Kitzinger’s notes.

Photo by Thyla Jane on Unsplash

Does P have capacity to consent to sale of a house and move to residential care?

By Celia Kitzinger, 11th November 2021

Editorial update: Some of the ‘facts’ conveyed in this hearing turned out later not to be true. Check out the subsequent hearing in this case which corrects some of the ‘facts’ reported here: “Approving a conveyancing plan to move P to residential care“

“I have concerns over a whole host of things in this hearing – including whether this court has jurisdiction^[1]”, said the judge within just a few minutes of the opening of this hearing (COP 13841478 MF before DJ Geddes).

It was the second hearing I’d observed before this judge on a single day (5^th November 2021). I wrote a blog about the other one here.

The issue of immediate concern in this hearing was that the house P has been living in for 40 years has been sold at auction, with completion on 18^th November 2021.

The local authority (represented by Sophie Allan of Kings Chambers) had made an application on Tuesday – it was now Friday – to convey P to residential care.

P is not represented in this hearing. (Her sister is in court but I think I understood that she is not a party to the proceedings.).

The judge’s reference to a “whole host” of concerns was in response to the information that “P has expressed the consistent belief that sale of the property is not something she consented to and she considers it unfair and illegal”.

“She may be right about that – and therefore not delusional, and properly distressed by a process that has not been sensitive to her needs”, said the judge.

“What documents have been sought from family members to take advice as to whether this property has been sold properly?” she asked.

“The family saw the house sale as a private matter between siblings,” said counsel. “It is only latterly that they saw it touched upon their duties to P as a vulnerable person.”

P’s sister’s account

The judge then asked P’s sister to explain “who owns the property, and who had to sign something to agree to the sale, and how much you get out of it”.

P’s sister said: “After Mum died, the house was put into probate. Andrew [brother – all names are pseudonyms] is probably in a better position to explain because he was dealing with technical aspects of it, but her will stated that the estate should be split four ways between the four of us. The majority of the state is made up of the house. It had to be sold. P signed the beneficiary form back in January to begin the process. I realise now that P may not have understood the implications of that.”

Questioned further by the judge she explained that her brother and sister were executors and that she had not seen the will herself. She reported that they had employed a solicitor and taken legal advice.

This was all “news” to the judge – and also, apparently, to counsel for the local authority and to the social worker, all of whom had believed that the property was owned by P (jointly with her three siblings) “which it clearly wasn’t and never has been”.

The judge was thinking on her feet as the facts unfolded. “Some people know much more about this situation than I do – Andrew, and the solicitors instructed by him, and [other sister] who is joint executor of the estate. They surely must be invited – if not directed – to promptly provide information. I will ask them to explain how we got here and what steps were taken to ensure that P had capacity to consent to the sale and what steps were taken in her best interests”.

Recognising the need for P to be represented, the judge wondered aloud about getting the Official Solicitor on board, but that was apparently unlikely to be possible within the timescale for completion of the sale. There’s “no time” to find a deputy either.

“The key to cutting through this is Andrew”, said the judge. “If the sale doesn’t go through you could end up having to pay damages to the purchasers. It’s all very well to say your solicitors would be liable for that, but who wants to sue their solicitors? Not me! Did you have to sign anything else after those beneficiary forms? (No). Anything about the date of completion and vacant possession? Was P asked to sign to say that she’d vacate the property?”.

“I’m unwilling to put myself on the line”, said P’s sister. “Andrew was until recently living in the house. He’s recently moved out. But my understanding is, no.”

Concerned with the question of whether or not P has capacity to make decisions about selling her property and moving elsewhere, the judge asked P’s sister for her opinion on this.

“P’s issues are so far undiagnosed, but the issues she’s been suffering from pre-date the death of our mother. She’s been having delusions and she has an imaginary family, which she experiences every day. She believes that all the financial issues will be resolved by celestial events. She has no idea how to run her own life. When Andrew moved out he left her with a credit card and she doesn’t even know how to use that to buy food, and when he visited a week later she said she was hungry and hadn’t been using the card.”

Capacity

The judge eventually made a brief interim decision that there was “sufficient evidence to get over the threshold for an interim declaration, notwithstanding the holes in the evidence”. She was not assisted by the fact that the only diagnoses for P are historical diagnoses of depression and agoraphobia. She had, however, been sent a COP24 and a capacity assessment from the local authority which evidenced delusional beliefs (along the lines described by P’s sister) which seem to have significantly interfered with P’s ability to understand, retain and weigh information.

Reading through the documentation, the judge reported that P “simply couldn’t answer” questions about her finances. “She said ‘I don’t know’, cried, hugged herself, reported seeing Mama and Papa in the room, and said, ‘we are all ascending to another planet and we must be prepared’”. She said she was receiving regular psychic communications from her parents in the afterlife. She volunteered that her mother had made a second will, from the afterlife, and therefore the house sale was unlawful and said it was Satan’s law and probate is illegal and everyone owns their own homes.” On that basis, the judge saw reasonable grounds to believe that P doesn’t understand issues relating to the sale of the property or to decisions about where she should live.

The next hearing is at 10.00am on Friday 12^th November 2021.

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

^[1] We are not allowed to audio-record Court of Protection hearings. Direct quotations as accurate as I can make them, but are unlikely to be verbatim.

Photo by Kelly Sikkema on Unsplash

Navigating a family feud on P’s death-bed

By Celia Kitzinger, 9th November 2021

She’s in her eighties, with significant cognitive decline, and delirium secondary to numerous infections and “in all likelihood in the last weeks of her life,” said the judge. She lacks capacity to make her own decisions about who she has contact with.

One of her daughters, Ann^[1], and Ann’s daughter (P’s granddaughter), Bea, want to visit her one last time, to say goodbye.

But Colin says no.

Colin is the son she lives with, who she’s appointed with Lasting Power of Attorney for Health and Welfare, “entrusting to him decisions about her welfare”, as the judge put it.

He’s banned them from visiting because there’s a long-standing family feud, the details of which were not rehearsed in court, but it was clear that, for the last two years, family division has been deep and painful.

The social worker (a witness) said the “conflict” in the family was such that “on several occasions the police have been called”. The judge said it was “obvious that family relationships have been very fractured, with a lot of hostility, and a lot of blame on both sides”.

The applicant local authority (represented by Holly Littlewood, Spire Barristers) has applied for a declaration that P lacks capacity to make her own decisions about contact with family members, and that it is in P’s best interests for her to have contact with Ann and Bea for one last visit, the details of which were laid out in a contact plan.

The proposal is for a two-hour visit, between 9.30 and 11.30 the following Tuesday, supervised by two social workers. Colin and his wife would be asked to leave the property while it took place.

The Accredited Legal Representative ([ALR] represented by Michael Kennedy, Switalskis) supports the visit as as being in P’s best interests. The ALR acknowledges the excellent quality of care provided by Colin and his wife, and believes that “it could be accommodated that he remains in the property and it shouldn’t cause a problem”.

The other four parties are family members, all litigants in person:

Colin
Dan (another of P’s son, who largely supports Colin’s position)
Ann (P’s daughter who wants to visit P) and
Bea (P’s granddaughter who wants to visit P)

There were also some social workers in court.

This was a Final Hearing, held remotely (via MS Teams) on 5^th November 2021, before District Judge Geddes sitting in Leeds Combined Court.

The hearing

At the beginning of the hearing, it was announced that Colin has made (what the ALR later referred to as) “a helpful concession” and now accepts that some contact should take place between P and Bea and Ann – but he does not agree with the contact plan that the social workers have drawn up. It had also become apparent that other family members now also want to visit, including P’s eldest daughter and her husband, and another son (who are not parties) and Bea’s children (two pre-teens and a teenager).

The judge asked whether pre-hearing discussions could perhaps have resolved the situation given the change in Colin’s position, but counsel for the local authority reported that it had not been possible to reach him, and the local authority had believed that “such a discussion would not be fruitful”. (I think the ALR said that an attempt at formal mediation had been made and had failed.)

The fundamental issue today (said the judge) was whether Colin and his wife would be required to leave the home that they share with P to enable the visit to take place. The social work team “strongly believe” that Colin and Carol shouldn’t be in the house when Bea and Ann visit P “to avoid any chance that the visit is married by the bad feeling that exists, for whatever reasons, good or bad, on all sides”.

This, then, was the challenge before the judge. Should she authorise a visit with Colin in the house (with the risk of conflict occurring), or should she require him to leave for the duration of the visit.

Colin (P’s son and LPA)

Colin was very clear that his own position was that he should not leave the property.

“I’ve cared for my Mum over the past 18 months and I don’t pose any threat towards anybody who comes to the house. I can give my word to the court on that. I will be there if I’m needed for my Mum’s medication and if my Mum gets uncomfortable. There are lots of personal belongings of my own and my wifes in this house and there’s mistrust between us all. For both reasons I would like to be in the house in another room and I hope that wish would be granted. You have my solemn word that there will be no reaction from me.^[2]” (Colin)

The judge asked Colin: “Help me with the layout of the house”.

It became clear that the house is quite small. P has a bed in the living room downstairs, and there is only the kitchen and the hallway (and I think a toilet) on the ground floor, so Colin and Carol would need to be upstairs during the visit. “I could be up there and out of the way altogether”, said Colin. “I would be there if needed, and not a mile away.”

The judge asked “how would you judge if you were needed?”. Colin said that he used a “close range camera” to monitor his mother when he leaves the house for short periods: “I can log in on my phone and get readings as to how comfortable she is”.

The use of the camera in this way clearly raised alarm bells for the judge, although she handled the matter calmly and tactfully.

She first pointed out that “the proposal is that you don’t supervise this visit, and it’s supervised by two professional members of the social work team. I would have to put my trust in the professionalism of that team”.

Colin readily agreed that “if the professionals were to call me, that’s the only time I would appear”.

The judge then referred to the “right of your mum to a private and family life”, suggesting that “one of the elements of that might be to give some privacy during the visit”.

Colin agreed that the camera can be turned off, but was obviously concerned about what other family members might do in the house in his absence. He said he wanted them to stay in the room with his Mum (“and the toilet if they need it”) but “not prowl around the house”.

The judge asked him if the camera could be moved to another location, and suggested setting it up on the stairs instead since “nobody would have reason to go up there”.

The judge asked about the size of the room and whether there should be restrictions on the number of people who should be present at any one time “so as not to overwhelm Mum”. Colin described it as a small room that “can feel a bit crowded” with 5 people and added: “For covid reasons as well, I would ask that that PPE [Personal Protective Equipment] would be worn. These people have not been in my mum’s life for nearly two years now.” This had apparently not been covered in the contact plan in relation to family members and the judge seemed to accept that it should be (and that masks and gloves would be appropriate).

The judge then asked what Colin’s view was about other family members visiting in addition to Ann and Bea – the only two family members whose visit had been initially proposed.

Colin expressed some concern about visits from Bea’s young children: “they’ve always seen their grandma relatively well, and have been jumping around and carrying on around her and I think the change in her would massively affect them”. He also rehearsed some grievances against Bea, saying that “I’ve never stopped these children coming. It was Bea herself who stopped the children coming. Because I wouldn’t let her in, she stopped the children coming altogether, to the extent my mum had to walk to the gate to see them”.

Likewise, he said, with a touch of bitterness, his older sister and her husband “have never pursued any contact”. Pushed by the judge as to whether he would facilitate a visit for them “if there was a genuine wish”, he acceded to the authority of the court: “If the court wants them to see their Mum, yes. I just want this over and done with. Whatever you decide, Ma’am, I will follow. Just not too many people at one time please.”

