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 (5th 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  18th 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 12th 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 5th 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 28th 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 28th October 2021) as an ‘urgent’ hearing, it was not an emergency. She’s only 36 weeks pregnant, and her baby isn’t due until 25th 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 4th and 5th 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 17th 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 7thOctober 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 13th 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 4th -5th 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 23rd June 2021 (here) and then by Jennifer O’Neill on 27th 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 13th 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, 29th 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 29th 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 24th 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 21st 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 21st 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 15th 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 20th 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 8th 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:

  1.  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?”)
  2. 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?”)
  3. 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.”
  4. 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 7th 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 17th 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 28th 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

Cataract surgery for a patient who’s refusing it

By Celia Kitzinger, 25th October 2021

A woman in her 50s  (Miss T) has severe cataracts in both eyes and is “struggling” with her vision. But she’s refusing cataract surgery.  

She’s been in hospital for more than a year, admitted under s.3 of the Mental Health Act 1983 following a relapse in her long-standing mental health problems.  She’s diagnosed with paranoid schizophrenia.

She usually lives in low-level supported accommodation with a floating package of support of between three and five hours a week (although she “was not cooperative with it”).  The intention initially was to discharge her home.  That’s also what she wants for herself. 

Until a few years ago, she had a significant amount of independence: she was in a romantic relationship, working in a charity shop, and doing the gardening for the supported living placement.  

Without cataract surgery, it is “very unlikely” that she could return home, due to the level of support and supervision she would need and her reluctance to accept this.  Her social worker, occupational therapist and the care provider have all assessed her as not being safe to return home unless her vision improves.  She’s historically refused to cooperate with care, and has rejected offers of care packages in the past, so simply commissioning a care agency to provide more support is unlikely to work.

Although she denies having any problems with her eyesight, staff have observed her walking into pillars and walls.  There was an occasion when she fell when trying to sit on a sofa due to her poor eyesight, and she’s had difficulty pouring tea.  Left untreated, her eyesight will worsen and she’ll go blind.  

The medical situation has been explained to her many times, and she “maintains a strong objection to undergoing any treatment for her bilateral cataracts”.  When the topic is mentioned ,she often says  “No thank you” or simply leaves the room.  At times she has said she doesn’t “feel ready”, or that her vision will improve spontaneously, or “I don’t mind going blind”, or that she is refusing because she doesn’t want a blood transfusion (it has been explained to her that blood transfusions are not part of cataract surgery).  The Trusts’ view is that Miss T is “overwhelmed by her fears about the surgery as a result of her mental illness”.  According to her sister, Miss T has always taken a long time to come round to anything new: she is “very fearful and extremely resistant to the unknown”. 

So, the court was faced with a person with two incompatible wishes: on the one hand, a wish to return to her home of twenty years and live relatively independently, and on the other, a “consistent and fixed” view that she does not want cataract surgery.   

As the NHS Trusts put it: “The two wishes (not to have the surgery and to return home) are mutually exclusive. It is one or the other”.

The hearing

The hearing before Mrs Justice Knowles (COP 13790122, 9th August 2021) arose from an application by two NHS Trusts: the one currently treating Miss T under the Mental Health Act 1983, and the hospital trust seeking to carry out the surgery.  They were applying (jointly) for declarations that 

  • Miss T lacks capacity to conduct the litigation or to make decisions about cataract surgery; and 
  • that it’s in her best interests to have the surgery – using physical restraint to enable this, if necessary.

At the beginning of the hearing the judge clarified the position on the transparency order (“no identification of the person with whose welfare we are concerned, or anybody belonging to her family, or where they live or where she’s cared for – and the same for her family members”) and checked who was in court: counsel, instructing solicitors, the two witnesses (Miss T’s treating psychiatrist and the ophthalmic surgeon) and Miss T’s sister.  Miss T was not present in court and I later learnt from the position statements that she’d  said she did not want to be involved in the hearing.

The judge then checked her understanding of the position taken by the Official Solicitor (Nageena Khalique QC) who was responsible for representing Miss T’s best interests.

Judge:  The Official Solicitor’s position is about capacity?  That P may be capacitous 

              and, to put it bluntly, making an unwise decision?

OS:        Yes – except we also have a question about doing surgery on two eyes at the 

              same time.

Judge:  The surgeon deals with that in his statement.

OS:        He says it’s for expediency.  We just want to be clear about the benefit of this 

              as against having one done, and then Miss T can recognise the benefit before 

              the next one.  And, also, to know there isn’t a high risk of damage if they’re done

              at the same time.  This operation isn’t usually done on both eyes at the same time.

