An invisible attention bias: A response to ‘The elephant in the courtroom’

By Kathryn Mannix, 31st August 2021

A recent blog post by Celia Kitzinger is a great review of a court hearing and the problems lying behind it, and it’s made me reflect on our attention biases. 

It is, of course, a breach of guidelines if review dates for treatments and/or decisions pass without the required review taking place. 

Technically, a decision might be supposed to have lapsed if it exceeds its ‘review-by’ date, but because cessation of treatments (or safeguards) should not take place without a review, the effect of a missed review is usually, simply, to carry on as before. It is commission by default.

What of missing the review of a ReSPECT form or a Do Not Attempt Resuscitation (DNACPR) decision? The vulnerability here is that, if the decision is deemed to have lapsed,  then CPR might now be administered should the person collapse, not because the grounds for not proceeding have changed, but simply because of the failure to review the decision. Conversely, if the response to a missed review date is to carry on with the same decision, then if circumstances have changed that make CPR a desirable intervention when before it was not, carrying on beyond the review date risks omission by default of a now desirable treatment.

I wonder what checks and balances we can put in place to ensure that the case managers, care home managers, District Nurses, GPs, ward managers, or consultants nominally ‘in charge’ of a patient’s care do carry out reviews of these decisions using a best interests approach if P lacks capacity.  

 How can we enable people with Power of Attorney to receive a list of all decisions applying to P, with their review dates, so they can advocate for review and participate in the best interests process, especially as, in some cases,  the person with Power of Attorney is (or should be) the Decision Maker?

Listing and reviewing treatments, decisions and prescriptions

In fact, simply making that list with dates of all the decisions needed for all patients would be a great start. 

These things pass hidden in plain sight: care handovers and discharge summaries should include a list of all decisions and prescriptions in place, with their individual review dates.

After many years as a hospital doctor in palliative care, I understand how this gets missed. 

After and during the course of an initial acute event, life-saving treatments are given (if not forbidden by an advance decision to refuse treatment) while the team assesses the impact of the illness or trauma, in the hope of good recovery. The best interests decision is often invisible at this stage: trying to save a life is assumed to be the right thing to do and nobody notices that, in effect, one or several best interests decisions have been made.

So now P has perhaps a naso-gastric tube or PEG; a central iv feeding line; a tracheostomy tube attached to a ventilator. These become ‘the new normal’ and there is an attention bias that assumes continuation of that norm.

Because withdrawal of a ventilator is so obviously potentially life-threatening, discussions of withdrawal usually trigger an appropriate best interests process. But it’s possible to move P’s care from ICU to ward, from ward to rehab, from rehab to long-term care or home, without re-examining clinically assisted nutrition or hydration, and so P’s treatment continues without re-examination. There is an attention bias that goes unnoticed and unchallenged.

I’ve often thought that clinically assisted nutrition and hydration should be subject to far more frequent review over its first few months, before it becomes accepted as ‘the new normal’ with associated attention bias towards continuing: at 48h; 1 week; 4 weeks; 3 months; 6 months. Each is an opportunity to review progress and to help loved ones to consider P’s known wishes and discuss them with the clinical team.  At each best interests-based review point, the whole team and P’s loved ones can consider P’s quality of life as improvement/rehabilitation progresses or fails to progress.

An expectation of regular review and best interests discussions between care team and P’s advocates, attorney(s) or family would prompt examination of all aspects of the decision, and so reduce susceptibility to an invisible attention bias.  Those discussions would also encourage the question that P’s father finally raised in this case: is clinically assisted nutrition and hydration in P’s best interests –  allowing it to arise in a far more natural way, without seeming to be nihilistic or death-seeking, and without relying on family to raise it.

The Big Picture

Judges in the Court of Protection need to be aware of the Big Picture, both legally and medically, for the people who come before them. The Big Picture includes knowledge and understanding of guidelines for medico-legal decisions that require the attention of a higher court, lest those issues are overlooked when they should be noted and referred upwards. An attention bias towards ‘what we deal with here’ can overlook other aspects of a patient’s situation. That seems to have happened in this case.

The Big Picture a judge must be aware of also includes an understanding of medical decision-making that takes place not in the contemplative atmosphere of a courtroom but in the urgent hubbub of an Emergency Department, a Stroke Unit or other place of urgent care. 

Urgent life-preserving decisions merit reconsideration as time passes, and judges need to understand how medical attention bias arises not as a personal failure of individual clinicians but rather as a human systems error. 

Perhaps, as part of their training for their role, judges might benefit from joining us on ward rounds and spending shifts with us in the Emergency Department. It would be a fascinating exchange of insights to have a judge join us during best interests meetings when we are grasping for the most suitable decision for a person lacking capacity to decide for themselves, and whose loved ones may be engaged in the process or, alternatively,  may be struggling to allow a decision to be made in a manner compliant with the Mental Capacity Act. 

Joining us in the world of medical decision-making might be of huge benefit to judges who need to understand the process P and family, and clinical teams, have been through. It would help them to help us all, as we seek to maintain an overview of the care, protection, freedoms and treatments of people whose rights require our protection and diligence.

Kathryn Mannix is a retired palliative care physician. She campaigns to raise public understanding of the process of human dying and to encourage people to plan ahead, with their loved ones and medical advisers, to ensure their care and treatment aligns with their values and wishes. Her book about the way people live while they are dying, With the End in Mind, is a Sunday Times best-seller and was short-listed for the Wellcome Book Prize. Her book about navigating important conversations, Listen, will be published in mid-September 2021. She tweets as @drkathrynmannix

Photo by Jo Wroten on Unsplash

Should P go to live with her family in her country of birth?

By Claire Martin, 25th August 2021

On 12th August 2021, I attended a hearing (COP 1324896T) with District Judge Beckley at First Avenue House, London. It started at 10.39am. The case has been before the court since 9th May 2018, initially with District Judge Mort. The applicant is P (via her litigation friend the Official Solicitor) and the respondents are (1) the Local Authority, (2) P’s daughter, (3) P’s granddaughter and (4) P’s financial deputy. 

P is an 87 year-old woman, currently (and for the past 50 years) living in the UK. She – and her family – wish her to return to her country of birth to be with, and be (partly) cared for by, them. During the hearing we heard (from P) that her husband has died, she misses him very much and she absolutely does not wish to live in a care home. She is currently living in her own flat, with carers attending (though I am not sure about the frequency of attendance or the type of care they provide, it is clear she has a substantial package of 1:1 care). 

As I sat waiting for the hearing to start, the number of those joining the MS Teams call rose and rose. In the end, there were 14 people in attendance, plus DJ Beckley and me. I am still not clear who everyone was, but this was my list:

  • P herself (assisted by her carer). 
  • Counsel for P, instructed by the Official Solicitor – Sophy Miles.
  • Counsel for the Local Authority – Tara O’Leary
  • P’s Social Worker 
  • P’s financial deputy 
  • ? possibly Official Solicitor
  • ? possibly LA solicitor
  • Someone who is helping to find out about safe, escorted air travel
  • P’s daughter (connecting from abroad)
  • P’s granddaughter (also connecting from abroad, and with P’s daughter)
  • ?
  • Interpreter

A Hearing Crossing Continents and Languages

DJ Beckley introduced the hearing and, I thought, showed a clear eye to ensuring all people felt, and were, included in proceedings. It was a difficult job for him; and it was a difficult hearing for others to be part of – P herself, her family abroad and the other participants too. The remote connection worked well from a technology perspective, though as always, it is very difficult for people not to speak over one another. 

DJ Beckley first thanked the interpreter for attending and agreed the process for interpretation – that each section of dialogue would then be interpreted, in real-time. He introduced me, as the sole observer, and I needed to unmute myself and confirm that I had received and understood the Transparency Order (which I had received prior to the hearing – not always the case). DJ Beckley then asked Sophy Miles, counsel for P, to summarise the case so far. 

P originally came to court in 2018 as part of a s21a Mental Capacity Act application – this is when a deprivation of liberty authorisation is challenged. P was in a care home and did not want to be there. P was deemed to lack capacity to make decisions regarding her residence and care, as well as her property and affairs. The court subsequently declared that P did indeed lack capacity for these decisions, as well as lacking capacity to litigate, hence her representation by the official solicitor. At some point, however, she moved from the care home to her current home, which is her own flat, supported by a package of care. 

P is a vivacious and accomplished woman – and, though she was often upset throughout this hearing, she knew her own mind and expressed her views throughout. P speaks four languages, is a fantastic cook, an excellent knitter, reads the newspaper from her country of birth regularly and, when in better health, travelled between the UK and her country of birth to visit family. 

She has many physical health conditions to deal with – diabetes, osteoarthritis, osteoporosis, ischaemic heart disease, hypertension and asthma. She is also reported to have ‘cognitive impairment’. Though a causal diagnosis for this was not discussed, P takes Memantine which is a medication for people with a diagnosis of Alzheimer’s type dementia. It will be the cognitive impairment that brings her capacity to make certain decisions under scrutiny, and it is likely to have been discussed in more detail at a previous hearing. 

In June 2020 P’s daughter and granddaughter were added as parties and the issue for the court has since focused on P’s best interests regarding whether or not to move to her country of birth. Sophy Miles explained that this was a final management hearing, to decide on the next steps required, before a final hearing can take place. 

Meaningfully Involving an ‘Incapacitous’ P in Proceedings

It quickly became clear that P wished to make the judge aware of her thoughts and feelings. DJ Beckley took time to assure P that he was interested in her views and would make time for her to be heard. 

Early on, Sophy Miles noted that P’s deputy had concerns about her money ‘expiring within two years’ if P moved to her country of birth, necessitating a move to a care home there. P immediately interjected, very upset: “No, No! I don’t go nowhere”. 

DJ Beckley replied: Can I try to reassure you? We are not suggesting you should move now into a care home. We all understand that you wish to live in your own home and – if we can work out the practicalities – in [your country of birth].

P (via the interpreter): I’m not stupid. I speak four languages. I know how to keep a home. You’ll never see me dirty. 

P was crying at this point and the judge attended to her distress, saying he was sorry she was upset and that these hearings can be difficult, especially when remote. It was very hard for P to calm down and listen to what others were saying and she repeatedly interrupted proceedings, in an upset and agitated state. I felt for her, and for everyone at the hearing. It seemed that all parties were trying to do their best and a lot of work had happened in the background. For example, exploring possible escort services for air travel for P, should it be decided to be in her best interests to return to her country of birth; making contact with the equivalent of a social worker in that country to discuss handover of care needs; identification of potential independent guardians for P’s finances if she moves.  The Local Authority and the Official Solicitor (and others) had clearly worked together productively and in the service of trying to progress the issues at hand. 

DJ Beckley explained (several times) to P that he needed to hear from everyone in turn, and that he would come to her for her views. Her family, carer and the interpreter sought to reassure her that she would be listened to. 

Respondents’ Positions

The Local Authority (and the Official Solicitor and P’s financial deputy) has concerns about the sustainability of P’s finances and suitability of the home environment if she were to move, whilst acknowledging the potential emotional benefits for P of being close to her family. P’s deputy had calculated that her money would last 2-3 years at most, on the costings he had available for living near her family. A key consideration is that, were she to remain in the UK, the CCG (which currently funds 25% of P’s care) has confirmed that it would fund 100% of her care when her funds expire.

There remained uncertainty about the care and accommodation proposed for P, were she to move abroad. There has also been some disquiet expressed by another family member regarding P’s daughter’s motives for bringing her to where she lives and overseeing her care, and potentially finances. Her daughter and granddaughter have agreed to make a witness statement detailing the proposed provision for P, including how her finances will be able to support her sustainably:

Judge: I hope you understand how important it is for me to ensure she will be provided for if she moves – including her funds. I’m not seeking this information to be awkward – I want to ensure she will be OK. I also need to ensure she’ll be looked after if she flies home, that it’s in her best interests.

Daughter (via interpreter): I haven’t spoken much. She will be well looked after – she wouldn’t have to wait months and months for her teeth or a wheelchair. It doesn’t work like that in [country of birth]. …. I promised her I would bring her over. I beg you to bring joy back. My daughter and I will take care of her – we don’t need a guardian, we can look after her. Just give this back to her. 

Obviously P heard all of the conversations, and each exchange renewed her distress and her urge to interject and express how upset she felt. She was crying for much of the hearing and, throughout, the judge sought to help her understand what steps he was following to enable him to understand how best to help her. I thought he was kind and compassionate, didn’t seek to stop her being upset, and rather offered a narrative that she might better understand the process and feel some reassurance from that knowledge. 

At the same time, since June 2020, so over a year, this issue of whether it is in P’s best interests to return to her home of birth has rumbled on. I could relate to her and her family’s frustration at the slow pace of things – even though this might not be anyone’s fault per se, it reveals a system that is slow to resolve important life issues when capacity to make those decisions oneself is lost; and P in this case is 87 years old. 

P speaks for herself

When it was P’s turn to speak, she said the following: 

“From what I understand – I haven’t eaten well here, I live on dry bread, [shouting at this point] they don’t feed me here properly. My house was an open home – people came to eat my food. Here I have suffered. If my husband was alive this wouldn’t have happened. [at this point P’s daughter was in tears]. I can’t go anywhere.

I do want to move, but I don’t want my UK citizenship to be taken away.”

It transpired that P was used to going out, with cash in her purse, getting the food she needed, cooking it (for many people) with a feeling of purpose. Since moving into the flat, with carers, (I think) she has been unable to do this. There was some discussion about not wanting to use a card, only cash, and the judge talked about some shops only taking card payments now. I felt so sad for her that this, one of life’s daily pleasures for her, had not been made possible (though of course I do not have any detail of her abilities to do the things she was missing). 

Judge: I understand you’d like your own flat and to be looked after by your family and people like [carer] who is with you now?

P: Of course! Yes I want my own apartment. 

Judge:  Can I check some other things? I understand your false teeth are not comfortable.

P: [gesturing to her teeth] The person making the teeth was useless – they’re not a full set, just the middle. I can’t eat like that! I need a full set of teeth. How do you expect me to eat?!

DJ Beckley also addressed delays with a new wheelchair. The Social Worker informed that an    
independent dentist has been secured for a second opinion and the correct wheelchair is ‘on 
schedule’ and due to arrive in the next week or two. P’s granddaughter explained that ‘food is a big trigger. She needs a cook from (country of origin) community – ‘just one meal a day that’s appropriate to bring’. The judge affirmed ‘clearly food is important. The carer and deputy have heard this – I understand how important food is for people to feel well. I hope people have heard that’. 

This was a brief respite in an otherwise distressing hearing – P’s face relaxed and she smiled, speaking in her first language. Her granddaughter said that P ‘made an invite for all of you to eat her food’ and DJ Beckley asked P to send him a recipe. Everyone was smiling at that point – and it brought some relief to the proceedings. 

The judge then expeditiously moved the hearing along to determining a final hearing date. This will be on Wednesday 13th October at 2pm. I don’t think I will be able to attend. I do hope that P can find comfort and purpose wherever she lives – it seems as if everyone is keen for her to live where she wishes, which is in her country of birth, alongside her daughter and granddaughter. The best interests process in the UK needs to satisfy itself that this is, indeed, the right place for her to be. 

Brief Reflections

I haven’t attended a hearing before where P has been as vocal, or as distressed (as far as I am aware), by the proceedings. I felt quite distressed myself throughout the hearing, even when P wasn’t speaking, because I could see the pain in her facial expressions and that she was crying for much of the hearing. 

DJ Beckley’s approach was compassionate. He handled the frequent disruptions to the process with humanity and a lightness of touch. In particular, I noticed that at no point did he ask P to stop crying or to calm down – instead he validated her feelings and tried to explain to her, in understandable language, what was happening, what he needed to know and what he was going to do next. I thought this was exemplary practice – trying to stop people from expressing their feelings can often be about our own discomfort, rather than about what might be best or most helpful for them. I did wonder whether P might have been offered the opportunity to go first in expressing her views – it was hard for her to listen to others’ views without having had a chance to speak. This might have been difficult for her even if she had gone first, since certain topics (such as whether a care home would need to be considered) were very upsetting for her, understandably. 

P was certainly able to convey her determination, the sense of herself as a woman who knows how she likes to live her life, and her absolute horror at the thought of living in a care home. Her voice came across very powerfully – and I came away thinking that, even though it was clearly a distressing experience for her, it might also have been very important for her to know that those charged with making decisions for her, had witnessed her views directly. 

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 Daniele Levis Pelusi on Unsplash

The elephant in the courtroom: Clinically assisted nutrition and hydration in a hearing about care and residence

By Celia Kitzinger, 23rd August 2021 (Note: This blog has been revised and corrected following correspondence with the two barristers in the hearing I observed. Thank you to both of them for the time they spent on this.)

