Promoting Open Justice in the Court of Protection

Sentencing in contempt proceedings: Punishment and coercion in a case before Lieven J

By Celia Kitzinger, 14th August 2025

A mother who refused to obey court orders was sentenced to 28 days in prison, and her pre-teenage daughter was to be taken into foster care, in a case I watched in the Family Court on 11^th August 2025.

The judge, Mrs Justice Lieven, ordered the local authority to send social workers immediately to the mother’s home to collect the child – and as soon as the child had been removed, the police would arrest the mother and take her to prison.

The judge made it absolutely clear that she did not want the mother to go to prison. She said she was in an “invidious position” because “I have the Court of Appeal telling me I have to send this lady to prison, effectively. I have a mother who I suspect has engineered a situation where there is nobody to look after the child, and a local authority who has effectively washed their hands of the situation”.

I’ll describe what happened, and why, and reflect on its implications for other committal cases in the Court of Protection.

Background

The parents of the child at the centre of this case are Slovakian. They separated in 2017 and shortly afterwards Anna Benciková and her daughter relocated to England without the father’s knowledge or consent, where they have remained ever since. The father, Pavel Koco, remains in Slovakia^[1].

Following a protracted history of Hague Convention and Children Act 1989 litigation initiated by the father, first to try to get the child returned and then to get rights of access (both unsuccessful), a fact-finding hearing took place (in August 2021) before HHJ Lloyd-Jones – who did not find the mother’s allegations of domestic abuse to have been proved (on the balance of probability). Her application for permission to appeal that judgment was refused.

Following a final welfare hearing, the judge made a “live with” order to the mother and refused her application to terminate the father’s parental responsibility. In advance of any court consideration as to whether direct communication or contact between the child and her father was in her best interests, the judge further ordered the mother to:

(1) provide a written welfare update to the father via his solicitors on a monthly basis;

(2) allow the Guardian to meet with the child to carry out “Storyboard”/Life-story work – a therapeutic child-centered intervention led by a Guardian or social worker to help the child know the identity of her father and understand something of her life story and personal identity.

These are the court orders the mother has not obeyed, and that is why she is in contempt of court and now faces a prison sentence.

The mother is utterly opposed to complying with these orders and says that doing so would cause harm to her daughter. She says the father has told “repeated lies” and that he is “willing to destroy a child’s life for money”. She says he treats his own child as “just another victim in his life long criminal career” (he has served a term of imprisonment in Slovakia for fraud). She says: “I do not want my daughter to become comfortable with compulsive lying, destroying people’s lives and leading a criminal life”.

She has on three occasions (June 2024, August 2024 and March 2025) been found to be in contempt of court (and twice fined) for not obeying these orders. On the most recent (third) occasion, the judge adjourned sentencing to give the mother one final opportunity to comply. She said:

“Only because of [your daughter] am I going to do this. I am going to adjourn sentence for a month. In the meanwhile, I will direct that there will be life story work between the Guardian and [your daughter], and I will request the Guardian – but not direct her – to explain to you what life story work is. If having had it explained to you, you still persist in ignoring court orders, I will consider how I will sentence you. Taking into account the fines don’t work because you don’t pay them in full, and you appear to think it is right to ignore court orders, this is your very last chance.”

When the matter was listed again for sentencing on 6^th May 2025, the mother had failed (again) to comply with the Court’s orders. There had been no “life story work” for the child and she’d not taken the child to see the Guardian.

At the sentencing hearing, the judge, Henke J, decided not to impose any sanction. The judge said she had concluded that imprisonment would be pointless because “sending you to prison is not going to change your mind”. A prison sentence (suspended or immediate) would, the judge said, “have no effect on the mother’s attitude or secure future compliance”, and imprisoning her would cause “emotional, psychological and financial” harm to her daughter.

The father then made an application to appeal against the judge’s decision not to imprison the mother. He argued that the judge failed to engage with the core purpose of contempt proceedings, namely to uphold the authority and effective functioning of the court.

It was heard by the Court of Appeal on 29^th July 2025 and judgment was handed down the next day. You can read the full judgment here: Re B (A child) (Sentencing in contempt proceedings) [2025] EWCA Civ 1048).

The hearing I watched on 11^th August 2025, back in the Family Court, was a consequence of what the Court of Appeal had decided – so the decision of the Court of Appeal is essential background to understanding why Mrs Justice Lieven felt she had no option but to make the decision she did.

Court of Appeal

The Court of Appeal found that the approach taken by Henke J in the Family Court was wrong in principle. One legal commentator^[2]summarises the Court of Appeal’s decision as follows: “A court must mark serious contempts with a proportionate penalty, even where it doubts that compliance will follow – otherwise the authority of court orders collapses. The case crystallises an important doctrinal point: anticipated non-compliance is not a lawful reason to withhold punishment for proven contempt”.

The judges found that Henke J’s conclusion that “sending you to prison would have no effect” (based on what the mother herself had said) was wrong: until a prison sentence is actually imposed, the judge cannot know whether or not it will coerce compliance. Even if it does not result in compliance:

“It cannot be the case that a parent can repeatedly refuse to comply with orders made in the best interests of their child, knowing that a judge may well in those circumstances dismiss the committal proceedings as serving no purpose. To do so would undermine the authority of the court and have significant implications for other cases. Punishment for breach of court orders serves as an essential aspect of upholding judicial authority as well as ensuring compliance”. (§40 (Re B (A child) (Sentencing in contempt proceedings) [2025] EWCA Civ 1048)

The judgment continues: “… the judge was wrong in imposing no sanction on the mother and in those circumstances the matter will be remitted to the High Court for reconsideration of sentence” (§41 (§40 (Re B (A child) (Sentencing in contempt proceedings) [2025] EWCA Civ 1048)

So, the case was sent back for re-sentencing, and that’s what I was watching in the Family court.

The hearing

I don’t usually watch hearings in the Family Court – unlike the Court of Protection, there are rules restricting who can watch these hearings and as I’m not an accredited member of the press, or a lawyer, I have no right to attend them. This hearing was different though. As a committal hearing, it was listed as “for hearing in open court”.

The listing caught my attention as I was scrolling through looking for Court of Protection hearings because I thought I recognised the names of the two people in the list – and a quick google search confirmed I was right. They’d featured in a “Case Commentary” (see footnote 2) which I’d read because, although it related to Family proceedings, I figured the Court of Appeal judgment on committals would be relevant to the Court of Protection too.

The “Case Commentary” had emphasised the Court of Appeal’s view that (in the words of the commentator) “punishment cannot be jettisoned simply because coercion may fail”. It listed as a “Key Takeaway” of the judgment: “Courts must not abdicate the punitive element of contempt jurisdiction merely because the contemnor predicts (or even demonstrates) continued defiance”. There are often cases of “continued defiance” in the Court of Protection, so I wanted to know what would happen when this case was sent back to the High Court.

When I joined the remote platform, I realised that both parents were attending remotely, and there was also an interpreter (I think for the father, but she was asked also to interpret for the mother). The judge was in the physical courtroom (Court 46 at the Royal Courts of Justice), and so were two lawyers, who I eventually figured out (there being no introduction) were counsel for the father, and a lawyer representing the child’s Guardian. The mother was a litigant in person – although she’s entitled to legal aid, she had not been happy with lawyers who had previously represented her and chose to represent herself at this hearing.

I later learnt (when the judge handed down her decision at the end of the hearing) that the case had been before Mrs Justice Lieven a week earlier, on 4^th August 2025, and that the judge had imposed a 28-day suspended prison sentence. It was suspended in order to give the mother “yet another opportunity to comply with the orders and take the child to meet the Guardian. I fixed an appointment last Wednesday for the mother to do that. However, yet again, the mother failed to comply”.[3] So now, with “yet another” last opportunity for compliance having gone by, the case was back in court. As you’ll see, there were a couple more “last opportunities” for compliance offered by the judge at the eleventh hour in the court hearing. The mother did not avail herself of them.

The hearing began at 11.13 (I was told the judge had several hearings all scheduled for 10.30am and had chosen another one to hear first). This was the opening exchange (Note: the mother spoke in English):

Judge: Why are you not here physically in court.

Mother: I do apologise. I am sorry I couldn’t make it. I do apologise. My father is not here to be with [my daughter] and there is nobody I could leave her with.

Judge: Do you have anyone to look after her?

Mother: No.

Judge: Where’s your father gone?

Mother: Slovakia

Judge: Does he know you’re going to prison today?

Mother: (pause) He needed to go back because of the doctor and he is under stress and couldn’t be here. I have informed him about my suspended sentence and the hearing today.

Judge: Have you taken [your child] to the Guardian?

Mother: No.

Judge: You have acted totally irresponsibly. You have left me with no choice but to put you in prison and put your child into care. Whereas if you had acted responsibly, none of this would have happened. This is 100% your fault. You have absolutely deliberately harmed your child. You have left me no choice but to send your child to strangers today by your irresponsible and selfish behaviour. Do you understand.

Mother: (silent)

Judge: Do you understand?

Mother: I have good reasons for that.

Judge: Well other judges have found otherwise and, whatever your reasons, the reality is that your daughter is going to have to go to complete strangers tonight and that is because of your incredibly foolish choices. Let me go to Ms King. What are we going to do?

Ms King represented the child’s Guardian. She said that the LA had previously (in connection with earlier hearings) done a telephone assessment with the mother about what arrangements were in place to care for the child in the event of a prison sentence, and the LA “was satisfied that the maternal grandparents would look after the child”. She added that “The Guardian was always concerned about that because there had been no face-to-face meeting – only telephone”. The local authority was not in court.

Judge: The grandfather has gone back to Slovakia. I’ve no reason to believe the grandmother is here. Where is the Guardian?

King: She’s in another hearing.

Judge: I am now feeling I have been put in an invidious situation. I have the Court of Appeal telling me I have to send this lady to prison, effectively. I have a mother who I suspect has engineered a situation where there is nobody to look after the child and a local authority who has effectively washed their hands of the situation. If I issue a bench warrant, then the police will go round. They will arrest the mother. They will take the child into emergency protection and then deliver her up to the local authority. Am I right?

King: Yes.

Judge: Are you saying I should do that?

King: I have no instructions.

Judge: You represent the child. I need to know what you think I should do.

King: The Guardian recognises that the mother is in contempt of court. If the mother is to go to prison, we say the LA is to go and collect [the child] first – not witness her mother being arrested.

Judge: Absolutely not.

King: The only other option is to make an Emergency Protection Order

[…]

Judge: So, Ms Benciková, can you hear me

Mother: Yes

Judge: So, unlike you, I am thinking of the best interests of your child. I do not want police to go round and arrest you and then put [your child] in the back of a police car. I do not think that would be good for [your child] – she’ll remember that for the rest of her life. I’m going to adjourn until 2.30. I order [the local authority] to attend, and the Guardian, at 2.30. And effectively at 2.30, I’ll order the LA to go round with an Emergency Protection Order. And you’ll be arrested at 3 o’clock. Or 3.30. Do you understand?

Mother: No.

Judge: Ask the interpreter to say it in Slovakian.

(interpreter speaks)

Mother: The judge is going to make this order for 3.30?

Judge: What that means is you have one last chance. The Guardian is in [city] – you can get in the car, or on a bus, and you can go and meet her with [your daughter], or you will go to prison and [your daughter] will go into care with total strangers. Are you going to take her now or are you going to prison this afternoon and let your daughter go into care? It’s your decision.

Mother: I don’t….

Judge: You are acting in as stupid, selfish and self-centered way as any parent who has ever come in front of me. You must now take responsibility for your own actions.

Mother: Can I have five minutes.

Judge: You’ve had YEARS, Ms Benciková. This has been going on for years. I will leave the court and return in five minutes.

When the court resumed, the judge asked “So, what are you going to do?” and the mother replied that she wanted to talk to a solicitor. The judge said it was “too late, far too late for that”. It was coming up to midday and the judge said she would adjourn until 2.30pm. On returning to court, she wanted the local authority there “and they have to be ready to take the child into care immediately – they should have been engaged already but we didn’t know the grandfather had gone abroad”. To the mother she said: “Get ready to go to prison this afternoon. The police will come round and arrest you. And be in no doubt, if you leave the house with [your daughter] we will arrest you somewhere else. For the first time for a long time, will you think of the harm you are causing [your daughter] and try to minimise the harm to her and make it as little painful as possible.”

She double-checked with counsel for the father that he was still seeking committal (yes), and left the courtroom.

When the hearing resumed, shortly before 3pm, a representative of the local authority had joined the link, and so too had the Guardian. The LA reported that an emergency placement had been found for the child until 18^th August – and they would find somewhere for her after that date as required. The Guardian was asked for her view as to what the court should do and confirmed that “it’ll be in [the child’s] best interests to be removed from her mother’s care prior to her mother being taken in to custody”. The judge moved on to the question of how soon the Guardian could visit the mother: 15^th August, she said (i.e. five days later) – but she hadn’t (it seemed) taken into account that the mother would likely be in prison by then. The judge was focussed on “how in practice is she going to purge her contempt and get herself released? I’m into practicalities here?”. This took some explaining – I don’t think “purging contempt” is language accessible to most people – and it was agreed that a video-link with the prison would be feasible if the mother wished to provide the updates about her daughter ordered by the court.

Finally, the judge asked if there was anything the mother wanted to say. (The mother spoke in English throughout – using the interpreter to understand what others, especially the judge, was saying.)

Mother: How long will you put [my daughter] away from me?

Judge : Well as long as you are in prison. […] And effectively, Ms Benciková, you have chosen to go to prison, because I have given you every opportunity to comply with the order. Effectively you have chosen to go to prison and chosen to put your child into state care. Even this morning, I gave you another opportunity, but you haven’t taken it. So you will be in prison for 28 days and [your child] will be in foster care for 28 days.

Mother: Please don’t do this to my child. She, she, she’s innocent. Please don’t do this to my child.

Judge: Well Ms Benciková, I’m not doing it. You’re doing it. Even this morning-

Mother: Don’t do this to my child. She is absolutely innocent about anything. She doesn’t know anything about anything. Please, don’t do it. She is innocent, she is a happy healthy child.

Judge: Well Ms Benciková, you have not helped her AT ALL. This is entirely 100% YOUR fault. I am forced into a position I do not want to be in and I’m extremely unhappy about it. But you have given me no choice. Because even this morning I gave you a choice to go and see the Guardian and you refused to do it. So is there anything else you want to say and then I will make the order.

Mother: I do not understand when she will be- She will be taken away from me today or when is it going to be?

Judge: Yes. It will be in about 55 minutes.

Mother: In 45 mins you’re going to take her away from me (distressed, hyperventilating)

Judge: Yes.

Mother: Please, please, please don’t do this to her (hyperventilating). Please, she-

Judge: Well, Ms Benciková, will you take her to see the Guardian tomorrow morning? (yet another, final, “last opportunity”)

Mother: (hyperventilating) Please give me more time.

Judge: No. No more time. Will you take her to see the Guardian tomorrow morning

Mother: Please, please!

Judge: No, I’m sorry. You can’t keep begging me but not agreeing. That’s the point of the court.

Mother: Sorry I couldn’t hear this – can you translate somebody to me.

Judge: Translator, can you ask her again whether she will take the child to see the Guardian tomorrow morning.

Mother: It’s going to be harmful for her. It’s going to be very harmful to her. In a psychological-

Judge: I’m really sorry, Ms Benciková. I’ve heard all that before. I am now going to make a ruling. [Your daughter] will be taken into care and you will go to prison.

And with that, the judge delivered her judgment.

It was brief. The judge was “intensely conscious that the mother is in the hearing, extremely distressed, and that the upshot of this situation is that I’m about the send the mother to prison this afternoon, with the result that [the child] will be placed in foster care, away from the mother this afternoon”. So, she referred to the background to the case as set out in the Court of Appeal judgment and said “I will not repeat it”. She briefly outlined the case and said:

“I am in the situation where the mother has consistently and persistently refused to comply with court orders. That is a matter that has to be closely considered by the court. I am also of the view that the only way the Guardian will get to meet the child is by sending the mother to prison and placing the child with foster parents who will take her to meet the Guardian. In those circumstances, I consider I have no choice but to lift the suspension and send the mother to prison for 28 days. […] I am inclined to agree with Mrs Justice Henke that it is unlikely that sending the mother to prison will take us any further forward in the long term to end with better re-establishing the relations between [the child] and the father. However, given the mother’s total refusal to comply with court orders, I would ask the mother to consider firstly, the harm that SHE has caused the child by refusing to comply with orders. Second that the child will meet the Guardian, as I told the mother would take place last week. I’m concerned that the mother should not be taken to prison in front of the child, so I am asking [the local authority] to ask the social workers to go round and collect the child now and then the police to go and arrest the mother once the child has been removed. I should say at the end that the mother is not represented today, but at our last hearing I explained to her, yet again, that she was entitled to legal representation but she said she had previously had lawyers who had not represented her properly, and she said she did not want the opportunity to get lawyers. I have also gone to great lengths to explain the process to the mother and to try to persuade her to comply with the orders, so that the case would not reach this unhappy conclusion. The mother has absolutely refused to listen to the advice the court has given. That’s the end of the judgment.”

During the judgment, the mother was weeping, shaking at times, had her head in her hands and looked extremely distressed. It was upsetting to watch what was happening.

Reflections

Court orders are binding. Wilful breach will be punished, whether or not this is likely in the long run to compel compliance – because otherwise the authority of the court is undermined. That is necessary for the proper operation of justice, says the Court of Appeal. This is how it looks in practice.

The implications of this Court of Appeal judgment are exactly the same for the Court of Protection as for the Family Court: if people repeatedly breach orders they will eventually be sent to prison even if that isn’t going to make them comply.

It’s interesting though, to note the difference between this Court of Appeal judgment and another case heard nine years ago, concerning Teresa Kirk – who was in contempt of court for breaching court orders by taking her brother, who had dementia, to a care home in Portugal (where he was born) and refusing to return him to England, despite the Court of Protection having determined that this was in his best interests^[4]. The Court of Appeal judgment is here: Devon County Council v Teresa Kirk [2016] EWCA Civ 1221.

In the Teresa Kirk case, the Court of Appeal (specifically LJ McFarlane) wrote as follows:

“I am bound to record that I find the circumstances of this case to be of significant concern. The Court of Protection has sentenced a 71-year-old lady to prison in circumstances where the lady concerned is said to be of previous good character and where, as the judge acknowledged, she has been acting on the basis of deeply held, sincere beliefs as to the best interests of [her brother] MM for whose welfare she is, as the judge found, genuinely concerned. The ultimate purpose of her incarceration is to achieve the removal of an 81-year-old gentleman, who has suffered from dementia for a number of years, from a care home in one country to a care home in Devon which is near his longstanding home and within a community where he is well known. Those stark facts, to my mind, plainly raise the question of whether the COP was justified, on the basis that it was in MM’s best interests to do so, in making an order which placed Mrs Kirk in jeopardy of a prison sentence unless she complied with it. (§27, my emphasis, Devon County Council v Teresa Kirk [2016] EWCA Civ 1221)

Where, as was apparently taken to be the case before Baker J, it is said that the move could only be secured by placing Mrs Kirk under threat of the sanction of imprisonment, it is arguable that the very question of whether Mrs Kirk should be put in that position and face the prospect of a prison sentence for non-compliance should have been addressed by the COP in the context of [her brother’s] MM’s welfare. In short terms, that question might be ‘is the move to Devon still in MM’s best interests if it may only be achieved by sending to prison someone whose interests he could be expected to have at heart, had he the capacity?‘ (§33, my emphasis, Devon County Council v Teresa Kirk [2016] EWCA Civ 1221)

By analogy, the stark facts of the case I watched before Mrs Justice Lieven raise the question of whether the Family Court was justified, on the basis that it was in the child’s best interests to do so, in making an order which placed her mother in jeopardy of a prison sentence unless she complied with it. The question that, perhaps, should have been addressed was: “are the welfare reports to the father and the “story board” work still in the child’s best interests if they can only be achieved by sending her mother to prison” – when it’s clear (as the judge said) that this would cause the daughter “emotional, psychological and financial” harm. Those issues may perhaps have been addressed – I don’t know, since none of the earlier judgments seems to have been published.

I’ve seen the same dilemma emerge in many committal cases I’ve watched in the Court of Protection. Attempts to prevent family members from acting in ways the court considers contrary to P’s best interests lead to orders with penal notices. But family members have their own opinions about what is in the best interests of the protected party, and they act in accordance with their own views rather than comply with (what they see as) the misguided version of P’s best interests promoted by the court. When court orders are breached, family members are at risk of prison sentences – but having their family members put in prison is rarely in the protected party’s best interests, so these orders can sabotage the wellbeing of the very people they are designed to protect.

The new Court of Appeal judgment which led to the Family Court hearing I’ve described here clearly increases the pressure on judges to punish contemnors (“I have the Court of Appeal telling me I have to send this lady to prison, effectively”). It upholds judicial authority and the rule of law – but can in doing so cause harm to children and protected parties, thereby amplifying the dilemma at the heart of these cases.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 600 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)

Footnotes

[1] This was a public committal hearing and the names of both parents are already in the public domain as applicant (the father) and defendant (the mother). There is a reporting restrictions order protecting the name of the child and some other details.

[2] “No-order is not an option”: The Court of Appeal re-states the duty to sanction contempt in Family proceedings – Commentary on B (A Child) (Sentencing in Contempt Proceedings) [2025] EWCA Civ 1048

[3] All extracts purporting to be direct quotations from the hearing are based on contemporaneous touch-typed notes. They are unlikely to be completely accurate, but they are as accurate as I could make them (and it was somewhat less challenging than usual to take notes at the time in this hearing compared with some others because speech was slowed to accommodate the interpreter).

[4] The Teresa Kirk case was widely reported in the media and was mobilised as a cause celebre in some of the early calls for transparency, having come (said the Daily Mail) “to represent all that is wrong with Britain’s shadowy Court of Protection”. There’s a characteristically incisive analysis of the case by barrister Barbara Rich in a blogpost for the Transparency Project, here (“Teresa Kirk and the Court of Protection – the end of an ‘astonishing story’”).

The problem with Motability Hire Agreements: A Deputy’s concerns in the COP

By Amanda Hill, 11th August 2025

Update 30th September 2025: The OPG have now issued a press statement summarising what deputies should do and an address to contact Motability. You can read about it here:

Motability, contracts and deputies

Update 2nd September 2025: I’ve now received a copy of the approved order for this hearing so I’ve added a section at the end of the blog with the relevant information

Working like clockwork. This implies each small part moves in precise harmony to keep the larger system functioning. Wouldn’t it be wonderful if the state was like that? I’ve recently observed a hearing that reflected the exact opposite.

Deputies, both lay (mostly family and friends) and professional, play a crucial role managing property and affairs for vulnerable people. They experience a lot of difficulties at the coalface, and leading up to the hearing I observed, many different components combined to create a problem that nobody seems to be able to solve and nobody is taking responsibility for.

At the centre of this hearing was Deborah Pardoe, CEO of AST, Allied Services Trust, which is a deputy as a Trust Corporation. She’s doing her best to highlight significant problems but coming up against “the system” – or rather different parts of the system: human, legal, digital, governmental. She’s ended up frustrated and disappointed that she couldn’t achieve the outcome she wanted, in spite of the achievements that did result.

At its heart, the issue at stake in this hearing was a risk that Deputies for Property and Affairs face (as do professional and lay attorneys) . But more fundamentally than that it highlights that a Deputy for Property and Affairs really has nowhere to turn to for support and advice, nobody who will take up an issue on their behalf. They are appointed by the Court of Protection and supervised by the Public Guardian, but neither the court, nor the Public Guardian provide deputies with support: that’s not their function. And deputies don’t have power over other parts of the system that impacts how deputies function. That’s the backdrop to this hearing.

Deborah was the applicant in this case, for and on behalf of AST, and she was a Litigant in Person. She wanted to highlight a risk faced by deputies and was trying to find a way of eliminating that risk. She had identified a flaw in in the system, and wanted it changed. The power of the Court of Protection is circumscribed – it couldn’t do what she wanted, but the case shows the court can nevertheless be used to facilitate solutions to seemingly intractable problems.

The flaw in the system she was concerned about concerns Motability Hire Agreements. These agreements clearly expose deputies, both lay and professional, to personal and professional risk. She applied to the court over two years ago now to try to seek a remedy for the flaw, not just on her behalf but on behalf of the thousands of other lay and professional deputies she believes are impacted by this issue. She has been persistent in her application and it’s now being considered before the President of the Court of Protection, on 18^th July 2025.

In this blog I’ll first outline the specific problem with Motability Hire Agreements that led to this application^[1] and then set out what happened at the hearing. I’ll end with the Deputy’s reflections on her experience

1. Motability hire agreements

The background to this hearing is quite technical but has important legal implications. Many of you may have heard of the Motability Scheme. This allows the higher mobility element of certain benefits such as Disability Living Allowance (DLA) and Personal Independence Payment (PIP) to be exchanged to lease a vehicle. Anyone eligible for a Motability vehicle must enter into a legal agreement with the Motability Scheme. If, however, someone lacks capacity to manage their property and affairs, then someone else with the necessary authority such as a deputy, an attorney or an appointee must sign the agreement on their behalf.

Deputies for Property and Affairs are appointed by the Court of Protection, to manage the property and affairs of the protected party ‘P’. Section 19 (6) of the Mental Capacity Act states that a deputy for property and affairs is P’s agent: “A deputy is to be treated as P’s agent in relation to anything done or decided by him within the scope of his appointment and in accordance with this Part”. Therefore, when a deputy (acting within the scope of his authority) contracts with a third party on behalf of P, they do so as agent for P and not as principal under the contract. However, the contracts issued by Motability treat the deputy as “hirer” and impose obligations upon them as if they were the principal under the contract and not the agent of P. Insurance issued in respect of a Motability Vehicle is issued on the basis that the deputy, and not P, is the insured party.

This leads to a risky legal position for the deputy. It is common for Motability vehicles to be driven by someone other than the hirer, such as carers or family members of the person who lacks capacity. There are concerns that if a deputy is named as principal on the lease agreements, the deputy becomes liable for the actions of the drivers and users of the vehicles. For example, any claims on insurance would be made against the deputy and any offences committed by the driver, such as speeding, would in the first instance be charged to the deputy. AST have highlighted further concerns that any claims could affect the deputy in obtaining their own personal insurance or professional indemnity insurance.

The underlying problem is compounded by outdated government IT systems and the way Motability systems talk to them. The current IT system operated by the Department for Work and Pensions (DWP) cannot record a status of “deputy for property and affairs appointed by the Court of Protection”[2]. The DWP computer system is unable to distinguish between a deputy, attorney or appointee. Motability can only act on information recorded by the DWP. Because of this, Motability systems cannot recognise that a deputy for property and affairs acts for P as agent and not principal, and do not distinguish between the legal status of agent and principal.

The consequences of this situation are that a P may not get a vehicle to which they are entitled (if a deputy refuses to sign the agreement due to the risk involved) or the deputy signs the agreement and is faced with the risks outlined above.

AST acts as corporate deputy for property and affairs, appointed by the Court of Protection, for their client, the protected party ‘SS’. When AST became aware of their risky legal situation, they informally contacted the Ministry of Justice (MOJ), the DWP, Motability and Motability’s insurers to achieve a solution. Although Motability put in place a manual workaround, according to Deborah Pardoe, this wasn’t fit for purpose.

Therefore, on 28 April 2023, AST applied to the Court of Protection in relation to SS to try to obtain an order for Motability and its insurers to recognise the status of a deputy and to record the deputy as an agent rather than the principal.

The wheels of justice moved slowly and it wasn’t until 20 December 2024 that the court gave directions that Motability, the insurers, the DWP and the MOJ should seek to resolve the issues and report back to the court. No resolution was forthcoming, however, and on 23 April 2025, the court directed the Public Guardian to provide a report to aid discussions. The Office of the Public Guardian is an executive agency of the Ministry of Justice and its role is to support and supervise deputies, investigate concerns, and safeguard people who lack capacity.

AST applied to the court to progress matters. §5 of the PS from the DWP states: By a COP9 dated 19 June 2025 AST invites the court to join the various organisations involved as parties to these proceedings. AST seeks orders (a) directing Motability and Royal Sun Alliance (or any other insurer) “to acknowledge the Court Order appointing Allied Services Trust as Property and Affairs Deputy for SS” and (b) to direct Motability to “issue a Motability contract and insurance policy in the name of the client SS and not AST”; (c) to direct the DWP to record AST as a Court Appointed Deputy and not an appointee. (For clarification, Motability cars are now insured by Direct Line, who took over from Royal Sun Alliance in 2023).

According to §14 of the PG’s PS, Senior Judge Hilder listed the application for a hearing before the President of the Court of Protection. The court’s order of 23 June 2025 states:

“the court considers that

a) the ability of DWP to give proper recognition to deputyship status and

b) the engagement to date/willingness of the Office of the Public Guardian to engage with systemic problems in the operations of deputyship are matters of such significance that they ought to be considered further by the Court.” (my emphasis)

The positions of the DWP, Motability and the Public Guardian

Reading the position statements (PS) of the organisations involved provided me with valuable insight into issues about jurisdiction.

A major factor affecting this hearing was the relationship between the organisations and the power of the Court of Protection over those organisations. The DWP is responsible for transferring mobility allowances to Motability Operations Limited (MOL). MOL is an independent company but its systems rely on information provided by the DWP. The Ministry of Justice funds and oversees the Office of the Public Guardian, and is responsible for the operation of the MCA 2005, but has no role in the administration of the Motability scheme. The DWP is completely separate to the OPG. The Court of Protection (CoP) is responsible for making decisions in the best interests of P if they are found to lack capacity. The CoP, although it appoints a deputy for property and affairs to act in P’s best interests, has no responsibility towards the deputy. MOL and the DWP do not believe that the court has jurisdiction to order them to do anything.

The nub of the issue was that the court could not order the DWP, or Motability, to act. And the OPG had limited responsibility for the problem too. The court was effectively being used to facilitate a resolution to the problem. And the applicant was faced with a problem to which there was no easy solution, and nobody was accepting responsibility for solving it. §13 of the Public Guardian position statement states “the issue appeared to relate to the internal processes of the various bodies concerned”. Processes need to be improved – but what can be done?

The DWP is refusing to change its IT system. §7 (b) and (c) of the DWP PS states that “the amendment to the computing systems that AST anticipates would be a substantial piece of work that the DWP is not in a position to effect at this time; and a proportionate, pragmatic approach as proposed by Mobility Operations Limited should be put in place”.

Motability have acknowledged that there is an issue with its current IT systems but also assessed that it would be too difficult to change their IT systems. However, they can use a “manual work around”. This can be done as long as the DWP can confirm that P is in receipt of the relevant qualifying benefit. Therefore, it still involves the DWP and MOL communicating.

The manual workaround that was trialled in early 2023, between AST and MOL, with the contract being manually altered to show P as the principal did not work, as information was not disseminated to the Insurance Provider, the DVLA and other third parties. When the details were altered on the IT system, it meant that all correspondence would be sent to P, and not the deputy. So, the IT system changed the principal back to AST.

The new workaround agreed at this hearing is to show “P as the principal, by his/her Deputy” detailing the deputy who is named, and the AST address used for correspondence. The contract also records P’s address as the registered owner. This information can be retained on the Motability IT system and can be sent to the insurance provider, DVLA etc (which was not happening previously).

I also note from the position statements that the Public Guardian did not wish to be joined as a party to proceedings. The DWP submitted in its position statement that it was not desirable for it to be joined as a party. I couldn’t find any reference in the PS for MOL as to its position on being joined as a party. I understand that the Ministry of Justice and the Insurance Company for Motability (Direct Line) were invited to attend the hearing but didn’t.

2. The hearing

The hearing for COP 13704625, Friday 18^th July 2025, was listed on the Court and Tribunal Hearings (CaTH) as follows:

“SS” is the P who ATS acts as deputy for. In common with most Royal Courts of Justice listings, the substantive content of the hearing was not indicated. I had no idea what the hearing would be about but as I haven’t observed a hearing before the President and I happened to be in London for another hearing that day, when I saw the listing the evening before, I decided to observe in person.

I arrived at the Royal Courts of Justice in good time for the hearing and made my way up the grand staircase in the West building to the 1^st floor, where I knew Court 33 was located. I could see a number of people around a table just in front of the courtroom. I gathered that they were in some sort of discussion before the hearing. They were discussing a draft order but apart from that I wasn’t actively listening and couldn’t hear what they were saying anyway. When the courtroom door opened at 10.20, they all made their way in and I followed them. I approached the clerk at her desk and said that I wanted to observe the hearing, asked for a copy of the transparency order (TO) so that I understood the reporting restrictions and mentioned that I would like a copy of the parties’ position statements. In a short time, I had received a hard copy of the position statement from the PG and MOL. Counsel for the DWP asked me for my email address and sent it to me immediately. This is in line with guidance in Poole J: AB, Re (Disclosure of Position Statements) [2025] EWCOP 25 (T3). I also received a hard copy of the TO from Counsel for the PG. I really appreciated being given the position statements so quickly once I had entered the courtroom but I didn’t have time to read them before the hearing started, so I didn’t understand what it was about.

The hearing began when Sir Andrew McFarlane, President of the Court of Protection, entered the courtroom just after 10.30am and without any preamble, addresses “Miss Pardoe” and asks her to speak as “it’s your application”.

Deborah Pardoe, appearing as a Litigant in Person, started to say something about the application. After a short while, David Rees KC representing the Public Guardian stepped in and offered to do the introductions. The other representatives were: Nicola Kohn 39 Essex Chambers representing the DWP and Eliza Eagling 5 Stone Buildings representing MOL.