There was then a very useful summary of the case “for the benefit of observers” from Rachel Sullivan (counsel for the Trusts, instructed by Olivia Gittins).  She ended by saying that Miss T’s cataract surgery had been provisionally booked for 1.30pm on the afternoon of the following day, pending the outcome of this hearing, and that there was “concern that if the operation doesn’t go ahead in that slot, there may be some delay before it can be rescheduled”.  (My understanding was that the delay is in part due to Miss T refusing to have the covid swab, necessitating special arrangements for surgery.)

We then heard from the witnesses, and from Miss T’s sister.  

Throughout the hearing, the judge intervened quite frequently to clarify certain points or to comment on issues that had been raised.  Having watched more than 200 Court of Protection hearings so far, I am beginning to get a sense of the different ‘style’ of the various judges.  Compared with others,  Mrs Justice Knowles seems to me to exercise more ‘control’ over what happens in her courtroom (in a relaxed, confident and engaged way) and to be more actively engaged in eliciting the information and the evidence she needs to make the decision before her (where others seem to be passively waiting for counsel to deliver).   She is far more interventionist than some judges – as she herself suspects:

“What those who appear in front of me think is anyone’s guess though I suspect they might say that I interrupt counsel’s submissions too readily with questions and suggestions. That’s a style honed by the inquisitorial function of tribunals which I’m not sure I’m prepared to surrender readily.”  (Mrs Justice Knowles)

The judge’s ‘style’ may be apparent from this report.

Witness 1: Consultant Psychiatrist and Responsible Clinician

The consultant psychiatrist responsible for Miss T’s psychiatric care gave a detailed and comprehensive account of what she knew of her as a person.  She described her as “a very dignified and private woman” who is “very frightened about something”, but she has never been able to discover the source of her fears: “that part of her experience is quite closed off to me”.

The psychiatrist described Miss T’s behaviour at home before her most recent admission: “She barricades herself in her home, she stockpiles dry goods like there’s an apocalypse coming, and she won’t let people into the house – even when the plumbing breaks, she won’t let the plumber in”.  She has no doubt that Miss T wants to return home: “this place is where she wants to live”.

She explained that she’d initially observed Miss T’s problems with her vision – “she had difficulty reaching for her tablets, or finding the door” – and had encouraged her to get it checked out: 

“I offered to give her an examination and she didn’t want one. I tried male doctors, female doctors, senior ones, junior ones; I thought maybe it would feel more normal to go to her GP or to the opticians, so I’d set up appointments and then she wouldn’t go.  Many months later she did go and get her eyes assessed, and I was delighted to find out it was cataracts, because they’re so easily fixed.”

She described how Miss T is now:

“She walks in small steps and bumps into pillars and posts.  But she gets angry if you try to guide her.  I keep up a stream of speech when I’m walking with her so she can hear where I am, but I occasionally say ‘oh, mind the pillar!’ and she finds that very upsetting.  She mostly doesn’t acknowledge there’s anything wrong with her vision.  Sometimes she says she expects her vision to get better.”

Asked whether any other members of the treating team are able to elicit more information from Miss T, she mentioned the Occupational Therapist (OT) who “has a really nice relationship with her”.  

“The OT tried to talk to her about alternatives to surgery – including aids for partially-sighted individuals.  But even when Miss T is well, she’s guarded and suspicious.  And I think the OT doesn’t have expertise in supporting partially sighted people and wanted to involve another member of the team, but Miss T would have none of it.”

The judge intervened at this point to say “We’re running out of focus in terms of your evidence” and asked the witness to provide some information about “the current state of this lady’s mental health right now”. 

“I think she’s currently at her best, but not a totally well person”, said the psychiatrist.

The judge then pursued the question (raised as an issue by the OS) as to whether Miss T has capacity to make her own decision about whether or not to have cataract surgery:

Judge:  Your concern is that her capacity to understand the issues related to cataract surgery is affected by a degree of mental ill health which is not treatable by the medication you’re providing?

Psychiatrist: Correct.

Cross-questioned by counsel for Miss T (via her litigation friend the Official Solicitor), the psychiatrist reiterated her view that Miss T does not understand the information she’s been given about surgery for cataracts (“and what she does understand she doesn’t believe”).

She couldn’t think of any other drug that could help with Miss T’s psychiatric symptoms.  She also described previous occasions on which Miss T had been chemically restrained in order that staff could administer psychiatric medication.

