Serving a prison sentence for contempt of court: Luba Macpherson

By Amanda Hill and Celia Kitzinger, 15th October 2025

By the point at which we observed the Court of Appeal hearing on 9^th September 2025 (Amanda in person, Celia remotely), the outcome felt like a foregone conclusion. It seemed very likely that Luba Macpherson[^1]would be sent to prison, immediately. And that’s what happened. It was followed 10 days later by another hearing (in Newcastle) that was adjourned.

In this blog post we report on the case as follows:

1. Summary of the case so far

2. The Court of Appeal hearing on 9^th September 2025

3. Bearing witness in person to the Court of Appeal hearing

4. Hearing on 19^th September 2025 before DJ Temple in Newcastle

1. Summary of the case so far (Celia and Amanda)

Luba’s daughter (FP) lives in a care home and has been diagnosed with paranoid schizophrenia. 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.

From a fairly early point in the proceedings Luba has conducted a public social media campaign to (as she sees it) get justice for her daughter: this includes video footage and audio-recordings of her conversations with daughter, sometimes with a member of the care home staff present. A Court of Protection judge, Poole J, made an injunction prohibiting Luba from posting material about FP on the internet but Luba continued to do so, because she believes 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 suspended sentence, but her appeal was dismissed (4^th May 2023). She 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: “Warrant for arrest of P’s mother”.

Luba filed her application to appeal that four-month prison sentence on 21st March 2024, in the Court of Appeal, but it took a long time before her appeal was heard. This is because 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, and finally the appeal stalled altogether due to Luba’s own legal team having raised concerns that their client lacked capacity to litigate. This would mean that the prison sentence could not be imposed.

The case was referred back from the Court of Appeal to the Court of Protection – where it was heard by the Vice President (Mrs Justice Theis) who found that Luba does have capacity to litigate the proceedings. We blogged about the litigation capacity issues here: Litigation Capacity, Luba Macpherson and the court’s engagement with a ‘persistent’ litigant and here Strongly held beliefs do not equate to lack of litigation capacity: Judgment concerning Luba Macpherson’s appeal against committal to prison, and there is a published judgment: Macpherson v Sunderland City Council [2025] EWCOP 18 (T3).

So the hearing we observed (Amanda in person and Celia remotely) on 9^th September 2025 in the Court of Appeal (before Lady Justice Asplin, Lord Justice Baker, and Lord Justice Birss[2]) was Luba’s much-delayed appeal against her 4-month prison sentence.

2. The Court of Appeal hearing on 9^th September 2025 (Celia)

At the beginning of the hearing, Lady Asplin highlighted for Luba the key issues before the court:

Was there a contempt of court?
Was Poole J fair to make an order of contempt?
Was the prison sentence proportionate in the circumstances?

In response, Luba did say that the videos she’d posted were pixelated and that she’d not identified her daughter by her full name – but most of her points were not directly relevant to the questions Lady Asplin had posed. Luba was following her own agenda and speaking up about what she considered important about her case.

In relation to the question of whether or not she had committed contempt of court (by disobeying the court’s orders), Luba pointed out that her daughter has always said she wants to come home – that she is imprisoned against her wishes, and “this is not simply one family – there are hundreds of other families who suffer from this current system”. She talked about the local authority abusing its power and said that it has “launched an attack on me on flimsy and unproved evidence” (she referred to it as “hearsay”). She said there had been “collusion between care workers, agencies, social workers and barristers” and that the Court of Protection “is supposed to protect my daughter but it is failing” and that the court trial was being used “to hide the failure of the system”.

Lady Asplin: You’re saying what you were doing was your only means of expression in relation to the situation you found yourself in. Any more you’d like to say in relation to “was there a contempt?”

Luba: The court itself is unlawful so any decision of the court is unlawful. To punish me now would be to punish a mother for doing her duty. My intention was to seek protection for my daughter, not to undermine the authority of the court. The orders are irrational, they deny my daughter’s human rights. She is crying for help. I cannot even phone 999 for help with orders that have left my daughter open to abuse. Other people are here today to support me – their children, their families, have been harmed by this system. […] The LA has duty under MCA and Care Act, it’s their bound duty to look after her but they are completely ignoring her cries for help.

In relation to the fairness (or otherwise) of the previous contempt hearings, Luba pointed out that she had been unrepresented at a key previous hearing, and also asked the court to “consider the wider context” – in particular, the impact of her imprisonment on her daughter and on her (disabled) husband: “By punishing me two innocents will be punished”.

Lord Baker focused on the narrow question of whether or not Luba had breached court orders:

Lord Baker: The injunction was that you shouldn’t record your daughter by video or audio.

Luba: Yes.

Lord Baker: But you did record her, didn’t you.

Luba: What else could I do!

Lord Baker: I know that’s your defence, but the order was not to record her.

Luba: The judge should not have made that order. How can it be right not to record when she is being abused?

Lord Baker: You were ordered not to put videos of your daughter on the internet.

Luba: It was a last resort. I did this out of desperation because no one would assist me.

The judgment was read out by Lord Baker and it’s published here: Macpherson v Sunderland City Council [2025] EWCA Civ 1159. He summarised Luba’s position:

In her written and oral submissions, the appellant advanced a case in line with that which she has pursued for a number of years. She maintains that the professional agencies dealing her daughter, and the courts, have ignored evidence for eight years. Her case, in short, is that, as the court has failed in its duty to protect her daughter from abuse, forced medication, professional collusion and institutional neglect, and wrongly proceeded on the basis that her daughter lacked capacity, the whole process was contrary to the Mental Capacity Act 2005 and the European Convention on the Protection of Human Rights and Fundamental Freedoms. It was her daughter whose rights were being infringed. In those circumstances, the injunctions were unlawful and therefore she was not acting in contempt of court by failing to comply with them.

Secondly. Ms Macpherson said that she had been entitled to act in the way she had because no one was listening to her and publishing information online was the only step she could take to protect her daughter. Her concern was to safeguard her daughter from further harm and, as all the professionals, including judges, had ignored her concerns, and all professional regulators to whom she had complained had brushed her complaints aside, publicity was the only option. Ms Macpherson referred to other cases in which the courts have allowed a party to publish information relating to their complaints about the way cases have been handled by the NHS, other professional agencies, and the courts.
Thirdly, Ms Macpherson insisted that she had done nothing wrong by posting video recordings of her daughter on social media. She said that she had ensured that FP’s identity was kept concealed – all the video recordings were carefully pixellated. She submitted that there was no evidence that she had caused any harm to FP by posting the video recordings, a fact which had been acknowledged by Poole J.
In my judgment, none of these points undermines the central point on this appeal – that Mrs Macpherson knowingly and deliberately broke an order made by the court. The fact that she profoundly disagrees with the order does not entitle her to disregard it. There is nothing to support her repeated assertions of professional misconduct. Her very strong views have been aired on many occasions in the proceedings, but for the most part have been rejected by judges on the evidence. There is no merit in her assertion that the orders were unlawful. The straightforward position is that she was obliged to comply with the orders and deliberately chose not to do so.