The judge didn’t acknowledge me at all during the hearing and he didn’t do anything to make me feel particularly welcome. There was also no summary for my benefit as advised by the former Vice-President, Mr Justice Hayden (“The Court of Protection and transparency”). These points are listed in our blog Fifteen Top Transparency Tips for Judges. I hope it’s not going to be the case that now that judges are aware that observers are likely to be provided with position statements (PSs) they will be less willing to allow time for a summary. We still need an opening summary since PSs are often sent so close to (or after) the time of the hearing that we don’t have time to read them by the time the hearing starts, as was the case with this hearing.

I must admit, sitting at the back I found it quite hard to hear in places, and difficult to follow. There were no microphones. I remember thinking that I was glad I would have the PSs to read afterwards. I’ll do my best to give a flavour of what I heard and understood. The hearing proceeded as follows:

The judge states that he has been given a draft order and asks if it has been agreed. Ms Pardoe says not all of draft order has been agreed. The judge comments that the CoP understands the jurisdiction issue, repeats that a draft order has been agreed and is about a deputy not being named principal in the hire agreement. The judge then asks Ms Pardoe what jurisdiction the Court of Protection has to order the DWP to do something. Ms Pardoe replies “I don’t know, that’s why I’m asking the court”. The judge states that no court has jurisdiction and asks her “did you take legal advice?”. Ms Pardoe replies something about the DWP that I couldn’t catch.[3] Counsel for the PG then speaks and says that they have had a meeting outside the court. The CoP has limited powers when it comes to public bodies (he must include MOL as a public body even though technically I don’t think it is, as it’s a limited company), as it makes decisions on behalf of P. It is proposed by the organisations that Motability (MOL) change the hire agreement so that the P will be the principal and they will update all bodies including DVLA. (I think this refers to the revised manual workaround).

There was some technical discussion that I couldn’t follow at this point.

The judge then states that the order isn’t agreed. It is agreed by the public bodies but not the applicant. The collective case is that the court has sympathy for her position but that there is no remedy the CoP can order. Counsel for the PG states that there has been constructive discussion, and that the matter has been before the CoP for some time.

“Two years” the judge states baldly. He then asks how the order can be publicised to deputies. Counsel for the PG replies that court orders are not usually published on their website. The judge states again that it would be useful for “some sort of public recital” to go out so that there is wider publicity for deputies and MOL: “If some good is going to come out of this, it needs to be publicised so people in future won’t (be uninformed? )…I am grateful to the PG for co-operating with this process”.

He then speaks to Counsel for MOL, asking her about manual entry to the system. She states that it may take some time for the process to be automatic, for MOL IT to be able to speak to DWP systems and that may stop a disabled person from receiving a vehicle ….so there would have to be the manual workaround. Other deputies should know who to contact (at MOL). The judge states that it is good to know that efforts can be made to alter Motability systems and he is grateful to Motability.

He then turns to Counsel for the DWP but as she doesn’t have a microphone and I am sitting right behind her, I can’t hear what she says in reply.

The judge then says: “Miss Pardoe, what further do you wish me to do?”

Ms Pardoe states that steps have been agreed and are a significant improvement. She then asks “As a deputy who do we go to for support with this sort of matter? The OPG are helpful but there are areas as a deputy that ….(I can’t hear).”

There was then the following exchange about who a deputy could turn to.

Judge: …and you feel you are being fobbed off without an easy avenue to resolve….

Ms Pardoe: This isn’t about P, it’s about being a deputy and discharging their role.

Judge: “But that’s not a role for the CoP, and what have you achieved now compared to two years ago?

I felt there was an implicit criticism that by following through with the application, she had wasted the court’s time. But it was Senior Judge Hilder who had referred the matter to the higher court, so presumably Senior Judge Hilder must have felt that something more could be done.

Ms Pardoe replied that the previous workaround “didn’t work” so the proposal made, if it worked, would be an improvement. The judge asks her if she is content for the court order to say the applicant is content, as well as the public bodies. I think she agrees. She asks about the delay in the roll out of the manual work around. Counsel for MOL replies that Motability is contacting its IT teams but can’t promise anything with regards to timelines. She mentions a special team is in place. The judge agrees to add a sub-paragraph to the order that mentions the “best endeavours” of Motability to deal with the issue quickly for individual applications.

The judge concluded by saying that the “court having no power to do anything has achieved something by bringing everyone together”.

The judge then rose just before 11am. The hearing was over after just under 30 minutes.

Counsel stayed in the courtroom and were talking about how to publicise the workaround more widely. I then realised that they were looking at me and mentioning whether a blog could be published. I said that I didn’t think that would be a problem.

One difficulty I have encountered in writing this blog is that I haven’t received a copy of the approved order, because it hasn’t been sealed yet. The draft had to be amended and holidays are slowing things down.

I understand though that the approved order places the onus on an attorney or deputy to contact Motability to request the workaround. Motability will use its “best endeavours” to apply the Manual Amendment to the hire agreement. (section v of the order).

3. Reflections from the applicant

I contacted Deborah Pardoe after the hearing, in order to make sure that I had understood everything correctly.

She has been advised that the Public Guardian is working with external communications and stakeholder engagement teams for the order to be advertised as soon as possible so that deputies know about the workaround. She said that this situation has raised the question of who a deputy or attorney can go to for quick effective and efficient help and support.

She also told me “I wanted to ensure that those working for and on behalf of the vulnerable of society are protected, by a correct working practice, and the correct recording of a deputyship appointment, and importantly for the Law from which those attorneys and deputies hold appointment to be respected by third parties”.

I asked her what she thought had been achieved from the process. She is clearly frustrated and disappointed that the onus is still on the deputy or attorney to contact Motability. She said that many deputies aren’t aware of the risk. What, for example, would happen if somebody was killed by a Motability car driver and the agreement was with the Deputy?

When I asked her what she thought she’d achieved, she summarised it like this:

“What has been achieved?

A temporary revised manual workaround.

Although the opportunity to have a defined timeline on how, where and when that workaround will be put in place was lost.

Recognition by Government Departments and Motability that there is an issue with the current DWP and Motability IT systems that do need to be addressed.

Motability now acknowledging the Deputyship Order rather than relying on incorrect information supplied by DWP.

However, Motability have no requirement to evidence that processes discussed at the hearing will actually be implemented, “best endeavours” is a woolly term and non-committal.

Awareness that there appears to be no effective and efficient system to provide support to deputies or attorneys, hence the reason the case was taken to the President.

Whilst the above achievements are progress, there remains the disappointment that the Court did not use the opportunity of the hearing to go further to protect the position of the deputy.

This case was not about the Court requesting third parties to make changes for P, (case law relating to this stance was heavily relied upon during the hearing) it was about the Court requesting that the DWP and Motability acknowledge and respect the Deputyship Order appointing a Deputy. This case was about the Court itself being respected, and for those working on its behalf to be protected.

Simply, the Court of Protection make decisions to protect the vulnerable of society, the Public Guardian is required to oversee those decisions. How then, can the Court of Protection and the Public Guardian have no ability to protect those working for and on behalf of the Orders that the Court have made?

The hearing was brought before the President because of the lack of proactive engagement and resolution from those attending the hearing (and the Ministry of Justice and Direct Line who elected not to attend) and lack of support to the deputy from the Public Guardian in the two years leading up to the 18 July 2025. HHJ Hilder gave all parties opportunity to engage.

Whilst the Public Guardian is in the process of arranging for the order to be published/advertised, following the hearing, the where, when or how the Final Order is to be published/advertised to support all those involved with Motability Vehicles is yet to be mentioned. Motability were not requested to evidence any advances they make to their internal systems to the Public Guardian. Further the onus will currently remain upon the deputy, attorney or appointee to request the manual workaround…… but how can anyone ask for something if they do not know there is something to be asked for!

As a result, the many thousands of deputies, attorneys and indeed appointees currently remain working at risk.

A little tongue in cheek…… This case can be summed up as follows:

Everybody, Somebody, Anybody, and Nobody

A team had four members called Everybody, Somebody, Anybody, and Nobody. There was an important job to be done. Everybody was sure that Somebody would do it. Anybody could have done it, but Nobody did it. Somebody got angry about that because it was Everybody’s job. Everybody thought Anybody could do it.

Nobody realised that it’s Everybody’s job. Everybody wouldn’t do it. It ended up that Everybody blamed Somebody when Nobody did what Anybody could have done.”[4]

Sections from the approved order dated 18th July 2025 (added to blog 2nd September 2025):

AND UPON the Applicant, Public Guardian, Motability and the Secretary of State for Work and Pensions agreeing and the Court recording that:

The Applicant is a Trust Corporation for the purposes of s.64(1) Mental Capacity Act 2005 and s.68(1) Trustee Act 1925.
A person appointed as a deputy for property and affairs for P pursuant to section 16(2) of the Mental Capacity Act 2005 is, in accordance with s.19(6) MCA 2005, to be treated as P’s agent in relation to anything done or decided by the deputy within the scope of its appointment and in accordance with the MCA 2005.
Accordingly, the Applicant, in acting as deputy for property and affairs for SS is to be treated as SS’s agent.
Motability agrees to manually amend (“the Manual Amendment”) the hire agreement in the cases of SS and those other individuals in respect of whom the applicant acts as deputy for property and affairs and to recognise and name SS (or as the case may be the individual for whom the applicant is acting as deputy) as hirer thereunder (the manual amendment on Motability’s IT systems automatically generates an update to relevant third party service providers including the insurance provider and DVLA).
Motability will use its best endeavours to apply the Manual Amendment to the hire agreements in respect of other individuals who are acting by their deputy or attorney under an enduring or lasting power of attorney upon request from the said deputy or attorney, as the case may be.
Motability agrees to take steps to ensure that the status of a property and affairs deputy as agent for “P” (and the status of an attorney under a Lasting Power of Attorney as agent for the donor of the power) is understood and recognised by its organisation.
The represented public bodies agree that the resolution of the IT difficulties as between Motability and the Secretary of State for Work and Pensions is a policy decision that falls outwith the powers of the Court of Protection.

AND UPON the Secretary of State acknowledging that her use of the terms “appointee” or “corporate appointee” as a badge on its IT system, Searchlight, may cover appointees, attorneys under enduring and Lasting Powers of Attorney (under Schedule 4 and s.9 Mental Capacity Act 2005) and deputies (under s.16 Mental Capacity Act 2005).

Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is a core team member of OJCOP. She is also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She is on LinkedIn (here), and also on X as (@AmandaAPHill) and on Bluesky (@AmandaAPHill.bsky.social)

Footnotes

[1] _{I am very grateful for the receipt of position statements from the represented organisations who attended the hearing: The Department for Work and Pensions, the Public Guardian and Motability Operations Limited. I also received some information after the hearing from AST, who did not write a formal position statement. They submitted a summary and request for decisions to the Court. These have all helped me to understand this hearing better and enabled me to increase the accuracy of my reporting. I have heavily relied upon these documents, especially for the background to the hearing.}

[2] _{Only AST have tested this in court in relation to their client SS in COP13704625. But the issue is believed to be much wider.}

[3] _{Deborah Pardoe told me afterwards that she had spoken to a lawyer informally but was worried about legal costs to the charity of obtaining formal representation. They offer their services on a not-for-profit basis.}

[4] _{Anonymous poem, widely attributed to Charles Osgood: Osgood, C. (n.d.). The responsibility poem. In Apple Seeds: Inspirational quotes and short stories (J. Bartley, Ed.).}

A patient with “unusual” spiritual beliefs: Is withdrawing a feeding tube in his best interests?

By Jenny Kitzinger, 8^th August 2025

12th August 2025: The judgment has just been published (click on the case name): The Hillingdon Hospitals NHS Foundation Trust v YD & Others (Refusal of Withdrawal of Treatment) [2025] EWCOP 31 (T3). Jenny has written a commentary on the judgment (also covering media reception of it) here: “Commentary on Re YD (Refusal of Withdrawal of Treatment) [2025] EWCOP 31 (T3)”

As someone with both an academic research interest in coma and prolonged disorders of consciousness [PDoC] and with family experience in this area, I’ve watched and published about many Court of Protection hearings dealing with continuation or discontinuation of life-sustaining treatment for such patients.^[1]But this is the first case I’ve seen which has included consideration of messages conveyed via a spiritual medium about the wishes and feelings of a PDoC patient.

It was very interesting to observe how the court handled this aspect of the case in attempting to grapple with what the patient might want now as part of the ”best interests” process.

The 60-year-old man at the centre of this case (“YD” are the court-assigned initials for him) suffered a stroke in early October 2024 and, following hospital treatment, he’s currently in a specialist rehabilitation unit. Both the treating clinician and the independent expert diagnose him as being in a vegetative state, i.e. unaware of himself and his environment. They think there is very little prospect of any neurological change. In their view, clinically assisted nutrition and hydration (CANH) is no longer in his best interests.

His friends and family disagree: they believe he is conscious and may still improve, and they are confident that he would want CANH to continue so that he can try to “heal himself”. As one of YD’s partners said” “YD always says he is going to live a very long life and that he values life. YD does not believe in giving up and would see this through to the end. He wouldn’t want his life taken before he was ready. He hasn’t chosen to give up on life yet”.

The hearing (COP 20017687) was before the Vice President of the Court of Protection, Mrs Justice Theis, sitting at the Royal Courts of Justice on Monday 4^th August 2025. I was watching it remotely, but all the parties were in the physical courtroom: only one witness (a treating doctor) provided evidence online.

The case was brought by the Trust (represented by Eloise Power) as an application to the court to determine that continuing clinically assisted nutrition and hydration (CANH) was not in YD’s best interests, and to approve a terminal care plan.

The Official Solicitor, acting as the litigation friend for YD (Katie Gollop) reserved her position until after hearing the evidence.

The second and third respondents were the patient’s two partners JG and MB. These two women had been YD’s partners for 20 and 24 years respectively, but without previously knowing of each others’ existence. They had met each other only after YD’s catastrophic brain injury. They are now supporting each other, and often visit him together. They have very similar views of what YD was like as a person and what medical treatment he would want. They were jointly represented (pro bono, i.e. for free) by Andrew Hockton, and they oppose the application.[^2]

The witnesses in court (in the order they gave evidence) were:

Treating clinician: Dr N (a rehabilitation consultant)
Independent expert: Dr Andrew Hanrahan, the Lead Consultant for the Brain Injury Service at the Royal Hospital for Neuro-disability, Putney, specialising in neurological rehabilitation and neuro-palliative management of complex neurological disabilities and disorders of consciousness.
The patient’s two partners: JG and MB
A close friend of the patient: Mr T

This blog has three sections. First, I address YD’s diagnosis and prognosis and the evidence from the medical experts. Second, I explore YD’s values, beliefs, wishes and feelings, as represented in evidence from his family and friends. Third and finally, I discuss the parties’ closing statements. This included a rather surprising twist in that operational issues in relation to patient care were highlighted – in particular regarding when patients might move from specialist neuro-rehabilitation centres to nursing/care homes – especially when disputes about best interests might be involved – and the interplay between NHS Trusts (which provide services) and Integrated Care Board [ICBs] (which commission those services). No judgment has yet been handed down: a link will be added from this blog post to the judgment when it’s available.

1. YD’s diagnosis and prognosis: Evidence from the medical experts

The doctor in charge of treating YD, Dr N, was called into the witness box first and the independent expert, Dr Hanrahan, was the final witness in the hearing. Both were questioned (for over an hour each) on whether all the appropriate tests and interventions had been done to establish the correct diagnosis and prognosis. Reference was made throughout to the Royal College of Physicians (RCP) 2020 guidelines on Prolonged Disorders of Consciousness

Such scrutiny is an important part of court hearings about PDoC patients, which often involve family members who feel more should be done in the face of clinicians who believe everything appropriate has already been tried (e.g. When another assessment is not needed: Best interests decision-making for a patient with a prolonged disorder of consciousness). In this case, one focus was on whether it would be useful to pursue another attempt at a lumbar puncture to rule out Normal Pressure Hydrocephalus. The independent expert, Dr Hanrahan, was clear there was no need for this. There was ample evidence of what was causing the disorder of consciousness (e.g. from the MRI scan).

The clinical experts were also asked whether there’d been appropriate consideration of behavioural evidence of consciousness. Systematic structured assessment of YD’s behaviours had been conducted in accordance with the RCP guidelines – using the Wessex Head Injury Scale and the Coma Recovery Scale revised (CRS-R) scores. These tests suggest a vegetative diagnosis. But both his partners think YD sometimes cooperates with treatment (e.g., opening his eyes for eyedrops or his mouth for mouthcare) and that he responds to them (e.g. squeezing a hand or looking at them). They’d submitted videos to the court (which the clinicians had watched, and the judge confirmed she’d looked at too) to demonstrate that YD was showing awareness of himself and his surroundings.

Both clinicians completely accepted that his partners might be the people most likely to observe any responsive behaviour, indicating consciousness. As the treating clinician commented:

Dr N: The family are extremely devoted. Both of them have been very verbal advocates for YD. They are there by his bedside without fail every evening. There is no reason to doubt their love and care for YD.

OS: There is some evidence they are quite attuned to YD?

Dr N: Yes. Patients respond better to people they know and family can pick up subtle cues that someone who has never seen [the patient] before and doesn’t know him may miss. With humility, I have to accept they may be better people to interpret his verbal and non-verbal cues.^[3]

However, both Dr N and Dr Hanrahan pointed to the difference between what was observed and how an observation might be interpreted. They suggested observations could be interpreted differently by a hopeful family member versus a clinically trained professional looking systematically for reproducibility and responses to specific stimuli. For example, Dr N, accepted that the patient does open his mouth and his eyes at times – and this might coincide with a request to do so for mouth or eye care – but systematic testing had failed to establish response to command. Under cross-questioning, Dr Hanrahan explained that he believed that a statement from one of YD’s partners to the effect that that YD had moved his leg while being changed to protect his modesty was her (mis)interpretation of a crossed spinal reflex, and not an intentional movement.

There was some detailed discussion of ‘visual fixation’ and what research shows about the significance this might or might not have for a VS diagnosis (apparently the national RCP guidelines on this might change in light of new research) – but, in any case, under cross-examination from the Trust’s barrister, Dr Hanrahan confirmed that in his view YD’s behaviours did not in fact meet the criteria for visual fixation: the description of his eyes drifting and stopping was different from the visual behaviour involved in seeking out an object or person of visual interest.

The clinicians acknowledged what the partners had reported observing (and also occasionally corroborative notes from an occupational therapist and a nurse, highlighted by the partners’ barrister). However, Dr Hanrahan confirmed these very occasional observations did not change his assessment of YD’s diagnosis or his prognosis informed by an overview of all the medical evidence and the systematic testing. Under cross-questioning Dr N seemed at one point to allow for the possibility of YD being in the borderline between VS and ‘MCS minus’, but he too came down on the side of a VS diagnosis on the balance of probabilities and did not see YD’s prognosis changing.

It’s common in hearings about PDoC patients, for family and clinicians to have different experience and understanding of the person’s behaviour. Other OJCOP blogs have explored this – including the way videos of the patient are used to document and support competing explanations (“Seeing is Believing? Patient Videos in Life-Sustaining Treatment Disputes”; “Use of videos in assessing consciousness: A clinical perspective”).

One feature of this case that reinforced the partners’ sense of hope and their conviction that YD was determined to improve was the fact that he is medically stable and that his movements are increasing and getting stronger. The (uncontested) observation of medical stability turned out to be used very differently by YD’s partners, and by the doctors.

For Dr Hanrahan, a shift towards more or stronger movements was not a surprising element of ‘change’ (he would not call it ‘improvement’): it was normal for vegetative patients to stabilise over time (though not always as well as YD). It is, Dr Hanrahan said, precisely because YD is medically stable that he can be very confident that he has the correct diagnosis and prognosis: “One of the hallmarks of assessing Disorders of Consciousness is you first have to medically optimise the patient. YD has been medically optimised and he is stable. I can’t invoke medical complications like infection or seizures to say there might be some awareness lurking somewhere, that he has hidden covert consciousness. The medical stability has given us a more valid diagnosis.“

Notably, though, Dr Hanrahan did not take YD’s medical stability for granted: he emphasised that it was dependent on multiple nursing and medical interventions –and was unlikely to be sustained indefinitely. Dr Hanrahan was uncompromising in how he presented YD’s future: “The diagnosis is stark. I cannot think of any prospect of recovery. All that remains is opportunity to deteriorate – and he will: he’ll aspirate or get an infection and that will be a distressing situation to manage and it will happen, on the balance of probabilities, in the next weeks or months. There will likely be neurological deterioration too. […] What we have here is chronic permanent severe brain failure.“

Dr Hanrahan went on to state his view that: “The YD I’ve been given to see with the narrative of family, that person has permanently departed […] What makes YD, YD has gone.”

2. YD’s values, beliefs, wishes and feelings, and evidence from his family and friends

This issue of who YD was and/or is now as a person – and what constitutes his personhood – was the key focus for the other parts of the hearing. Testimony from, and cross-questioning of, three people close to YD (his two partners and one of his closest friends) focused on YD’s own perspective (and his partners’/friend’s) on consciousness, the specific “values and beliefs” expressed by the patient in the past, and what he might want in his current situation. I’ll present each in turn.

2.1 Evidence from JG (Partner)

JG was the partner who gave evidence first. She has been with YD for 20 years and described him as: “humorous, determined, unique, and very supportive…He loves to learn and he looks outside himself – into the universe or even beyond, about why things are the way they are.”

It was noticeable that none of the witnesses who knew YD before his injury hesitated to describe him in the present tense. This contrasts with previous hearings I’ve watched where friends and relatives occasionally stumble over the use of tense, perhaps saying ‘he was…’ and ‘correcting’ themselves to ‘is’ (or vice versa).

YD has not ‘departed’ as far as JG is concerned. She has a clear sense of connection with him at a “spirit level”, including through dreams in which “he would get up and talk or walk […] He was healthy in my dreams, but it was- MB was there, so it wasn’t a memory, if that makes sense: it was a future.” I found this very moving testimony – it reminded me of how, in the first year or so after my sister’s car crash, I had vivid and repeated dreams in which she appeared completely healthy and well (although, unlike JG, I did not experience these as spirit connection or visions of the future – so found them quite distressing once I awoke).

JG’s spiritual beliefs are a key element of her approach to the current situation and are core to her relationship with, and understanding of, YD. She talked about his long-standing engagement with spiritual mediums, ability for astral travel and explained “He is an empath – can feel the energy of people around him.” The significance of a particular spiritual medium became clear at this point.^[4]

Mr Hockton (counsel for the family): You say both you and MB (other partner) strongly believe he can communicate his thoughts to you through a medium that he’s known for 6 years. And you’ve provided WhatsApp messages of YD’s thoughts since January this year.

JG: Correct

Mr Hockton: […]. They include messages which you take seriously and understand to be communications through the medium with YD. They include observations such as, taking a few at random, “he said to tell you that, whatever has been said, he’ll prove them wrong”.

Asked how she interpreted this message, JG explained it confirmed her belief that“he’ll work on healing himself and do more than they think he can do”. She also said the first messages from the medium made her happy because it let her “know he was present and knows who we are […]” and also “because it was in his vernacular, the words he would use, the way he would talk. And it was a period of time he couldn’t talk”.

Again, I found this testimony particularly moving because it reflected my own experience when my sister was in intensive care, and I suddenly remembered that there was a lovely birthday message from her on the cassette of my old answer phone (this was back in 2009). I still recall the urgency with which I rushed home to take out the cassette before it might be recorded over. Sixteen years on I still occasionally play the message (now safely digitised).

In addition to describing YD prior to his injury, JG talked a lot about her experience of him now – including movements she saw him make and the ways in which she thought he sometimes responded to her. It was clear she was very attentive, noticing every small change in him (including the more frequent and stronger movements over the past couple of months): “he’s done more in the past two months than in the eight months previously. If he had six months more, who knows where he could be“.

She was confident about YD’s conscious engagement with his own healing and drew a conceptual distinction between mind and brain – “I feel his mind is more intact than the health of his brain so he would still be able to communicate with us”. Asked by counsel for the Trust whether perhaps she was “desperate to see things” and therefore might misinterpret what was going on, she rejected this assertively: “No, I see what I see and I feel what I feel“.

JG (along with YD’s other partner, MB) is involved in YD’s physical care and spends hours at the bedside. She has noted specifics such as, for example, that he “opens his right eye wide if he has a problem going to the toilet.” She saw this as a form of communication: “On one occasion we checked his catheter and it was blocked with sediment and his heart rate had gone up quite high…once the blockage was removed he was able to relax. So he’s able to communicate in that way that there is an issue that needs to be resolved“.

She was supported in her thinking about appropriate care by the Reike practitioner that she (and/or MD) employs to give ‘distance Reike’ (explained here: https://www.reikifed.co.uk/reiki-distance-healing/). “The Reike practitioner connects with him on an energetic level even though she’s not physically around him and she can pick up any areas of his body where he’d like energy directed to help him heal or relax.” This Reike master had noted, for example that “His throat chakra was showing red”. This was even though, before the Reike session, “she didn’t know he’d had a problem with his throat” and “I agreed and he’d had a lot of suctioning and he didn’t want anyone to put anything else down his throat. We stopped suctioning him that deeply to give his throat a chance to heal“.

JG’s conclusion based on what she knew about YD (both before and since his brain injury) was that: “he refuses to give up on his life and wants to continue living as long as he is able to. My conviction is that [YD] has not given up on himself … he wants to continue living and try to improve however small, until he passes away in a natural and unforced way”.

Asked by the OS whether her current involvement in YD’s life would be sustainable if he was to go to a nursing home and live for years, JG was adamant: “I will do whatever I can if he needs me to improve. Or just to be with him so he knows I love him. There’s not really a question of my not being there…”.

2.2 Evidence from MB (Partner)

MB has been in a relationship with YD for 24 years. She was weeping as she took the stand but soon composed herself with the support of the court and once she started talking about YD – who she described as “very strong, very determined” and someone who “fights with everything he has”.

Asked how often she visits him, she said on a daily basis for around six hours (sometimes more) each time. She was convinced that her partner was not in a vegetative state: “He IS aware. I’d sometimes come in after JG and give him a kiss on his cheek and he’d open his eyes immediately to see who is kissing him”.

Like JG, the key message that MB took from the communications with YD via the medium was that YD “is trying to heal himself and he would like the opportunity to do so”. She explained that: “to stop feeding him and to stop his water – that would stop him from doing what he is trying to do. He would want to go when he was ready to give up and go and not before“.

Her evidence was very similar to JG’s, but she added descriptions of incidents that highlighted YD’s high pain threshold and his views about end-of-life care. She’d had a conversation with him about palliative care and syringe pumps:“he would say unless the person is physically suffering and the body shows signs of deterioration. the body should go when it’s ready to go”.

Both women were questioned about possible other interpretations of YD’s values and spirituality. For example, they were asked to respond to suggestions that his being a very private man might make the current assault on his physical privacy a burden, that his belief in holistic medicine might lead him to reject clinically assisted nutrition and hydration, and that his spirituality might make him happy to now detach from his physical body. Neither accepted such alternative interpretations.

Like JG, MB was committed to continuing to be at YD’s side. When asked if there was anything else she wanted to tell the judge she simply said: “He’s trying. Please give him a chance and opportunity to show that. And not end his life at the moment. Maybe later on when he does show signs of deterioration and he’s giving up. But he’s not at the moment“.

2.3 Evidence from Mr T (Friend)

Mr T gave evidence on the basis of his knowledge of YD as a colleague and friend. Like the two partners, he described YD’s charisma: he was a “unique, driven, determined individual – I’ve never met anyone in my life like YD”. Like them, he talked about YD’s spirituality, and his quest for knowledge through reading. He showed a new dimension to YD by describing how YD supported him in caring for his mother with severe dementia, and how YD emphasised the importance of not taking away her dignity. He had come to the same conclusion as YD’s partners about what YD would want in his current situation and he stated about his friend’s future: “I know as long as those two women are there, he’ll have his dignity.”

In combination, these witnesses conveyed a very strong (and consistent) sense of YD’s distinctive values, wishes, beliefs and feelings.

The reported beliefs of YD were also shared by the witnesses themselves to a great extent. Trying to separate out the wishes of family/friends from the potential wishes of a protected party can sometimes be challenging. In this case the shared spiritual beliefs if anything made me more confident in the way these witnesses thought about what YD might have wanted as they had a rounded view of how these beliefs might apply in a range of circumstances. My feelings about this were reinforced partly because of the power dynamics. It seemed clear that YD was a ‘charismatic’ person, much loved and admired by the witnesses who were all younger than him and, in each case, he had mentored, influenced and nurtured the belief systems of the witnesses (rather than the other way). Having listened to what they had to say, I believe that if YD had been able to sit up and hear from the doctors about his situation, he would indeed have taken the approach his family and friends said he would.

3. Closing submissions and my reflections

The judge invited written closing submissions for the following day, keeping open the possibility of a hearing, if necessary, at 2pm that afternoon. In the event the hearing was vacated, but on request (approved by the judge), the barristers all shared their closing submissions with observers.

The family and the OS took the position that continuing treatment was in the patient’s best interests. The Trust said it was not. The closing submissions emphasised key points from each parties’ opening submissions, and highlighted diverse elements of the oral evidence, sometimes (not surprisingly) with different emphasis and to different ends.

Each final statement also highlighted some of the relevant legal framework. The position statement on behalf of YD’s partners, for example, draws attention to the case of Aintree University Hospital NHS Foundation Trust v James [2013] UKSC67 on the importance of considering the matter from the patient’s point of view. It also refers to the recent decision in Re PK [2025] EWCOP 17 (T3), a case before McKendrick J in which the judge made a decision (to continue treatment) contrary to the best interests formulations advanced by two experienced clinical witnesses, including the single joint expert, Dr Hanrahan (who was also the expert in this case). The statement from the OS also extensively addresses YD’s belief system and the elements that meet the Grainger criteria (Grainger plc v Nicholson [2010] IRLR 4) and hence qualify as a philosophical belief protected under the UK’s Equality Act.

For me, though, the most interesting element of the closing submissions was the way in which the OS has responded to some of the oral evidence about operational issues highlighted by the two expert clinical witnesses.

I’ve done a lot of research on the ways in which PDoC patients are cared for, and specially on the procedures for making best interests decisions about life-sustaining treatment (see cdoc.org.uk). For well over a decade, I’ve also been supporting families facing catastrophic brain injury at different points in their ‘journey’ through the system. These families have represented a range of views about the right outcome for their loved one in relation to CANH. My experience of supporting these families has informed the development of online training for healthcare professionals (cdoctraining.org.uk), as well as work I’ve done with organisations to improve their processes.

As anyone who researches or works in this field knows, all aspects of PDoC patient pathways are informed by a complex network of factors including legal frameworks, NHS funding and healthcare delivery structures, and other matters ranging from the role of personal injury compensation claims to the organisation of (mostly private) nursing/care homes. Improving the interface between these different players/forces is key to delivering on patients’ best interests even if this not at the forefront of ‘best interests’ discussions for individuals.

There were two occasions during this hearing when each of the doctors seemed to go ‘off piste’ and aspects of this broader context came to the fore. I recognised on each occasion a common frustration I hear from clinicians in this field about the operational challenges involved in caring for PDoC patients, and in attempting to ensure the right pathway for them through different services, and to protect their best interests. I refer to the comments as ‘off piste’ in the setting of this Court of Protection hearing in so far as, arguably, the points being made were not directly relevant to YD’s best interests as an individual – although of course they provide important context.

Under cross-questioning from the OS (her question was actually about the relationship between YD’s partners and the treating team), the treating clinician volunteered information about his own position on bringing the case to court. He said that MB had lately been somewhat “frosty” with him, saying “why couldn’t you just let him go to a nursing home and just let him have a natural end. And part of me sympathises with her”. He expanded, without prompting, to say that he “would have avoided [the court case] if at all possible” and then explained why he felt he had to make the application.

Dr N: Use of our beds for patients who are not evolving rapidly is not a good use of the beds. […] we have a highly skilled & multi-disciplinary team and the aim is to support patients to return to some form of independence. We only have one or two patients in PDoC because we believe these beds must be used by patients for an assessment period, and then to be moved to nursing homes or homes. These sorts of assessments and deliberations that take months [I think he meant in finely balanced or disputed best interest cases that need to go to court] should not be taking place in acute beds. So when MB asked “why don’t you just move him into a nursing home” – I think moving him to a nursing home would have probably been the right thing to do.

Under re-examination by counsel for the Trust, his attention was drawn to the fact that in answer to Ms Gollop’s question “you spoke of the use of beds in your unit”. Counsel asked, “What is the purpose of your unit?”

Dr N: We’re a neurological rehabilitation unit. Most of our patients are able to interact with their environment and engage with physiotherapy, speech and language therapy, occupational therapy etc. But because of our experience we do take PDOC patients with the intention to see if they will, with time, emerge and benefit from interventions. Some do – within a month or 6 weeks from intensive care…they change and improve and go from VS to MCS and then they emerge. Unfortunately, YD has not. That is where our interpretation of the MCA means we are duty bound to ask what is in his best interests, and if necessary to ask that question of the court [is it right to continue with CANH]. If we send a patient to a nursing home, then years down the line it come to the attention of court, we will have been failing in our duty and we are criticised for negligence. But the process of doing the assessment and taking a case to court blocks a bed and is an enormous burden on our resources. We are doing the right thing, but it is not an easy choice for us to make.

The challenge Dr N faced was palpable.