Counsel for Miss T:  Have I understood you correctly? Despite having had lorazepam intramuscularly against her will she has not fallen out – for want of a better expression – with her therapeutic team?

Psychiatrist:  Yes.

A little later the judge took over again:

Judge:  You told me at the start of your evidence that a precipitating event for this latest episode of mental ill health was a perceived threat to the security of her accommodation and you described her independence, and that the flat was something that was very dear to her.  It sounds as though her return to that place remains a goal that she wants to pursue.  Do you think she has any understanding that her eyesight, if untreated, will absolutely preclude that from happening?

The psychiatrist thought Miss T did not understand that she’d not be able to return home if she didn’t have surgery.  She’d earlier described how, when she’d raised this concern, Miss T had brushed it off by saying, “I’ll be fine!  I know my home!”

The judge also asked whether she thought Miss T had capacity to conduct litigation.

Psychiatrist:  No.  I’ve tried to explain to her that a judge would make a decision in a court, and a solicitor would meet with her and represent her in a court.  She said that was not acceptable and couldn’t happen.  I don’t think she can understand, retain or weigh information in relation to this procedure.

Finally, the judge referred to “one final little T I need to cross” – which turned out to be getting the witness to adopt her statement (i.e. the bit that usually happens after a witness is sworn in when they’re asked whether a written statement provided in advance is their statement, whether the signature on it is their signature, and whether it is true to the best of their knowledge and belief).  Somehow that had been omitted earlier (“you weren’t formally asked to do that”).

Witness 2: Ophthalmic surgeon

The surgeon was sworn in (and asked to adopt his statement) and then questioned about the proposed surgery.

He said that bilateral cataract surgery (i.e., operating on both eyes at the same time) is “not uncommon”, that he’d done it before, and that it would be preferable to “putting Miss T through this process twice”.  Surgery is the only chance of restoring her sight.  

He was questioned about the risks involved. There’s a 1% risk of the surgery making her vision worse than it already is and a risk of total visual loss that is less than 0.1%.  General anaesthetic would be necessary because it’s a fine-touch procedure where millimetres make a difference, and if Miss T were not to cooperate during the procedure itself, the results could be catastrophic.

Under cross-examination there was some discussion of the post-operative regime, given that Miss T is likely to refuse eye drops, which are designed to reduce inflammation and provide symptomatic relief for the “scratchy sensation” she’s likely to feel after surgery.  The proposed solution was injection of antibiotics directly into the eye as part of the surgical procedure: “it sounds horrendous”, said counsel for Miss T,  looking rather squeamish, “but it’s obviously necessary”.  

Sister’s views

Although this wasn’t (I think) formal evidence, the judge invited Miss T’s younger sister to “unmute if you want to say anything to me now”.  Miss T’s sister spoke articulately, passionately and unequivocally in favour of surgery for Miss T – and she did so not only on her own behalf but as a representative of other members of the family.

 “We want the best for our sister who’s had a pretty tragic life and whose life has actively deteriorated in the last 15 years or so.  For her to go blind when we’re in a position to restore sight to her just seems absolute madness.  My strong appeal – my sister’s and my strong appeal –  We come from a medical background, my father had cataract operations, we’ve asked family members who’ve had cataract surgery to talk to her and we don’t understand why she doesn’t run towards this very simple, very effective operation with open arms.  It’s part of her mental state.  I’ve tried very gently.  My main objective is to preserve the relationship.  Mostly with me she never discounts surgery, never tells me directly that she refuses to have it.  Invariably to me she says, “I’m on the waiting list, let’s see”.  She can’t make the decision.  She lives in the present.  She won’t make a decision about anything that is going to put her in a state that is going to be different from now.  Having her eyesight restored would be a transformational event in her life.  It would provide more opportunities to enrich her life – like knitting which she can’t do now, no matter what size needles I buy, and simple pleasures like gardening.  I can’t see any reason why this opportunity should be withheld from her, even though – perversely – she’s not agreeing to it.  It’s her mental state, the paranoia, the swirling around in her head.  The way my sister thinks, it’s such a sad and tragic state of affairs.  From the bottom of my heart, I would make the appeal to you that she has this surgery. I really would.”

Closing Submissions

The closing position of the Trusts remained that Miss T lacks capacity to make her own decision about surgery.  Counsel referred to “at least 26 occasions since November 2020 in which the need for surgery has been discussed with Miss T”.