Lord Baker went on to refer to Luba’s “serious and repeated flouting” of the court’s order” (§37), something she has continued “brazenly” (§37) to repeat during the period of her suspended sentence. The key message was that court orders must be obeyed – a message that also came through loud and clear in another recent Court of Appeal case dealing with a mother who repeatedly disobeyed court orders she considered unethical and contrary to her child’s best interests. (I wrote about that case here: Sentencing in contempt proceedings: Punishment and coercion in a case before Lieven J). It felt as though Luba was being made an example of and the Court of Appeal was (again) displaying to others who might be tempted to flout court orders that it would not hesitate to exact punishment.

Luba Macpherson’s appeal against her prison sentence was dismissed.

3. Bearing witness in person to the Court of Appeal hearing (Amanda)

What follows was written the evening of the hearing, after I returned to my hotel in London:

This isn’t my usual sort of blog. But then the hearing I observed today hasn’t been a usual hearing.

It was in the Court of Appeal, in person, to watch what would likely be Luba Macpherson’s final appeal against the four-month immediate prison handed down by Mr Justice Poole in the Court of Protection for contempt of court.

The appeal failed. At the end of the hearing, I witnessed two tipstaff officers (the people responsible for law enforcement in the High Court) walk up to Luba Macpherson and tell her that they were taking her to prison. They’d arrived to sit at the back of the court as the judge, Lord Justice Baker, was delivering the judgment. As soon as they arrived, I knew the writing was on the wall for Luba.

As the judges left the courtroom after the judgment, I saw Luba hug the lady who she had never met until the morning of the hearing, but who had sat next to her throughout the hearing after offering to be her McKenzie Friend.[3] I then saw her turn and walk towards the door, between the two tipstaff officers. I left my seat and walked up to her, to look her in the eye and wish her well. She looked shocked but calm. I didn’t know whether to hug her then as I wasn’t sure whether I should. But I had hugged her earlier.

I have followed Luba’s case for quite a while, and I knew I wanted be there for her Court of Appeal hearing in person. I’m so glad I was. I was waiting outside the courtroom when Luba arrived and we started talking to each other. It felt natural even though I hadn’t met Luba before. She said she had only slept for two hours and she was shaking. I ended up having lunch with Luba and a couple of other women who had also come to observe, including the one who became her McKenzie friend. The four of us had lunch together at the Pret a Manger opposite the Royal Courts of Justice and Luba bought us all a cup of tea to thank us for coming.

There was another family member of a protected party who had come to observe in person too and during the hour’s adjournment before the judgment I got chatting with her, sitting around a table outside the courtroom. She mentioned the new book Understanding Parent Blame by Luke Clements and Ana Laura Aiello , and recommended that I read it. Luba’s McKenzie friend went with her to get some fresh air. I was stunned when 20 minutes or so later Luba came back with a box of biscuits for me, in a bag with a label that said, “Thank you”. She wanted to thank me for making the effort to come to court that day. I still can’t believe that at a time when she knew she was probably going to be sent to prison she was so kind as to think of others. That’s when I hugged her.

After Luba had been taken away, the four of us women who had observed what had happened stood outside the courtroom. A tipstaff officer came back to make sure Luba hadn’t left any of her personal effects in the courtroom. It turned out that she had bought a few food items for herself during the adjournment. But the only thing she was allowed to take with her was a can of drink, because it was sealed. One of the other women I was with asked if she could send a card, but he said not at the moment, because she hadn’t got a prison number. That brought the reality of the situation home.

Walking away from the court, I couldn’t quite believe what had happened. I’d held out some hope that the inevitable could be avoided. That she wouldn’t actually be sent to prison. But the court flexed its muscles – she had broken the law and must be punished.

I feel drained. It’s quite something to see someone escorted away to prison. But that’s nothing compared to what Luba must feel like, spending her first night in prison, far, far away from her husband and daughter.

During a programme broadcast one Palm Sunday, the journalist Clive Myrie said (quoting the Biblical book, Lamentations 1:12), ‘All you who walk by on the road pay attention and see”. Perhaps that’s what we do as reporters – we simply try to get people to “pay attention and see“.

No journalists were at the hearing today to pay attention to what was happening and to see Luba Macpherson sent to prison[4]. At least Open Justice Court of Protection Project members were observing, so she was not sent to prison in secret. (And of course a judgment has been published.) Attention needs to be paid so that people can see.

Reading this again now, a few weeks after the hearing, I’m reminded how emotionally drained I was after the day at the court. It brings home to me how different it can be to observe in person compared with observing remotely. Observing that day was not a detached activity. I still think about that day a lot.

4. Hearing on 19^th September 2025 before DJ Temple in Newcastle (Celia)

We knew in advance that an application from Luba to have a court order set aside was due to be heard by District Judge Temple in Newcastle on 19^th September. Luba had been concerned that she wouldn’t be able to attend if she was in prison.

In fact, she was joined by video-link (a bit late), seated at a table – without a prison officer in the room as far as I could tell – wearing a stylish black and white stripy dress with red hearts: it was good to see her looking calm and resilient.

Shortly before the hearing started, I’d been sent the standard Transparency Order (made by DJ Temple on 22^nd August 2025) which prevented me from identifying Luba Macpherson. I’d managed to send an email to the judge (at 10.50am for an 11am hearing) asking for the order to be varied since “the information it prohibits us from publishing is lawfully in the public domain”. I quoted Poole’s judgment of 20^th January 2023 (EWCOP 3) which authorised naming Luba in relation both to the committal proceedings, and to the earlier welfare proceedings, and I cited previous reports naming Luba. The judge dealt with my application at the beginning of the hearing: after checking with Luba whether she had any objection (“No, I’m fine with that”), the judge said she would vary the order as I had requested.

It then turned out there was a problem with hearing the case that day because Luba didn’t have any of the court papers with her in prison. Although the only lawyer present (Sam Karim, on behalf of the local authority) made submissions that the hearing could proceed (because it’s “a simple application” and Luba “had time historically to consider it when she drafted it”), the judge decided that wouldn’t be fair. She was also concerned that there was nobody representing Luba’s daughter at this hearing.

The hearing was rearranged for 14^th November 2025, after Luba is released from prison (apparently on 7^th November) and will be heard remotely. It’s listed for 2 hours. I’m not entirely sure exactly what the issues are for this hearing but I hope to observe and report back.

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).

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] Luba is content for us to use this contraction of her name in reporting her case.