On the one hand, sidestepping a court case by accepting the family’s view of best interests and simply moving YD to a nursing home as his family and friends wanted could have been the “right thing to do” in terms of allowing family views of best interests to prevail and freeing up a bed for other patients, but realistically that course of action might not be in his best interests and, in addition, might risk YD being left there without any ongoing expert reassessment of his best interests – once a patient has left specialist care, feeding tubes are often continued by default. (We have supported families where PDoC patients have been left without any review of their best interests in relation to CANH for decades (e.g 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)

On the other hand, ensuring that YD’s (contested) best interests are fully examined while he is in a specialist unit under Dr N’s care is also “doing the right thing” (and compliant with RCP Guidance) – but has its own challenges and is an expensive option both financially and in relation to other resources.

So, Dr N had not taken the easy way out – but both options have problems. It is an operational problem that needs addressing.

Discussion strayed into broader operational issues for a second time in Dr Hanrahan’s cross examination. Again, it was prompted by direct questioning from counsel for the OS who asked “an open question”, saying that “it arises out of some of the evidence this morning”. She was interested in the effects of a particular judgment (https://www.judiciary.uk/wp-content/uploads/2025/02/NHS-South-East-London-Integrated-Care-Board-v-JP.pdf) on clinicians’ decision-making. She wanted to know whether Hayden’s decision in JP about the need to review patients in PDoC might have “stood in the way of doctors feeling empowered to transfer patients to a nursing home in accordance with the wishes of family and friends who wanted that, even if the doctors didn’t agree but didn’t feel strongly enough to oppose it.” This question prompted Dr Hanrahan to talk about the context and policies in his unit to ensure quality and timely best interests decision-making. He also highlighted the challenges of finding appropriate placements, the variation in practice across Integrated Care Boards, the fact that the NHS only allows for 180 days for assessment at specialist centres, and the “wretched form” (the NHS continuing health care Decision Support Tool) which is used to determine eligibility for funding – all of which can pose problems for patients in Prolonged Disorders of Consciousness and those who care for them. The OS responded by commenting that the response was ‘illuminating’, and then tried again to ask about the implications of the Hayden judgment to which Dr Hanrahan simply said he didn’t know enough case law. The OS then moved on to ask whether YD would be increased risk of pressure sores or infections if moved to a nursing home.

These responses from both Dr N and from Dr Hanrahan clearly raised concerns for the OS. In her final submission, the OS notes “It is understandable, if somewhat troubling, that Dr N, regards him [YD] as a bed blocker” – and goes on to emphasise that in a case like this, “neither the financial cost to the NHS nor the burden on the staff who will be providing YD’s care are in play”. Her statement then suggests that: “… both YD’s treating doctor, and the independent expert instructed within the proceedings, have had NHS resources in mind when providing evidence. It is rare for that to emerge as frankly as it has but perhaps it is unrealistic to think that doctors treating patients who have suffered brain damage resulting in PDOC are unaffected, consciously or unconsciously, by their appreciation of consequences for other patients of continuing to provide an individual with a PDOC and high nursing and/or medical care need with CANH for what could be years.“

She adds: “The evidence about Dr N’s discussions with the Trust about YD, and Dr Hanrahan’s about system wide Trust/ICB negotiation about resource allocation for the few patients with PDOC whose continued treatment is in dispute, must have been upsetting for them to hear”.

I don’t know whether or not YD’s family members were upset by the extended discussion of resource and operational issues during the hearing – but it is certainly something that families with relatives in PDoC often become aware of. Operational/resource issues are a common part of the discussion among networks of PDoC patients’ relatives, and this issue comes up often in our research interviews. I personally lobbied for months to get my sister in a Prolonged Disorder of Consciousness out of a (more expensive) hospital bed into a (more appropriate) neuro-rehab placement. Later, after she ‘emerged’ from PDoC, I also lost a battle to keep her in a particular care setting that I thought best for her and from the outset the annual reviews using the (“wretched”) Decision Support Tool have been agonising and have not felt fit-for-purpose for her level and type of disability and needs.

Unlike the OS, however, I did not hear the clinicians’ comments as in any way suggesting that their decision-making was affected “consciously or unconsciously” by resource allocation issues per se, or that their decision-making was somehow being distorted because of the expense involved in “continuing to provide an individual with a PDOC and high nursing and/or medical care need with CANH for what could be years”. This is perhaps partly because I’ve heard some very similar discussion about operational issues and budget boundaries from clinicians (or service managers) who have a conscientious objection to ever withdrawing CANH from a stable PDoC patient and from one neuro-rehabilitation consultant who told me he would never initiate a referral to court if family objected (regardless of what he thought might have been the patient’s own wishes).

What I heard in what Dr N and Dr Hanrahan said in this hearing was an attempt to ensure that PDoC patients were in the right place, with the right assessment and funding to meet their needs, including the requirement for robust best interests decision-making – and (in the context of this particular case) that these principles had been brought to bear on YD as an individual. These doctors were talking about the context in which they struggle to try to do ‘the right thing’ not just the easiest thing – where the easiest thing could mean sidestepping a difficult conversation about a difference of opinion with a family and simply discharging a PDoC patient to a nursing home and getting them off the books.

The OS’s closing submission suggests that a working party could be useful and the Trust’s closing submission gave additional detail about the role of the ICB in this case and how the Trust had acted to try to avoid any delay in making a decision about YD’s best interests. The Trust also agreed that “there is scope for further work […] in relation to the timing of applications of this nature”.

It can be a ‘diversion’ but it can also very useful when system problems are highlighted in court hearings – I hope action will indeed be taken.

I understand that the judgment in relation to YD will be published next week (and a link will be posted here). My thoughts are with him, and his family and friends.

Jenny Kitzinger is co-director of the Coma & Disorders of Consciousness Research Centre, and Emeritus Professor at Cardiff University. She has developed an online training course on law and ethics around PDoC and is on X and BlueSky as @JennyKitzinger

Footnotes

[1] For a list of academic articles I’ve published in this area see: https://cdoc.org.uk/publications/academic-articles/. For a list of my blogs about PDoC cases see: https://cdoc.org.uk/blogs-about-court-cases/

[2] I’m grateful to have received opening and closing Position Statements from the barristers (all of whom are from Serjeants’ Inn Chambers): they have very much enhanced my understanding of this case.

[3] Quotes are as accurate as possible given that no audio recording is allowed. I’m grateful to Celia Kitzinger for cross-checking my quotes against her own notes from the hearing.

[4] The Official Solicitor’s opening position statement (on behalf of YD) comments that as far as the OS is aware this is the first time that “those interested in P’s welfare and who also care for him […] have adduced evidence of messages sent by a medium”. The Position Statement goes on to say: “The Official Solicitor suggests that the medium’s messages and the Reiki Master’s statement are admissible evidence. It assists the court with the context in which JG and MB’s evidence about YD’s present wishes should be evaluated and, potentially, it goes to their Art 8 rights which are engaged […] However, this is evidence of theirs, not YD’s”. Adding that “If the medium’s messages were being adduced solely as evidence that YD is sending messages, that evidence would probably be inadmissible because it is incapable of proof within the confines of the court process” (§16 and §19, Position Statement from OS). For more about medium communication with PDoC patients in disorders of consciousness see https://www.youtube.com/watch?v=2GNrGZK6_S4 and https://www.erinpavlina.com/blog/2018/02/can-a-medium-speak-to-a-person-in-a-coma/

A court hearing and 23 visits from 16 officials: Family doubt that ‘Deprivation of liberty’ is working in the public interest

By Sandra and Joe Preston, 7th August 2025

In February 2025, we found ourselves stepping into the Court of Protection for the very first time, as relatives of a Protected Party (P). We returned there in June for the second and final hearing, and although we came away with a positive outcome, it had taken over four years to reach this point. We cannot help but question whether this was a good use of judicial time, tax-payers’ money and in the public interest.

Here is our story which we can now tell, in our own names, following a successful application to the court to discharge the ‘standard’ transparency order and make a new one which “does not prevent the persons bound by this Injunction […] identifying Joseph and Sandra Preston as the son and daughter-in-law of [P]” (§8(i)(f), order of DJ Mullins, made on 10 June 2025 and issued on 20 June 2025).

Joe’s mother was diagnosed with Alzheimer’s in 2019, having been treated for depression after being widowed. She continued to live in her own home with a good support network in place when Lockdown struck. Unable to grasp that the country was in the throes of a pandemic which meant friends and family couldn’t visit, she found herself increasingly isolated and depressed. This led to three failed suicide attempts within six months, the last of which resulted in doctors discharging her to a care home (a long way from where we live) on the grounds that living independently, even with a care package, posed too great a risk.

Fortunately, she had already put Lasting Powers of Attorney (for Finance and Property and for Health and Welfare) in place through her solicitor, and after three months in the care home to which she was discharged, we were able to transfer her to one local to us so that we could visit more often. Covid was still prevalent at the time and she could not understand why we ‘abandoned’ her at the entrance, as she later went on to accuse us of having done, as we were not allowed to enter the care home and help her to settle in. We were able to talk to her through the window: the care home did all they could to facilitate contact between residents and their families at a most difficult time.

“Deprivation of Liberty” and questions about a s.21a appeal: May 2021-February 2023

A few months into her stay at this care home, she again tried to self-harm and on one occasion she tried to abscond from the garden, in the belief she could come and visit us at our house which we had reassured her was not far away. The care home manager advised that she’d need to move to a more secure floor to reduce the risk of her leaving and being harmed. This was the first time we heard about Deprivation of Liberty Safeguards. The first DOLS authorisation was issued in May 2021, valid for three months “to ascertain whether P’s behaviour constituted an active and consistent objection to her placement”. She told the first Consultant Psychiatrist who visited her as part of the DOLS process that she was happy to stay at the care home with her current care and support and was assessed to have capacity to appoint Joe as her Relevant Person’s Representative (RPR). Joe was never formally appointed RPR by the Supervisory Body (the London Borough of Waltham Forest); something we only recently discovered is a legal requirement.

Two months after the DOLS expired, a four-month authorisation was granted, still with Joe as RPR. The DOLS stated the shorter time period was to allow her to receive input from local mental health services and for staff to monitor her for any evidence of an objection to her placement.

This expired in turn, and three months later, in May 2022, a two-month authorisation was granted to allow care home staff to gather a record of her views and behaviour, so that the Supervisory Body could form an opinion as to whether they amounted to an objection, something the Best Interests Assessor (BIA) felt he was unable to determine. We were told that a Relevant Person’s Paid Representative (RPPR) would be appointed by the Supervisory Body as there was a conflict of interest with a family member taking on this role given that they supported the care home placement. The RPPR would determine whether P’s occasional requests to go ‘home’ amounted to an objection and if deemed necessary, they would support her in lodging a Section 21a appeal through the Court of Protection. The RPPR made one visit in July 2022, noting how settled she seemed to be at the care home and concluding that further work was needed to determine the precise nature of what she wanted to happen, given the inconsistencies between what she was reported to have said about wanting to live with Joe, and what she had told him, which was that she did not want to live with him.

In November 2022, four months after the latest DOLS had expired, and following a visit by a second Consultant Psychiatrist and a third BIA, it was recommended that a 16-week authorisation was adequate to facilitate a Section 21a appeal. The Consultant Psychiatrist noted she was disorientated with time, place and person and had little insight into her illness or care needs. Once appointed, the new RPPR visited her in January and February 2023. In her report, the RPPR wrote that a S21a challenge would only have been raised had P continued to object to her placement, but that on her second visit no objections had been mentioned and she had left P happy, content and playing Bingo. The DOLS expired with no S21a appeal having been lodged.

A s.21A challenge to Deprivation of Liberty formally raised and laid to rest? March 2023

But then, in March 2023, it looked as though a s.21a appeal was going to become a reality. The next six-month authorisation was granted in March 2023 following a visit by yet another Best Interests Assessor (by now, this was No 4) who advised Joe that he could be the RPR, with a S39D IMCA appointed to help him lodge a S21a appeal. His mother continued to say she wanted to go ‘home’ and couldn’t understand why she had to wait for someone to escort her to different areas of the care home. We asked her where she meant when she said ‘home’ and she told us the name of the town where she had lived as a young child. Her frustration at not being allowed to move around the care home unescorted led to her occasionally banging on windows and doors, which was noted in care home records. We were not convinced that a S21a challenge was necessary – because Joe’s mother was safe, cared for and content at the care home. We both believed her objections were to the situation she found herself in – with diminishing cognition, a feeling of being cooped up and having to wait for staff to escort her inside and out. The only thing that caused her real distress was when someone from the Supervisory Body took it upon themselves to interrogate her as to where she would like to live. This could unsettle her for days at a time.

The S39D IMCA gave us a list of law firms we could approach for help, but provided no guidance or support beyond this. In an attempt to explore a more practicable, non-litigious way of resolving concerns about her liberty, we asked that a best interests meeting be convened with representatives from the DOLS team, the care home and relevant NHS bodies. Before any such meeting took place, another Best Interests Assessor (No 5) visited and raised with her the issue of banging on doors and windows. This latest assessor concluded that Joe’s mother did this simply when she wanted to go to the floor where activities she enjoyed were taking place. We finally seemed to have found a BIA who took the time to try and understand the person, rather than relying on information which was distorted by being passed from one person to the next. The BIA later informed us that the case had been reviewed by the S39D IMCA and they had concluded there was no need for a S21A challenge and the DOLS authorisation was extended to March 2024.

We thought the S21a issue had been laid to rest and continued to visit Joe’s mother each week. Her cognition and speech were increasingly affected by the Alzheimer’s and it was becoming almost impossible to work out what she was trying to tell us or what she understood from our conversations. She seemed settled and happy though, and it was clear she loved the staff and enjoyed the varied programme of activities and outings offered to the residents. This was also evident in photos posted on social media by the care home. We found visits challenging from an emotional perspective, as a little more of her disappeared each time we saw her, but we took great comfort from the fact she still recognised us (and still does). The next Psychiatrist (No 3) and BIA (No 6) who visited her in May 2024 noted she lacked capacity to make decisions about where she should live, but both agreed she seemed happy and settled.

A decision to proceed with a s.21A Appeal: August 2024

It therefore came as a shock to receive a call from the DOLS Practice Manager in August 2024 telling us that because of the historical objections, a decision to proceed with a S21a challenge had now been taken and a third RPPR would shortly be appointed to take her case forward. We were told that despite having LPAs in place, only the Court of Protection could determine whether she should continue to reside at the care home where she had been living since 2021, or whether she should be allowed to move back to her property (which had been sold to pay for her care home fees), or move in with us as she had allegedly told others she would like to do, or move to an alternative self-funded care setting proposed by the Local Authority.

Joe’s mother had never once told us she wanted the matter to go to court and would be mortified if she knew, or could understand, that legal aid was funding advocates and solicitors to take her case to court. We were made to feel like criminals because the Supervisory Body officials were unwilling or unable to provide a coherent explanation as to why the S21a process was necessary, other than citing ECHR obligations, and we could not understand what it was designed to achieve. We certainly didn’t want our last days/weeks/months together taken up with Court of Protection and DOLS bureaucracy but instead to spend what precious time we may have left with her before the inevitable happens. If we were simply to be dragged through the courts for a judge to opine that she was in the best and safest place, was this really an appropriate use of public funds? If multiple psychiatrists had confirmed she lacked capacity and that her best interests were served by living in a care home, why did it need a judge to be paid a small fortune to reach the same conclusion as the medical experts? We could not conceive of what alternative the judge might propose; we could not keep her safe by having her to live with us, nor could she keep herself safe were it to be suggested she could live independently in the community. The stress this caused us cannot be put into words.

It felt to us that the Supervisory Body were now on some sort of crusade. The new RPPR made their first visit in late September 2024, followed by a visit in the company of the Official Solicitor’s representative in December 2024. Their report of the visit records that Joe’s mother was unable to engage in meaningful conversation, seemed confused and disorientated to time and place and could not express her views and wishes around her current placement. We could not help but ask each other whether this was the first time they had encountered someone with Alzheimer’s. Despite hearing no objections from Joe’s mother about her placement, they chose to forge ahead with the S21a application. We were informed on 21 January 2025 that it had been lodged with the Court of Protection and a first hearing set for early February. We were also informed that the S21a challenge obligated the Local Authority to undertake a Needs Assessment under the Care Act 2014. A Social Worker visited in March and concluded that Joe’s mother required 24-hour support and that her care needs were being met to a high standard at her current care home. Finally we had found someone who agreed with us and we felt hopeful for the first time in a long while that common sense would prevail.

Court of Protection hearing: June 2025

Much to our relief, at the Court of Protection hearing in June, the judge approved an Order which determined that Joe’s mother should continue to reside at the care home where she had been living as happily as her condition would allow for the past four and a half years. Nothing needed to change and there was nothing that could be done to make her life better.

But what a long and protracted process it had turned out to be, with Joe’s mother having received no less than 23 visits from 16 different officials over four years.

The Supervisory Body did submit to the Court of Protection that they wished to have on record that they recognised there had been too much delay in bringing proceedings, and that in hindsight the number of short-term authorisations was too great, which resulted in a number of professionals attending upon the protected party (Joe’s mother) which must have been unsettling. They admitted that, with hindsight, it would have been right to ‘grasp the nettle’ of proceedings earlier.

The final approved order acknowledges that the protected party had been “subject to at least 9 short-term standard authorisations since May 2021” and that since April 2024 she had (according to her care records) shown “no signs by word or action of objections” to where she is living. The local authority acknowledged the family’s concerns “in respect of the delay in bringing these proceedings” and “apologises for the delays that were incurred“. The judge said that “a copy of this order shall be placed on [P’s] social care file and be provided to any Best Interests Assessor” and that “it shall accompany any future application to the Court of Protection“.

Transparency Order

To make matters worse, included in the bundle of documents we had been sent on 21 January 2025 in preparation for the court hearing, there was a Transparency Order which warned us that if we were ever to reveal our involvement in Court of Protection proceedings, we could be found guilty of contempt of court and may be sent to prison, fined or have our assets seized. Over the course of four years we had obviously spoken to friends and family about our travails with the Local Authority in relation to Joe’s mother, and had often been asked whether the Court proceedings of which we had spoken were going ahead. We were now deeply concerned that we’d be found to be in breach of the Transparency Order if we answered any of their well-meaning questions.

Having stumbled across the Open Justice in the Court of Protection website earlier in the year, and being unable to afford legal representation ourselves, we decided to approach Professor Celia Kitzinger for help. Thanks to her support and timely interventions (she helped us to write the application and was then joined as a co-applicant in the case), we were able to get the Transparency Order discharged and replaced with a less draconian version, which allows us to speak and write openly about our experience, in our own names, something we very much want to do in order to offer support to others who find themselves in similar situations. Furthermore, the Transparency Order no longer states that the restrictions remain in place “until further order of the court” but end with the death of the protected party. (Celia will be writing separately about her application to vary the Transparency Order.)

Reflections

In a podcast about the legal framework that underpins LPA and Deprivation of Liberty (https://speakforme.co.uk/podcast-episode-57), Victoria Butler-Cole KC explains why it is very difficult to draw a clear line between the cases where you do need these protections and the cases where you don’t and why it’s safer to err on the side of caution and give the protection to everyone who might need it. She acknowledges that S21a challenges do reach the Court of Protection where everything is fine and nothing needs changing and nothing can be done to make life better in terms of an individual’s care arrangements. But from the perspective of caring family members caught up in a seemingly futile Court of Protection case, would it not make sense and spare the public purse and provide speedier justice if cases like ours could be sifted out long before they reach the judge’s bench? The stress this causes to families like ours, who are doing the best they can in difficult and emotional circumstances, and who care about our relative far more than any of the officials ever will, should surely factor into decisions about which cases merit this level of scrutiny? At the end of the day, nothing has changed for Joe’s mother as a result of her case coming before the judge. Sadly, the same cannot be said for us.

Joe and Sandra Preston are the son and daughter-in-law of a P who was involved in Court of Protection proceedings. They can be contacted through the project email on openjustice@yahoo.com.

Balancing patient welfare and procedural fairness: Withdrawal of ventilation before Hayden J

By Celia Kitzinger, 4th August 2025

The case, COP 20018026, before Mr Justice Hayden on 22^nd and 23^rd July 2025, appeared in the Royal Courts of Justice Daily Cause list as concerning “serious medical treatment”^[1].

In an opening summary^[2], counsel for the applicant explained that the case was about a man in his sixties who’d suffered a significant stroke and had been unconscious on a ventilator in the Intensive Care Unit (ICU) since 12^th May 2025 – so more than two months. He was not showing any signs of neurological improvement, and his physical condition has deteriorated.

The clinicians said that very limited support is currently being provided by the ventilator and there is an 80% chance of “success” in withdrawing mechanical ventilation – meaning that the patient would be able to breathe on his own and would survive extubation. Once extubated successfully, he could then to be transferred out of the ICU and could be cared for in a nursing home. If extubation failed, the patient would receive only palliative care: doctors would not return him to mechanical ventilation, or administer a tracheostomy.

The family want ventilation to continue. They believe that he will recover. They say they believe in miracles. According to the clinicians, “extensive and detailed attempts to reach agreement with the family” have failed – and so they’ve brought the case to court.

It seems that this was intended to be a directions hearing – but Mr Justice Hayden, following his well-versed dictum that “delay is inimical to Ps’ best interests”^[3]heard it there and then, and made a declaration that it was lawful for the ventilator to be withdrawn.

I’ll describe what happened at the hearing, and what I learnt from the Position Statements, and end with some reflections about the tension between protected parties’ rights not to be given treatment contrary to their wishes (or best interests) on the one hand, and the right to a fair hearing (for everyone) on the other hand.

The hearing

It’s listed as a hybrid hearing and I’m observing it remotely. All the parties are in the physical courtroom: only some family members (they’re not parties) and a medical witness are attending remotely. It’s listed to start at 10.30am, but doesn’t begin until 11:39am (I don’t know why). (NB Quotes purporting to record what was said at the hearing are based on my contemporaneous touch-typed notes – they are as accurate as I can make them but unlikely to be verbatim.)

The applicant NHS Trust is represented by Francesca Gardner (of 39 Essex Chambers). The protected party (“P”) is represented by David Lawson (of Serjeants Inn Chambers) via his litigation friend the Official Solicitor. There are also family members in court: P’s second wife and one son are in court in person, one daughter^[4]and P’s brother are together on the video platform and another daughter joined for the second day (also online). It was said that the wife required an interpreter and that the son would take on that role today.

After the opening summary, Mr Justice Hayden – a judge who looks to me to be in his mid-sixties – comments that “80% odds at age 65 are pretty good odds for anything, actually” (it does sound self-referential!). He goes on to say that “It’s a long time since I’ve seen a Position Statement with as little information as this. And I’m the wrong judge for that.” I take this as reference to this judge’s intensely P-focused approach. He then “interrupted” (his word) counsel’s opening speaking slot by turning to P’s son, sitting in the front row with P’s wife, and asking him a series of questions about P (“I’d like to know a bit more about your dad”). This does not elicit a great deal of information: P “liked politics and watching news all the time”, he was clearly a family man “every day he called the rest of the family to find out how everyone is”, he enjoyed cooking but not – Hayden J asked (as always!) – football. Then the judge asked questions directly about the current situation, though P’s son had not been sworn in and was not, at this point, giving witness evidence.

Judge: There’s a good chance he will be able to manage without the ventilator, and that may mean he comes out of hospital into somewhere more private that better promotes his dignity, and closer to your family. The doctors don’t guarantee that, but 80% odds are very good. But that’s not you want.

Son: Yes. I have a strong belief he will come back to life.

Judge: Tell me what you want to happen.

Son: The hospital tell me they have done whatever they can do. They can’t do any more. I have a strong belief he will come back to life.

Judge: So what do you want them to do?

Son: I want them to continue the ventilator – because his pulse, everything, is working. So why they want to remove the ventilator?

Judge: They think it very likely he will survive.

Son: Of course.

Judge: Some would say he deserves that chance.

Son: Yes. My Lord.

Judge: That it’s not in the gift of his children. That he deserves that right – to come off the ventilator, to have a peaceful life. In hospital it’s noisy, there’s little privacy, there’s little peace.

During this exchange, the daughter on the link has her (electronic) hand up and she’s been writing in the chat (“He will not – they don’t even know he will survive”). I’m not sure whether or not the judge sees it. It’s swiftly deleted – not, I think, by her.

Mr Justice Hayden then turns to counsel for the Trust.

Judge: Taking that 80% chance as opposed to staying in hospital on a ventilator doesn’t on my reading of the papers look delicately balanced.

Trust: No.

Judge: I can see, I can feel, the grief of the family. Sometimes grief ambushes logic. It may be necessary to give the family a little more time.

Trust: The ventilator treatment is burdensome and would have stopped weeks ago. It’s only because of this dispute that he is still on the ventilator.

Judge: (to son) This is about what is right for your dad. And that is different from what you want for your dad. You want him there for ever and ever, and that’s not going to happen. For any of us.

Another message comes through on the chat from the daughter on the remote link: “There is going to be 0% he’s going to survive”.

The hearing has been going for half an hour. At 12.10, the judge asks observers and lawyers to leave the video platform “to give family time to talk among themselves”. I leave – not optimistic that this strategy will result in any positive developments.

Position Statements

Now that I have a stronger sense of the dynamics of this case, I read through the Position Statements properly.

The applicant Trust

The Trust seeks a declaration that P lacks capacity to conduct proceedings and to make decisions about his medical treatment (that at least is uncontentious). They want an order that it’s in his best interests to undergo withdrawal of mechanical ventilation and a determination as to whether it is in his best interests to receive only palliative care.

They’ve submitted a joint witness statement from two Consultants in Intensive Care medicine and anaesthesia. It describes how P collapsed at home, was found on the bathroom floor, and was transferred to hospital with a suspected stroke. In hospital, his condition deteriorated further, with a fall in consciousness level to a Glasgow Coma Scale of 9 and several seizures. A crash call was made, he was sedated, his trachea was intubated and he was admitted to ICU where he’s remained ever since. He is unconscious, and “does not display any signs of awareness to stimuli”. He has never shown any evidence of being aware of or recognising his family. Although he sometimes opens his eyes, this seems to be random, and not in response to stimuli (such as his name being called) – and there’s no evidence of any emotional responses.

In the event that withdrawal of ventilation fails, the Trust is not willing to perform a tracheostomy or to reintubate P and recommence mechanical ventilation. The clinicians say that “any improvement in his condition is exceptionally unlikely” and they are “concerned about artificially prolonging [P’s] life with mechanical ventilation and burdensome and undignified care and interventions on a daily basis, which is not felt to be in his best interests”.

The patient’s life expectancy in his current situation (on the ventilator) is “likely to be measured in weeks to months”. If extubation is successful, his life expectancy would likely be exactly the same (“weeks to months”). If extubation fails and he is given only palliative care, the doctors estimate life expectancy as “hours to days”. If, however, extubation were to fail and a tracheostomy were to be inserted (obviously not by this Trust as they say they’re not willing to do it), then his life expectancy would be “months, possibly years”^[5].

The Trust clarifies that the daughter (the one on line in the hearing, who’s been sending messages in the chat box) “opposes the application” and that she “wishes to speak on behalf of the family, and it is not anticipated that the other family members will actively participate in the proceedings”. Clearly the Trust had not reckoned on this judge’s determination to ensure family participation across the board: in fact, in turns out that the son, the wife, and another daughter all address the court.

The Official Solicitor

The Official Solicitor (OS) gives a more detailed and technical medical account (and there are some minor discrepancies between the OS and the Trust e.g. as to whether the Glasgow Coma Scale dropped to 8 or 9) – but the medical picture is much the same. Quoting the medics, the OS says that an EEG shows “diffuse severe encephalopathy” and “outcomes are likely to be extremely poor if he survives, with significant disability, and risk of a vegetative state”. He doesn’t show any signs of pain or distress. A consultant in stroke medicine says that neither ongoing intubation nor tracheostomy is in P’s best interests “as there is no scope now for neurological recovery”. There is no mention of whether or not another medical treatment the patient is currently receiving (clinically assisted nutrition and hydration via nasogastric tube) is in the patient’s best interests. (This isn’t part of the Trust’s application.)

The OS also quotes the views of family members that P should not be removed from the ventilator. The spokesperson daughter said: “if it is time for him to go, he should go naturally” and “the family will not assist him in his death”. She said he would want to go on living because he has children and grandchildren and that the family has faith (they are Methodists). Given the risks the family has been told are associated with tracheostomy, they were not sure, she said, that a tracheostomy was in his best interests. The hospital Trust has given names of solicitors’ firms to the spokesperson daughter and the lawyers plan to seek (free) representation for her for the final hearing. (This makes apparent to me, for the first time, that this is not intended to be a final hearing.)

There’s also a legal point to consider. Would the clinicians actually continue to keep P on the ICU and continue mechanical ventilation (which they consider “burdensome“, “undignified” and probably clinically unnecessary to keep him alive) in the unlikely event that the judge were to decide it was in his best interests to continue to receive it? And what would happen if extubation were not successful? If re-intubation and a tracheostomy are not now available options (because the Trust is not willing to offer them), then really there isn’t a best interests decision between treatment options available to the court to make. “It may be”, says the Official Solicitor, that the applicant is seeking something closer to a declaration of lawfulness in relation to extubation”.

The hearing resumes: Official Solicitor seeks adjournment

When the hearing resumed about half an hour later, the judge stated firmly that “the chat facility has been disconnected. Nobody is to use it”. I understand why, under the circumstances – but this is mildly concerning to observers since it’s common practice for us (often invited to do so by the judge) to use the chat to highlight technical problems when we can’t hear or see what is going on. I hope this won’t be necessary.

Counsel for the Trust says that the outcome of the family discussion has been to confirm that the spokesperson daughter (“in particular”) opposes the application. She “disagrees with the way the case has been presented and with the medical view on extubation”. Where to go from here? “My Lord, we are entirely in your hands” (that’s what lawyers regularly say when they mean “it’s up to you what to do next, and I’m not going to make any [more] arguments about that”).

“You know my view that in these circumstances delay is harmful to P”, says the judge. And indeed those of us who’ve watched similar hearings before this judge do know that – and we’ve reported on it before (“Delay is inimical to P’s welfare”). The judge adds (though it’s “not a criticism”) that “this case has arguably taken too long to get to court”. The implication is clear that the judge wants to make a decision about P’s medical treatment very soon – today, or tomorrow. So, it’s looking as though this would be a final hearing.

Counsel for the OS says he wants to “express opposition to that course of action”. The judge seems surprised: “that is not a submission I would expect to hear from the Official Solicitor”: I take it that this reflects the judge’s view that delay is inimical to P’s welfare, a view he expects the OS to share. The OS explains that it’s important to get legal representation for the spokesperson daughter so that the judge can hear the views “on behalf of the family”. The judge gives that short shrift: “She can’t speak on behalf of the family, can she. They have different views. It’s rather a challenge to speak on behalf of those with whom you disagree”. Counsel for the OS stands his ground: “She’s a party who wishes to take part in proceedings and has some concerns about how long she’s had to get legal representation” – but when pushed to say “how long?” she’s had, he’s forced to say “I don’t know”. He adds that the other family members “are not parties and because they are not parties they’ve not had sight of the bundle, including the medical records”. I gather from what he says (although the judge cuts across him so it’s not wholly clear at this point) that the predicted 80% success rate for extubation is news to the family. The judge says pointedly that these are “powerful submissions” on behalf of the spokesperson daughter, “but what about YOUR client, Mr Lawson? … The court’s focus is on a man with an 80% chance of coming off a ventilator, who has been on it far too long, and the parties are proposing maintaining it another two-and-a-half weeks” (I take it that’s the proposed date of the final hearing – though I haven’t seen the draft order).

By now the judge sounds exasperated. “It’s as plain as a pikestaff””. He says “I have no difficulty understanding their case, even if the Official Solicitor does”. He adds that “speaking to P’s son, it struck me that he had a very good understanding of the situation, while wrestling with his own grief and his love for his dad”. (That wasn’t quite so apparent to me, as an observer.)

Counsel for the Trust has predicted the judicial impetus to hear the case today and she’s on the ball: she says that “in anticipation of you wanting to hear this case now”, she has ascertained the availability of the clinicians and yes, they can give evidence.

The judge turns to the spokesperson daughter and says, “I’m going to let you be joined as an intervenor. I’m not going to accept you as the voice of the family”. I doubt she knows what an “intervenor” is – when she asks for an explanation of what he’s said, he replies only “because they have different views from you and I’m going to hear from anyone who wants to speak to me”. He asks her about legal representation and she says she “got notice about a week and a couple of days ago” and “nobody wants to take the case”. Counsel for the Trust says, “just for clarity, a list of solicitors was sent on 1^st July” (that’s more than three weeks ago) – and the judge turns to counsel for the Official Solicitor.

Judge: Mr Lawson. Twenty-one days!

OS: Our concern, obviously, is only to ensure that the family are able to take part collectively and individually, in a way that is productive for them. We always recognise, of course, in these cases, the burden on the person who is receiving treatment.

Judge: The focus here is that he has a limited reliance on ventilation and there’s a real prospect of success in coming off it – and already the best part of a month’s delay. It’s difficult to see how P’s interests are the focus. Rather than drifted off to the margins.

We break at 13.05 for lunch, resuming, we’re told, at 2pm (actually 2.08) by which time it is hoped that there will be some representation for the daughter, the erstwhile “family spokesperson” and would-be party, now “intervenor”.

But when we resume, nobody has been found to act for her.

