A COVID Vaccination hearing: Observations of an aspiring medical student

By Eloise Crang, 19th October 2021

I’m a medical applicant, currently sitting my last year of A-levels studying Maths, Chemistry, and Biology, so I was delighted at the opportunity to observe a real-life medical ethics case in play. Having mainly read about these sorts of scenarios in medical books, or when revising for the situational judgement test in the UCAT (university clinical aptitude test), I was keen to watch what actually happens in practice.   

The case I observed, COP 13364813 before Sir Jonathan Cohen, concerned issues of capacity and whether or not to administer a COVID-19 vaccination to a woman in her late 80s, GA.      

Even before observing the case, I thought I had already made up my own mind as to what should happen: of course being vaccinated would be the best option for a clinically vulnerable person. However, through hearing the barristers’ different positions, and the arguments of GA’s son, I began to realise how nuanced this case was when you consider all the variables. Through having the opportunity to see it play out in this case, I now also understand what ‘best interests’ means in the Mental Capacity Act 2005.

Prior to this hearing I had never attended court (either virtually or in person), so I was unsure about what to expect. It was fantastic to be supported by Claire Martin, a member of the core group of OJCOP and a family friend, who acted as a mentor to explain legal jargon and summarise what was being said.  She helped me to feel less intimidated. 

I noticed how the judge let GA’s son speak about everything he wanted to, and how important this was as it was clear he felt his voice and opinion had been dismissed previously. (It had been decided that he lacked capacity to litigate.) I had no idea that family members were able to input as much as GA’s son did. Throughout this hearing, he was becoming increasingly distressed at the fact that he no longer held Power of Attorney for his mother, it having been determined at a previous hearing (in February 2018) that his mother “lacked the relevant mental capacity at the time, both in respect of property and affairs, and health and welfare” (para. 16) and it being the court’s responsibility to make these decisions in her best interest. 

If GA had capacity to make her own medical decisions, she would be able to choose for herself whether or not to have the covid jab.  But it was agreed that she did not.  Her severe Alzheimer’s dementia meant that she could not understand the relevant information in order to make a decision. 

The term ‘best interests’ was used a lot, which constantly reminded me of the point of this hearing and forced me to consider GA’s perspective and empathise with GA – despite her not attending. 

Section 4 of the Mental Capacity Act (MCA) 2005 says that acting in someone’s best interests means considering their past and present wishes and feelings (especially from when they had capacity) and also consulting anyone engaged in caring for GA and interested in her welfare, so amalgamating the thoughts of GA’s children, the GP and the parties.

Sir Jonathan Cohen said, “the court must make a decision for what is the appropriate action in GA’s best interests, with a wide and holistic consideration including her children”. From every party there was a shared motive: to act in GA’s best interests. From a medical standpoint, this was to protect GA physically, as she is extremely clinically vulnerable to COVID-19, but also mentally, to protect her from the low mood and depression that shielding and social isolation can cause. 

Once Peter Mant, the barrister and counsel for CHC, had proposed the position that it was in GA’s best interests to administer the Oxford/AstraZeneca vaccination at her home, where she already has 24-hour care, he backed it up with four key pieces of evidence: 

  1. P’s undeniable risk of death if she is not vaccinated
  2. the “clear and unequivocal” scientific evidence supporting the vaccine 
  3. no evidence to point towards GA already having COVID-19 antibodies 
  4. her past history of accepting influenza and other vaccinations. 

The latter was the key piece of evidence I found most interesting. From participating in other clinical work experiences, the value of a patient’s history has consistently been hammered home, so I was surprised to hear its use in another context. I had previously associated a patient’s history with recording past health issues that could be a risk factor for a present illness. I hadn’t considered its application in reconstructing the thought paths, values and prior wishes of a patient. At court, it became apparent that her patient history was essential to inform the best interests decision, since it allows the decision-maker to base the decision on the person’s life’s values, wishes and actions. If she accepted vaccinations before, they assumed it was unlikely she would object to this jab. This problem-solving via piecing together information about GA from her medical records and family to try and extrapolate what her thoughts on the COVID-19 vaccinations would have been from her past decisions was ingenious to me.

Exposure, mostly to doctors, had made me view a patient’s best interests as being the doctor’s final call using purely medical facts. Under s.4 of the Mental Capacity Act 2005, it explicitly states not to make assumptions of what a person’s best interest would be, hence the court proceedings and accumulation of evidence to reflect GA as a person, in all elements of physical, emotional and mental health. Encouragement of GA’s involvement with the decision, despite lacking capacity, is highlighted too and was clear when GA’s interest in going to her local Asian sweet shop was considered. She displayed the desire not to be socially isolated, and so an implication of her receiving the vaccination would be to give her this freedom. Consequently, my idea that if someone lacked capacity, they would be unable to participate at all in decisions made about them was contradicted. I learnt that a person may lack capacity to make healthcare decisions, but have the capacity to choose what activities they do on a day-to-day basis and that communication with a patient in a medical and field setting is key to ensuring you understand their wishes and preferences in making a best interests decision.  The court hearing showed me it’s important to go beyond your own opinions of the best medical option to give the best possible individualised care for them based on their wishes and feelings.

GA’s case reminded me of the four pillars of medical ethics (autonomy, non-maleficence, beneficence, justice) and their role when discussing a patient’s best interests. For example, one possible outcome could have been not administering the vaccine, which could run counter to the principle of  ‘non-maleficence’, as her vulnerability to the virus may cause harm, if no vaccine is administered. Another argument used by the barristers was GA’s need to regain some independence and go out in society again, like going to the shops or meeting her grandchildren, which may only be possible with the protection of a vaccination. This attention to detail enlightened me to how thorough the lawyers are, as well as the system more widely, in trying to ensure the best possible care and lifestyle for GA, something which I previously had thought only healthcare professionals prioritised.

GA’s son did not agree with the judgment, although he stated that he might have made the decision for his mother to have the vaccine himself. I understand that he wanted to retain the right to make that decision for his mother himself, and could see why he was upset about this. 

My overall experience at the hearing was incredible. It made me rethink how I viewed ethics and its involvement in medicine. Now I will embark on my medical career with a better understanding of what ‘best interests’ means in practice. Doctors, much like the judge and barristers I observed, have the responsibly to protect vulnerable people in society, and I learnt that prioritising their wishes, beliefs and values before your own opinion is the only way to ensure this protection. 

Eloise Crang is a year 13 school student planning to apply to medical school.   

Photo by CDC on Unsplash

When another assessment is not needed: Best interests decision-making for a patient with a prolonged disorder of consciousness

By Jenny Kitzinger, 14th October 2021

In September 2019, a young man’s car collided at speed with a stationary lorry – leaving him with severe brain injuries. Two years on he remains in a Prolonged Disorder of Consciousness (an umbrella term that includes states previously known as ‘vegetative’ and ‘minimally conscious’). 

The hearing I observed on 7th October 2021 (Case: COP 13820439 before Sir Jonathan Cohen) was instigated by an application from the Clinical Commissioning Group responsible for commissioning this patient’s care. The CCG (represented by Emma Sutton) believed that it was not in his best interests to continue with clinically assisted nutrition and hydration. Nor did the CCG believe that a further assessment of his level of consciousness was needed. The CCG’s position was that it was in the best interests of this young man (referred to as “ED”) to now be moved to a hospice for end-of-life care.

The first respondent in this case was ED, whose best interests were represented by the Official Solicitor (OS)  (Fiona Patterson). The preliminary position of the OS was to support the CCG’s position, pending hearing oral evidence.

Both his parents (who separated some years ago) were also parties to the case:

  • ED’s mother (a litigant in person) supported the CCG’s application
  • ED’s father (a litigant in person) opposed the application, arguing instead that his son should have further structured assessments, specifically another ’SMART’ test[1]

In addition to the parties, ED’s treating physician and an independent expert in neurological rehabilitation were also in court. 

The hearing was listed to last for one and a half days.

The hearing

A strong sense of ED as an individual was conveyed from the outset of the hearing – not least because of the letters from family members about him which had been submitted to the court. The judge went out of his way to comment on how much he appreciated the thought that had gone into these statements (and in the case of ED’s sisters “the shafts of humour”) that “have helped build a picture of a very impressive young man”.

ED was in his 20s and had, before his injury lived with his mother and stepfather. He was humorous, hard-working, set himself high standards and was very ambitious and successful at work. He was also physically fit and a keen sportsman: we heard that a photograph of him in his rugby kit was included in the court bundle and the judge made a point of noting that he was “not only a big fan but also a proficient player”. 

ED was now fully dependent on others for everyday care, with no ability to communicate and no control over his body and he had various complications (including spasticity and reduced control over basic physiological functions such as temperature and pulse rate.) He’d been extensively assessed by experts and had been looked after in a specialist neurorehabilitation centre since December 2019.

There was, the CCG barrister stated, “no real prospect of recovery to a quality of life that [ED] would have found acceptable”. 

It was clear that extensive work had been done prior to the case getting to court (as per guidelines from the BMA and RCP guidelines that you can find here and here). This preparation work included detailed assessments of his condition, collating clinical evidence, collecting information about ED as an individual and running best interests meetings with family members in order to attempt to resolve the case without  the need for a court hearing. 

It was the fact that the father continued to disagree with the best interests decision that had triggered the court application – and the area of disagreement had been honed down such that it focused on one issue: whether or not another assessment was needed.  

The first witness was Professor Derick Wade. He was one of the two independent experts who had assessed ED and reviewed the conclusions drawn by ED’s clinical team and the evidence they relied on.

The two independent experts (normally only one independent expert is commissioned in these sort of cases) had submitted evidence that ED is in a prolonged disorder of consciousness, with no behavioural evidence of self-awareness ever having been seen since the brain injury. There was a consensus between the two independent experts, and between them and ED’s treating physician, about his prognosis.

Professor Derick Wade was sworn in and asked to explain his qualifications and experience in the area and summarise his basic conclusions. He was then cross-questioned first by the barrister for the CCG and then by the barrister for the OS. A clear focus of the questioning was, as counsel for the OS put it, to test “why we can be confident that, to put it in lay terms, ‘no stone has been left unturned’”.

Professor Wade described his role as an external expert as ensuring that “the totality adds up and there are no unusual features”. He outlined the nature of the original injuries to ED, some of the explorations of treatment and tests done on him, and the nature of the care he’d received over the last two years.

We heard that ED had three ‘insults to the head’ from the high-speed collision: firstly diffuse axonal injury from the deceleration, secondly direct trauma to the brain, and thirdly a reduction in oxygen to his brain because of injuries to his chest. Professor Wade commented that the mechanics of injury “obviously don’t directly determine what his clinical state is afterwards, I don’t make assumptions [that these injuries would have inevitably resulted in his being in a PDoC] but I’d be surprised if he weren’t”.

Professor Wade had also looked at earlier structured assessments that had been conducted (SMART and WHIM) and at reports of CT scans. Again stressing that he would never make a diagnosis on the basis of a CT scan alone, he commented that the “CT scan is totally consistent with the severity of the initial injury and what we see”. He had also examined the patient himself and examined day-to-day nursing notes.

Counsel for the OS then asked whether the way in which the patient presented physically gave a steer to his prognosis and Professor Wade highlighted ED’s “autonomic instability” – poor control over temperature, heart rate, and rate of breathing – which, he said, suggested that the hypothalamus (located in a very sheltered part of the brain) had been injured. Close observations of the patient by his family and all the professionals looking after him were also discussed.

This led to a discussion of elements such as startle responses to loud noises or occasional eye-tracking (described by Professor Wade as “when the individual will fixate on something and if you move whatever it is, their eyes will follow it”). Professor Wade commented that eye tracking could be an important prognostic indication early on after injury, for example, “If after 5 weeks they start tracking you can say that this increases the chance they will wake up”. However he stated that brief periods of eye-tracking two years after injury did not substantially alter the situation: it does not indicate presence or absence of awareness, and it is no longer useful prognostically. (Wade referenced his published work on this point which you can read here).

Further cross-questioning explored whether physical disabilities, or depression might significantly inhibit P’s ability to display a higher level of consciousness, and Professor Wade was asked whether pain relief might be artificially suppressing ED’s level of consciousness. He responded:

“If he needs the medication to keep him comfortable then assessing his situation when he is not on medication to keep him comfortable is slightly pointless as that is not how he is going to be. If the medication is not needed then he shouldn’t be on it”

Pain was obviously a particular concern for ED’s mother. Counsel for the CCG reported that ED’s mother said medication for spasms and pain were reduced for the original SMART (and she was opposed to this being done again). Professor Wade responded by commenting that:

 “Reducing medication that reduces pain or spasms does potentially cause harm to the person. I believe he doesn’t experience anything, I do not know that, and if he looks like he is in pain… the clinical team have to treat that.”

It was clear that the harms of conceding to ED’s father’s request for further testing might include ongoing potentially unwanted treatment, and P’s own clinical team were concerned about the possibility of physical deterioration and increased pain (they had already increased analgesia administration in response to increases in agitation). The question was then: what were the benefits of further testing?