I’m profoundly disturbed by this case (COP 12913981) before District Judge Beckley, which has been slowly progressing though the Court of Protection for more than two years[1]

It represents a missed opportunity for the court to engage with a vulnerable person’s best interests in a holistic way.  I want to understand how this happened and what can be done to ensure that it doesn’t happen again.  

One benefit of the court’s commitment to transparency (especially in a hearing like this which is unlikely to lead to a published judgment) is that it creates the opportunity for public observers who are concerned by what they’ve heard in court to offer constructive feedback, and hence contribute to the possibility of change.

The case

The question before the court was where the protected party (P) should live and receive care.  

She’s a woman in her 40s, described as being in a minimally conscious state (MCS) following acute demyelinating encephalomyelitis in 2016. Since being discharged from a world-famous neuro-disability hospital with an MCS diagnosis (from a consultant who said to her father, “this is as good as it gets“), she’s been living in a specialist neurological centre for the last five years. There are some indications that she may have in fact regained consciousness (albeit with severe brain damage) and have ’emerged’ from MCS, although this cannot be known for sure one way or the other without further medical evidence.

Proceedings were issued on 17th July 2019.  They concern a difference of opinion between the applicant (P’s mother) and the other parties (including P’s father who was divorced from P’s mother decades ago), as to whether P should relocate to live in her mother’s home.  It has now been agreed that she should remain in the care home, with a few outstanding issues still to be resolved about various investigations and treatments[2].

In focussing solely on the issue of where P should live, the court omitted to consider a key welfare issue. 

Eventually, this was raised by P’s father (who, like P’s mother, was a litigant in person).  He “found the courage to broach this” in an advocates’ meeting shortly before the hearing on 30th July 2021. He believes that continuing clinically assisted nutrition and hydration (CANH) is not in his daughter’s best interests.  

This has been, for him, the “elephant in the room” – the huge, uncomfortable, challenging concern that has remained unspoken throughout the last two years of protracted courtroom discussions about where his daughter should live.  

He says he has never been asked for his views about what his daughter might have wanted in relation to life-sustaining treatment in her current situation.

Nobody has ever asked me about the treatments she’s getting.  It’s taken me to say to those involved, ‘why hasn’t this been done?’  It’s a very long time that [my daughter] has been in this condition.”  

It doesn’t surprise me that health care professionals failed to carry out proper best interests assessments as to whether or not CANH was in their patient’s best interests and simply provided it by default, without consulting about the patient’s values, feelings, wishes and beliefs. That happens frequently. The ethos that supports treatment by default is pervasive.  It was robustly challenged recently – in relation to just one particular hospital – in a supplementary hearing before Mr Justice Hayden (blogged here), but the problem is pervasive.  To see yet another patient with a prolonged disorder of consciousness being treated with CANH without any apparent best interests consultation in relation to this treatment feels like déjà vu.

What makes this case different, though, is that lawyers allowed this situation to continue unchecked for two years, while questions about residence were addressed.  

The Court of Protection is famously “inquisitorial”.  That means that the court is actively involved in investigating the facts of the case and is not confined to dealing solely with the issues put before it.  Its job is to look at the protected party’s best interests ‘in the round’.  

The two barristers in the hearing I observed were Mungo Wenban-Smith of 39 Essex Chambers (instructed by Lauren Anderson of Irwin Mitchell) for the Official Solicitor and Nageena Khalique QC of Serjeants Inn Chambers, for the Clinical Commissioning Group (instructed by Munpreet Hundle of Capsticks).  For both, this was the first time they had been instructed on this case, having replaced previous barristers, who had been involved over the previous two years. The failure to raise best interests in relation to CANH cannot therefore be attributed to either of them as individuals. Both are experienced Court of Protection barristers and have been advocates in several hearings I’ve observed recently concerning CANH and best interests for patients in prolonged disorders of consciousness.  

So, prior to the involvement of these two experienced barristers, two (unknown to me) Court of Protection legal teams – one for the OS, one for the CCG – allowed a case about care and residence to continue for two years, without checking that the care being provided in the form of CANH was in P’s best interests – when at least one family member has been sure throughout that period that it is not what she would want for herself, although he has until very recently felt unable to say so. 

For P’s father, it’s “cruel” to continue to give treatment to keep P alive in a state she would find intolerable, and any improvement in her level of consciousness would only serve to make her “more aware of her plight”.  And P’s brother, also in court, expressed concern about continuing CANH without a full assessment of “what P herself would see as an acceptable quality of life”.  In his view that would involve “at the very least, being able to feed herself, attend to basic toilet needs and a means of effective communication”.  It is unclear to him whether or not these are achievable goals.

I don’t know whose responsibility it is to raise questions about P’s medical treatments in a Court of Protection case focussed on a dispute about care and residence.  One problem may be that in fact there is nobody who can be clearly identified as having such a responsibility. Here are my reflections.

The Judge

The District Judge who heard this case, DJ Beckley, said explicitly that a decision about withdrawing CANH was “outside my scope[3].  If a judicial decision was needed it must go before a more senior judge. 

He explained to P’s father that a court hearing may not be needed.  The responsible decision-maker (I think it’s probably the GP in this case, although there is also a treating neurologist who may have overall responsibility for P’s care) can make the decision that CANH is not in P’s best interests, and stop treatment, following a proper best interests consultation process – so long as everyone agrees (and – my addition – if the decision is not “finely balanced”).  There would then be no need for a judge to be involved.  But if there is disagreement (or if the decision is finely balanced), then the case must be heard by a Tier 3 judge and “the High Court judge would take over from me in relation to current proceedings too”. 

District Judge Beckley was kind and courteous to P’s father and made a point of saying that he recognised how “courageous” P’s father had been in raising the issue of CANH-withdrawal: “I understand why this must have been a difficult statement for you to make”. It seemed to me that (within the limits of his remit as a district judge) he wanted to support matters going forward.

He said he was not aware of the national guidance about CANH and seemed to think it was not necessary that he should be, given that – as a district judge – he would not ever be in a position to make a withdrawal decision.  (“This for judges more senior than me.”)

I understand his position.  But if he had been aware of the guidance – and, importantly, aware of the fact that the guidance is often not followed – he could have intervened at an early stage in this case to ask for evidence from the Clinical Commissioning Group (CCG) that they had complied with it.  There should have been minutes of a best interests discussion, including evidence of consultation with family members, showing their agreement that CANH was in P’s best interests and what P would want for herself in this situation.  It seems there is no such documentation.  The failure of the CCG to produce it as requested would have uncovered the problem. The CCG could then have been instructed back in July 2019 to carry out a proper best interests assessment (as they have now finally been required to do).

Routinely requesting evidence that best interests decision-making has been carried out in relation to CANH, as required by law, could provide an extra layer of protection for P, whether or not anyone is contesting it.  This layer of extra protection is particularly important given evidence that there are often gaps in this aspect of care[4].

I hope that one outcome of publicising this case might be that Tier 1 and Tier 2 judges could be advised in future to be aware of the national guidance and to be alert to cases like these where CANH (or any other active intervention) is provided to a patient who cannot consent to it.  It could be made explicit that they can use the inquisitorial nature of the court to inquire as to whether the proper processes have been followed to ensure that continuing CANH is in the patient’s best interests.

Legal team for the Clinical Commissioning Group

The legal team representing the Clinical Commissioning Group– or alternatively, in other cases, the Trust or Health Board – might perhaps be expected to want to know that their client is acting in accordance with law and professional guidance. The national guidance is clear as to the responsibilities of CCGs (and Trusts/Boards): they should ensure that regular best interests reviews of CANH are taking place (Box 5.3) and that these are a standard part of the patient’s annual review (Box 5.4).

(National Guidance on CANH and adults who lack the capacity to consent p. 37)

Counsel for the CCG could have raised the matter of CANH with their client (even though it was a section 21A case) to check that annual reviews of best interests decision-making about CANH had been carried out as required.  If there are systemic problems with doing this, they should be addressed.

In fact, just a few months before legal proceedings began, on 26th March 2019, there was a Continuing Health Care review.  It was noted that “there has been little change since last review… She is PEG fed and the focus of her care is maintenance and to prevent deterioration”.  If the legal team for the CCG received this review (as surely they must have), and if there was no indication that there had been any best interests discussion about whether “maintenance” via PEG feeding was in the patient’s best interests, they should surely have raised this with their client.  The question of best interests and CANH was hiding in plain sight.  The problem may be that a lot of section 21A cases are dealt with by junior barristers who may have no experience in CANH at all.

In the hearing I observed, I was concerned to hear how counsel for the CCG responded to P’s father when he raised concerns with current or possible future treatments other than CANH that might be life-sustaining for his daughter.  These also should have been the focus of best interests decision-making. But he explained that he didn’t know whether or not his daughter would be resuscitated if her heart stopped.  He remembered years ago, when she was in a world-famous rehabilitation hospital, that a consultant had shown him a Do Not Resuscitate Order but he realised that this might not apply now that she had moved from the hospital to the care home.  He knew that she had already been double-vaccinated against covid, but didn’t want her vaccinated against influenza: “If it comes along and takes her away, that would be a blessing”.  And he asked: “Any treatments that P gets in the future, could those responsible inform me what those are before they carry them out?”

This seems to me a reasonable request.  All the treatments P receives require best interests decisions. As such, P’s father can and should be offered the opportunity to contribute to them as someone who cares for P and is interested in her welfare (Mental Capacity Act 2005, 4(7)(b)).  He is an entirely appropriate person to consult.

Counsel for the CCG responded by saying: “it is too broad an ambit to suggest a need to discuss all her medical treatment. She is receiving medical treatment every day.  It’s not appropriate to micro-manage the day-to-day treatment required.  If we’re now throwing open  this wider question of medical treatments – whether that needs to be the subject of litigation or argument is questionable”.

Nothing in P’s father’s question suggested to me that he wanted to “micro-manage” his daughter’s care.  The two issues he specifically raised – CPR and flu vaccination – are appropriate topics for his input.  They will also be issues addressed as part of the broader medical context within which any decision about CANH will be made.

I felt very sad for P’s father.  He had finally got up the courage to express his long-standing concern that his daughter would never recover to a quality of life that she would value.  He was asking whether – in that case – continuing PEG feeding was actually in her best interests.  It shouldn’t have been his job to raise the question: he had been pushed into a situation in which he’d had to, because those with formal responsibility for best interests assessments (including the CCG) had failed to do so. 

Legal team for the Official Solicitor

The Official Solicitor is charged with representing P’s best interests.  In a case focusing on a dispute about where P should live, it is inevitable that best interests in relation to residence take precedence.  But in this case, the Official Solicitor’s focus on the section 21A proceedings seems to have eclipsed other issues entirely.  Should it have done?  Is there a role for the Official Solicitor to consider P’s best interests ‘in the round’? Is there a way around the funding issues (e.g. with legal aid and OS representation) to enable P’s bests interests to be fully addressed? 

I got the impression that the Official Solicitor felt ambushed by the new issue concerning CANH.  Addressing the judge, counsel said: “I take very seriously the points [Father] has raised but my instructions for today’s purposes are focused on enquiries directed by you in this case to the more straightforward issues, frankly, as to what care and accommodation is in her best interests”.  

He recognised, however, that the issue of whether CANH is in P’s best interests now needs to be properly addressed in accordance with the Guidance and “may well overwhelm these proceedings”.  

Insofar as the Official Solicitor is supposed to be alert to P’s best interests, to assess them and promote them in the round, it seems that didn’t happen over the course of the last two years.  I hope for a more holistic and proactive approach from the Official Solicitor in future cases. 

The way forward?

In other courts (and tribunals) all sorts of decisions are made about people in prolonged disorders of consciousness – including where they should live and the kind of care they will receive – without any consideration of whether or not CANH is in their best interests[5].  But I didn’t expect the Court of Protection to go down this route.  It’s extremely disappointing to see what’s happened in this case.

Section 21A hearings are very common.  I am now worrying that there may have been other cases like this one, i.e. disputes about residence for patients in prolonged disorders of consciousness in which nobody raised the question of whether continuing CANH was in the person’s best interests.  

People who are being provided with CANH who don’t have capacity to consent to it can potentially be at the centre of a wide range of Court of Protection hearings – concerning (for example) Section 21A, DOLS, or s.16 health and welfare cases, to list just the most common.  If judges in these cases are not alert to CANH as a best interests issue, and if neither the Official Solicitor nor counsel for the CCG, Trust, or Health Board raises the issue, then health professionals’ (frequent) failures in CANH best interests decision-making are not being picked up or challenged.  Patients can become the subjects of extensive and long-running Court of Protection cases in which the absence of robust best interests decision-making about CANH passes below the court’s radar. That’s what would have been the outcome in this case, had P’s father not intervened.

If in fact nobody – not the judge, not counsel for any party – can be held responsible for raising a question about CANH in court cases like these, there will be many cases where the “elephant in the room” remains unaddressed.  This leaves the court dealing with matters of secondary importance, deflecting it from engaging with a fundamental ethical question that should be at the heart of the case.  What can be done?

It is desperately sad to find that a vulnerable adult has been given medical treatment that may be contrary to her best interests over the last two years, in part because neither the judge, nor any of the solicitors and barristers involved in this case over the previous two years, thought to raise the matter.  

The plan in this case, as outlined by Nageena Khalique QC, is that the CCG will instruct an independent expert and set up a best interests meeting within a matter of weeks to consider the issue of clinically assisted nutrition and hydration. If all parties agree as to a clear way forward in P’s best interests there will be no further court hearings on this matter.  Alternatively, the matter will come before a Tier 3 judge as soon as possible[6].  

Best interests meetings about the PEG should have been routine for this patient. This course of action should have been taken years ago.  

The GP, the treating neurologist, the care home, and the CCG bear a heavy responsibility for not having ensured that the decision to prescribe clinically assisted nutrition and hydration was kept under review.  

The Court of Protection bears a heavy responsibility for allowing the question of where P should live to eclipse her wider best interests for so long.

I have learnt to expect more of the Court of Protection.  

I hope some consideration can be given to what has gone wrong in this case, and how the court can ensure that nothing like this happens again. 

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project and co-director (with Jenny Kitzinger) of the Coma and Disorders of Consciousness Research Centre.  She tweets @KitzingerCelia

[1] I chose to observe this hearing (via MS Teams on 30th July 2021) because P’s father had contacted me a few days earlier for support with ensuring that his daughter’s best interests were addressed.  I explained this in my letter to the court asking to observe the hearing.  In reporting on this hearing, I have drawn only on the position statements and hearing itself as I would normally do as a public observer blogging from the Court of Protection – with one exception.  The phrase “the elephant in the room” is one P’s father used both in an email and in later conversation with me via Zoom.  He did not use this phrase in court, but gave me permission to use it in this piece. (I also spoke with P’s brother before the hearing, but again have drawn only on what he said – or was publicly quoted as having said – in court.)

[2] The fact that it has taken in excess of two years since proceedings were issued on 17th July 2019 to come to a decision about P’s residence is also concerning.  There were 8 months between issuing proceedings and inviting the Official Solicitor to act as litigation friend. The first hearing at which P was represented was 11 months after proceedings were issued (proceedings having been reconstituted as s.21A).  At that hearing, a report was requested about P’s diagnosis and rehabilitation potential.  The treating neurologist declined to provide one, so 2 months later a neuro-rehabilitation consultant was asked to provide a s. 49 report. She requested further medical records, requiring an additional third party disclosure order – and then went on sick leave, eventually providing the report 7 months after having been instructed.  While waiting for the report from the consultant,  three hearings were vacated – in January, March and May 2021. The hearing I observed on 30th July 2021 was two months after the report had been received – and it was 2 years and 13 days since proceedings were issued.

[3] We are not allowed to audio-record court hearings so where I’ve quoted what was said in court I have relied on notes made at the time.  They are as accurate as I can make them, but are unlikely to be word-perfect.  

[4] See Wade, D & Kitzinger, C (2019) “Making healthcare decisions in a person’s best interests when they lack capacity: clinical guidance based on a review of evidence”, Clinical Rehabilitation; Kitzinger J & Kitzinger C. (2017) Why futile and unwanted treatment continues for some PVS patients (and what to do about it)  International Journal of Mental Health and Capacity Law. pp129-143; Kitzinger, J & Kitzinger, C (2016) Causes and Consequences of Delays in Treatment-Withdrawal from PVS Patients: A Case Study of Cumbria NHS Clinical Commissioning Group v Miss S and Ors [2016] EWCOP 32Journal of Medical Ethics, 43:459-468. Kitzinger, C and Kitzinger, J (2016) ‘Court applications for withdrawal of artificial nutrition and hydration from patients in a permanent vegetative state: Family experience‘, Journal of Medical Ethics, 42:11-17.

[5] See for example this case before an immigration tribunal, and the numerous cases heard on the Queens Bench involving financial settlements and calculation of life expectancy (e.g. the case of the young man catastrophically injured by a negligent driver here or the 18-year-old injured as a passenger in a car driven by her boyfriend here). I have been told by two members of different families previously involved in cases involving financial settlements that when they raised the question of whether CANH was in their relative’s best interests, they were advised by lawyers to wait until the financial issues had been agreed (in both cases, this meant several years) before raising the matter with treating clinicians. And although treating clinicians should have raised the matter with the families concerned, they did not.