[2] I went in search of more information about the three judges (via google) and found their Wikipedia pages: Lady Asplin https://en.wikipedia.org/wiki/Sarah_Asplin; Lord Baker https://en.wikipedia.org/wiki/Jonathan_Baker_(judge); and Lord Birss https://en.wikipedia.org/wiki/Jonathan_Baker_(judge). I discovered that Lord Birss recently won fame (or notoriety) for using ChatGPT generated content in a judgment – and he’s also chancellor of the High Court (see Joshua Rozenberg’s blog about his appointment here). Curiously, all three judges have undergraduate degrees from Cambridge University – which is perhaps unsurprising given the report that 71% of “senior judges” are Oxbridge graduates (Elitist Britain, 2019)

[3] There’s information about McKenzie Friends here: https://www.judiciary.uk/wp-content/uploads/2022/07/pfd-guidance-mckenzie-friends.pdf

[4] This was the day after the Banksy mural had appeared on the Royal Courts of Justice, depicting a robed and be-wigged judge using a gavel to hit a protestor with a blood-splattered placard who was lying on the ground. Two security officers were standing guard outside the building with the mural hidden from public view. Between 8^th and 10^th September 2025, there were numerous journalist reports about this work of art (e.g. the BBC here and here) but no journalist came into the court to observe Luba’s hearing. Subsequently, Luba’s supporters have used an edited version of the Banksy image to publicise her cause on social media: it shows an elderly woman with a bun, pushing her daughter in a wheelchair, being attacked by a judge brandishing not a gavel (which isn’t used in English courts!) but the ‘scales of justice’ with a pointed tip.

An urgent caesarean application in a disturbing case

By Claire Martin, 14th October 2025

DH is a 21-year-old woman with a diagnosis of catatonic schizophrenia, which (according to §2 in the Trust position statement) is an extremely rare mental disorder in the Western world. Symptoms include stiffness in the body, staring into the distance, minimal movements and mutism, in addition to more “typical” schizophrenic presentations, including auditory hallucinations. She had been under the care of mental health services since the age of 14.

In 2021, when she was 17, she went to Somalia to be with her grandmother, and she returned to the UK in July 2025. When she arrived at hospital the following month, having had a fall, clinicians realised she was eight months pregnant.

The identity of the father of the unborn baby is unknown, and the circumstances of its conception (in Somalia) are unclear. There are obvious safeguarding concerns regarding this based on DH’s cognitive functioning and poor mental health. The question of how she became pregnant will be followed up by Social Services.

She does not appear to have been in contact with any health services during her pregnancy, and had received ‘minimal, if any, antenatal care’ (judge). Thankfully her unborn baby was developing healthily and DH was, physically, well.

The application before the court was for a declaration that DH lacked capacity to consent to the proposed birth plan – a Caesarean section under general anaesthetic, proposed for the day after the hearing – and that this plan was in her best interests.

I observed this urgent hearing (COP 20021347) before Ms Butler-Cole KC, sitting as a deputy High Court judge in the Royal Courts of Justice on 8^th September 2025, when DH was six days from her expected due date on 14^th September 2025.

The Trust had tried to engage with DH about the birth-plan. The position statement for the Trust (helpfully shared with me by Emma Sutton KC, counsel) describes how health care professionals had complied with Section 1(3) of the MCA 2005 requirement to provide “all practicable steps” to help her engage. An assessment was completed with her mother and brother present (they could translate into Somali for DH, though she can speak fluent English). A midwife visited to support her, and ‘simple language’ and an ‘easy-read leaflet’ were used, as well as pictures of a vaginal and caesarean birth. It was reported that DH showed very little engagement, saying ‘OK’ on one occasion when general anaesthetic was mentioned in relation to Caesarean section.

DH’s family members are in agreement with the Trust’s birth plan: that a Caesarean is necessary because DH can’t ‘push’, which would be needed for a vaginal delivery.

Further, ‘DH’s obstetric team (supported by the psychiatric team) do not consider that DH would be able to tolerate a (prolonged) labour to deliver her baby safely and that there is a very high likelihood that she would become distressed during the labour process and would have to undergo an emergency caesarean section. In those circumstances, the clinicians consider that it would be less distressing and safer for DH to undergo a planned Caesarean section to deliver her child’ (§7 OS Position Statement, provided by Parishil Patel KC following direction from the judge).

‘Ordinarily, a Caesarean section is undertaken using a regional (spinal) anaesthetic. But the clinicians do not consider that it would be safe to do so in DH’s case. She is unlikely to be able to remain still and/or communicate effectively for the anaesthetic to be administered and maintained safely (particularly in circumstances where she has a needle phobia). Thus, it would be in DH’s best interests to undergo any caesarean section under general anaesthetic as that offers the “safest and most controlled mode of pain relief” for this treatment’ (§8 OS PS).

Evidence

The court considered evidence first in relation to capacity, and then best interests.

In relation to capacity for pregnancy and birth decisions, one of DH’s clinicians (SS, a psychiatrist who had known DH since 18^th August 2025) was cross-questioned in detail by Parishil Patel KC (counsel representing DH via her Litigation Friend the Official Solicitor). (Note: we are not allowed to record hearings, so quoted material purporting to represent what was said is based on contemporaneous notes and although they are as accurate as I could make them, they are unlikely to be verbatim.)

Counsel for DH: So, in terms of capacity to make decisions, as you are aware under the MCA […] in terms of understanding, how does mental disorder impact her understanding?

SS: Schizophrenia is a global brain condition – it can affect areas of the brain that are able to register and retain information. I suspect she has a disorder of consciousness associated with her disorder. She is unable to understand and then retain, weigh up and communicate.

Counsel for DH: Can I take each in turn. Is it your opinion that her schizophrenia means she cannot understand the information and why?

SS: I say because she’s unable to register it and retain it.

Counsel for DH: Aren’t they two different things – retain and register. Are you saying because of her mental disorder she cannot understand it, or are you saying she can’t retain it long enough to weigh it?

SS: She can’t even register.

Counsel for DH: Register – what do you mean?

SS: The capacity of the brain to input that data – she cannot do that, so she can’t retain it.

Counsel for DH: In terms of brain functioning, what is it?

SS: The exact brain mechanisms are not known.

This seemed an important distinction that the psychiatrist was making – in order to retain information, one has to ‘register’ it in the first place. His assessment was that he could not simply say that DH could not ‘retain’ relevant information (as specified in the functional test of capacity in the MCA 2005):

3. Inability to make decisions

For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a) to understand the information relevant to the decision,

(b) to retain that information,

(d) to communicate his decision (whether by talking, using sign language or any other means).

The psychiatrist was submitting (in effect) that first you must be able to put something in the filing cabinet in order to be assessed as able to retain it (or not).

DH’s psychiatrist had said that she had remained pretty much non-responsive throughout attempts to engage with her. He confirmed that this would be “consistent with the presentation, over a number of different assessments, consistent with schizophrenia”.

Counsel for DH: Can we be confident in saying that the way she presents is not her choosing to present in this way but a manifestation of her schizophrenia?

SS: Yes – people who choose not to engage have a different presentation to those with a disturbance of consciousness. It is consistent over a number of weeks, including when being seen in her home environment, she is not engaging.

Counsel for DH: So, not engaging with one person and not another?

SS: Yes

However, counsel for DH then drew the court’s attention to evidence that DH’s solicitor had, in fact, managed to elicit more of a response from her:

Counsel for DH: We have got the attendance note from the solicitor who visited last Friday. She said “DH was lying down and faced away. I went closer to the end of the sofa, so I was not crowding over her. Her father had positioned his wheelchair next to her to encourage her to [engage] I asked if I could ask her some questions and she quietly said ‘yes’. I asked about going to hospital she said ‘yes’, and I asked about c-section she said ‘yes’, I asked about medication and she said ‘yes’.” That’s different to the response that you elicited.