Professor Wade highlighted the value of providing additional systematic information at particular points in time and especially if those looking after the patient were not experienced in PDoC. In this case, however, for this patient, at this point in time, given everything already known, and the fact he’d been cared for in a specialist setting, Professor Wade thought that ““you have got more than enough [information] to make the decision that you have to make”. He did not consider another SMART would add anything useful. He commented: 

“The main question is .would knowing the SMART assessment in detail (it’s already been done once) alter the decision? […] What we need to determine is what is ED’s life like now, and that is described in the day-to-day nursing notes and experience that day-to-day clinicians have. Given how ED is and how is life is going to be, what would he have decided? He was not going to decide that on the basis of a SMART score.”

Counsel for the OS asked Professor Wade what the best possible ‘against the odds’ outcome might be for this young man in future. The response was:

“At his best, he wouldn’t be able to undertake any ‘useful’ activities (e.g. chewing, swallowing, interacting with friends/family)….At his best ED might be awake for much longer periods. Localise more consistently, such that he would normally look at someone entering the room. If a conversation going on around him, he might look at the person speaking and then the next person speaking.”

Professor Wade agreed that more time might also mean more deterioration (a major concern for this treating team). He also acknowledged the treating team’s view that ED was needing increasing amounts of more analgesia. He accepted that:

“he is showing changes that are indicative of pain in most people – I’m not necessarily agreeing he is experiencing pain, but it looks like pain and we have to treat it”.

It was at this point that the barrister for the OS alerted the court that she had received an email from ED’s father – and asked for a short adjournment. The judge asked a few questions of Professor Wade himself, and then adjourned.

Following the adjournment, the court was informed that, having listened to Professor Wade’s evidence, ED’s father wished to withdraw any opposition to the CCG’s application

The judge then asked, “Would it be helpful if I made a judgment?” and after a brief period of consultation (e.g. the counsel for the OS checked with ED’s mother), it was agreed that would be useful. The judge made a formal oral judgment approving the CCG’s application. (I’ll add a link here to the written judgement once it is published).

Reflections

Two things stood out for me as an observer – the first was the value of a holistic approach to assessing diagnosis and best interests, and the second was the speed with which the case was resolved in court.

The importance of a holistic approach

In this hearing, the expert witness, Professor Wade, offered a considered discussion of the importance of a holistic approach to determining best interests – taking into account information about the patient from those who knew them before their injury, and information about their current condition. This holistic approach was also evident in the discussion between expert witness, the different parties’ barristers, and the judge.

The value of systematic testing was acknowledged, while also emphasising the importance of looking at clinical information ‘in the round’ without fixating on any individual features of the patient’s behaviours and taking them out of context of other clinical information (or of information about the patient’s likely wishes).

This demonstrated positive progress compared to some cases I observed a few years ago. In the past I’ve attended hearings where instead of talking about PDoC there was a forensic focus on the borderline between VS and MCS – and this sometimes seemed to displace addressing what the patient might have wanted. For example, there were often requests for further refinements/repetitions of tests to see if there might be intermittent glimmers of consciousness, even when the patient had been in their current state for many years and when there was evidence that the patient themselves would not have considered MCS to be a ‘better’ diagnosis than VS or mean there was the possibility of a future life they would have wanted. (See, for example, Cumbria NHS Clinical Commissioning Group v Miss S and Ors [2016] EWCOP 32 and the issues about diagnosis discussed here).

The speed with which the case was resolved in court 

This hearing also demonstrated how useful the court can be in resolving a dispute.

It was clear that considerable discussion had taken place with ED’s father before the hearing, and he had met with his son’s clinical team, had talked with Professor Wade and seen his expert report. So it was a surprise that within an hour of the hearing starting (a hearing scheduled to last a day and a half), ED’s father changed his mind and withdrew his opposition to the CCG’s position. 

I think many of us in court were left wondering why this might have happened. Without hearing from ED’s father himself we can only hypothesis about what influenced him.

It is, of course, possible that the father just found the experience of the court overwhelming and perhaps just thought there was no point carrying on objecting given the consensus from the rest of the family, and all the experts present. However there is no suggestion that was the case, his concerns were treated with courtesy and respect throughout the hearing and the possibility of simply feeling ‘out gunned’ is something that no doubt would have been checked during the adjournment.

If ED’s father did genuinely change his mind about the right way forward for his son (as I think is likely to be the case) then this hearing highlights a valuable role that can be played by the courts where resolution cannot be reached in the clinical setting and makes me reflect on what a court hearing can offer in this situation.

Perhaps he changed his mind because of listening to the expert evidence given under oath in a (virtual) courtroom, rather than in the context of a medical consultation? Or was it perhaps because of the skilled cross-questioning from counsel for the OS and the CCG in which the barristers kept asking for a ‘lay version’ of the information and systematically unpicked concerns. Indeed both barrister and the judge asked for clarification of ambiguous medical terminology relating to PDoCs, such as the difference between “responsiveness” and “awareness”, until they were satisfied with the explanation.

Perhaps what made the difference was the gravitas and expertise of the court or the evident experience and empathy of the barristers and the judge. 

It is possible taking the discussion out of the clinical setting (with whatever history there was between the father and those directly involved in his son’s care) may have been crucial.  Perhaps it gave the father reassurance about independent scrutiny over and above that offered by independent medical experts. Or perhaps what was useful was the fact that the legal hearing process created a very formal framework for decision-making with a very set of criteria for evidence, and, of course, a very real deadline?

I also wondered whether the father may have benefitted from the clear message that the judge was responsible for any decisions made in the courtroom – whereas family members sometimes feel they bear more responsibility for a decision made in an everyday clinical best interests meeting. 

Whatever the reasons for withdrawing his opposition to the CCG’s application, I hope that ED’s father, mother, sisters and others who care about ED can find some peace in this tragic situation. 

The three things I hope that clinicians, and indeed family members, reading this account might take away from this blog are: first, that it is possible for further tests and investigations to be contrary to a patient’s best interests; second, that it is important for proper assessment and best interests decision-making processes to be carried out in a timely manner in the clinical setting (following the guidelines from the BMA and RCP referenced above); and third, that if (after following such robust procedures) there remains doubt or dispute about a patient’s best interests then the Court of Protection should be welcomed and sought out, not feared and avoided.

Jenny Kitzinger is Professor of Communications Research at Cardiff School of Journalism, Media and Culture. She also co-directs (with Celia Kitzinger) the Coma and Disorders of Consciousness Research Centre and runs online training for healthcare professionals about law and ethics. She tweets @JennyKitzinger

  1. SMART stands for “Sensory Modality Assessment and Rehabilitation Technique” and is a standardised assessment for PDoC patients.

Photo by Josiah Day on Unsplash

What happens when Lasting Power of Attorney goes wrong?

By Clare Fuller, 7th October 2021

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

As an advocate for Advance Care Planning and a Lasting Power of Attorney (LPA) Consultant,  I promote the normalising of planning ahead conversations (see Speak for Me LPA).

As a nurse specialising in Palliative and End of Life Care, I have seen first-hand what happens when LPAs are not in place. I have witnessed families in distress when a loved one has deteriorated and, despite having had conversations about end of life wishes, they had not formalised decision making through a Lasting Power of Attorney; families have felt their voice was not heard in decision making.

 A very public example of the challenges faced without an LPA in place is the situation Kate Garraway found herself in when her husband,  Derek, developed COVID-19 and lost capacity to make decisions for himself. Derek did not have a Lasting Power of Attorney in place for the management of Property and Finance, meaning Kate was unable to manage access funds for care or refinance their mortgage, or to manage the family finances, a situation creating enormous additional strain in an already difficult situation. 

From a highly personal perspective I can reflect on the care of my  Uncle as he lost capacity  and the benefits of having both a Health and Welfare and a Property and Finance LPA in place. In my Uncle’s case we were able to make decisions for him, knowing well his wishes, values and beliefs; this meant he was able to spend precious time in a home where he felt safe and happy. 

In the Court of Protection recently, I observed what can happen when a person who has since lost capacity has appointed an LPA (for both Finance and Property and for Health and Welfare) but it’s not working well.

The hearing

The case (COP 13339015) was heard over three days (27-29th September 2021) before District Judge McIlwaine at Lincoln Family Court. It was a ‘hybrid’ hearing, i.e. one of the nine parties to the case was present in person, and the other eight attended remotely (in some cases from overseas).   I was able to observe the final two days of the hearing (via video-link), and received helpful notes from Claire Martin who observed the first day of the hearing.  There had been an earlier ‘directions’ hearing, blogged about by Claire Martin.

This was the third time I’d observed a hearing in the Court of Protection, and I felt more confident in knowing my role as an observer and how best to prepare. I’ve previously watched a hearing focussing on LPAs across borders and  in July 2020 bore witness to a young woman’s application for the court to rule on her capacity to make her own decisions about a feeding tube when she was dying from Anorexia Nervosa. 

Once I received confirmation of attendance I requested a Transparency Order and a Position Statement (from the only represented party), which enabled me to understand the key issues before the court. 

 I’ll refer to the person at the centre of the case as Mrs P.  She has advanced dementia and lives at home with her daughter (and LPA), BR.   The parties were: 

  • the applicant (BR) – Mrs P’s daughter and the person she had appointed as her Attorney both for Property and Finance and for Health and Welfare.  
  • BR’s husband.
  • BR’s five brothers and sisters.
  • Office of the Public Guardian, represented by Alex Cisneros  (the 8th respondent).
  • BR’s son was also in court as a McKenzie Friend.  

The key issues were:

  1. The amount of remuneration for gratuitous care provided by the applicant BR to Mrs P – both the care already given from 2014 until now, and in the future.  “Gratuitous care” refers to the unpaid support BR has given to care for her Mother, Mrs P, this includes helping her with all activities of day to day living.
  2.  Whether to authorise £21,649 from Mrs P’s account to extend the garage at BR’s house to create an additional bedroom for a carer to stay overnight, and to enlarge the existing bathroom area for Mrs P.
  3. Whether to retrospectively approve the £25,490 that BR used to purchase a car using Mrs P’s finances.
  4. Whether to revoke BR’s Property and Finance Lasting Power of Attorney and appoint a panel deputy instead.
  5. Whether to make some form of order or declaration regarding the contact that Mrs P has with her family. 

The case was highly complex and unusually involved eight litigants in person.  Although there was a lot of argument about money, what seemed to lie at the heart of the case was the issue of contact.

 Basically, what had happened was that Mrs P was living with BR and her husband.  BR was caring for her (with some paid assistance), and making all the decisions about Mrs P’s finances and her health and welfare, as she seemed entitled to do by virtue of her role as Lasting Power of Attorney.  The other members of the family (other than her husband, who supported her throughout) felt excluded from involvement in Mrs P’s life.  BR was preventing them from visiting her at her home, and there had been difficulties with arranging to meet her in other locations, and in setting up communication via video-links.  There had been a major family falling out between BR and her siblings.  They saw her as “controlling”, “aggressive” and “paranoid” and said she had imposed unnecessary restrictions on their right to see their mother.  They also said she’d accused them of visiting their mother only because they wanted to “spy” on her – and BR also made this claim at one point in court.  In agreeing that the family had the right to see Mrs P,  BR  explained that they could see Mrs P, but not her:  “I can’t allow you anymore to see me.  I can’t repair any more.  I can’t mend bridges, and I don’t want to”.  it was heart wrenching to see a family so divided.

 DJ McIlwaine demonstrated great skill in managing the case.  He  ensured that everyone had opportunity to express their views and described part of his role as being to  “take some of the energy out of the family dynamic”.  The judge conveyed a great deal of sympathy for all parties but also maintained a clear focus on getting the court process back on track when people raised issues that were not germane to the key business of the court.   “I don’t want to be unsympathetic,” he said (several times), “but I have to get everyone’s evidence before the court.”   He pointed out that if he was not able to do that within the three days assigned to the case, the next slot available was not until February 2022.

By the third day the judge was plainly moved by what he described  as “a  tragic mismatch of communication”. He said, “I appreciate there’s a family dynamic, and it’s tragic to see it play out”.    He wondered aloud: “If she (Mrs P) could sit at the back of this courtroom, with full mental capacity, what she would have made of the last 3 days”.  

In observing, I felt DJ McIlwaine demonstrated patience and compassion by continually checking the understanding of all involved, offering breaks when emotions ran high and taking time to explain what can feel a daunting court process. He offered support to the applicant and respondents throughout.

This divided family was also supported by the efforts Alex Cisneros  made to offer suggestions to resolve the conflict with visiting arrangements, as well as his offer of support with gratuitous care calculations. I understand this was above and beyond the usual role of the OPG.  His input was very much appreciated by DJ McIlwaine who said, “that is a remarkable offer, without the OPG it would be even more complicated”.