Dan (P’s son)

Colin’s brother Dan was broadly in support of Colin’s (revised) position. “I have had a discussion with Colin this morning and this is the only way this can be resolved quickly”. He was concerned, though, that their mother would feel distressed by the visitors because “she said she didn’t want any contact with Ann and Bea”. He felt that she would “not trust Colin any more for not following her wishes” if he allowed Ann and Bea to visit. He acknowledged that she is now largely unable to express her wishes and was anxious that she might feel distress at being visited by two family members she doesn’t want to see, and worried that she might not be able to show that distress.

The judge said it would be necessary to “rely on the professionalism of the social workers to pick up any distress” and checked with Colin that P does have ways of indicating distress. He explained that she has facial expressions and eye movements that would clearly indicate to professionals that she was unhappy and finding the visit too much.

“There’s been some difficulty in ascertaining what P’s wishes would actually be, and some differences of views”, said the judge. “It’s very helpful that Colin has agreed that there should be a visit”.

“It’s a one-off arrangement, just to say goodbye”, responded Colin. “She does have a right to privacy in her own home. She’s coming to the end of her life. Just let nature take its course and don’t subject her to any more stress.”

Ann (P’s daughter)

The judge asked Ann whether she had read the contact plan and was in agreement with it.

She said she had, but added that CCTV was “a breach of her privacy and dignity”.

“I think Colin agreed with me that the camera should not be on during family visits”, said the judge. “It’s not necessary. There will be professionals present to supervise. The purpose of the camera is to safeguard P on the short occasions when she’s left alone, not to supervise her contact with others”.

She also checked that Ann was happy to wear a mask during the visit (she was).

Bea (P’s granddaughter)

Bea, was also in agreement with the contact plan, and willing to wear a mask and gloves “obviously, for the protection of my grandma”.

She asked the judge to consider approving visits from other family members, including in particular her teenage daughter “who does miss her grandma very much”. She had not yet decided whether or not it would be appropriate to take the younger ones (“I need to think about how this would affect them emotionally.”)

The judge said that there was, as Colin had pointed out, “potential for distress for those children” and that “obviously it’s not for him [Colin] to decide how you bring up your children”. The judge did however “have some concerns about how crowded this visit might be for your Nana. I want this to be a peaceful and enjoyable experience for her”.

The ALR

The ALR reaffirmed the belief that the visit could work with Colin and his wife remaining in the property – as long as he stayed upstairs and removed the camera from his mother’s room. The ALR also said they did not think it “helpful” for P to have visits from very young children and suggested that Bea’s teenage daughter should be the “cut-off point”.

Social Worker

The social worker restated the view that Colin should leave the property “because of the unpredictability of the situation and how hostile it’s been in the past”. She reminded the judge that “police have been called a few times when the family have come into contact with each other”.

The judge asked her: “What do you think about- Forget the children’s best interests, though it’s hard for me as a judge who also does work with children to ignore that, but I am going to ignore it. What value or purpose would it have for P if the young children were to visit?”

“It does sound like P loved these grandchildren very much”, said the social worker. “She used to go to the end of the drive to wave them off to school every morning. They were an important part of P’s life. But would P want them to see her as she is now? It’s hard to say. I think it’s Bea’s decision.”

The difficulty, as the judge pointed out, is that “Bea hasn’t seen her Nana for quite some time, so may herself be underestimating the impact of seeing her in her terminal illness. I wonder if there could be someone on hand to care for the children if they wanted to go out. For a teenager it’s a different thing, but they’re still vulnerable at that age aren’t they. But there we are. I think we’re possibly digressing!”

Local authority

On behalf of the local authority, and by way of closing submissions, Holly Littlewood said:

“You’ve heard all the evidence but – just to emphasise – the local authority’s position is that it’s in P’s best interests for Colin and [his wife] to leave the property for this one-off visit for the rest of the family to say their goodbyes. In the past the police have had to be called when members of the family have run into each other. In order to completely eradicate that risk, it’s in P’s best interests to leave the property. The alternative is for Colin to be in a room upstairs for the duration of the two-hour visit, but it’s hard to see what the benefit would be. He wouldn’t be supervising the contact, or observing his mother. It would be just as easy for the social workers to contact him (if needed) if he were just a few streets away. So, our position is that it’s in P’s best interests for them to leave the property.” (Colin is visible on screen shaking his head as she speaks)

She added, with respect to visits from other family members, that there’s “nothing evidentially to say it wouldn’t be in P’s best interests to have visits from her wider family at this time”.

Judgment

The judge then said she was in receipt of everything she needed to make a decision and delivered an ex tempore judgment. The judgment (as close as I could capture it) was as follows.

It is common ground that P does not have capacity to make a decision about who she should have contact with, and the jurisdiction of the Court of Protection is therefore engaged.

The decision before the court is whether it is in P’s best interests (s. 4 Mental Capacity Act 2005) to permit a visit between family members and P on one occasion for a two-hour period as set out in the care plan. Contact would be from 9.30am to 11.30am (scheduled to coincide with a period when P is not expected to require direct care interventions or medication), and it would be facilitated and supervised by social workers already involved in P’s case, who have provided witness evidence in this case.

It is a condition of the visit that if P becomes distressed, visitors will respect the instructions of the social workers to leave, and the visit will not continue.

The local authority is open to family members other than Ann and Bea taking the opportunity to say their goodbyes – importantly Bea’s children who were very important to P in the past. This is left to the exercise of parental discretion of the mother.

Any adult who wishes to attend for this visit must first have had a discussion with a social worker about what’s expected. There must not be a crowd at P’s door and the social workers managing a great number of family members. It’s got to be a visit that is peaceful and where the focus throughout is on P’s needs, and that may mean that numbers need to be limited. I don’t want the presence of other family members to interfere with Ann and Bea having the time with P they wish to have.

An issue that might have been contentious but is now agreed is that Colin will disconnect the camera that he uses to check on her when P is alone for short occasions. It is way too tempting, whether he’s upstairs or out, to check in on his mother, and to do so would interfere with the privacy of P and other family members. The camera will not be switched on, and will be removed for the duration of the visit.

I want to give credit to Colin for changing his position on visits over the course of this week. P has numerous children and grandchildren. It’s a large family with P in the past having been at the centre and it’s very sad that family relationships have become so fractured. I’ve developed a picture of P as someone who has enjoyed having a big family, and I take that into account as a value she’s held previously. She’s been extremely involved with grandchildren and great grandchildren. There are disputes about the nature of those relationships but everything I’ve read, even in the context of family hostility, tells me that it is in her best interests that those family members who love her and hold her in high regard be given the opportunity to say their farewells in person. I accept the evidence of the local authority that she is more likely than not to gain comfort and value from a face-to-face visit. The touch of a hand can’t be replicated over video.

There has been hostility between family members over the last couple of years and the local authority proposes that Colin and his wife should leave the property to avoid any risk of family members coming into contact with each other.

I found Colin very genuine and his role as P’s Health and Welfare Attorney is very important, but I have decided that he and [his wife] ought to vacate the house for the short period of the visit. Having read about the conflicts in the past, it’s obvious that for everybody this is a highly emotive and stressful thing to happen. Family relationships have been very fractured, there’s been a lot of hostility. The police have been called in the past and there been a lot of blame on both sides. While I hope that those relationships can be repaired in the future, I don’t think that’s going to happen between now and Tuesday. It would be an added layer of stress on everyone – for Colin to be hearing people coming in and out, for other family members worrying that this visit in the most private of moments is being overheard. I hesitated before adding this additional burden to Colin and [his wife], but have decided that they should leave for the two-hour period.

That is my decision.

Reflections

This was potentially quite a challenging hearing for the judge, with four litigants in person from a feuding family, for whom mediation attempts outside of court had failed.

In fact, though, all family members were calm, controlled and courteous in court, and Colin had already made significant moves towards accommodating others’ wishes to visit P. Although the judgment was not as he would have wished (in that he will have to leave the house for the visit to take place), he did say “thank you” to the judge at the end of the hearing.

As an observer, I experienced the judge as sensitive to the needs of this family in conflict, while being clearly focussed on devising a practical way forward.

She did not engage with any family comments about the history of, or reasons for, their ongoing conflict. She didn’t enquire, for example, about why there was “mistrust” or “bad feelings” between family members, or express a view about them, other than to hope that their differences might be resolved in the future. She didn’t challenge Colin’s perception that there was a risk that family members would “prowl around the house” looking at his personal belongings. She didn’t enquire as to why Bea had allegedly not allowed P to see the grandchildren, except as they passed the garden gate. With the exception of the small “digression” relating to the best interests of these grandchildren, the judge focussed exclusively on what was in P’s best interests, without becoming embroiled in the family dynamic. This involved some very practical concerns: the timing of the visit, the layout of the house, management of the camera, and where Colin and his wife should be during the visit.

The hearing was listed for two and a half hours – and the judge had another hearing listed for the afternoon. Despite what I know about the busy court lists and over-worked judges, there was no sense of rush or impatience in this case, no suggestion of “hurrying” anyone along. The judge was calm, confident, and did some “thinking aloud”, which helped everyone in court to understand how she was moving towards making her decisions.

Despite this generally positive experience, though, nobody could possibly want to find themselves in court, with a judge having to decide on whether, and how, and when and under what circumstances family members can visit a much-loved mother (grandmother, or sister) who is dying.

And, of course, it’s hard for the judge to figure out what P wants, or would have wanted, in this situation. She’s no longer able to express her own wishes.

Many people hope for a deathbed scene with their loved ones beside them, holding hands, sharing stories, reminiscing about the good times. Where there have been difficult relationships, both the visitor and the dying person can ask for, and receive, forgiveness. Missing the chance to apologise for past hurts, to let go of lingering resentments, to say “goodbye” and “I love you” is a common fear. The family vigil at the bedside often symbolises a good death

And, yes, there are death-bed reconciliations and powerful reconnections between estranged family members.

But for some people dying alone holds no fear, and compulsory visits, when we’re helpless to prevent them, from people we may not like, people we believe have harmed us and are still angry with, may not be what we want for ourselves. We may not want these people near us when we feel vulnerable and helpless. When facing our own fears about death, other people’s wish for absolution may not be our top priority.

When we have the capacity to decide for ourselves who we want to visit us, we can make our own choices.

When, like P in this case, we no longer have the mental capacity to make those decisions (indeed, may not even be aware of who is in the room with us), then those decisions are made for us by others. Perhaps for some of us, what we’re not aware of can’t hurt us – so there’s no problem with this. For others, though, it matters that the end of our lives is in accordance with the values we’ve lived by earlier in our lives – even if we’re no longer aware of ourselves and what is happening around us. That’s why some people write “advance statements”, spelling out what matters to us – to have only vegetarian or vegan food, to have only certain kinds of music played in our room, to attend particular religious services (or none).

As with other elements of planning ahead in preparation for a time when we can no longer make our own choices, we can write down our views about visitors we would (or wouldn’t) like on our deathbeds in an “advance statement”. This can sit alongside all the other information about what is important to us when we can no longer decide for ourselves. For more information about advance statements, see the Compassion in Dying website.

Of course, some of us will die unexpectedly without time to summon those people, and – as we all know from the pandemic – it’s not always possible to have the people we want around us when we want them. But planning ahead can still be useful to inform those who may find themselves making decisions for us in the future. It could have helped in this case.