There’s a discussion between the judge and counsel for the Trust about the basis for the application. When “there are no options” (since the judge cannot compel the Trust to give treatment they consider unethical), is the hearing “actually needed at all?”. In explaining why the application was brought, counsel for the Trust refers to another case heard previously by Hayden J, GUP v EUP & Anor [2024] EWCOP 3, at which he had expressed the view that “where there is conflict, it is in everyone’s best interests, but most importantly P’s, to bring an application to court”. That, too, was a case where the Trust reached the view that a certain treatment was no longer clinically appropriate, and told the family that it was not available to P, and the family disagreed.

Trust: It would have felt inherently difficult, and wrong, had the Trust engaged this family as extensively as they have in best interests matters then only to say, ‘we’re going to take this decision in any event’. But of course, My Lord, if you take a different view…

Judge: No, no. As you put it, Ms Gardner, having involved the family in best interests decision-making to the extent that they have, it would leave a real feeling of unfairness if the Trust went on to take the decision without ventilating the issues before the court. It could be argued either way. Yours is a compassionate approach.

This exchange highlights a position (apparently shared between the counsel for the Trust and the judge) that the hearing is the ethically right, fair, and compassionate thing to do for the family – a sort of therapeutic jurisprudence.

The hearing proceeded, for now, with witness evidence from the son.

P’s son – witness evidence

The son was sworn in and the judge took him through the answers he’d previously given about his dad (his interest in international politics, cooking etc) before turning to the medical evidence.

Judge: You told me you had a real belief – which I took to be a faith – that he will get better.

Son: Yes.

Judge: Do you know that the evidence in this case indicates that your dad is not going to get better. Do you know that?

Son: I hope my dad gets better.

Judge: I know that. That wasn’t the question though. You pray for a miracle, do you?

Son: Yes.

Judge: Ms Gardner is going to put some medical options to you.

Trust: The consensus of the doctors is that it’s time to have the ventilator withdrawn.

Son: They discussed that with me, and I disagree.

Trust: I know. But you know, don’t you, that all the doctors agree?

Son: That’s why I said they discussed it with me.

Trust: Why do you disagree?

Son: Because I was thinking once they remove, then his life is gone.

Trust: The doctors, Dr [Name] you’ve met, thinks there is an 80% chance if the ventilator is withdrawn that your father will survive.

Son: He said that, but because I am not a medical practitioner I did not (inaudible)

Trust: The force of the concern of the doctors is that it’s a lot to put his body through.

Son: I was just, like I said, having a hope that he’d come back to life.

Judge: When you go to see your dad, what is the thing about his surroundings that strikes you most forcibly? Do you understand?

Son: No.

Judge: When I have been to ICU, what strikes me most is how noisy it is.

Son: I don’t know.

Judge: Whirling, beeping, ongoing activity.

Son: Yes, for the second week….

Judge: And how invasive it is, how many tubes.

Son: I think it’s two, or three.

Judge: Would you consider your dad to be a brave man?

Son: Yes.

Judge: What makes you say that?

Son: That’s how I know him for a long time. Whatever he will do, he’ll have hope in it.

Judge: Your views here are only relevant insofar as they help me to understand what your dad would want for himself. You are here to help me to understand that, not what you want.

Son: I know miracles work.

Judge: Do you think he would want to come off the ventilator and take his chances?

Son: Consult the medical team.

Judge: No! This is not a medical matter. What would he want?

Son: That he recover.

Judge: Stay on ventilator or come off ventilator?

Son: What is good for him. As of now, he cannot talk.

Judge: That’s why you’re here, to tell me what he would want. As his son.

Son: I know he’s definitely going to get better.

Judge: You know that isn’t answering the question, don’t you. Why won’t you answer my question about what your dad would want?

Son: I need to consult the medical team.

Judge: No you don’t. If he comes off the ventilator he has an 80% chance. […] I think you do know what he would want.

Procedural fairness – judge declines the OS request for adjournment

The position of the Official Solicitor had been that the hearing should be adjourned so that the family could get legal representation.

After witness evidence from the son, the judge turned to counsel for the Official Solicitor and asked, “any change in the OS position?”. Counsel referred to “the Re A case in the Court of Appeal” which I had to google afterwards. I’m pretty confident it’s this one, originating in the Family Court: Re A [2022] EWCA Civ 1221.

In Re A, a hospital Trust applied to withdraw a ventilator froma baby with devastating brain injuries. The parents lost their legal representation three days before the hearing (their application for legal aid was turned down) and asked for an adjournment of three weeks to find lawyers to act for them (either pro bono or with crowd funding). Hayden J refused their application, went ahead with hearing the case (including evidence from the parents, devout Muslims, who believed that the decision should be made by Allah not by man). He handed down a judgment the next day ordering that ventilatory support should be withdrawn due to the severity of the baby’s brain injury which meant that he was unable to benefit from treatment, and the burden of treatment itself.

The Court of Appeal found that Hayden J’s decision in Re A not to permit an adjournment so that the parents had a chance to get legal representation was procedurally unfair. They identified two reasons why procedural fairness is important: (1) because it helps to improve the chances of reaching the right result (“the path of the law is strewn with examples of open and shut cases which, somehow, were not”) and (2) because “justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions”.[6] The judge should, the court said, have properly considered the immense importance of the issue to the parents (the life and death of their child), and the fact that they had lost their representation, through no fault of their own, just days before the hearing. Hayden J should also have recognised the daunting task they now faced in representing themselves as litigants in person – with complex medical evidence at a time when their child was lying critically ill in hospital. They were also non-native English speakers.

Counsel for the Official Solicitor distinguished the case before Hayden J today from Re A to the extent that the parents had expected to have a legal team to represent them, whereas the family in the current case seem to have made no progress with obtaining lawyers over a three-week period. But he emphasised that there is a 20% chance that removal of the ventilator will result in P’s death so this is an immensely important issue for the family. He also said that just a few weeks earlier, it had been said at ‘best interests’ meetings that post-extubation tracheotomy or re-intubation were on offer as ethically available options – that had changed relatively recently – and also that only one member of the family had received the medical evidence in the case. “None of them has the full bundle. They literally haven’t read it yet. […]. We remain concerned that the family have not yet had the application papers and are therefore in a very difficult position. Lawyers would find it a challenge to take on this case and prepare for a hearing tomorrow, but a non-specialist…..”.

The judge asked: “Has the Official Solicitor herself taken this decision?” – referring to Sarah Castle – and when it seemed she had not, he said, “I’ll rise. I want to hear it from her.”

After a short interval, counsel for the Official Solicitor reported back. The Official Solicitor, he said, asks for an adjournment, for one week – less to allow an opportunity to obtain representation and more because she is “keen for all voices in their family to be heard on an equal footing”, which isn’t possible at the moment because only the one daughter has received the medical evidence in the case. She wants to enable all family members to “have the papers and the opportunity to understand the evidence before the hearing”. The judge pointed out that there would be medical evidence given in court the next day. “But without any notice – they’ll hear it live, as lay people, about a critically ill relative” said counsel. It was, he said, “difficult to see that they can contribute, if they wish to, from a cold start tomorrow morning”.

This position was not well received. The judge said “I can’t imagine this court would do anything other than listen to all the family members, and ‘on an equal footing’ is so trite as not to need saying”. Counsel for the Trust said their concern was “if you accede to that request, we may be in exactly the same position in another week”. Moreover: “there doesn’t seem to be any active request from any of the family members to have the court papers” – nor was there any request from them to become parties.

Here’s what the judge said (as best I could capture it) in making his decision to proceed with the hearing, refusing the application for an adjournment so that the family could get legal representation.

A little while ago, in response to the question ‘what would your father want if he could speak?’, the son was unable – pointedly unable – to answer the question. The only reasonable inference to be drawn from that is that he knows his father would very much want to take the opportunity to leave ICU. Most of us would. In that indirect way, P’s voice comes into the courtroom. Short of the miracle his family pray for, there is little prospect of any medical recovery, but there is the opportunity to greatly improve the quality of his life at the end. ICU is the last place any person would want to be. Given the delay that’s already taken place in effectively depriving this man of that opportunity for greater comfort, I cannot see anything eclipsing the need to do that now. The medical issue, properly analysed, is not a complex one, and it’s one I would have thought well within their grasp of understanding: the opportunity of a more comfortable life off the machines, even though there is a 20% risk that will cause his death. It’s a probability of something positive for him. On an intellectual level, there is no coherent contrary argument – though of course it’s different on an emotional level. This is the only significant thing that can be done for this man, and it’s a very significant thing. So, I decline the Official Solicitor’s request to adjourn so that all the family can have the papers. I do not think that eclipses the obligation to make a decision in this case. I have said before that the Mental Capacity Act does not import the avoidance of delay in the way that the Children Act does, but that requires to be read into it as a facet of P’s Article 8 and Article 6 rights.

And with that, he asked the wife if she would now like to give evidence.

Wife’s evidence

The wife’s witness evidence is interpreted by the son who comes into the witness box with her.

Judge: It is very brave of you to give evidence. What I want you to tell me please is a little bit about P. What kind of a man is P?

Wife: Oh, very brave.

Judge: Was he a good father?

Wife: Yes.

Judge: If they take him off the ventilator, there is an 80% chance that he would be okay without it. Do you understand?

Wife: Yes.

Judge: It’s understandable that you would worry that he might be in the 20%, but these are good odds. Now what would P tell me if he was here. Would he want to take those odds or not?

Son: (interpreting) She said that whatever decision you make, she will pray that he will recover.

Judge: (something about knowing his wishes – I missed it). He and I are of very similar age. I get the impression that he would go for the 80% chance?

Wife: Yes.

Judge: Yes? If you think ‘yes’, that’s the end of it. That’s good enough for me. You say ‘yes’?

Wife: Yes.

Judge: Thank you.

After a brief exchange about where P would be discharged to if he were to survive extubation (the family live in a different city from the hospital where P is being treated) –Hayden J says: “Both of these last two witnesses have given utterly compelling evidence, not just in what they said but in the way they said it. They smiled, with absolute confidence that they know what this man would have wanted – and they are both very close to him”. (I didn’t find the evidence as compelling as the judge did – the first witness had declined to answer the question about what P wanted, and the wife simply responded “yes” (twice) to a leading question.) Counsel for the Trust points out that these two witnesses (unlike the daughter, who says in court that she has mobility issues, which is why she’s attending the hearing remotely) “have seen him, they’ve visited, they’ve been at his bedside”. “More than that,” says the judge, “they know his temperament. And the combination of that and the medical evidence, well, it makes my difficult job as a judge about as easy as it gets”.

The judge calls on the daughter. Does she want to come back tomorrow? She does. He ends the hearing by saying, “Well, we have worked our way substantially to a resolution. Tomorrow morning then at 10.30am”.

In fact, the start of the hearing on 23^rd July is substantially delayed – until nearly noon. It turns out that the son had been unwell during the night, and was discharged from hospital at 3am, causing concern for the family and delaying their attendance at court.

Medical evidence

The lead consultant (attending remotely) gave evidence, having examined P that morning, that his condition is unchanged. He has a Glasgow Coma Score of 8 and no evidence of awareness. He is receiving 21% oxygen (“essentially air”) and there is “a greater than 80% chance” that if mechanical ventilation were removed, he would not need it and would breathe on his own. The daughter is offered the opportunity to ask questions – I didn’t manage to get down everything that she said (and the replies) but here’s my best attempt.

Daughter: I need some explanation, because I do not understand how you managed to calculate that he had a 20% chance of surviving and then to find out through court documents that he had 80% chance. That is a big jump. You are telling me that he’s brain dead even though some parts of his brain are working. My fear was that once he comes off, you guys cannot guarantee as a doctor that he can survive the 10 minutes or 20 minutes it takes to pop him over.

Doctor: We discussed the chances of success at the best interests meeting, but I don’t recall giving a 20% figure at that time. I have checked the records and there is nothing quoting that figure. We did discuss the chances of success or not success and being honest with the family, we did need to say we couldn’t give certainty.

Daughter: I believe that’s misleading us, the family, and now it’s in a document that’s been presented to the judge, and you should have shown it to us.

Doctor: We’ve had six weeks that’s passed since that best interests meeting and during that time we have (missed what was said)

Daughter: You cannot guarantee that he is going to survive when you take him off there. If there’s an 80% chance and he does not survive, how are you going to explain that to us, the family?

Doctor: We will discuss palliative care and how to manage his death in a comfortable and dignified manner.

Daughter: But he will be dead. So he won’t be able to receive that care you put forward for him.

Doctor: He wouldn’t immediately die, and so we would have time to address those end-of-life care needs.

Daughter: But what if he’s gone past the point that you can deliver that care?

Doctor: I would like to reassure you that we deal with these situations, day in and day out.

At this point the judge intervenes. He asks whether the daughter, who has mobility problems, has been able to see P on ICU via a video-link. She hasn’t. He asks the doctor to describe what it’s like for P. The doctor runs through a list of interventions P receives: a pressure alleviating mattress, turning every two hours to prevent pressure sores, a urinary catheter, management of bowel incontinence, compression devices on his legs, medications injected into his stomach each day to prevent blood clots, and suctioning. He has “sympathetic activity” (i.e. activity in the sympathetic nervous system) when he’s turned or suctioned – “rapid heart rate, sweating, contracture movements, all of which look deeply unpleasant”. He says, “it’s distressing to see him on a daily basis in the condition that he’s in”.

The daughter asks if she can say something – the judge tells her “later”, and asks his own question: would P be exposed to a risk of ICU syndrome (probably not due to his lack of awareness). Then he asks “what would be life for P if he comes out the other side?”. The doctor explains that he’d still be dependent on nasogastric feeding and suctioning to help clear secretions, daily bed bathing, barrier cream, and the urinary catheter will stay. The daughter turns away from the camera and puts her head in her hands. Later she turns back and is wiping her eyes. When eventually invited by the judge to speak, she looks upset and says she has now forgotten the question she was going to ask.

Counsel for the Official Solicitor asks the doctor some questions in cross-examination: how often does he see the patient (a minimum of once a week); was there a conversation with the family about terminal extubation on 29^th May, and what were the chances of success then? “What is the use of this?” asks the judge, “hypothetically deriving a percentage risk retrospectively”. The doctor says: “I would have described a position where I thought there was a reasonable chance of extubation being successful, trying to communicate there’s a reasonable chance this will work, and therefore this is something we need to try, but making sure they understand there’s a chance of failure, so they’re not surprised if it doesn’t work”. The judge intervenes: “You may not be aware that now they understand the high probability of success, both [P’s wife] and [P’s son] say that undoubtedly [P] would want to take that risk himself. That really is the end of the case as far as I’m concerned, but we’re just (pause) dotting the I’s and crossing the t’s.”

Counsel for the Official Solicitor has another go at asking a question, but he doesn’t get to finish it. “Do you have an understanding how it is that some members of the family-“. “Mr Lawson, this is NOT helpful”, says the judge. (I suppose the question was headed towards interrogating the 20% success figure that the daughter had previously taken to be correct.)

Asked about the options available to P if extubation were unsuccessful, the doctor is clear that “as you can see from the best interests discussions, tracheostomy is not a treatment that myself or [another intensivist] felt should be offered at that point”. He says it “is not a treatment that would improve P’s neurological situation. It could lead to significant harm, including an uncontrolled death. There’s no benefit, and it could lead to harm, so it is not a treatment we would offer”. The judge asks, “Is it unethical?”. The doctor replies, “Absolutely”.

Counsel for the Official Solicitor pursues the point.

OS: It was on offer earlier, wasn’t it – but not considered to be in his best interests. Is that wrong? Was it not available as an option?

Doctor: When we are explaining treatment options to the family it would be disingenuous not to discuss tracheostomy as a possible treatment, because that’s something they’ll be aware of from the wider community.

OS: Is it right that it wasn’t said to be unavailable.

Doctor: That’s right. We did not say explicitly to the family that it was not available at that time.

OS: You discussed the practicalities of performing a tracheostomy.

Doctor: Time has passed. Tracheostomy won’t lead to neurological recovery. The reason not to do a tracheostomy is because his neurological condition is so severe and so persistent and unchanging and the tracheostomy would not treat it.

OS: Doesn’t a PEG also not support neurological recovery and just maintain the person. It’s intrinsic in one of the options, isn’t it, to discharge to a nursing home.

Doctor: My understanding is that he has a naso-gastric tube which would negate the need for a PEG.

OS: Isn’t it logical that either a tracheostomy and feeding support should be offered, or neither should be offered.

The judge intervenes to stop this line of questioning. It’s not helpful.

Finally, counsel for the OS asked, “Can you help us with your opinion about what other experts in your field, and other units, would advise about available options?”. The doctor replied: “As an intensive care community, given the severity of his neurological injury, its persistence, and failure to improve, the community would support extubation, and if that extubation were to fail, they would support palliative treatment”.

That was the end of the doctor’s evidence.

Daughter’s evidence

Before the daughter gave evidence, the court was told that the second opinion doctor confirmed everything the doctor who had given evidence had said. Then the judge addressed the daughter. Her response, by the end, was surprising.

Judge: Both [P’s son] and [P’s wife] said P would want to take the 80% chance to get off ICU.[7]

Daughter: We would want him to be alive. It would be nice to help him get back to family life.

Judge: I am taking your evidence to help me understand what he would decide for himself. What do you think?

Daughter: He would take that chance, that opportunity.

Judge: I think that’s the end of the matter. If that’s what he would want, that’s what he’s going to get. When every single member of his family tells me he would go for those chances, I couldn’t possibly make any other decision, could I?

Daughter: You are right, Your Honour.

The daughter adds that her sister is also available on the link and would like to give evidence. She does (briefly, and without being sworn in) but there’s interference on the line and I can’t hear what she says. I gather, from the judge’s response, that she supports her sister.

“I’m regard this decision as one of the easier ones that I have to undertake”, says the judge – announcing that (as it’s now 1pm) he will now adjourn and return (briefly) at 2pm. I’m unable to watch the rest of the hearing, but learn from another observer that it was short.

Reflections

I am left with a sense of disquiet about this case. I don’t really doubt that the outcome (withdrawal of the ventilator, followed by palliative care if that’s unsuccessful) was the right way to go – indeed, on the basis of the evidence presented in court, it’s difficult to see how any other outcome was possible, given that this Trust was not willing to offer ongoing treatment and the lead doctor gave evidence to the effect that it was unlikely that “the intensive care community” in any other hospital would provide ongoing ventilation or a tracheostomy (though see footnote 5).

But precisely because there were no other available options before the court, and the outcome seemed a fait accompli, it is hard to see why the hearing was necessary. The judge suggested that the need for a hearing could be argued “either way”, and I understand his wish for compassionate engagement with the family. But since there was apparently no “best interests” decision to make about treatment options, and only one possible outcome, the hearing seemed redundant – at least insofar as Court of Protection hearings are designed to make decisions between available options.

The decision of Hayden J in the GUP case (GUP v EUP & Anor [2024] EWCOP ) – the case cited by counsel for the Trust as a reason for bringing the case to court – appears to directly contradict the approach taken by the Court of Appeal in AVS v A NHS Foundation Trust & Anor [2011] EWCA Civ 7 and the Supreme Court in N v A CCG [2017] UKSC 22. Here’s what two very respected lawyers have to say on the matter:

“.. we remain very doubtful that the Court of Protection is the correct forum for seeking a declaration of lawfulness in respect of a determination that a course of treatment is not clinically appropriate – rather, we suggest that the correct forum is the King’s Bench Division under Part 8 of the CPR, not least so as to avoid the slide into best interests language / analysis that (on one view) took place in Re EUP. We also have squarely in mind the Court of Appeal decision in AVS v A NHS Foundation Trust & Anor [2011] EWCA Civ 7, which made clear that disputes about best interests where the treatment option is not on the table should not be entertained by the Court of Protection” (Alex Ruck Keen KC (Hon) and Tor Butler Cole KC https://www.mentalcapacitylawandpolicy.org.uk/dont-ignore-the-serious-medical-treatment-guidance-but-lets-be-clear-about-what-the-law-requires/)

By the end of the hearing, it seemed as though there was a consensus as to the way forward – with the daughter who had been the most confrontational of the family members explicitly stating that the judge was “right” to make a decision in favour of the Trust’s application. It seemed that the family had been coaxed (if that’s the right word) into recognising that the only available option was what P would want for himself under the circumstances – and if so, that is surely eases their pain in accepting it, though I found the process whereby they were led to this position at times uncomfortable to watch. Reconciling the family to an inevitable outcome must be a good thing and I think that’s what happened, and I have no evidence that they thought anything unfair had taken place in court. I suppose I would have hoped that this could have happened out of court (especially as their opposition seemed based on not having been told – or not understanding – the likely success of extubation: could better communication or mediation have averted the need for a judge to bring about this reconciliation?

The Trust’s decision to make an application for withdrawal of one life-sustaining medical treatment (the ventilator) but not another (the feeding tube) was raised by counsel for the Official Solicitor in his cross-questioning of the doctor, but was cut off by the judge. I would have been interested to hear the Trust response. I presume their decision was entirely pragmatic. As long as P is on a ventilator, he’s stuck in the ICU – which is probably not necessary to sustain his life, is not good for him, and uses a valuable resource that could be made available to someone else with a better chance of recovery. Without the ventilator, P can be moved out to a different part of the hospital and then (if he survives) to a nursing home, and the question of clinically assisted nutrition and hydration can be negotiated (or, more likely, ignored) by someone else. I didn’t see any indication that the family would be likely to agree that withdrawing tube feeding would be in P’s best interests – and raising it now would only add to their distress. If the doctors are right about P’s prognosis, and if he survives extubation but continues to receive tube feeding, he will most likely become another of the many patients being maintained in prolonged disorders of consciousness around the country – possibly, if he breathes on his own better than they expect, surviving for years.

It seems unlikely that the outcome of this case would have been any different if the family had been given the opportunity to instruct a lawyer to argue their case. It felt to me like a forgone conclusion. But at least legal representation would give everyone more confidence in the outcome and it would clearly have been more in line with the requirements of procedural fairness. – though the family members themselves did not seem unduly concerned about this. But at the same time as I want to advocate for P’s family to have legal representation (if they want it), I worry about the price that P might pay in terms of the delay that this imposes – something that was also clearly at the forefront of the judge’s mind in this hearing.

The disquiet I feel about this case is matched by the disquiet I feel about another case concerning a patient in a prolonged disorder of consciousness heard recently by a different judge, Mr Justice Poole^[8]. The facts of that case are very different. The patient had made an Advance Decision to Refuse Treatment (ADRT) which – if valid, applicable, and authentic (all of which the biological family contested) – was a binding refusal of life-sustaining treatment in the very situation he was now in: eventually, the judge ruled that the ADRT was binding, treatment was withdrawn and P died. But it is indisputable that for six months, between January and June 2025, while the court was hearing this case, P received treatment that he had wanted to refuse, and in fact had refused in a binding legal document. Withdrawing the unwanted treatment was delayed by the necessity of court proceedings – and in addition was delayed longer than was justifiable (in my view) by the judge’s scrupulous attention to procedural fairness, with the family given every opportunity to advance their position and pursue arguments which (as far as I know, given that the family refused me access to their position statements) were wholly speculative and lacking in any evidential basis. Procedural fairness may, arguably, in this case, have caused harm to P, by extending the period of time that he was treated against his will.

What concerns me, in both these cases, is the tension between P’s welfare (he shouldn’t be given burdensome treatment, or treatment he’s refused) and the perceived need for a hearing, and for a procedurally fair hearing – which takes time to arrange and is delayed by waiting for parties to find representation, and ensuring that family concerns or accusations are addressed. I acknowledge, of course that P, too, has an interest in the procedural fairness of a hearing, insofar as it is the approach most likely to result in the correct outcome.

I know that judges are aware that P’s welfare and procedural fairness in hearings can sometimes pull in different directions: both Hayden J and Poole J indicated as much in the course of their respective hearings. They resolved it in different ways – perhaps (from my perspective) too quickly in one and too slowly in the other. I suspect there is no one “right” way to resolve this fundamental dilemma.

Footnotes

[1] Over the five years that the Open Justice Court of Protection Project has been in existence, there has never before been any indication in the listing as to what hearings in the Royal Courts of Justice are about – with the sole exception of committal hearings. We welcome this development.

[2] My understanding of this hearing was significantly helped by the fact that, in line with the new guidance from Poole J, both counsel sent me (anonymised) Position Statements before the hearing started. Thank you!

[3] E.g. Re GU [2021] EWCOP 59 and recently in the Family Court, Guys and St Thomas’ NHS Trust v J (a Minor) & Ors [2025] EWHC 1988 (Fam)

[4] According to the position statements, this “daughter” is either an adopted daughter or “not [P’s] biological daughter but identifies as his daughter”.

[5] Over the course of my research with the Coma and Disorders of Consciousness Research Centre, I’ve seen vegetative patient who’ve had tracheostomies for many months or even years in specialist units and nursing homes. A few days after this hearing, I watched a case before Theis J and learnt that the protected party, who is in a vegetative state, used a tracheostomy for more than five months before being successfully deintubated in March 2025. The Trust has now made an application for withdrawal of CANH. (COP 20017687).

[6] “the path of the law…” quoting Megarry J in John v Rees 1970] Ch 345, at 402; “justice is intuitively understood…”, quoting Lord Reed at §68 in Osborn

[7] Actually they didn’t. The son refused to answer the question – on the basis of which the judge inferred that this was the son’s view of what his father would want. I expect the inference is correct, but the inaccuracy jars. The wife simply gave confirmatory responses to a leading question posed by the judge.

[8] See my two blog posts “Determining the legal status of a ‘living will’” and “Validity and applicability of an advance decision to refuse treatment” – and the judgment by Poole J: Re AB (ADRT: Validity and Applicability) [2025] EWCOP 20 (T3)

Open justice isn’t self-executing and here’s the proof: A case that never appeared on the public list and backtracking on a Transparency Order

By Daniel Clark, 31st July 2025

In a speech at the start of June 2025, the Chair of the Transparency and Open Justice Board, Mr Justice Nicklin, remarked that, “we must also recognise that open justice is not self-executing. The principles of open justice must be upheld, on occasions nurtured, and — critically — seen to be upheld.”

This blog provides an excellent example of the fact that open justice isn’t self-executing. If it weren’t for my presence at two hearings, it would have been all-but forgotten.

The case (COP 12999111) is a challenge to the deprivation of liberty of NF, an autistic man who has resided in a care home that, for the last 7 years, has been widely considered unsuitable for him. The applicant, NF, is represented by his litigation friend, the Official Solicitor. The respondent public bodies are Leicestershire County Council and NHS Leicester, Leicestershire and Rutland Integrated Care Board. NF’s mother, LF, is the third respondent, and a litigant in person.

I’ve blogged about the case before here: A judge without a bundle adjourns the case and I knew from prior observation that the judge had listed a next hearing for Thursday 12^th June 2025 at 3pm.

The details of the substantive issues in this case will follow in a future blog. Here, I’m concerned only with the transparency failings of the case: in relation to listing, and in relation to the shambolic handling of the Transparency Order that erroneously prohibited the identification of Leicestershire County Council.

In his book The Rule of Law, Lord Bingham, a former Law Lord who was instrumental in the creation of the Supreme Court, comments that, “belief in the rule of law does not import unqualified admiration of the law, or the legal profession, or the courts, or the judges” (p9).

I have no doubt that some people reading this blog will think it is unfair of me to be critical – that court staff, members of the judiciary, and lawyers are all working very hard under serious time and resource pressures. That’s true, and I don’t dispute it.

But when failings occur, and they clearly have done here, it’s fair that we highlight them, and ask “why?” That’s exactly what this blog does – though unfortunately I don’t have an answer to that question. That’s not for lack of trying. As I go on to say below, no explanation has been forthcoming.

First, I discuss the fact that this hearing never appeared in any public listing. If I hadn’t observed the case a week before, I would have had no way of knowing that it was back in court.

Second, I show that the judge remade the Transparency Order so as to ban identification of Leicestershire County Council – despite a successful application 6 months earlier to lift that ban. This was done without notice to me or to Celia Kitzinger (who had made the initial application to lift the ban). It was an outrageous derogation from the principle of open justice, and resulted in me having to make a new application to vary the Transparency Order so as to be able to name Leicestershire County Council.

1. This hearing never appeared in any public listing

The only reason I knew about the hearing on 12^th June 2025 was because I had happened to be present in court on 3^rd June when the judge set that date for a hearing in Derby County Court.

The hearing on 12^th June wasn’t included (at all) anywhere on CourtServe. It wasn’t in the Court of Protection list. Nor was it on the Derby Daily Cause List. Of course, I can’t show something that wasn’t there – but I can show where the case should have been.

First, the Court of Protection list. There was only one case listed for hearing in the Derby Court of Protection list – you can see that here because Derby only has one entry.

For the avoidance of doubt, here’s the only case publicly listed for hearing in Derby on 12^th June 2025 – and it’s not the hearing I was looking for ( COP 12999111).

Sometimes, Court of Protection cases are in the local court’s Daily Cause List as well as, or instead of, appearing in the Court of Protection list. So, I looked there too, and could see that HHJ Williscroft was predominantly presiding over family court cases on the 12^th June 2025. Here’s her published list for that date:

Note the absence of any Court of Protection hearings, let alone the one I was hoping to observe.

Given that 10 days had gone by since the judge first set down the case for hearing, giving what I assume to be plenty of time for it to be included in the list, I find it inexplicable that it wasn’t listed.

I emailed the court asking if it was still going ahead. I didn’t receive a direct reply to my email but instead received the remote Teams link.

I asked again if it was definitely taking place. given that it hadn’t been listed. By way of confirmation, I was then forwarded an email sent on 2^nd June 2025, which made quite clear that the case had been adjourned on that date for relisting on 12^th June 2025. That’s how court staff at Derby knew to send me a link.

What on earth went so wrong? Was this some sort of conspiracy to exclude observers or was it an administrative cock-up that nobody wanted to acknowledge?

In an attempt to find out, I sent an email to the Birmingham hub on Monday 16^th June 2025. Here’s what I said:

Good morning,

I am writing with regards to the above case which was heard before HHJ Williscroft on Thursday 12th June 2025 at 3pm.

I knew that this case was being heard on this date because I had observed a hearing/meeting on 2nd June 2025. However, the case was not listed in either the CourtServe Court of Protection list or the Derby Daily Cause List. This means that, but for my prior knowledge, the case would have essentially been heard in private.

I am going to write a blog about this case, and I will discuss the listing issue in that blog. However, I am keen to offer a balanced view. As such, please could somebody let me know why this case was not in the public lists? I am intending to publish a blog soon so I would appreciate it if somebody could please get back to me by midday on Friday 20th June 2025.

Thank you for your support of open justice.

Kind regards,

Daniel Clark

I did not receive a response but, wanting to give a fair opportunity to reply, I chased it again at 1pm on Friday 20^th June. I have still not received a response, which has done nothing to allay my fears that this is not an isolated event.

2. The judge remade the Transparency Order so as to ban identification of Leicestershire County Council – despite a successful application 6 months earlier to lift that ban

Transparency Orders are injunctions made by the court intended to protect the identity of the protected party (P) from becoming widely known. They balance two articles of the Human Rights Act: a right to privacy (Article 8) and a right to free expression (Article 10). You can see the ‘standard’ Transparency Order template here: https://www.judiciary.uk/wp-content/uploads/2017/11/cop-transparency-template-order-for-2017-rules.pdf

Transparency Orders rarely anonymise public bodies because they are funded by taxpayers, and therefore accountable to the public. They cannot truly be held accountable if they act in secret.

Sometimes P will be well-known in her or his local area, and there is a real risk that identifying the public body will lead somebody to be able to identify P. This is incredibly rare and, in my experience, agreeing not to report certain salient facts about P means that judges are content for us to report the name of the relevant public bodies.

I have written about this at greater length in this blog: Prohibitive Transparency Orders: Honest mistakes or weaponised incompetence? (see the first section: “What are Transparency Orders?”)

The OJCOP Project already had some experience of the Transparency Order in this case after Celia Kitzinger attempted to observe an earlier hearing on 26^th June 2024. She missed the opportunity to observe it because the time of that hearing was brought forward (from 3pm to 11am) and nobody told her until after the hearing had taken place (another derogation from transparency in this case). She was, however, sent a copy of the Transparency Order (issued by DJ Revitt on 1^st March 2024) and noted that it prohibited the identification of the local authority (see §6(i)(c) below).

Subsequent to Celia’s application, the Transparency Order was amended (though nobody had apparently thought to tell Celia). I know this because at the hearing on 2^nd June 2025, I received a new TO issued by HHJ Chatterjee some six months after Celia’s application (on 10^th December 2024) and it omitted the prohibition on naming the local authority that had previously featured as §6(i) (c) (see below).

So far, so good.

But then, on the date of the next hearing a week later, 12^th June 2025, when I was sent the Transparency Order again, I noticed that the file name included the date it had been issued (9^th June 2025). I took this to mean that the judge – HHJ Williscroft – had amended it. She had. She had REINSERTED §6(I)(C) – THE BAN ON NAMING THE LOCAL AUTHORITY. Here’s how it now read:

For the avoidance of doubt, I haven’t accidentally repeated the image from the initial Transparency Order. What had happened was that the judge had reverted the Transparency Order back to its original format.

This seems extraordinary. It means that after a successful COP 9 application to vary the TO so as to support transparency, the court had quietly –without notifying Celia whose successful application it was – varied it back again to prohibit naming a public body. Celia was not informed, or given any opportunity to state (or restate) her arguments to the court. If I had not attended this hearing, and been sent the revised (more prohibitive) TO, we would never have known.