SS: Yes

Counsel for DH: How do you explain that?

SS: It could be that the treatment is starting to have an effect. It is still single word responses, we don’t know how reliable the responses are – we can’t be clear this is an informed response, she can’t demonstrate her own understanding. The patient would need to demonstrate her understanding, we can’t rely on that as evidence of her understanding,

Counsel for DH: But what you’re saying is, it wouldn’t change your assessment at the present time about [her ability to] understand, retain, use and weigh the information?

SS: No, it would not change my view that she cannot give INFORMED consent.

Counsel for DH: Okay. One of the things that occurred to us is that rather than being unable to make a decision is possible she might be ambivalent about it?

SS: That would be a high-level response. Ambivalence is a high level of functioning that I would not anticipate she would be able to do.

[…]

Counsel for DH: If one looks at her response to the solicitor in the way I have read out, does that explain ambivalence ?

SS: It’s difficult to say based on something in writing, in these cases a lot is based on observation, so it’s hard to say how meaningful her response was.

Counsel for DH: But you said earlier that doesn’t change your view that at the present time she lacks capacity to make the decision?

SS: Yes I don’t think she meets that threshold.

I thought this was an interesting exchange. On the face of it, the solicitor had been able to engage DH more successfully than the psychiatrist. However, the psychiatrist’s view was that the repeated ‘Yes’ responses did not demonstrate an ‘informed response’. This seemed an entirely reasonable conclusion to me.

In giving her ex-tempore (oral) judgment, Ms Butler-Cole KC said: “I don’t have evidence on which I can safely conclude what are her views on this plan. So far as anyone can tell, she seems to agree. But as Dr SS says it is impossible to tell whether that is meaningful agreement“.

The care plan for a Caesarean section under general anaesthetic the next day was authorised (with physical restraint “if necessary” but “those sorts of interventions are not likely to be needed”).

It was mentioned during the hearing that DH’s baby would be taken away from her. Emma Sutton reported: “The plan is for the C-section tomorrow around midday. The plan for post-delivery is raised by the OS. Children’s services are involved as one would expect. The speed at which the child is removed from DH’s care [is not decided]. The OS wants some form of supervisory contact before whatever happens, happens. Those discussions are ongoing, but I am told a police protection order is being considered“.

My one reflection is that there was no mention – at all – during the hearing of understanding DH’s presentation in the context of trauma. It was as if the historical sexual abuse (I don’t know the age or the details about this abuse) and whatever took place in Somalia that led to her becoming pregnant, are separate to her catatonia. I am sure the mental health teams will have gathered as much information as they can from DH ‘s family and her health records about her life, and it is unlikely that her extreme current psychological state is entirely divorced from what has happened to her. Perhaps her only sense of control (even unconsciously) is to totally withdraw from the world.

I am deeply disturbed by DH’s story and thoughts of how she became pregnant, and now her body in the hands of others again, followed by the loss of the baby she has carried for nine months. I hope that the delivery of DH’s baby went well for her and the baby and that DH is receiving good care and support.

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

Attorneys disagree about a house purchase for their mother: Case management for a final hearing

By Jenny Kitzinger, 12th October 2025

The protected party is a woman in her late 80s with dementia and other health problems, currently living in her own home with support from professional carers and family.

She had appointed her daughters, M and H, with Lasting Power of Attorney (LPA) for her property and finance (to act ‘jointly and severally’) and M is also her LPA for health and welfare.

Her two daughters now disagree about the next steps for her finances and where she should live.

One daughter/LPA, M, has applied to the court to release funds to purchase a house so that M could live nearby to her mother. This would be bought in her mother’s name and remain part of her mother’s estate.

The application is opposed by the other daughter and LPA, H, who told the court that she had instigated the care packages for her mother and was also ‘the main carer’.

Both daughters are acting as litigants in person (without legal representation).

I watched two hearings: one on 1^st September 2025 and another on 26^th September 2025.

Both hearings were before District Judge Hussell, sitting in Cardiff, and were fully remote. Each involved just the two daughters and the judge – plus me as observer.

Both were ‘case management’ hearings: that is, the judge didn’t make a decision about what was in their mother’s best interests in relation to the proposed house purchase, but gave directions designed to assemble the information he needs to make that decision at the next (final) hearing to be scheduled some time in November.

I was initially keen to observe this case (COP 20015780) because it was listed in Courtel/CourtServe with the descriptor “WILL, CODICIL, GIFT OR SETTLEMENT OF PROPERTY”.

I’ve been involved in decision-making about such things for people in my own family – and have been finance LPA/deputy for two relatives.

When a person lacks capacity to make decisions about wills, gifts or property, it can be difficult to determine what decision is in their best interests – and different family members (including those appointed to work together as someone’s LPA) may have different views on this.

Most such disputes do not end up in court. But cases which do are likely to address issues which will resonate with many families, and it is informative to see how judges decide on best interests.

In neither hearing was the judge in a position to come to a decision – but it was interesting to observe the process of ensuring that the right information would be before the court and how family conflict was managed. I’ll first describe the two hearings and then make some observations on how the judge conducted them.

1. The two hearings

Hearing 1 (1^st September 2025): (Renewed) directions for a capacity assessment

This first hearing did not address the substance of the case because there was no evidence as to whether or not P had capacity to litigate or make her own decisions about the matter brought before the court. It seemed that holidays and a ‘backlog’ in workloads meant that the relevant capacity assessment would not be conducted for another week. So, the judge listed the next hearing for late September to accommodate this.

I wondered if the daughters might have reservations about the need for formal expert assessment. The applicant daughter, M, said she had served her mother with notice about the application and tried to explain it in simple terms and the respondent daughter, H, expressed concern about the assessment causing their mother stress (a concern I can certainly understand). But the judge explained why a formal expert assessment was needed. He was also explicitly helpful to the two daughters as litigants in person in facilitating the next steps. He acknowledged, for example, that, where parties had legal counsel, the legal team would translate an order from the court into a ‘letter of instruction’ to an assessor but, as they were litigants in person, he’d tried to help ensure the expert assessor was clear about what was needed to inform the court.

Hearing 2 (26^th September 2025): Directions for P’s participation, financial information, evidence and witness cross-examination

The capacity assessment had been completed in time for this second hearing, and it confirmed that P did not have capacity to litigate or to make the relevant decision about buying a house nearer the applicant.

This hearing addressed P’s participation going forward and the judge gave directions about additional financial information required and he helped the litigants in person understand what would happen at the final hearing

Capacity, wishes and feelings, and P’s participation: The judge invited P’s daughters to make any observations about the capacity assessment. (I believe both women had been present for the assessment). H said “It just confirmed what I believed” and M also accepted the finding, but asked:“Because she hasn’t got financial capacity does that mean her beliefs and feelings are not going to be heard?”

The two women took different positions on the weight that might be given to what their mother said when asked about buying a property nearer to M:

M: She knows what she feels and what she’d like to happen.

H: But she gives different answers at different moments on different days or even the same day. So she can give an opinion but it’ll be different on different days.