The judge said he would hand down a judgment by the end of October 2021, and I’ll link to the judgment when it’s available. But the Lasting Power of Attorney for Property and Finance is no longer part of this judgment – and that’s the focus of this blog post.

Lasting Power of Attorney, Property and Finance

Mrs P had appointed BR as her Attorney for both Property and Finance and for Health and Welfare.

In  an earlier blog, I clarify the two different LPAs and their function. 

A Lasting Power of Attorney (LPA)  is a legal document that lets you appoint one or more people to make decisions on your behalf. This gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions.  The formal requirements, scope and applicability of LPAs are set out in Sections 9-14 of the Mental Capacity Act 2005.  

There are two different kinds of LPA.  A Health and Welfare LPA would be used if you lost capacity to make decisions about issues relating to health (e.g. whether you should have surgery or other medical treatments).   An important element of the Health and Welfare LPA is that it offers the opportunity to give the person or people appointed, (the attorney(s)), authority to make life-sustaining treatment decisions.

A Property and Finance LPA is used for to appoint someone to make decisions about your money – and can take effect, with your consent, as soon as it is registered.

Since making these LPAs, Mrs  P has lost capacity to make her own decisions about her property and finance, and about her health and welfare (due to Alzheimer’s dementia).  Nobody disputed this, and nobody disputed the validity of the LPAs.  

Prior to living with BR and her husband, Mrs P lived in Ireland with her husband who was described as “brain power” to complement Mrs P’s “muscle power” in the relationship.  When he died, Mrs P was unable to care for herself.  (I suspect this picture of co-dependence will be familiar to many families.) BR spoke of discussions prior to her father’s death in which he “asked if we could look after her (Mrs P)….he did not want her to live in a care home” and she moved to live with her daughter in 2014.  

 In order to pay for the  costs of care,  BR has, in her capacity as Property and Finance attorney, drawn from Mrs P’s finances. The costs cited include: 

  • care delivered by BR;
  • the purchase of a car to transport Mrs P;
  • the cost of care payments to agencies and individuals to care for P; and
  • the cost of a proposed extension.

A picture was drawn of the care needs of Mrs P – which demonstrated twenty-four-hour care was required, including an average of two assists per night. Mrs P was described as mobile, but with poor short-term memory. I was interested to note that an up-to-date Care Needs Assessment was not available as part of the evidence and the most recent face to face assessment was in 2019. My impression was that a more recent assessment would have been of value in understanding current care needs, however the consensus was little had changed since the previous assessment.

The question of revocation, one of the key issues of this case, came following concerns by the Office of the Public Guardian. The legal test for decision making about revocation of an attorney and subsequent appointment of a professional deputy is the best interests test (s. 22(3)(b)  Mental Capacity Act 2005).

Mental Capacity Act 2005

In his summary, Counsel for the Office of the Public Guardian provided the following as reasons to revoke BR as an attorney:

  1. management of investments – BR had previously been advised to divide Mrs P’s finances to protect them but had not done so;
  2. the security bond associated with appointment of a professional deputy would protect Mrs P’s finances;
  3. the provision of a mechanism for the Court to review and scrutinise the financial management of Mrs P’s assets (also associated with the appointment of a professional deputy);
  4. a professional deputy would provide an independent and mediatory role within the family;
  5. There are ongoing financial decisions which need to be made for Mrs P regarding costs of care – for which an independent professional financial deputy would be able to provide expert advice.

Attention was drawn to the complex family dynamic and deep mistrust between BR and her siblings. BR no longer had contact with any of her siblings and throughout both days we saw evidence of the pain this caused all parties; in a particularly emotional point BR stated she felt there was “more hate in the statements (from her siblings) than I know existed”. Counsel used the family dynamics as further evidence that best interests decision making was not in place for P, and quoted Senior Judge Lush in Re BM; JV v AG – noting that where there is ongoing family friction, “the court wouldn’t contemplate appointing a particular family member or friend as deputy”.

Although the position of the Office of the Public Guardian was that BR should be removed as LPA for Property and Finance, DJ McIlwaine reiterated several times that there was no question of dishonesty on her part (especially when, at one point, BR argued that the OPG’s calculation of care costs that should be paid to her was too high). I believe this was highly significant. 

One alternative to the LPA being revoked by the court was for BR to rescind it.  (Another of course was that the court could decide – contrary to the position advanced by the OPG, that she should remain as LPA.)

While the outcome reached either by forced revocation or by voluntary rescinding of power of attorney is the same (i.e. BR would no longer be Mrs P’s attorney), there is an emotive component behind the decision. BR presented as being overwhelmed by the care of her mother in addition to managing the finances. Earlier in the proceedings DJ McIlwaine acknowledged this, saying “That’s why I floated whether or not the time has come for a professional deputy who could remove some of the burden in your life – for your wellbeing”.

The question of removing responsibility for Health and Welfare decision making was not before the court, although several family members volunteered the information that they thought BR should also be removed as attorney for Health and Welfare decision making.

Following counsel’s summary, DJ McIlwaine allowed BR time to consider, carefully checking to ensure she felt under no pressure, and invited her thoughts about whether she might want to voluntarily rescind the LPA. Her sister, the replacement attorney for Property and Finance, to whom the LPA would fall if BR were to rescind, had already also agreed to rescind, meaning that there would then be no obstacle to appointing a panel deputy.  Shortly after 5pm on the third day of the hearing,  BR voluntarily rescinded her role as Property and Finance attorney, and this matter was removed from the judgment.

Considerations when making a Lasting Power of Attorney

In making a Lasting Power of Attorney,  it’s important for families to discuss the details of how they hope and expect it will work if and when it becomes effective.  

There is scope in making an LPA for the donor (the person making the LPA) to state specific wishes, but balanced against this is the need to ensure that any written preferences and instructions for attorneys are clear and non-ambiguous – any doubt in wording can result in the OPG rejecting the application (and subsequent reapplication costs). 

In many cases the sections for preferences and instructions are left blank.  This need not be a problem if the family has is agreed and has absolute clarity and understanding of the donor’s wishes. But where there is any suspicion that the family may take different views, or that the person (or people) appointed as attorney(s) might not act in accordance with the person’s best wishes and/or might be challenged (as here), it is important to consider completing them.

There are two sections of relevance in the Property and Finance LPA form (and parallel section in the Health and Welfare LPA form) :  “Preferences” and “Instructions”.

 In drafting preferences, the donor has an opportunity to articulate what they would like their attorneys to consider when making decisions; the attorney is not bound to follow them but should consider in decision making. Wording like “I would like…” and “I would prefer…” should be used in this section. Examples of preferences in the  OPG Guide to making an LPA include:

Instructions explicitly tell attorneys how to act on the donor’s behalf and the OPG advises that legal advice may be appropriate when drafting instructions in a Property and Finance LPA.  Examples of instructions in the OPG Guide to making an LPA include:

 The OPG Guide to making an LPA  identifies “The only circumstances in which you must write an instruction is in a financial LPA if:

  • you have investments managed by a bank and want that to continue
  • you want to allow your attorneys to let a bank manage your investments”

When drafting instructions or preferences it can be valuable to include why a particular statement was written and the reasons behind it – this can be of potential use in any later challenge.

Reflecting on Mrs P’s case and OPG advice, what might have helped and how could it be documented? The situation could have been clearer if Mrs P had written any of the following: 

“I would prefer my money to be used to enhance my comfort even if it’s not strictly “necessary” OR “I don’t want a lot of money spent on building extensions to house me or expensive cars – I’d rather it went to my children and grandchildren as part of my estate”.

“If I am being cared for by my family, please use my funds to pay for additional help to ensure family members have time off and don’t have to spend all their time looking after me.”

“If there comes a time when I need a family member to drive me around, please use my money to buy a car for me that you can also use for yourself and enjoy driving.”

“I am a naturally risk-averse person and would not want you to take risks with my money. Please divide my funds and investments to protect them and please consult a professional financial adviser.” 

Although the question of revocation of the Health and Welfare LPA was not before the  Court, reflecting on the case makes me wonder what wording when drafting the LPAs could have made a difference.  

There are lessons to be learned on the value of documenting preferences as they make the donor’s wishes explicit, provide guidance for attorneys, and can be referred to should there ever be dispute. With the value of hindsight, preferences and instructions in the Health and Welfare LPA that might have helped in this case could have included: 

  • “I prefer to live within 10 miles of XXX“
  • “My attorneys must ensure I am given only pescatarian food” (we heard in court that Mrs P followed a pescatarian diet) 

The Attorneys appeared unprepared for their role in part because P had not provided instruction and I suspect in part because situations arose that could not have been foreseen by Mrs. P. 

When working with families and drafting LPAs for clients, I encourage open and honest conversations.  LPA documents lack meaning (and legal validity) if there is no understanding of the wishes, values and beliefs of the donor at the heart of all decision making. In many ways, it is these conversations that matter so much rather than documents (however without the LPA documents there is no legal right for next of kin to have decision making responsibility).  There are resources to promote planning ahead, and campaigns such as Dying Matters Awareness Week seek to promote more open conversations.  What Matters Conversations  and the  Marie Curie Talk About Cards offer prompts to consider and discuss.

Final remarks

Attending a hearing in the Court of Protection is an exceptionally valuable learning opportunity. Seeing application of the MCA and discussion of the nuances associated with the Act bring to life principles learned and highlight what must be considered when making best interests decisions. 

This hearing also introduced me to the role of a  McKenzie Friend, something I had not heard of before, and I now understand the role of a McKenzie Fiend is to provide moral support and help for litigants. 

During this long hearing,  DJ McIlwaine stated to the applicant, “I have never met anyone who is perfect at everything”. Neither have I.

My wish for Mrs P and her family is that by removing the burden of financial investment management from BR, they can focus on delivering care and building bridges in the future.  

My wish for us all is that we have conversations that matter.

Clare Fuller RGN MSc is a registered nurse with a career dedicated to Palliative and End of Life Care. She is an advocate for proactive Advance Care Planning and delivers bespoke EoLC education. She is also a Lasting Power of Attorney Consultant and director of Speak for Me LPA. She tweets @ClareFuller17 

A court-authorised hip replacement

By Evelyn Palmer, 5th October 2021

On Friday 10 September 2021 I had my first experience of observing a Court of Protection hearing concerning serious medical treatment. It was an “urgent” hearing that had not made it to the court listings for the day and had no case number.

Having studied medical ethics at master’s degree level, I was interested to see how the court applies the best interests principles embodied in the Mental Capacity Act 2005 in practice.  

The person at the centre of the case was P, a previously fit and healthy 71-year-old woman, who sustained a hip fracture having been knocked off her bicycle three weeks earlier by a car travelling in the wrong direction down a one-way street. She was said to have a long history of mental ill-health including anxiety, somatisation, agoraphobia, and a paranoid personality disorder with schizotypal features. P was withholding consent for hip surgery. 

At the outset of the hearing, the applicant Trust (represented by Pravin Fernando of Serjeants’ Inn Chambers) considered her to lack capacity to make this decision and considered surgery to be in her best interests (with restraint if necessary).

The Official Solicitor (represented by Nageena Khalique QC, also of Serjeants’ Inn Chambers) took the preliminary view that P lacked capacity in relation to the proposed treatment but reserved her position both on capacity and on best interests until after hearing the evidence.

The case was heard by Mrs Justice Judd in the Royal Courts of Justice (via MS Teams).

Background

Since the accident, P, who has a “marked distrust of medical professionals” had requested time to consider surgical treatment (vs “conservative management”) of her fractured neck of femur. Her delayed decision-making seems to have been led by her underlying and core belief that she cannot trust people involved in her care. 

The medical team had acceded to P’s suggested approach and taken the conservative management route up to now.  But P is in pain, and immobile, and has developed chest and urine infections.  The hospital say she is at risk of developing a pulmonary embolism or deep vein thrombosis due to immobility.

The hospital Trust had applied, the previous day, for a declaration that P lacks capacity to make her own decisions; that it would be lawful and in P’s best interests for her to have surgery (either a total or partial hip replacement – to be confirmed during surgery), and that it would be lawful and in P’s best interests to be restrained and/or sedated if necessary for surgery to be undertaken. Without surgery, P, whose condition was said to be rapidly deteriorating, was said to have a high risk of death within days. Surgery was provisionally planned for Monday 13 September 2021, i.e., the next weekday after the hearing.

Initial impressions

I was immediately struck by the transparency of this hearing.  

As a member of the public, with no relationship to P, I was provided access details to join this virtual hearing, much in the same way I could sit in the public gallery of any open court without question.

The hearing also included P herself, who appeared on screen from her hospital bed on the ward, as well as the Trust’s three expert medical witnesses, comprising orthopaedic, geriatric and psychiatric specialists, each of whom gave oral evidence. 

After an initial sense of satisfaction at being able to experience a real-life best interests hearing with no obstacles, my thoughts then shifted to the vulnerability of P, the intrusive and highly sensitive nature of the proceedings, and the apparent power imbalance.