Not everyone has strong views about who visits them on their deathbed – but some of us do. We can prepare a statement in advance saying that if we can’t make decisions at the time, then “I’d like all my family and friends around me when I’m dying” or “Dying feels private and personal, and I’d like only my partner to be there”. We can say, “Please don’t encourage X or Y to visit” or “I would really like Z to come back from Australia to be with me if she can – but if she doesn’t make it in time, she shouldn’t feel guilty or bad about that”.

There’s also a space on the form to tell the person you appoint with Lasting Power of Attorney what you would like them to do. In this case, P could have written that she definitely did want Ann and Bea and the grandchildren to visit her and that Colin shouldn’t prevent them from doing so. Or that she definitely didn’t want them to visit. Or that she trusted Colin to make the right decision and that if anyone doubted his decision they should know the great trust she had in him.

None of this obviates the need for best interests decision-making on P’s behalf, but it provides guidance (from P herself) as to how to make that decision, and that has to weigh heavily in the balance, whether the decision-maker is a health or social care professional, a family member, an attorney or (if it comes to that) a judge.

As with so many Court of Protection hearings, I come away thinking how much pain could be avoided if only we all planned ahead for possible future loss of capacity.

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

^[1] All names are pseudonyms. I understand from what was said in court that there is a transparency order forbidding identification of P and her family members in the usual terms, but I have not been sent it.

^[2] We are not permitted to audio-record court hearings, so all quotations are as accurate as they can be but are captured by typing as fast as possible while the hearing is in progress (and without shorthand) so they are unlikely to be verbatim.

The image is a pen and ink drawing by Rembrandt (almost certainly of his wife, Saskia) from the British Museum Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International (CC BY-NC-SA 4.0) license.

Last-minute vacated hearings in the Court of Protection

By David York, 8th November 2021

For many public observers in the Court of Protection, it will be a familiar experience to request access to a hearing, only to get an email response saying that the hearing has been vacated or adjourned.

This leaves members of the public wondering what actually happened to that case – and, most importantly, what happened to the person it relates to.

Sometimes a hearing is adjourned (moved to a later date). This might be because the Official Solicitor has not had time to get legal aid or receive instructions in time for the first hearing.

The difference between “vacated” and “adjourned” usually relates to the stage at which the court agrees that the hearing should take place at a later point. A hearing is “vacated” typically where a request is made in advance that the hearing should be taken out of the list and a later date given. A hearing is usually “adjourned” where issues appear either in pre-hearing discussions or at the hearing itself where it becomes apparent that no substantive issues can be resolved and the judge agrees that the hearing will need to be adjourned to be dealt with on a later date.

Hearings disappearing out of judges’ lists are not unusual. In an ideal world this would happen at very least a week before the hearing is due to take place, but there certainly are occasions where it might only be the day before the hearing or on the day of the hearing itself that it is removed from the list. Where this has happened, it is usually because an order has been agreed between the parties outside of court which has then been approved by the judge on the papers.

This applies most frequently to what are called “directions hearings”. These are hearings where the court is not being asked to make any substantive or final decisions on the case but is instead directing what needs to happen in the case (such as what evidence is required). Sometimes those hearings cannot be effective due to the fact that something may have happened that has blown any existing timetable off-course. Wherever this has happened the parties will have been able to agree what should happen next. It is an essential step in the process that whoever is representing P also agrees to those steps and ensures that whatever is being agreed is in their best interests.

Often the genesis of an application to vacate a hearing can go back days or weeks. Between hearings there will have been various forms of evidence exchanged between the parties consisting of witness statements, reports, assessments, all of which contribute towards the developing picture of the case. Sometimes the evidence that is expected can be late; sometimes it can be that it gives rise to further questions that will take some time to answer. It may be that there has been a material change in the facts of the case, or a substantial change in P’s circumstances, which can be as simple as them moving to another address or potentially new evidence appearing in respect of their mental capacity.

Alternatively, it can be that with a review of all of the evidence the parties can agree between themselves what should happen next or that the case should be concluded. It can sometimes take days for the terms of an order to be agreed between the parties as it goes through many different incarnations until it reaches a state that everyone agrees to. At that stage it is lodged with the court with an application requesting that the order be approved by the judge and the hearing be vacated.

So why the desire to avoid a hearing?

Court time is finite. The judiciary are under ever-increasing pressure. They are dealing with enormous workloads. It has not been unusual for me to see judiciary sacrificing their lunch breaks to make sure a case can be heard promptly. For the judiciary, any case that can be agreed as not requiring a hearing can potentially make space for another matter which does. In addition to this, the costs of attending a hearing can be expensive and so wherever possible the legal representatives try to ensure that the matters that do progress to a hearing are the ones where attendance before the judge is required. Those are cases where the parties cannot agree on what should happen next or where the issues are such that the judge would want to hear from everyone.

It is of course always up to a judge to make the final decision in respect of whether a hearing takes place or not and whether an order is approved. The judge always has at the forefront of their mind the best interests of P, the subject of the proceedings. There are occasions where the judge has concerns about the nature of the order sought and wishes to hear from the parties so that some explanation can be provided. In one recent case the judge was concerned that the parties were agreeing to P remaining in a placement that they were unhappy with for potentially up to twelve months. Whilst the judge ultimately approved the order, she wanted to hear what the reasons were for the order so that she could properly understand the basis for it.

The fact that the parties themselves have agreed the order does not ever mean that the judge will always approve it. There have been times where a judge has refused to approve an agreed order, has called the case in to court, and then following a hearing the order that is actually made is markedly different to the one that was submitted. For example, in one case the judge was concerned that the evidence that was due to be filed did not go far enough and directed the local authority to provide substantially more detail than had been agreed between the parties.

If the judge is satisfied with the order, it will be approved and the hearing is taken out of the list.

There is no absolute rule as to the cut-off point for making a request to vacate a hearing, it very much depends on the judge in question. Some judges are abundantly clear that they will not consider any such request if it is made within five days of the hearing. Others may consider it on the morning of the hearing. It very much depends on the judge, the facts of the case, and what is being asked for.

Applying to vacate hearings at the last minute is the last thing the parties (or the judge) ever want to see happen. The effect is always a great deal of uncertainty involving many emails between the parties and the court asking if the order has been seen by the judge. Also, if approved it can result in a gap in the list of the judge which is unlikely to be filled. But where it has happened, it is because the judge agrees that there is no need for the hearing to take place.

David York is an Apprentice Chartered Legal Executive in Public Law and Human Rights at Irwin Mitchell LLP who tweets @PhaloniaYork

Photo by Jr Korpa on Unsplash

Reflections on Disability and Reproductive Justice in a court hearing

By Jakki Hanlon, 3rd November 2021

Before today, I had only ever read written judgments from the Court of Protection, so I was very grateful to Celia Kitzinger for helping me gain access at the very last minute to today’s hearing (Case 13837302 before Mr Justice Hayden on 28^th October 2021 – see also Celia’s blog post here).

The decisions of the Court of Protection on reproductive rights and healthcare are important building blocks in my research into disability and reproductive justice. Reproductive justice looks at more than the rights we have on paper; it looks at the systems and structures of society and the ways in which they can work to restrict, or even completely disregard those rights. One of the ways in which our reproductive rights can be restricted is if a court, such as the Court of Protection, decides that we lack the capacity to make decisions for ourselves and decides what actions would be in our best interest. In this case, P was expressing the wish to have a VBAC (vaginal birth after caesarean section) against the wishes of her doctors. She is not the first and will not be the last woman to request a VBAC against her doctor’s wishes, but because of her mental health status, her capacity to make this decision has come before a court.

Courts are a very public way of making decisions about people’s lives, so any reporting of cases will rightly contain no details which can be used to identify the person. This means that their voice and personality are often obscured in the ways cases are reported. Observing a case allowed me, for the first time, to get to hear the voice of P and what her hopes, fears and preferences are, in a way that has not been possible before. The participation of P in proceedings today would, as Mr. Justice Hayden noted, not have been possible to the same extent before Covid regulations took the court online. Yet her participation was a crucial part of proceedings because it gave life to her concerns about being awake while giving birth, adding layers of complexity to what could be considered P’s best interests because she raised the importance to her of bonding and the symbiotic relationship between mother and baby. To her, being awake and with her partner are fundamental to establishing that relationship. Without her ability to participate, how could the court have recognised this?

One of the other important conclusions I was able to make from observing the hearing today was the importance of time in ensuring that P has proper access to justice. Pregnancy by its very nature is a timebound experience and unpredictably timebound; nature does not stick to the rules we try and impose on her, and the justice system is no exception to this. Time is needed to ensure the process of justice works properly and there is not much left. This raises questions about the practicality of dealing with matters of pregnancy in the Court of Protection if it is not given the resources to do so and if maternity services should have better care pathways available to disabled patients which better anticipate their needs, capacity or not, in a less confrontational way.

Jakki Hanlon is a recent graduate of the Master of Laws degree (LLM) in Gender, Conflict and Human Rights at the Transitional Justice Institute, situated within Ulster University, Belfast . She tweets as @BarefootJakki

Photo by Jill Sauve on Unsplash

C-section and general anaesthesia against her wishes? Capacity and best interests

By Celia Kitzinger, 3rd November 2021

A pregnant woman with schizo-affective disorder wants to try for a vaginal birth. She says she’ll accept a c-section if necessary (she had one with her previous baby), but would like an epidural, so that she can be awake for the delivery. She badly doesn’t want to have a general anaesthetic.

The applicant Trusts – the trust responsible for her mental health care and the trust responsible for the proposed obstetric treatment – have applied to the court for a declaration that she lacks capacity to make her own decision about the birth of her baby, and to authorise a c-section with general anaesthetic. They were jointly represented by Conrad Hallin.

Although this appeared on the lists (Case 13837302 before Mr Justice Hayden on 28^th October 2021) as an ‘urgent’ hearing, it was not an emergency. She’s only 36 weeks pregnant, and her baby isn’t due until 25^th November 2021, more than four weeks away.

What most surprised me at the hearing was that the judge seemed to be on the verge of authorising the c-section and general anaesthetic in her best interests. He gave a strong steer to counsel before the lunch break that they should “seriously think about” his proposal to make a declaration that she lacks capacity and that a c-section with general anaesthesia is in her best interests.

As it turned out, in large part due to the forceful and compelling advocacy of her counsel via the Official Solicitor (Debra Powell QC), the judge adjourned the decision for another day, and another judge.

The case will now be heard before Holman J in Court 49 at the Royal Courts of Justice on 4^th and 5^th November 2021. My understanding is that it will not be possible to watch it via video-link and that anyone wanting to observe it will need to go to the court in person.

Capacity and decision-making

If the woman concerned (SM) has capacity to make her own decisions about childbirth and delivery, then the court has no jurisdiction over her, and she is free to make her own choices, even if others consider them unwise.

Pregnancy does not constitute an exception to the principle that a capacitous adult has the right to refuse medical treatment. We have blogged before about a case in which a pregnant woman (detained under the Mental Health Act 1983) was refusing blood tests and blood products. She was found to have capacity to make that decision.

This case came to court without sufficient evidence as to whether or not SM has capacity to make her own decision.

The parties had made an application to vacate the hearing because the psychiatrist who had assessed SM had been taken ill, and was not able to come to court to give evidence and be cross-examined on that evidence. The trusts and the Official Solicitor had agreed that under those circumstances the hearing should be adjourned, but Mr Justice Hayden called it in nonetheless – saying at the beginning of the hearing that “SM needs a decision now – that’s why it’s urgent”.

The hearing

There was some delay after the judge joined the hearing as the heavily pregnant SM appeared on screen, with someone in PPE assisting her in muting her mike, and then switch off her video.