M: My mother will say consistently she’d want me nearby.

H: But she doesn’t understand the complexities.

The judge drew this exchange between the two to a close with a simple: “Thank you for your submissions on that point”.

The judge then moved on to considering ways in which their mother might participate in proceedings. One possibility was for their mother to attend the next hearing and have the “opportunity to address me”, but neither the judge nor P’s daughters thought that would work. Another possibility would be for P to have her own legal representation but the judge considered that this would be an unnecessary cost to the estate and he was satisfied “your mother’s interests and position can be properly secured by evaluation by the courts“.

Financial information required: In order for the court to evaluate their mother’s best interests, up-to-date information was needed about the proposed purchase of a property near the daughter who’d made the application (giving area and costs examples). The judge also requested a statement about P’s finances: her savings, income and regular outgoings. This financial statement would have to be agreed by both parties.

As with other issues, this request prompted some tension between the two daughters. M said it was difficult to engage her sister which left them “in the soup”, and H, for her part, said she’d need M to provide her with relevant details. Each implied the other was to blame for problems working together. M said: “I was always hoping to work with my sister, Mum was keen for that to happen too” and H later responded with “my sister has over two years…” before being cut off by the judge

Judge: That is a different matter. That doesn’t go to the matter I have to grapple with.

H: I mention is as M bought it up…

Judge: There will be a full hearing.

The judge gave P’s two daughters 14 days to produce the agreed financial statement and another 14 days after that to review their own statements. He directed that, if it proved impossible to come to an agreed statement on every point about P’s finances, then they could indicate which ones they disagreed about. This should be “a simple summary of disagreements”, he said, “I don’t need the narrative”.

Evidence, witnesses and supporters: The judge was clear that the next hearing should be in person and he would consider all the submitted statements (but not the “extensive emails” sent to the court) and he’d allow “limited cross-examination of each other”. He checked whether the two women were capable of being in the same room as one another or whether he’d have to put any “special measures” in place.

Asked (by M) whether partners could come to the hearing he indicated that they could but cautioned: I will make a decision on the day – I don’t want the court, filled with the entire family, becoming overwhelmed; I don’t want the Court of Protection put in the position where its ability to manage the case is impeded by a full-blown family dispute“.

Asked by M about witnesses’ contribution, he said he’d consider the written statements which they’d already submitted (apparently all supporting M’s position that a house should be bought for P near her). The judge said these witnesses should also make themselves available on the day in case it was necessary to call them.

At this point, H commented: “I don’t have any witnesses. It looks like I’m going to be facing the whole of my family”.

Judge: “Sadly one of the byproducts of these disputes is it can involve whole family divisions. But I can assure you that your mother’s best interests is the focus, You will not be put in a position where you feel marginalised in the court – neither of you.”

Date of next hearing: Finally, the judge asked if either litigant had pre-existing commitments they’d like him to consider in scheduling the next hearing – which would take place sometime after the 28 days needed to assemble evidence and review statements. This led to another tussle between the two litigants in person – M indicating her working days and her responsibilities for looking after horses, and her sister, H, commenting that “If consideration is going to be given to caring for horses” then she’d like the judge to note which afternoons she was committed to caring for her mother, a comment which prompted a retort from M that H was going on holiday abroad “from December to January – so I think mum will cope without one day of care from H!”.

The judge at this point intervened to comment on the way in which the family dispute was “trickling, indeed cascading” into the discussion in ways unhelpful to addressing their mother’s best interests. He was sure their mother would not have wanted such conflict. He proposed they might source some mediation for themselves – but I think without much expectation of success!

2. Reflections on the conduct of the hearings

I’ll consider the way in which the judge supported the litigants in person and managed the conflict between them, and also how he facilitated transparency for me as an observer.

Supporting litigants in person and managing conflict: Court of Protection judges are very experienced in dealing with fraught situations and family dispute. The stakes are high when family members disagree about the care or finances of a relative who lacks capacity to make their own decisions, and there are likely to be different perspectives on who is being most loving, or reasonable or responsible, who started what, or who is to blame for the current situation. Family members may also have decades of resentment between them and have developed finely-tuned ways of embedding little digs at one another when in conflict (the kind of asides that are filtered out by barristers when parties have representation).

The judge dealt with the situation in this case with a respectful, firm, but light touch that kept the focus on P’s best interests and, I thought, reflected long experience in this area of work.

It was also noticeable to me (especially as I usually watch cases with multiple barristers involved) how this judge supported the two women as litigants in person, and was explicit about their, and his own, roles e.g. he assured them that when it came to the in-person court hearing ‘I will do my best to help you on the day: I can’t advise you but I will help”.

He made procedures clear, and was thoughtful about what information they might need in order to carry out their roles effectively, and what support the court could offer and what to expect e.g. he said the court would prepare the bundle which would include all the witness statements but “It won’t include the significant email communication you’ve been sending the court. I’ll deal with the evidence”.

Observing this case led me to read a very useful section in the Equal Treatment Bench Book. The first chapter on litigants in person is designed to “identify the challenges both faced – and caused – by LIPs […], and to provide guidance to judges with a view to ensuring that both parties receive a fair hearing where one or both is not represented by a lawyer.” I could see how some of the practical suggestions were relevant to this case.

Many of the suggestions made for how to conduct proceedings when there are litigants in person are also, as it happens, useful to an observer. For example, in my experience where there are no litigants in person, judges and barristers use shorthand with each other, which can make it harder for family, and observers to follow what is going on – although presumably legal teams prepare and debrief litigants, so at least represented parties are clear what is happening.

Open justice: In terms of open justice this all worked well from my point of view. I received the Transparency Order and the links for both hearings in good time.

Since there were no lawyers involved, my request for position statements (made for the first hearing) did not bear fruit. I suspect the two litigants in person had not submitted position statements: in any case, there was no suggestion that they could or should share them with me.

The judge seemed positive about my presence from the outset. In the first hearing I observed, he explicitly acknowledged the problem created by the absence of position statements and very usefully summarised the background to the case for me and checked whether I had any questions. In the second hearing, he checked that I had no need for an opening summary and thanked me for coming at the end.

I appreciated this, as I had been concerned when, just before the hearing, I was informed that the litigants were not represented, so there were no barristers in court. I realised that the only people present might be the judge and the two litigants. I usually observe cases about serious medical treatment – involving a full court room and multiple barristers, solicitors and expert witnesses, a context in which I feel relatively unobtrusive. I was therefore self-conscious about joining this hearing and had to think about what was appropriate.

I usually tick the ‘observer’ box when entering a hearing on the court’s CVP system to observe a hearing. However, I know that entering in this way blocks my use of my camera and microphone entirely (the ‘observer’ cannot opt to turn on these facilities). This is always a problem if an observer is then asked to make themselves visible or to respond to questions: judges are not always aware of how the interface works for observers, I think. Entering as an “observer” also makes it difficult to intervene if, for example, you want to challenge a Transparency Order. However, I still sometimes use the “observer” option as it feels ‘safer’: it means I won’t accidently broadcast any sound from my end into the courtroom, and it means I’m certain that nobody in court can see me.