The court seemed sensitive to this too.  On behalf of the Official Solicitor, Nageena Khalique ensured that everyone in court knew that P was present: “She’s here, we’re talking about her, she will have the opportunity to speak, and if at any point she wants to interject, she may”.

The judge replied:  “She’s listening to this but she’s probably not feeling very well.  Has she got someone else with her who can support her?  Is there a direct line of communication with her counsel? Does she know she can put her hand up if she wants to speak?”

Some time was spent ensuring that P was able to participate as fully as she wanted to, and a little later the judge pointed out to P that, if she preferred, she could remain in the hearing but with her video turned off so that we were not all watching her.  That’s what she then did.

The judge was very aware, nonetheless, that P was present throughout and several times when the medical experts were talking about the “high risk of death” (via sepsis and pulmonary emboli), the judge commented, “it must be very difficult for P hearing this”.  

The clinicians were also sensitive to P’s presence: one apologised to her for “speaking bluntly”; another apologised for giving evidence (about what surgery would involve) without having previously met P.

Later, P was offered the option of either addressing the court publicly to convey her wishes and feelings, or taking the opportunity to talk to the judge in private – she chose a private conversation.

The key person representing P’s best interests was the Official Solicitor but, in addition, as P has no close family or friends, an Independent Mental Capacity Advocate (IMCA) had been appointed.  The IMCA supported the Trust’s application.  

Despite an overwhelming level of support for P, I felt troubled by the significant ethical issue that surgery could be imposed against her will (notwithstanding its life-saving benefits) and that chemical and/or physical restraint might also be used.  

Legal considerations

The three main issues for consideration were: 

  1. P’s capacity to conduct these proceedings and to make her own decision about whether or not to have the proposed surgery.  The Official Solicitor was acting as P’s litigation friend but noted there did not seem to be any evidence before the court that P lacked litigation capacity. 
  2. The subject-matter decision concerning surgery was, in particular, whether P’s mental health condition and increased anxiety undermined her capacity to properly assess the risks and benefits of undergoing surgery, and crucially, the consequences of not doing so. In line with s. 3 Mental Capacity Act 2005 (MCA), a person is unable to make a decision if she has an impairment or disturbance in the function of the mind of brain that causes her to be unable to understand, retain or use/weigh information relevant to the decision, or if she cannot communicate the decision. 
Mental Capacity Act 2005

3. If P were considered to lack capacity, then a decision had to be made about whether it is in P’s best interests for surgery to proceed. Best interests is determined in line with s.4 MCA, which includes taking account of the person’s past, and present, wishes and feelings (s. 4(a)-(c)).  In addition to the surgical treatment, the Trust sought a declaration that it would be lawful and in P’s best interests to be restrained and/or sedated if this was necessary for the purpose of undertaking surgery.

Capacity

A person must be assumed to have capacity unless it is established that they lack capacity (s. 1(2) MCA).  

The court heard compelling evidence from a Consultant Psychiatrist who had assessed P’s capacity on three separate occasions. The consultant noted that P was not in contact with mental health services, but a review of her GP records indicated a long history of mental ill-health. Following the consultant’s own assessment, the view was formed that P has “all the hallmarks of someone with paranoid personality disorder”, and that there was evidence of “paranoid ideation” regarding neighbours and friends. 

It was the consultant’s view that P presented as very anxious about her situation, and that the accident had destabilised her. When asked by counsel for the OS whether P would agree to having hip surgery, P was found to be distracted during those discussions, deviating from the issue at hand, believing the doctors to be against her, and eventually moving off the subject of surgery. P’s mental health condition was characterised by the consultant psychiatrist as “a paranoid personality disorder with some schizotypal features and a superimposed anxiety disorder”.   

Following each mental capacity assessment, the consultant noted that P had capacity to understand and retain information relevant to her medical condition.  P understands her situation and that it is the shared view of the medical team that she urgently needs surgery. The area where P was said to lack capacity is using and weighing information relevant to the decision that needs to be made, and this lack of ability to weigh the relevant information is caused by her mental health condition. 

P’s counsel questioned in court whether in fact P lacked capacity: “Does she not have the ability to weigh up the pros and cons or is it that she’s making an unwise decision”.  She asked: “You’re saying she has an inability to understand, retain and weigh, as opposed to saying, ‘yes, I know those are the risks, but I don’t care’?”

In response, the consultant was clear that “I don’t believe this is just an unwise decision in keeping with her pre-expressed beliefs.  Her mental state is that she’s very distractable, very tangential when you’re talking to her…. It’s not possible to have that conversation with her because she deviates along the way and goes into wanting to go to another hospital because they might have more natural therapies….  I don’t think she can understand the consequences of different actions”.

The consultant’s evidence allayed my own concerns and I felt confident that P’s ability to make her own decision regarding surgical treatment was impaired. But was surgery in P’s best interests?

Best interests

The court also heard oral evidence from a Consultant Orthopaedic Surgeon who considered urgent hip surgery necessary to give P an improved chance of sustaining life. The court was told that surgery within 36 hours of fracture is the established practice because the mortality rate is disproportionately high if a hip fracture is left untreated. Even in the best circumstances, patients have up to a 30% risk of mortality within the first year of hip surgery, increasing to 80% without. 

When asked by P’s counsel why continuing conservative management would not be in P’s best interests, the consultant told the court that P’s general health is deteriorating. She is “on the pathway to mortality” due to blood clots on the lungs (the Trust’s fear of a pulmonary embolism having been confirmed by a CT angiogram the previous day), which is impairing her ability to breathe. Delaying surgery beyond next Monday would exponentially increase P’s risk of death within the next few weeks, meaning that P is unlikely to go home, and even if she does survive, the likelihood of her returning to independent living is very slim.  

Despite an assessment that even with surgery “the road to recovery may be rocky for her…potentially with some unexpected twists and turns” the consultant orthopaedic surgeon formed the view that P’s chance of death would reduce to between 20% and 30%, and that the benefits of surgery greatly outweigh those of conservative management.

A Consultant Geriatrician was the last expert to give evidence, predominantly addressing best interests in the wider sense in terms of P’s post-operative recovery. Asked by counsel for the OS how P’s pain might be managed and whether surgery would increase the possibility of infections improving, the court heard that most patients do not experience severe pain following surgery; improved mobility would assist P’s urinary infection, as she would be better able to physically go to bathroom (eliminating the need for a catheter); and her ability to sit upright would help ventilate the lungs.

P was said to have good prospects of doing well post-operatively, and if she engages in rehabilitation she could expect to be able to engage in independent activities that are important to her, such as using public transport and going to the shops. 

The person’s own wishes and feelings carry significant weight in best interests decision-making (see Wye Valley NHS Trust v B [2015] EWCOP 60) and P is clear that she does not want surgery.  On the morning of the hearing, an agent for the Official Solicitor had discussed with P “how she would feel if the judge decided that she should … have the operation”.  The response was, “Devastated. I would cry my eyes out, like I have for the past 3 weeks”.

But on the other hand,  P values her independence and absolutely hates the idea of going into a care home.  Without surgery, “the likelihood of her returning home is extremely slim”, said the consultant orthopaedic surgeon.  With surgery, returning home might be possible (she lives in sheltered accommodation).  

After meeting with P privately, the judge also confirmed that P did not wish to die. P believes that organic food and natural treatments will enable her condition to improve and had told the judge she wanted to be treated at another hospital that might offer natural treatments.

While the judge could not make a declaration to the effect that P be transferred, she asked the Trust to note P’s wish and to accommodate P if possible post-surgery. It would not be practicable for P to be transferred before next Monday, given that urgent surgery had already been provisionally scheduled at the current hospital. 

Restraint

The Official Solicitor expressed concern that the application of physical or chemical restraint was likely to feed into P’s distrust of healthcare professionals and her paranoid beliefs, and said that this needed to be put into the balance when considering her best interests. She sought assurances from the Trust that any physical and chemical restraint would be the least restrictive option. 

Clinicians hoped that restraint would not be needed and said that chemical restraint in the form of Ketamine (which results in rapid sedation and has minimal side effects if used in appropriate doses) would only be used in order to administer the anaesthetic if P remained non-compliant.

The medical experts confirmed sedation would only be deployed either at the time of transporting P from the ward to the operating theatre in order to minimise her distress. If P was physically resisting, short-term physical restraint remained a further option, involving an intra-muscular injection to sedate her for approximately 15 minutes. 

I was relieved that medical professionals would first try to persuade and encourage P following the least restrictive course, and that physical restraint would be the very last resort. 

Closing submission from the Official Solicitor

After hearing evidence from the medical experts, the OS decided she would consent to the declaration sought by the Trust because, in summary:  

  1. Regarding capacity, P’s mental health condition, i.e., her personality disorder and persecutory beliefs compounded by anxiety, meant she lacked capacity to weigh the consequences of not having surgery.
  2. Regarding best interests, balancing all the medical evidence which pointed very strongly in one direction, the OS accepted that P’s condition was at a critical point. P is not going to get better by conservative management – she is not moving from the bed or accepting interventions from those who are caring for her. Her choices are limited. The benefits of surgery are in stark contrast to no surgery at all. Although there will be some compromise in her functioning in that surgery might not lead to a full recovery or to restoration of P’s pre-injury status, P has a greater possibility of returning home if she has surgery. 

Judgment

Having considered all the evidence and heard directly from P, Mrs Justice Judd decided that P lacked capacity to make her own decision about hip surgery because she was not able – either now or in the near future – to weigh up information or understand the consequences of making the alternative decisions. The judge accepted the medical evidence that with continued conservative management P would likely die within days or weeks; she would remain in considerable pain and her condition would continue to deteriorate. Given that P does not want to die, and has a strong preference for returning home rather than being discharged to a care home, the judge concluded that, notwithstanding P’s stated wish not to have surgery, it was in P’s best interests for surgery to proceed as soon as possible. 

Mrs Justice Judd concluded that although there is still a risk of P dying post-surgery, that risk is considerably lower than if she were not to have surgery. Further, P’s pain and immobility would be much reduced. 

While P may experience a rocky road to recovery post-surgery, there is a greater chance of her returning home sooner and in better health. The judge acknowledged that P is reluctant to undergo the operation and that it was causing her anxiety. However, looking at P’s best interests in the widest possible sense – the options, advantages, disadvantages and prospects of making a reasonable recovery, it was in P’s best interests to make the declaration sought by the applicant Trust, in the terms agreed by counsel. 

Final remarks

By the end of the hearing, I was convinced that P wished to return home to living a fulfilling independent life, to the extent possible following her recovery. The evidence was strong that there was a high rate of mortality should conservative management be maintained although I am slightly doubtful that the risk of death is as imminent as suggested, given that P had already survived three weeks, albeit in considerable pain. That said, I accept that the longer the fracture remained unfixed, the higher the likelihood that P would not make as full a recovery as she would if treated sooner.

I felt that P and her best interests were genuinely at the heart of these proceedings, and that the declaration ordering surgery was the right outcome. I saw a rigorous but caring and collegial environment in court, with a genuine commitment to involving P. Counsel for the parties adopted a clearly non-adversarial approach throughout. The focus for everyone was on making the right decision for P.

Evelyn Palmer holds a master’s degree in Medical Ethics and Law, and has a keen interest in mental capacity, specifically in relation to serious medical treatment and Deprivation of Liberty Safeguards. She is a former mental health policy adviser at the Care Quality Commission, current Trustee of the Medico-Legal Society, and was called to the Bar in 2019. She tweets @MedicoLondon

Photo by Joshua Hoehne on Unsplash

Suppressing transparency: A judge comments on a blog post in court

By Claire Martin, 30 September 2021

I’ve observed 25 Court of Protection (COP) hearings since June 2020 and, almost without exception, I’ve been full of admiration for how judges have managed the cases.

The recent hearing before HHJ Catherine Howells (COP 13575520) about which I blogged here, here and here was no exception. I thought it was expertly handled, both by the judge and by counsel (Emma Sutton) representing P (who I called David in the blogs). 

It was a protracted – and, unusually for the COP cases that I have observed – rather adversarial case. The reason for this was that the legal process to establish David’s best interests had not been followed by the Health Board’s treating team looking after him. David’s parent had been excluded from the considerations and this had caused significant disquiet and a challenge in the COP. 

The second hearing, during which David’s treating consultant gave evidence, was especially revealing. It was quite clear that due process had not been followed before installing a video-monitoring system in David’s bedroom for overnight observation. No best interests process had been followed. Furthermore, previous directions from the judge had not been followed in preparation for the hearing, there were missing documents from the bundle, and a lack of clarity regarding parties’ positions. I called the blog ‘Chaos in court and incompetent decision-making: visual-monitoring part 2’. 

After giving her oral judgment, and before the formal end of the hearing, I was stunned to hear HHJ Howells refer publicly to my earlier blog post. The judge informed Emma Sutton that she had received the blog and had read it. HHJ Howells said that she wanted to assure the court that she had ‘not taken it into consideration in my judgment. It would not be appropriate to do so’. She then went on to say:  ‘Heading a blog ‘Chaos in court’ is inflammatory … as if the court process itself was not being properly managed. That is all I will say on the matter’. 