I was outraged at this derogation from the principles of open justice. There may well have been a good argument for why Leicestershire County Council should not now be named – but these arguments should have been set out in open court, and not done in secret.

What exacerbated the problem was that I had already published a blog about this case. It had been written in accordance with the earlier Transparency Order, amended in the way that Celia had successful applied for. As a result, I had named Leicestershire County Council as a respondent.

Here’s what I said in my email to the judge:

Dear Judge,

I am writing with regards to the Transparency Order in COP 12999111, which I understand to be before you at 3pm today.

§(10)(i) states that “any person affected by this order may apply to the court for an order….that…varies…this order or any part or parts of it”. I would like to request a variation to this Order such that §6(i)(c) “a local authority (who the court has so identified to the parties in private) has taken a part in / or been referred to in these proceedings” is removed from the list of prohibited information.

This Transparency Order was dated and issued on 9th June 2025. Prior to the hearing on 2nd June 2025, I was sent a Transparency Order that was issued on 10th December 2024 by Her Honour Judge Chatterjee. That Order, which is attached to this email, did not prohibit identification of the local authority. It is my understanding that the Transparency Order dated 10th December 2024 was a result of a request to vary an earlier version that had prohibited the identification of the local authority involved in the case. My colleague, Celia Kitzinger, had requested the Order be varied so that the local authority could be identified, and this request was granted by the judge (resulting in the Order issued 10th December 2024).

As a result of the fact that the Transparency Order dated 10th December 2024 contained no prohibition on the identification of the public bodies, I included the name of both the local authority and ICB in a public blog: A judge without a bundle adjourns the case.

In Re BU [2021] EWCOP 54, the Honourable Mrs Justice Roberts commented that, “the court cannot and should not make reporting restriction orders which are retrospective in their effect” (§109). I am concerned that the Transparency Order dated 9th June 2025, which I was only sent today, is retrospective in its effect.

I understand that, after careful balancing of the relevant Article 8 and Article 10 rights, the court may decide that it is proportionate to prohibit the identification of a public body in order to safeguard the Article 8 rights of the protected party. However, I did not hear any argument to this effect on 2nd June 2025. If that argument had been raised, I would have requested permission to raise this during the hearing.

If a party has raised concerns that the identification of the local authority may lead to the identification of the protected party in this case, I would like to please make submissions on this point.

Kind regards,

Daniel Clark

Expecting to have a fight on my hands, I also put together a chronology of events since June 2024. Here are the transparency failings laid bare:

26th June 2024 – Celia Kitzinger is sent the Transparency Order (TO) for a hearing before District Judge Revitt. The TO prohibits identification of the local authority (LA) at §6(i)(c) – “a local authority (who the court has so identified to the parties in private) has taken a part in / or been referred to in these proceedings”. It clearly refers to a hearing set down for 26th June 2024. The public bodies are anonymised on the face of the Order. Celia requests that it is varied. Celia wasn’t told until 14:42 that the hearing time had changed from 15:00 to 11:00. This means she was unable to observe.

11th July 2024 – Celia receives an email from the court. DJ Revitt has said, “I propose to amend the order, but subject to any specific objections from the parties within 7 days”.

We don’t know what happened between July and December.

10th December 2024 – Her Honour Judge Chatterjee issues a TO that does not prohibit the identification of the LA.

2nd June 2025 – I request to observe a hearing at 10am. I am sent the TO issued by HHJ Chatterjee.

9th June 2025 – Her Honour Judge Williscroft issues a new TO that prohibits the identification of the LA at §6(i)(c) – “a local authority (who the court has so identified to the parties in private) has taken a part in / or been referred to in these proceedings”. It clearly refers to a hearing set down for 12th June 2025. The public bodies are not anonymised on the face of the Order.

11th June 2025 – A blog is published about the events of 2^nd June 2025. This names the LA. I am unaware of the new TO issued by HHJ Williscroft. Neither the Court of Protection nor Derby Daily Cause list include the case for 12^th June.

12th June 2025 – The case still has not appeared in the Court of Protection or Derby Daily Cause list but it is confirmed, via email, that it is taking place. I receive the TO issued 9th June 2025, and request that it is varied.

Just as I was about to send this chronology for the urgent attention of the judge, I was sent the Transparency Order issued by HHJ Chatterjee – the one that didn’t prohibit identification of Leicestershire County Council. The email said, “HHJ Williscroft has asked the attached order be sent to the attendees of today’s hearing.”

My hopes that an explanation would be forthcoming were quickly dashed. HHJ Williscroft apologised at the start of the hearing, saying that she was new to the case, “trying her best”, and had been told (I think – it was quite hard to follow what she was saying) that anonymity needed to “lifted”. I assume the judge misspoke: if she’d been told that, the Order wouldn’t have been amended so as to re-introduce a prohibition on identifying the local authority.

The judge didn’t seem even to entertain the possibility that the local authority shouldn’t be identified. After a brief discussion of whether she should revoke her Order of 9^th June 2025 or write a new one, she said she would deal with this after the hearing – time was short, and she needed to focus on the substantive matters of the case.

But that means that what had happened on the transparency front remains entirely unexplained.

Why had the judge remade the Transparency Order so as – effectively – to revert to the earlier version that Celia had successfully challenged?

As I see it, there are two possible explanations. The first is that this is a simple clerical error; somebody sent a “revised Transparency Order” to the judge, not realising that the offending section was still there, and the judge approved it without checking.

The second is that this was no mistake. Instead, this was a purposeful attempt, by somebody acting for one of the parties, to set aside open justice principles without having that argument in open court.

This second version of events assumes a hypothetical person who assumed that the judge wouldn’t notice that she was re-inserting into the Transparency Order a prohibition on naming Leicestershire County Council. That wouldn’t be an unreasonable assumption because the judge didn’t realise the mistake until I pointed it out.

In a recent blog about failures of transparency in another case, Celia Kitzinger wrote: “the problem is that there are just so very many transparency failures. Adherence to the view that the Court of Protection is basically striving for transparency requires us to believe in cock-ups on an industrial scale.” When I first read those words, my thoughts immediately went to the case that this blog has been about.

I try not to think of mistakes like this as part of a wider conspiracy to maintain a secretive court. But when there are two serious issues with transparency – the Transparency Order and the listings issues – in the same case (three if you count the change of time that meant Celia missed observing the earlier hearing) and nobody seems willing to offer a proper explanation for how they happened, what else am I to think?

Whatever the explanation, I am deeply concerned that this is not an isolated incident. It now seems that there’s a possibility in other cases that variations to Transparency Orders we thought settled have been reversed either by accident or design.

Celia Kitzinger also shares my concerns. She told me: “This account raises the spectre of my hard work in making the successful application for varying the TO simply being undone a few months later, at a subsequent hearing. And it’s all-too-believable that this might be happening because (in my experience) judges pay very little attention to TOs and don’t know what they’re (metaphorically) signing off on. It’s part of the general (albeit understandable) focus on substantively doing justice rather than facilitating the watching of justice being done. I am particularly outraged that a TO which I’ve made a successful application to vary can just be switched back to how it was before BEHIND MY BACK as it were, without notification to me that it’s being done, and without the opportunity to challenge it. It does make me think “what’s the point?”. If you hadn’t been there, I’d never have known. “

In his June 2025 speech, quoted at the start of this blog, Mr Justice Nicklin began with a simple question: “If justice is done, but no one sees it, can we truly say it has been done?”

But for my prior knowledge of this case, justice would not have been seen to be done. With regards to the Transparency Order, it would not have been done at all.

Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He is on LinkedIn, X @DanielClark132 and Bluesky @clarkdaniel.bsky.social.

Litigation Capacity, Luba Macpherson and the court’s engagement with a ‘persistent’ litigant

By Claire Martin, 30th July 2025

Luba Macpherson^[1]is a woman with strongly held views regarding the care and treatment of her daughter. The Open Justice Court of Protection Project has published several blogs about the case, most recently this blog by Amanda Hill: ‘Strongly held beliefs do not equate to lack of litigation capacity: Judgment concerning Luba Macpherson’s appeal against committal to prison’. I quote the blog at length below to summarise the case history and current situation:

“Luba Macpherson has been involved as a party (sometimes as a litigant in person, sometimes with legal representation) in a long-running Court of Protection case concerning her daughter, referred to as “FP” in the judgments, who has been diagnosed with paranoid schizophrenia. Luba’s daughter lives in a care home and Luba believes she is being abused and is being given medication that is making her symptoms worse. She has regularly communicated her views on these matters to her daughter, with the result that the court has authorised various forms of contact restrictions (and at times a total ban on contact). More detail is available in a published judgment (SCC v FP and others [2022] EWCOP 30) and in a previous blog about this case: An ‘impasse’ on face-to-face contact between mother and daughter.

During the proceedings concerning Luba’s daughter, the Court of Protection judge, Poole J, made an injunction prohibiting Luba from posting material about FP on the internet. […] After Poole J made this injunction, Luba continued to post material about FP on the internet (she still does). Her rationale for breaching the injunction is that the court is engaged in a cover-up. […]

In January 2023, Poole J found Luba in contempt of court for having breached his injunctions by posting material about her daughter online. The judge imposed a suspended 28-day sentence (judgment here [2023] EWCOP 3). We’ve also blogged about it: “A committal hearing to send P’s mother to prison”).

Luba appealed against this 28-day suspended sentence. […] Her 4^th May [2023] appeal was dismissed.

After having received a suspended 28-day sentence, and after her appeal against it was dismissed, Luba continued to post videos and other material about her daughter. The local authority issued fresh committal proceedings – although by now Luba had relocated to France, where she was outside the jurisdiction of the court. Since Luba declined to return to the UK for the contempt hearing, the judge made a warrant for her arrest. At a hearing on 22^nd January 2024 (which Luba attended remotely from France), Poole J imposed an immediate 3-month sentence for the new breaches, plus the 28-day sentence from January 2023, making a total of 4 months of imprisonment. We blogged about that hearing too: “Warrant for arrest of P’s mother”).

Luba wants to appeal that judgment (sending her to prison for 4 months) in the Court of Appeal. She filed her application to appeal a long time ago, on 21st March 2024, but it’s still not been heard. First there was a delay in securing legal aid, and then a delay due to a failed attempt to secure a transcript of the committal hearing. Most recently, the appeal has stalled altogether due to Luba’s own legal team having raised concerns that their client lacks capacity to litigate. ”

The question of whether or not Luba has litigation capacity was referred back to the Court of Protection to determine.

So, in the past year, Luba has herself become a protected party ( ‘P’) in the Court of Protection, with her capacity to litigate questioned by her own lawyers. Amanda has reported, in detail, on the Court of Appeal hearing regarding committal (3^rd December 2024) and the Court of Protection hearing regarding litigation capacity (which was heard on 30^th April 2025 by Mrs Justice Theis).

In this blog, I want to think about what is meant in general by litigation capacity and explore the trajectory of Luba’s case with reference to wider issues, such as the ‘protection imperative’. I have structured the blog as follows:

How did it come about that Luba’s capacity to litigate was questioned?
What is meant by capacity to conduct proceedings?
Concerns about Luba’s behaviour and conduct earlier in the proceedings
The protection imperative
Reflections

1. How did it come about that Luba’s capacity to litigate was questioned?

I’ve followed this case with interest^[2]and have witnessed Luba Macpherson’s grit and resilience throughout. It’s evident that Luba is passionate in the defence of her beliefs about what is the best and most appropriate care and treatment for her daughter, her beliefs about the legal and healthcare systems swirling around both of them, and, recently, her assertion of her own capacity as a litigant in person.

One feature of the case has been how Luba herself (and her mental health) has been characterised by others over the course of the hearings – culminating in the claim that there was reason to believe that she lacks capacity to conduct legal proceedings.

On the face of it, it seems odd that Luba’s capacity to conduct proceedings has recently become an issue. After all, she has engaged with the court across multiple hearings, over many years, beginning in 2018: first in hearings about the best interests and care of her daughter, and then about contact with her daughter (see the judgment of HHJ Moir in October 2020 ([2020] EWCOP 75); and latterly in relation to contempt of court (see Poole J’s judgments: at [2022] EWCOP 30 and at [2023] EWCOP 3 ; the Court of Appeal judgment 2023 [2023] EWCA Civ 574) and a committal hearing (see Poole J’s committal order [2024] EWCOP 8). At some of these hearings, over many years, Luba was a litigant in person, at others she instructed lawyers to act for her.

And then, after around six years of litigation, on 6 November 2024, her lawyers became concerned about her capacity to conduct the proceedings (which now constituted an appeal against her sentence for contempt of court). I don’t know the basis for that concern but according to Law Society guidance on ‘What should I do if my client loses capacity?’ the lawyers had a duty to act: “Under paragraph 3.4 of the SRA Code of Conduct for Solicitors, RELs and RFLs, you must consider and take account of your client’s attributes, needs and circumstances. If you’re not able to form a view about the client’s capacity or an assessment is required for court purposes, such as an application to the Court of Protection, you should seek the opinion of an appropriately skilled and qualified professional.”

So, they took their concern to the Court of Appeal who authorised an expert (Dr Pramod Prabhakaran, a psychiatrist) to undertake a paper-based assessment of Luba’s capacity to conduct proceedings (since she declined to participate in a face-to-face assessment).

That led in turn to a Court of Appeal judgment in 2024 which found “reason to believe” that she lacked mental capacity to conduct the proceedings. The Court of Appeal referred the matter of Luba’s litigation capacity back for the Vice-President of the Court of Protection (Theis J) to determine, with Luba now as a ‘protected party’ pending that decision (see the Court of Appeal judgment of King LJ [2024] EWCA Civ 1579).

After considering the evidence, Mrs Justice Theis found Luba to have capacity to conduct the proceedings in the Court of Appeal (and, retrospectively, that she’d had capacity to conduct proceedings at the contempt hearings the judgments from which she was now appealing [2023] EWCOP 3).

I’m not surprised at the finding that Luba Macpherson has capacity to conduct legal proceedings. I was surprised that her capacity was questioned. At all the hearings in this case that I’ve observed, I have witnessed Luba expressing herself articulately and forcefully. At times she’s been unwilling to accept and comply with the usual etiquette of the court – which is in any case opaque to many litigants in person. She’s frequently been told by judges that she’s interrupting them or presenting arguments not germane to the issues before the court. She has her own views on the court process, and on what the relevant issues are for her daughter’s care, and has openly (on social media) described the courts and judiciary, Local Authority and care system as ‘corrupt’.

She has posted prolifically on social media about her outrage regarding the entire court, health and social care system – and she’s developed networking skills to build links with other justice campaigners and has attracted many supporters (see sample social media posts below).

Views like Luba’s are shared by others and are, arguably, more likely to form in response to situations and systems in which people feel controlled or find themselves positioned on the ‘wrong side’ with powerful state agencies in opposition to them.

Many individuals and families feel similarly to Luba and believe that our statutory systems of health and social care, and the justice system, do not properly listen to them, pathologise their beliefs and values, or blame them when they complain, campaign or enter into (persistent) disputes with those systems of care.

In July 2021, Leeds University published a report – Institutionalising parent carer blame – which – although referring to parents of disabled children (Luba’s daughter is an adult) – has relevance in general to how parents might be cast when there are disputes with statutory agencies. The report says that:

‘National and local social care policies in England create a default position for those assessing disabled children, that assumes parental failings. This approach locates the problems associated with a child’s impairment in the family – a phenomenon referred to in this report as ‘institutionalising parent carer blame’ ‘(para 1.04).

I have observed other cases – most notably that of Laura Wareham (see this blog for example: ‘The point is this – she is scared and vulnerable’: Judge about Laura Wareham) – where families are at loggerheads with services and are cast as vexatious or unreasonably ‘persistent’ in their complaints about health and social care bodies, which in itself can then be seen as the problem. As the Leeds University report says, problems associated with the child’s difficulties can often be ‘located’ in the family.

That is not to say that families (or family members) are never abusive or neglectful (or both) to their relatives. That would be an obviously nonsensical position to take. However, I would assert that most families, most of the time, aim to do what they think is the best thing for their relatives. And they also, often, know best the person receiving care, and have the biggest investment in their wellbeing as a loved family member. When their views on what is best differ from those of services, the significant power imbalance (between the system and those on the receiving end) often becomes evident, arguably with those at the ‘powerful’ end employing their arsenal in efforts to exert control, dominance and ‘expert’ clinical or legal authority.

Such power dynamics might not always even be in response to purported wrongdoing on the part of relatives. In a very recent blog (“Perhaps the most contentious matter is the question of his social media and internet access.” But who is the decision-maker?) about a long-running case concerning a young man, XY, whose family members are deputies for his care decisions, there was a sudden and unexpected ‘veiled threat’ from the judge regarding the court’s powers to revoke deputyships, despite there never having been a suggestion that this particular family was acting in any way improperly. Daniel Clark notes:

“As far as I am aware, no party is suggesting that XY’s deputies are acting other than in his best interests. […]

The fact that the judge chose to go down this path left a sour taste in my mouth. It seemed to be a thinly veiled threat that proceeding with the application runs the high risk of the deputyship being revoked.

Of course, what the judge was saying is technically true. The court can, of its own motion (without being asked), make an order that it considers to be proportionate and necessary. One of those orders is the revocation of a deputyship.

This, however, misses the point.

Given the fact that this was not foreshadowed, the exchange felt more like a hostile assertion of asymmetric power dynamics. The not-so-implicit message was, “I have the power here – don’t get on my wrong side”. That it was directed (through counsel) at family members was shocking enough. From what I’ve seen, the family have only acted in XY’s best interests (including issuing these proceedings in the first place). This made it even more shocking.”

There are a lot of people who feel wronged by our statutory systems, and many say so loudly on social media. And of course, there will be many people who work in those systems who, individually, try their best and aim to do a good, person-centred job, but when there are multiple agencies and systems of control, decision-making and care interacting and trying to work together (or not) the effects on people and their families who need those systems the most might not be experienced as benign and compassionate, let alone fair.

Although those (in the ‘system’) who disagree with them might describe their views colloquially as “unhinged” or as “wild conspiracy theories” or “delusions”, this does not translate into a medical or mental health diagnosis of the kind that might qualify as an “impairment of, or a disturbance in, the functioning of the mind or brain” for the purposes of finding a lack of capacity. And further, ‘persistence’ in itself does not necessarily mean that the person is wrong about whatever they are persistent about. For embattled systems of care and courts with enormous backlogs, it’s possible to see how those ‘persistent’ people (and I do not mean those who are truly abusive to those they care for) can be framed as the problem, rather than the systems they are caught up in. Systems are made up of people, and people (in general) don’t like to be criticised, stood up to or made demands of. Arguably, however, ‘people’ making up our statutory care systems are in exactly the roles where those experiences should be expected (even welcomed) with equanimity, even when we are (individually) ‘trying our best’ and intentions are good.

How did it come about that Luba’s capacity to litigate was questioned? Perhaps this wider cultural context can offer some understanding of how systems can respond to experiences of significant challenge.

2. What is meant by ‘capacity to conduct proceedings’ and how was this applied in Luba’s case?

In her judgment determining that Luba Macpherson had litigation capacity, Mrs Justice Theis referred to a recent (2025) case heard by the Court of Appeal (I’ll call it the ‘Johnston case’):

§27 The case law regarding capacity has recently been set out by Baker LJ in Johnston at [38] – [43]. That was a case that involved capacity to conduct current and past proceedings. He referred to the two stage test in A Local Authority v JB [2021] UKSC 52 at [66 – 79]. The first question to be asked is whether P is unable to make a decision for himself in relation to the matter. If so, the second question is whether the inability is because of an impairment of, or a disturbance in the functioning of the mind or brain. The second question ‘looks to whether there is a clear causative nexus between P’s inability to make a decision for himself in relation to the matter and an impairment of, or a disturbance in the functioning of, P’s mind or brain’. The Supreme Court was clear at [79] that the two question [sic] should be approached in that sequence.

So, capacity to conduct proceedings must be presumed. It’s displaced if, on the balance of probabilities, the evidence is that the person is not able to understand, retain, weigh, and communicate the information relevant to the decisions that need to be made in order to conduct proceedings – and if that inability is caused by an impairment or disturbance in the functioning of the mind or brain.

The test of capacity needs to be applied in that order – first the functional test (can the person understand/retain/weigh/communicate the relevant information?), then the diagnostic test (is the inability caused by an impairment or disturbance in the functioning of the mind or brain?)

So, what does a person need to understand/retain/weigh in relation to determining litigation capacity? In the Johnston case, the judgment records:

§40…. the leading common law authority on capacity to conduct proceedings was Masterman-Lister v Brutton and Co and another [2002] EWCA Civ 1889 in which Chadwick LJ said, at paragraph 75: “For the purposes of … CPR 21 – the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings.”

What might be the ‘issues on which his consent or decision’ are necessary? The GOV.UK Certificate: Capacity to Conduct Proceedings states:

‘To have litigation capacity the party or intended party must:
• be able to understand the information relevant to the decisions arising during the course of the proceedings (including legal advice); this means being able to understand with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which their consent or decision is likely to be necessary in the course of those proceedings.
• be able to retain that information for long enough to make a decision about it,
• be able to use or weigh that information as part of the process of making the decisions, and
• be able to communicate their decision (whether by talking, using sign language or any other means) – this is intended to apply to those who are unable to communicate at all, for example because they are unconscious or in a coma.

Please note:
• legal proceedings are not simply a question of providing instruction to a lawyer and then sitting back and observing the litigation, but rather a dynamic transactional process, both prior to and in court, with information to be recalled, instructions to be given, advice to be received and decisions to be taken, potentially on a number of occasions over the span of the proceedings as they develop;
• the information relevant to the conduct of the proceedings includes the reasonably foreseeable consequences of deciding one way or the other, or failing to decide at all;
• a person should not be held to be unable to understand if they can understand an explanation of the relevant information in broad terms and simple language;
• a lack of capacity cannot be established merely because of a person’s age or appearance or their condition or an aspect of their behaviour.

The relevant information which a party or intended party would need to be able to understand, retain and use or weigh may include:
(a) how the proceedings are to be funded;
(b) the chances of not succeeding and the risk of an adverse order as to costs;
(c) the sorts of decisions that may arise in the litigation;

And: ‘Capacity to conduct the proceedings would include the ability to give proper instructions for and to approve the particulars of a claim, and to approve a compromise. To be able to approve a compromise, a party or intended party would need insight into the compromise, an ability to instruct solicitors to advise them on it, and, if solicitors are instructed, an ability to understand and weigh their advice.’

How might these requirements have applied in Luba’s case?

First the functional test. In her judgment, Theis J quotes Baker LJ from the Court of Appeal hearing for Luba on December 3^rd 2024:

“So far as the functional test found in section 3 of the Mental Capacity Act is concerned, Dr Prabhakaran concluded that there was no evidence to suggest that the Appellant could not understand or retain information but that: “due to her firmly held beliefs which persist despite evidence against these, on balance, her ability to use and weigh up information relevant to the court proceedings is likely to be affected as a result”. Therefore, he said, on the balance of probabilities she was “unable to make decisions regarding the conduct of these proceedings“.

So, the expert psychiatrist’s view rested on the assertion that Luba lacked the relevant capacity to ‘use and weigh up information relevant to the court proceedings’. In an interesting (2012) paper (‘Unreasonable reasons: normative judgements in the assessment of mental capacity’) the author argues the following in relation specifically to ‘weighing’ information:

“The major conceptual flaw in cognitive accounts of capacity is that underpinning the assessment of the descriptive criteria for capacity is an intrinsically normative judgement. Specifically, assessing the criterion of using, weighing or balancing information involves the clinician making a judgement that hinges upon whether the patient is appropriating and using the information given in the way that he, in a sense I will seek to clarify, ought to. Importantly, this sense of how the patient ‘ought to’ use information is open to interpretation by clinicians, and it is my contention that this is what gives rise to disagreement in difficult cases”

In the conclusion, the author says “I suggest that clinical judgement is enhanced by recognizing that it involves navigating a complex encounter in which clinicians play an active role, not as impartial observers of cognitive functioning but as participants in judgement guided by normative assumptions about what it means to engage successfully in a decision-making process.” This is the opposite of a belief that capacity for a decision is a fixed entity and resides ‘in’ a person; instead framing ‘capacity’ as a dialogical process, which I think was the spirit of the MCA 2005 which emphasises the importance of facilitating understanding as much as feasibly possible, and truly accepting different values and beliefs.

In relation to the diagnostic test for Luba, Dr Prabhakaran’s evidence was that “on the balance of probabilities the information available suggests the “possibility of a delusional disorder”.’ (Court of Appeal, quoted in Theis J judgment §17)

Given the complexities of assessing capacity, I wonder whether Luba being judged (in a paper-based assessment) as not weighing up and using the relevant information in a normative way (as she ‘ought to’) contributed to the conclusion of a delusional disorder.

The Court of Appeal then made an interim declaration that the Court had ‘reason to believe that the Appellant lacks capacity’, referring the determination on litigation capacity back to the Court of Protection. Theis J, in her Court of Protection judgment, was clear:

§25 I have carefully considered the written submissions submitted by Ms Macpherson. They are comprehensive and she was able to set out her position in relation to the second report from Dr Prabakaran in good time, despite the late filing of his report. Her questions of Dr Prabakaran were mainly relevant and pertinent.

One of the submissions advanced to evidence Luba’s lack of litigation capacity (from Oliver Lewis, who – at the litigation capacity hearing before Mrs Justice Theis on 30^th April 2025 – represented Luba via the Official Solicitor at the invitation of the Court of Appeal) related to her ‘persistent’ attempts to reopen the case regarding her daughter. The judgment states:

“More recently, he submits, she has persistently attempted to reopen the substantive Court of Protection proceedings concerning her daughter at a time when she knew the Official Solicitor had been invited to act as her litigation friend. This evidences, he submits, her inability to use and weigh information in the context of an ongoing process with the need to provide instructions on an ongoing basis. ” (§34)

However, Theis J. found that the making of repeated applications does not demonstrate lack of capacity. In this paragraph [§56 (6)] of the judgment, she says:

“I have weighed in the balance the point made by Mr Lewis that Ms Macpherson has continued to make applications. That is not unusual behaviour with litigants who, like Ms Macpherson hold strongly held beliefs. It does not equate with lack of capacity on its own and can be managed by the court through the exercise of appropriate case management powers.”

Indeed. There are very many people who believe that justice is not being carried out, and for some it can feel like a life-or-death situation for them or the people they love, or a cause that they believe in passionately. Why shouldn’t they take advantage of a legal system which allows them to ‘persistently’ pursue their concerns? And to ‘equate with lack of capacity’, as Mrs Justice Theis states above, is curious. In whose interests would it be useful to equate multiple applications with lack of litigation capacity? Luba has become quite an inconvenience for the court and she won’t be silenced – if she were deemed to lack mental capacity to litigate, the optics would be very different. It is perhaps tempting to pathologise someone whose views are simply not shared by ‘the system’, and who will go to the ends of the earth to make their case and have it heard to their satisfaction. That doesn’t mean, though, that they lack the capacity to make that case.

3. Concerns about Luba Macpherson’s behaviour and conduct earlier in the proceedings

Theis J acknowledged that Luba’s “behaviour and conduct” (§53) had been described in various judgments, by different judges, over the years before January 2024, in ways that clearly show the judge(s) were concerned with how Luba was engaging with court proceedings. At first, largely in relation to the way her behaviour affected her daughter (HHJ Moir), then with additional concern about Luba’s own mental health status (Poole J) and latterly with the focus on Luba herself (Theis J). But none of the judges (or lawyers, including her own legal representatives when she had them), at those moments in time, explicitly suggested that this was evidence that she might lack litigation capacity.

In her judgment dated 21^st October 2020, HHJ Moir made findings that Luba lacks “a basic understanding” of her daughter’s mental illness and communicates “negative critical thoughts” to her in sometimes “abusive” terms. She “attempts to challenge FP’s medication and has interfered with FP’s medication to the detriment to FP” (§29). The judge reported that Luba was said to “regularly disregard professional advice and standards. [She] constantly challenged health advice and instruction from professionals designed to promote FP’s wellbeing” (§46) and has been “obstructive” (§47). ‘FP’ are the initials given to Luba’s daughter in the judgments.

In the earlier judgments, Luba is anonymised as “RT”, which I have replaced with “Luba” in the quote below to help the reader.

Noting “in court that [Luba] could become very agitated and voluble” (§113), HHJ Moir says in her (2020) judgment:

“§81 In her oral evidence before me, [Luba] made her views clear. She told me: ‘FP has been tortured and abused for years’, that the fluctuation in FP’s mental state was because her medication was not properly reviewed. [Luba] referred to the conspiracy between the doctors and the nurses to experiment with FP’s medication. She told me the Social Services influenced the hospital:

“The social worker interferes, tittle tattle again, turning the nurses against me. I’ve been through so much. They are just bullies. They put me through daily stress. I have been deliberately aggravated. I have been excluded. I have had aggravation since day one. I don’t know why. Statements by the social workers are not accurate; they are just not. They are a lot of lies. I just try my best for my daughter. I have not done anything wrong”.

There is no recognition of the effect her behaviour has upon other people, including FP, or any acceptance of any responsibility for the distress occasioned to FP by reason of the high expressed emotion, referred to by Dr Ince, on [Luba’s] behalf.”

After HHJ Moir’s retirement, the case was heard by Mr Justice Poole.

By 2022/2023, the focus of hearings had shifted from concerns about Luba’s contact with her daughter (which had led the judge to make contact restrictions) to the fact that – in contravention of an order forbidding her from doing so – Luba was posting videos and photographs of her daughter on social media (sometimes apparently also featuring the care staff) and publicly naming her daughter. Although Luba was posting this material as part of her campaign to demonstrate how her daughter was being harmed by professionals, the judge’s view was that these published recordings “disclose conduct that is harmful to FP. The Defendant manipulates conversations with her vulnerable daughter and feeds her the line that she is being harmed by those caring for her and by her medication. Since FP has paranoid schizophrenia and believes she is being persecuted, the line fed to her by the Defendant is particularly dangerous to the mental health of her daughter” (§54 Poole J’s January 2022 judgment [3])

In his judgment from the committal hearings (dates: 8^th December 2022 and 16^th January 2023, at which Luba was represented by Oliver Lewis), Poole J also raised the issue of Luba’s capacity:

“§16 On 8 December 2022 I indicated that I would adjourn for approximately one month before considering sentencing of the Defendant. I asked whether Ms Turner [I think she’s the instructing solicitor] sought any reports on the Defendant prior to sentencing but she said not. I had in mind the possibility of the court receiving medical evidence about the Defendant if that might be relevant to sentencing. Ms Turner was satisfied that her client had capacity to give instructions. Mr Lewis representing the Defendant today, on 16 January 2023, has not sought any capacity assessment of his client nor any medical reports.” [my emphasis]

As in the earlier judgments before HHJ Moir, this (more senior) judge raised concerns about Luba’s mental health in his 22^nd January 2024 judgment:

“§6 […] I have a long experience of Ms Macpherson appearing before me remotely and she can become angry and unfocused.[…]

§31 […] The defendant has continued to resist all suggestions that she might require medical assessment. She regards such suggestions as a feature of the conspiracy against her and her daughter.”

Theis J’s final determination in relation to any evidence that Luba lacked litigation capacity, either then or previously, was as follows:

§54 Whilst it is important in this wide canvas to consider that assessment of capacity is both time and decision specific, and I fully recognise and factor in the dynamic nature of the decisions involved in assessing litigation capacity, as detailed in the letter of instruction, but it needs to be in the context of understanding the salient features. I can’t ignore the evidence that in each of these hearings Ms Macpherson has been able to conduct them either with the assistance of legal representation or not with what has been described as her misguided and entrenched opinions. It is right that her behaviour has been difficult and, at times, difficult for the court to manage (such as described by King LJ in the Court of Appeal) but that does not and should not be used against her in assessing capacity to conduct the proceedings now or in January 2024. Many litigants can be difficult to manage in hearings or within proceedings, and often express very strongly held views about one or more aspects of the proceedings. In many cases that type of behaviour can be managed by effective and proportionate case management, such as limiting the length of any documents submitted, the volume of any documents in a court bundle, the time for any submissions, to ensure any parties’ right to a fair trial protected by Article 6 of the European Convention on Human Rights are respected within the confines of what is relevant and proportionate to the issues being determined by the court. This accords with the overriding objective in the relevant procedural rules. In these proceedings it is rule 1.1 Court of Protection Rules 2017. In assessing litigation capacity it is important not to conflate this type of behaviour, coupled with strongly held views as evidence of lack of capacity. Each situation is, by definition, very fact specific.

Vital points, in my view, from that paragraph are:

“It is right that her behaviour has been difficult and, at times, difficult for the court to manage […] but that does not and should not be used against her in assessing capacity to conduct the proceedings now or in January 2024”, and
“In assessing litigation capacity it is important not to conflate this type of behaviour, coupled with strongly held views as evidence of lack of capacity.”

So, difficult and annoying litigants are not the same as incapacitous litigants!