Given the small number of people involved in this hearing, though, I certainly didn’t think it would work to be an invisible ‘lurking’ presence. I joined by clicking the call type ‘Video & audio’ (but then switched both off). When the judge took the time to introduce me, I was then able to turn on my camera. He explained my role, the constraints imposed by the Transparency Order, and checked with P’s daughters that they were comfortable with my observing.

Neither daughter objected to me being there and each actually addressed me during the hearing to explain a couple of things they wanted me to understand. The daughter who was the applicant, for example, addressed me directly to explain that the house would be bought in her mother’s name and remain part of her mother’s estate. The daughter opposing the application was keen to emphasise to me that it was she who had instigated the care packages for her mother and was also ‘the main carer’. Being addressed by the LiPs felt inappropriate, but I appreciated the clarifications/additions to the judge’s summary of the situation. It was also slightly awkward that each seemed to want to persuade me that her position was correct. They also asked how to address me: as ‘Miss’ or ‘Mrs Kitzinger’ – and it didn’t feel right to ask for Ms or Professor! As an observer, the aim is to as unobtrusive as possible and this didn’t quite work on this occasion.

Unfortunately, although my camera worked my microphone did not (the judge had experienced the same problem earlier and left and rejoined. I did not do this as it was late in the day that I discovered the problem and it would have been disruptive – but I used the chat box or a thumbs up to respond to the judge who was checking that I had the Transparency Order, and otherwise tried to remain still (occasionally finding myself nodding in recognition of something said by each of the daughters – and stopping myself!).

The second hearing I attended felt more comfortable from my point of view – my presence was not a surprise to either litigant in person, and they would have had time to research the role of observer if they wanted to. They both again confirmed they were happy for me to observe and on this occasion neither LiP addressed me. I joined with camera off: the judge invited me to turn it on, and I kept it on throughout. The fact that it felt much easier in the second hearing is an indication perhaps of how quickly we could all adapt.

I hope to be able to attend the next hearing (actually going to the physical court room in Cardiff this time) and will write another blog about the judgment in this case.

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 both X and BlueSky as @JennyKitzinger

Cheshire West Revisited

By Lucy Series, 9th October 2025

Note: On 20th October 2025, the Supreme Court will be asked to re-visit the question of how to understand a deprivation of liberty. You can read about the background in this blog: Reconsidering Cheshire West in the Supreme Court: Is a gilded cage still a cage? Ahead of the hearing, we are publishing a series of explainer and commentary blogs. This blog is re-printed, with permission, from Lucy’s own blog: https://thesmallplaces.wordpress.com.

Editorial note, 9th October 2025: Since the publication of this blog, the Official Solicitor and the Mental Welfare Commission for Scotland have been added as interveners. The case is now also listed for 20th-22nd October 2025.

As you may have heard, in October the UK Supreme Court will hear a case that will re-open consideration of what it means to be ‘deprived of your liberty’ if you may lack the mental capacity to consent to your care arrangements. It will re-visit some of the issues considered by the Supreme Court in the landmark 2014 Cheshire West case, which established the ‘acid test’ of whether a person is deprived of their liberty. In her leading judgment, Lady Hale held that a person is deprived of their liberty if they are:

Subject to continuous supervision and control, and not free to leave (the ‘objective element’)
Lack the mental capacity to give a ‘valid consent’ to their confinement (the ‘subjective element’).

The Cheshire West case mainly focused on the objective element, but this case will re-open discussion of the subjective element (and perhaps how this interacts with the objective element).

The case started in an unusual way. Like England and Wales, Northern Ireland has a framework of Deprivation of Liberty Safeguards (DoLS) that apply in hospitals and other care settings. Because Northern Ireland is part of the UK, it is also bound by the Cheshire West ruling on the meaning of deprivation of liberty (as is Scotland, which still has no DoLS-like framework, despite it being over two decades since the original Bournewood case established the need for one).

The Attorney General of Northern Ireland made a ‘reference’ to the Supreme Court, asking it to answer the following question:

Does the Minister of Health for Northern Ireland have the power to revise the Deprivation of Liberty Safeguards Code of Practice (“the Code”) so that persons aged 16 and over who lack capacity to make decisions about their care and treatment can give valid consent to their confinement through the expression of their wishes and feelings?

In short, they are asking whether they can introduce – through guidance (not primary legislation) – a new way of approaching what counts as a ‘valid consent’ to a situation that meets the objective limb of the Cheshire West acid test, so that this would no longer count as a ‘deprivation of liberty’ in the meaning of article 5 of the European Convention on Human Rights.

There isn’t, therefore, a ‘person’ or people at the heart of this case, except in the abstract – no set of facts on which to make a determination. It is, in essence, asking the Supreme Court to make a pure policy decision. The other parties to the case are not people whose rights are being adjudicated on, but Lord Advocate for Scotland, the Counsel General for Wales, and the Minister of Health for Northern Ireland. The intervenors are the Secretary of State for Health and Social Care (i.e. representing the English Department of Health and Social Care), and the charities National Autism Society, Mencap and Mind. You can read a little more about the charities’ argument here.

There are probably constitutional and legal questions about this route to reviewing an earlier Supreme Court decision, but that’s not what interests me today. I want to write about valid consent, because it’s a topic I’ve been thinking and writing about a lot since Cheshire West, including in my book (Deprivation of Liberty in the Shadows of the Institution), and several articles on this (Making Sense of Cheshire West, Liberty Tactics, and Of Powers and Safeguards). All of those books and articles are free to download and read, but to save you the trouble I’ll summarise my thoughts here.

Cheshire West was right on the objective limb

Cheshire West defined the ‘objective’ conditions that engage article 5 ECHR as being subject to ‘continuous supervision and control’ and not being ‘free to leave’. It emphasizes both locational aspects of deprivation of liberty – where the person is – and its relational aspects, how they are being restricted or confined.

I believe that this ‘acid test’ of the objective conditions of deprivation of liberty was right. It identifies situations where both a person’s residence, and their everyday choices and actions, are continuously invigilated by others. In other words – somebody always knows where you are, what you are doing, and could stop you if they wanted to.

Very few adults live under circumstances like this. In the UK, many people were outraged by the restrictions on our freedom to leave our homes during the lockdowns of the Covid pandemic. I have even heard academics and judges suggest this was a deprivation of liberty, but they must be wrong. However difficult the lockdowns were, most people enjoyed far more everyday freedom than people meeting the acid test criteria – because our freedom of action within our home was not invigilated and restricted in the same way that people are in these Cheshire West situations. As I argue in my book, the freedoms of the home are really important, and part of what distinguishes genuine homes from (quasi)institutions.

The fact that Cheshire West applies to hundreds of thousands of people does not in itself mean that it is wrong, however much governments might wish that were so. It means we are living in a society where people in care settings experience restrictive and supervisory living situations on a scale we may not wish to acknowledge.