[6] In explaining the future course of action to P’s father, DJ Beckley said (twice) that if it was not possible to reach agreement in a best interests meeting, then “it is open to any of the parties to make an application for withdrawal of CANH”.  This is factually correct, but the national guidance states: “Where an application to court is needed, proceedings should be initiated and funded by the relevant NHS body responsible for commissioning or providing the patient’s treatment. In Wales this will be the Health Board. In England it will be either the CCG or the NHS Trust depending on where the patient is being treated. This is particularly important given the high cost of legal proceedings and the lack of legal aid available for families to take such cases” (p.40, section 2.9).  It would have been helpful if the judge had made clear that it was the responsibility of the CCG to make the application in this case (although I suspect the current counsel for the CCG already knows this).  It’s also important to note that the application does not have to be “for withdrawal of CANH” (as the judge put it), but rather for a determination of P’s best interests in relation to CANH – which means that an NHS body wishing to continue CANH, or taking a neutral position, is equally responsible for making an application to the court where there is a disagreement about best interests.  This may seem a small point and the all counsel in this case may well already have known the proper procedure to follow, but I’m concerned that judges should understand and communicate the recommendations in the guidelines accurately to family members, who may well be daunted and deterred by the prospect of having to make an application to court.

Covering the Court of Protection – a journalist’s take

By Polly Rippon, 16th August 2021

I recently wrote a piece about a Court of Protection hearing I observed. It was published in The Times with the headline: “Family tries to stop marriage of woman with learning disability and £1m fortune to conman”.

There’s also a blog on the Open Justice Court of Protection website about the same hearing, written by a public observer, Celia Kitzinger, “Controlling and coercive behaviour: A hearing before Roberts J”. 

These are two very different reports of the same hearing.  We watched it together but produced very different accounts, for very different audiences.

The blog account has been read by just under 1,500 people – a specialist audience composed largely of people working in health and social care, and lawyers in the Family Court and the Court of Protection.  My newspaper report will have been read much more widely: The Times has approximately 1.5 million readers daily in print and online.

This is an account of why and how journalists’ reports of hearings are typically so different from the pieces written by bloggers for projects like the Open Justice Court of Protection Project.

My background

I have been a journalist and court reporter for over 20 years and I teach media law and court reporting in the Department of Journalism Studies at the University of Sheffield.

For the majority of my career, I have reported on cases in the criminal and coroners’ courts mainly in and around South and West Yorkshire. I have covered high profile cases, including numerous murder trials and I also attended the Hillsborough inquests in Warrington, so I am more than familiar with covering the courts.

However, I had never covered the Court of Protection before, nor been to any kind of Family Court hearing, and my interest was piqued by reading some of Professor Celia Kitzinger’s blogs, which I stumbled across on Twitter.

I felt journalistically they were not only newsworthy stories but also raised important societal issues which warrant discussion in an open forum.

Traditionally, journalists and newspaper editors have shunned reporting of Family Court and Court of Protection proceedings because of the strict reporting restrictions that almost always ban identification of the parties involved. News-wise a story is deemed to be a ‘better story’ if you know who is involved and what has happened to them – just as quotes are better coming from named people rather than unnamed ‘sources’.  So journalists tend to stick to covering the criminal courts and inquests because parties in those cases can generally be named.     

As a society though, we need to be educated about the issues being considered in both the Family Court and in the Court of Protection, so that  – if necessary –  we can hold the authorities to account and push for change and reform.

There are some excellent journalists doing important and pioneering work in this area – such as Louise Tickle, who is working hard to shine a light on some of the decisions being made in the ‘shadowy’ family courts.    

Writing a newsworthy court report

Writing a court report is very different from writing a blog post.

The late Harold Evans, author of one of the best books on journalistic writing, Essential English for Journalists, Editors and Writers (Pimlico, 2000), said:    

It is not enough to get the news. We must be able to put it across. Meaning must be unmistakable, and it must also be succinct. Readers have not the time and newspapers have not the space for elaborate reiteration. This imposes decisive requirements. In protecting the reader from incomprehension and boredom, the text editor has to insist on language which is specific, emphatic and concise. Every word must be understood by the ordinary reader, every sentence must be clear at one glance, and every story must say something about people. There must never be a doubt about its relevance to our daily life. There must be no abstractions.

If you are writing for a newspaper, you will have very limited space and in this case three days of evidence and a notepad full of shorthand notes that had to be condensed into 400 words.

The first thing that needs to be considered is the audience.

Who will be reading the story? Where will it be published? This will set the tone of the report.

Court reporting is formulaic and although many of the ingredients going into the story will be the same for different publications – for example what happened, how, when, where and to whom? – the language used in a broadsheet newspaper article may be different to that used in a story written for a tabloid. 

Court copy must also be legally sound – in a nutshell reporters can publish anything and everything said during proceedings held in public in England and Wales as long as there are no reporting restrictions and their copy is ‘fair, accurate and contemporaneous’. Essentially this means both sides of the story are included, the information reported is accurate (this is where shorthand comes in) and it is published as soon as practicable after the hearing takes place.

This gives the publication a defence of Absolute Privilege and protects it against an action for defamation if something defamatory is said by any of the parties in court.     

The ‘intro’

Once the reporter knows who the story is aimed at, they need to encapsulate the case in a striking first paragraph which tempts the reader to read on.

This is what’s known in the industry as the ‘intro’ and mastering the intro is one of the first things trainee journalists learn. It is more important than ever in today’s digital age, when publications are battling it out for clicks and sales in an over-crowded market. 

The intro should contain new and exciting human interest detail and summarise the story in fewer than 20 words, ideally. 

At journalism college I was told to imagine how I’d summarise the story for friends in the pub when trying to write my intro.

In this case, the intro was obvious to me – it’s a shocking and unusual case – not something I’ve ever heard of or come across before. The intro had to contain the fact it was a legal battle, the parties involved, the mother’s vulnerability, the man’s previous history and the approximate value of her estate – these were the key ingredients for me.

Essentially, a daughter had gone to the extreme measure of asking a judge for an injunction preventing her vulnerable mother’s partner from contacting her mum, marrying her or entering into a civil partnership with her after she discovered he had a string of previous criminal convictions for defrauding vulnerable women. 

The court was told the woman, who is in her sixties, has a lifelong learning difficulty and arterial brain disease. She has been deemed incapable of making her own decisions about her property and finances. And expert witness, psychologist Professor Rob Dubrow-Marshall said she had been coerced and controlled to such an extent by her partner that he had effectively ‘substituted’ her mind for his. 

One of the biggest challenges of writing an intro in a story like this is getting all the interesting and relevant detail into the first paragraph. There is no right or wrong way to write it – every reporter will come up with a slightly different version or angle but the newest, most shocking information needs to be in the story.  Here’s the opening sentence in my published story:

Compare this with the opening sentence of Celia Kitzinger’s blog post, which just doesn’t have the same impact: 

This case before Mrs Justice Roberts (COP 13503831 heard on 6th – 8th July 2021) concerns coercive control.”  

Celia Kitzinger told me: “I actively try to avoid foregrounding what might be considered ‘shocking’ or ‘exciting’ material in favour of a more educational, measured approach. My key aim in this blog post was to communicate what I’d learnt from the hearing about the law on controlling or coercive behaviour. My own background is in academic Psychology, so it’s not surprising that after this first sentence I moved  quickly into giving a psychological account of controlling or coercive behaviour, including a link to an article in a counselling journal.  Mindful of the blog’s audience of lawyers and those concerned with the law, I then described the behaviour as an offence under s. 76 of the Serious Crime Act 2015 and quoted an extract from the Statutory Guidance Framework.  I provided all this background information up front, at the beginning of the blog, before addressing the specific issues in this particular case.  Comparing my account with the Times piece, I can see how far removed it is from a ‘human interest’ story!

The drama of the court room

Court reporters use the ‘inverted pyramid’ style of writing which is used by all journalists to construct news stories.

Essentially this style is designed to grab readers’ attention as quickly as possible, presenting the most important and exciting details in the first paragraph and then developing the story with more specific information as the article proceeds. 

Once the introduction is written the reporter’s job is to flesh out the bones, adding the meaty details taken from the evidence heard in court and using quotations to ‘add colour’. The aim is to bring the copy to life, tell the human side of the story and try to recreate the drama of the courtroom.

This also allows the reporter to break up long passages of text to maintain interest.

It’s also important to outline what the case is about so the basics need to be included – who, what, where, when, how?

You don’t want the reader to go away with unanswered questions, or wondering what happened.

In a criminal case, this is easy. Journalists report the prosecution allegations first, backed up by witness evidence heard in court and any relevant cross examination. Then it’s the turn of the defence to set out its case. Once the jury has come back with a verdict, it’s the verdict, any sentencing remarks from the judge and the sentence. Reporting restrictions are rare because due to recognition of the importance of the principle of open justice.

When reporting from the Court of Protection there is no prosecution or defence case and reporting restrictions are almost always automatic. Because there is always a vulnerable person (P) at the centre of the case, transparency orders usually ban reporting of any detail which could lead to that person’s identification.

After hearing all the evidence, the judge in this case,  Mrs Justice Jennifer Roberts, reserved judgement (i.e. will consider all the evidence and publish a written judgement in the next few weeks).   This gives the reporter (and the blogger) ‘a second bite of the cherry’ – the chance to publish the story again with a new angle, which in this case will be the latest information:  the judge’s decision.     

My story summarised salient points from what happened in court but didn’t go into the day-by-day – and sometimes moment-by-moment verbatim transcript – detail of the blog post. Celia Kitzinger told me:

In writing for the Project, I want to communicate the process by which justice is done – not just the outcome.  So the details of the questions asked and the answers given – and the way those answers are phrased – can really matter.  This is what we get  from observing a hearing, as opposed to simply reading the judgment afterwards.  In the blog post about this case there were lots of places where I quoted as close to verbatim as I could (given that we’re not allowed to audio-record) because I felt the exchanges in court revealed aspects of the case, and the participants’ perspectives on what was going on, in particularly vivid ways. Compare, for example, the Times summary statement that the man “said that he was the victim of a conspiracy by his previous victims” (which is an accurate and succinct summary of the facts) with the more detailed account in the blog, which includes my own personal reflections on this.

From:  Controlling and coercive behaviour: A hearing before Roberts J by Celia Kitzinger

In summary…

Writing for the national media and writing a blog post for a specialist project involve some very different skills. It is fantastic there are bloggers such as Professor Celia Kitzinger and other professionals attending court and writing long form pieces about the complexities and ethical issues raised in COP cases.

However, it is equally important these hearings are covered by mainstream media outlets who can communicate the proceedings to the general public in a clear and concise way, so they have a better understanding of the issues at stake and the decisions being made about the lives of vulnerable people.

Polly Rippon is a former regional daily newspaper reporter and news editor with 20 years’ experience in journalism and media relations. She continues to write freelance pieces for national titles, and teaching media law and court reporting in the Department of Journalism Studies at Sheffield University. She tweets @PollyRippon

Secure Accommodation for Young People: “A well-known scandal”

Celia Kitzinger, 12th August 2021

Note: For another perspective on secure accommodation, see the blog by Anna Rebowska, “Secure units and young people: In search of home to call your own

“Secure accommodation” is a legal term that refers to a form of accommodation provided  for the purpose of restricting liberty under section 25 Children Act 1989.  Children can also be remanded or sentenced to detention through youth justice legislation. The accommodation has to be approved as “secure accommodation” by the Secretary of State, and needs to comply with various regulations. 

Local authorities place children in secure accommodation when they are at risk of harming themselves or others. Secure accommodation is expected to keep children safe, to restore some stability to their lives, and to assess their needs and identify the supports needed in future.  (See this report on “Local authority use of secure placements” (pdf).)

There has been a rapid rise in the numbers of children deprived of their liberty in recent years. The BBC reported on freedom of information responses from 91 of 170 local authorities in England and Wales: the number of deprivation of liberty orders for children and young people went from 43 in 2016-17 to 134 in 2018-19. The vast majority of these will be for children in care.

It has become increasingly apparent that there are simply not enough secure accommodation places available, and that very vulnerable children are being kept waiting in inappropriate settings, or placed in unregulated homes.

The desperate lack of secure accommodation became glaringly apparent in the Court of Protection case (COP 13743601) I observed before Mrs Justice Judd on 2nd July 2021, and again on 16th July 2021.

This was a case in which the judge and all the parties to the case (including the local authority) were doing their utmost to help a vulnerable young person against the backdrop of a nationwide shortage of appropriate provision.  


At the first hearing I observed, Mrs Justice Judd said this was “a profoundly worrying case”.  An “extremely vulnerable” 17-year-old girl  (“N”) – diagnosed with autism, mild learning disability and emotional dysregulation – was being kept inappropriately in an Accident and Emergency bed because there was nowhere else for her to go. 

The local authority had planned to apply to court for authorisation of a deprivation of liberty.  But this application was problematic at the time of the hearing because “over the past few days, circumstances surrounding N’s residence and care has been changing by the hour”.  

At the time of the hearing, it did not seem possible to make an application to deprive N of her liberty because:

  • It wasn’t clear whether or not N has capacity to make her own decisions about where she lives and what care she receives: there seems to be some suggestion that she might do, at least sometimes, in which case she is not someone over whom the court has jurisdiction; 
  • Since it had recently been determined that N does not meet the criteria for detention under Section 2 MHA 1983, she would shortly be discharged from hospital, but since there was no placement (or care package) available for her, it was impossible to know whether or not the arrangements would be the least restrictive option, or whether or not they would be in N’s best interests.

Since June 2019, when N’s mother reported she could no longer care for her, N has been a “looked-after child” (Children Act 1989).  For much of that time she has been in secure children’s homes.  She has experienced multiple placement breakdowns and is assessed as requiring an extremely restrictive care package including 2:1 care at all times, including through the night, with carers trained to carry out restraint.  She’s moved placement many times and until shortly before the hearing on 2nd July 2021 had been living in what was understood to be either her 13th or 14th placement since mid-2019.  That placement is now under threat.  

I can tell you I have had myself a number of cases like this, with young people being in an A&E Department of a hospital, simply because there’s nowhere else for them.  No doubt social workers are in a parlous position on this, but judges are being asked to authorise this position and it really is very troubling.” (Mrs Justice Judd)

The judge acknowledged that the local authority was making its “very best efforts – focussed efforts over a prolonged period of time” to find N an appropriate placement but that there were real difficulties in doing so.  

The current placement had been the outcome of an extensive nationwide search  – involving referrals to over 527 placement providers, only two of which indicated an ability to meet N’s needs.  The placement now under threat had been literally the only care provider who appeared able to care for N – and they were now on the cusp of serving notice. 

The local authority (represented by Lucinda Leeming) described “utter dismay” at the situation they were in.  Counsel for N (Katie Scott, acting via the Official Solicitor) described the situation as “most unfortunate”. 

THE HEARING ON 2nd July 2021

The Applicant

Counsel for the applicant council described N’s self-harming behaviour, including attempted suicide, and “extremely aggressive behaviour” that includes assaults on care staff and police officers. Her “uncontrollable rage” has led to incidents involving criminal proceedings and the involvement of the youth justice service. 

N had been admitted to hospital at the end of June 2021 following “a significant episode of dysregulation” between 25thand 27th June 2021 in her current care home (“F House”).  She had been continuously awake and “experiencing mania” for 72 hours, during which she gained access to the roof and threatened to kill herself. She threw boiling water from a kettle over staff caring for her, and thew nail polish remover into the eyes of a carer saying she wanted to blind them.  She armed herself with knives and parts from a broken bed and threatened staff.  She set fire to a tea towel, saying she wanted to burn the house down. 

On 30th June 2021, the police took N to hospital, under s.136 of the Mental Health Act (MHA) 1983 and she was assessed that evening as meeting the criteria for detention under Section 2 MHA 1983.  It was decided that she needed a specialist bed, but none was available that day.  

The next day, on 1st July 2021, the day before the hearing,  N was reassessed and deemed not to meet the criteria for detention.  The Approved Mental Health Professional (AMHP) who assessed her said that it was not possible “to elicit” any mental health needs and that N had apparently been “calm” during her time in hospital and that she can be discharged as soon as a bed is available.  

There is nowhere to discharge her to, since the care home she was in previously no longer considers that it is able to keep N safe and ensure the safety of others.  The  local authority feels unable to agree to N returning to “F House”, given that her safety and that of others is in doubt.

So, the local authority is looking for a secure accommodation placement but reports that as of the evening of 1st July 2021, there was a need for 57 secure accommodation placements nationwide, and just 2 placements were available.  One had already deemed N to present too high a risk, even for their secure accommodation. The other will be reviewing the profiles of all those needing a bed and make an offer to the most appropriate person – making it unlikely that N will be offered this option.