4. The Protection Imperative?

“The court must avoid the “protection imperative” – the danger that the court, that all professionals involved with treating and helping P, may feel drawn towards an outcome that is more protective of her and fail to carry out an assessment of capacity that is detached and objective” CC v KK [2012] EWHC 2136 (COP), Quoted at §39 of Theis J’s judgment, see also 39 Essex Chambers’ report on the 2012 case here]

In a 2019 International Journal of Law and Psychiatry paper, entitled ‘Taking capacity seriously? Ten years of mental capacity disputes before England’s Court of Protection’, Alex Ruck Keene et al. explained Baker LJ’s CC v KK judgment further:

“In this case Baker J synthesised observations made by other judges in a number of cases, and emphasised that: the roles of the court and the expert are distinct and it is the court that makes the final decision as to the person’s functional ability after considering all of the evidence, and not merely the views of the independent expert; professionals and the court must not be unduly influenced by the “protection imperative”; that is, the perceived need to protect the vulnerable adult; the person need only comprehend and weigh the salient details relevant to the decision and not all the peripheral detail. Moreover, different individuals may give different weight to different factors; and capacity assessors should not start with a blank canvas: “The person under evaluation must be presented with detailed options so that their capacity to weigh up those options can be fairly assessed” (CC v KK, para 68).[4] These cases illustrate that, even when P has a diagnosed mental disorder, judges may override expert psychiatric opinion on capacity, thus firmly establishing that it is not mental disorder or impairment that is dictating the judgment.”

The following quote from Poole J’s committal hearing judgment demonstrates that the court seemed not to want to send Luba to prison:

“§58 In this case the Defendant has almost dared the court to send her to prison because she believes it will bring attention to her bizarre views. However, to imprison the Defendant could well cause harm to others, both to the Defendant’s husband, FP’s stepfather, who has health issues and is aged 74 and who is looked after at home by the Defendant, and to FP herself. It seems to me very likely that FP would learn that her mother had been imprisoned by the court. The evidence of Mr Salmon shows that by whatever means, FP has been informed of the committal proceedings. It is very likely that FP would be informed if her mother was indeed imprisoned, and this would be upsetting to FP whose mental state is of course fragile. The knowledge that the Defendant had been imprisoned would risk exacerbating FP’s paranoia and fear of persecution. Her understanding of why she has been removed from her mother appears to be limited. Her understanding of why her mother had been imprisoned may well also have limitations. I have to bear in mind that imprisoning the Defendant could well do FP more harm than the breaches themselves.”

At a recent webinar hosted by Kings Chambers (Current and retrospective litigation capacity: revisited by the Court of Appeal and Court of Protection – 26 June 2025), which reviewed Luba’s case and the topic of litigation capacity, a consultant psychiatrist (Dr Faisal Parvez) discussed what is widely known as the ‘protection imperative’ [quote from my notes]:

“As doctors, we often try and protect people. And either rightly or wrongly, it may have been felt that, in this case, LM [Luba] might end up in prison, she might end up with a really harsh sentence, and actually if she didn’t have capacity that might mean that she [receives (?)] less in terms of sentencing, that the court might be more sympathetic to her in some way and the repercussions might be less. That’s a real challenge for us as clinicians because all throughout our training you’re taught that your primary concern is the patient, if you like – or the person that you’re seeing or assessing. So, in some ways, you try and advocate for them as best as possible.”

The same thoughts had occurred to me. I have wondered whether the system might have taken the ‘protection imperative’ route, described above by Dr Parvez.

It also doesn’t seem irrelevant to consider that the context, at this point, was that Luba had been found to be in contempt of court, already had a suspended sentence, and by continuing in contempt of court it was almost inevitable that an immediate custodial sentence would have to be imposed. Could it be possible that, as a system around Luba and her daughter, the court became embroiled in the ‘protection imperative’ (even unconsciously, to get out of its pickle of facing having to send Luba to prison, which it really did not want to do)? Who is the object of protection here is perhaps arguable.

It is clear from Poole J’s judgment, quoted earlier, that the court really did not want to imprison Luba because that would be inimical to the purposes of the CoP: P’s best interests, i.e. in this case, the best interests of Luba’s daughter. One way out for the courts to avoid sending Luba to prison (and distressing her daughter by doing so – the very person that they are there to protect) would be to find that Luba did not have the requisite capacity. No such decision could have been made in accordance with the law of course, because as Peter Jackson J memorably pointed out in Heart of England NHS Foundation Trust v JB (2014):

‘The temptation to base a judgment of a person’s capacity upon whether they seem to have made a good or bad decision, and in particular on whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or, expressed another way, to allow the tail of welfare to wag the dog of capacity. Any tendency in this direction risks infringing the rights of that group of persons who, though vulnerable, are capable of making their own decisions.’ But we are all human (even lawyers) and I can understand the temptation to adopt that approach. It would certainly be wrong to imprison someone on the basis of an unjust trial at which they’d been wrongly presumed to have capacity to litigate.’

In an earlier blog about this same case (A committal hearing to send P’s relative to prison – and the challenges of an in-person hearing) from 8^th February 2023, I wrote: “ … I am left wondering whether Sunderland City Council would do anything differently, were they able to rewind the clock and do it all again. Listening to the reasons for not incarcerating Luba (mainly so as not to distress FP, as well as enabling her (Luba) to continue to care for her husband) I couldn’t really understand why the recordings (and their publication) had been part of the injunctive order. FP did not know (or the court thought she did not know) about the recordings – she therefore did not know they had been posted online. That is not to say it wasn’t an intrusion into her right to privacy (Article 8 rights), though Luba would contest that claim: she believes that FP [Luba’s daughter] has capacity to decide to be recorded and share those recordings and that FP had consented. What seemed more harmful to FP though (from the Council’s perspective) was Luba’s influence and what they described as ‘manipulation’ of FP. It felt as if they had got themselves into a pickle over the recordings when maybe it is the contact (i.e. the actual experience of FP) that should be the focus. Luba was still allowed contact with FP, and I couldn’t understand how threatening Luba with jail would foster a situation where she might temper her conversations with FP? Surely it is more likely to inflame her views and become more entrenched in her position.”

And Poole J’s judgment had confirmed that he did not judge the social media posts to be harmful to FP:

“§54 However, it is the conversations themselves that are most harmful to FP, not the posting of recordings of those conversations online. I have seen no evidence that FP is herself aware of the fact that her conversations have been shown to others by publication online. FP may not even be aware that her telephone conversations have been recorded. She will be aware that she was filmed being “interviewed” by the Defendant but there is no evidence that she knows what the Defendant did with that film. Accordingly, I proceed on the basis that there is no evidence that the admitted breaches have caused FP harm.”

I still wonder why Sunderland City Council chose to include the social media posting in their case. The fact that they did has resulted in the enormously protracted and expensive appeal and capacity litigation, which is still not concluded. This is not to mention how stressful it must be for Luba, and surely less, not more, likely to result in a collaborative or measured way forward. And, still, the very real possibility that Luba will be put in jail – most definitely not the outcome that the court wants.

In this context it is possible to understand why Luba believes ‘And when I kept fighting, they came for me’ (below, Facebook post 14^th June 2025):

Whatever the genesis of the question about Luba’s litigation capacity – I would suggest that what has happened, and her sense of vindication now that the presumption of her capacity has been confirmed, has entrenched, rather than ameliorated, her beliefs about the authorities being out to get her. It’s made it less, rather than more, likely that she will desist from posting on social media, and less likely that she will collaborate with the ‘system’ in any other way.

And now, of course, in that context, the court is back to the matter of whether Luba’s appeal against her prison sentence is upheld.

Reflections

Another way of looking at this is to consider what we want ‘litigation capacity’ to mean in practice. I wonder whether many of us could really understand, retain, weigh and communicate all legal aspects of our case sufficiently to instruct a lawyer or to act as litigants in person. The matter of where to draw the line between capacity and incapacity depends on what level of involvement and competence is considered adequate.

Definitions and understanding of ‘capacity’ can and do develop over time: an example is the decision of the Supreme Court in Re: JB A Local Authority v JB (by his litigation friend, the Official Solicitor) [2021] UKSC 52:

§1 This appeal raises issues of profound significance under the Mental Capacity Act 2005 (the “MCA”) for the appellant, JB, and others like him with an impairment of, or a disturbance in the functioning of, the mind or brain which potentially renders them unable to make a decision for themselves in relation to having sexual relations. The central issue is whether the information relevant to JB’s decision to have sexual relations includes the fact that the other person must be able to consent and gives and maintains consent throughout. If it does, then for JB to have capacity to make the decision for himself, he must be able to understand that information, retain that information and use and weigh that information. If JB is unable to do so, despite all practicable steps having been taken to help him, with the consequence that he lacks capacity to make a decision for himself to having sexual relations, then he will be deprived of all sexual relations, as no other person may consent on his behalf to him having such relations: section 27(1)(b) MCA.

At §121 in the Supreme Court judgment it is clarified that, in law, in assessment of the capacity requirement for sex, ‘information relevant to that decision includes’ (1) ‘the fact that the other person must have the ability to consent to the sexual activity’ and (2) ‘the fact that the other person must in fact consent before and throughout the sexual activity’. This meant that a proportion of people previously deemed to have capacity to consent to (or engage in) sex were now deemed to lack that capacity.

Likewise, arguably the definition of “capacity to litigate” can be made more or less stringent, and can involve a requirement to understand, retain, and weigh, more (or less) information. A finding that Luba Macpherson lacked capacity to litigate would have undoubtedly had implications for many other family members who act as parties to CoP cases, since the bar for litigation capacity would have been set relatively high. The finding that she has capacity to litigate is in this sense unsurprising, since there are serious human rights implications in setting such a high bar that would disqualify many more people – including many family members of protected parties – from the right to instruct a solicitor or to represent themselves in court.

Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core team of the Open Justice Court of Protection Project and has published dozens of blog posts for the Project about hearings she’s observed (e.g. here and here). She is on X as @DocCMartin, on LinkedIn and on BlueSky as @doccmartin.bsky.social

Footnotes

[1] Luba is content for us to use her shortened first name for the purposes of our blog

[2] I didn’t observe the hearing before Mrs Justice Theis on 30^th April 2025, or the judgment being handed down on 22^nd May 2025, but I’ve observed previous hearings in this long-running case (including – in person – the committal for contempt hearing on 16^th January 2022, at Newcastle Court, blogged here; (remotely) the appeal hearing against that committal, on the 4^th May 2023, which Celia Kitzinger attended in person at the Court of Appeal; and another (remotely) regarding further alleged breaches of court orders on 4^th December 2023, blogged here by Amanda Hill).

[3] On BAILLI this judgment is dated 20 January 2022. I think this is a typo and it should, I believe, say 2023, because it relates to hearings on 8^th Dec 2022 and 16^th Jan 2023)

[4] Two other relevant cases (concerning medical disagreement and insight in relation to mental capacity) are described by Alex Ruck Keene in his blog ‘Capacity, insight and professional cultures – an important new decision from the Court of Protection’

A day in the life of a court observer: The high cost of open justice

By Celia Kitzinger, 29^th July 2025

The aim of this blog is to promote a more realistic understanding, both for would-be observers and for court staff, lawyers and judges, of what it takes to observe (remote) court hearings. I want to make visible how much time and energy it takes – not only for me but also for others (especially, court staff) to achieve the relatively modest ambition of access to Court of Protection hearings. Transparency is a very time-intensive and costly commitment.

It was Monday 21st July 2025. I’d returned from a 10-day hiking holiday at the weekend and was eager to get going again on court observations. I live in rural Cumbria and most of the hearings I watch are remote (i.e. via MS Teams or Cloud Video Platform). I set out to observe a couple of hearings and after looking at the listings (almost all were remote hearings), I chose one case for the morning (10am in Exeter before District Judge Murray – a judge I’ve never seen before) and another for the afternoon (2pm in the Royal Courts of Justice [RCJ], before Mr Justice Poole, a judge who is very familiar to me). By 8.30am, I’d sent off requests for both links.

This blog is about what happened next.

It turned out that both of the hearings I wanted to observe were vacated (i.e. they didn’t happen) although I didn’t learn that until nearly an hour after the listed start time for the Exeter case and about an hour and a half before the start of the RCJ case. Lots of hearings are vacated (about a third of all those I apply to observe) and – contrary to the suggestion sometimes made by would-be observers – I don’t think for one minute that hearings are vacated to prevent us from observing them! Reasons why hearings can’t go ahead as planned are explained in another blog post (“Last-minute vacated hearings in the Court of Protection”). Often it’s because the parties have reached an agreement about the order and the judge decides the case on the papers. I don’t know why the afternoon hearing I’d asked to observe today was vacated, but the morning one (to which I was briefly admitted) was abandoned because the judge had been asked to recuse himself (i.e. to remove himself as judge and allow a different judge to hear the case).

Like other observers who set aside time to watch court hearings (many of whom have to navigate time out of their working days or caring responsibilities), I tried over the course of the day to replace the vacated hearings with alternatives. I wasn’t too bothered about which hearings I observed – I was simply looking for time-slots that worked.

In the end, I was successful in observing two hearings – albeit not the two I had initially requested – but it involved a full day’s work of repeatedly checking the listings for candidate hearings, emailing the court staff for links, chasing the staff when the links didn’t materialise by the time of the listed start of the hearings, pursuing Position Statements from lawyers, and (in one case) requesting a variation to the reporting restrictions due to an error in the Transparency Order.

I’ll describe what happened, moment by moment throughout the day, and then reflect on how unwieldy, time-consuming, stressful and expensive this process is, and the high cost of open justice both to me and to the justice system.

My observation experience

08:15 I request the Exeter hearing: COP 20014381 at 10am before DJ Murray

I selected this one primarily because I wanted a 10am hearing – the earliest available – to leave open the possibility of applying for a later (11am or 12 noon) hearing that morning if it was vacated.

I also chose to observe this one in particular (there were quite a few 10am hearings) because I’d spotted some problems with the listing (reproduced from CourtServe below):

there’s an additional digit in the listing: COP hearings typically have 8 digits, so nine digits is odd and probably an error (I turned out to be right about that). It might be a small point but errors in case numbers make it hard to use electronic searching when we’re looking for them later.
it’s confusing to find a statement that the judge is hearing the case “in chambers” (which means “in private”) but also that the case is “public” (it turned out to be – as most COP hearings are – in public). This could easily lead a member of the public not to request a link.
the public bodies are not identified in the listing – which I discovered was definitely an error as the Transparency Order (sent to me as a consequence of my request to observe) does not prohibit identification of the public body as Devon County Council. This has important transparency implications, of course.

In accordance with the instructions in the listing, I emailed Bristol (the regional hub) with my request for the link and Position Statements. What usually happens is that the hub passes on requests to the court at which the case is actually being held, so I expected them to forward my email requesting the link to Exeter court staff, who would then alert the judge. The procedure for dealing with requests for Position Statements is not (as far as I know) yet formalised[1], but I hoped Exeter court staff would forward my request for the Position Statements to the lawyers involved in the case (which, it turned out, they did).

Here’s the email I wrote to the regional hub at Bristol.

_{Please may I have the link to observe this hearing (as per the Courtel/Courtserve listing reproduced below).}

_{Please could you also alert the parties to my request for all the Position Statements (and for the Transparency Order) relating to this hearing. This is so that I can follow the hearing and to support accurate understanding and reporting of it.}

_{The court may be aware that there is new case law relating to provision of Position Statements to observers. For guidance from Poole J see §36(1)-(10) in AB, Re (Disclosure of Position Statements) [2025] EWCOP 25 (T3) (15 July 2025)}

_{In brief:}

counsel can share anonymised PSs with observers without seeking permission from the judge. (§36(5))

Alternatively, counsel should ask the judge at the beginning of the hearing for permission for release of non-anonymised PSs. (§36(6))

If any party refuses to provide their PS to an observer, they should so inform the observer who can then make an oral application to the court (§36(7)(8)(9).

08.30 I request the Royal Courts of Justice hearing: COP 20001522 before Poole J

I’ve watched Mr Justice Poole many times before. He’s very interesting to observe and I’m looking forward to doing so again. I know nothing about the case save what is in the listing – reproduced below – and it’s new for the RCJ listings to provide information about the issues before the court, so I’m pleased to see that, and I say so in my email to the staff when I request access. As with my email for the Exeter hearing, I request both the link and the Position Statements. In neither case do I know who the lawyers in the hearing are, so I have no way of contacting them directly to ask for Position Statements.

09.42 I chase the Exeter hearing (listed for 10am): “Hello – I’m resending because the hearing is listed to start in less than 20 mins and I’ve had no acknowledgment, no link, and no PSs.”

10:00 I request Stoke on Trent hearings (listed for 11am and 12 noon before HHJ Davies)

I suspect I’m not going to get access to the Exeter hearing, so I try elsewhere. I have no particular interest in or knowledge about the Stoke on Trent hearings – but they are listed for (what are now) convenient time-slots. Surely one of those will turn out to be possible?

10:06 I receive the link and Transparency Order for the hearing I want to observe this afternoon – the Royal Courts of Justice hearing (COP 20001522 at 2pm before Poole J). Oh good, at least that one’s sorted!

10:09 I receive information that the Exeter hearing (listed for 10am) is delayed. “Good morning, The hearing is delayed. We will keep you updated”. Ah, so that sounds as though it will be going ahead, but meanwhile I’ve asked for the Stoke on Trent hearings (at 11am and 12 noon), so I hope it starts soon, otherwise I’ll have been granted access to two hearings taking place at the same time and will have to pull out of one of them. (I juggle applications to observe hearings carefully so that this doesn’t often happen – I think only a handful of times ever, over the course of five years and 600+ observations. When it has occurred, I’ve apologised profusely to the court that I’ve taken up their time in arranging my access to a hearing I now can’t attend.)

10:44 I receive the link for the Exeter hearing (listed for 10am) – which I don’t see right away because I’d given up on getting it and was chasing Stoke on Trent (see below) and searching the lists and writing requests to observe other hearings instead. (I see it six minutes after it was sent [at 10.50am] and join then, but am not admitted until 10:54am).

10:46 I chase Stoke-on-Trent hearings (listed for 11am and 12 noon) I’m still assuming at this point that I won’t be able to watch the Exeter hearing, and I’ve also heard nothing back yet concerning either of the two Stoke on Trent hearings: “Hello – I’ve requested access to two MS teams hearings (see below), the first of which is listed to begin in 15 mins. I look forward to receiving the links.”

10:50 I am told the Stoke on Trent hearings are vacated. “Unfortunately, both of those hearings have now been vacated.” I’m not having much luck, am I?! I check my emails again and find I’ve finally been sent the link to the Exeter hearing. I join it.

10:54 I’m admitted to the Exeter court: I learn the case is being adjourned until a different judge can hear it.

It was to have been hybrid hearing. Two people are in the physical court room and there is at least one lawyer on the link. It’s apparent that something has been going on without me (maybe since 10.00am which was the listed start time?). The judge tells me he’s sorry that there were “logistical difficulties” at the beginning of the hearing and that “something was brought to my attention earlier this morning which means I as a judge can’t deal with this case”. He says he was “hoping to proceed today with a different judge” but that’s turned out not to be possible. He’s courteous and apologetic – but I’m not sure why I wasn’t admitted earlier to observe what (I think) would have been a request to the judge to recuse himself. The judge deals briefly with a request from one of the lawyers to alter the initials used for parties in court documents (agreed), but a week later I’ve not received a revised Transparency Order (the one I have was made by DJ Priddis on 10^th April 2025 and issued on 12 May 2025). I can deduce the initials originally used for P from the Transparency Order I already have, and the new initials (for P and for other lay parties) from those used on the Position Statement which I received later from the Official Solicitor. At this point I have no idea what the now-adjourned hearing was about. It only becomes clear when I read the Position Statement from the Official Solicitor sent after we all leave the video-platform.

On reading the Position Statement, I learn that the case concerns what, in the view of the local authority, is mistreatment and financial abuse of a woman in her 90s. It appears that P granted Lasting Powers of Attorney (both Property and Finance and Health and Welfare) to one of the two people (I think the two I saw in the physical courtroom) who have gone on to (allegedly) abuse her. The Lasting Powers of Attorney have now been disclaimed and there’s an application to appoint a panel deputy. The issues currently before the court don’t seem to be reflected in the case descriptor in the list (which says the case is about “DOL Contact”), but it’s common for cases to move on and for the court’s focus to shift, without listings being updated to reflect this. That’s an ongoing problem for court observers keen to learn more about particular issues of interest to them. There’s been a lot of publicity recently about abuse of Lasting Powers of Attorney[2] and this is an important matter of legitimate public interest that hasn’t been flagged up properly in the public listings.

11.09 I request the link for a hearing in Hastings (12 noon before DJ Owen)

As I’ve not yet succeeded in observing a hearing this morning, I go back to the listings to see what else I can find. There are two hearings listed before DJ Owen in Hastings – another judge I’ve never watched before. They’re both listed for 12 noon, which suggests to me that the judge believes that one or other might be vacated (or that he’ll reallocate one them to a later time if both go ahead). I know nothing about these cases – but I’m looking for a 12-noon hearing to fill the gap. I say “Please may I have the link to observe either of the two hearings listed for 12 noon before DJ Owen (as reproduced below from CourtServe). If they’ve both been vacated, and DJ Owen is hearing a different case at 12 noon then please may I have the link to that one.” I also apologise that “this request is being sent closer to the time of the listed start of the hearing than I would have liked” and explain that this is because other hearings have been vacated. I do this knowing that judges occasionally chastise us in open court for having asked “very late” to observe hearings, and I hope to pre-empt and avert that public humiliation. Sometimes, it seems, judges simply don’t understand that we can’t ask for links until the listings are published at around 4pm the day before (see “Why members of the public don’t ask earlier to observe hearings (and what to do about it)”) and I figure the judiciary is unlikely to have any awareness of – or be able to imagine – the situation I find myself in now (which is one of the reasons I’m writing this blog post).

11.19 I receive the Transparency Order for one of the 12noon Hastings hearings. As usual, there’s been an automated reply (at 11.10am) saying my email will be dealt with within 10 days but then I get this: “Your details have been forwarded to the relevant team for the link to be sent to you. Attached is the Transparency Order (for 20004304) which you must read through before the hearing. The other case (20002225) has been adjourned“.

11.31 I receive a follow-up response concerning my request for the Hastings Position Statements – my request for the Position Statements has been forwarded to the judge

11:36 I send an email for attention of the judge (DJ Owen) in the Hastings case, requesting a variation to the Transparency Order. I’ve discovered a problem with the Transparency Order for the DJ Owen (Hastings) hearing. It says (§6(i)(c)) that I’m not allowed to name the public body as a party to the proceedings. I email the judge making an informal application to vary it.

11:58 I chase the link for Hastings “Sorry to bother you again but I’ve not received the link for the hearing listed to begin in about two minutes.”

12:18 I chase the link for Hastings again “I’ve checked my spam. I keep refreshing my email… Please can someone send me the link”

12.24 I’m told the Royal Courts of Justice hearing for this afternoon is vacated. “The COP matter listed before Mr Justice Poole this afternoon has been vacated”. Oh no!! Now I’ll have to find an alternative hearing for the afternoon! It’s early afternoon – I’ve been trying since 8am and I’ve still not observed a hearing.

12:31 Reading Hub tries to help with the Hastings link. Staff copy me into an email sent to Hastings (“Following my earlier emails please see below a further email from Celia Kitzinger who is chasing the link for the hearing which started at 12 pm.”)

12.40 I still have no link for the 12noon in Hastings. I assume it’s been vacated (or gone ahead without me), so I ask for the 2pm before the same judge also sitting in Hastings (DJ Owen, COP 14115755). I say: “I was very disappointed not to be sent the link for the 12 noon hearing before DJ Owen. Can someone please explain what went wrong. This is not a good look for transparency in the Court of Protection. Can we try again please. There’s a 2pm hearing (screenshot from CourtServe below) also before DJ Owen in Hastings. Please could I have the link to observe that. Perhaps this time it will be possible to sort out how to get me the link. I am making the same request for Position Statements (and the Transparency Order) in relation to this hearing” (and I spell out what that request was again).

12.40 Link to the 12noon Hastings hearing arrives. My email chasing the link turns out to have been sent at exactly the same moment as the “Digital Support Officer” sent the link itself. As soon as I refresh my email, I see it!

12: 42 I join the hearing in Hastings: Appointing P’s son as Deputy for Property and Affairs

There’s no proper introduction (perhaps because I’m slightly late joining) and I’m not sure who is in court but I recognise one lawyer (and locate him via google) and it becomes clear that someone else (whose camera isn’t on) is the son of the protected party. The judge confirms that the lawyer will send me a “Case Summary” on behalf of East Sussex County Council (I’m not sure whether this means there are no Position Statements?) and I email the lawyer to make sure he has my contact details at the same time (it turns out) that he emails me to make sure he has mine.

The judge says at the outset that there’s “no good reason not to identify the council involved” and that he’s “happy to endorse that amendment of the Transparency Order”. (Hurrah! That at least was efficient.).

The lawyer tells the judge that P’s son is now willing to act as Deputy for his father. The judge asks the son about this and he says (as best I could capture it) something like this: “My father’s always been a very strong man and very clear that he wants to be in control of his own affairs. As his health has deteriorated, he’s become increasingly unable to do that. Initially, we agreed that I wouldn’t act on his behalf, hence why I didn’t apply to be Deputy earlier. It wasn’t that he didn’t want me to be Deputy, it’s that he didn’t want anybody to be his Deputy. But as his health has deteriorated, he’s come round to agreeing that a family member should do it. The days when we had a large amount of money to manage are long gone, but it’s all the things I have to remind him about on a daily basis – outstanding debts, his car that’s been in a carpark for three years that’s accruing fines, and he loses his bank card probably on a monthly basis and that’s always a rigmarole. It’s all the simple but frustrating matters of day-to-day practicalities. And I’m the best person to do that. I visit him monthly and speak to him on a daily basis.”

Counsel for East Sussex County Council says that the son’s position is clear, and that “there’s a benefit for a family member to do it” so the local authority is “happy with that”. The judge checks there’s “no doubt as to the absence of capacity – there’s no one seeking to challenge that or raise any doubts?” Counsel says: “His son has been very polite about it, but P burnt through the money from his properties and there are questions as to whether others may have benefitted and taken advantage of him. It’s a bit sad. But the reason why there’s a hearing is because P himself was asked about this and he didn’t agree with the application. He said he does not lack capacity and he has “no issues managing my finances”. We can be as respectful as we can of his views, but every factual matter points in the other direction”. (When I read the “Case Summary”, sent later the same day in lieu of a “Position Statement”, I learn that P has Korsakoff syndrome.)

Around this time the judge notices that the son has left the video-platform and waits for him to return (without any support, since “the ushers are stretched between more than one hearing”). When the son returns a few minutes later, the judge confirms that he will approve the draft order and the son’s appointment as P’s Deputy. The hearing ends at 13:00

During the hearing some emails are exchanged….

12:46/12:47 Counsel sends me an email to check we are in contact (I respond immediately “yes!”) at the same time as I send counsel an email for the same reason saying (only) “yes, please for the PS”. We now know each other’s email addresses.

12:51 Court staff say: “We have just received an email from DJ Owens saying his previous case has just finished. He has also emailed counsel about amending the Transparency Order and in relation to your request for the position statement. Please note the 2 pm hearing has been adjourned.” (The 2pm hearing is the one I’d asked to observe when I thought the one I’m watching now must have been vacated or proceeded without me.)

12:57 I reply: “Yes, thank you – I am now in the 12 noon hearing. Understood that the 2pm is not available to observe. Many thanks for your help.”

13:00 End of hearing before DJ Owen (Hastings). It’s lasted less than 20 minutes.

13:07 I request a Port Talbot hearing (2.00pm COP 20017593 before DJ Keller)

As the 2.00pm RCJ hearing has been vacated and so has the 2.00pm Hastings hearings – what else is there? I scan the lists again: it’s getting very late to ask for a 2.00pm hearing, especially as it’s now the lunch hour. I am not optimistic about this, but it’s worth a try.

There are 2.00pm hearings in Walsall, Reading, Horsham and Port Talbot. I pick Port Talbot for no particular reason except that I don’t want to bother staff at hubs I’ve already contacted today, and not remembering quite which those were by this point of the day and in the scramble to find another hearing, one thing I do know is that Cardiff (the hub for Port Talbot) wasn’t one of them. I’m stressed out, and anxious about getting something wrong.

I also know that we’ve experienced repeated listing problems with Port Talbot (e.g. hearings have taken place without ever appearing on the COP list in CourtServe, and when they do appear they are often missing essential information) so I thought it might be helpful, from a transparency viewpoint, to observe a hearing there – if it turned out to be possible.

In fact, today’s Port Talbot listed hearing has all the necessary information – including the names of the public bodies (Hywel Dda University Health Board and Pembrokeshire County Council) and the issues before the court (“Authorising a deprivation of liberty in relation to e.g. care and residence arrangements”) – although again this turns out not to be quite accurate for this case, which now also (I discover later) concerns the validity and applicability of an Advance Decision to Refuse Treatment, a matter I’m particularly interested in.

13:08 Counsel from the Hastings case sends me a “case summary” (“I attach the case summary as promised”). I leave it until later. – I’ve got information overload and am beginning to get confused about which hearings are which, while also wanting to make best use of my time. I’m still looking through the lists, trying to decide whether to apply for another hearing as well as the Port Talbot one for this afternoon, especially if there’s one due to start at 3.00pm or later.

13:09 I request a 3.00pm hearing before DJ Buckley in Reedley (where’s Reedley? It’s in the Manchester hub and I find it on Court Finder (here: https://www.find-court-tribunal.service.gov.uk/courts/reedley-family-hearing-centre). This is a better option than asking for another of the 2.00pm hearings (what if I get both!?) and a 3.00pm hearing gives everyone a bit more time to get me the link and the Transparency Order. I see that the 2.00pm in Port Talbot – the one I’ve already asked for – is listed to last for two hours, so if I get both the Port Talbot and the Reedley hearings, I might find myself double-booked). Fingers crossed it works out somehow.

13:12 I’m told the Reedley hearing has been vacated. The “Administrative Officer” from the Manchester hub says: “The hearing for this matter has been vacated. The parties filed an agreed order, which the Judge has approved.” At least I got a swift response to that one!

13:21 I receive the Transparency Order for the Port Talbot hearing: “Thank you for your request to observe the hearing before District Judge Keller at 2pm on 21^st July 2025. The link to the hearing will be sent to you from the hearing court and the transparency order is attached to this message.” This is looking positive! I read through the Transparency Order. It’s in the standard form (with no prohibition on naming public bodies) – that’s a relief!

13:32 I receive a Position Statement from Exeter: it’s the one on behalf of P by her litigation friend the Official Solicitor. It has the wrong case number on it: instead of the number in the listings and on the Transparency order [20014381], it’s given as 20014881 – so an ‘8’ where an ‘3’ should go as the sixth digit. (This matters because I use case numbers to search for information on my computer and errors like this mess up my search system!). I haven’t received a Position Statement from Devon County Council (nor, perhaps unsurprisingly, from the two lay parties, who are litigants in person). The Official Solicitor’s Position Statement provides me with some information about the case (as I reported earlier) which is about possible financial abuse by someone holding Lasting Powers of Attorney (there are also suspicions relating to a fraudulent last will and testament). It looks interesting, and I’d like to observe it when it’s back in court before a different judge. I email the lawyer who sent me the Position Statement, thanking her for sending it and asking whether she can tell me the date on which the case will now be heard. No answer. If I have to search the listings manually (only journalists can use “alerts” to tell them when a hearing comes up), it will be hit and miss as to whether I locate it. Frustrating! There’s a chance that the new date of listing will be included in the approved Order (if there is one) from today’s hearing, so I decide to ask for that, and make a note to do so this evening when things are less pressured and I’m not having to juggle all these requests. (I then grab a sandwich!)

13:51 I chase the link for the Port Talbot hearing (listed to start at 2.00pm) “I haven’t received the link yet…”

14:03 I receive the Health Board’s Position Statement for the Port Talbot hearing. Counsel for the Health Board sends me their Position Statement, having been forwarded my request by the court staff. I tell the lawyer that I don’t have the link yet – he tells me the hearing will now start “not before 14.30”. Nobody had told me that!

14:15 I receive the Port Talbot link from the “PTJC Family Team” (I think PTJC stands for Port Talbot Justice Centre). I join the platform and am “waiting for the conference host to join”.

14:20/14:24 I receive the Official Solicitor’s Position Statement for the Port Talbot hearing. Counsel for P via the Official Solicitor contacts me to say “I’ve received your request for the PS in the above case. I’m told you have a copy of the Transparency Order – can I check that’s right before sending the PS?” I confirm I have the Transparency Order, and he sends their Position Statement. Since the hearing hasn’t started yet, I’m able to read it in advance.

14:29 I request a second Position Statement from the Official Solicitor in the Port Talbot case – the one prepared for an earlier hearing in the same case (a week ago). “Please may I also request a copy of your PS referred to in §3 of the PS you’ve just sent me, since that would appear to provide some useful background. (And I quote the relevant paragraph 3: ” The court is familiar with the background to this case. A summary of events between 10/08/2023 and 10/07/2025 appears between paragraphs 6 and 22 of the position statement filed by the litigation friend for the second directions hearing [12-15].”). He tells me it will need to be anonymised and says he’ll do it before the hearing if the start is further delayed; otherwise, he’ll send it afterwards. (More work for a busy lawyer!)

14:32 The Port Talbot hearing starts: A distressed 90-year-old, treated against her wishes and discharged to a care home – and the validity and applicability of her Advance Decision to Refuse Treatment

It turns out the order is agreed by everyone. The judge asks the applicant counsel to go through the recitals on the chronology. This covers information that I later see is given in full in the earlier Position Statement from the Official Solicitor, so I’m confident in reporting it here.