Applicant’s position

Counsel for the trusts began by outlining SM’s medical history.

A perinatal mental health midwife had raised concerns about SM’s mental health on 17^th September 2021, but at that time there had been no bed available to admit her. She was eventually detained under s.2 of the Mental Health Act on 7^thOctober 2021. Counsel for the trusts read from the records describing her gestational diabetes and essential hypertension (though she is not at risk of pre-eclampsia) and the “small but serious” risk of uterine scar rupture from her previous c-section.

On 13^th October when members of the health care team attempted to discuss c-section with her she became “agitated”, and then “threw down the consent form that was being used as a template for discussion and stormed out of the room”. In the view of the trust, this is “a clear demonstration of the difficulty that may be faced if there were an emergency during vaginal delivery”, i.e. she might not be able to engage with the consenting process. The health care team reached the view at that point that she “does not have the capacity to be supported through attempted vaginal birth after previous caesarean section”.

In a subsequent discussion a few days later (I think with a consultant obstetrician), she seemed “less agitated” and “readily agreed to have a c-section”. (This seemed to be part of the evidence that she is “inconsistent” in her decision-making.) On this subsequent occasion she “apologised for her previous behaviour” and “explained that she found it anxiety-provoking to be handed consent forms”. She showed an “inability to remain focused” on information relevant to the decision that needed to be made and “could not tolerate discussion of risks”. She can also become hostile. It was decided that she “didn’t have capacity” and “was not a safe candidate for vaginal birth”.

Mr Justice Hayden summarised the evidence on capacity: “The consistent picture is that while this mother can speak to some degree reflectively about her pregnancy, when she’s asked to evaluate the risks involved she draws back, and doesn’t want to engage”.

“An insightful observation, My Lord,” said Conrad Hallin. “That is indeed the tenor of the evidence”.

He added, however, that each time the risks are discussed there is somewhat less agitation, and that “when she’s presented with small pieces of information with no pressure of decision-making, she’s likely to be able to assess the risks”. This raises the possibility that – although SM may lack capacity to make her own decision about a c-section at the moment – she could be supported and helped to regain it. If so, this engages a fundamental principle of the Mental Capacity Act 2005.

“A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.” (s 1(3) MCA 2005)

Nonetheless, the trusts’ position is that even if she were to regain capacity to make her own decision, “she would be likely to lose capacity again, with the pressures of either a c-section or spontaneous delivery. So if she were found in the moment to recover capacity, we would ask for an anticipatory declaration under s.15, combined with the inherent jurisdiction for any associated deprivation of liberty, as in the case of Guys and St Thomas’ Trust”.

In the Guys and St Thomas’s Trust case (GSTT & SLAM v R [2020] EWCOP 4) Hayden J had made declarations under s.15 MCA and pursuant to the inherent jurisdiction of the High Court to the effect that P currently had capacity to make decisions regarding her obstetric care and the delivery of her baby, and that in the event that she came to lack that capacity, it would in her best interests for care and treatment to be delivered in accordance with the care plan before the court including, if required, to deprive her of her liberty. (There is a useful summary and commentary on this case by Alex Ruck Keene here, and an academic analysis of this and similar cases of anticipatory and contingent declarations, by Sara Fovargue here [not open access]).

So even if SM were to be found, today, to have the capacity to make her own decisions about the mode of delivery of her baby, the trusts “would still ask Your Lordship to make declarations under s.15 as there’s a significant risk that she’d lose capacity at the material time”.

On behalf of the trusts, Conrad Hallin was clear that SM’s capacity would be continue to be reviewed on an ongoing basis and if, at any point, she were found to have capacity to make her own decisions, then of course it would be her right to do so.

Mr Justice Hayden pointed out that this would remain the case even if he were to make a declaration today to the effect that SM lacks capacity and that a c-section is in her best interests.

“There’s the possibility that the continuing breakdown of the constituent parts of the decision-making may, if persevered with, enable her to make an ultimately capacitious decision, evaluating the wide canvas of risk. If I were to decide today that she does not have capacity, that would not in any way inhibit you going forward to see if it’s possible for her to do capacitous decision-making. If she did not, you would already have your declaration. If I don’t make a declaration today, then you would have to come back to court…. I’d be making a declaration that she lacks capacity to understand, retain and weigh the factors relevant to making a decision. The planned continuing work to help her to achieve that capacity would continue. In the event that she does achieve that capacity, her own decision is determinative. In the meantime, I will declare where her best interests lie”.

The judge had his eye on the clock and asked counsel for SM for “think seriously about” his proposed way forward over the lunch break.

But it was a proposal with which neither counsel seemed satisfied. Counsel for the trusts responded: “That would still leave my clients wanting an anticipatory declaration, akin to Guys and St. Thomas’”.

Counsel for SM (Debra Powell QC) stated firmly, “I think we should adjourn for a multitude of reasons. If we break for lunch now and then I present my reasons, we’re not going to have time to hear the case in any event.”

After some courtroom banter (“You underestimate me, Miss Powell”/ “I don’t, I really don’t My Lord. Experience has taught me that would be unwise”), the hearing was adjourned for lunch.

Official Solicitor’s Position

After the lunch break, Debra Powell QC, acting on behalf of SM’s best interests via the Official Solicitor, gave reasons why the case should be adjourned for the following week.

A consultant psychiatrist who has conducted an assessment of SM’s capacity is needed in court, so that they can give evidence and so that the evidence on capacity can be tested via cross-examination. “On discovering that [the assessing psychiatrist] was not available this week”, said Debra Powell QC, “the Official Solicitor was opposed to the case being listed this week, but the applicant went ahead anyway and secured this listing.”

There were other doctors available in court to give evidence on capacity today, but “no consultant psychiatrist who has recent knowledge of SM”. There is a consultant psychiatrist who has “historical knowledge” and another whose knowledge of her is recent, but he is a registrar and “it is not appropriate to get someone less than a consultant to give evidence”. The treating psychiatrist is reported as having said that there’s been a recent overall improvement in her mental state.

Moreover, s. 1(3) Mental Capacity Act 2005 says that “a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success” and the evidence in this case is that “all practicable steps have not been taken to enable her to make a capacitous decision of her own… A few more days should be given to that, to enable that process to be completed” (Debra Powell QC)

“I get your point about s. 1(3)”, said the judge, “but sometimes it’s possible to overcook- Is all this NECESSARY to decide capacity?” Debra Powell QC responded sharply and unequivocally:

“In my respectful submission My Lord, oral evidence from a consultant psychiatrist who has recently assessed her capacity is necessary and further work to take practicable steps to see if she can make a decision herself is necessary.”

There was also an ongoing unresolved question – raised by both Conrad Hallin earlier, and by Debra Powell QC now – about whether SM had previously had an epidural or a general anaesthetic with her previous caesarean delivery. (The health care team seem not to know, and are unwilling to rely on SM’s report.) Hayden J expressed some impatience (with both advocates) at this line of inquiry (“What we’re dealing with is a question of capacity for this pregnancy for this woman, with this partner, at this stage in her life”) but both saw it as pertinent to the current decision.

Debra Powell QC says that SM was first in contact with mental health services at the age of 14 and has a long psychiatric history of frequent admissions, some voluntary and some under section. It seems that SM was detained for about six months around the time of her previous delivery (though dates were unclear). SM says that this previous delivery was an attempted vaginal delivery, which had to be converted to a c-section, but she had the section under epidural. She draws on her previous experience in expressing her views this time.

“There’s a recognition from this lady that she coped with it [a caesarean under epidural] previously. There’s a difference between assessing the likelihood of a first-time mother being able to cope with vaginal delivery and epidural and a second time mother who’s already gone through that process once.” (Debra Powell QC)

“What are her wishes now, do you say?” asked the judge.

Counsel quoted from an attendance note from the solicitor acting as an agent for the Official Solicitor. SM had told her she’d be willing to have the c-section if necessary, but that she wanted her fiancé there for the birth – which she had been given to understand would be possible if she were having a c-section under epidural, but not if she were having it under general anaesthetic. (“Are you sure about that?”, asked the judge – it seemed so). She wanted the epidural in part so that he could be there “to cut the cord”.

SM would “not be too pleased about an epidural – she says it causes paralysis”, but when asked about her preferences for delivery she would most like to have a vaginal delivery with her partner there, then her second choice is a caesarean with an epidural and her partner there, and her least favoured option is a general anaesthetic with a caesarean. “When asked why it was important for her to be awake during the procedure, she said: ‘it’s an important day isn’t it’…. An eloquent and perhaps heart-breaking understatement”. (Note, it was not explicitly stated, but I got the impression that care proceedings may have been under way.)

SM’s position

At this point SM herself asked to speak to the court. She talked about her previous delivery (“the cord was wrapped round his neck and if I’d pushed I would have strangled him”) and described having the c-section “under epidural” with her Mum there. She explained that it was important to have someone with her for the birth because “With nobody there, how do you know it’s my baby?” She acknowledged her mental health problems: “When I get poorly, I have to come in to this building and I recover slowly and then I get out and back into the community. Unfortunately, that’s part of my life.” She also referred to what I take were care proceedings, describing how she and her partner had “bought baby clothes and toys and nappies and now they’re saying I’m not fit to be a mother”.

Mr Justice Hayden was (as always) kind and supportive in listening to what she had to say. He described her as “a courageous young lady”. He summarised by saying, “So you’re wanting me to do as much as I can to see if it’s possible to have a….” I’m not 100% sure how the judge ended that sentence, because SM spoke over him, ending the sentence herself with the words “a natural birth”, but I think he may have used the same words.

Judge’s decision

Having heard from SM, the judge said he didn’t need to hear any more from her counsel. And he seemed to have shifted his position from the view I had felt was implied earlier in these proceedings. He said:

“I think this is potentially a case about best interests as well as about capacity. I don’t think it would necessarily flow that if I found her to be incapacitous- I don’t think I would necessarily assume that the best interests decision was as straightforward as I did when I read the papers. Because as she articulates quite persuasively, she’s not as poorly now as she was last pregnancy, and that assertion is supported by the evidence you’ve taken me to, and her reasons as to why the birth process is important to her is also compelling. So the decision is not purely medical. It requires looking at the individual mother in the round. So it’s not axiomatic that if I find she lacks capacity that a caesarean is in her best interests. So I’m going to submit to the inevitable and adjourn the case.” (Hayden J)

Phew!

This isn’t an emergency – her baby’s due date is still four weeks away. The adjournment will give time for another psychiatrist to be instructed to assess SM’s capacity, and give oral evidence in court. And it will give more time for SM to engage with the discussions about risks and benefits of different modes of delivery, perhaps enabling her to develop capacity to make this decision. It will also permit investigation of what in fact happened in her previous labour, insofar as this may be relevant to the current decision about general anaesthesia vs. epidural.

Mr Justice Hayden is well-known (and celebrated) for his robust defence of autonomy and self-determination. And yet in this instance I got the impression that, faced with a decision about a pregnant woman, his protective instincts had (temporarily) overwhelmed him. I am relieved that he adjourned the hearing rather than precipitously (in my view) declaring SM to lack capacity and making a premature decision about her best interests.

The Open Justice Court of Protection Project has published a whole series of blogs relating to pregnant women in courts. In a case this year before Mr Justice Holman (back in May 2021), a woman with agoraphobia who wanted a home birth was deemed not to have capacity to make decisions about the location of the delivery of her baby. The court ordered that it was in her best interests to be conveyed to hospital (with restraint if necessary) before her due date and to be induced or to have a caesarean section. This led to some criticism in the media as well as from birth rights activists and some midwives, amongst others. (See also this blog about a court-authorised caesarean section for a woman with schizophrenia.)