“They reveal a very mixed pattern of engagement and response: in almost all cases she either refuses to accept she has a problem with her eyes, or that she needs surgery.  She minimises the effect of not having surgery, for example on returning home. The reality of the situation is that this is a lady with a lengthy and serious psychiatric history – and, as the psychiatrist has explained, even medicated as best she can be and with her mental health as good as it gets, it’s impossible to be sure that her paranoid thinking is not interfering with her decision-making about surgery.  Something is colouring her refusal, which is marked by extreme agitation and distress. […] We invite you to find that the presumption of capacity is displaced and that it’s palpably in Miss T’s interests for surgery to go ahead.” (Counsel for the Trusts)

The closing position of the Official Solicitor was also that Miss T lacks capacity and that surgery should go ahead in Miss T’s best interests.

“The psychiatrist’s evidence suggests that Miss T has an inability to make the relevant decision because of her being unable to understand the salient facts in relation to the procedure.  The reason for her not being able to understand is her mental disorder, which became extremely clear during the course of the psychiatric evidence and was emphasised by her sister who paints a very vivid picture of Miss T’s health and approach generally to new scenarios and the incredible difficulty Miss T has with engaging in discussions necessary to make certain decisions.  In my position statement I refer, in paragraph 31, to the case of PCT – an old case  but a useful one – to address the question of whether Miss T is refusing to engage in the decision-making process.  She is obviously refusing to engage for example with the fact that if her eyesight isn’t treated, that will have a knock-on effect on whether she can go home.  So, she lacks capacity on this matter and the jurisdiction of this court is available.  The next step is to consider her best interests.  Not going blind is a consideration of magnetic importance.  The Official Solicitor acknowledges that Miss T has expressed an almost consistent wish that she doesn’t want the procedure done, but wishes are not determinative.” (Counsel for the Official Solicitor)

The judge intervened at this point and said:

“In respect of her wishes and feelings, she has two utterly contradictory wishes and feelings.  One is not to have the procedure, and she’s pretty consistent on that.  The second is an extremely strong wish to return home.  Those two wishes and feelings cannot be reconciled, because she cannot return home unless she has the surgery she is so opposed to.  That must affect the weight I give to the wish and feeling about not having the operation.”

Counsel agreed, adding that the Official Solicitor’s concern about having surgery on both eyes simultaneously had been allayed by the ophthalmologist.  

The OS position now was: “We say the benefits are hugely significant and easily outweigh the risks, and we support the application and order that the Trusts seek.”

Judgment

Mrs Justice Knowles took a 20-minute break to prepare an ex tempore judgment.  

Returning to court, she summarised the evidence and found that this was “not a case where a capacitous individual is making an unwise decision”.  Having heard the evidence, she was “satisfied that Miss T lacks capacity to conduct this litigation and to make a decision about cataract surgery”.  

In terms of Miss T’s best interests, she noted Miss T’s “fixed view against surgery”, pointing out that “it is a strong feeling which is mutually exclusive with her strong desire to return to her home”.  As a consequence, “the weight I give to her strong desire not to undergo surgery is outweighed by the benefits of surgery and living independently”. 

The judge concluded that it was in Miss T’s best interest to undergo bilateral surgery, with restraint if needed, as a last resort.

She ended the hearing by saying she wanted to “thank everyone who has worked so hard to try to ensure that Miss T is able to participate in this very difficult decision”, including especially Miss T’s sister for “outlining the very real difficulties that Miss T faces and the need for her to have this procedure to have an improved quality of life”.

The judge indicated that the judgment would be published in due course.

Was it the right decision?

I’ve watched lots of hearings in which judges have made decisions about whether or not to authorise medical interventions for people who don’t want them – including (for people with schizophrenia)  HIV medication, amputation for a gangrenous leg (and also here and here), endoscopic dilatation for a benign peptic oesophageal stricture and kidney dialysis.   Sometimes judges have authorised these interventions and sometimes not: each case is different.  

It can feel wrong to force someone to have medical treatment they say they don’t want.  

It can also feel wrong to acquiesce to someone’s (non-capacitous) wishes, knowing that they will suffer and/or die as a result.

Undoubtedly the easiest solution for the medical team caring for Miss T would have been to accept Miss T’s refusal of surgery – either presuming that she had capacity to refuse, or on best interests grounds (taking full account of her strong views on the matter, and the likelihood that restraint would be needed).  

But accepting Miss T’s stated preference not to have surgery would be likely to result in poorer physical health and reduced life-expectancy for her.  She’d be another number in the statistics for poor health and excess mortality rates among people with mental illness.