The protected party is now 90. Prior to admission to hospital in March 2025 she lived at home alone, near her daughter. On 10^th August 2023, she made an Advance Decision recording that she refused any treatment that required her to go into hospital “even if my life may be at risk from this refusal”. On 6^th March 2025, she was admitted to hospital (the Health Board says they didn’t know about her Advance Decision to Refuse Treatment) with abdominal pain and discharged home nearly a month later on 3^rd April 2025 – but was returned to hospital by ambulance during the night of 3^rd/4^th April 2025 due to concerns from a domiciliary carer. She was assessed as lacking capacity (capacity for what was not specified), following which a s.21A Court of Protection application was made. At a best interests meeting there was a “patently unlawful” analysis resulting in P’s discharge to a care home on 30^th June 2025, without the approval of the court being sought, and without P being present or represented at the meeting. She’s already lost 2 stone in weight at the hospital and is continuing to lose weight at the care home. On 10^th July 2025, the litigation friend visited P and found her “confused”, not eating (her body mass index was around 16.88) and saying that she “wanted to die”. The Official Solicitor is “shocked by what has happened” and “astonished by what [P] has undergone”. The Position Statement records: “She is an extremely vulnerable woman who deserved (and deserves) the protections of this Court. Instead, she is in a placement to which she has voiced objections for years and in which she is confused, fearful and acutely vulnerable”.

The judge went through the agreed order (I’ve requested but not yet received it). It puts in place what’s needed for another hearing to decide on the scope of P’s Advance Decision to Refuse Treatment – in particular what it means in event of any future medical emergency – and her wishes and feelings, as they relate to the s.21A application. There was a brief exchange about what might happen if her BMI (now in the region of about 15) causes concern to the extent that a naso-gastric tube, or PEG tube, is considered medically necessary before the case comes back before DJ Keller in Port Talbot. I think I understood that an urgent application to a Tier 3 judge in the Royal Courts of Justice would need to be made.

It wasn’t straightforward to arrange the date of the next hearing (“My lists are (sigh) well, let’s just say impossible” said the judge) but it’s eventually fixed for 21^st August 2025, for 3 hours.

I am really keen to observe the next hearing. I have a special interest in Advance Decisions to Refuse Treatment (ADRT) from a personal perspective as I have made one myself (I wrote about it here: Determining the legal status of a ‘Living Will’: Personal reflections on a case before Poole J) and I’m dismayed that the issue with the ADRT was not included in the public listing. If it had been stated in the listing that the issues before the court included the ADRT, this would have been my first choice of hearing – rather than simply the one I ended up with after all the others I’d asked for were vacated. I so very nearly missed knowing about this case altogether due to inadequate listings. That’s not transparency – and I wonder how many other ADRT cases come before the court, but I never learn about them.

The hearing finishes at about 14.40

14:41 I receive the earlier Position Statement for the Port Talbot hearing from the Official Solicitor (which I’ve relied on in reporting the “chronology” above).

That evening (between 9pm and 10pm), I requested the approved orders from the Exeter, Hastings, and Port Talbot cases. As my requests are virtually identical except for the case number, here’s the email relating to just one of them (Port Talbot):

The next day (22^nd July 2025), I received an email from court staff about the Exeter hearing (the one vacated to find a different judge) saying “Thank you for your email which I have referred to the Judge. He has asked me to email you a copy of the order when it is sealed. He has not yet received a draft from the parties.” In the week or so since observing these hearings, I’ve chased all three orders but not yet received any of them.

That’s it for today’s hearings. Two hearings successfully observed! I’m hoping for more documentation to support my understanding, follow-up and accurate reporting of them in due course.

UPDATES on approved orders

Port Talbot

31 July 2025: “The Court currently have a backlog of orders due to staff shortages. We have made a note on the file to serve you with a copy of the order as soon as it is processed. We will get this to you as soon as we are able.”
5th September 2025: I receive the Port Talbot order, and have since observed a next hearing in the case which I’ll blog about.

Hastings

23rd August 2025: I chase the order. “I’m sorry to bother you again but I seem not yet to have received the approved order in this case.”
5th September 2025: “The order has not been sent because it has been referred back to the judge. We are currently waiting for judicial instructions.“
20th October 2025: “We apologise for the delay in sending you a copy of the order made following the hearing” – the order finally arrived – three months after the date of the hearing.

Reflections: The high cost of open justice

The two hearings I watched (in Hastings and Port Talbot) concerned matters of significant public interest – and all three cases I learnt about (including the Exeter case that was adjourned) involved the court performing a protective function in relation to an elderly person: appointing a son as Deputy (Hastings), seeking to establish both the validity and scope of a person’s advance decision, and her best interests regarding treatment, residence and care (Port Talbot) and replacing an (allegedly) exploitative attorney with a court-appointed Deputy (Exeter). They all concern the application of statutory instruments (LPA, Deputyship, ADRTs) in the real world. They all relate to how the courts determine best interests when things seem to be going wrong. They really matter to members of the public in our own lives.

The Hastings case concerned an elderly man who (counsel suggested) may have been financially exploited as he lost capacity to manage his own financial affairs, while he also refused – and apparently continues to refuse – to acknowledge his own diminishing capacity and declines his son’s offer to act on his behalf. This is a familiar scenario for many people with elderly parents – and it’s a possible future scenario for all of us as we grow older and lose cognitive abilities we’d previously taken for granted. There is a legitimate public interest in understanding that people can be in this situation and that the court can help (even when the vulnerable person doesn’t want help) by appointing a Deputy (see ss. 15-21 Mental Capacity Act 2005).

The Port Talbot case concerned an elderly woman who, it seems, had taken all the right steps to prevent hospital admission toward the end of her life, using a statutory instrument (the Advance Decision to Refuse Treatment [ADRT], defined in ss. 24-26 Mental Capacity Act 2005) that is legally binding on health and social care staff (and everyone else) if it’s valid and applicable. Nonetheless, she was admitted to hospital and then discharged (after a failed return home) to a care home where she is distressed and saying she wants to die. Presumably P’s daughter was also unaware of this ADRT, or at least of its legal implications. There is also strong indication that the proper best interests procedures (s. 4 Mental Capacity Act 2005) were not properly followed. The public has a legitimate interest in knowing that a public body is being criticised for its actions in this way. There have been several cases lately concerning NHS bodies over-riding people’s ADRTs (quite often – initially at least – because they were unaware of the existence of these documents), and then disputing their validity and applicability (e.g. Re AB (ADRT: Validity and Applicability)). Those members of the public who want to plan ahead for possible future lack of capacity by making ADRT and Advance Statements have a right to know how these matters are decided by the court.

The Exeter case, the one I didn’t get to observe although I was briefly admitted to the video-platform, also turns out (from what I’ve read of the Position Statement) to concern matters of legitimate public interest. Planning ahead for lack of capacity can include appointing someone else to make decisions for you while you still have the capacity to do that (Lasting Power of Attorney, ss. 9-14 Mental Capacity Act 2005). But cases of abuse by LPAs are frequently reported in the media, and it seems to be the suspicion of abuse that led the Attorney in this case to “disclaim” (resign) from that role. There are moves to appoint a Deputy (a court-appointed representative) to replace the person believed by the public body to have been abusing their position. I hope I might get to observe what happens next (though the listing system will militate against that being possible for me).
UPDATE on the Exeter case: On 14th August 2025, this case was heard in private and without notice to one of the parties (I assume the alleged abusers). It was was listed as a “closed” hearing on the Royal Courts of Justice listings page (see image below) – and I wasn’t available to observe it even if it had been a public hearing, which it wasn’t. (“Applications in Court as in Chambers” is legalese for a private hearing with no members of the public permitted to observe. If I’d been free to observe, I would probably have sent an email to the judge asking for special permission to observe it – permission has been granted to me to observe a “closed” hearing in a different case (see “A committal, a closed hearing, and forced removal of P“). The fact that proceedings were “closed” (i.e. a party was excluded by judicial order) makes this case of even more public interest, because it departs from the usual expectations of “a fair trial” by deliberately disadvantaging the excluded party. Lawyers often tell us that “closed” (or “ex parte”/”without notice”) hearings are very rare – but we keep stumbling over them – as is illustrated by the fact that this one turned up amongst the random selection of hearings I picked today. This one is perhaps unusual in having been listed as a closed hearing: many closed hearings take place without ever being publicly listed (for fear of alerting the excluded party).

In sum, the value of open justice is clear. What I observed showed me how the court works (and what it’s up against) with the kind of detail, clarity and vividness it’s impossible to convey in a published judgment. I doubt, anyway, that there will be a published judgment from any of these cases: judges simply don’t have time for that. If I hadn’t been in court, none of these cases would have been reported. Nobody else was there to observe. There’s hardly ever a journalist in a Court of Protection hearing. Justice might have been done – but nobody would have been there to see it being done.

The problem is that I only got to observe – or at least learn about – these three cases by dint of an extra-ordinary knowledge-base (shared by very few others) about the daily practical workings of the court; and because I have more time, persistence, and perhaps sheer bloody-mindedness in pursuing links than anyone else I know. I completely understand why most people simply give up. And why journalists, for whom time is a paid-for commodity, don’t “waste” it by trying to gain access to Court of Protection hearings. There was nothing unusual about my experience on Monday 21^st July 2025. It’s always like that! If anything, the unusual thing is that that I actually did succeed in observing two hearings – many days I’m unsuccessful.

In pursuit of what turned out eventually to be observation of two short hearings (a 20-minute hearing in Hastings and one of about an hour in Port Talbot), I sent more than 30 emails over the course of the day and (excluding automated responses) received around the same number in return. I corresponded with six different members of court staff and three different lawyers across five different courts. Behind the scenes, there were also emails between staff members about my requests to observe, as staff at each of the “hubs” forwarded my requests to the regional courts at which the hearings were taking place (so Bristol staff corresponded with Exeter, Birmingham staff with Stoke on Trent, Reading staff with Hastings, Manchester with Reedley, and Cardiff with Port Talbot). Additional internal emails passed between staff responsible for lists and staff with responsibility for audio-visual links. There was further correspondence (I was told) between judges and lawyers about my requests for Position Statements, and more again in relation to my application for a variation to a Transparency Order. Overall, my day’s work must have involved well over 100 emails.

This is all a massive amount of time and effort – especially against the backdrop of the dire situation described in automated emails I received: “HMCTS staff are working under significant pressure due to a lack of staff and the current urgent need to triage, list, vacate, and re-list cases” (from the automated reply to my emails to the Reading hub). During the course of the hearings, I also noted a comment from one judge about his “impossible” (overbooked) lists, and, from another judge, a reference to the scarcity of staff meaning that ushers are having to cover several different court rooms simultaneously. Again, this is absolutely normal in my experience – there are frequent references to the pressure everybody is working under. Despite this, everyone I corresponded with was unfailingly courteous and as helpful as they could be under the circumstances. Thank you!

The chair of the judicial transparency board, Mr Justice Nicklin has recently promised “Open Justice Champions” to support transparency. He says: “The board and HMCTS are aware that there can be issues with people gaining timely access to remote hearings. HMCTS are working to provide “Open Justice Champions”.’ The regionally based champions ‘will provide a single point of contact to assist in resolving open justice issues”. Would “Open Justice Champions” have helped me? Perhaps I’m being over-sceptical, but I can’t see what they would have known that I don’t already know, or what they could have done that I didn’t, especially if they were regional specialists, rather than specialists in the Court of Protection. Presumably I’ve had needed to contact several different champions for the different regional courts, e.g. the Welsh champion for Port Talbot and the North West champion for Reedley – even though I wanted to navigate access to one or the other hearing, but not both since they were listed to run in overlap. Would they liaise with each other to support me? Would it just add another set of duplicated emails into the mix? These “champions” will apparently be mid-level civil servants responsible for giving people resources and information to assist with transparency but it’s unclear what training they’ll have, and it seems they’ll be doing this work as part of their usual jobs. The Ministry of Justice has said: “There is no new funding for these roles. The skill of understanding open justice and enacting open justice is already an expectation of employees in the MoJ”[3]. So, when it’s confirmed that they’re in place, perhaps I’ll contact a “champion” when I don’t get a link in time – but forgive me if I’m doubtful about the value of doing so. Perhaps they will prove me wrong.

In my role with the Open Justice Court of Protection Project, I would love more members of the public to observe Court of Protection hearings – but be warned, this is what you are letting yourselves in for. And imagine what it might be like for HMCTS staff, lawyers and judges if more of us asked to observe court hearings, with the resultant increase in email traffic and an increased need for links and Transparency Orders and anonymised Position Statements, all to be sent to each one of us individually. There have occasionally been dozens of observers in hearings held in the Royal Courts of Justice (which is much better resourced) – but it’s simply not a workable proposition for the regional county courts like those I observed in today.

And a message to lawyers and judges: please appreciate what it can take to get access to your hearings and understand why we might seem stressed or anxious (especially if we’ve also had to dash off an email about varying a Transparency Order in advance of the hearing). Don’t assume that we’re being disrespectful or careless if we make “late” requests, or arrive at a hearing after it’s started, or seem to be hassling you for orders or position statements, or don’t understand what’s going on. Like everyone else, we are doing our best under difficult circumstances.

My impression is that this is a system that is not merely under-resourced and struggling, but one on the brink of collapse. Transparency puts a huge strain on an already over-burdened justice system. It’s not surprising that the judicial commitment to transparency is more aspirational than can be realised in practice. Perhaps, with proper investment in the justice system, it might be possible to create effective lists, searchable by the public, with accurate information about issues before the court so that we can pursue topics we’re particularly interested in or knowledgeable about (like me and ADRTs). Information about vacated hearings might be swiftly conveyed on a public online platform so that we’re not endlessly chasing links. There might even be downloadable anonymised case summaries or Position Statements online (and displayed via QR codes on courtroom doors) so that we don’t have to pursue individual court staff and lawyers (and sometimes judges) to get access to them. I gather there may be practical (and statutory) impediments to implementing some of these suggestions –but there is no point in devoting time to considering how those impediments might be overcome so long as there is no money to implement them in any event.

Until the justice system is properly resourced, the reality for public observers (and everyone else) in the Court of Protection will be the arduous, costly, stressful and unsatisfactory experience I’ve described here.

Footnotes

[1] There’s recent Guidance from Mr Justice Poole on provision of Position Statements to public observers here: AB, Re (Disclosure of Position Statements) [2025] EWCOP 25 (T3) (15 July 2025). I was seeking to comply with that.

[2] For example: “MPs hear call to end ‘alarming’ abuse of elderly through powers of attorney”; “Pensioner evicted 94-year old father…”; “Mum trusted to be power of attorney stole £32,000 from ill grandmother to fund gambling addiction”; ‘Woman accused of £85,000 fraud while acting as power of attorney”

[3] Quoted in Charlie Moloney “Courts to have ‘open justice champions’” (5^th June 2025) and Charlie Moloney “No new money for ‘open justice champions’(11^th July 2025)

“Perhaps the most contentious matter is the question of his social media and internet access.” But who is the decision-maker?

By Daniel Clark, Eleanor Tallon, and Heather Walton, 24th July 2025

“The case concerns a young autistic man residing in a supported living setting, and proceedings have been ongoing. The real issues between the parties, as I understood them, are in relation to his care and support and whether the current package is appropriate. Perhaps the most contentious matter is the question of his social media and internet access. An outstanding matter is the Deprivation of Liberty and whether this should be authorised going forward.”

That’s how District Judge Clarke summarised this case (COP 13261362) at a hearing on Monday 14^th July 2025. At this stage, the proceedings had been ongoing for over 15 months, and look set to continue until at least October 2025.

DJ Clarke has overseen this case for the majority of the time it has been in court. She sits at First Avenue House, in London.

Daniel has followed this case for nine months. He has observed the case:

In person on 3^rd October 2024 (“the October hearing”)
Remotely on 17^th December 2024 (“the December hearing)
Remotely on 6^th February 2025 (“the February hearing”)
Remotely on 31^st March 2025 (“the March hearing”) – also observed by Heather.
In person on 14^th July 2025 (“the July hearing”, and focus of this blog)

Three of us observed the July hearing together (Eleanor and Heather remotely) and we kept in touch via WhatsApp during the hearing. We all contributed to this blog, bringing unique perspectives as observers.

Daniel is a PhD student whose research concerns older people; it addresses the exercise of state power within care arrangements – an abiding issue in this case.

Eleanor is an Independent Social Worker, Best Interests Assessor (BIA) and Expert Witness. She is also a Doctoral Training Pathway (DTP) student, and her research explores how complex welfare decisions are made under the MCA 2005, with a specific focus on ‘who is the decision maker?’, aligning with the central, contentious issue in this case.

Heather is the mother of a “P” in the CoP and has made a successful application to vary the Transparency Order that applied in her daughter’s case. She has a special interest in peer-supporting other parents with children who lack capacity as well as observing and noting the treatment and the experience that parents and family members have within the court process.

We made contemporaneous notes during the hearing and checked the material quoted in this blog post with each other to try to ensure that extracts purporting to represent what was said in court are as accurate as possible. None of us uses shorthand so these extracts are unlikely to be verbatim.

We are grateful to counsel for providing Position Statements. Daniel received the position statements from all five of the parties, though he had made a formal (COP 9) application for disclosure. Due to time constraints, the judge did not have time to hear the application in full – but she did express her “expectation” that he’d be sent the position statements.

Eleanor requested position statements informally (within her email, asking to observe the hearing). On 15^th July, the day after the hearing, she chased the request with all the parties, but has so far been provided with only two (neither the Trust nor the LA has sent theirs). Nonetheless, receiving even some of the Position Statements was new for Eleanor, who says: “This was the first time I’ve received position statements as a public observer (after observing about eight hearings). It made understanding the case and blogging about it accurately much easier. When I followed up my request for the position statements, I quoted the judgment in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3), which was published the same day (15^th July 2005). It seems this judgment has made a positive impact on transparency and open justice already”.

There are five parties: two applicants (the ICB and local authority) and three respondents.

At the July hearing, the NHS South West London ICB was represented by Sophy Miles (it’s previously been Ulele Burnham). With this exception, there’s been continuity in the counsel representing the parties across the different hearings.

The London Borough of Wandsworth is represented by Peggy Etiebet.

The protected party, XY, is represented by his litigation friend, the Official Solicitor who instructs Eleanor Leydon.

XY’s mum, who is one of his Personal Welfare Deputies, is represented by her pro-bono counsel, Oliver Lewis. At the February and March hearing, she represented herself because her Counsel was unavailable.

The South West London & St George’s NHS Trust, added as a respondent at the December hearing, is represented by Chiara Cordone.

This blog combines the commentaries of the three authors and is divided into four sections, as follows.

(1) Eleanor discusses the issue of XY’s access to the internet, and in particular a dispute about whether it is his Personal Welfare Deputies or the court that can make these decisions.

(2) Daniel discusses reductions in the supervision of XY from 2.1 to 1.1

(3) Daniel reflects on how two exchanges between the judge and Counsel for XY’s mum typified asymmetric power dynamics.

(4) Heather explains why the exchange detailed in 3 (above) left her wishing that professionals would think harder about the effect they may have on the families involved in Court of Protection cases.

There have been two blogs published about this case already: A young man failed by NHS South West London ICB and the London Borough of Wandsworth by Daniel Clark with reflections from Sophie Monaghan and Claire Martin (which also contains a background to the application) and DJ Clarke calls time on public body delay: Internet restrictions, consultation with deputies, and a rejection of judicial “micromanaging” by Daniel Clark.

Where it is relevant to the issues in this blog, we have quoted directly from these two previous blogs.

1. Who is the Decision Maker? – By Eleanor Tallon

This case interested me due to my experience as a social worker and BIA working in the Local Authority, as an independent mental capacity assessor, expert witness, and case manager in private brain injury rehabilitation. In all these contexts, capacity and care planning regarding social media and internet use have been live, challenging issues.

The subject matter also resonates with the focus of my MA/PhD research at the University of Birmingham, which explores the application of the MCA (2005) within private rehabilitation case management, and the question of ‘who is the decision maker?’ in complex welfare matters.

In XY’s case, the prospective change in care provider and the involvement of the Autism Intensive Support Team (IST) are promising developments. However, these proceedings have been characterised by stagnation – particularly around decision-making and care planning on social media and internet use.

It seems that the agencies have not worked together effectively to implement a protective framework in XY’s best interests. Commissioning disputes and questions around decision-making authority are an apparent stumbling block.

I will focus on: (1) The ‘progress’ so far; (2) The hearing on 14 July 2025: Best interests v commissioning decisions (3) Social media and internet decisions

1.1 The ‘progress’ so far

The position statement of XY’s mum highlights that there have been ongoing concerns about XY’s ability to make decisions about his online activities and the associated risks. Decision-specific capacity assessments were completed in October 2019, June 2020, and February 2022. They all concluded that XY lacks capacity to use the internet/ social media.

Further to this, XY was deemed to lack capacity on various health and welfare decisions. In March 2022, DJ Beckley (as he then was) appointed XY’s mum, and three other family members, as personal welfare deputies (PWDs).

Following best interests meetings held between clinical professionals, the care provider, and PWDs, restrictions were placed on XY’s digital devices.

However, in May 2024, XY’s community mental health coordinator removed the restrictions to XY’s online access without consulting his PWDs. This issue was brought to the attention of the Court of Protection by XY’s mum (PWD), who maintained that removing the restrictions was not in XY’s best interests.

Following a direction made at the October hearing, the Local Authority (LA) was to file evidence on the restrictions deemed necessary for XY’s internet use and whether to commission Cyber Spider (online security specialists).

Seemingly, the LA did not agree to commission Cyber Spider, and XY’s mum made an application for the court to appoint Cyber Spider as a Rule 15 Expert, whereby they would be instructed to provide a report on online risks and safety measures (the costs of an Expert Report are generally split between the parties).

At the December 2024 hearing, as documented in a previous blog, the benefits of having Cyber Spider involved were discussed:

Counsel for XY’s mum told the court that, “their reports have been very useful in providing the parties and the court [in other cases] on how certain websites can be blocked before certain times. XY is very technologically capable and Cyber Spider have the expertise to put in place software that blocks his ability to…without the provider turning off the Wi-Fi. It has to be done in a XY-specific and autism informed way. There has to be some nuance”.

The judge declined the application to appoint Cyber Spider as Rule 15 Expert.

During the March hearing, XY’s mum again raised the question of Cyber Spider being commissioned. The judge made it clear that she could not force the LA to commission Cyber Spider, and there were objections by the ICB, the Trust, and the LA around funding an Expert Report.

Yet, as reported in the last blog, there was the option of the court directing a report to be provided from a statutory body under section 49:

[The Judge] pointed out that neither she nor any of the parties could properly explain what possible restrictions are available. It therefore seemed logical to direct “a section 49 report from a cyber expert – not necessarily Cyber Spider”.

On 31 March 2025, the court made a section 49 order directing Professor Andy Phippen (who has expertise in online safety) to write a report by 30 May 2025. However, the report prompted some disagreements, particularly from XY’s mum, due to Professor Phippen’s perceived reluctance to recommend technical forms of online monitoring. It was noted that there was no consultation with XY or the family, and little recognition of the impact of XY’s autism.

As a result, questions were put to Professor Phippen, who responded by 7th July 2025. The upshot was that the Professor recommended a specialist assessment by a provider such as Cyber-Spider to inform the development of a tailored intervention plan, and that this may include technical strategies such as device monitoring and security checks (detailed in the ICB’s position statement).

The parties were back to square one.

All the while, XY is presumed to be at risk, , with ongoing concerns related to XY’s use of the internet (as expressed in June 2025 by the lead psychologist in the Autism IST, and documented in the Position Statement of XY’s mum).

1.2 The hearing on 14 July 2025: Best interests v commissioning decisions

Counsel for the LA told the court that, on receipt of Professor Phippen’s report, they were considering commissioning an assessment from Cyber Spider (or another provider) and that a decision would be made by the end of the week. It was clarified that the commissioning decision referred to funding an assessment rather than an ongoing service. There was further emphasis on making clear what the assessment would entail and the need for an accelerated time scale.

Judge: As part of the decision-making process, are you consulting with anybody other than the ICB? The deputies or any other person?

Counsel for LA: As far as the best interest decision, yes. As far as the commissioning decision, no.

This exchange exemplifies the distinction between making a best interest decision (under section 4 MCA) and the decision taken by the budget holder. Such decisions may be viewed in isolation, but in practice, they can be difficult to separate. At a later point in the hearing (discussed by Daniel in section 3 below), the judge referred to this as a workability issue.

A best interests decision can only be made based on tangible options. There must be a realistic prospect of funding for the service/ intervention, or treatment being decided in the person’s best interests. Likewise, there must be sufficient funding granted to meet identified needs and outcomes. This warrants close liaison between all parties and clear justification for both welfare and commissioning decisions.

1.3 Social media and internet decisions

In XY’s case, the decision advanced by his PWDs was that restrictions on XY’s internet use (in addition to a supportive and educational plan) are in his best interests, and that Cyber Spider was the best option in terms of assessing and recommending appropriate interventions.

The PWDs also assert that they have the authority to make decisions about XY’s internet use in his best interests.

Conflicts have arisen because, up to the current hearing, funding has not been agreed for Cyber Spider to provide an assessment. Even if funding is agreed, there are technical legal questions about whether a PWD has, or can be given, the authority to be the decision-maker for social media and internet use.

The local authority’s position is that the court should make the best interests decision on social media and internet use.

Even before grappling with that thorn (to which I will return in section 1.4), it seemed the parties were unclear about who should make a best interests decision or recommendation in the first instance, as evidenced by this exchange.

Counsel for XY: Professor Phippen could recommend, but he would not make a best interest decision. It’s not entirely clear that even if Cyber Spider were commissioned, it would be for them to make the best interests decision. I understand from Dr Lewis [Counsel for XY’s mum] that Cyber Spider will ask the parties to decide on outcomes. If there is a dispute, it’s not entirely clear what would happen.

Judge: So, what are you saying I should do next?

Counsel for XY: We need clear evidence on the approach and if the provider [Cyber Spider] is willing to make the best interests decision. If not, who should make the best interests decision?

Judge: Essentially what you want me to do is expand the evidence to include whether the provider commissioned is going to make a best interests decision recommendation. Does anyone disagree that this should form part of the directions?

Counsel for LA: The LA understanding is slightly different. Cyber Spider must attend the individual to undertake their assessment. In relation to the best interest decision, we understand they make recommendations as appropriate, which would involve different options of support and intervention, and then a further decision needs to be made.

On reflection, I would agree that a best interests decision could not be made by Cyber Spider, though they would be well-placed to make recommendations.

In my experience as a Best Interests Assessor and in other roles, I have reviewed care plans that include restrictions on internet and social media (where the person cannot decide on them) and where there were no welfare deputies in place. Decisions had been made collaboratively between professionals, providers, family, and representatives following the section 4 (best interests) checklist and involving the relevant person.

In those circumstances, I advised that the commissioning authority seek legal advice, and/ or refer to the Court of Protection to request specific authorisation on the internet restrictions, given that there is an interference with Article 8 rights (to private and family life) , which does not fall within the scope of a DoLS authorisation as per Schedule A1, MCA, or judicial authorisations for deprivation of liberty under Article 5).

1.4 The authority of a personal welfare deputy (PWD)

Whether a PWD has the authority to decide on internet and social media use is of great significance, not just in this case but on a much broader scale. The argument put forward by Counsel for XY’s mum is summarised here:

If the PWD does have authority under the current deputyship order, they will make the decision.

If the PWD does not have authority, they will make an application to vary the order to include decisions on the use of internet and social media, and they will make the decision.

If the Court follows the submission of the LA that the Court should make the decision, it will need to be clarified as to whether the Court has the power to make the decision where there is a deputy who has authority and is willing to make it. And if yes, in what circumstances should it do so?

The PWDs invite the Court to transfer the matter to a senior judge, given that there is no applicable case law and the outcome will be relevant to all PWDs appointed.

In my view, an authoritative determination is needed because the practical scope of a welfare deputyship can be ambiguous, and issues relating to internet use and cyber safety are prevalent.

The leading case on capacity to use internet and social media is Re: A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2, which states that a decision to use internet and social media is not the same as a decision to decide on the person’s contact with others. As per section 20 of the MCA, only the court can make decisions regarding restricting access to the person. This is also set out at 7b of the OPG Deputy Standards.

PWD orders typically include authority to make decisions on general care and could also include decisions on participating in social and leisure activities (which is a different category to deciding on day-to-day care). My understanding is that the PWD order in place for XY includes decisions on leisure activities. Would this include online leisure?

Having reviewed the ICB position statement, they do not express a concluded view on this matter, but reference is made to Re A, specifically para 26, which states that “wider internet use is different from general issues surrounding care”. In any event, the ICB contends that even if a decision on social media and internet use can be made by the PWDs, it remains subject to a commissioning decision by the relevant public body.

Around halfway through the hearing, the judge addressed Counsel for XY’s mum (Dr Oliver Lewis) and queried the request to transfer. Dr Lewis raised that case law has indicated that where a new, distinct point is to be decided on the function of a deputy, it has either been the senior or Tier 3 judge who determines those matters. Dr Lewis then made clear his position that the distinct point of law should be reviewed by Senior Judge Hilder.

From my perspective as an observer, it seemed that the judge wasn’t entirely welcoming of the suggestion to refer the matter to a senior judge. In fact, she appeared critical of Dr. Lewis from the outset (as discussed by Daniel in section 3 below). This was surprising given his commitment to support XY’s mum pro bono, and from what I saw, he was acting with utmost professionalism.

I will certainly be intrigued to follow this case, not least to see whether there is light at the end of the tunnel for XY and his family. But also, whether the case is transferred to a senior judge, and whether a legal determination is made. This could cast a far-reaching light on the decision-making powers of a PWD.

2. Reductions of supervision – By Daniel Clark

Aside from the ongoing uncertainties around internet and social media decision-making, I’m glad to report that there have been developments in finding alternative care providers since the last hearing, which is typified in this exchange:

Counsel for ICB (ICB): There has been significant progress. A Best Interests Meeting was held on 28th May… We have narrowed it down to two. Following collaborative discussions including the views of the Trust and the Autism IST [Intensive Support Team], who have been a positive addition.

Judge (J): Sorry I’m going to cut across you…I understand there was due to be discussion last week with providers.

ICB: A meeting took place last week with [Care Provider A]. They expressed confidence in meeting XY’s care needs. They were provided with the updated PBS plan that Dr W worked on. It was agreed that the next step would be to invite XY’s family and members of his MDT to meet with them, and they were fully supportive of that approach…We do not have a date for that to take place but it will be actively pursued.

J: And the other provider?

ICB: That meeting will take place on Wednesday of this week. It is timetabled so to be in a position for a commissioning decision by the 8th August, [including having] assessments and input of family and the MDT.

J: In terms of the progression from 2:1 to 1:1, is it now fully 1:1 with a second person on stand by?

A pivotal issue in this case has been level of supervision involved in XY’s care. Following an unsuccessful attempt at reducing the level of supervision, at the February hearing the judge had authorised up to 2.1 support as a necessary and proportionate deprivation of XY’s liberty. She was clear that this did not mean he had to receive 2.1 supervision.

At the March hearing, the court heard that XY continued to be distressed by this level of restriction. However, the judge considered this to be “micromanaging too far at this stage”, and told the parties to come up with a plan for transitioning down the level of restriction.

At the July hearing, it was clear that the parties had been listening. XY now receives 1.1 support during the day (with a second person nearby, on standby, if needed) and 2.1 support at night (one person awake and one person asleep, if needed).

The judge had also been to visit XY at his home, and noted the importance to him of reducing this further still. She asked about why there was 2.1 at night “when it’s 1:1 in the day…And can I be clear that the reason I’m asking is that it is a matter of real importance to him that reduces”.

Counsel for the ICB told the court that, by the end of the week, the ICB will have a plan for the reduction in this support. Counsel also assured the judge that the plan will be shared with the other parties and family members before it is implemented.

In previous blogs, I have been very critical of the conduct of the local authority and ICB. It was pleasing to see that there was some progress in this distinct area.

3. A stark exposition of power dynamics – By Daniel Clark – with comment from Eleanor Tallon

This hearing started with “an observation” from the judge: “Mr Lewis, your position statement surprised me because the title does not contain any anonymisation, not least it contains the full name of the individual at the centre of this litigation despite the fact it was your client, the mother of XY, who sought full anonymity and requested that the initials not be used, and so these proceedings have proceeded since that time with him being referred to as XY.”

For clarity, it did not appear to me that the judge was criticising the lack of anonymisation because the position statement may be sent to observers. Rather, she was critical of the fact that the position statement filed for the court’s attention was not anonymised.

There is not usually any expectation that position statements filed with the court are anonymised. In practice, they’ve rarely been anonymised – even when subsequently sent to observers. In fact, I’ve observed six hearings (in two cases) before DJ Clarke and, having reviewed my notes from those hearings, this is the first time that she has raised the issue of anonymisation.

Poole J is clear in his recent judgment (Re AB (Disclosure of Position Statements)) that he would “usually allow a variation of the Transparency Order so that a non-anonymised position statement may be provided to an observer who is at an attended hearing and who has the Transparency Order, rather than insisting on full anonymisation as a condition of provision” (§37.2).

Many judges have been concerned about the dehumanising nature of anonymised court documents. Mr Justice Mostyn has described anonymising orders as, “a terrible practice. I have struggled to imagine the impact on a person, particularly someone who is close to the line between capacity and incapacity, of reading a formal order which rules his life profoundly, in which his identity is stripped away and he is simply reduced to initials. It would surely be utterly demoralising, and perceived as patronising and insulting. I cannot identify any justification for this practice and I reiterate my comments in GU that it should not continue” (§39, my emphasis).