The case will now be heard, in public, by Holman J on 4^th -5^th November 2021 in Court 49 in the Royal Courts of Justice. Observers can attend in person and we plan to cover this case in a future blog.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She tweets @KitzingerCelia

Photo by Alex Hockett on Unsplash

Capacity to refuse intensive care

Gaby Parker and Celia Kitzinger, 30th October 2021

A man in his 40s (PH) has bronchiectasis. Last night his oxygen levels became seriously low (79%) and doctors raised with him the possibility of transfer to the intensive care unit, or to high dependency care. He refused to go.

He’s made it unambiguously clear that he’ll consent to treatment on the ward (where he’s been for many months with other health issues), but that he’s not prepared to move to intensive care.

He’s since stabilised and remains on the ward. But he is at risk of mucus plugging and acute desaturation at any time. As Mr Justice Hayden put it, he is “on the precipice of a potential crisis point”.

The question before the court is whether he has capacity to make the decision about intensive care for himself, or whether the judge needs to make that decision for him, in his best interests (and if so, what that decision should be).

Both of us have watched previous hearings concerning PH (focussed on where he should live) and are familiar with the details of his medical history. The Project has published reports of earlier hearings by Gaby Parker on 23^rd June 2021 (here) and then by Jennifer O’Neill on 27^th July 2021 (here), and there have been many other hearings for PH over the last 18 months.

In 2016 PH drank highly corrosive hydrogen peroxide resulting in oesophagectomy (removal of part of his oesophagus), splenectomy (remove of spleen), tracheostomy and a colostomy with PEJ (percutaneous feeding tube into the small intestine). He’s been assessed as having an “Emotionally Unstable Personality Disorder, Impulsive Type”, exacerbated by an acquired brain injury, following a fit in 2019.

In January 2020 his placement at a specialist nursing home broke down and he was transferred to hospital, which was supposed to be a temporary arrangement but he’s remained there ever since. Previous hearings before the court have be concerned with finding him a suitable place to live. At a hearing we did not attend on 13^th October 2021, it was reported in the media that Mr Justice Hayden “slammed” the health board and spoke of “substantial and alarming failures” in PH’s treatment. But at that hearing (which Mr Justice Hayden referred to today as a “landmark hearing”), the response of the health board, and of the new psychiatrist treating PH, led Mr Justice Hayden to feel “considerable optimism that his needs would be better met in future”. He indicated that this marked “a new beginning”.

“Both the recently appointed Chief Executive and [the psychiatrist] recognised that the history of this case was lamentable and did not seek to excuse or hide from it. Their focus was to look forward and restructure and put together a plan for P recognising that the progress he had made opened up new possibilities for residential care. So only two weeks ago, in what had been a challenging case, things were starting to look much better.^[1]” (from Hayden J’s ex tempore judgment, 29^th October 2021)

That “new beginning” has now stalled because of PH’s serious illness with bronchiectasis, and the urgent issue now concerns ICU treatment.

Having learnt about the hearing about 40 minutes before it was due to start, Celia contacted both of the public observers who’d previously blogged about the case, and one of them, Gaby, was able to attend the “second half” (after a break during which Mr Justice Hayden spoke privately with PH).

In a minor triumph for open justice, this “emergency” hearing even made it on to the RCJ listings shortly before the hearing started, meaning that we were also able to tweet it from the Open Justice Court of Protection feed.

This case (COP 1354439T Re: PH) was heard shortly after 1.15pm on Friday 29^th October 2021 before Mr Justice Hayden via MS Teams.

Reflections on the process: Celia Kitzinger

This was a relatively short hearing (around 3 hours), called in an emergency situation, with counsel who were relatively unfamiliar with the long history of the case. Given that the hearing was listed only 40 minutes before the start time in the list, neither counsel had produced a position statement, and this meant that I was totally dependent on what I heard in court for the information in this blog. It was also less formally structured than many hearings I’ve observed. I have organised my reflections under three headings: the value of continuity of counsel; capacity to consent; and the judicial interaction with PH’s partner.

The value of continuity of counsel

Because it was an emergency hearing, two new barristers had stepped in at short notice to pick up the case. Rebecca Clark acted in place of Roger Hillman (counsel for the Board in previous hearings) and Counsel for PH, via the Official Solicitor, was Fiona Paterson in place of Ian Brownhill, who’s acted as counsel in the past.

It’s hugely demanding for ‘new’ counsel to pick up a long-running case on an emergency basis when other barristers have been previously involved. This led me to reflect that I’ve never heard barristers say in court that it’s important for their client that they – and not a colleague – should continue to represent them. Hearings regularly end with some attempt to set the date for the next hearing and counsel regularly defer to the judge saying that their own professional commitments elsewhere should not impact upon the judge’s selection of a convenient date. It is “judicial continuity” that is often sought, while “continuity of counsel” is something I’ve never heard mentioned. What I saw here was both the value of judicial continuity and the cost of discontinuity of counsel.

It was immediately apparent that, as ‘new’ barristers in this case, counsel were – entirely understandably – struggling to absorb 18 months of prior litigation and voluminous documentation. Right at the outset at the hearing, Mr Justice Hayden took over, with apologies, from Rebecca Clark when she attempted to summarise the issues: “You’ve come on an emergency basis. I have the advantage of having been involved in this case over a long period and I will explain the issues as I have grasped them”. And Fiona Paterson recognised the hurdles she was confronting when she prefaced several questions to the doctor with apologies in case the answers were self-evident, or the questions themselves inappropriate, to those who’d been involved in the case longer. When invited to do a closing summary, Rebecca Clark declined saying that although, as it happens, she’d had some very minimal involvement in PH’s case about two years ago, “I feel I’m intruding on people who know him very well. I don’t think there is anything we can add”.

In this hearing, judicial continuity did compensate for the (unavoidable) lack of continuity of counsel, given Hayden J’s long (and recent) involvement with the case, but I am not confident that this would always be the case in other hearings or before other judges. I hope judges do give consideration to the value of continuity of counsel, where it’s possible to do so.

Capacity to consent and medical evidence

At previous hearings PH has been deemed to lack capacity in a number of respects, including to litigate and to decide on his residence and care – although in February 2021, he did have the capacity to decide whether or not to accept his clinically assisted nutrition and hydration.

Counsel for the Health Board reported today that PH had also been assessed as having capacity to make an advance decision to refuse cardio-pulmonary resuscitation (CPR).

“He knew it would upset his partner, but when Dr B was interviewing him, he was able to understand, retain, use and weigh information relevant to a DNACPR [Do Not Attempt CPR] advance decision, and understood that if he should go into cardiac arrest he would not be given CPR as a consequence of his decision and would likely die. He became visibly distressed about this and it became clear he’d not discussed it with his partner. He was more able to discuss it when [Partner] left. He wanted to make this advance decision, he said, because he is in pain and the pain is so bad that he does not want to carry on living if the opportunity presented itself. He became distressed when [Partner] came back into the room, after leaving to get coffee, but remained committed to the advance decision nonetheless.” (Counsel for the Health Board)

The consultant in respiratory medicine (Dr A) who was treating PH believed that PH had capacity to make his own decision about whether or not to consent to moving to the intensive care unit, where he would be able to receive treatments not available on the ward (including continuous positive airway pressure [CPAP]).

Dr A said that PH had been consistent and clear in his refusal to transfer to ICU: “When I outlined that if he didn’t [go to ICU], there could be fatal consequences, he was still adamant he didn’t want to leave the ward”.

There were questions about PH’s physical state (his white cell count, his inflammatory markers, sputum checks and the kind of antibiotics he was receiving), and some questions about what might be motivating his refusal of ICU and what might assuage any fears that he has, or cause him to change his mind.

Was it because PH was worried about not returning to his current ward but instead being placed on a ward with “elderly people” which he hated in the past? (He’d been reassured he would return to the same ward.)

Was it because PH hadn’t fully appreciated that he’d receive sedation and analgesia to keep him “comfortable” in ICU? (He’d been informed.)

Was it because PH was worried he’d “languish in ICU for weeks or months”? Dr A responded (“I don’t think we could promise anything about the duration of treatment in ICU. We can’t promise a short treatment. We just don’t know until the patient is there.”).

Would it help to involve the new psychiatrist (currently on holiday) in discussions about the decision? (That was planned.)

Counsel for the Official Solicitor asked if it was possible that PH might change his mind about ICU. Dr A said yes: “he has changed his mind before about treatment, and if he does we’ll admit him to the ICU. But if he doesn’t…..”. When the judge intervened to ask “remind me of those facets of his healthcare he’s changed his mind about”, Dr talked about PH’s decisions about feeding (via his tube).

Dr A: We said we thought he had capacity to decide and that we would respect his decision while continuing to ask if there was something we could change with regard to environment, or staff, that would encourage him to accept feeding

Judge: I got the sense that once it was made clear to him that he was- not exactly ‘in the driving seat’ but his own autonomy and integrity was being respected, it gave him a better sense of himself, and caused him to take responsibility for himself.

Dr A: Yes.

Judge: So even if I were to find him incapacitous, restraining him and forcing him to ICU would not be supportive of his overall wellbeing.

Dr A: I don’t know. That’s difficult to answer. That’s why we’re here today.

Judge: Yes. That’s for me to answer on my own, rather than to ask you.

Counsel for the Health Board asked Dr A: “what are your concerns about starting treatment in ICU?”. He replied: “It’s more that we’re wanting to clarify his capacity to consent or refuse ICU transfer. It could happen very quickly. We need to prepare ourselves for the fact that he wouldn’t be consenting to that, and so we’d be doing it in his best interests. Obviously if he deteriorates again and said he wanted to go to ICU we would provide that.”

I’ve watched many doctors give evidence in court and have not always been convinced that they have an adequate grasp of issues relating to capacity and decision-making. Happily, that was not the case here. This doctor clearly believed that ICU treatment could be effective and successful, but also recognised that a capacitous person had the right to refuse it nonetheless. He was willing to provide treatment contrary to PH’s wishes if the court determined that PH lacked capacity to make his own decisions and found treatment to be in PH’s best interests. He declined to express a view about PH’s best interests himself, and considered PH to have capacity for this decision.

The issue of PH’s capacity to make his own medical decisions had been addressed in a report by a consultant clinical psychologist just a few weeks earlier (although the focus of the report was on capacity to decide about residence on care, on which he was found to lack capacity). Mr Justice Hayden outlined some of the key findings of that report that indicated that PH could understand, retain and weigh information about all aspects of his medical treatment, and was fully able to appreciate that death would result if he refused some of these treatments. The report showed, the judge said, that PH is “a man determined to assert both his autonomy and his personal dignity”.

Judicial interaction with PH’s partner

In most of the interactions I’ve seen between Hayden J and family members, the judge says relatively little – asking questions, prompting family members to speak. This interaction was unusual: PH’s partner got to speak just two words (“Yes” x2).

“I would like to speak to [Partner] now. I am not going to require evidence on oath. We have spoken many times and I have heard what you have to say and I could almost write in advance now what I know you want and how you feel. But this is a big one about PH’s own rights and his capacity. I’m not giving anything away when I indicate to you that this is his decision, and not mine. You would wish me to take it, wouldn’t you. (Yes.) You would wish me to compel him to go to ICU. (Yes.) And for PH and for you, I could wish so too. But it’s not up to me. It’s his decision. I’m sure you’ll slug it out with him and try to persuade him, and best of luck to you. But I don’t think you will oppress his own character if that’s what he wants to do. Now go and get your lateral flow test, and get on the road back to that hospital as soon as you can.”