Like people with learning disabilities, people with severe and enduring mental illness are at greater risk of poor physical health and reduced life expectancy compared to the general population[1].   Excess premature mortality rates are more than 3 times higher amongst people with mental illness in England compared to the general population[2].

Acquiescence to refusals of medical treatment by people with serious mental illnesses[3] contributes to these health inequalities.  

For Miss T, the authorisation of cataract surgery seemed (to me) the right thing to do.  

I learnt later that surgery had been successful in restoring her sight, that restraint had not been required, and that she was happy to be able to see again. 

Without input from Miss T’s sister who strongly advocated for surgery, and without the endorsement of the court, it’s possible the health care team might have felt it kinder to accept Miss T’s refusal of treatment – and there would have been no ‘happy ending’.

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

Photo by Brands&People on Unsplash

[1] These reports from Public Health England document a range of reasons for health inequalities for people with serious mental illness: they include wider social factors such as unemployment and poverty, increased behaviours that pose a risk to health such as smoking and poor diet, lack of support to access care and support, stigma, discrimination, isolation and exclusion preventing people from seeking help and “diagnostic overshadowing” (misattribution of physical health symptoms to part of an existing mental health diagnosis, rather than a genuine physical health problem requiring treatment).

[2] NHS England guidance, Improving physical healthcare for people living with severe mental illness in primary care sets out what good quality physical healthcare provision in primary care must include. A Kings Fund report Bringing together physical and mental health sets out what an integrated approach to physical and mental health would look like for people with mental illness.

[3] Van Staden CW, Kruger C. Incapacity to give informed consent owing to mental disorder. J Med Ethics. 2003;29(1):41–43. doi:10.1136/jme.29.1.41; Kontos N, Freudenreich O, Querques J. “Poor insight”: a capacity perspective on treatment refusal in serious mental illness. Psychiatr Serv. 2016;67(11):1254–1256. doi:10.1176/appi.ps.201500542

A trial of living at home – a “suspended sentence” of returning to care

By Jenny Kitzinger, 20th October 2021

Mr G desperately wants to live in his own flat – but this option is hanging by a thread.  

After a series of court hearings at which he challenged his “detention” in residential care (via s.21A of the Mental Capacity Act 2015), he finally moved back into his own home on 15th September 2021. 

But within a fortnight, his case was back in court for an emergency hearing after the professionals charged with supporting him in his own home raised concerns that it was unsafe and unsustainable. 

The hearing I observed (Case: 13382192 before His Honour Judge Tindal), was on 30th September, 6 days after that emergency hearing. It addressed two key issues. 

  • The first issue was an injunction that had been taken out against Miss F, Mr G’s ex-partner (or possibly his current partner, definitions of their relationship varied). 
  • The second issue was whether Mr G should be immediately returned to the care home.

In this account I use extensive quotes from the hearing (written up as accurately as possible given that recording is not allowed). I do so in order to show how interactions in court (especially between the judge and Mr G and Miss F), were navigated in this difficult case in an attempt to achieve a positive and sustainable way forward and to reach a best interests decision in accordance with Mr G’s own wishes and goals.

Background

Mr G is a 64-year-old man with vascular dementia and frontal lobe damage, alcohol dependence syndrome, opioid dependence and insulin-dependent Type 1 diabetes. He’s been deemed to lack capacity to make decisions regarding his residence and care – but he has consistently disputed this assessment. As he put it in this hearing:

 “I was taken into care erroneously. I believe that I have a small degree of impediment regarding my short-term memory. It does not ever interfere with my life, behaviour or quality of life.“

I’ve been following Mr G’s case for over a year. The case has a long history, first coming before HHJ Tindal in early 2019. A previous attempt to support Mr G to live in the community failed in early 2020, a few months before the first hearing I observed in the current series. 

I’ve blogged about some of previous hearings here, here and here. In my previous reports, I’ve charted a whole raft of challenges that have complicated and delayed this decision-making process. These include Mr G’s ability safely to manage his pain medication and diabetes, issues around trialling different approaches to his medication which might be easier to manage ‘in the community’ and problems coordinating a suitable care package to support his move home. Once these challenges were overcome, there remained delays in sorting out probate on his mother’s flat and transferring the property and lease into his name so he could make this his home on leaving residential care. 