HHJ Howells’ second comment surely contradicted her first? She firstly refers to judicial impartiality (a general principle that it is not for judges to engage with and comment on media in relation to their judgments), yet then proceeds to pass comment on my blog. 

Panic!!! 

That was my initial feeling. 

Then the hearing suddenly ended. 

The judge knew I was observing. So did everyone else in the hearing. 

What had I done wrong?

I wondered whether I had somehow breached the transparency order. When I calmed down, I knew that I had not breached any court order. 

HHJ Howells clearly did not approve of the title of the blog – fair enough, the title (as is usual for OJCOP blog posts) aimed to provoke interest and encourage people to read it. The content was very clearly not describing a court process being improperly managed – the opposite in fact. Although she said she had read it, I did wonder whether HHJ Howells had read the title and not the content. If the judge had read the content, I am not sure she would have remained as upset at the title. Further, although HHJ Howells described the title as ‘inflammatory’, it did not inflame anyone or anything – and in fact anyone reading the blog would have been heartened by the account of the court process, if not what happened outside of it. 

I was shocked to hear her refer to my blog post. I didn’t expect a judge to engage with it in any way whatsoever in court – my expectation is that judges are above the fray – totally independent from interference.1

Was it appropriate for HHJ Howells to express her opinion of my blog title during a court hearing for David? 

It is not up to a judge (or anyone other than author and editor) to determine the title (or content) of a blog post. As long as it does not breach any reporting restrictions, this is not something that should concern the court. To use court time to criticise an observer’s piece of writing feels like an inappropriate use of power. It felt personal – because I was there and because the judge knew I was there. Everyone else in the hearing knew I was there too. It felt designed to shame me – and, at first, I did feel ashamed. I had upset a judge enough for her to comment on it from the bench! I felt about 8 years old again.

Then I started to feel upset and annoyed. This just didn’t seem right. I understand that HHJ Howells might not have liked the title, but should she have used her position to comment on it in public, during a hearing? I looked into it further to try to understand what happened. 

I am not familiar with the broad sweep of judicial practice in the UK. I wondered whether commenting on reporting about a case, during a case, was something that judges might reasonably and regularly do. This suggested otherwise:

“All judges should exercise their freedom to talk to the media with caution. Judges should refrain from answering public criticism of a judgment or decision, whether from the bench or otherwise. Judges should not air disagreements over judicial decisions in the press.”

[Guide to Judicial Conduct 2020]

Then I looked at guidance around engaging with media.  Of course, I am not technically “media” – i.e. I am not an accredited journalist but simply a member of the public and one of the core group running OJCOP, supporting judges in their commitment to open justice.  There doesn’t seem to be any (publicly available) guidance for judges about how to deal with members of the public in their courts. Perhaps there should be?

I found Media Guidance for the Judiciary 2012. It covers misreporting and libel – perhaps she thought I had misreported the case? Or written something libellous? I did not do either of those things – the blog accurately describes, in detail, the excellent handling of the case, and does not libel anyone at all. The ‘chaos’ in the title refers to (some) parties being disorganised and unprepared for the hearing, and ‘incompetent decision making’ refers to the lack of best interests process followed by the clinical team (and I stand by that description). This is perfectly clear to anyone who reads the blog post. 

In any case, if misreporting or libel was a concern, the advice for judges seems to be clear in terms of how to handle any such concerns: 

“Misreporting: Judicial office-holders who are factually misreported are sometimes unsure how to redress the situation. Should you need advice the Judicial Press Office can assist you, 24 hours a day, seven days a week.”

“Libel: Media criticism of judicial office-holders – however harsh or misconceived – is a fact of life. Even in the 1930s Lord Atkin of Aberdovey, a Lord of Appeal in Ordinary, was able to surmise that justice “is not a cloistered virtue”; today, even more so, magistrates and judges operate in the public eye and must expect to be subject to comment and scrutiny in the media. And if this comment is sometimes not wholly fair or accurate, it should, nevertheless, be seen as an unavoidable reflection of the judicial role in contemporary society. In normal circumstances, if you believe you have been unfairly criticised in the media or elsewhere, your appropriate recourse – if any – will be to seek the publication or broadcast of a correction and/or an apology. The Judicial Press Office will always be happy to assist you in doing so.”

[Media Guidance for the Judiciary 2012]

The guidance seems straightforward in relation to misreporting or libel concerns. 

The media guidance goes on to address ‘making planned statements in open court’. 

“Making planned statements in open court: Courts and most tribunals operate in public, and any comment made by a judicial office-holder in public session is regarded as open to reporting. This extends to comments made when there’s no reporter in the room, as long as someone has repeated it to them. Judges may occasionally read out statements in open court, for example commenting on misreporting of a case. These can be issued to the wider media by the Press Office. In all such circumstances judicial office-holders are strongly advised to consult with their Bench Chair, Chamber President, Resident Judge, the Chief Magistrate and/or Presiding Judge before making a statement. You may also find it helpful to talk to the Judicial Press Office – it will be able to look at a draft from a lay perspective, and point out how the media might receive or interpret it.”

[Media Guidance for the Judiciary 2012]

So, did HHJ Howells consult with one or more of the people listed above and decide to make a planned statement in open court? This does not seem very likely to me. I would be surprised if the judge had been advised to comment on the title of a blog. Perhaps HHJ Howells was just cross and went ahead without planning to do so.  I don’t know.  I am sorry that the judge did not like the title that I attached to the blog. Whatever led up to her statement, I do not think that HHJ Howells’ displeasure warranted criticism of the blog in open court. It will be on the recording for the hearing for David, and is nothing to do with him or his care. I think judges should be above reacting in this way publicly. 

This 2013 judgment from Sir James Munby (President of the Family Division at the time) discusses the reciprocal relationship between the judiciary and those reporting on court cases. This excerpt from paragraph 26 is especially relevant: 

“So far as concerns the relationship between the media and the court I can only repeat what I said earlier this year in a judgment that was widely reported at the time: Re J (A Child) [2013] EWHC 2694 (Fam). I forbear from extensive citation, merely repeating at this point, so as to emphasise, three key principles (Re J, paras 37-39). First, that “It is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish”. 

P (A Child) [2013] EWHC 4048 (Fam)

The judgment from which he is quoting himself (in the extract above) elaborates: 

As I explained in Re Roddy (A child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949, para [89]:

“A judge can assess what is lawful or unlawful …. But judges are not arbiters of taste or decency … It is not the function of the judges to legitimise ‘responsible’ reporting whilst censoring what some are pleased to call ‘irresponsible’ reporting … And as the Strasbourg jurisprudence establishes (see Harris v Harris; Attorney-General v Harris [2001] 2 FLR 895, at [373]), the freedom of expression secured by Art 10 is applicable not only to information or ideas that are favourably received, or regarded as inoffensive, but also to those that offend, shock or disturb the state or any section of the community. Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. It is not for the court to substitute its own views for those of the press as to what technique of reporting should be adopted by journalists. Article 10 entitles journalists to adopt a particular form of presentation intended to ensure a particularly telling effect on the average reader. …”

Re J (A Child) [2013] EWHC 2694 (Fam)

A chilling effect

Exposing observers to public criticism from judges about their blog posts can only serve to suppress open justice. I had a physical reaction, my gut dropping like a stone, when HHJ Howells said what she did. Their status and power makes judges intimidating.  Barristers are used to the judge addressing them – and they are part of proceedings and can reply. This is not the situation for observers. I was shocked by what happened and this episode has caused me not a small amount of anxiety. I’m a bit worried about writing this account of what happened and how I felt about it. It’s taken me a long time to feel able to do so.

The episode had a chilling effect for me – and I am (now) a seasoned observer of court hearings and a senior professional in my field. What effect would such an experience have on other blog authors who are students or first-time observers? 

I know that many people are already fearful of observing hearings and writing blogs for our Project. 

We rely on the willingness of members of the public to engage and comment on Court of Protection hearings: without us, transparency is an ideal, not a reality. 

Facilitating and being fully on board with judicial transparency (and the possibility that this will bring unwelcome comment) will perhaps develop over time. I notice that many judges in the Court of Protection sit in other courts – I have spotted in the listings that many sit in the Family Courts, which, I believe, are far less open than the Court of Protection. Perhaps some judges are not as familiar with the transparency that Court of Protection hearings can bring, and are therefore less used to public comment on their work. There might not be any training for judges on handling this aspect of their work – meaning that they can only learn by their mistakes. I hope that HHJ Howells might have reflected further on this afterwards. Of course, it would not have been appropriate for me to attempt to reply to the judge in the hearing (and I would not have been brave enough anyway). I hope that this blog is a fair and helpful way of speaking about my own experience. 

My admiration for judges in the Court of Protection is undiminished – I think they have (often) heart-breaking and very difficult decisions to make on our behalf and they do so with courage and humanity. 

Perhaps what I should take away from this experience is that all judges are human and can make errors of judgment themselves. And that is OK. 

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

1 I thought about HHJ Howells mentioning that the blog had no bearing on her judgment. Is that acceptable? I don’t think so. My direct experience of the judiciary is limited to the hearings I have observed this past year and I have an expectation that judges are above commenting on reports of their judgments – that they must be totally independent from interference from government and press and lobbyists and so on. Recent incidents with our current government and Brexit have cemented that view in my mind, and I have felt dismayed at sections of our press demonising judges for occupying that very position and discharging their responsibilities diligently – with no right of reply. Of course a blog (or any other reporting) of a case would not have any influence on a judgment. That surely does not need to be said.

Home-owning resident of 50 years faces intervention by Council

By Daniel Cloake, 24th September 2021

A man whose identity is protected by court order faces temporary removal from his home of 50 years to enable building work and medical treatment to be carried out.

I observed this attended (in-person) hearing (Case: 12014791 “JD -v- Ealing Council”) before the Senior Judge of the Court of Protection HHJ Carolyn Hilder at First Avenue House in London on 21st September 2021.

There wasn’t an introduction to the background of this case (which I say purely by way of observation and not as a criticism) so the issues were slow to become clear.  The man concerned, known only as Mr JD, appeared unrepresented but came with his (as the Judge described her) “rather wonderful” niece.

It is understood that Mr JD lives in a house under the remit of Ealing Council.  The court was told by counsel representing the Local Authority that a surveyor had attended the property on the morning of the hearing to carry out an inspection.  Entry to the property had been refused by Mr JD who cited a lack of warning and a lack of time to tidy up. (A previous tidy-up to facilitate a visit by a doctor generated 100 bin bags of rubbish, we were told.)

HHJ Hilder read from the “rather serious” surveyor’s external report which, she said, described the property as “unfit for human habitation” and presented a “danger to the owner, neighbours and passing public”.  These claims were described as “grossly exaggerated” by Mr JD.

We were told that at a recent round table meeting Mr JD had agreed to move out of the property into “safe and clean” temporary accommodation, a condition that once met would allow a date for a seemingly-urgent cataract operation to be set.  Given the need for apparent extensive property repairs to be carried out, which we were told would take some 16 weeks, some consideration was given as to whether the operation and the building work should be carried out at the same time. 

The niece had investigated the type of accommodation that might be suitable for Mr JD to move into.  She told the court that finding a lease of less than 6 months was proving difficult, and that bed and breakfast or hotel accommodation might prove more cost-effective.  Asked by the Judge what he would prefer, Mr JD replied that he didn’t know, stating “I’ve been there 50 years, I don’t know anywhere else”. 

As a matter of “practical reality” the Judge declined to grant an immediate injunction to the council preventing Mr JD from returning to the property after the hearing as “I have to ask where will you sleep tonight…you have nowhere to go”. A suggestion made to Mr JD by his neighbour that he could sleep in the front garden of the property was not met with enthusiasm by the court. 

We were told that the available evidence showed Mr JD lacked capacity to conduct these proceedings and also lacked capacity to make decisions about clearing and maintaining his property.  The Judge considered the council’s position statement which suggested inviting the Official Solicitor to act as Mr JD’s litigation friend. Explaining that it was “likely to take a fortnight to get up and running”, she said, “We could potentially list this matter at that point so [Mr JD] is represented and all issues can be dealt with at that point.”

Addressing a concern that Mr JD would lose his voice in court, HHJ Hilder reassured him that the OS “would regard it a very important part of their job to represent what your wishes and feelings are, although it seems you do a pretty good job of that yourself”, before adding “I will always allow you to be present at the hearing and, if the Official Solicitor agrees, I will hear from you.  I have never had an Official Solicitor tell their client to shut up”.

Listing the next hearing for the morning of October 25th 2021, HHJ Hilder explained that she was “a natural optimist. I’m hoping the next time we meet, with your niece’s help, you will have found somewhere to move in to.  It’s sensible when you are out of the house for us to take further steps to make your house safe.“

A note about the Transparency Order

Non-parties were given a copy of the transparency order and asked to sign a register at reception. My home address would have been visible to others completing the form as only a single page was used to record all the details. As it transpired, I was the only non-party present and the only person to sign the register.