Of course, this speech from Hayden J did in fact give a great deal away and pre-empted the judgment. In saying that it was PH’s decision “and not mine”, the judge was indicating that he would find PH capacitous to make his own decision about ICU.

Hayden J’s speech also went to the heart of an issue I’ve observed in many interactions in families when someone is refusing medical treatment – either contemporaneously, or in advance. Overwhelmingly, family members try to dissuade the person from refusing treatment, saying that they don’t want them to die, pleading with them not to “give up”. Born of love and desperation – and, sometimes, anger that the person is preparing to leave them – as well as a need to show the person how very much they care for them, this approach can nonetheless be very painful and challenging for the person wishing to refuse treatment. This seems to have been so for PH from the account (described above) given by counsel for the Health Board about the conversation relating to PH’s advance decision to refuse CPR, and his distress when addressing his end-of-life decisions with his partner.

In supporting people to write advance decisions to refuse treatment ([ADRTs], ss. 24-26 Mental Capacity Act 2005), I have often been told “my daughter isn’t ready to let Mum go”, or “my children will want me to have every treatment under the sun, but I just want to be left to go in peace”. That’s why they’re making ADRTs – to ensure that the decisions remain theirs and not those of relatives who would try to influence doctors’ decision-making in the direction of (what for them would be) over-treatment. I also hear from many people making ADRTs that they are reluctant to appoint relatives as Health and Welfare Attorneys (ss. 9-14 Mental Capacity Act 2005) with the power to make decisions about life-sustaining treatments because they fear that the people who love them will try to keep them alive as long as possible. Facilitating conversations between people making advance decisions to refuse treatment and their families is one of the most challenging and rewarding aspects of my work in this area. (For practical information about ADRTs and Lasting Power of Attorney and how to make them, see the excellent website by Compassion in Dying.)

A break, closing submissions, and the judge’s decision: Celia Kitzinger

There was a break in the court proceedings as Mr Justice Hayden went to speak (remotely) to PH, who prefers to speak to the judge in private. Gaby was able to join when the hearing resumed.

In a brief report on his return, the judge said he “was left with the very clear impression that PH was entirely capacitous on this issue… there was nothing at all that I could see that led me to doubt the preponderant evidence that I have heard today”.

Asked to make closing submissions, counsel for the Health Board declined (for reasons quoted above). Counsel for PH did make a closing submission. She said that “the evidence appears to be all in one direction, namely that PH has capacity to decide whether or not to have treatment“. This means that the court has no jurisdiction under the Mental Capacity Act 2005 to decide that PH should be transferred to the ICU (or High Dependency Unit) if he were to deteriorate. She then went on to say that it appeared unlikely that this was a case in which the court could decide that PH fell within its Inherent Jurisdiction on the basis he was a vulnerable adult with which the judge heartily agreed.

“That jurisdiction is a very narrow strip of land and it might seem an extraordinary thing to say, but for all he has been through (and PH has been through many things) he is not vulnerable in that way. He’s an adult who knows his own mind.”

In a short ex tempore (oral, ‘in the moment’) judgment, Hayden J acknowledged that “it is always difficult when a treating team see a viable course ahead and see a patient who is resistant to it” but concluded that PH “both has the capacity to take the decision for himself and is entirely entitled to take the decision that he, and not me, considers is right for him. He is now at the helm of events and I wish him well and very much hope that I have the chance to see him again”.

For me, this was a quintessential ‘Hayden’ judgment in its emphasis on the right of individuals to make their own decisions where possible, and the prioritising of autonomy over protection.

Reflections on the judgment: Gaby Parker

It was a privilege to be able to join the second half of this urgent hearing before Hayden J, hear the closing comments from counsel and the ex tempore judgement. Eloquent and considered as ever, the words from Hayden J’s judgment that have reverberated in my mind since are these: ‘The foundation of human dignity is respect for autonomy…’.

Foundation: the basis and strength which underpins the structures we see

Justice Hayden affirmed the strength and determination he saw in PH, reflecting that he is a man who knows his own mind. He honoured the love and commitment shown to PH by his partner, noting that she is ”his emotional rock” and the person who has stood by him in the face of great personal demand. He took care to acknowledge the emotional impact his decision would have on PH’s partner, gently honouring her understandable wish to continue encouraging him to accept intensive care treatment if required, whilst simultaneously affirming that this decision must ultimately remain with PH alone. In this I was reminded of the socially constructed nature of decisions and decision-making: the ways in which all our beliefs, values, judgments are founded on and actively shaped in the context of the relationships we experience. I wondered how this might feel for PH’s partner, connecting with my own experiences of how heartbreakingly difficult it can be to stand alongside someone you love whilst they make (and bear the consequences of) a decision you wholeheartedly wish could be different. I wondered whether she would be able to join PH in celebrating the affirmation of his autonomy, or whether this would be too much to ask of herself?

Dignity: the state or quality of being worthy of honour or respect

Justice Hayden made particular reference to the role he perceives control to play in PH’s relationship to care and treatment. He noted that many of the challenges he had heard about over various hearings relating to PH’s care and treatment have been ways in which P has “sought to exercise the very limited control he still has” for example, whether to eat, whether to accept treatment.

I found myself wondering if use of the word “control” brings an (unintended) negative valence. What if, in place of control, we centred dignity as the driving factor for PH? Being in control of our bodies- what and when we eat, how and when we use the toilet, what touch we accept and decline – these are all examples of things we learn as we develop, and fundamentals we expect to be protected to support our dignity. Yet they are all decisions that can be taken away from a person who is deemed to lack capacity. Viewed through that lens, is it surprising that PH would resist perceived restrictions in an effort to retain emotional/psychological dignity where personal/physical dignity has been lost?

The respect offered by Justice Hayden to PH was evident. PH was spoken of as an equal; a man who could enjoy the satisfaction of his football team having recently comprehensively beaten that supported by Hayden J (a moment of banter which Hayden J relayed with sanguine grace!) I felt the depth of respectful compassion offered in the language with which Justice Hayden relayed his conversations with PH. Whilst ex temporejudgement must clearly have been expected in such a situation, I was also struck by the respect this offered PH: he would not be left ‘in limbo’ awaiting a reserved judgment about his life at a time when, should his condition deteriorate, his life could easily hang in the balance.

I was also struck by the respect offered to the health professionals involved. Justice Hayden has previously spoken in strong terms of the failings he has observed in the process and delivery of PH’s care by the healthcare organisation involved. It was therefore heartening to see that balanced today with praise for the intervention and leadership now being offered by an experienced Psychiatrist (acting as de facto clinical lead) and for the close liaison he observed being in place now between psychiatry, respiratory and intensivist specialities. Hayden J commented on the ‘…heavy professional commitment…’ from all clinicians and indeed legal representatives, which along with the use of virtual platforms, had made it possible to deal promptly with the urgent issues raised and to include PH in the process. He made reference to health professionals appearing in ‘scrubs and hoodies’, with the days of consultants appearing in court ‘wearing bow ties’ being a thing of the past. It struck me that there was an important message implicit here- that decisions should not be made based on such superficialities that might tend to imply expertise, privilege or importance, but rather that we should all be attending more closely to what that person can bring and share with the court. I wondered if this might also go some way towards more clinicians feeling able to offer opinions to the court; removing the pomp and circumstance serves also to remove the intimidation factor that deters so many.

Autonomy: freedom from external control and freedom to exercise choice

Hayden J was at pains to robustly emphasise that this was not a case in which he had any doubt about PH’s capacity to make his own decision: ‘..this is not a case in which we are relying on the presumption of capacity…. It’s not that I’m not satisfied that it’s been rebutted. I am satisfied that PH is fully capacitous to take his own decision as to whether or not he moves to the ICU”.

Celia and I reflected afterwards how relatively rare it is to observe a hearing where P is deemed to have capacity for a decision of this magnitude/importance. (There is another such judgment here.) In this case, it seemed there was little challenge to the presumption of capacity from any parties.

Whilst brief mention was made regarding whether the inherent jurisdiction of the COP might apply, this was raised with little conviction, and as noted it was promptly set aside by Justice Hayden with the wonderfully succinct line ‘the inherent jurisdiction is a very narrow strip of land’.

I wondered how the experience of previous hearings in front of Hayden J relating to PH had influenced the approach of the healthcare provider: were they now experiencing a sense of lost autonomy having been so comprehensively examined and instructed to action by the court? I wondered if this had helped develop a greater awareness (at an organisational level) of PH’s experience of lost autonomy; I certainly hoped so.

We understand that the judgment will be published on BAILII and will link to it from this blog when it’s available.

Dr Gaby Parker is a Consultant Clinical Neuropsychologist with Central London Community Healthcare NHS Trust, and has an independent medicolegal practice with Allied Neuro Therapy Ltd. She has a specialist interest in complex interdisciplinary community neurorehabilitation and mental capacity following acquired brain injuries. She tweets @gabyvparker

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

^[1] We are not permitted to audio-record hearings, so quotations are based on notes taken at the time and are unlikely to be verbatim. They are as close as possible to what was said.

A judicial U-turn? From ‘no contact’ to ‘main carer’

By Jenny Kitzinger, 28th October 2021

At an emergency hearing on 24^th September 2021, His Honour Judge Tindal issued an injunction against Miss F preventing her from having any contact with Mr G (Case 13382192).

Miss F, previously described in court as Mr G’s ‘ex-partner’, had not seen him for the 20 months he had been in a care home and “I didn’t know whether he was alive or dead and I made a lot of effort to try to find him”.

At the hearing I attended on 21^st October 2021, just four weeks later, not only was the injunction from September lifted, but the court encouraged Miss F to have as much contact with Mr G as possible and to liaise with healthcare services. There was even discussion of marriage and the judge referred to Miss F as Mr G’s ‘carer’ and as his ‘fiance’.

This was one of the most surprising and rapid twists in any Court of Protection case I’ve followed. This blog explains what happened.

In presenting this account of the hearing I have two main aims.

First, I want to demonstrate why the judicial U-turn on the injunction was consistent with the general direction of travel in the series of hearings about Mr G I’ve observed. The change of tack to allow (indeed actively encourage) Miss F’s involvement in Mr G’s life was in keeping with a consistent effort by the judge to take account of Mr G’s own expressed wishes; to balance his liberty and his safety, and to pragmatically trial possible ways forward on the basis of the evidence available to the court and in discussion with the parties involved about the options available at any particular time.

Second, by reporting on the way the issues were addressed in the hearing I hope to shed light on how the court operates and how decisions are reached in practice. There are multiple decisions relating to s.21A in the Court of Protection every week (some of which result in published judgments – but most do not). My aim here is to explore how evidence is teased out and options explored through the process of a hearing – a process which is hard to deduce from review of published judgments written up after a final decision has been made.

The hearing

Mr G has vascular dementia, frontal lobe damage and multiple health issues. He has been previously deemed to lack capacity in relation to residence and care and was (until very recently) detained, against his will, in a care home. (Some of the complex history of this case is outlined in previous blogs here, here, here, and here)

This latest hearing that I attended (on the 21^st October) was just one of half a dozen I’ve observed about Mr G over the last year or so

This was a hybrid hearing. The judge was present in court, as were Miss F, Mr G and counsel for Mr G via his litigation friend (Rosie Scott). (Note: Mr G has been deemed to lack litigation capacity so instructions to his counsel come from the Official Solicitor (OS) – and the OS represents Mr G’s ‘best interests’ as opposed to him per se.)