In previous hearings I attended it was clear that the judge was doing everything within his power to help these matters progress in a (more) timely manner. For example, he adopted various strategies to try to nudge on the housing access issue; this included, at the hearing on 2nd August 2021, recording a “degree of judicial exasperation” about the behaviour of the landlord’s agent, suggesting weekly updates on progress about transferring the lease (in an effort to focus their minds) and giving permission to release the court order to the landlord’s agent. He also stated that, if there was no progress, he might issue a witness summons administratively based on an email application for this (“I can’t issue a witness summons yet as I don’t know who I’m summonsing”).

The judge had also been very critical of problems with coordination between organisations that were (or could become) responsible for supporting Mr G. After initial problems with what the judge, called “turf wars”, the professionals across health and social care had (according to the Official Solicitor) made ‘Herculean efforts’ to work together to create a viable discharge plan and it was clear that members of the care and district nursing team had also gone to considerable lengths to support him since his return home.

Sadly, however, Mr G’s move home did not go smoothly. Within days, professionals were reporting concerns about his drinking and about the  management of his medication and diabetes. This raised alarm bells because his specific health conditions mean that without careful management of his diabetes he is at high risk of ketosis and death. 

Miss F, was also spending time with him in the flat. In previous hearings she had been discussed (including by Mr G himself) as someone who added stress to his life and whose presence correlated with greater instability and drinking alcohol.

Interactions with Miss F at Mr G’s flat led to the community nursing team being instructed by their management not to enter if she was there. This means they were sometimes unable to oversee and monitor his use of insulin.

As a result of these concerns there was an emergency hearing on 24th September 2021. But the judge declined to make a ruling because Mr G, due to technical difficulties, was unable to join the hearing online and the judge was unwilling to make a decision in Mr G’s absence and without him being able to contribute to the discussion.  

The judge did, however, use his power to grant an injunction against Miss F, forbidding contact with Mr G in the hope that this would remove one potential obstacle to the care professionals being able to support him to live (safely) at home, and hence support and ensure compliance with the court’s best interests decision.

The hearing on 30th September 2021

The hearing I observed on 30th September was a hybrid hearing. Mr G was physically present in the court, as were the judge, Miss F, and the sole witness in court (Mr G’s social worker). Joining remotely were: counsel for Mr G (Alexis Hearnden); for the Local Authority (Carol Knotts) and 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).

Part 1 of the hearing: The injunction against Miss F

The hearing started with a discussion about the injunction forbidding any contact between Miss F and Mr G (who, at this stage were seated on different sides of the court room). 

Before hearing what counsel had to say, the judge started by reassuring Miss F that:

 “No one is in trouble. You’ve been served with an injunction but…this is not about an allegation that you’ve broken the law. I felt the injunction was necessary to protect Mr G from a situation that was bad for him”.

He then reminded Mr G that he’d authorised his return to his flat subject to a number of conditions which included not having contact with Miss F. He’d done that because he had come to the view that: 

”Association with Miss F was not healthy for you. It brought about an unstable situation. I’m doing my best to sound neutral. It’s a chemical reaction, not that Miss F is exploiting you, it is how the two elements combine”. 

He also acknowledged that Miss F has submitted a position statement and promised to hear her perspective.

The judge then invited counsel for the Local Authority to explain their concerns. Carol Knotts reiterated the Local Authority’s perspective on Miss F’s role in Mr G’s life. She said, ‘when in her company in the community, it would appear there are episodes of drinking’, and that ‘alcohol effects his judgment and ability to manage his medication – with a knock-on effect on his diabetes’’. She concluded: “Contact with Miss F is not helpful in his management of his medication or his drinking’.

The judge then indicated he felt no need to call on counsel for the NHS Trust but stated that he would himself read out part of a statement provided by the community nursing team. He proceeded to read out sections which detailed professional concerns; this included a smell of alcohol emanating from the flat when Miss F was in there with Mr G and her reportedly trying to close the flat door on the community nurse. She was also “verbally rude” in the background and was heard to say: “I told you darling, they are trying to rule you”.

The judge then invited Miss F to “Tell me your take on the situation”.

Miss F protested that what she had just heard was “an absolute distortion of the truth” and that she was very shocked about what had been said about her. (Mr G interjected from the other side of the court room: “I am too”.) Miss F declared: 

“I am speechless and it takes a lot of get me to this point… To suggest he drinks in my presence is the opposite of the truth. I have moved mountains to try to access addiction services for [Mr G] and galvanise him… I have a complete full record of [his] healthcare since July 2016. I have evidence including photographic and video how his health improved.”