I was asked at the beginning of the hearing to confirm that not only had I received the transparency order but that I understood it as well.  

The hearing was being held in public to allow “anyone who wants to, to come and keep an eye on how the courts are working”, the Judge explained to the court. Mr JD was reassured that his personal details wouldn’t end up in The Sun!

Daniel Cloake is a blogger and news gatherer with a keen interest in law and the justice system. This post was originally published on his own site, “The Mouse in the Courtroom” (where you can read his many other blog posts).  He tweets @MouseInTheCourt

Photo by Artemis Faul on Unsplash

Challenge to Lasting Powers of Attorney

By Claire Martin, 23rd September 2021

I observed a remote hearing (COP 13339015) at Lincoln Family Court on 6th September 2021. District Judge McIlwaine was presiding. 

The case concerned a challenge to Lasting Powers of Attorney from the Office of the Public Guardian and was preparatory to a final 3-day hearing starting on 27th September 2021. 

The applicant is P’s daughter, who currently has Lasting Powers of Attorney for both health and welfare, and property and finances (i.e. her mother, when she had capacity to do so, chose the applicant to exercise decision-making powers on her behalf).

P is now 96 with a diagnosis of advanced dementia. She lives with her daughter and her daughter’s partner.

The application was originally made in 2018, for approval of payments to P’s daughter from P’s assets for care provided (historically and ongoing) and for renovations to P’s daughter’s home to extend the property to provide more space for P, and to facilitate visits more easily. Some of the money has already been withdrawn from P’s funds, including for a car, so one issue for the court is whether to approve these payments retrospectively. 

Alex Cisneros was counsel for the Office of the Public Guardian, which is one of nine respondents. Six of the other eight are (I believe) P’s other adult children, all as litigants in person. There appears to be concern within the family, and for the Office of the Public Guardian, about whether P’s daughter is managing the role of Lasting Power of Attorney appropriately. There is also disquiet about ease of contact with P for the wider family. Family members will each be preparing position statements for the final hearing. 

The Office of the Public Guardian has stated its position on P’s daughter’s application: it agrees that recompense for caring duties is appropriate, disputes retrospective funding for a car, and advocates for the appointment of a finance deputy. 

Issues to resolve at the final hearing are: 

(a) The amount of remuneration for gratuitous care provided, and to be provided, to P.

(b) Discharge or conduct of the recipient of a Lasting Power of Attorney.

(c) Appointment of a Professional Deputy for property or affairs.

(d) Indication of the level of contact with P by family members.

The remainder of this hearing was focused on how the parties would be attending the hearing (several of them live abroad). 

DJ McIlwaine sought views from all respondents, and from the applicant, regarding the presence of observers at the hearing. He asked each one in turn: “Do you object to the presence of a professional observer?” No one objected to observers attending.

The case will be listed for Monday 27th September – Wednesday 29th September 2021. 

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

Photo by Fakurian Design on Unsplash

Refusing blood products during pregnancy and labour

By Celia Kitzinger, 21st September 2021

The right of a competent adult to refuse medical intervention – even when that refusal will be followed by death – is accepted as a fundamental principle in England and Wales (and in many other jurisdictions).  

In theory, this principle applies equally to pregnant women. 

When pregnant women’s wishes have been over-ruled in the Court of Protection, it’s been because they have been deemed not competent to make their own decisions, i.e. to lack the capacity to understand, retain, or (most often) weigh up information relevant to the decision that needs to be made.  

We’ve published blogs about such cases before. 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.)

Criticism of these decisions often comes from a suspicion that when pregnant women make “unwise” choices about their pregnancies, or their mode or place of delivery – especially choices that might risk the health or life of their foetus – the finding that they “lack capacity” is a ruse to enable clinicians to override their autonomous choices.

So the case I observed – an urgent application before Mr Justice Moor in the Royal Courts of Justice (via MS Teams) – was interesting since it also concerned court-ordered obstetric intervention, contrary to the stated wishes of a pregnant woman, but in this case she was (eventually) found to have the capacity to make the relevant decisions for herself.

The issues

At the time of the hearing I observed, a woman in her 30s (P) is 37-weeks pregnant and already has two young children, both born in hospital after “normal deliveries”.   

Both her previous labours were induced at 39 weeks following diagnoses of obstetric cholestasis which was confirmed by blood tests during both pregnancies.   It’s pretty likely that she will have this condition again, but she’s refusing to allow health care professionals to take blood samples for testing as this would go against her newly-acquired religious beliefs.

Another reason why health care professionals want to do blood tests is that P has a rhesus negative blood type.  If the baby is rhesus positive, antibodies could pass to the baby and cause Fetal Rhesus disease.  The treatment for this condition is Anti-D (a blood product) which she has also declined.

Doctors are also concerned about the clinical need for administration of blood or blood products during or after labour in the event of a major obstetric haemorrhage.

Although P has consented to a number of obstetric interventions, and the Trust considers that she has capacity to do so, she’s refusing all interventions involving blood products. 

The Trust was applying to court for:

  • declarations that P lacks capacity to consent to medical investigation by blood tests and treatment by means of a blood transfusion and/or use of blood products.
  • declarations and orders that it is lawful and in P’s best interests, if necessary, that she undergoes blood tests and that she is administered a blood transfusion and/or blood products if clinically indicated.

Counsel for the applicant Trust was Francesca Gardner. Counsel for P, via the Official Solicitor, was Sophia Roper – and the pregnant woman at the centre of the case also joined the hearing in person from her hospital ward.

It was clear from the position statements issued by the Trust and by the Official Solicitor before the hearing started that they disagreed on key issues.

The position of the Trust

According to the Trust, P is exhibiting various symptoms of mental disorder, and is diagnosed with “a manic episode with psychotic features”, “hypomania” or “persistent delusional disorder” (although I understand that no supporting evidence of P’s diagnosis was included in the bundle).  She’s currently detained in hospital under the Mental Health Act 1983 and prescribed 12.5 mg of Olanzapine, an antipsychotic medication.  

The treating clinicians considered that P lacks capacity to make decisions about these medical interventions on the grounds that she has “delusional beliefs” that render her “unable to weigh up the risks and benefits of refusing blood tests and blood products because her decision making around this is driven by a delusional belief system and new intense religious beliefs in the context of her mental illness”.  

The Trust added:

“During her previous two pregnancies (when capacitous), P consented to the interventions and may well consent in the event that her medication starts taking effect prior to delivery. However, in the event that P was to go into labour whilst still holding delusion (sic) beliefs, the clinicians are of the strong view that it is in her best interests for the necessary medical investigations and interventions relating to the taking of blood and administration of a blood transfusion and/or blood products to take place to ensure the safety of her and her baby.”

The position of the Official Solicitor

The Official Solicitor’s position was that there’s no evidence that P lacks capacity to conduct the proceedings, nor is there sufficient evidence about her capacity to make medical decisions to rebut the presumption of capacity.  

The Official Solicitor accepted appointment as P’s litigation friend on a provisional basis (pending assessment of P’s capacity to conduct her own litigation).

She described P as:

 “… a deeply religious woman who is currently refusing to follow a small number of medical recommendations (she is otherwise accepting of all proposed treatment) because of her religious beliefs; her interpretation of the Bible is that she is not permitted to either accept or give blood; she therefore declines either to have blood tests (should they be required) to accept a blood transfusion or any other blood product.  P’s Article 9 rights under the E[uropean C[onvention] on H[uman] R[ights] are engaged, since the Trust seeks to force treatment on her which is contrary to her religious beliefs.”

Crucially:

“The Official Solicitor observes that P is considered capacitous [by her treating clinicians] in all the areas in which she is willing to take that [medical] advice; it is only where she is not willing to follow medical advice that she is considered to lack capacity”. 

And the Official Solicitor quoted from a previous judgment by Peter Jackson J: 

“The temptation to base a judgement of a person’s capacity upon whether they seem to have made a good or bad decision, and in particular upon whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or, expressed another way, to allow the tail of welfare to wag the dog of capacity. Any tendency in this direction risks infringing the rights of that group of persons who, though vulnerable, are capable of making their own decisions. Many who suffer from mental illness are well able to make decisions about their medical treatment, and it is important not to make unjustified assumptions to the contrary.”  (Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP) at [7])

This is also P’s own point of view.  She appeared in court and said she does not have a mental illness and that she has capacity to instruct her own legal team and does not need the involvement of the Official Solicitor.  Her beliefs concerning blood are, she says, valid interpretations of the Bible, and she is fully able to understand the decisions she is making.

A solicitor, an agent for the Official Solicitor, had met with P two days before the hearing and submitted a witness statement suggesting that P has both litigation and subject-matter capacity.

The Official Solicitor was therefore asking the court to direct that an independent expert should be instructed to determine whether or not P has capacity to conduct this litigation and  to make her own decisions about blood products (and – if not – where her best interests might lie).  She had urgently enquired as to the availability of a psychiatrist able to carry out a assessment and found one able to do and provide a report within a week.

The Official Solicitor considered it would be “premature and potentially cause significant injustice to proceed with a final hearing” on that day – more than two weeks before P’s due date and that the final hearing should be deferred until the independent report was ready.

The hearing

The hearing started almost half an hour late because, with the judge’s permission, the parties had engaged in “productive discussions” about the way forward, and had drafted an agreed order.  It was also a very short hearing – just 40 minutes.

Instead of a final hearing today, an independent expert would be appointed to assess P’s capacity in two areas: (1) her capacity to conduct this litigation, instructing her own solicitor rather than relying on the Official Solicitor (as she said in court she wanted to do); and (2) her capacity to make her own decisions about interventions involving blood products.

If P has capacity to make her own decisions about blood products, then the court has no jurisdiction.

The judge agreed that there was “insufficient evidence before the court today” to make the declarations and orders requested by the applicant and arranged for another (final) hearing 10 days later.

There was some discussion about what would happen if P went into labour in the next 10 days – but she hadn’t had early labours with the two previous children and there was no reason to think that she would on this occasion either.  If that were to happen, the Trust could make an urgent application to the court.  The judge declined to make the interim declaration the Trust seemed to hope for, to the effect that if P were to go into labour before the final hearing then blood products could be given in her best interests: “the point about the jurisdiction of the court really trumps everything, doesn’t it”, he said.  

I delayed writing about this hearing, hoping to be able to attend the final hearing and report on the outcome of the case.  But that never happened. 

The next hearing was vacated.  

On enquiry, I was told that this was because the proceedings concluded by consent on the basis that P was found to have capacity to make the relevant decisions.

I don’t know what decisions P made – but clearly, they were hers to make.  The Trust had speculated that P might regain capacity to make the relevant decisions before going into labour as she was “fully compliant with her prescribed antipsychotic medication”.  Perhaps by the time she was assessed by the psychiatrist she had agreed to administration of a blood transfusion or blood products if they were medically necessary.  Or perhaps, she continued to refuse blood products and was deemed capacitous nonetheless.  Either way, I hope the labour went well and that mother and baby are flourishing.

Comment

This hearing showed the importance the Official Solicitor attaches to the presumption of capacity, and the danger of treating “unwise” decisions as evidence that a person may lack capacity.  That’s reassuring.  

It was also reassuring to see the Official Solicitor’s commitment to protecting religious freedom.

But it’s quite frightening to see how clinicians can so readily  treat someone refusing treatment as lacking capacity – in the absence of any convincing evidence they were able to present to the court.

Obviously it’s hugely distressing to medical practitioners when a capacitous pregnant patient refuses medical treatment that aims to support her own or her foetus’s well-being – as in this harrowing description of the avoidable death of a pregnant Jehovah’s Witness and her baby.

But compelling treatment of pregnant women and overriding women’s rights is not an option.

Pregnancy does not constitute an exception to the principle that a capacitous adult has the right to refuse medical treatment.

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

Photo by Tools For Motivation on Unsplash

Forced Marriage Convictions: A view from the police

By Mindy Mahill, 15 September 2021

Editorial note:  We have watched several hearings concerning forced marriages in the Court of Protection. Here is some expert commentary to provide some background on how these cases are investigated. Anyone affected by the issues raised here can contact the UK Government Forced Marriage Unit – call 0207 008 0151 for advice and support for those facing forced marriage & practitioners in this field.

My background

I served as a Police Officer with West Midlands Police for 30 years and retired in 2019. I was a detective for 20 years working in local CID, counter terrorism unit and then for my final four years with the Public Protection Unit. 

I am a recognised expert in forced marriage and regularly advise Police Forces nationally on cases and provide expert evidence. I also work as an associate providing training to Police Forces and partner agencies. I am an Ambassador for the ‘Sharan Project’ which is a forced marriage charity who assist South Asian victims. I have contributed to an academic book titled ‘men masculinities and honour based abuse’ and also featured on a BBC crime series titled ‘the moment of proof’ which featured the first forced marriage conviction in England.