Those who joined remotely included the witnesses and counsel for the Local Authority (Carol Knotts) and counsel for the NHS Trust (not named here as this would reveal the identity of the Trust, which is the subject matter of a transparency order).

This hearing opened with observations from the judge that the unanimous position of the professionals was that Mr G’s trial of living in the community (which commenced just a few weeks ago, on 15^th September 2021) had failed and he should be returned to residential care.

But, the judge said that, informed by information gathering efforts the previous day, there was now a new option to consider: the option of (working towards) Mr G living with Miss F as it had become clear this is what both of them wanted.

This had not been considered before as Mr G has previously been adamant that he wanted nothing to do with Miss F and there were professional concerns about contact in the past.

Prior to a 15-minute adjournment for counsel to take instructions the judge asked the parties to consider a brief return of Mr G to his previous care home (which now only had a place for him until the end of the month anyway) to help assess his best interests in relation to living with Miss F. The judge also wanted a new capacity assessment – and one which specifically addressed his capacity in relation to contact and relationships, and to consent to marriage.

After the brief adjournment for parties to consider their position, the hearing resumed and the court heard from two witnesses: first, the locality manager for the NHS Trust responsible for the District Nursing support for Mr G and, second, Mr G’s social worker.

First witness: NHS locality manager

The evidence from the NHS locality manager, and cross-questioning of her in court, revisited and drilled down into problems that had been discussed at previous hearings (going back to 2019 as well as what had been recorded more recently). There was a great deal of discussion of specific blood sugar readings, Mr G’s failure to cooperate with professionals attempting to monitor his insulin use, and problematic interactions with Mr G and/or Miss F which had led to district nurses either being advised to attend in pairs or not to go into premises to see Mr G at all.

The NHS locality manager was clear that district nurse involvement was of limited use because Mr G resented and resisted their efforts to monitor him. She took a positive view of the potential for a partner’s support to be more effective:

In terms of prompting and supervision, I suggest that could be done by his partner [and this would] reduce his anxiety and agitation…In a loving relationship you would do that as part of wanting [to] care from [for?* ] that person. [*Wording unclear, difficulty hearing due to feedback on this witness’s link]

Second witness: Mr G’s social worker

Mr G’s social worker (the second witness) was clearly troubled by questions that remained about the nature of the interactions between Mr G and Miss F. He testified that in September 2019, Mr G “expressed serious accusations against Miss F of emotional and financial abuse…he felt coercively controlled.” After a brief change of mind (which included apparently a plan to marry Miss F), Mr G had then reiterated these allegations:

“After a series of hospital admissions Mr G then repeated the most serious accusations against Miss F – not only around financial control, but also of physical abuse. He then went to [residential care] [in January 2020] as a place of safety at his own wish because he felt threatened and harassed by Miss F. And he has since then, until recently, said that he doesn’t want to have any contact with her.”

Mr G’s social worker faced a dilemma. He could, he said, either conclude that Mr G’s allegations against Miss F “have all not been true and they’ve been a diversion of his difficulties themselves”; or he could conclude “that there has been coercive control and Mr G’s decision to move back with Miss F is caused by his inability to recall the incidents which caused serious distress in the past.”

The social worker also asked: “What shall the Local Authority do should Mr G repeat any allegations against Miss F?” He went on to comment:

“I honestly can say that Miss F had tried very, very hard in very chaotic circumstances to care for Mr G in the community but at the same time, because Mr G was accessing alcohol at this time, and because Mr G was dependent on opiate medication, the conflicts between both became very volatile.”

Although the opiate medication issue seemed to be resolved, this witness was particularly concerned that alcohol might become a problem again (with all the knock-on effects this has) and he felt Miss F might be ‘over optimistic’ about this.

Mr G’s social worker presented himself as torn about what might be in Mr G’s best interests. He felt that a temporary move back to residential care (against Mr G’s wishes) would cause huge distress. Also, in spite of question marks about their relationship, he saw some benefits of Miss F being able to support Mr G at home. This was because, for example, she would (as she has demonstrated in the past) be willing to call health services against Mr G’s wishes were he to required urgent medical attention.

Responding to his social worker’s evidence Mr G reiterated the withdrawal of his allegations (“Miss F has never been any other than the greatest of support to me”) and Miss F herself asked why the serious allegations made about her had not been fully investigated. Miss F emphasised that “ I make myself open to any scrutiny”. The judge agreed that “you need, and I need, those allegations to be put to you squarely and to make findings on balance of probabilities about whether or not they are true”.

Initially the judge proposed trying to make findings about the allegations during this hearing. However, after a lunch break and an intervention from counsel for Mr G, that was agreed to be inappropriate course of action, as everyone needed time to prepare, and Miss F might want legal representation.

The rest of the court case revisited some reservations from different parties and reviewed possible ways forward. This included detailed discussion of the best way of getting another capacity assessment relevant to the current decisions to be made (and in a timely manner from someone Mr G and Miss F would have confidence in).

There was also extensive questioning of Miss F about the ways in which she was prepared to support Mr G to eat well, avoid alcohol, monitor his diabetes, and whether, if necessary, she would involve emergency services. She confirmed she was committed to this. She declared that abstention from alcohol was a condition of their ongoing relationship and that, in relation to his medical state: “If I am to be criticised for being cavalier or over zealous – it would be over zealous”.

By the end of the hearing there was agreement from all parties about a strategy for assessing capacity and on a further trial of living in the community.

The judgment and future plans

HHJ Tindal ruled that it was in Mr G’s best interests to return to his flat with the support of Miss F and he could also visit Miss F at her home. In order to address outstanding concerns, the plan was that Miss F might be offered some training and that health information could be gathered by the health service remotely (e.g. Miss F supporting Mr G to provide photographs of his blood sugar readings to district nurses). There will also be regular ‘welfare checks’ directly with Mr G by phone.

Another hearing is scheduled for 20^th December 2021 by which time Miss F and Mr G will have had the opportunity to try out this arrangement for about two months. That hearing will determine (a) the facts in relation to the allegations against Miss F and (b) address the issue of residence, contact and capacity to marry based on a new expert capacity assessment.

If arrangements around Mr G’s care break down in the meantime, the case could return to court for an emergency hearing. Judge Tindal emphasised that, in those circumstances, he would not be the judge to hear the case as he was committed elsewhere for the next few weeks.

I do hope Mr G’s case does not come back before the Court of Protection again until HHJ Tindal returns.

Jenny Kitzinger is a Professor in the School of Journalism, Media and Culture at Cardiff University, where she also co-directs (with Celia Kitzinger) the Coma and Disorders of Consciousness Research Centre. She tweets @JennyKitzinger

Restrictions in his best interests? An “awkward interaction” between the Mental Capacity Act and sections 37 & 41 Mental Health Act

By Celia Kitzinger, 26th October 2021

On 8^th October 2021, I was told that the hearing I had asked to observe had been vacated, so I looked for another in a hurry. This one attracted my attention.

I’ve watched District Judge Glassbrook in court before and found him a careful and sensitive judge. Last time it was a covid vaccination case. This time it seemed from the – unusually detailed – list of issues provided in CourtServe that the hearing would be about where the person at the centre of the case, RS, would live and issues relating to deprivation of his liberty.

The list didn’t say whether the hearing was remote or in person, As I don’t live anywhere near Northampton and would only be able to observe the hearing if I could do so remotely, I emailed the court (it was now 9.29am on the day of the hearing) to ask. I received a reply at 9.47am saying that it was a remote hearing via MS Teams, and asked for the link at 9.55. When it didn’t arrive, I assumed (as often happens) that I wasn’t going to receive the link in time for the hearing, but then at exactly 11.00am it pinged into my in-box. I clicked on the link and entered the ‘waiting room’ at 11.01. After eight minutes of staring hopefully at the message, “When the meeting starts, we’ll let people know you’re waiting”, I was admitted to the hearing.

There was no introductory summary (a reminder to counsel – please do these!) and the judge was in full flow as I joined the platform. I gathered from what he said that there had been a request to vacate the hearing based on agreement, but the judge had refused it. He had raised some questions he wanted counsel to address.

This was interesting, since hearings are often vacated – i.e. they don’t happen – because the advocates have got together in a roundtable meeting (often with other key players like doctors, family members, social workers, IMCAs and so on) and agreed on a way forward. My understanding is that they then let the judge know what they’ve agreed and – usually – the judge (in effect) tells them to go away and get on with it.

But in this case, the judge had called them in to court to address the issues he was concerned about.

As I joined, District Judge Glassbrook was outlining these issues to counsel, who were:

Luke Berry of Browne Jacobson for the applicant, NHS Lincolnshire Clinical Commissioning Group
Keri Tayler of No. 5 Chambers for RS (by his litigation friend, the Official Solicitor), the first respondent)
and Kyla Bailey (who I haven’t been able to locate via google) for Lincolnshire County Council (the second respondent).

The issues the judge outlined^[1] were:

Rule 1.2 representative: “The first issue is getting a Rule 1.2 representative and I wanted to know just how long that was going to take. I have a response via Browne Jacobson solicitors on that.” (While watching the hearing I googled “Rule 1.2 representative” and found this: “What is a Rule 1.2 Representative?”)
Capacity for occupation agreement: “The next issue was that RS had been assessed for capacity to enter into a licence – a residential licence – and the point was taken by the parties that there’s an obvious difference between a licence and a lease, and we’re not quite sure what the placement is offering. I’d have thought that would be a quick and easy thing to address, but there we go!” (Another quick google search – feeling very ignorant not to know the “obvious difference”(!) – and I found this: “What is the difference between a lease and a licence?”)
Care plans: “The draft order was based on a care plan, and made reference to a care plan, but I didn’t have it, and I didn’t feel able to approve the care plan without having seen it. I have since received a care plan, but when emails come in, they have to fit in around the rest of my work of course.”
Best interests: “Lastly, I haven’t seen a proper analysis that the placement is in RS’s best interests, nor that it is the least restrictive regime available. I have been referred to an earlier statement from [NAME] which addresses that in a way – but if I may say, ‘in a way’, in that at that time RS was still a mental health patient and the move to a new placement had not yet taken place. I had anticipated an analysis of best interests now that it has taken place. I have been sent a more recent statement from [NAME] which covers some of the restrictions – locked doors and windows, one-to-one support, not going out unsupported and CCTV at the premises. What I haven’t found yet, and I put it that way because I acknowledge it may be in the bundle of 500 odd pages and I just haven’t found it, is why these steps are required for RS and are in his best interests, as opposed to for public protection. Of course, what I have to do is to take account of the Mental Capacity Act, and it may seem a bit strange, but nonetheless public protection is not part of the Mental Capacity Act, so I need to look at this for what is in RS’s best interests as opposed to what is in the public protection. I can understand the current argument that there are only two alternatives – this placement or RS being recalled, having had a conditional discharge. But as I understand it, discharge is conditional upon the present placement, but not on all the restrictions in place, and so I have to look at them in terms of RS’s best interests. It’s also a bit of an odd situation in that the psychiatrist talks about RS possibly regaining capacity. I gather this is more likely to take place if he’s in a quiet and calm environment. I understand he now is in a quiet and calm environment. Of course, if he regains capacity, the jurisdiction of this court, and lawfulness of any deprivation of liberty, falls away. I imagine that I need some recordings of this.”

Then he asked the advocates: “Well, who wants to take up that lot?”

As an observer, I was a bit lost at this point. I’d have liked an opening summary giving me some of the background information I eventually learnt when I received the position statements from the applicant and first respondent.