She said she was traumatised by “what they [adult social care] have visited on my [pet name for Mr G] and myself. I’m crying because of what he has had to endure.”

At this point Mr G got up and moved across the courtroom to sit beside Miss F and put his arm around her (the existence of the injunction notwithstanding!).

Miss F went on to talk at length about Mr G’s health and detailed how she had supported him through his pancreatectomy, time in intensive care, rehabilitation after his stroke, and his opiate tapering programme. At one point she held up a photograph on her phone: “This is [him] under my care at home, fully absent from alcohol” .

She also recounted tales of multiple encounters with health care professionals – her descriptions of clinicians ranged from the very positive to the very critical, and included accounts of some head-on confrontations as she fought to get what she believed was right for Mr G. She described, for example, how she had given insulin to him in hospital when his blood sugars were very high and she believed the clinical team were failing him and “I am still suffering PTSD from being put in a police car for administering a noxious substance with the intention of causing harm”. She was, she said, never charged and is actively seeking recompense for “the outrageous conduct of various agencies”.

She asserted that “I do not have co-dependency, I am speaking the truth.” and “I’ve never done anything other than promote his good health” and it was entirely wrong to suggest otherwise. 

Judge Tindal allowed Miss F to talk at great length and then commented that he was not going to invite debate about previous events “but you’ve illustrated your understanding of the extent on his health problems.” He also noted that she demonstrated that she was interested in his welfare. While, strictly speaking, the focus was on the injunction:

“Section 4 of the [Mental Capacity] Act requires me to take into account anyone interested in Mr G’s welfare. … What is your view on whether his conditions can (a) be managed safely in his flat and (b) the impact upon him were he required to return to care home?“

When Miss F continued to talk about past medical and care issues the judge gently but firmly invited her to engage with these key questions. She said that a return to the care home would be “catastrophic for his mental health without any access to a family or private life”.

The judge then returned to the fact that the district nurses were saying they would not attend to Mr G if she were present and that “One of your main focuses is what is best for Mr G”. 

”This thought occurs to me – what I might do is if I am persuaded that Mr G can remain at home for a short period of time to see how things go, …One thing I could do is remove the restriction on contact [e.g. by phone] but to maintain the requirement that you don’t visit – simply to enable, to unblock the impasse for district nursing staff to be able to visit….Would you honour that request?”

Miss F confirmed she would.

The judge then invited comment from Mr G who declared at this point ““I love [Miss F] and I want to spend the rest of my life with her ” (A declaration that prompted the judge to comment “that is the first time you’ve told me that”). Mr G continued “I believe she feels the same way. …[I want] to enjoy whatever time I have left with the woman I love. I want to get on with my life. I don’t want to be interfered with by courts, the counsel, the health authority.”. Mr G however, agreed, that he would respect the injunction against Miss F (with the slight amendment proposed by the judge).

The judge then invited comments on his proposal about the injunction with the diverse barristers present. In spite of some hesitancy from them (they reiterated some ongoing concerns about Miss F’s role in relation to Mr G’s current care regime), the compromise way forward was accepted as having merit. The OS highlighted that the new information from Mr G about his feelings for Miss F (which were different from what he had previously indicated) needed to be given weight, but also commented: “You’ve rightly observed the picture you have in court is very different to the evidence you have before you” and expressed concern about the ‘high stakes’ involved given Mr G’s health conditions. The OS however did support a short test period with the revised injunction

The judge responded to the comments from the OS by stating “I’m not making any finding about whether reality is as Miss F puts it or as professionals put it” and then made a short ruling.

“This is the first time I’ve met Miss F and she gives a very different account than the account given to me before. This is not to suggest professionals have mislead me. Judges are used to not making a decision until everyone has had their say. …The impression that had been created was that the relationship between Miss F and Mr G was complex [with a] correlation between Miss F’s involvement and instability. Another alternative perspective is that there was correlation with professionals feeling Miss F was not helping them achieve what they wanted to achieve. …The impression I am now left with is this. Miss F does not have a huge amount of confidence in the professionals. It wouldn’t therefore surprise me if Miss F and the professionals disagree about certain things. I can see why the two [Mr G and Miss F] are attracted to each other. What Miss F has satisfied me of is she loves and cares for him.

Miss F interrupted at this point to declare: ‘wanting him to be safe, but also wanting him to be free”.