I am from an Indian Sikh background and class myself as second generation Indian in the UK. I was born and raised in Walsall, West Midlands which was an ethnically diverse community. I put my language and cultural skills to good use when I joined the Police by regularly translating for my colleagues.

My language and cultural knowledge have definitely helped me throughout my career and never more than when I started working within a public protection unit dealing with domestic violence cases.

Forced marriage when the victim can and does refuse consent

In 2017 I was working in the PPU when I was asked to take on a case of forced marriage. The victim in this case was a British born Pakistani female. The victim had many complex needs and had had a very troubled upbringing. She was especially guarded of Asian men. I used my experience dealing with victims and also the experience of being a father to two girls to gain her trust and confidence.

It was important for me to understand the laws in the UK for forced marriage because I had never investigated this offence before. The key aspect of the offence is related to consent:  if one or both parties don’t consent then it is forced. The offence is also committed if the victim cannot consent due to lack of capacity.

The victim in the 2017 had full capacity to make her own decisions but required an advocate to assist her in providing her evidential account and also her evidence at court. She was initially taken to Pakistan by her mother at the age of 11 and from the investigation I believe she went through some kind of wedding ceremony. She returned to the UK pregnant after her 12th birthday. She then spent many years in care and when she was reaching 18 her mother took her out of care and took her to Pakistan. She turned 18 in Pakistan and was then told she was marrying a man much older than her, she refused this but was unfortunately in a country she was not familiar with and had threats made to her, however she did manage to alert family members in the UK but by the time action could be taken she had been married to the same man that she went through a ceremony with when she was 11. (For a journalist’s report of the case click here.)

One of the main issues that arose during this investigation was proving that a marriage ceremony had taken place and having the evidence. This offence occurred in Pakistan and I found it extremely difficult to get evidence from a country we have no jurisdiction over. We had to piece evidence from different sources and witnesses. Another huge issue was keeping the victim on side, she had been so damaged over the years. 

Because this was the first case of its type being prepared for trial in England I did feel under pressure to get a positive result. A case of this magnitude cannot be investigated by one person and I was fortunate to have a small team working with me. I also worked very closely with CPS and our barrister. I think the most difficult aspect of this case was her safeguarding because she was at very high risk of harm from family members who felt she had brought shame on her family by reporting it.

This case literally took over my life, I was conducting safeguarding of her every day including days off and even calling her from holiday. The trial lasted 3 weeks and the victim gave evidence without special measures. Her mother initially denyied that  any marriage had taken place in Pakistan – however once she was shown evidence of the wedding (the wedding DVDs and some photographs)  she changed her defence.   She then  maintained that it was the victim’s idea to marry. aWe had managed to obtain the wedding DVD’s and some photographs.

The mother was convicted of forced marriage and received a 3.5 year custodial sentence, the maximum sentence being 7 years. Because this was the first case in England the judge did not have any sentencing guidelines and although I was hoping for a longer sentence overall it was an extremely satisfying result.

This case was the start of a journey I had never had expected to go through in my career. Because of the experience I gained in this case I started to then take on more cases of honour based abuse. To date I have applied for more than 20 forced marriage protection orders and repatriated victim from Pakistan, Bangladesh, Dubai, Iraq, Afghanistan, Somalia and Sudan. In all of the cases the victims have been young girls aged from 17 – 23.

A Forced Marriage Protection Order (FMPO) is a civil order that is granted by a senior family court judge. If the victim is out of the jurisdiction of the UK then the case has to be heard at the Royal Courts of Justice (RCJ) in London. If the victim is in the UK then the case can be transferred to a local family court however this decision will be made by the RCJ, some serious cases will still only be heard at the RCJ. Nearly all of the FMPO orders I have dealt with none of the victims have supported a criminal case of forced marriage. Many victims still love their families and do not want to criminalise them. Many of the victims have endured horrendous ordeals and as an investigator I need to respect their wishes and not push them into making a criminal complaint. One of the biggest challenges I face time and time again with the repatriation of victims from abroad is if they do not have British citizenship.

We have many communities in the UK who hold EU country passports but have lived here for many years under the EU citizen program, some are even born here but hold passports from other countries. Once the victim travels abroad for example on a Dutch passport and they require assistance because of a forced marriage I would then need assistance of the Dutch government because the British Government would not have any jurisdiction. I do find this very frustrating because even though the victim has habitually lived in the UK they are not treated as UK citizens and it becomes a very beaucratic process.

I took on another case of forced marriage in 2018. The victim in this case was a British Pakistani girl. Her parents live in Pakistan and she was raised in the UK by her uncle and aunt. She was raised by them but not treated the same as their own children. When she was 19 she went to visit her parents in Pakistan after being told her mother was ill. Once there she was held captive by her uncle who had raised her, he attempted to force her to marry. The victim managed to alert the authorities in the UK and she was eventually repatriated using a forced marriage protection order. Once back in the UK she made a complaint of forced marriage against her uncle and aunt.

Again this case proved difficult to investigate because the offence occurred in Pakistan and much of the evidence was there. What also made this case difficult was that no actual wedding took place. It is important to understand that an offence can be committed if there has been a real threat of forced marriage. I did manage to secure some evidence in Pakistan and even had witness testimony from there, this did prove difficult due to having to use technology over the internet. I had problems with Internet access and the time difference between the two countries. This case took two trials before a jury reached a guilty verdict. I was now the first officer to secure two convictions for forced marriage in England.

I think keeping the same team from the first case was definitely a winning formula but in these cases there are no actual winners, victims can suffer years of abuse and their safeguarding is more important than getting convictions. Some of the toughest honour based abuse cases I have investigated have not resulted in a criminal case. The majority of victims do not want to criminalise their families and I have found that many of the perpetrators in honour based cases are not criminally known to the Police.

Forced marriage without capacity to consent or refuse

I have also investigated cases where the victim has reduced capacity. These cases are particularly difficult to investigate because many of the victims cannot speak for themselves and evidence is generally provided by partner agencies. Because of my own Asian background I know that many families want their children who have capacity issues to be looked after once they have passed away and they do not want the burden of them being looked after by their siblings. For this reason they are taken ‘back home’ and married. In many communities this is not looked upon as ‘wrong’ and is accepted that the family have done this in the best interests of their child. It can be said that some families do not even know that it is ‘forced marriage’ and a criminal offence.

A capacity case of forced marriage is extremely difficult to investigate because the threshold test for Criminal Prosecution Service is very high. In a recent case that I investigated all of the professionals involved with the victim stated that the victim lacked capacity to marry. However after several Family Court proceedings, an expert judged the victim to have enough capacity to consent to marriage – which conflicted with every assessment that had been done previously. (There is no published judgment.)

Some cases come to police attention once the marriage has taken place – but if the police are informed in advance of a marriage taking place then they can apply for a FMPO which will prevent the marriage going ahead, giving the police time to investigate and provide evidence to a family court judge.

Understanding the problem

I have now been investigating forced marriage and honour based abuse/violence for over five years and get asked all the time how it can be best investigated. In my opinion it is important to understand the community first. 

I will use Birmingham as an example. Birmingham has a large south Asian community and is heavily represented by India, Pakistan and Bangladesh. There are certain areas of Birmingham where a whole street literally mirrors a village in Pakistan and what I mean by this is that entire families in that street originate from the same place back home. I grew up in a very similar street and know that my parents wanted to be around their own community because they felt more comfortable and safer. The communities also surround themselves with creature comforts from back home which results in vibrant High Streets where they can buy everything they need that reminds them of back home. I find that many Asians will try to hang on to as many traditions and cultures from back home, although they have come to the UK for a better life they are still very proud of their roots.

A trip back home is a very important time and many families will see off their relatives and even go to the Airport in large numbers to see them off. When the first generation of Asians came to the UK families had to make a choice of who from the family came to England. Many families were from a farming background so somebody had to stay back to look after the farm. Fast forward to now and those that were left behind have an expectation that their siblings who came to the UK will return with their children who will marry relatives from back home so they can now come to the UK for a better life. In many South Asian cultures marrying first cousins in not uncommon.

In cases I have dealt with, victims have told me they had been promised from a young age to their first cousins, so growing up they knew that they did not have a choice of who they married. However after growing and being educated in the UK, they have nothing in common with their family members back home and feel that marrying them would not be compatible.

Many victims of forced marriage are tricked in going back home because they have either told their parents that they will not marry there, or it’s what their parents suspect. In many cases victims end up in remote regions where they do not understand the local area and sometimes even struggle with the language. Victims get trapped abroad and have limited options of getting help.

In the UK it is not difficult to get help from the Police or partner agencies, almost every adult has a mobile phone and Wi-Fi is freely available, however is some regions of South Asia having constant electricity and water can be struggle let alone WIFI. In many of the cases of I dealt with the victim have managed to either email an educational establishment or contacted a friend when they have had the opportunity. I have now repatriated victims of forced marriage from South Asia, the Middle East and Africa and each case comes with different problems and sometimes very little solutions. 

I have recently dealt with victims who have come to the UK from various European countries so hold passports from those countries. When they travel abroad they are not ‘British citizens’ even if they have habitually lived in the UK so if they get into difficulty they have to get assistance from the country they hold the passport for. If it is a case of forced marriage and the victim and suspect live in the UK then it is generally reported here and not in the country they hold the passport for. Some victims born in the UK will hold passports from countries their parents have nationality for example Holland. 

In a recent case I had to liaise with the Dutch Embassy in London to assist a family trapped in Sudan. This case involved young children some of which were born in the UK, however they held Dutch passports. The family no longer had any ties to Holland and had lived in the UK for many years but unfortunately they were deemed to be Dutch national so could not be assisted by the British consulate in Sudan. This case was very challenging because I had no jurisdiction in Sudan and the victims needed to be repatriated back to the UK. I worked with the Dutch consulates in London and Sudan to eventually repatriate the victims.

Investigating forced marriage and HBA/HBV is very challenging but also extremely rewarding, preventing victims from going through forced marriage and honour based abuse from their families is something I am passionate about.

Mindy Mahil was the officer in charge for the first forced marriage conviction in England.  Since this case, he has worked with partner agencies in the UK and abroad in repatriating victims who have been subject to forced marriages. He is nationally recognised as a forced marriage expert and provides expert evidence to the courts.

Coercive and controlling behaviour and undue influence: What is the role of the local authority?

By Bridget Penhale, 13th September 2021

I recently attended most of a 3-day Court of Protection hearing (reported in a blog post by Prof. Celia Kitzinger) concerning alleged coercive and controlling behaviour and undue influence by a man (NC) in relation to an older woman (BU). BU had stated that she wished to marry (or form a civil partnership) with the man.  BU’s daughter had applied for a declaration that BU lacks capacity to make decisions about contact and decisions about  entering into marriage or civil partnership: she was also seeking an order to prevent NC from having contact with her mother – or, alternatively, a Forced Marriage Protection Order.

There were two expert witnesses engaged by the Court to undertake assessments of the woman. The first, a Consultant in Old Age Psychiatry, provided evidence about BU’s cognitive functioning and capacity. The second, a psychologist, provided evidence about coercive and controlling behaviour and undue influence in the relationship between the woman and her partner.

Although judgment has not yet been handed down, the hearing led me to reflect on several issues in relation to aspects of violence, abuse and safeguarding, and their intersection with capacity related issues.

One of the areas that interested me was the position taken by the Local Authority in relation to safeguarding BU. 

One of the issues that was discussed in the hearing was whether some form of supervised contact between the partners in the relationship might be possible and if this could be provided by the Local Authority. 

The barrister (Laura Twist) appearing for the Local Authority indicated that the Local Authority would not be able to assist with any proposed supervised contact between BU and NC as they did not have the necessary expertise to provide effective supervision. Further, the Local Authority did not have any required specialist in-house services in this specific area.

As a former social worker and social work manager, as well as an academic, the Local Authority position on supervised contact was somewhat surprising to me. 

Social workers may not routinely provide supervision for contact arrangements in adult social care, but as a result of their training, most social workers have well-developed assessment skills, particularly in relation to observation and analysis of situations. 

Social workers also develop experience in handling potential distress or even conflict during assessments (or reviews) of family members. 

In addition, social workers in Children and Families Social Care may well be involved in supervising contact visits between parents/carers who are separated from their children, so might be able to assist their counterparts and colleagues in Adult Social Care to provide such a service, or to provide some guidance about this. 

Such provision would not necessarily be seen as a ‘specialist service’ or one that requires either specific expertise or specialised training. 

The Local Authority could also consider commissioning such a service from a provider (if use of social work time to carry out this task was seen as an expensive use of resource). 

The second expert witness (Prof. Dubrow-Marshall) had proposed a specialised psycho-therapeutic intervention to address the coercive and controlling behaviour in the relationship. He had described this as particularly in the interests of the woman to help her to re-establish her self-identity. He had also said that the intervention should ideally also be provided to the man – suggesting that therapy would be offered both individually and possibly also together in due course. 