Could “F House” be made safe – with additional safeguards and the involvement of an external care provider, so that N could safely return there, at least in the short term?  Are there premises that could be used as secure accommodation with a bespoke package?  These are options the local authority is investigating – but neither was an option that could realistically be put before the judge at this stage. An adjournment was needed, they said.

Judge:                   You are asking me to authorise a Deprivation of Liberty under the auspices of the Mental Capacity Act or the inherent jurisdiction but without a clear care plan about what that will entail.  

Counsel for LA:    Yes. The LA simply doesn’t know what the care plan is, given the range of options, or what that might entail.  We would ask for an adjournment for a period of three weeks and hopefully come back before the court with some proper options and a better idea of what the care plan will entail.

Judge:                    I am concerned about delay if we adjourn for 3 weeks. I don’t know if it’s in the best interests of this young person, and obviously that’s a big worry for the court and it would ordinarily lead me to want to adjourn for no more than a few days.  Unless a court hearing would be a distraction to the work you are doing to find her a placement and develop packages of care.

Counsel for LA:    Yes, we fear coming back to court next week with no progress having been made.

The Official Solicitor

Katie Scott acted for the Official Solicitor to represent N’s best interests.  She acknowledged the difficult position the local authority was in, and the impossibility of making  a deprivation of liberty order today: “Regrettably, we are where we are.” She added that as a result of recent events, it hadn’t been possible for those acting on N’s behalf to meet N – either remotely or in person –  to ask N what her own wishes are in this situation.  

Apparently anxious to resolve the situation speedily, the judge asked Katie Scott, “What would be the downside of adjourning for a week, as opposed to three weeks?”.  She replied: “It may be another hearing where we don’t get anywhere”. 

The judge asked when a capacity assessment would be available:

It needs an in-person assessment, and she’s not been vaccinated [it had earlier been reported that N had declined vaccination for Covid-19, despite having Hepatitis B, contracted from her mother at birth] so that’s going to be a bit difficult.  The popular – if I may put it that way – experts are extremely busy and the waiting lists are very long.  It may be that a long period of time is inevitable.” (Katie Scott)

N’s Mother

Having heard from both the applicant local authority and from the Official Solicitor, the judge turned to N’s mother, who had been present throughout the hearing.  She is not a party to the case, but the judge pointed out that she could become a party if she wished to.  She said, “It must be very distressing for you. I imagine you must be listening to this with- well, it must be horrid to listen to”.

The burning issue for N’s mother turned out to be: “My daughter was abused by one of the carers. I have proof they have assaulted my daughter.”  This had been mentioned earlier by counsel for the local authority “for the sake of completeness”: she reported that there had been an allegation of assault on N, which was under investigation, and that staff had been suspended pending that investigation.  She had also reported that some staff have refused to return to work at “F House” because they are frightened of N and the risk she poses.

The judge expressed sympathy for N’s mother and briefly discussed with her and with the advocates whether it would be possible for her to get legal advice.  (Note – she was in fact represented by Mungo Wenban Smith at the next hearing.)

Mrs Justice Judd then fixed the next hearing for two (rather than three) weeks ahead – as a “compromise” between the need for a speedy resolution, and the risk of “diversion of resources towards the court if I order things back too quickly”.  

The judge ended the hearing by saying:  “I do hope things aren’t as bleak as they seem, and I do hope something ‘good enough’ will be found for N very quickly, and then something really suitable without much ado after that.

THE HEARING ON 16th July 2021 

The hearing opened with a summary and update about the case from Lucy Leeming (counsel for the local authority).  She reminded the court (and public observers) that the case concerned a “vulnerable young lady who had been inappropriately occupying a bed in A&E and we were desperately looking for suitable placement”.  

The good news was that a placement had been found and N “is safe there, and no longer in hospital”.  However, this is an “emergency” placement” and not suitable long-term.

She also reported that over the weekend immediately following the last hearing on Friday 2nd July, N had experienced “a further episode of dysregulation”.

She was aggressive.  Following allegations of assault and criminal damage to the hospital ward, she was arrested and detained in police custody – taken to a police cell – and everyone feels that this is clearly not an appropriate place for this very troubled young lady.”

At the police station, N was verbally and physically aggressive,  racially abusive and assaulted both care staff and police officers.  She was subsequently taken to hospital where she was restrained and given 50mg intra-muscular Promethazine Hydrochloride as a sedative, against her will and without the consent of either her mother or the local authority – something the Official Solicitor is now investigating.

She was assessed under the Mental Health Act and deemed to meet the criteria under section 2 for detention, but no bed was available.  I’m afraid we went round the loop again.  On reassessment a few days later, she was then deemed not to meet the criteria and deemed fit to be discharged.” (Lucy Leeming)

The judge intervened to say, “She needs help.  This situation is not helping.  The MacDonald judgment was published yesterday and that’s a very similar situation.  It’s profoundly worrying”. 

Some context

I didn’t recognise the judge’s reference to “the MacDonald judgment” at the time, but I’ve subsequently read it  (Wigan BC v Y[2021] EWCH 1982 (Fam))  and recognise it as one I’d seen reported in the media (e.g. here).

The parallels are chilling.  In that case, a violent and self-harming 12-year-old boy (“Y”) was held on a hospital ward in conditions that the judge described as “inappropriate, demeaning and, quite frankly, brutal” (para. 53) and as a breach of Y’s Article 5 rights.  MacDonald J  refused to authorise Y’s ongoing deprivation of liberty on that ward – despite no alternatives being available – ruling that “the absence of an alternative cannot render what is the single option available in Y’s best interests and hence lawful” (para. 59).  It would, said the judge: 

“… border on the obscene to use a protective jurisdiction to continue Y’s bleak and dangerous situation simply because those with responsibility for making proper provision for vulnerable children in this jurisdiction have failed to discharge that responsibility”. (para. 64)

Since then – and subsequent to the hearings I observed – the Supreme Court has handed down a judgment in Re T,  a case heard back in October 2020 concerning a 15-year old placed in non-statutory (unregistered) accommodation.  In giving the lead judgment, Lady Black voices “deep anxiety” about the shortage of secure accommodation for children, pointing out that this is not new, and that the problem has been highlighted in multiple court decisions.  Back in 2017, Sir James Munby, then President of the Family Division, made a ruling about a 16-year-old with difficulties like those of T in the case before the Supreme Court and N in the case I’ve been observing (all three were expressing the intention to kill themselves and all three were self-harming).  Sir James Munby referred to what he termed “a well-known scandal”, namely:

“… the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties as X is burdened with.” (In re X (A Child) (No 3) [2017] EWHC 2036 (Fam), para 37)

Lady Black’s judgment in Re T quotes this extract, and similarly draws attention to  the government’s lack of action: “It has been drawn repeatedly to the attention of those who could be expected to take steps to ameliorate the situation, without noticeable effect” (para. 7).   

There are useful reports on the Supreme Court  judgment in Community Care ( here) and by Alex Ruck Keene (here).  A report by the Children’s Commissioner, Anne Longfield, charts the extent of the problem and describes the situation of up to two hundred children awaiting secure care at any one time – often detained elsewhere in conditions equivalent to secure care in hospitals or flats or other accommodation with large teams of agency staff  (The children who no-one knows what to do with)

As the judge said in the case I observed, echoing the voices of previous judges and foreshadowing the report from the Supreme Court a couple of weeks later, the difficulty of  finding accommodation for N serves to “highlight the shortage in nationwide provision for troubled youngsters”.

What was decided in court?

The temporary placement for  N is an annex (for her sole residence) to the main building of a children’s home. She has carers with her on a 4:1 basis, 24 hours a day.  “Staff have been pulled in from elsewhere to provide the support she needs, and have received appropriate levels of training in relation to restraint.”  No information was provided, though, on how N spends her days in this annex.

Counsel for the local authority (Lucy Leeming) invited the court to authorise N’s deprivation of liberty in this children’s home annex on an interim basis.  The local authority is continuing the search for more appropriate accommodation and was hopeful that a place might soon become available – although the proposed placement is more than 200 miles away from N’s mother’s home, and her counsel subsequently raised objections to this proposed placement as constituting a “devastating impediment to the resumption of family contact”.

Counsel for the Official Solicitor (Katie Scott) opposed authorisation of N’s deprivation of liberty on the grounds that there is currently insufficient evidence to displace the presumption that N has capacity to make her own decisions about care and residence – at least at times – and because there is at the moment no evidence as to N’s own wishes and feelings in this regard. 

Counsel instructed by N’s mother (Mungo Wenban Smith) sought to encourage “jurisdictional pragmatism to ensure we can keep N safe”, by which he meant making an interim finding that there is reason to believe that N lacks capacity, so fulfilling the mental capacity requirement for a DOLS authorisation.  This, he said,  “might provide a sticking plaster to cover the interim period pending the report [on N’s capacity]”. 

In the end, faced with an impossibly difficult situation, the judge authorised N’s deprivation of liberty for an interim period, but did so under the inherent jurisdiction rather than the Mental Capacity Act 2005.

An expert has been instructed – the Consultant Psychiatrist, Dr Claudia Camden-Smith, a very familiar name in Court of Protection proceedings – and she will report on N’s mental capacity in relation to a number of areas including capacity to make her own decisions about where she lives and the care she receives (and whether she has capacity to refuse covid vaccination).  The report is due at the end of October.

I hope to observe and report on future hearings in this case.

UPDATE: HEARING on 26th October 2021

It had been hoped, when this hearing was scheduled back in July, that new accommodation might be found for N and that she might shortly move into it, following this hearing. That turned out not to be the case.

Immediately prior to this hearing, P had a number of incidents involving “significant dysregulation” which threw those plans into disarray.

This hearing, before Sir Cohen J, also took place before the independent expert, Dr Claudia Camden-Smith, had produced a report – or indeed had the opportunity to meet with N. I understand that Dr Camden-Smith had arrived one hour late for an appointment with N, who then refused to see her.

Much of the hearing was devoted to updated information about recent periods of “dysregulation”, which have thrown into doubt the suitability of the accommodation options under consideration, and resulted in a change to her care plan. Having anticipated asking to court to authorise a move to a flat, none of the parties now considered that accommodation to be suitable – in part because of its narrow corridors and stairs.

The crisis intervention team caring for N (which includes mental health nurses with over 25 years experience) say that they “have never seen such a level of risk discharged into the community” and that there is “a clear threat to life”. They are, it was reported in court, “truly shocked by the extent of the violence and aggression and accompanying risk”. She now needs 6:1 care to keep her and others safe.

Some recent incidents were described in court.

For example, on 18th October 2021, N had attacked a staff member, dragging her downstairs, punching and kicking her in the back and ribs. She said she wanted to kill her and crack her head open. She was restrained. On release, she pressed the emergency release button into the carpark and went out and damaged vehicles. When the police were called, she went back inside and hid, but was carried from the building and placed on suicide watch in police custody. In the police cell she was observed to be hitting her head and pushing her acrylic fingernails up her nose to create blood which she spat around the cell.

Care staff believe that N’s behaviour goes beyond what can be explained with reference to her mild learning disability and her autism. They see clear signs that N is suffering from psychosis. The Official Solicitor expressed concern that their view has not been taken into account by the trust. ‘The fundamental concern of the Official Solicitor is that if [the current care team] is correct, N is suffering from a major mental illness which has not been recognised and for which she is receiving no treatment“.

The judge expressed concern about the “disconnect” between the current caring team and the trust. He said the “intermittent nature and the seriousness and suddenness of her violent episodes makes her care very challenging“.

Everyone agrees that the unit she’s now in – an annex to a children’s home – is not suitable. For weeks, if not months, those engaged with N have been looking to find a more appropriate placement. There has been a series of false dawns. Nothing has yet been found. I do not criticise anyone: it is not for lack of effort in this case.”

The judge ordered that at the next hearing there should be a statement from the local authority about alternative placement options, and a revised care plan, transition plan, and conveyance arrangements. The report from Dr Camden-Smith is also awaited.

The next hearing will be on 16th November 2021.

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

Photo by Steve Johnson on Unsplash

Lasting Power of Attorney: Across Borders

By Clare Fuller, 9th August 2021

Update: The judgment on this case was handed down on 29th October 2021. You can read it here:


On 3rd August 2021 I was pleased to have the opportunity to observe a case focussing on decision-making involving people with Lasting Power of Attorney.

I’m a Lasting Power of Attorney Consultant.  I help people to draft their Lasting Powers of Attorney – so learning more about how this issue is dealt with in the Court of Protection is really helpful.

In this case, the protected party (P) has dementia and is living in a care home in another country.  Nearly 7 years ago, shortly after receiving her dementia diagnosis, she made two Lasting Powers of Attorney – one for property and affairs, the other for health and welfare.  In both of them, she appointed her cousin, “AB” and one other person as attorneys.  P’s nominated attorney, AB, is the applicant in this case. She wants to bring P back home to the UK.

What is a Lasting Power of Attorney?

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.  

The Office of the Public Guardian  campaign shows that 72% of people think your next of kin always gets the final say in treatment decisions at hospital but this is not the case.  The only way to ensure that a spouse, or adult children, or anyone else you trust, can make decisions for you is to appoint them as your Attorney.

A Lasting Power of Attorney can only be made when you are deemed to have the mental capacity to make the decision to appoint attorneys.  The form requires evidence from a ‘certificate provider’ who must confirm that you’re making the LPA by choice and that you understand what you are doing.

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.

Despite the  widespread campaign to raise awareness, LPAs remain little known or understood. 

My interest in LPAs, and the reason I became a Lasting Power of Attorney Consultant,  stems from a long career as a nurse in palliative and end of life care, where I witnessed the impact of not having these important documents in place. I feel incredibly passionate about people’s voices; their choices and their values being heard – and LPAs are an important way of enabling this. I advocate for proactive Advance Care Planning and LPAs are one important element of planning ahead. 

The hearing 

The hearing I attended (Case no. COP 13785356) was held via MS Teams before Mrs Justice Lieven  on 3rd August 2021.  

The applicant is AB, who holds LPAs (both for Health and Welfare and for Property and Finance for her cousin P.  There is a second person also appointed as LPA for P who fully supports AB’s application.  It was confirmed in court that the LPAs were signed by P on 11th September 2014 and registered by the  Office of the Public Guardian on 2nd December 2014. 

Since making the LPAs, P has lost capacity to make her own decisions about where to live, and, in alignment with her wishes, her cousin is now enabled through the LPA to make decisions on P’s behalf.

In 2013, P, who had lived in the UK for about 40 years,  was diagnosed with dementia and she moved into a care home the following year.  

Shortly afterwards she travelled to Lebanon to live with her brother for what was intended to be a trial period. She enjoyed living there, was well cared for,  and decided to stay.  

After her brother died unexpectedly a couple of years later, she moved into a care home in Beirut.

The applicant, AB (represented by Parishil Patel)  is “very worried” about P’s welfare in Beirut.  Nobody visits P at the care home, and there is growing political and economic tension and instability in Lebanon which is having a real effect on P’s care.  There is a shortage of medications – the other attorney has been arranging for these to be supplied to P from outside Lebanon.  

Last year AB tried to use the Lebanese court system to get P back to the UK and obtained a Return to UK Order, but this was blocked by P’s nephews.   AB had medical evidence that P was fit to travel: she had found a place for P at a private care home near to where she lived, and she had made travel arrangements with an expert medical repatriation charter company.  But before this plan could be carried out, P’s two nephews obtained a Travel Ban order – on the basis that P’s return to the UK “would cause [one nephew] damage in respect of the prosecution of his [wardship] suit” and that  “travelling to Britain in her poor state of health and at her advanced age could cause grave damage to her health [and] there is the danger of her catching the coronavirus”.   It is unclear what the two nephews’ motives for keeping P in Lebanon are (they don’t visit her or provide care)  but there is speculation that there may be financial motives.

AB wants the court to use the inherent jurisdiction  to relocate P back to the UK “as soon as suitable travel arrangements can be made”.  She also seeks an order that the LPAs are valid.

Mrs Justice Lieven acknowledged the challenges of the case – especially the interfamily dispute –  as well as the need for expedited decision making since P is elderly and frail.

The inherent jurisdiction

The High Court has the power to protect vulnerable adults, including British citizens in foreign jurisdictions. (See Holman J’s decision in Al-Jeffery v Al-Jeffery (Vulnerable adult; British citizen) [2016] EWHC 2151 (Fam) – widely reported in the media, including this BBC report and the follow-up to the story the following year.)  As the case before Holman J illustrates, the court can order relocating a person to the UK.  According to counsel for AB, P is a vulnerable adult in a foreign jurisdiction in need of this protection, in the form of relocation.  Her current situation is “extremely concerning” and she is “at risk of harm”.  