As I outline in my book, and Lady Hale points out in the Cheshire West judgment (paragraph 2), there are historical precedents for recognizing deprivation of liberty on a similar scale. Before the de-regulatory Mental Health Act 1959, which shifted most care in hospitals and community to an ‘informal’ basis (and abolished inspection), most hospitals, nursing homes and even many private homes were categorized as places of detention if people were ‘kept as a lunatic’ there (with apologies for the language of the day).

The numbers are larger today partly because the population has grown – far more people are living with significant neurocognitive and neurodevelopmental conditions that used to be the case. In addition, people are much more likely to be cared for in ‘formal’ care settings rather than by their families (care provided entirely by family was excluded under the Victorian regulatory regime, unless they were paying someone to ‘keep’ a relative in a private home)^[i]. The fact the numbers are so large that the system is overwhelmed, means we need to reconsider the system itself. And on this point the Labour government’s equivocation about what to do about the future of the Deprivation of Liberty Safeguards and Liberty Protection Safeguards is really frustrating.

There is a myth that percolates through discussion of Cheshire West sometimes, that the settings where it mainly applies are all benign and do not use the kinds of restrictive practices seen in mental health settings. Alastair Pitblado – the late former Official Solicitor, who acted for MIG, MEG and P in Cheshire West – used to call this the ‘roses around the front door’ image of care homes. (I’m curious that the present Official Solicitor is not intervening or even a party to this case – often they would be an advocate to the court, bringing their considerable experience of litigating these kinds of issues).

I agree that most social care services are less restrictive than mental health settings, but it is flatly untrue that social care services and acute hospital settings cannot be very restrictive. It has been my own experience of working in residential services for young men with autism and learning disabilities that they can involve a very high level of physical and chemical restraint of a kind that most mental health patients do not experience – including seclusion and mechanical restraint. CQC found evidence of serious restrictive practices in residential care services for this group (Out of Sight, 2020 and 2022). Meanwhile ethnographic studies have found that people with dementia in particular experience significant levels of restrictive practice in acute hospital settings (Featherstone and Northcott, 2019 and 2022).

People living in situations where the Cheshire West acid test applies are extremely vulnerable to breaches of their human rights – from inappropriate or disproportionate restrictive practices, through to serious abuses of the kind seen in frequent institutional abuse scandals. The Care Quality Commission implicitly recognizes this in its work on Closed Cultures of Care – which it defines as places where ‘people are more likely to be at risk of deliberate or unintentional harm.’ In identifying the inherent risks of closed cultures, CQC includes criteria that echo the Cheshire West acid test – ‘services where people are unable to leave of their own accord’ and ‘any service where one-to-one care is provided’.

Internationally, it is now widely recognised that care services are places of ‘detention’ if a person is not free to leave, for the purpose of independent monitoring frameworks whose purpose is to prevent mistreatment or abuse (including OPCAT – see my book for discussion). There is longstanding national and international recognition that depriving someone of their liberty is dangerous and requires additional scrutiny to protect their rights.

So, to summarise, these are ‘objectively’ situations where we should very closely scrutinize what is happening to a person, with close attention to their human rights. As Lady Hale put it – they need an ‘independent check’. This is not currently provided by any alternative system of safeguards, from care inspection (too infrequent, not focused on individual care or restrictions), to the Care Act (only applies to a small proportion of these situations, and in any case isn’t currently focused on reducing restrictive practices or wider human rights norms), to advocacy (referrals are sparse and patchy, and do not apply in a large proportion of these situations).

Cheshire West was also right on an equalities approach

Cheshire West was right about something else – that deprivation of liberty must have the same meaning for a disabled person as a non-disabled person:

what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person.

Other dissenting judges in the Supreme Court disagreed with this ‘universal’ approach. But to hold otherwise is to essentially say that a disabled person may be subject to a higher level of interference with a fundamental human right before they qualify for safeguards. This is not only discriminatory, it is dangerous policy – it normalises restrictive practices for a group of people who would have immense difficulty asserting their rights and challenging inappropriate, excessive or even downright dangerous restrictions.

Since the ruling, a few judges called upon to apply the Cheshire West acid test have tried to get this logic in via the back door. At the core of their argument is a view that some people do not have volition, they lack something intrinsic in their ‘faculties’ which means they are not – in essence – a full bearer of rights. I have written elsewhere about the history of this view that the populations who we now defined as ‘lacking capacity’ were once seen and described as ‘non-volitional’, and how this had dangerous impacts on their legal rights (‘Of Powers and Safeguards’).

We can see this line of reasoning at work when Mostyn J argued that Mill’s doctrine On Liberty was only ‘meant to apply only to human beings in the maturity of their faculties … Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury.’ He argued that ‘For Mill the idea that Katherine’s care in her own home involved an encroachment on her liberty would have been utterly impossible.’

We could get into how Mostyn has here conflated Mill’s work on negative liberty with what is fundamentally a republican framework for limiting arbitrary power (more on this here), or point out that in that same paragraph Mill would also go on to argue that his doctrine would not apply to certain races, and we might therefore urge caution before adopting all of his views. But my core point is that for Mostyn, and I suspect for some other judges, people with significant cognitive impairments do not have liberty to lose. They are – as Liat Ben-Moshe wrote about litigation in the USA – constructed as a ‘prison within’, deflecting attention from their external conditions and presenting the situation as rooted in the person’s impairment, or ‘lack’.

A similar perspective seems to have informed Lieven J’s controversial ruling in the Peterborough case, where she writes that SM ‘cannot leave her bed of her own volition’ and ‘has no volition, or free will’. The first statement conflates two distinct issues – does SM need assistance to leave her bed, and does SM have a will – a subjective point of view, and the ability to desire or not desire certain things.

On this point, many disabled people (including those with no cognitive impairments) require assistance with day to day life, including getting out of bed. I can think of several disabled professionals and activists who require support from personal assistants for many things, but the key is that their assistants act on the person’s volition. Meanwhile the statement that she simply ‘has no volition, or free will’ suggests that SM has no subjective experience of the world. This contrasts with an earlier comment that SM ‘does respond to stimuli, and for those who know her well it is possible to tell whether she is responding positively or negatively’.

A similar logic was employed by Parker J writing about MIG and MEG, ‘Each lacks freedom and autonomy dictated by their own disability, rather than because it is imposed on them by their carers.’ As Beverley Clough wrote this approach employs a ‘medical’ perspective to explain and justify the absence of liberty, without looking act the active restrictions imposed on them. In describing SM as lacking volition, or MIG and MEG as inherently lacking freedom and autonomy, they disqualify people with neurocognitive disabilities from the right to liberty, and deflect attention from what is being done to them by others.

Part of this may be because many Judges are often not very good at grappling with the subjective point of view of the person at the heart of these cases. In older Court of Protection cases the judge did not even meet the person. Some Court of Protection judges are very good at engaging with the person’s subjective perspective; we have seen some beautiful and moving examples of this in the Court of Protection.

However, I do notice the Court is keener to do this and better at it when it involves a person who once ‘had capacity’ and no longer does (usually by looking at their written wishes or hearing from people who knew them well), or someone whom the judge can sit and have a conversation with or write a letter to. The courts struggles more with inchoate and inarticulate subjectivity, people who communicate via other means, and often in ways that could only be understood by those who take the time to know them well. Often at the heart of conflicts are differences between families and professionals about the interpretation of people’s behaviours.