The Local Authority’s position was that this was a health-related need and the Local Authority did not provide psychological services. This intervention would therefore need to be sought either through the NHS, or privately. 

Although technically it would be possible for the Local Authority to commission such an intervention, the stated position was that the Local Authority would/could not commission such an intervention as it was related to a health need. The dividing line between health and social care need is a fine one in situations such as these – but given the expressed view that this was clearly a health need, it was an understandable outcome, particularly as Local Authorities do not generally have responsibility for providing psychological interventions.

In relation to whether the Local Authority would have any ongoing involvement with the individual, it appeared that much depended on the situation as it might develop, and which might arise from the final orders issued and the possibility of further arrangements that might be needed. 

For example, if BU was deemed to have capacity to decide about marriage or civil partnership and was not prevented from entering into one (e.g. via a Forced Marriage Protection Order), then concerns about management of her financial affairs would be likely to occur, irrespective of the existence of the Financial Deputyship. Although she might have capacity to consent to marriage, she might not have capacity to make decisions about her financial affairs (and this latter point had been established at an earlier hearing in late 2020). Moreover, if the individuals were married or cohabiting it was considered that it would be extremely difficult for such a Deputyship in relation to financial affairs to operate effectively. 

However, as it stood, at the time of the hearing, the Local Authority did not consider that there were any outstanding/unresolved needs relating to safeguarding and there was no open safeguarding matter, as the individual did not appear to have ongoing needs in relation to care and support that might require assistance from adult safeguarding. The previous safeguarding matter in relation to alleged/potential financial abuse had been resolved in November 2020 with the Court appointment of a Financial Deputy and no additional needs had been identified since then. At that point in time, it would seem likely that needs for care and support had been identified, as safeguarding duties only apply if the individual has care and support needs (irrespective of whether the Local Authority is meeting those needs at that time).

The Care Act 2014 criteria relating to adults in need of care and support are:

Needs which meet the eligibility criteria: adults who need care and support

2.—(1) An adult’s needs meet the eligibility criteria if— 

(a) the adult’s needs arise from or are related to a physical or mental impairment or illness;

(b) as a result of the adult’s needs the adult is unable to achieve two or more of the outcomes specified in paragraph (2); and

(c) as a consequence there is, or is likely to be, a significant impact on the adult’s well-being.

(2) The specified outcomes are— 

(a) managing and maintaining nutrition;

(b) maintaining personal hygiene;

(c) managing toilet needs;

(d) being appropriately clothed;

(e) being able to make use of the adult’s home safely;

(f) maintaining a habitable home environment;

(g) developing and maintaining family or other personal relationships;

(h) accessing and engaging in work, training, education or volunteering;

(i) making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and

(j) carrying out any caring responsibilities the adult has for a child.

(3) For the purposes of this regulation an adult is to be regarded as being unable to achieve an outcome if the adult— 

(a) is unable to achieve it without assistance;

(b) is able to achieve it without assistance but doing so causes the adult significant pain, distress or anxiety;

(c )is able to achieve it without assistance but doing so endangers or is likely to endanger the health or safety of the adult, or of others; or

(d) is able to achieve it without assistance but takes significantly longer than would normally be expected.

(4) Where the level of an adult’s needs fluctuates, in determining whether the adult’s needs meet the eligibility criteria, the local authority must take into account the adult’s circumstances over such period as it considers necessary to establish accurately the adult’s level of need. 

(NB: The items that I have highlighted in Bold font in 2) above, namely points g) and i), would appear the needs most likely to have applied in this situation). 

Although the first expert witness, with a background in old age psychiatry, stated that from his assessment, the woman did not have capacity in relation to decisions about contact, and a previous lack of capacity concerning financial decisions had been established at the previous hearing (in November 2020) and was not re-visited here, it was not clear from the discussions in the hearing what the precise nature of the ‘disorder of mind or brain’ was, as the first witness in this hearing indicated that he did not consider that the impairment was wholly related to a dementia-type illness – and the second expert witness had restricted his assessment to coercive control and undue influence and had not been commissioned to undertake any assessment of capacity. 

Equally it was not clear what needs for care and support might have previously been identified during consideration of capacity concerning financial affairs (see point above re: safeguarding duties), or indeed when, or if a Care Act assessment might have happened, which would have considered possible needs more fully, especially relating to the specific eligibility criteria under which an assessment would take place.

As an expert in safeguarding and particularly abuse of older people, the Local Authority position on safeguarding was intriguing. The sub-text of the statement that was made appeared to be that since the concerns about potential financial abuse of the woman had been dealt with some months previously at the previous hearing, there were not any ongoing safeguarding concerns that required attention – albeit in part due to existing restrictions on contact between BU and NC. Yet, this seemed to be a rather narrow conceptualisation of needs relating to abuse, neglect and safeguarding for the following reasons.

The parties in the hearing (apart from NC, who appeared as a litigant in person) appeared to be wholly in agreement that the woman had been subjected to coercive and controlling behaviour and undue influence.  

In effect (as per the evidence from the second expert witness), her experience was of a totalising nature and essentially her identity had been subsumed into the man’s identity – and this was considered to still be the case even after some months of restricted contact between them. 

Moreover, the man had previously breached the existing ‘No contact’ order/injunction on a substantial number of occasions (an example was given during the hearing of some 40 times in a two-month period) and had stated that he had done this as he believed it was in the woman’s best interests to have contact with him. The risks of experiencing continuing coercive control and undue influence (irrespective whether this was due to any malign intent or not) therefore appeared to remain high – and such experiences could result in care and support needs, including those resulting in an inability to protect herself from abuse and harm. A further social care assessment would be needed to determine if this was the case or not (this would be the situation whether those needs were being met by the Local Authority or not). 

Coercion and control can occur without the emergence of any needs for care and support, but there could nonetheless be a significant impact on individual capacity, for example if decisions were being made under duress or intimidation, and a thorough assessment would help to establish the likelihood (or not) of this being the case. In this instance, the stance taken by the Local Authority seemed, principally to revolve around financial concerns, rather than a more holistic conceptualisation of safeguarding and consideration of violence, abuse, neglect and/or exploitation, including coercion, control and undue influence.

The Care and Support Statutory guidance (latest edition April 2021) which was developed to accompany the Care Act 2014 (and first issued in 2015) contains clear statements that when considering needs for safeguarding of adults at risk, definitions of abuse and neglect should not be drawn too narrowly. Although coercive and controlling behaviour and undue influence were not specifically originally included within the Care Act but appeared subsequent to the Act’s implementation within the Serious Crime Act 2015, understanding of the nature of such acts, perhaps particularly as they might relate to adults with likely needs for care and support have been developing in recent years, since the implementation of the latter Act. The statutory guidance framework on Coercive and Controlling Behaviour produced by the Home Office in December 2015 states clearly in the Introduction, at point 4: 

Controlling or coercive behaviour should be dealt with as part of adult and/or child safeguarding and public protection procedures.

In any case, since in overall terms the Care Act is premised on a clearly stated principle of promoting and maximising individual well-being, it seems reasonably apparent that such behaviours, especially in the long-term are likely to have very negative impacts on an individual’s well-being, so should be particularly considered in relation to this aspect of the legislation. Understanding the well-being principle in relation to abuse and harm (and ultimately safeguarding) is thus clearly needed. Well-being appears to include the ability of individuals to live their lives free from abuse and/or harm and to be protected from these, if they should occur, or if there is risk of them happening. Risk to individual well-being and safety may therefore also require some consideration of safeguarding matters.

In the Care and Support Statutory guidance (updated 21 April 2021), the following statement appears in Chapter 14, which deals specifically with Safeguarding:

14.17 Local authorities should not limit their view of what constitutes abuse or neglect, as they can take many forms and the circumstances of the individual case should always be considered, although the criteria at paragraph 14.2 will need to be met before the issue is considered as a safeguarding concern. 

Exploitation, in particular, is a common theme in the following list[1] of the types of abuse and neglect.

The criteria set out at 14.2 of the Guidance document are:

14.2 The safeguarding duties apply to an adult who:

  • has needs for care and support (whether or not the local authority is meeting any of those needs)
  • is experiencing, or at risk of, abuse or neglect
  • as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.

A further document issued by the Local Government Association, reminds local authorities about their responsibilities relating to safeguarding and also indicates that it is important not to take too narrow a perspective on abuse and harm (and associated risks of these happening) and the relevant links to the wellbeing principle (LGA 2020). Taking into account the potential effects of (different forms of) abuse and harm on individual wellbeing also requires consideration of the ways in which risk to an individual could be mitigated. This may well also include the need to use legislative powers, on occasion.

Safeguarding and consideration of apparent needs for care and support (and responding to them, if/as necessary) very much appear, therefore, to be central to situations of coercive and controlling behaviour. This seems to be particularly relevant if an individual lacks capacity to decide for themselves about key issues such as contact or marriage/civil partnership. If the lack of decisional capacity falls within the remit of the Mental Capacity Act 2005 (Section 2 (1)) then the Court of Protection is likely to need to be involved in such decisions and there is perhaps an imperative for the Local Authority to also be concerned about, if not involved in, the way that such issues might relate to safeguarding concerns (real/actual or potential and the associated risk of harm). As the Local Authority has a ‘lead agency’ role in adult social care, including safeguarding, there might be an expectation of involvement, nevertheless. 

If however the lack of capacity is not due to any ‘impairment of, or disturbance in the functioning of the mind or brain’ but due to the existence of the coercive or controlling behaviour and undue influence from another person, then there may still be a need for the COP to be involved in determining matters of inherent jurisdiction – so the Local Authority could still have some interest in such aspects as they might relate to safeguarding, particularly as this would be likely to concern individual well-being.

A briefing by the Social Care Institute for Excellence (2014) provides further detail of the circumstances in which inherent jurisdiction might be accessed. The briefing emphasises an important and key point: that the purpose of the inherent jurisdiction is not to overrule the wishes of an adult with capacity, but to ensure that decisions are being made freely. In situations of coercion and control, however it may be very likely that the person cannot make decisions of their own volition.

Of note in s2(2) of the MCA is the point:  “It does not matter if the impairment or disturbance is permanent or temporary“.

Given this statement, it could be possible to develop an argument that coercive or controlling behaviour from another person might render another individual incapable of taking their own decisions and thus constitute a disturbance in functioning of the mind or brain, even if of a temporary nature. 

This could perhaps be especially likely if there were some degree of intimidation (even if not overt) experienced by the person involved, so that they were fearful of taking or expressing any decision that could be perceived as contrary to the view of the other person, or a perception that this would be going against the rules that they need to follow, that have been developed by the perpetrator (Pike, 2016). This could apply even if the total immersion of individual identity into another’s identity does not take place. 

In any case, the impact of coercive and controlling behaviour on an individual’s capacity to take decisions needs to be considered as far as possible. Coercive power has been explained as being used to inflict unpleasant or painful consequences on someone acting on their own choices, so that the individual therefore chooses instead to follow the decisions or choices made by the person controlling them (Gilbraith 1982). The range of tactics used by perpetrators of such control includes isolation, intimidation, and threats, as well as control over aspects of daily life – in effect such people seem to work to ‘limit space for action’ (Home Office 2015: 4) by the individual who is subject to such control. Further, if there are additional factors that influence decisional capacity, such as a cognitive impairment or learning disability, then there could be a cumulative and significant effect on decision-making ability. 

My recommendation is, then, that local authorities should therefore consider needs for safeguarding, in a broad sense, in situations of coercive and controlling behaviour and undue influence of adults with likely needs for care and support. This may include making the situation as safe as possible for the person and provision of ongoing monitoring and review of the circumstances, perhaps via a duty of care, even if not directly by those with safeguarding responsibilities.

Bridget Penhale is Reader Emerita at the University of East Anglia, Norwich and also an independent consultant on elder abuse, adult safeguarding and adult social care. She tweets as: @bpenhale

References:

DHSC (2014) Care and Support Statutory Guidance, London: Department of Health and Social Care (updated 2021)

Gilbraith, J. (1983) The Anatomy of Power, Boston: Houghton-Mifflin

Home Office (2015) Controlling or Coercive Behaviour in an Intimate or Family Relationship: Statutory Guidance Framework, London: TSO

LGA (2020) Understanding what constitutes a Safeguarding Concern, London: Local Government Association (LGA)

Pike, L. (2016) Supporting people with social care needs who are experiencing coercive control, Dartington: Research in Practice for Adults (RiPfA)

SCIE (2014) Gaining access to an adult suspected to be at risk of neglect or abuse: A guide for social workers and their managers in England, London: Social Care Institute for Excellence (SCIE)

Legal:

Care Act 2014

Mental Capacity Act 2005

Serious Crime Act 2015

Acknowledgements

Thanks are due to current experienced practitioners in Adult Safeguarding, including the Norfolk Safeguarding Adults Board (SAB) Board Manager, for their comments and expertise in safeguarding and coercive control and to the Open Justice Court of Protection Project for discussion about the COP hearing.

[1] The list of types of abuse is provided in the statutory guidance document

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