Validity of the LPAs

Early on in the hearing, the judge asked for evidence that the LPAs were valid documents.  Evidence was provided that they had been registered with the Office of the Public Guardian.  

She asked “what evidence do I have that P had capacity when she filled these in?” and was referred to the affidavit of a Consultant Psychiatrist who saw P shortly before she signed the LPAs and found her “clear and coherent” in explaining what she wanted to do in appointing LPAs, and she was able to articulate the purpose of LPA,  and why she had chosen her nominated attorneys.  The solicitor who helped P draw up the LPA documents had written a letter for the court saying that there was no suggestion of undue pressure being applied, i.e. P was making the LPAs of her own free will.

Mrs Justice Lieven agreed to make an order that the LPAs were valid and applicable in this case. 

It was agreed a further hearing would be necessary to clarify what should happen next – including appointing the Official Solicitor to represent P,  assessing P’s fitness to travel, and considering the practicalities of relocating P if it turns out to be in her best interests. 

A tentative date for the next hearing (a full day) has been set for 1st September 2021.

Closing observations

Hearing a judge scrutinise the validity of an LPA highlights to me the crucial importance of ensuring careful attention to record keeping and evidence of a donor’s capacity when making an LPA. In this case, the attention to detail of both the solicitor and psychiatrist in 2014 ensured that there was no challenge to the validity of the LPA, and P’s nominated attorneys are able to act for her, as she wished.  I hope to be able to observe the next hearing in this case, and will report back on how the LPAs’ decision-making plays out in court.

I have watched Court of Protection hearings before.  Back in August 2020,  I bore witness to an intensely complex MCA and best interests hearing concerning a young lady with anorexia. That experience brought home to me the huge educational value of observing hearings and seeing how judges make these important decisions. 

Over the course of the subsequent year,  I have promoted the Open Justice Court of Protection Project as an excellent avenue for health care professionals to see the application of MCA decision-making in practice.   As an advocate for proactive Advance Care Planning and a Lasting Power of Attorney Consultant  it has been hugely beneficial for me to see how a judge goes about assessing the validity of an LPA and making decisions about P when she has appointed her own nominated attorneys.  Observing hearings in the Court of Protection is an excellent learning experience which continues to benefit my own practice.

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 Clare tweets @ClareFuller17 

Photo by Ehsan ahmadnejad on Unsplash

Capacity (and sexual relations) in the Supreme Court: Reflections on A Local Authority v JB

By Amber Pugh, 10th August 2021

Sex with a consenting partner plays an important role in developing personal relationships and has been described as being a fundamental human right. However, people who lack the capacity to make the decision to have sex are prevented from enjoying sexual relationships, regardless of how much they desire them (Mental Capacity Act 2005, s.27(1)(b)). It is of immense importance, therefore, that the law in this area strikes the correct balance between empowerment and protection from harm. Unfortunately, to date, the case law regarding capacity and sex has been complicated and confusing.  This may be set to change. 

On the 15th July 2021, the Supreme Court heard the appeal in A Local Authority v JB. JB, the initials used for the person at the centre of this case, is a 38-year-old autistic man with impaired cognition. He has expressed a strong desire to have a girlfriend and engage in sexual relations with women, but the local authority has concerns that he does not understand that the other person has to consent to the sexual activity. The issues that the Supreme Court has been asked to decide are  (in the words of their ‘easy read’ summary (a downloadable pdf from the Supreme Court website)):

In order to have capacity to consent to sex: 

  • Does a person need to understand that their sexual partner must have the capacity to consent to sex? 
  • Does the person also need to understand that their sexual partner must consent before the sexual activity starts and that their consent must continue throughout the sexual activity? 

Irrespective of what the Supreme Court decides, its judgment is set to be a landmark one. The Supreme Court has previously considered other aspects of mental capacity law, including best interest under the Mental Capacity Act  2005 (Aintree University Hospitals NHS Trust v James [2013] USK 67) and deprivation of liberty (P v Cheshire West and Chester Council & Anor [2014] UKSC 19), but this is the first time that it has been asked to examine the test for lack of capacity set out in sections 2 and 3 of the Act in detail.  In this blog post I will discuss some of the issues that I found to be of particular interest during the hearing; it is not intended to be a comprehensive summary of proceedings.

Capacity to consent to sex or capacity to engage in sexual relations?

A summary of the first instance and Court of Appeal judgments in the case can be found here. For present purposes it is sufficient to note that the decision of the Court of Appeal in JB challenged the approach previously adopted in the case law which had examined whether ‘P’ had the ‘capacity to consent to sex’ (D County Council v LS [2010] EWHC 1544 (Fam)B v A Local Authority [2019] EWCA Civ 913) and instead held that the question that should normally be asked is whether P has the ‘capacity to engage in sexual relations’ [93]. 

Section 2(1) Mental Capacity Act 2005 says that a person lacks capacity if they have an ‘impairment of, or a disturbance in the functioning of, the mind or brain’ which causes them to be ‘unable to make a decision’ about the matter at hand. Section 3 then explains that a person is ‘unable to make a decision’ if they are unable (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate their decision.

The Court of Appeal in JB held that when the decision to be made under s.2 is framed as being about whether or not to engage in sexual relations, then the ‘information relevant to the decision’ for the purposes of s.3 may include:

(1) the sexual nature and character of the act of sexual intercourse, including the mechanics of the act;

(2) the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity;

(3) the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;

(4) that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant;

(5) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom. [100]

JB was subsequently granted leave to appeal to the Supreme Court. Lead Counsel for JB (by his Litigation Friend, the Official Solicitor) was John McKendrick QC of Outer Temple Chambers, and Lead Counsel for the respondent local authority was Vikram Sachdeva QC of 39 Essex Chambers. The case was heard by Lord Briggs, Lady Arden, Lord Burrows, Lord Stephens, and Lady Rose. A recording of the hearing can be watched here.

The appellant’s main argument was that the Court of Appeal was wrong to find that the decision to be made was whether or not to ‘engage in sexual relations’, and counsel invited the court to follow the decision of Roberts J at first instance. If accepted by the court, then this would see the decision once again framed as ‘capacity to consent to sex’ and P would no longer have to understand that the other person must have capacity to consent to the sexual activity and must in fact consent to the sexual activity. 

The respondent’s position was that the decision of the Court of Appeal was correct and must be upheld. However, as will be discussed below, they submitted that the wording of ‘the relevant information’ should be changed so that P has to understand the other person’s ‘ability’ to consent rather than their ‘capacity’.

At the start of the hearing Lord Briggs stated that the court would also hear argument on a new point that counsel for the respondent (local authority) wished to raise and that this argument would be dealt with on a de bene esse (for what it is worth/provisional) basis, with the court determining whether permission to appeal the point should be granted when it delivers its judgment. Lord Briggs did not state what the new argument that counsel wished to raise was, but it became clear during the course of the hearing that it related to how the information relevant to the decision should be framed i.e. should it be issue-specific (looking at sex in general), person/situation-specific (looking at sex with a particular person and in particular circumstances), or should the plain words of the Mental Capacity Act 2005 apply without any gloss. 

The Supreme Court now has an opportunity to look at this area of law afresh and its decision could fundamentally alter the way that capacity to make decisions about sex is assessed. But the task that lies before it is complicated. The consequences of being found to lack capacity to consent to have sexual relations are profound. Section 27(1)(b) of the Mental Capacity Act 2005 lists consent to sex as one of the decisions that is excluded from best interest decision-making under the Act. The effect of this is that if P is assessed as lacking capacity, then nobody else can decide that it is in P’s best interest to have a sexual relationship with another person. Any form of sexual activity with ‘a person with a mental disorder impeding choice‘ is a criminal offence under the Sexual Offences Act 2003. Thus, a finding that an individual lacks the capacity to make decisions about sex tends to lead to safeguards being put in place in an effort to minimise the potential for sexual activity to occur. Indeed, the individual may be subject to a level of supervision so intrusive that it amounts to a deprivation of liberty. In essence, P has celibacy imposed upon them. 

Counsel for JB stated that the court is being asked to find the ‘least imperfect solution to a complex human problem’. This struck me as reminiscent of a comment made by Hallett LJ in the case of R v Bree [2007] EWCA Crim 804 that the ‘practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures’ [35]. The multi-varied nature of sexuality and decision-making in this area means that it is impossible to formulate a test for sexual capacity that will garner universal approval. Whatever the Supreme Court decides, its judgment should bring a much-needed level of certainty to judicial decision-making in this area. This is because most of the judgments on sexual capacity have been first instance decisions and therefore are not binding on other judges (the judges can choose not to follow them). This has allowed for differing and sometimes conflicting approaches to emerge within the case law, with assessors on the ground then having to navigate a path through a legal quagmire.

What are the ‘reasonably foreseeable consequences’ of having sex?

Under section 3(4) of the MCA, the information relevant to the decision must include information about the reasonably foreseeable consequences of the decision. This has been interpreted restrictively in the context of sexual capacity, and has been limited to certain medical consequences, namely pregnancy and sexually transmitted infections. It does not extend, for example, to an understanding of what is involved in parenting a child or that any child born may be taken into care (London Borough of Ealing v KS & Ors [2008] EWHC 636 (Fam)).

The appellant’s argument was that the decision to be made when looking at section 2 of the MCA is whether to give or withhold consent. John McKendrick submitted that when the decision is framed as being about P’s consent, then the reasonably foreseeable consequences of having sex cannot be regarded as encompassing the impact that P’s actions would have on the other person. 

The respondent’s position was that the potential harm to P and to the other person that would stem from non-consensual sex was within the remit of section 3(4). Vikram Sachdeva argued that information relevant to the decision should not simply include what capacitous people ordinarily consider, but also ‘what people should take into account’ [emphasis added]. 

The judges seemed to favour the respondent’s submissions. Indeed, early on in the hearing Lady Arden stated that she thought that section 3(4) was broad enough to capture the harmful effects of non-consensual sex. In addition to this, she opined that if the decision engages Article 8 of the European Convention on Human Rights (which provides a qualified right to respect for private and family life), then the court, as a public authority, has a duty to take public protection into consideration when making an order.

If the Supreme Court does hold that harm from non-consensual sex is a foreseeable consequence of having sex, then I would suggest that it should nevertheless reject the proposition that the relevant information ought to include what people ‘should’ think about when making decisions. This is incredibly subjective and people’s views of what ‘should’ be considered will vary widely. It would allow scope for assessors to import their own personal views into the test and could have harmful ramifications for anyone who finds themselves subject to a capacity assessment. It was also entirely unnecessary for the purposes of the respondent’s argument because most people do consider the other person’s consent when deciding to have sex.

Capacity to consent versus ability to consent

The Court of Appeal in JB held at paragraph 100 of the judgment that the information relevant to the decision to engage in sexual relations may include ‘that the other person must have the capacity to consent to the sexual activity’. Later in the judgment, at paragraph 106, Baker LJ said that: “What is needed, in my view, is an understanding that you should only have sex with someone who is able to consent and gives and maintains consent throughout“.

Vikram Sachdeva submitted that it is the formulation at paragraph 106 that should be followed, not that given at paragraph 100 which could be construed as requiring P to conduct a refined capacity assessment of the other person. He argued that focussing on the other person’s ability to consent as opposed to their capacity would make it plain that the necessary level of understanding is ‘what is expected of a person in the street without technical knowledge’. This was said to entail looking at a person’s physical appearance in order to try and gauge if they are over the age of consent, and whether they are incapacitated or not. The example used by Vikram Sachdeva to demonstrate how this would work in practice was looking to see whether a person is so intoxicated that they cannot speak. Lady Rose quite rightly stated that that was not the problem in this case, and queried whether the argument advanced by counsel would require P to be able to recognise that the other person may have ‘the same vulnerabilities he has’ and therefore may lack capacity. Counsel conceded that the ‘hardcore’ answer was that it would. The circularity of this approach is evident. Capacity is rejected in favour of a direction that P has to understand that the other person must be able to consent, but in determining whether the other person has that ability, P must assess whether or not the person is incapacitated. 

Vikram Sachdeva went on to state that it is not always readily apparent if a person has capacity or not, but there are ‘obvious cases’ where there may be cause to believe that they do not. He gave the examples of ‘cases where someone cannot speak at all’ or where they are ‘just looking around the room not connected to anything’. It must be remembered that neither of these things is evidence of a lack of capacity, and comments such as these can serve to entrench negative assumptions about disabled people’s sexuality. Despite this, counsel argued that these ‘obvious’ cases demonstrate that a test which requires P to be able to understand, use or weigh information about the other person’s ability to consent is workable. 

The Mental Capacity Act 2005 states that all adults are presumed to have capacity (s.1(2)), and a person cannot be found to lack capacity merely because of ‘a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity‘. (s.2(3)(b)). Counsel’s approach, however, seems to require P to make such unjustified assumptions in order to demonstrate that they can assess the other person’s ability to consent to sex. The comments made by counsel can also be seen as privileging verbal communication when people who are non-verbal will often use assistive communication devices or have an alternative, unique form of communicating. 

In his response to Vikram Sachdeva’s submissions, John McKendrick (counsel for JB) stated that if the Supreme Court concludes that the decision to be taken is to ‘engage in sexual relations’, then an approach that focuses on the other person’s ability to consent would be welcomed as being the more appropriate standard.  

It is plainly correct that P should not have to assess the other person’s capacity to consent to sex to the standard required under the MCA. This would place a tremendous burden on P and would not reflect the reality of most sexual encounters. However, if the court holds that the other person’s consent is relevant information, then there needs to be guidance as to precisely what is required in terms of understanding the other person’s capacity or ability to consent. Any such guidance will need to be drafted with extreme care to ensure that it does not collapse into circularity.

Sexual Risk Orders and Sexual Harm Prevention Orders

One of the submissions made on behalf of the appellant (JB) was that the MCA was not intended to be used to protect the public and that the Court of Appeal, by requiring P to understand the other person’s consent, wrongly introduced matters of public protection into the assessment of capacity. It was argued that the correct way to protect the public where an individual is unable to understand consent is to obtain a Sexual Risk Order (SRO) or a Sexual Harm Prevention Order (SHPO). 

SROs and SHPOs are civil orders that a Chief Officer of Police or the Director General of the National Crime Agency can apply to the magistrates’ court for or, in the case of a SHPO, can be made upon conviction. An order can be made where an individual poses a risk of sexual harm to the public. A SHPO can only be made if an individual has been convicted or charged with a sexual or violent offence listed in Schedule Three or Schedule Five of the Sexual Offences Act 2003. However, a SRO does not require the individual to have been convicted or charged of any offence; it can be imposed where an individual has done an act of a sexual nature and the order is deemed necessary to protect the public from harm. A person who is subject to an SRO or SHPO is prohibited from doing anything listed in the order. If they fail to comply with the order then they have committed a criminal offence and can be liable to be imprisoned, to pay a fine, or to both. Further information about these orders can be found in guidance published by the Home Office, which is available here.

Lord Stephens seemed sceptical that SROs and SHPOs would be an appropriate response and asked what the terms of an order would be if P is unable to understand consent. In response, John McKendrick (counsel for JB) said that the terms would be very simple and gave the example of an order saying ‘you must not be alone with women’. As Lord Stephens noted, P is criminalised if they breach the order. On the example given by John McKendrick, this would mean that P could potentially be imprisoned for being alone with a woman, even though that behaviour in and of itself is not illegal.

At present, JB lives with two other men in a supported living placement. Applying John McKendrick’s example to JB would mean that if one of his housemates were to invite a woman over, then JB would either have to restrict his movement in his own home or look to live elsewhere in order to ensure that he did not breach the order. Similar problems would arise in respect of any female staff members who were to provide support to JB. The social care workforce is predominantly female, and so an order of this kind could make it difficult for JB to receive appropriate support. Clearly this is undesirable, and the use of an SRO or SHPO should be avoided if there is a less intrusive alternative. Indeed, an order with such sweeping terms would be extremely difficult to police, which the Home Office guidance says would work against making it in the first place (p.37). John McKendrick’s submission also raises the question of what the terms of an order would be if P was bisexual and did not understand consent. Would P then be subject to an order stipulating that they must not be alone with men or women? This would obviously be impractical to implement and oppressive to P. 

Conspicuously absent from counsel’s submissions on SROs and SHPOs was the fact that requiring P to understand the other person’s consent does not just protect the other person from harm, but also protects P from the harm that would arise if he committed an offence. This was raised later on in the hearing by the respondents, who stated that it is a ‘false dichotomy’ to assert that the restrictions JB is currently under are solely for public protection. 

Abandoning the ‘issue-specific’/’person and situation-specific’ distinction?