The judge went on to rule that it was in Mr G’s best interests that the injunction should remain in place in a limited form, prohibiting Miss F from attending the property or seeing Mr G in person, but not restricting other contact (e.g., by phone). Compliance with this injunction was, he emphasised, a way of allowing the district nurses to visit and he took Miss F’s commitment to complying with the injunction “as a further example of Miss F putting Mr G’s interests before her own.”

Given Mr G’s express wish to see Miss F, the judge also requested that a capacity assessment should be done on Mr G’s capacity to decide on contact and relationships for himself.

Miss F was then invited to leave the court room.

Part 2 of the hearing: Mr G’s place of residence 

The second part of the hearing addressed the question of whether Mr G should be returned to the care home.

The focus was on the extent to which Mr G was, or was not, abiding by the four key pre-conditions that had enabled the judge to feel he could authorise a safe return to the community. The four pre-conditions were that Mr G would not see Miss F, that he’d manage his pain medication appropriately, abstain from alcohol and permit district nurses to monitor his diabetes management.

The first pre-condition, not seeing Miss F, had obviously not been met but concerns about that were, the judge hoped, resolved at least in the short term. However, there were also question marks around Mr G’s compliance with the other three preconditions – particularly in relation to his use of alcohol and cooperation with district nurses.

After hearing from Mr G’s social worker, all three counsel, and Mr G himself, the judge addressed Mr G directly to ask whether he had acted in good faith when he promised to abide by the pre-conditions. “Absolutely sir” came the reply.

The judge then invited Mr G to explain why he’d not kept his promises – and Mr G offered explanations such as saying he had let Miss F into his flat as it would be “ill-mannered” not to have done so, and that he had drunk alcohol out of “curiosity”.

After being given an opportunity to show his understanding of all the pre-conditions and why they had been put in place, the judge invited Mr G to reiterate his commitment to abiding by them going forward.

The judge underlined the importance of Mr G honouring his undertakings. If he were not returned to the care home immediately today then he might like to think of this as a “suspended sentence’”.

The judge then invited final submissions.

Final submissions and judgment

Counsel for the Local Authority emphasised that “we’ve had promises before” and that “any drift in the perspective of what was required is in his [Mr G’s] own mind” and emphasised the risks of leaving Mr G in his own home. This position was supported by counsel for the NHS Trust: in their view, it was in Mr G’s best interests to be returned to his care home immediately.

The final position statement from the OS, however, supported a short further trial period at home. Although “mindful of the strength of concerns’ in witness statements “the balance comes down in favour of a final effort [to support home living]” given the strength of Mr G’s feelings, the shift in the role of Miss F and the fact that “Mr G has had the opportunity to see how close the possibility has come for return to residential care”.

His Honour Judge Tindal then gave oral judgment. Mapping out the long running chronology and the legal principles he emphasised that “I am on a personal level massively disappointed that Mr G broke his word to me and drank.” And underlined the risks: “If he carries on drinking he could go into hospital and die” . He concluded, however, by ruling that Mr G could stay in his own home, for now, but “If he breaches his word to me again, he will be going back to the care home”.

In his judgment the judge acknowledged the stresses on staff (especially during a pandemic) and the difficult situation he was placing them in. He made clear that if Mr G were to suffer a major medical crisis during the continued trial period at home, then ”the person who takes responsibility is none of the professionals, it is me… They will do everything they can. But they can’t do everything. They must not feel they are under any legal pressure regarding risk management. If things go wrong this is on me, not on them”

He concluded by expressing the hope that if things went more smoothly over the next couple of weeks, then “ the legal proceedings might be finished in a few months’ time and it would be possible to see the last week or two as simply teething troubles”.

Postscript – the “candle of optimism” flickers

Since drafting my account of the hearing on the 30th September 2021, the case has returned to court. On 13th October 2021, I observed a hearing that highlighted ongoing concerns from healthcare professionals about alcohol use and a lack of cooperation with the district nurses. 

In court, Mr G responded by accusing the professionals of “duplicity” and “lies” – “I have not drunk a drop”. It was also, he said a “nonsense” to have district nurses visit him, as he could manage his diabetes perfectly well without them.

The position of the Official Solicitor by 13th October 2021 was now to agree with the Local Authority and the NHS Trust that Mr G should be returned to the care home. 

There was, however, no time to hear the evidence – and also some new evidence had yet to be filed due to what the Local Authority referred to as the “rapidly evolving situation”.

The judge emphasised that the information discussed at this point was “information” not “sworn and tested evidence” but expressed his deep disappointment: the “candle of optimism” was flickering.

A further hearing is scheduled for 21st October 2021.

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