In Re GU, Mostyn J had addressed more than just court orders: “All of the Court documents in this case, including Orders, have the names of the parties anonymised by the use of initials. In the memorable words of Lord Rodger of Earlsferry in re Guardian News and Media Ltd [2010] 2 AC 697 at para 1 the case has become an “alphabet soup”. There is absolutely no reason for this, although for some mysterious reason, which I cannot work out, it has become standard practice” (§22, my emphasis).

When Counsel for XY’s mum asked if he could address the judge on that matter, she said she didn’t “want to spend time” on it. Counsel attempted to pursue the issue, seeking to explain that “the position statement is not published…the initials [would need to be] anonymised in public”. Indeed, the reason for the request to change initials was premised on a risk of online identification.

The order that set down the February hearing stated that, “the court also notes that [XY’s mum] has requested, on behalf of the First Respondent, that the terms of the transparency order be varied so as to further anonymise the First Respondent [XY] by use of different initials to prevent his identification online”. This was re-stated by the judge at the hearing: “because of concerns raised by [XY] to [his mum] about his personal details being on the internet…I made directions in relation to revoking the previous Transparency Order and revising it to anonymise [XY]”.

I think the point that Counsel was pursuing was that court documents be placed online, and therefore anonymity within them is unnecessary.

Unfortunately, as observers, we don’t have an agreed note of what the judge said at this stage. We do however agree that she did not want the issue to be pursued further.

This exchange had the rather chilling effect that, for the rest of the hearing, the protected party was referred to as “XY”. This is extremely unusual – although it’s happened at least once before to our knowledge (see “Anonymising P and his family in the courtroom: An unnecessary and unhelpful precaution”). To my memory, XY’s first name had been used in previous hearings. In my view, this further dehumanises a person who is already at risk of being lost in court proceedings – especially where discrete legal and procedural issues are being discussed.

This also set the tone for a later exchange between the judge and Counsel for XY’s mum.

The nature of the dispute between the parties, as detailed by Eleanor above, is far from an academic one. It will also affect more than XY’s deputies. It’s an important point of law, and I can see the attraction of transferring the case to a more senior judge for a declaration on that point alone.

It was therefore quite shocking to me when the judge took a somewhat different approach to the issue. When asking Counsel for XY’s mum to expand on the point about transferring the case, she also commented that she’d like to “make a few observations”.

The second of the two “observations” was the matter for workability: if the deputies make a best interests decision that is within the scope of their powers to make, but the local authority makes a commissioning decision that they will not fund that best interests decision, where does that leave matters? Eleanor has discussed this above.

The first observation was a tangential discussion of the circumstances in which it is possible for the court to revoke a deputyship. Here’s what happened (from the contemporaneous notes of myself and Eleanor) – you’ll see that the judge moves fluidly between the workability issue, and the issue of the court’s powers to revoke a deputyship:

Judge (J): “I’ll come back to this but I’m going to make a couple of observations…you need to think carefully about the issue to be decided, by who, and what you want decided. I would observe that the authority of a Personal Welfare Deputy is granted by the court and can be removed from the court. One of the grounds in section 15 of the MCA…is it could be varied or discharged by further order, and in particular if the deputies are not in acting in what the court considers as the best interests of the individual who lacks capacity. Your position statement as it currently stands does not appear to have fully addressed those issues in the sense that, if the court were involved in considering best interests, and determining whether or not an attorney was acting in best interests …that is something that which may run alongside or separate from submissions you have already made. There is also clear indications in the MCA that, when appointing a deputy, the court must consider the scope, and that a decision of the court is preferable to the decision of the deputy.”

Counsel for XY’s mum (Counsel): Those points could be applicable to any decision made by a deputy…

J: I’m simply observing that the best interests decision relies on commissioning. There are other provisions in the MCA that your position statement doesn’t address, and the biggest issue might be the workability one…which ranges from commissioning to …

Counsel: The position statement and my client’s witness statement does address workability….The main thing they’re focused on is [that] XY is presumed to be at risk of harm.

J: That is a significant concern of the court, which I have expressed previously. But there are many ways in which to address that. What I’m concerned about is, if there is a commissioning decision that runs contrary to the best interests decision made by the deputies, assuming that is something that they are entitled to do, there may be a challenge in another court, and this must be factored into the issues. The court will not need a party to raise this issue to consider whether to vary or indeed discharge that order…That can be involved in these proceedings…I don’t want to dwell on this any further. I agree it is not a matter I can make determinations on today. I will look at the draft order and what you have agreed but, at the moment, I am minded to give you an opportunity to consider all of these points before making a referral to a senior judge.

This contemplation of the grounds on which a deputyship can be revoked was unprompted. Having had the benefit of access to the position statements, I am entirely unsure where the idea even came from.

As far as I am aware, no party is suggesting that XY’s deputies are acting other than in his best interests. In fact, as the exchange went on, I discretely looked around the courtroom to see if I could identify a glimmer of recognition in anybody’s face. I saw at least one person frowning. Another was staring intently at the desk in front of them A few people were shuffling uncomfortably in their seats. XY’s mum and the other deputies were sitting behind me, and I can only imagine what their body language would have revealed.

Shortly after the exchange, the judge adjourned for “five to ten minutes” (it turned into twenty). The speed with which the courtroom emptied suggested to me that this adjournment came as a relief to everybody.

This, however, misses the point.

This is a direct contrast with how the judge has conducted this case so far. At previous hearings, she has struck me as an impressive judge who was clearly frustrated with the lack of progress. When XY’s mum has represented herself, the judge has taken care to ensure that various steps have been understood – including during a technical discussion about the instruction of an expert at the March hearing.

The Open Justice Court of Protection Project frequently supports family members of a current or potential “P” to observe hearings.

I dare say that, if this had been the first time somebody in that position was observing the Court of Protection, it would have done nothing to reassure them.

Comment from Eleanor Tallon

I was particularly shocked following the exchange (about the referral to a senior judge) between Dr. Lewis and DJ Clarke in which DJ Clarke alluded to the powers of the court to revoke the deputyship. Without having seen the position statements at that point, I wondered if there were concerns about the conduct of the PWD that had not yet been openly discussed, but I’m now aware that is not the case.

I considered whether this reflected a ‘stamping of authority’, or the judge’s ongoing frustrations with a case riddled with delays, or general stress from an extremely pressured and time-intensive role. Whatever the reason, it appeared that XY’s mum and her barrister took the brunt of it, which seemed unfair. Notwithstanding this, XY’s mum presented as very calm, polite, and focused on the well-being of her son.

4. Some reflections on observing the court (Heather Walton)

I come to these observations from a personal viewpoint. I’m the mother of a “P” in the CoP and having made a successful application to vary the Transparency Order that applied in my daughter’s case so that I can say this publicly (thank you OJCOP and Celia!), I am interested in peer-supporting other parents with children who lack capacity as well as observing and noting the treatment and the experience that parents and family members have within the court process.

My deep (and perhaps unreasonable) hope is that professionals within the CoP process begin to understand the stress and trauma that can be associated with the experience for families who find themselves in the thick of CoP proceedings. There is no doubt that some professionals see this and understand better than others – but we have a very long way to go.

Myself and a couple of other observers were watching online, whilst the case was heard in person. This caused a few issues from the outset, as whilst we could see some people in the court, we couldn’t observe everyone and it was hard to ascertain who was speaking sometimes. The audio was also dire and I missed quite a lot of what was said.

There were a few moments within this case that really stood out for me – and not for the right reasons sadly. I absolutely and utterly appreciate how hard judges work and the frustrations that they feel on late admissions and professionals within the court not being ready with answers. This session was delayed by half an hour as representatives weren’t ready – the Round Table Meeting (RTM) beforehand was still ongoing when the hearing should have started.

But the only thing that should matter – should ever matter – is the “P” at the heart of the case. And judges and legal professionals have a responsibility to the family, (especially – though that wasn’t the case here – if they are litigants in person) to guide them through the court process. Sometimes a little bit of thought about word choices and tone are all that are required but would make a huge difference.

Daniel has explained a strange interlude relating to deputyship, when the judge pointed out that deputyship could be revoked. Even though this is obviously legally correct, it seemed an extremely strange and bluntly unkind thing to mention in the court. How on earth did those members of the family who are deputies feel when she said this? What was she implying? Quite possibly nothing, but this is where the careful thought about words and their impact on others should be at the front of a judge’s mind.

The judge had visited XY since the last hearing. She expressed that he was very keen to change his 2-1 staffing overnight to 1-1 and she wanted to make this happen for him as quickly as possible.

This frustrated me because it is an issue that has been returned to throughout this case. Why did the judge reject it as “micromanaging too far” at the March hearing but then openly endorse it at this July hearing?

Those of us with young people lacking capacity in our families will understand how a brief visit by an unknown professional can throw out all kinds of anomalies – which is why advocating professionals should establish a stable base and relationship with the person before asking any questions at all. It may be in this case that these changes to staffing are appropriate, but it is not something that a judge who has met someone once should be handing out as something to be done without discussions with carers, parents and those around the young adult.

At the end of the hearing, the mother of XY thanked her Counsel and Mckenzie friend for their support. The judge said, “That’s not appropriate, you can give thanks outside of the hearing [after a pause] though I’m grateful that you are getting the support you need, as it can be very difficult acting as Litigant in Person”.

This was another slightly jaw-dropping moment, as it was completely unnecessary and not kind. The mum in this case demonstrated a wonderful attitude which I hope served as a demonstration to everyone in the court of how we should all treat others.

I am a realist. I do not expect all the professionals in the court to always demonstrate the Thumper Principle (“if you can’t say anything nice, don’t say anything at all”) – that would be extremely difficult and I understand that.

That being said, I wish that professionals thought harder about the effect they may have on the families involved. It is the professionals’ job within the court and they are paid for it (though on this occasion Oliver Lewis was working pro bono). But for the families, it is their lives, and the unnecessary stress that can be caused by thoughtless comments should never be forgotten.

Eleanor Tallonis an Independent Social Worker, Expert Witness, and BestInterests Assessor. Eleanor is also an ESRC-funded Doctoral Training Pathway (DTP) student at the University of Birmingham. Her research focuses on the application of the Mental Capacity Act (2005) in private brain injury case management. Eleanor can be contacted via email eleanor@mcaprofessional.co.uk or through her website mcaprofessional.co.uk and found on LinkedIn or X(Twitter) @Eleanor_Tallon

Heather Walton is the mother of a “P” in Court of Protection proceedings and acted as a litigant in person. She’s previously co-authored a blog post: A mother now free to tell her Court of Protection story

I’m finally free to say I’m a family member of a P: Does it have to be so hard to change a Transparency Order?

By Amanda Hill, 22nd July 2025

I went to a friend’s 60^th birthday party last weekend. Jane has a lot of friends from different walks of life and encouraged us to meet new people. When guests arrived, not only did we have badges with our names on, we were also given a list of two people who Jane had carefully selected, because she thought we would have something in common. It was fun searching for Sally and Helen and I’m glad I got to talk to them. Naturally both Sally and Helen asked me what I was currently doing. I explained about the Open Justice Court of Protection Project and about my PhD on family experiences of the Court of Protection, media representations and social media activism. I felt so relieved to be able to talk openly about why I’m interested in this subject: that I have experience of the Court of Protection myself, because my mum was a protected party, ‘P’.

Up until four months ago, just for saying that, I risked the Court finding me in contempt and fining me or seizing my assets or even committing me to prison. That’s because I am subject to a Transparency Order (TO), an injunction restricting what I can say about the case. One aspect of the TO has now been varied (changed) so that I can now openly say these simple words publicly: I am a family member of a P in a Court of Protection case.

I have already blogged about our Court of Protection story twice before: Our ordinary story ….and how it became an unbelievable family experience of the Court of Protection and Deprived of her liberty’: My experience of the court procedure for my mum (a blog which originally I wrote under a pseudonym, ‘Anna’, and which has been viewed nearly 9,000 times). This blog tells the story of my application to change the TO.

I must admit that I am slightly nervous about writing it, because the TO is still in place. I’m still not allowed to say anything that would reveal my mum’s identity, where she lives or who any of her carers are. My siblings still aren’t allowed to say anything at all about the case and I can’t name them. The injunction is in force “until further order of the court”. His Honour Judge Murch decided not to vary it to “until the death of P” as I wanted. So, when Mum dies, I will have to apply to the court to ask that the TO is discharged completely. I hope that writing this blog doesn’t have a negative impact on that process.

Making the application

Mum moved into full time care in July 2021. That sparked a Court of Protection process that finished with an agreed final order in December 2022. But my involvement in the case ignited a passion for open justice, which resulted in me becoming a core team member of the Open Justice Court of Protection Project in June 2023, regularly observing and blogging about hearings, and now my PhD research. I quickly felt constrained by having to keep my identity a secret. In July 2023 I wrote a blog about that: Gagged – in whose best interests? I had to write that as ‘Anna’. I was fed up of hiding behind ‘Anna’ and not being able to say who I really was. I asked Celia Kitzinger if she would help me apply to change the TO.

We decided that writing a letter would be the best approach, hoping that the judge who had heard the case, HHJ Hildyard, would agree to change the TO without the need for a formal application. Celia and I drafted the letter, with some informal lawyer input. The four page letter, dated and sent 13th September 2023, set out in detail why I wanted the TO changed and in summary asked for the following:

I was full of hope that the letter would do the trick. But my hopes were very quickly dashed. The next day, 14th September 2023, I received the following reply from the court:

My heart sank. I’m not a lawyer and although I have been a Litigant in Person, and have learned a lot about the CoP over the past four years, it was still a daunting prospect. I barely understood the paragraph from the judge. At least I knew I had Celia to support me. I wondered whether I would have to represent myself as I had done for the original hearing, but after Celia asked around, I was incredibly lucky to get pro-bono legal representation from Irwin Mitchell, first from Kirsty Stuart and then from Mathieu Culverhouse, as well as their paralegals. And amazingly there was some input from Alex Ruck Keene too. But the wheels of justice move slowly and I could never have foreseen that it would take 17 months before my legal team submitted the formal application.

Why did it take so long? That’s a good question. But there were a lot of factors. Changes of personnel in my legal team naturally led to delays, with new people needing to get up to speed. There seemed to be some uncertainty on behalf of Mum’s Litigation Friend, the Official Solicitor (OS), as to whether she still represented her, as the substantive hearing had finished. Eventually they decided that she didn’t. This came as a relief to me, not only because it meant one less party to negotiate with, but for financial reasons. Mum automatically received legal aid for the S21A appeal that was the subject of the original case but that had stopped now that case had finished. Although this application related to the original case, and it had the same case number, the legal aid agency confirmed to Mum’s representatives that legal aid would not be available to Mum in relation to my application. She has savings above the threshold so she would have to pay for her representation herself. I have heard that a minimum fee to be represented at an attended hearing by the OS is £20,000 (I remember Senior Judge Hilder saying that in a hearing I observed). As mum’s savings are being used to pay for her care (she is a self-funder), of course I feel morally obliged to pay Mum back for any costs, as I am responsible for the application. But that’s a lot of money for me, and for most people.

There was also a lot of to and fro with the Local Authority. I believe it was lucky that at least there was some continuity on the LA legal team. However, I was no longer a Litigant in Person as I had legal representation so that meant I couldn’t communicate with the LA legal team directly. There were a lot of emails between me and my legal representatives and the LA about what the LA would agree to. For example, I wanted all of my siblings to be able to say they were a family member of a protected party in a CoP case. But the LA were concerned because one member of my family shares a surname with my mum (my brother), and others live in the same town (my sister who is LPA and my brother). I’m not sure what they thought the problem was with my other sister, who like me lives overseas. In any case, the practical problems were far greater for me than for my siblings, due to my involvement with Open Justice Court of Protection Project and my PhD about the COP. In the end, the LA agreed only for me to be named as the family member of a protected party. The LA wanted an additional clause added that prevents me naming any staff caring for Mum and I agreed to that. I wondered if they were worried that I will be critical of Mum’s carers, but I think they are heroes for all the work they do at Mum’s home.

As time went on, I realised that there was a chance Mum would die before the case got to court (she’s now 91). In order to avoid another application after that, I asked that the duration in the TO be changed from ‘until further order of the court’ (which is what it read initially) to ‘until the death of P’. That way all restrictions would fall away when Mum dies. The LA agreed to my request. My siblings are, and always have been, fully behind me and supported this application.

Finally, after all the negotiations and multiple drafts of documents, the application was sent to the court on 23rd February 2025:

The court considers the application

My legal team and I hoped that due to all the hard work that had gone into the application, the court would approve the application ‘on the papers’, that is without a hearing. That would be less nerve-wracking for me and my siblings, use less of my legal team’s time and be much less costly for the taxpayer, who are paying for the LA’s legal representation as well as the judge and court’s time.

That wasn’t to be the case though. I was away on a week’s holiday when I received a very unwelcome email from my legal team:

To put it in a nutshell, I live in France, and the judge was concerned that I am outside the court’s jurisdiction and therefore wouldn’t comply with the TO – in particular the recital added to it which required me to give an “undertaking” “not to refer to BB or other family members by name, the town in which BB lives, or the name of staff supporting BB or the name of the care home and its location in any public discussion of the case”. The court would only vary the TO to permit me to identify myself as a family member of BB if I gave this undertaking.

On one level, I can understand the judge’s concern. On another level, I found it bewildering, as I have lived in France for over 20 years, had been joined as a party to the case by HHJ Hildyard, and have always respected the original TO dated 29^th March 2022. Why would I breach a varied TO when I had always respected the first TO? Where I live had never been raised as an issue before. I wondered (and still wonder) why it had become an issue now that I was asking the court to vary the TO. The issue also applies to my eldest sister, who also lives outside the jurisdiction, but that didn’t come up.

I also didn’t understand the point about not hearing evidence from me if I was outside the jurisdiction at the time of the hearing[^1], even though it was to be a fully remote hearing. There was some confusion about that – would I have to go to somewhere in the UK on 20^th March to access a remote hearing? In the end, I stayed in France. And the judge didn’t hear any evidence from me.

I was very nervous in the run up to the hearing, there was so much riding on it for me. I was glad that Celia said she was available to observe. I also observed a hearing before HHJ Murch (a judge I’d never seen before) so that I could see what he was like and prepare myself for the day. I did as much preparation as I could. But there was one last curveball that I hadn’t expected.

The evening before the hearing, the OS solicitor sent an email to the court saying that although they no longer represented Mum, the court might think that it was appropriate that Mum be represented in respect of the application, based on the documents they had been copied in on, that is the suggested change to the TO. I was stunned and furious when my legal team passed the information on to me. What possible harm is there to mum from all this? She didn’t even understand about the case going to court in the first place. And we know, from knowing her and from what she said to various people including her then RPR, that she didn’t want to go to court. And yet the court case was still having consequences. Would the application be adjourned, and the uncertainty drag on? And would I end up paying thousands of pounds? I honestly wondered whether it was all worth it. It was so stressful I couldn’t sleep. I woke up in the night and wrote this, which I sent to my lawyer early the next morning and asked to be read to the court if necessary:

Statement from Amanda Hill 20th March 2025 BB 13899903

I woke up in the middle of the night last night and I couldn’t get back to sleep. Thoughts were going around in my head about today’s hearing. How would I be able to get across how I feel about not being able to say who I really am?

I remembered how it felt that day, last October, when I observed a hearing before Senior Judge Hilder. There were only six people in the courtroom, including the judge, one advocate, two parents, and me sitting at the back of the courtroom. P was not represented.

The advocate had explained to the parents before the hearing that I would be observing and I was from ‘Open Justice’.

As we were leaving the courtroom after the hearing, the mum stopped, turned to me and said “You’re Anna, aren’t you?”. I could feel myself going red and getting hot in the face. I spontaneously blurted out “Well, if I was, I wouldn’t be able to tell you.” But we looked each other in the eye and I could tell she knew. Then she said “I’ve read your blog”.

So, I could argue based on ‘Article 8’ and ‘Article 10’ rights but what it boils down to is that I just want to be able to say publicly: “Yes, I’m ‘Anna’ and I am a family member of a P in the Court of Protection”.

In any case, the time for the hearing had finally come and there was nothing else I could do. I was so nervous.

The hearing on 20^th March 2025

The hearing lasted about 45 minutes. At this remote hearing I was represented by Mathieu Culverhouse of Irwin Mitchell and his paralegal, who had done a lot of the work in pulling the application together. Unfortunately, there wasn’t a barrister available to represent me pro-bono so I appreciate Mathieu Culverhouse representing me, as it’s not normal for a solicitor to take that on. The LA was represented by Francis Hoar of Field Court Chambers. The court had agreed that my siblings (and my sister’s husband who is joint LPA) could attend the hearing even though they weren’t parties. My two sisters and my brother-in-law attended. My brother couldn’t as he was working. Celia Kitzinger observed, as did Kim Dodd, a regular CoP observer. I didn’t make any notes as I was so involved in the hearing. To be honest, it passed in a bit of a blur for me as I was so anxious.

The judge didn’t address me and my siblings directly at all, only speaking to the legal representatives. The two parties, my legal representatives, and the LA were in agreement and Mathieu Culverhouse didn’t get to read out my statement. He didn’t need to. The judge seemed satisfied that I would comply with the (legally binding) ‘undertaking’ not to breach the varied TO, even though I live outside the court’s jurisdiction of England and Wales.

For this I have to acknowledge the considerable contribution of Francis Hoar, Counsel for the LA, who was incredibly helpful in addressing the judge’s anxieties about me living in France and therefore outside of the court’s jurisdiction. The position statement he prepared dealt with the jurisdiction issue comprehensively. The points he raised were also “gratefully adopted” by my legal team. I’m not sure the judge would have varied the TO were it not for the arguments put forward by Counsel for the LA and I am very grateful to him. The TO was amended further due to his intervention. I have included the relevant paragraph as an appendix, as well as the case law that was cited in the position statement, as maybe it will be useful to other families who live outside the jurisdiction.

The matter of Mum not being represented at the hearing was also addressed by Counsel for the Local Authority, in his position statement. Paragraph 8 states “CBC wishes to ensure that it provides its opinion to the Court as the independent public body responsible for BB’s care and for authorising her deprivations of liberty under the standard procedure under the MCA. This is important in circumstances where the Official Solicitor (the ‘OS’) has been discharged from representing BB as her litigation friend, albeit she has informed the parties that she does not object to the Application.”

The judge accepted that Mum did not have to be represented by a litigation friend at this hearing to vary the TO. But he did decide it would be best not to change the duration to ‘until the death of P’ in case the OS want to make representations about discharging the TO completely after she dies. The following was inserted into the order:

Paragraph (8) of the Transparency Order is removed and replaced with the following

wording: ‘This Injunction shall have effect until further order save that any party or

interested person may apply to vary it upon the death of BB; and that any such

application shall be considered in the first instance on paper by HH Judge Murch or

his nominee if available, or by any other judge’

That means that when Mum dies, on top of the usual grieving process and planning her funeral, I know that I will be thinking about applying to the court to discharge the TO. It’s an extra burden I could do without, especially with the uncertainty about what the court will do. I can only hope the application is straightforward and can be considered ‘on the papers’ without a hearing.

The key change made to the TO – the change that means I’m free to say I’m the family member of a P was this one. The standard sentence in the TO saying that it’s forbidden to publish “any material or information that identifies or is likely to identify that: any person is a member of the family of the subject of these proceedings” was revised to read instead “… any person, save for Amanda Hill is a member of the family of the subject of these proceedings”.

I was finally free to be open about my Court of Protection experience. I received the sealed court order on 8th April 2025.

A weight lifted from my shoulders

I really hadn’t appreciated how much the TO was weighing on me and how much being free of it would feel like a weight has lifted from me. I became emotional saying publicly for the first time that I was the relative of a P in the Court of Protection when I presented my PhD research to my fellow PhD students at the annual conference of the School of Journalism, Media and Culture, Cardiff University, in May. That completely surprised me.

I’m already seeing the benefit more widely of being able to talk more publicly. For example, I’ve been asked to speak at a Regional conference for DoLS assessors in September 2025. I was contacted after one of the organisers read my second blog about our story. The objective is for mutual learning. It’s exactly the sort of outcome I wanted when making the application. It is also really important for me to be open with future research participants about the fact that I have been involved as a family member of a ‘P’ too.

I don’t think the court has any idea about the impact on family members of feeling gagged. And what harm is it really causing Mum that I am now free to speak about the CoP case? None in my opinion. Mum doesn’t remember the case or my application to vary the TO, although I have told her. And she’s said she’s proud of me. She’s not rich or in the public eye. She’s an ordinary member of the public and we are an ordinary family, like most others involved in Court of Protection cases. Is the veil of secrecy imposed by a TO on P’s family really necessary as a default position?

And is a duration of the TO ‘until further order of the court’ really needed as a default, as research I carried out for Cardiff University showed is the norm? In a sample of 32 TOs from 1^st October to 31^st December 2024, the duration was ‘until further order of the court’ for 29 of them. That means that if a family member wants to talk openly about their Court of Protection experience, even after their family member has died, they have to apply to the court to discharge the TO. Is that really a sensible use of court time? And taxpayer’s money?

I hope that this blog post has shed light on how hard it can be to challenge reporting restrictions, even with the support of a legal team. I’d like to think that this blog can help other family members understand what it can take to ask the court to vary a TO. I also want professionals involved in the CoP to understand more about what it can be like for a family member covered by a Transparency Order and why the term ‘gagged’ is used by families so often.

The process of varying a TO has been much swifter for some families than for me – as I observed in the case of Heather Walton (see: A mother now free to tell her Court of Protection story). I remember feeling very emotional when I observed that hearing as I was so happy for Heather. Heather’s daughter is still alive, as my mum is, which makes it more difficult to challenge a TO. It can be easier when P is dead (see: When families want to tell their story: Discharging a transparency order and “‘The horse has already bolted’: Transparency in a case of “brain-stem death”’). However, as one recent blog shows (Silence from HHJ Rowland: A transparency fail), even after P dies it can still be difficult to discharge a TO so that a family member can tell the story of their Court of Protection experience.

All in all, I wonder whether it really does have to be this hard and take so long for TOs to be varied. Are prolonged reporting restrictions always in P’s best interests – or is the Court of Protection being over-cautious? I ask myself that a lot.

Appendix

A new paragraph was inserted into the TO to deal with the jurisdiction issue. This is from the approved order, dated 8 April 2025, paragraph 2:

Following paragraph (5), a new paragraph (5A) is added to the Transparency Order as

follows:

(1) Except as provided in paragraph (2) below, the terms of this order do not

affect or concern anyone outside the jurisdictions of England and Wales,

Scotland or Northern Ireland

(2) The terms of this order will affect the following persons in a country or state

outside the jurisdiction of this court—

(a) the respondents or their employees or agents;

(b) any person who—

(i)is subject to the jurisdiction of this court;

(ii) has been given written notice of this order at his residence or place of

business within the jurisdiction of this court; and

(iii) is able to prevent acts or omissions outside the jurisdiction of this court

which constitute or assist in a breach of the terms of this order; and

by or is enforced by a court in that country or state.

This wording came from Paragraph 12 of the LA position statement (see below).

In order to assist other families outside of the Court’s jurisdiction, I think it might be helpful to quote extensively from the position statement, and again I thank Francis Hoar for the time he took to consider this matter:

The jurisdictional issues arising out of AH living in France and the implications upon the proposed undertaking of AH.

§10: Counsel settling this position statements has searched for judgments in the Court of Protection concerning undertakings given by a person outside the jurisdiction without success. However, in both Re P and Re J, transparency orders were made in the Court of Protection and the Family Division of the High Court that applied to persons outside the jurisdiction of England and Wales (or, indeed, the United Kingdom). Thus, CBC is satisfied that the Court has jurisdiction to make such orders and would be able to enforce them in the same way as it would be able to enforce any order against a person outside the jurisdiction; and that it is appropriate for the Court to exercise its discretion to do so in circumstances where AH is willing to comply with that jurisdiction.

The agreed draft order to vary the Transparency Order.

§11: While CBC had agreed the draft order, it considers on reflection that it should be amended as indicated above..

§12: On reflection and having considered authority, CBC asks the Court to add a provision to the draft order that reflects the position in freezing orders that apply outside the jurisdiction and that was approved by Mumby P in Re J (at para 65). Adapted to this case, the Court is asked to add the following paragraph to the Transparency Order :

(1) Except as provided in paragraph (2) below, the terms of this order do not affect or concern anyone outside the jurisdiction of this court.

(2) The terms of this order will affect the following persons in a country or state outside the jurisdiction of this court—

the respondents or their employees or agents;
any person who—

(i)is subject to the jurisdiction of this court;

(ii) has been given written notice of this order at his residence or place of business within the jurisdiction of this court; and

(iii) is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order; and

any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state.

[…]

§14: CBC have considered whether the Court should make an order that AH may be served with the order outside the jurisdiction. However, given that she has solicitors in England who are permitted to accept service and no enactment, rule, Practice Direction or order directs personal service (including Practice Direction 4C applying to transparency orders), it considers that such an order is unnecessary and that r. 6.3(3) of the Court of Protection Rules 2017 would require the varied Transparency Order to be served on her solicitors.

ORDERS APPLYING OUTSIDE THE JURISDICTION

§16: As has been said, Mumby P made orders restricting the reporting of proceedings against persons outside the jurisdiction in Re J and Re P.

§17: In Re. J at paras 44-65 he set out in detail the background to the Court’s jurisdiction to make orders against persons outside the England and Wales. At para 52 he observed that:

As can be seen, there are two separate principles in play. First, that the person who is to be injuncted must be amenable to the court’s jurisdiction. That goes to jurisdiction. Second, and because equity does not act in vain, that the court will not grant an injunction which is idle and ineffectual. That goes to discretion….

§18: It will be noted that AH – who is already bound by the Transparency Order – is clearly amenable to the Court’s jurisdiction given her application to vary it.

§19: Munby P went on to note (at para 55) the following part of the judgment of Re Liddell’s Settlement Trusts [1936] Ch 365

‘It is plain that this Court has jurisdiction to order a person in this country to perform an act abroad; but it is said that this Court has no jurisdiction to make an order requiring a person resident abroad to do an act there. Notwithstanding the strenuous argument of Mr. Archer it appears to me that his proposition is wholly untenable. The moment a person is properly served under the provisions of Order XI that person, so far as the jurisdiction of this Court is concerned, is precisely in the same position as a person who is in this country.’

§20: AH has been served with the Order and has solicitors in this jurisdiction who will be served with the Order as it is varied. Should the Court consider it appropriate, it could also make an order that the varied Transparency Order may be served on AH outside the jurisdiction.

§21: Munby P then noted with approval Butler-Sloss LJ’s finding in Wookey v Wookey; S (A Minor), Re [1991] Fam 121 said that ‘there must be a real possibility that the order, if made, will be enforceable’ (see para 62 of Re. J).

§22: Applying these principles, CBC submits that that there is no reason why the Court should not impose this injunction on AH outside the jurisdiction.

***

Footnote

[1] A recent judgment from Poole J about hearing evidence from people outside of the jurisdiction says “Day after day parties participate and give evidence in cases before the Family Division of the High Courtand the Family Court by remote video link from abroad.” (§112, Newcastle CC v JK and Ors (Care Proceedings: International Abduction: evidence from abroad) [2025] EWHC 1767 (Fam). In paragraph 123 he concluded: “Accordingly, I ruled at the hearing that I would receive evidence by video link from Austria from the Father and the Paternal Uncles notwithstanding the correspondence from the FCDO. [Foreign, Commonwealth and Development Office]”

Background

Court of Appeal

The hearing

Reflections

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1. Motability hire agreements

The positions of the DWP, Motability and the Public Guardian

2. The hearing

3. Reflections from the applicant

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1. YD’s diagnosis and prognosis: Evidence from the medical experts

2. YD’s values, beliefs, wishes and feelings, and evidence from his family and friends

2.1 Evidence from JG (Partner)

2.2 Evidence from MB (Partner)

2.3 Evidence from Mr T (Friend)

3. Closing submissions and my reflections

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“Deprivation of Liberty” and questions about a s.21a appeal: May 2021-February 2023

A s.21A challenge to Deprivation of Liberty formally raised and laid to rest? March 2023

A decision to proceed with a s.21A Appeal: August 2024

Court of Protection hearing: June 2025

Transparency Order

Reflections

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The hearing

Position Statements

The applicant Trust

The Official Solicitor

The hearing resumes: Official Solicitor seeks adjournment

P’s son – witness evidence

Procedural fairness – judge declines the OS request for adjournment

Wife’s evidence

Medical evidence

Daughter’s evidence

Reflections

Footnotes

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1. This hearing never appeared in any public listing

2. The judge remade the Transparency Order so as to ban identification of Leicestershire County Council – despite a successful application 6 months earlier to lift that ban

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1. How did it come about that Luba’s capacity to litigate was questioned?

2. What is meant by ‘capacity to conduct proceedings’ and how was this applied in Luba’s case?

3. Concerns about Luba Macpherson’s behaviour and conduct earlier in the proceedings

4. The Protection Imperative?

Reflections

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My observation experience

UPDATES on approved orders

Reflections: The high cost of open justice

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1. Who is the Decision Maker? – By Eleanor Tallon

1.1 The ‘progress’ so far

1.2 The hearing on 14 July 2025: Best interests v commissioning decisions

1.3 Social media and internet decisions

1.4 The authority of a personal welfare deputy (PWD)

2. Reductions of supervision – By Daniel Clark

3. A stark exposition of power dynamics – By Daniel Clark – with comment from Eleanor Tallon

Comment from Eleanor Tallon

4. Some reflections on observing the court (Heather Walton)

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Making the application

The court considers the application

The hearing on 20th March 2025

A weight lifted from my shoulders

Appendix

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The hearing on 20^th March 2025