A large portion of the hearing was dedicated to argument on whether P has to understand the information relevant to the decision in an issue-specific manner, person- and situation-specific manner, or whether these labels should just be abandoned entirely. Following the decision of the Court of Appeal in IM v LM [2014] EWCA Civ 37, an issue-specific approach is adopted in relation to capacity to consent to sex, and so the identity and characteristics of P’s partner are irrelevant to determining P’s capacity. John McKendrick submitted that this is the correct approach. This was challenged by Lord Stephens, who asked with some incredulity why the information relevant to the decision cannot include information about the other party, particularly if the other person is sexually abusive and could commit the most ‘heinous crimes on the individual’. In response, counsel explained that the traditional approach has been to impose restrictions upon P’s contact with the other person in situations where P does not understand that that person is abusive. Unlike sex, capacity to make decisions about contact is assessed on a ‘person-specific’ basis and so the risk that the other person could pose to P is information relevant to making the decision (LBX v K & Ors [2013] EWHC 3230 (Fam) [45]). If P lacks the capacity to make a decision about contact, then a decision can be made in their best interest.

Lord Briggs saw the logic in adopting an issue-specific approach in situations where P wishes to have sexual relations, but there is no identified other person. He did not seem convinced, however, that this is the correct way to assess capacity where the person that P wants to have sex with is identifiable. He noted that someone who might not have capacity on a general approach may nevertheless have it if it is assessed in relation to a particular person, for example, a partner of many years. The appellant’s position was that these concerns can be met by tailoring the relevant information if necessary, and relied upon the decision of Hayden J in LB Tower Hamlets v NB & AU [2019] EWCOP 27. This would permit the relevant information to be contracted if, on the facts at hand, P’s circumstances rendered it reasonable to do so. For example, in NB Hayden J held that P did not have to understand how sexually transmitted infections (STIs) were transmitted because she had been in a monogamous relationship of thirty years and there was no history of STIs. He acknowledged that this did not mean that there was no risk of STIs, but that on the facts the risk had to be regarded as very low and therefore a lack of understanding regarding transmission should not give rise to a finding of lack of capacity regarding sex. Mr Justice Hayden also explained that tailoring the information to P’s circumstances would mean that gay men, lesbians, and post-menopausal women will generally not need to understand the risk of pregnancy [54]. 

It was argued on behalf of the respondent authority that the issue-specific and person-specific labels should be rejected altogether because they act as a gloss upon the wording of the MCA, and thus serve to obfuscate its straightforward application. However, at times it was unclear whether this was, in fact, counsel’s stance or whether they were advocating for a person-specific approach. Indeed, counsel apologised to the court for lapsing into the use of ‘person-specific’ language during his submissions. He nevertheless proceeded to state that ‘you do not have sex in general, you decide to have it with a particular person’. Both Lord Burrows and Lord Briggs contested this, and raised the fact that in JB’s case he wants to have sex with women but has not yet met a particular woman or women with whom to have sex. Counsel then stated that an approach that simply construes the Act would provide the solution here: if P wants to have sex with a particular person, then the decision to be made is ‘does P have capacity to make the decision to have sex with X?’, but if the person is yet to be identified then the decision can only be defined in general terms.

This approach is not without its difficulties and it can give rise to seemingly illogical outcomes. For example, it made me think of the following hypothetical scenario:

Lucas, a 26 year old man with a learning disability, wishes to have sexual relations but has yet to meet someone with whom to have them. There are reasons to believe that Lucas may not have the capacity to make decisions about sex, and a capacity assessment is carried out. The assessment is conducted on a general basis and Lucas is found to have capacity. Lucas goes on a night out, meets Alex and has casual sex with him. They both enjoyed it and decide that they want to see each other again. A few weeks later it comes to light that Alex has a history of sexually abusing his partners. Lucas’s capacity is assessed again because he now wants to have sex specifically with Alex. He is found to lack the capacity to make the decision to have sex with Alex because he does not understand the risk that Alex may abuse him.

One of the reasons that the court has been reluctant to adopt a person/situation-specific approach in the past was because it was it was ‘difficult to see how it can sensibly be said that she has capacity to consent to a particular sexual act with Y whilst at the same time lacking capacity to consent to precisely the same sexual act with Z’ (Re MM (An Adult) [2007] EWHC 2003 (Fam) [87]). The approach advanced by Vikram Sachdeva may seem even more peculiar because, as seen by the above scenario, it means that P may have sexual capacity in a general sense and have sexual relations with a person on one day, but may lack the capacity to make the decision to have sex with that very same person on another day, notwithstanding the fact that their general understanding of the relevant information remains unchanged. There is no easy solution for the Supreme Court here and, irrespective of how it is framed, the test for sexual capacity will always have its discontents. Of course, it must be remembered that the Supreme Court may decide not to address the issue at all and instead refuse permission to appeal the point.

The importance of language

There were a few points during the hearing where the language or phrasing used struck me as being regrettable. For example, Lord Justice Stephens queried:

What does the local authority do after you have given the ability to have sexual activity with people and the patient does not understand that the other party has to consent?’ [emphasis added]

The court’s function is, of course, to declare whether or not P has the capacity to make decisions about sex. It does not grant the ability to have sex. To phrase it in this way is infantilising because it suggests that P must obtain permission in order to have a sexual relationship when, in fact, this is not the case. If P has the capacity to make the decision to have sex, then they are entitled to exercise that capacity. If P lacks the capacity then, as was stated earlier, the court cannot consent on their behalf. Furthermore, the use of the word ‘patient’ – which was used repeatedly by the Justices to refer to P – perhaps indicates that the judges are not up to date with this area of the law. ‘Patient’ is an outdated mode of referring to the ‘protected party’ in proceedings and is no longer used.

Later in the hearing Lord Justice Stephens remarked that ‘some people who suffer from these unfortunate conditions are completely compliant’ [emphasis added]. This comment is out of step with disability rights. Describing disabled people as ‘suffering’ and disabilities as being ‘unfortunate’ perpetuates a ‘personal tragedy’ view of disability. It frames disability as being objectively bad and imposes this view upon the disabled person despite the fact that the person might not share it.

Implications of the move to ‘capacity to engage in sexual relations’

Counsel for the local authority (Vikram Sachdeva) submitted that the reframing of the decision by the Court of Appeal to ‘capacity to engage in sexual relations’ is not a ‘game changer’ and stated that since the Court of Appeal handed down its judgment there has only been one case before the court where the change from ‘consent to sex’ to ‘engage in sexual relations’ has had an impact. It must be remembered, however, that the majority of capacity assessments do not involve court applications, and so relying solely upon the minority of cases that do go before the court is not a true indicator of how the judgment is affecting assessments. Indeed, in the absence of empirical research there is no real way of gauging whether the Court of Appeal’s decision in JB is changing the outcome of capacity assessments.

Final reflections

The judges seemed to be leaning towards an approach that would uphold the need for P to understand the other person’s consent, and which would move away from the strict dichotomy between issue-specific and person/situation-specific approaches to sexual capacity (albeit permission has yet to be granted on that point). This would represent a marked break from how sexual capacity has historically been framed in the civil courts. However, the court has also received written submissions and so the views expressed during the oral hearing cannot be taken as a firm indicator of what the final judgment will be.

At one point during the hearing, Lady Rose briefly mentioned a proposal from an intervener which would separate capacity from consent. Unfortunately there was no further detail as to what that would entail, but it may be similar to the framework advocated for by Liz Brosnan and Eilionóir Flynn. Brosnan and Flynn contend that the focus should be on providing a person with information and actively communicating with them. If the individual expresses a will and preference in relation to a decision, then, in the absence of coercion, this must be respected. Capacity and consent are currently tightly interlinked in the law, and a proposal that would allow consent to be separated from the need for mental capacity could result in radical change. It will be interesting to see how the court deals with this in its judgment. 

Following the Court of Appeal’s decision in JBAlex Ruck Keene had tentatively suggested that the move from ‘capacity to consent to sex’ to ‘capacity to engage in sexual relations’ could open the door for the court to make best interest decisions regarding sex. This is because ‘capacity to engage in sexual relations is not explicitly listed as being an excluded decision in section 27 of the Mental Capacity Act 2005. However, section 27 is not a closed list and, towards the end of the Supreme Court hearing, Lord Briggs noted that it was common ground that if the test for capacity to engage in sexual relations is upheld, then the decision to ‘engage in sexual relations’ must be an excluded decision for the purposes of section 27. For now, at least, it appears as though the legal framework may continue to prohibit people who lack capacity to make decisions about sex from having sexual relationships. 

The judgment of the Supreme Court could fundamentally change the way that capacity is assessed in relation to sexual decision-making and, indeed, how sections 2 and 3 of the MCA 2005 are understood more generally. It is the first time that the court has been asked to look at the test for lack of capacity set out in the MCA in depth and so, regardless of what is ultimately decided, the judgment will be a significant one. The court did not specify exactly when the judgment will be handed down, but Lord Briggs did state that they would endeavour to make it available as soon as reasonably possible. I await the judgment with interest.

Amber Pugh is a final year PhD candidate in the School of Law and Social Justice at the University of Liverpool. Her research examines the balance between empowerment and protection in mental capacity law, with a particular focus on decision-making around sex and contraception. She tweets @Amber__Pugh and can be contacted via email:

Photo by Francais a Londres on Unsplash shows the Supreme Court’s Official Emblem, designed by Yvonne Holton, Herald Painter at the Court of Lord Lyon in Scotland (Check out this webpage on Supreme Court artwork for more information).

What is a section 49 report?

By Rosa Beswick-Maddocks, 5th August 2021

If you observe Court of Protection hearings you may often hear lawyers referring (without explanation) to a “section 49 report”.  They may ask the judge to order one, or talk about a report they’ve received.

This explainer blog is to help you understand what a “section 49 report”  is (and how it is different from an “expert report” or an “independent report” – even though, of course, the people who write section 49 reports are also “experts”).

The Mental Capacity Act 2005

Section 49 of the Mental Capacity Act 2005 makes provision for the Court to require a report to be produced in respect of the Protected Party (P), about whom the Court is considering a question. Through section 49, the Court can order (most typically) the NHS body responsible for the area where P lives to produce a report even if it isn’t a party to the Court proceedings.  

A section 49 report is often considered as an alternative to a report by an independent expert. Whilst reports by independent experts can be obtained by the parties at private expert rates, no provision is made within section 49 in relation to fees or expenses incurred by the body directed to produce the report, and so the cost is therefore borne by the body directed to produce the report. Bearing in mind the considerable costs associated with expert reports and the fact that in the majority of Court of Protection cases most, if not all, of the parties will be publically funded (either by virtue of being public bodies such as the responsible Local Authority or Clinical Commissioning Group or because their legal representation will be funded via Legal Aid) seeking a section 49 order can be a more agreeable position when questions are raised which properly require the production of a report. 

When a section 49 report might be helpful

A common scenario when a section 49 report might be considered is when P’s capacity is in question. In such a case, the parties might seek an order requiring the NHS Trust to arrange for a  consultant psychiatrist to assess P’s capacity and produce a report. Depending on the particular circumstances, the appointed clinician might also be asked to consider additional, specific areas of capacity and to make recommendations regarding the management of P’s condition and best interests more generally. For example, in cases where P has a co-morbid condition such as diabetes and the impact of alcohol is an issue, the parties might ask that the report address P’s capacity to make decisions about alcohol consumption when considered in the context of diabetes and the associated risks.   

Section 49 reports can be obtained on a range of specialisms and the type of report sought will depend on the specific issues requiring consideration. For example, where a return home is being seriously considered, the parties might ask the Court to make a section 49 order directing an Occupational Therapist at the named NHS Trust to assess P and P’s home and set out their findings in a report. In such a case, the OT would often be asked to address work which can be done with P and any referrals which should therefore be made, adaptations to P’s house and equipment which would be required in the event that P were to return home and any concerns, risks or recommendations identified. If the potential for improved mobility might be a factor in weighing up the feasibility of a return home, the parties might also seek a section 49 order requiring one of the Trust’s physiotherapists to assess P’s mobility and make any recommendations for exercises which could be completed to try to improve P’s mobility.  

Potential advantages of section 49 reports

As outlined above, a section 49 report can be preferable to instructing an independent expert bearing in mind that the former is produced free of charge to the parties at a lower cost to the NHS Trust when compared with the private fees of an independent expert. 

Where P is receiving input from an NHS Trust, where possible, the Court will often ask that the section 49 report to be produced by P’s treating clinician, if possible. This is advantageous in that the assessing clinician will already know P and have a relationship with P which might help to facilitate P’s engagement. In comparison, an independent expert will not have met P previously and will therefore have to develop a rapport with P and, in some cases, P may not engage with a clinician who they are not familiar with and do not already trust. 

In this way, a section 49 report also saves duplication of work because the treating clinician will already be familiar with P and their case. In contrast, an independent expert will have to spend considerable time reviewing all the documents in detail in order to ascertain the necessary background information and build a rapport with P, all charged at private hourly rates, while P’s treating clinician will already have done this in the course of their work with P. 

Potential limitations of section 49 reports

However, NHS Trusts do state that complying with such requests places a burden on their limited resources and they may have no prior knowledge of P. Clinicians are not allotted additional paid hours in which to complete these reports and this can result in considerable delay in reports being produced. Further, in some instances the reports can subsequently be found to be lacking in detail due to the time pressures under which they have been completed, in which case an independent report might still be required. In this way section 49 reports can therefore cause duplication of work as well as delay, so if there is an urgency to the need for the report an independent expert might be preferable. 

How the courts seek to balance these issues

In the recent case of RS v LCC & Ors [2015] EWCOP 56, District Judge Bellamy was clear that while the Court does sympathise with the effect section 49 requests have on Trusts, the Court would seek to deal with such difficulties by narrowing the scope of the report to make it less onerous or by extending the timescale in which it is to be produced. (See the commentary on this case from 39 Essex Chambers here.)

In this spirit, and to avoid the Trust subsequently having to apply to the Court for such an amendment, Practice Direction 14E requires that, wherever practicable, before making an application for a section 49 order, a party to the proceedings should use their best endeavours to make contact with an appropriate person at the NHS body so that they are aware that an application is to be made, its purpose and the issues or questions which are to be addressed within the report and to enquire as to the reasonableness and timescales for providing the report should the Court order it.  


In summary, section 49 reports can be a helpful way to obtain answers when it might not be considered proportionate to incur the fees of an independent expert and the proposed instruction of one might be contentious.  However, the potential limitations of section 49 reports should be borne in mind and the decision whether to seek a section 49 order or an order for the instruction of an independent expert will always be very fact and case specific. 

Rosa Beswick-Maddocks is a paralegal in the Public Law and Human Rights Department at Irwin Mitchell in Newcastle. She has worked at Irwin Mitchell for over 2 years on matters such as health and welfare cases in relation to vulnerable adults in the Court of Protection and public law challenges including  applications for judicial review. 

Photo by Luca Bravo on Unsplash

Congratulations, Kirsty!

By Gill Loomes-Quinn, 3rd August,2021

We are delighted to share that member of the OJCOP Core Team – solicitor Kirsty Stuart – has been awarded the inaugural Disability Rights Award in the Legal Aid Lawyer of the Year awards (the ‘Lalys’) organised by the Legal Aid Practitioners Group. The award recognised particularly Kirsty’s work to secure access to chemotherapy treatment for a learning disabled man with cancer.

Kirsty works tirelessly across a range of issues relating to Disability and Carers’ Rights – you can read in this post how her personal experience informs and motivates her work. She brings this remarkable breadth of experience and commitment to her role at OJCOP, and we are delighted that her passion and dedication to her job, and to the rights of disabled people, has been recognised by this award.

Congratulations, and well done, Kirsty!

You can read more about the awards in this article by the Law Society

And there is an interview with Kirsty here, in the Times (behind a paywall)

When an academic theory becomes reality: The applicability of section 3 of the Mental Health Act 1983 versus section 5 of the Mental Capacity Act 2005

By Jennifer O’Neill, 3rd August 2021

On 27th July 2021 I observed a remote hearing (via Microsoft Teams) brought before Mr Justice Hayden in the Court of Protection: COP 1354439T Re: PH.  

Having observed my first remote hearing in the Court of Protection a few weeks earlier (Re AH COP 13783897), I was aware that when observing such hearings, you never quite know what to expect.  On this occasion it quickly became evident that this was a complex case which had already been through several rounds of hearings.  Due to the complexity of the case– and the great concern it caused Mr Justice Hayden – there were several interludes during the day as Mr Justice Hayden attended to other pre-existing duties and returned to consult Counsel.  During these interludes I sought to familiarise myself with the facts of the case and consulted Gaby Parker’s blog relating to a hearing of the same case on the 29th June 2021.  

The hearing of the 27th July was the continuation of a hearing from the previous Friday (23rd July 2021) which I did not attend.   Counsel on behalf of the Hospital Board was Roger Hillman and Counsel for PH was Ian Brownhill, via the Official Solicitor.  