Background

The position statements I received after the hearing inform me that RS is 34 years old, autistic, with a mild learning disability and diagnoses of an unspecified organic psychosis (“likely paranoid schizophrenia, although in remission”), juvenile arthritis and Crohn’s disease.

He’s been detained under ss. 37 and 41 of the Mental Health Act [MHA] 1983 , but since April 2021 he’d been granted leave (under s. 17(3) MHA 1983) to live at X Home as part of a transition plan ahead of an anticipated discharge.

At the last hearing on 7^th July 2021, the court made final declarations that RS lacks capacity to conduct these proceedings and to make decisions as to his care and residence. (There had subsequently been an assessment of RS’s capacity to enter into a “licence” agreement.)

On 17^th August 2021, RS was discharged from hospital to X Home – subject to conditions relating to his ongoing residence at that particular placement, compliance with his medication regime and activity programme, and ongoing engagement with his clinical team. I think this means that he had been detained under the MHA as a result of a criminal offence (but if so, and what this offence was, what not mentioned in court or revealed in the position statements).

The level of support for RS while he’s in X Home amounts to continuous supervision and control, and he’s not free to leave: this constitutes ‘deprivation of liberty’ under the ‘acid test’ in P v Cheshire West & Chester Council 2014.

My background reading subsequent to watching this hearing (thank you to the lawyers who pointed me in the right direction) taught me that under the Mental Health Act 1983 the Crown Court may impose a hospital order together with a restriction order upon a mentally disordered offender, if this is considered necessary to protect the public from serious harm. This means that the patient is liable to indefinite detention in hospital for medical treatment and can only be discharged by the Secretary of State for Justice or the First-tier Tribunal. Such a discharge can be conditional, which means that the patient remains subject to recall to hospital, as well as to whatever conditions are imposed by the Secretary of State or the First-tier Tribunal. However, it is not permissible for any deprivation of liberty under a conditional discharge to be authorised by means of the MHA jurisdiction: separate authorisation is needed from another source (Secretary of State for Justice v MM [2018] UKSC 60 (28 November 2018) (bailii.org), as applied in in Birmingham City Council v SR [2019] EWCOP 28). The courts have since said that the MCA can be used to authorise the deprivation of liberty alongside the conditional discharge, but there remains an issue as to whether the inherent jurisdiction can be used to authorise deprivation of liberty for people who have capacity.

So, the issue before the court is whether it is in RS’s best interests to be deprived of his liberty at X Home, at which he is subject to restrictions including: the front doors being locked (with entrance and exit via a fob), 1:1 support; window restrictors in use on the first-floor windows and CCTV monitoring outward from the doors.

Outstanding issues

There had obviously been some attempt to address the judge’s concerns before the hearing. Under the heading, “Outstanding Issues”, the position statement from the CCG addresses three of the four matters raised by the judge (but not the fourth, best interests):

Rule 1.2 representative: The CCG spells out the problem with naming the Rule 1.2 Representative. It might have been RS’s father, who’d previously been extensively involved, but he’s recently stepped back from an active role due to his own health concerns. And RS has lost the advocate he had in the hospital since he’s now under the care of community mental health, and the referral to a community advocacy service is ongoing. It’s likely to be that person who, once appointed, will assume the role of the r.1.2 representative.

Capacity for Occupation agreement: The advocates had attempted to clarify whether the occupation agreement was a licence or a lease but had not yet determined the matter (“on its face purporting to be a licence agreement, the Court will be aware that it is not always what the agreement states which is determinative”). The problem is that “the capacity assessment made in respect of the licence may need to be reviewed if it is determined that the agreement is in fact a lease”. (At this point I am forced to conclude that I may lack capacity to sign either a licence or a lease, since I am struggling to get my head around the difference between the two. I understand there’s quite a bit of confusion about this in social care too (TheRealTenancyTestFINAL.pdf (ndti.org.uk))

Care plans: The CCG said that “further time” was needed to finalise the care plans.

It was the issue of why it was in RS’s best interests to be deprived of his liberty to the extent that he was that preoccupied the judge at this hearing.

Why are these restrictions required?

District Judge Glassbrook said that he recognised that there were only two options for RS: either he lived in X Home, or he returned to hospital. “But I’m not talking about one placement compared with another. I’m asking why these restrictions are required.”

Counsel for the CCG said that the need for the restrictions had been dealt with by one of the treating doctors in her statement, under the heading “Risks and Care Needs upon Discharge”.

“I simply don’t have the time to read 571 pages of bundle”, said the judge. “Where does it say he needs the front and rear door locked, and the garden surrounded by a six-foot fence? Where does it say it’s in his best interests not to be able to leave the premises unescorted, or to have window restrictors, or external CCTV?”

Counsel for the CCG referred to a paragraph in the witness statement (which I didn’t have) and quoted something about RS being a “vulnerable adult needing one-to-one supervision because of anxiety”.

The exchange continued like this:

Judge: Yes. It doesn’t actually say he needs to be locked up.

Counsel: I accept that.

Judge: One of the reasons I wanted this hearing is, if we can identify gaps we have

the opportunity to fill them before the final hearing. Because otherwise we

come to the final hearing, I ask the question, everyone shrugs, and we’ve

wasted time.

Counsel: We have the opportunity to remedy this.

Judge: There’s analysis that he needs care and support. I don’t think that’s

controversial. We’ve got evidence that in fact we have restrictions on his

liberty – locked doors and so on. What I’ve not seen is that we need those

restrictions, or more to the point, that RS needs those restrictions on his liberty.

Counsel: Yes sir, I accept the point. I have to accept the point on the evidence that

is currently before the court.

Judge: That begs the question, if I haven’t got the evidence, as to how it is that you

say I can authorise those restrictions.

Counsel: Because there’s evidence of the need for care and support in the matter, that

is provided.

Judge: But there’s not. Correct me if I’m wrong. We’ve got evidence that he needs

one-to-one support. That’s not controversial. We’ve got evidence that he’s got

one-to-one support. But you don’t need necessarily a locked door to have

one-to-one support. So where is the evidence of a need for a locked door?

And if we don’t have that evidence, how is it that the applicant says I should

authorise it?

Counsel: The difficulty is that the locked-door placement is the placement in which RS

is currently settled.

Judge: So how it that you say I can authorise this gentleman being deprived of his

liberty at the moment?

Counsel: We say it’s on the whole of the evidence of the consultant psychiatrist, and

indeed [NAME].

Judge: Can I say that doesn’t do the job, saying ‘read the statement’. What I need

isn’t so much saying ‘there are whole statements from people’. What I need is

content within the statements that addresses deprivation of liberty. And if I

can remind the parties, one of the purposes of the Court of Protection is to

ensure that those who are deprived of their liberty are so deprived on proper

grounds, with the least restrictions required for the individual. I stress that

because, unless you’re going to tell me otherwise, I don’t see that public

protection, admirable though it might be, falls within the Mental Capacity Act.

Keri Tayler (counsel for RS by his litigation friend the Official Solicitor) intervened to say:

“I don’t know if I can assist at this point. I think what the court’s hit on, and maybe something the parties haven’t addressed their minds to sufficiently before the hearing is this. He’s been discharged to a placement by the Ministry of Justice that amounts to a deprivation of liberty that, according to current wisdom, only the Court of Protection can authorise”.

The judge asked where the warrant was in the bundle and read out part of it. It was clear that RS had been given a “conditional discharge” from the hospital and that one of the conditions was that he “must reside at X Home or other 24-hour accommodation as directed by the responsible clinician”. The judge read out further conditions: “not to move accommodation without agreement… must comply with medication and take part in activity programmes”. Looking up from the paperwork, the judge said, “There nothing I can see in that saying the doors must be locked. Locking of doors is a matter for the Court of Protection. So where does that take us?^[2]”

Keri Tayler said, “I think the difficulty is that RS is not the only patient at X Home”.

Nonetheless, said the judge, “The Court does not have the power to deprive RS of his liberty unless it is in his best interests. Nor does the Ministry of Justice nor the responsible clinician have the power to deprive him of his liberty. The Ministry of Justice, even if they pay my wages, doesn’t have the wherewithal to give me directions on how the Court of Protection is going to behave”.

“No, Sir”, said Keri Tayler: “We’ll have to make some urgent enquiries and come back to court”.

The judge said he found this an “awkward interaction” between the Mental Health Act and Mental Capacity Act, adding: “I can’t say that I’ve got huge experience with s. 37 and 41 of the MHA. But it does seem to me that situation is not entirely satisfactory”.

He then moved to a discussion of the date for the next hearing: “It would be really handy if we could identify a date within the next month – or to put it another way, it’s absolutely vital that we identify a date within the next month. There was some discussion of dates – and given the pressures on the court it’s likely that only one of current counsel will be available on the date that was finally fixed: 9.30am on Thursday 28^th October 2021. This hearing will focus on “the big issue” (the judge’s words) of whether or not the restrictions on his liberty are in RS’s best interests.

For the period of three weeks until the next hearing, the judge was content to authorise an interim deprivation of liberty – largely (I think) on the grounds that the only alternative available at present is for RS to be recalled to hospital (“and I can well imagine that if RS was able to walk out of the door on his own, that might lead to his recall, but it seems to me that can only be done as an interim measure in, frankly, an unsatisfactory situation”). Keri Tayler pointed that that “this is currently the only available option and the Official Solicitor takes comfort from the fact that he reports himself being quite content and happy where he is. If he were objecting the situation might be quite different”.

At the end of the hearing, the judge addressed me to say that if I hoped to be able to attend the next hearing (which I do!), I should get my request for the link in sooner, as he’d only received today’s request at the eleventh hour.

Judges have often told me that I should make my requests to observe hearings in a more timely fashion. Sometimes they tell me this by way of explanation as they admit me late to hearings that have already started; sometimes the message is in emails explaining why I wasn’t admitted (they got my request “too late”); sometimes, as today, it’s intended to be helpful and supportive so that I don’t miss out on observing a future hearing.

But it’s enormously frustrating because in most cases where judges have told me that they received my request “too late” (or “just in the nick of time”), I’d actually requested the link to join the hearing as soon as the listings were published the previous day. Even for this hearing, delayed by a failed attempt to observe a different hearing, and then by a listing problem which meant I didn’t know whether it was remote or not, there was an hour and five minutes between my request for the link and the listed start time. I don’t understand what’s going wrong. (And I thoroughly embarrassed myself trying to explain to the judge what had happened, and can only hope he wasn’t insulted at being told that his hearing was my ‘second choice’ after another had been vacated!)

I do plan to observe and report on the next hearing, and will make sure that it’s included among our “Featured Hearings” on the Open Justice Court of Protection Project home page, with access details, so that others can take the opportunity to observe it also.

And a final note. It’s reassuring to me that, faced with an application to vacate the hearing, DJ Glassbrook was sufficiently careful, and attentive to the lack of evidence on best interests, to refuse it. It may be that, when the case comes back to court, there will be evidence that the existing restrictions on RS’s liberty are indeed in his best interests. But if they are not, I take it that the conditional discharge could be amended to specify a different placement, if a less restrictive one were to be found, and the responsible clinician approved it.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She tweets @KitzingerCelia

^[1] Quotations are as accurate as I can make them, but as we are not allowed to audio-record court hearings, they are unlikely to be verbatim.

[2] My understanding (based on subsequent reading) is that the conditions that amount to the DOL/constitute the DOL cannot be in the conditions of the conditional discharge. That is the whole point of MM. They can only be in a separate care plan that is authorised by the COP.

Photo by Mitchell Luo on Unsplash

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