Background to the case

The case concerned PH, a man in his 40s who was described as having complex physical and mental health needs.  The court heard that in 2017, PH had swallowed swimming pool cleaning fluid and, that a specialist team of upper gastrointestinal (GI) surgeons had performed life-saving surgery which included an oesophagectomy, partial gastrectomy, partial colostomy and splenectomy.  Although PH had made good progress and was fit for discharge, he had remained in hospital for the past year due to the difficulties in finding a suitable placement in the community.    We were told that the case had been adjourned on Friday 23rd July 2021 pending an appointment between PH and the surgical specialist on 5th August 2021.

We heard a short report from the specialist – a consultant upper GI surgeon – who explained that PH’s mental and physical health had been subject to ongoing review to determine whether he had attained the “stage of stability” required to undergo reconstructive surgery of his oesophagus, stomach, and bowel.  The court heard that this surgery would remove the need for PH to be fed via a PEG-J tube and would enable PH to live a more normal life.  We heard that PH had made good progress thus far and that, in May, his tracheostomy was successfully removed with no need to reinstate it.  In her blog, Gaby Parker explained that PH had had “significant communication difficulties as a result of his tracheostomy and [could not] talk” . Since the tracheostomy had been removed “the judge referred to him as ‘blossoming and restored to communication with the world’”.   Furthermore, she explained that as a result of hypoxic brain injury – which had been known to further trigger seizures – his cognitive and motor functions had been affected.   According to the surgical team, the ‘stability’ required to undergo the surgery required that PH demonstrate abstinence from alcohol and drug use and attain an adequate level of feeding. It was clear that it was crucial PH demonstrated a “good enough presentation” to the surgical team to be considered ready to undergo this “very major” life-changing reconstructive surgery. It appeared that thus far he was moving in the right direction.  

Gaby Parker explained that at the June hearing, P had been assessed by a consultant clinical psychologist in late 2020 who had reported that he had ‘Emotionally Unstable Personality Disorder, Impulsive Type’ and he lacked capacity “in a number of respects, including to litigate and to decide on his residence and care – although …in February 2021…did have the capacity to decide whether or not to accept his PEJ feed and the care associated with this”.

The present hearing brought before the Court of Protection related to interim developments which could affect this crucial surgical appointment.  Ultimately the court would consider whether it was lawful to hold PH in deprivation of his liberty by consideration of both section 3 Mental Health Act 1983 and the Mental Capacity Act 2005.

Developments in the case

First, we heard that the format of the planned appointment had changed.  The surgical team no longer considered it necessary to transport PH from the hospital to the specialist centre to meet the surgeon face to face and so a remote hearing was proposed instead.  PH did not require investigations and his weight could be communicated to the team remotely. Mr Hillman, counsel for the Hospital Board, explained that the COVID-19 situation at the referral hospital was acute and that even cancer surgeries had been postponed due to the lack of intensive care unit (ICU) beds.  He stated that even if PH attended his scheduled appointment on 5th August, there is no timescale as to when he could feasibly undergo the surgery.

Mr Hillman then explained to the court that since Friday, PH had been removed from the ward where he had spent the last 9 months.  Gaby Parker explained in her blog that PH had been isolated in this ward – “[t]here were…systemic, organisational factors at play…[a]s such [PH] was an ‘outlier’ on the ward.”  Counsel for the Hospital Board explained that PH had been moved to a psychiatric ward on the same hospital site following an assessment of his behaviour.  Mr Hillman stated that “…on a number of occasions [PH has] been upset and frustrated at the progress of matters and had broken computers on the ward.  Due to assessment of the safety of staff and others it was deemed that he should be moved to a psychiatric ward for the safety of himself and other patients”. (1) Mr Hillman acknowledged that the move was met with a “very negative reaction” from PH, that he was unsettled and refusing food via his PEG-J tube and that he was described as being “very unhappy there”.

Mr Justice Hayden responded with an expression of deep concern.  He clarified that whilst he was in no way “…defending for any moment [PH’s] behaviour [he was] not convinced the damage to computers was linked to psychiatric [factors]…”.   PH, Mr Justice Hayden explained, had faced “barrier after barrier” that would have “driven any one of us to despair”.  That PH should now find himself in a psychiatric unit because of this was not “immediately and instinctively” considered by Hayden J to be in his best interests.  Gabby Parker described in her blog that PH’s “psychological needs appeared to have been … overwhelmingly ignored by mental health provision [and so she] wondered whether [PH’s] complex psychological needs had led to an over-shadowing of his ‘normal’ distress in the face of unwelcome healthcare interventions and his right to have an opinion about these.”  She concluded that it appeared that PH was being “silenced in his care, both literally and metaphorically” .  Indeed, Mr Justice Hayden toiled with the situation throughout the hearing explaining that he was “not at all surprised” by PH’s reaction in breaking the computers and that to have moved him to a psychiatric ward was “such a pity” considering the progress he had made.  He also considered the legal framework which covered PH’s psychiatric admission, explaining that he was not convinced that PH met the criteria for section 3 of the Mental Health Act 1983 and that he was inclined to discharge it.

Mr Justice Hayden proceeded to engage with counsel for the Hospital Board – “Is PH capacious?”.  Mr Hillman responded that PH was not, according to the doctor’s assessments from December 2020 and February 2021.  Mr Justice Hayden reminded Mr Hillman that we are now in July/ August of 2021.  Mr Hillman clarified that PH did not have capacity to decide on his residence, care or treatment.

On several occasions Mr Justice Hayden expressed his concern at the situation, describing the case as a “litany of failure”.  The frustration experienced by PH was, according to Hayden “understandable”.  Hayden J explained;

“As a result of the system being unable to meet his needs, he finds himself in a psychiatric ward.  I am in no way convinced it is in his best interests and I am inclined to remove the order at the expiry of 12 months of not being able to achieve a great deal.  He was doing so well… he is [now] not eating, he is distressed, and he is in a psychiatric unit and he is about to be assessed for a surgery for which he needs to be at his best – and he’s at his worst.”

Mr Hillman then responded that there had also been a change of position by the Hospital Board Mr Hillman then responded that there had also been a change of position by the Hospital Board since Friday.The Official Solicitor had recommended an Independent Social Work (ISW) report and an independent nursing report to be carried out and he explained that whilst he had originally been instructed to oppose those reports, he was now instructed to remain neutral.  He explained that although the Board had its doubts as to the value of such reports, if the court felt it would be appropriate then the Board would not oppose such a move due to the complicated nature of the case.  Mr Justice Hayden responded in exasperation, explaining that he rarely feels that commissioning reports provides answers to such immediate problems.

Mr Brownhill expressed his concern, stating that if PH is in a psychiatric unit, it should be for “the shortest period of time”.  Mr Justice Hayden in agreement asserted that “he has waited for 7 months for a place in the community and I am not going to leave him in a psychiatric unit for the next 7 months”.  Mr Brownhill then asked Mr Justice Hayden how PH meets the criteria for section 3 of the MHA, to which Hayden J responded that “he does not meet the criteria”.  Mr Brownhill proceeded to explain PH’s position – “he is on a psychiatric ward with several elderly people, he says that it “smells like death” and he is becoming upset and agitated”.  Mr Justice Hayden, clearly troubled by the developments, responded

He is not going to stay on that ward. I am prepared to declare it is not in his interests to stay on that ward, but I’d rather work cooperatively and constructively. I do not for a moment seek to justify his loss of temper, but I cannot see but that any of us would be frustrated to have option after option dangled and then withdrawn in the way he has.  He has progressed and got better in circumstances that are not capacious to his recovery and all this will be undone by the psychiatric unit.”   

Mr Justice Hayden then referred back to Mr Hillman, counsel for the Hospital Board, stating 

“I would have thought that the system could do better than that Mr Hillman.  I appreciate that people are doing their best, but in the end, one must judge by results and not aspirations.  What is the point of him seeing [the reconstructive specialist] at this low ebb which is the result of this placement?  It seems to set him up to fail”

In response, Mr Hillman stated that PH has a “complex presentation” which involves an “emotionally unstable personality, of the disruptive type”. However, Hayden J opposed such a defence stating that he does not think such an assessment “correctly characterises the recent past with [PH’s] striking progress…It is [therefore] not satisfactory to say he has an emotionally unstable personality as a banner to march behind to justify the removal to a psychiatric unit.  I simply cannot see how that was thought to be necessary or appropriate”.  In response, Mr Hillman explained that the move was “as much to do with welfare and safety of PH as welfare and safety of staff and other patients”.  Mr Justice Hayden then asked Mr Hillman to point out where, in the court documents, he could find a statement which set out the balance of these issues, quickly clarifying that this was a “polite way of saying I don’t find the balance of welfare and safety” in regard to PH – which served as the basis of the report.   Mr Hillman then suggested that the recommendation to move PH to a psychiatric unit would allow his behavioural outbursts to be “better managed”.  Explaining that he still remained unconvinced that the criteria for section 3 MHA 1983 were satisfied, Hayden J asked Mr Hillman where, in the context of the law – not medicine – this then left the court.

Deliberation over the relevant legal framework

Mr Hillman explained that PH lacked capacity in relation to treatment and residency and therefore could be deprived of his liberty.  The Deprivation of Liberty Safeguards (DoLS) (Schedule A1 is an amendment to the Mental Capacity Act (MCA) 2005 which aims to protect those who cannot consent to their care arrangements whereby those arrangements deprive them of their liberty.  Such provision must be necessary and, in the patient’s best interests.  However, still unsatisfied, Mr Justice Hayden stated that he considered the detention of PH “for the purposes of treatment is disproportionate and contrary to PH’s best interests”, warning counsel that he has “followed this case all the way through and [is therefore] on top of the evidence”.

Still perturbed, Hayden J turned to Mr Brownhill, “I want to hear PH’s voice”, to which Mr Brownhill responded,

“It is clear PH does not want to continue in the current circumstances.  My legal view is that if you came to the conclusion that deprivation of liberty is not authorised, that there would be an ongoing Article 5 [(European Convention on Human Rights – Right to Liberty and Security) breach until resolved in damages. If your Lordship declares that section 3 is unlawful – wearing your administrative court hat…your Lordship may be able to do so in the administrative court on that basis that it is unlawful”

Mr Justice Hayden agreed, “I think it would be difficult for anyone to argue the section 3 criteria are met and so no one could argue it…”.  Continuing, Mr Brownhill explained “the Official Solicitor has challenged this for over a month, as to why a case under the MHA 2005 – as opposed to a deprivation of liberty of MCA 2005 – and it appears to be an intention to sidestep your Lordship’s overview”.  Hayden J pondered, “the papers are headed under both the COP and MHA – I don’t think they have doubted the jurisdiction of this court.  Whilst he has been on the ward, the regime has been somewhat academic but now it is not – it’s very real.  I need to hear from Mr Hillman as to whether section 3 MHA can be justified – I think I should hear your submissions after speaking to the psychiatrist”.  Mr Justice Hayden then explained “The Supreme Court is looking at the scope of deprivation of liberty with a judgement due to be handed down next Friday regarding children.  I am working on the basis that the inherent jurisdiction remains open to the court until the Supreme Court tells me otherwise – if it indeed does – and that I can authorise a placement that is otherwise illegal under the inherent jurisdiction.”

On Friday 30th July the Supreme Court is to hand down a ruling in the landmark case of In the matter of T (A Child)(Appellant) UKSC 2019/0188 on the use of the inherent jurisdiction to authorise children’s placements in unregistered secure accommodation in cases whereby there is insufficient registered places available.  In this case, the appellant – a 15 year old child subject to a care order – wishes to be recognised as capable of consenting in law.   The case will consider:

  • whether it is lawful for the court to exercise its inherent jurisdiction to authorise a child’s placement in unregistered accommodation; 
  • if so then what legal test should be applied and; 
  • whether the child’s consent to such deprivation of liberty relevant in the exercise of this inherent jurisdiction. 

At this point Mr Justice Hayden then directed the court to return at 11.40, stating he had other duties to attend to.

Upon resuming, Mr Hillman instructed the court that the consultant Liaising Psychiatrist, Dr B, was called as a witness.  Having been sworn in, Dr B then addressed the court.   Dr B explained to the court that her role was as a Liaising Psychiatrist, providing mental health input in the general hospital whether that be in the emergency department or on the wards.  This, she explained, provides a link between mental health and all primary and secondary care physicians.

Mr Justice Hayden was keen to determine the extent of Dr B’s dealings with PH.  Dr B explained she had interacted with PH “since his admission”.  Hayden J sought further clarification still, “you said you assessed him within weeks of his admission, but have you been seeing him regularly in the interim?”  The doctor replied that she “might not have necessarily seen him [herself] but [that she had] been involved in the overall [oversight of] things as the consultant of the liaison team”. Pressing further, Hayden J asked on “how many occasions have you seen him?”.  Dr B responded that she couldn’t say, but that it varied between “two to three times a week or once a fortnight or monthly – depending on how he has been”.

Mr Justice Hayden then asked if Dr B had provided the witness statement dated July 15th, to which Dr B replied she had.   Mr Justice Hayden asked how PH presents today. Dr B responded that the day before he had walked, with staff, from the general surgery ward to the psychiatric unit.  Hayden J then asked why that move was arranged from the ward where he had been for those previous months.  Dr B responded,

“PH has been very stable from a physical point of view with minimal intervention from physicians.  The only main issue remains his waiting for a placement.  Every now and then he gets very frustrated waiting and there were episodes where he would – unprovoked – become very, very aggressive and start throwing things again. And, on a couple of occasions, he broke computers in the secretaries’ office in the ward and it seems to us that, although physically he is much better and he is waiting for the placement – and, his acute needs for both physical and mental health aren’t there – ….we felt that he has been waiting for his placement for many months and it hasn’t come through and it is the psychiatric behaviour that seems to be a big problem when it comes to managing it on a general ward.”

Dr B was then asked to explain the type of patients on the general surgical ward.  She explained that, due to COVID, wards are no longer split in to set specialities and that this ward, in particular, now served a range of patients from specialities such as ear, nose and throat (ENT) to medical patients.  She explained “it is a mix of skills on that ward”.   Mr Justice Hayden then said, “I was under the impression that PH was in a room of his own?”  The doctor replied, “yes, he has been in a cubical on his own, but he is able to walk out of his cubical and is on the main entrance to the ward”.  She then went on to explain the proximity of PH’s room to the secretary pool and the junior doctor’s office. The ward, we heard, held between 22-23 patients.  Mr Hillman then asked the witness whether, with regards to the aforementioned incidents which had occurred, PH would have been able to remain on the general surgery ward.  Dr B responded,

“Well, mental health and physical health nurses have different training, and the mental health nurses are far more trained in dealing with behavioural problems with patients and, although those nurses tried their best, they called security and you then have security deal with a patient rather than nursing staff – although our colleagues helped.  So, we feel that the psychiatric team is more trained in dealing with the circumstances and we feel this behaviour won’t stop and, from time to time, we will see it”. 

Mr Justice Hayden appeared sceptical of this response and asked Dr B – “why, a day before he came to court, was it deemed [necessary] to move him to a psychiatric ward?”. Dr B responded that previously PH was not physically well enough to go to a psychiatric ward, explaining that when he had the tracheostomy this required suction which was not available on mental health wards.  Mr Justice Hayden asked Dr B how did she think PH would react to this move, to which Dr B replied 

“He was very happy – he said “[he was] mad – take me to psychiatric hospital!”.  When we discussed that there was an opportunity and there would be more activities he could participate in, during the day, he was quite inquisitive about the move. It was discussed previously.  From 15th July it was discussed with him a couple of times, the move.”

This, it appeared, was in contradiction to the submission of PH’s counsel Mr Brownhill and, as it transpired, the subsequent testimony of PH’s partner – both of whom explained that PH was extremely distressed by the move.   Mr Hillman then asked Dr B whether there were any issues, other than dealing with PH’s behaviour, which prompted the move to the psychiatric ward.  Dr B explained, 

“He has injured staff at times, and he would put other patients at risk – although obviously staff and security try to ensure this will not happen.  When he becomes threatening… I have felt threatened and I would have to leave as I knew I would be injured if I didn’t.  It wasn’t just about him, it was about the safety of other patients and when he pushed computers on the floor, the secretaries were there and terrified.” 

Apparently unconvinced by the necessity for the move, Mr Justice Hayden then asked whether the bed was still available on the General Surgical ward, to which the doctor responded that she didn’t think it was given the acute need for beds.  The doctor was then asked how PH was today.  She replied,

“Although I haven’t seen him, I am seeing him this afternoon and I have discussed with the team leader that he hasn’t settled well.  He refused PEG feeds and has been agitated….I have asked my speciality doctor – who has engaged well with him – [about how he is today].  She reviewed him and he was in the garden of the ward, and they sat and had a chat.  He complained there is a smell in the room and in the garden.  He also said he didn’t want to take the feed but he was accepting of the medication.”

The doctor was then asked whether PH’s condition was likely to change and whether he would get used to where he had been moved to.  Dr B responded,

“This is not unexpected with a condition like PH, to behave this way.  It will take some adjustment. I am optimistic that things will move on.  The fact the doctor could engage him, and he sat and spoke is good news to me.  It is easy for him to access the garden, it is contained, he can’t go outside the ward, but from his room he can go out into the garden, so that is another positive thing for him. Whilst I accept that there are some adjustments to be made…”

Mr Justice Hayden then interjected,

“You know that PH is being assessed by surgeons to evaluate the prospect of major reconstructive upper GI surgery to improve his quality of life – potentially very much – on the 5th of August?”

Dr B replied,

“Yes, I am aware.  It was planned a year after 2016.  Unfortunately, due to alcoholism and alcoholic hepatitis however, thereafter he has a number of appointments…”

Mr Justice Hayden again interrupted,

“What [the specialist] insisted upon, was that PH be in optimal condition for the assessment. It seems inevitable that to move him before the assessment…it seems incredibly predictable that this would happen. How does that fit with your liaison role?”

In response, Dr B said

“Yes, [the specialist] needs him to be mentally and physically stable.  They thought he would be settled in a placement and take it from there.  So that’s why it was arranged.  At the moment, [the specialist] said there is no point in having the face-to-face appointment. We will probably have it remotely as they will not do any investigations and it is highly unlikely that he will be able to list him for surgery. So, to me, it is much more important that we try and settle PH in a placement to see how he will cope outside, where he will have access to alcohol which he has used in the past and, whether he will be able to continue with the progress so far.”

Mr Justice Hayden then said, “we have spent 12 months trying to find a placement and now he’s ended up in a psychiatric unit. Do you think this is the right place for him?”  Dr B said “no, a placement would be right – but when you can’t find it, you choose the least evil”.  Clearly perturbed, Mr Justice Hayden hastily responded,

“I don’t think you do, when you are restricting someone’s liberty. That is a long way from meeting their basic human rights. I understand the challenges, but it does not mean I will sanction what you term ‘the least evil’ option.  I don’t think that that’s right, that people should have to endure that. I am not prepared to sanction something that is the ‘least evil’ and I don’t think the public would expect me to.”

In regrouping, Hayden J then returned to whether the criteria for section 3 of the MHA 1983 had been met, surmising that “if we get to the bottom of that, then it cuts out a swathe of options”.  He asked Mr Hillman, “can you look at, and consider, the recommendation that you made about PH continuing on the section 3 MHA 1983 order, as it has been raised before the court as to whether that is ‘appropriate’ or ‘necessary’ and I would like you to explain [this]?” emphasising that he would like to know whether the criteria are met, today.

Dr B responded that he did meet the criteria as the doctor determined that PH suffers from a mental disorder and, as the result of an acquired brain injury that disorder is more difficult to manage.  In considering whether the order is of a degree that is appropriate, Dr B explained that, when one considers the “chronicity” of the disorder, it is evident that he has a long history of behavioural problems that involve self-harm.   In describing PH as a “vulnerable adult who will always need care” the doctor explained that he has been “known to surface in mental health [since the age of] 27 when he had a history of multiple drug and alcohol abuse.” 

 She continued, describing         

“the intensity of [PH’s] symptoms – [that he has] a shallow understanding of his care needs, [that] from time to time he finds it difficult to tolerate his frustrations and experiences very negative thoughts.  He finds it difficult not to act out, and to dissipate his frustrations in a more mature way.  When he ‘comes down’, he is either oblivious or apologies. Is it [therefore] necessary for the health and safety [and] protection of others. Yes, he needs to remain on section 3 of the MHA, as treatment cannot be provided unless under the section.  We could say that PH is incapacitated, compliant something – but sometimes he isn’t compliant.  He has a degree of restrain that is needed to be used.  It is not permissible to use this degree of restrain when he is behaving in certain ways that require restraint.  He might not be able to receive treatment if he is under the MCA alone.  It takes us back to the original reason why he was put on section 3 in late December.  He was originally put on section 2 and then section 3 as he was trying to abscond from the ward, and it was very difficult to control him on the doors alone.  To my knowledge, when there is an element of restraint required, we are not justified by keeping them just on the MCA.  Whilst I have considered the least restrictive option, I have to use section 3. And, because we have not appealed in the first 6 months and he has a manager’s meeting, where I will meet to defend it again.”

Mr Justice Hayden then inquired, “if the manager maintains the section 3, will it go to tribunal?” to which Dr B responded, “yes, it will go on 9th September and if the managers discharge him from section 3 then we will have to consider an emergency order to keep him on the unit”.  Hayden then enquired as to whether PH has tried to abscond, to which Dr B responded that he had tried to abscond from the General Surgical ward, describing how PH had, during a walk around the hospital with staff two weeks ago, tried to “divert towards the shops” and that it had been “difficult to get him back”.

At this point, Mr Justice Hayden had to leave again, and the hearing was set to resume again at 2pm.

Upon his return Mr Justice Hayden expressed frustration at “going round in circles” and conceding that he had “the profound feeling that nothing is going to be achieved at all today and [that he was] very uncomfortable with PH’s situation”.  After being advised the PH will go before the mental health tribunal in September, Hayden J concluded,

“I think that PH’s circumstances are very disturbing.  He has been waiting for appropriate placement for 12 months. He has been in circumstances that are not meeting his needs.  Notwithstanding the lack of neurorehabilitation that he’s been receiving since (as it’s not in the remit of those giving him care), he has made remarkable progress.  He has to be evaluated for some very important reconstructive treatment in [such circumstances] when he is – at very best – in the first wave of shock as the result of a dramatic change of circumstances.  If you had planned to make it difficult to make progress for PH, then it could not have been more effective”.

Mr Justice Hayden then reminded the court that PH is “a long way off having access to a service his is in need of” and that it makes him “very concerned for those who do not have the degree of scrutiny this case has [and all the protection afforded by the Court of Protection]”. Hayden J then explained that he had met with PH’s partner, whom he noticed was in attendance at this hearing, as she had been at every prior hearing.  He explained that whilst he was not prepared to allow this situation to continue, he was unsure of what he could do today. He contemplated that he could make a public order, and “name names” but that that was the “weapon of last resort”.  Whilst acknowledging that in the current pandemic, we are “all under pressure”, he cautioned that “that does not mean people like PH can get lost in it”. 

Concerning the Lack of Suitable Placement

Mr Justice Hayden then turned to address Mr Hillman, Counsel for the Hospital Board – “last time you had told me there are places in the community that PH might be able to go to because he’s made sufficient progress…because he’d made [that] progress under his own steam.  Is that still an option?”

Mr Hillman explained that those were mental health nursing homes and that those applications have not been progressed because there have been COVID outbreaks which means they had not been able to assess him.  He sought to assure Hayden J that PH would be assessed “as soon as the COVID situation allows”.  Mr Justice Hayden was wholly unsatisfied with this response replying,

“I am not prepared to accept that is sufficiently proactive or creative enough.  About 12 months ago we moved to assess people in care homes remotely and that has proved quite effective. I know it’s a preliminary assessment [by the specialist surgeons] that will take place remotely – why can’t the assessment for the nursing home be done remotely since there is a [body] of evidence available [from this case]?”

Hayden J was not prepared to accept Mr Hillman’s explanation that this was the nursing homes’ position, stating that nursing home representatives can “come and tell me why they are taking this stance in person”.  Mr Justice Hayden continued to emphasise the urgency in this case, stating “we cannot have this drift.  He has been in these parlous circumstances for too long now and I want to know what can be done and quickly. I want to know what we can actually do and not what we can’t do.  Dr B – what can we do, because this can’t be right?”.  Dr B asked, “if I took this right [you are stating that] we are depriving him of something that would benefit his physical health?”.  Hayden J replied,

“No, he’s recently been moved.  He’s been distressed at the move.  The distress is predictable and it’s at the time when he’s being assessed for major surgery and he’s not going to give off his best – that to me does not seem like the most coordinated approach.  PH should not be where he is now and he’s been there long enough.”

Dr B then responded “PH is where he is because of what he did to himself”, to which Hayden J crossly replied “I do not take that view.  The Court of Protection does not take a punitive view. I am talking about the overwhelming gamut of his needs which are, on your view, the least evil”.  The doctor then responded that if there was a placement available which was appropriate then that is where she would have liked PH to go.  Hayden then turned to Counsel for PH, Mr Brownhill to ask his perspective.  Mr Brownhill explained his frustrations, reminding his Lordship that he had set out a roadmap at the last hearing which represented a “comprehensive assessment of need” and which had recommended that a “commissioning specification” be set up.  Mr Brownhill explained that this required a search of England and Wales be conducted to find potential placements and that, once complete doctors would be invited to put forward their views according to section 4(7). This, according to Mr Brownhill, did not happen and he held the Health Board responsible for this failing.  He explained “…there is no explanation as to why that is not done.  With some regret, the independent social worker and nursing expert are [now] instructed to do the work that should have been done today”.   Hayden J requested a list of options be drawn up which could assess PH remotely, but Mr Brownhill reminded his Lordship that this was requested at a previous hearing but had remained unfulfilled.  Mr Justice Hayden then turned to Mr Hillman and asked “am I being ignored?”.   Mr Hillman advised Hayden J that “the problems have come about [because] we have been given the ‘run around’…for COVID reasons things have been put on hold temporarily”.   This was not considered to be an acceptable excuse before the court according to Hayden J, 

Unless you have been living in a parallel universe you will know that the entire world has managed to make assessments remotely …to say we can’t do things because of covid is invariably a ruse for those who don’t want to do things. You only need to look to the law reports and see what has been achieved in care homes and hospitals and ICUs. This man has, on the preponderant medical evidence, some potential to recover – even without focused treatment, and in a state of limbo, has managed to do well.  Dr B feels she is being criticised but, the reality is that he has been moved when he didn’t need to be removed”.  

In reference to an earlier argument by Dr B that PH would also be exposed to nosocomial infections if he were to remain on the general ward, Mr Justice Hayden continued –“to say there are viruses fails to recognise he has been on the ward for 12 months running the gauntlet of avoiding these viruses.”  Counsel for the Health Board, Mr Hillman then replied by stating that “maters are not going to resolve suddenly” when PH meets the surgical specialists.  Hayden J responded, “I don’t like that – trivialising the meeting with the experts – I suspect to him it is very important.”   Whilst Mr Hillman clarified that he did not intend to trivialise matters, and that it was unlikely surgery soon take place due to COVID, Hayden J explained “I am extremely uncomfortable at what has happened, and I am, by no means persuaded that he should be under a MHA order, but since it will be reviewed by tribunal soon, I am not going to quash it by way of judicial review now. [Nonetheless], I want this to be proactive and I don’t want PH to be side-lined”. 

Mr Brownhill then addressed the court, citing his concern that key members of the Health Board failed to attend any of the hearings.  He described the whole process like trying to “get blood from a stone”.  He commended his Learned Friend as “valiant in defending the Health Board” but explained that the reality was his client was “sat on a bench outside a psychiatric unit” just now and that “if it gets worse, he will end up in a psychiatric intensive care unit”. Appealing to Hayden J, Mr Brownhill explained “someone of rank needs to listen to your Lordship. I would prefer the Chief Executive had been here to listen to what you say”.  Hayden J agreed that Mr Hillman had “not [been] given what he needed [and so] ends up in a defensive position for the Health Board and [that] that is not what this court is about”.  Hayden J then stated that he would sit in open court at the end of August, that he will review the need for a transparency order if need be and will give a judgement at that time.  He requested that he be informed of who to call at that time, and explained that he has “tried all other routes” and that he “does not take this [stance] lightly”.  He explained that he hoped this approach would “generate a more proactive, not aggressive, resolve to do something for this still young man who is only [in his 40s]”.  Hayden J then turned to Dr B, 

“This is not about criticising the individual doctors. It is about getting the system to work effectively to translate the care into the result.  I think you are right to use the least evil option. We have hung on for 7 months for a placement that “gave the Board the run around”, but it shouldn’t have been permitted to do so as there is a patient at the middle of it.  Either they are going to do so, or you should have abandoned ship” 

Mr Brownhill then restated that PH was currently sat in the gardens of the psychiatric unit over lunchtime, indicating that he should not be there.  Mr Justice Hayden then considered that “one of the few consolations [of holding remote hearings], is that P – the protected person – has been more involved than they would have before [the COVID pandemic]”.  This, in reference to the newfound ability to interact with protected persons via remote video link.  He continued,

“I visited P and you will recall that he found that a beneficial experience.  Not because I was able to convey anything constructive, but because he was not made to feel a bystander. So, I want a careful note of what he has to say about his circumstances. I do hope that when we meet in August, finally, there will be some good news about this man. My own assessment of him – and I don’t doubt that he is in this position due to his own actions, but he does have a personality disorder which contributed to that –  [is that] he has made considerable effort in recent times. I hope that we can do something for him.”

Mr Hillman then asked what “physical steps are expected to be progressed…?” to which Hayden J clarified,

“Let me help and this is not to circumscribe you to my views. I want to know:

  • who is responsible for looking for a place – their name and who they are accountable to 
  • A list of every place the approach
  • What the response is
  • The reason for their response.
  • Whether it is possible for remote assessment
  • I want the emails
  • I want the whole telephone and paper trail, so I can get a grip of the reality.

This is what I would do for a child, when children need secure placements and can’t get it. I get a named individual to go around units. It can create a degree of urgency that doesn’t seem to arise under the burden of people’s day to day routine, which I know for all of us is heavy at the moment.”

Finally, Hayden J turned to PH’s partner, who explained that PH had, even prior to the hearing commencing at 10.30am had contacted her 30 times. This was, in her opinion, illustrative of his distress at this psychiatric placement.   In closing, Mr Justice Hayden sought to reassure her, “I am hovering over this case for as long as I have to…[and] until we are able to galvanise the system into [doing] something”.

A provisional date for the hearing in late August will be set by Mr Justice Hayden’s clerk. 


This was a sad and uncomfortable case concerning a relatively young man who, in the midst of legal wrangling and the inability to secure accommodation during the COVID pandemic, found himself referred to the care of a psychiatric unit. 

Of upmost concern was that a crucial chance to demonstrate his progress, and be deemed eligible for life-changing surgery, could be undermined by this move – a move which the judge considered to be the result of frustrations borne of the barriers continually placed in PH’s road to full recovery and discharge.  

Mr Justice Hayden demonstrated compassion and the upmost concern throughout the hearing.  

Whilst it is disheartening that action was not taken on this day, given Mr Justice Hayden’s comments, it appears unlikely that the situation will be allowed to continue as is, following the subsequent hearing at the end of August.  

During the hearing, Mr Justice Hayden commented that this was a rare occasion when the distinction between two similar legal provisions – often considered to be purely academic in nature – represented materially different outcomes for P.  

For the past four years I have been a lecturer and coordinator of the Legal Medicine and Clinical Bioethics programme at European University Cyprus Medical School.  In holding this position, I have sought to bridge the gap between medical practice and legal theory so that our fifth year MD medical students are equipped for their future medical practice.   Whilst I was already familiar with the relevant legislative provisions held under the MHA 1983 and the MCA 2005, this was the first time I had considered, in depth, the potential implications which could arise from either provision.  It therefore demonstrated the importance of clarifying which provision was necessary in the given circumstances.

 Following this hearing, I intend to engage my students on this matter in the coming academic year, so that consideration is given as to when it may be appropriate and necessary to hold P in deprivation of liberty and, where this is established to be the case, that careful consideration then be given to whether the provisions of MHA 1983 or MCA 2005 are most suitable.  This, I hope, will allow greater appreciation as to the impact that such “academic” distinctions may have upon the outcome for P – who is, after all, at the centre of it all. 

 I appreciate that facilitating public access to these hearings creates an additional workload on Court staff during an already very difficult time – they must reply to emails seeking access, provide access links, note the names, and email addresses of public observers, send out transparency orders and may even assist on fact checking for blogs such as this.  I am truly grateful for the opportunity to observe, and I consider such access to be an invaluable part of professional development. 

I hope that as restrictions end, remote access will continue to some extent.  At both hearings I have attended, Mr Justice Hayden has commented favourably on how remote access has placed P more centrally at the heart of such proceedings, enabling the judge to interact with P via remote links and ensure their voice is heard.  Remote access also has great academic value, enabling access for those – such as myself – who would not normally be able to visit the High Court in person.  In observing these hearings, legal theory itself transcends from the ‘academic’ into ‘reality’ in a way which inevitably stimulates greater academic curiosity, promotes research, and influences teaching.  In this way, remote access, arguably benefits future legal and medical practitioners by proxy and so, will hopefully, improve outcomes for future protected parties.

Jennifer O’Neill is a Lecturer in Anatomy at the University of Glasgow and visiting collaborator at European University Cyprus.  She tweets @j_o_neill_ 

(1) Audio- and video-recording of COP hearings is strictly forbidden, so the quotations presented in this blog are the result of type-written notes which aim to reflect as far as possible what was said, but are unlikely to be word-perfect. 

Photo by Kyre Song on Unsplash

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