We see this pattern in the two deprivation of liberty cases. In the Bournewood litigation, HL was consistently described as ‘compliant’, as not objecting (that was the point of the case – could he be deprived of his liberty without objecting or trying to leave). Yet other materials about his situation, including an Ombudsman’s report, reveal just how unhappy he was – for example self-injuring, and how staff were frequently restraining him (see this section of my book for discussion).

Similarly, in the Cheshire West case itself, Parker J presented MEG as happy (or at least, not unhappy). Yet this is hard to square with the fact that she actively attacks other residents – for most people, that would be a strong indication that one is not happy with those one is living with. And in the Supreme Court judgment (not discussed in the High Court or Court of Appeal at all) it is made clear that MEG ‘yearns’ to return to live with his foster mother. Her subjective experience required more analysis than treating her as content.

As I argue in my book, and in Of Powers and Safeguards, the UN Convention on the Rights of Persons with Disabilities insists that everyone – no matter what their disability – has a will, is volitional. The radical implication is that everyone has a subjective experience of the world that we have a duty to grapple with – however demanding this may be. It may well be that not all professionals are skilled at this, and certainly judges are not trained for it, but that does not mean that this should not be the focus of their analysis, and that they should get better at it.

And only once we acknowledge that everyone has a will, everyone has volition and a subjective experience of the world, we can start to envision that liberty might have meaning for Katherine, MEG and others. Not only as something to be ‘deprived’ of, but as a positive way of being supported in the world, that aligns with their ‘will and preferences’ (to put this in the language of the CRPD). And surely, this should be the ultimate goal of any system of social care, and system of liberty safeguards?

Valid consent isn’t the same as an ‘objections’ test

It is here, I think, that my viewpoint may part ways with the respected intervenors – Mind, Mencap and the National Autistic Society – and perhaps others involved in the DoLS. It is my view that if we take seriously that everyone has a will – a viewpoint and a subjective experience of the world – then it must be possible for them to experience positive liberty a well.

I do not mean libertarian liberty – leaving P to choke on his incontinence pads or letting MIG and MEG walk in front of traffic. I mean a living situation and care arrangements that reflect what they want. By this I do not simply mean they are living where they want to be (although that is important), but they are also content with who they are living with, who is providing their care, and any measures that are intended to keep them safe. Aggression towards others (staff or residents), and needing to be restrained on a regular basis, are strong indicators that something in that situation does not align with the person’s ‘will and preferences’, because they are resisting something.

This is the basis of arguing that the ‘valid consent’ and subjective limb of Cheshire West could be revisited. In short, a lack of mental capacity does not mean a person cannot give a ‘valid consent’ to their living arrangements, provided there are adequate safeguards (on which more below).

Why would we want to recognise this? For the principled reason that it requires better engagement with the person’s subjective viewpoint, and makes it count. Because it means the system has a positive goal – liberty – not merely a system of safeguards that regulate taking it away.

Some examples to illustrate this. In the aftermath of the ruling in HL v UK, HL’s lawyers pointed out that if he were deprived of his liberty simply because he was subject to ‘continous supervision and control’ and ‘not free to leave’, then this was equally true when he was at home and happy with Mr and Mrs E – living his best life, where he wanted to be, being supported to do what he wanted to do – as he was in Bournewood Hospital, where he was desperately unhappy, self-harming and being restrained by staff. There must, they argued, be some crucial difference between being ‘detained’ in Bournewood hospital, and being at liberty back at home.

Similarly, after the Court of Protection ruled that Stephen Neary had been unlawfully deprived of his liberty by Hillingdon Council, after confining him in a care home where he was so unhappy he tried to run away (and his dad ran a year-long campaign to get him out), the same council came back to his family after Cheshire West arguing that he was deprived of his liberty in his own home, being supported by a team of personal assistants who Stephen had a good relationship with, to do the things that mattered to him. According to his father, Stephen finds his annual DoLS assessments distressing, reminding them as they do of his earlier experiences. There are also cases about families who have turned their lives upside down to care for their relatives, oriented towards where that person wants to live and how they want to be supported. Families are understandably confused and distressed to be told they are ‘detaining’ their loved ones by doing so.

This point of view also reflects newer understandings of legal capacity, linked to the UN Convention on the Rights of Persons with Disabilities, that simply lacking ‘legal capacity’ should be linked to your ‘will and preferences’, not simply restricted because of a lack of ‘mental capacity’.

Valid consent would require substantive and procedural safeguards

The problem with this approach, is who get’s to decide who is happy, and will they do it well?

For the reasons outlined above, I really sympathise with this fear. Judges and some professionals, have a pretty dire track record in this regard. HL’s doctor did not regard him as ‘objecting’ because he viewed all of his distressed behaviours as ‘pathologies’ – symptoms of autism, to be treated and managed, not communication of his distress.

So if the Supreme Court did accept that in some circumstances a person could give a ‘valid consent’ to what could otherwise be a deprivation of liberty, there would need to be robust substantive and procedural safeguards. This would align with the requirement under article 12(4) CRPD for safeguards on measures relating to legal capacity to ensure these align with the ‘will and preferences’ of the person and protect their rights. It is also, I suggest, required by the weighty considerations of article 5 ECHR.

I am concerned that the UKSC may not itself be able to deliver these safeguards itself, although it could potentially say that valid consent was technically feasible but only if such safeguards were provided through a robust legal framework, proportionate to the important matters at stake. This is one of the reasons why it is not ideal for courts to make policy – they cannot control the implementation. And they cannot consult more widely among affected groups and experts in the field. It is a shame, for example, that no professional bodies have intervened, to bring their expert perspective, or the Official Solicitor.

At a minimum, the substantive safeguards (perhaps in the form of statutory guidance) would need to recognize that:

‘Consent’ is not mere acquiescence or a lack of objections – these may result from institutionalization, sedation, or fear.
The use of direct physical restraint, ‘challenging behaviours’ towards staff or other residents, self-harming behaviours, are all strong indicators that a person may not be happy where they are, or with specific aspects of their care arrangements.
If others involved in that person’s care, or know them well, think they may not be happy where they are or with their care arrangements, then they should not be treated as consenting.

Valid consent would also need to be to both the locational part of the objective test (where a person is confined or living) and its relational aspects, how they are being restricted or confined. For example, a person might be happily living in their own home – not seeking to live elsewhere – but feel frustrated by specific measures imposed on them there (e.g. supervision and control to manage specific risks/concerns, for example to stop a person from having sex or harming others).

Another Lady Hale dictum: ‘Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case.’ In other words, if there are no positive indications that the person is happy, both with where they are cared for and how (e.g. specific restrictions, specific measures), or there are potential indications of distress or resistance, then these are strong indicators against their giving a valid consent.

And who should assess this? Part of the problem is that everyone has a potential conflict of interest – particularly those involved in commissioning or delivering the care. They may also have a partial picture – for example, family may not see how a person is within the care setting when they are not there. Different people may come to different points of view about their wishes and feelings. There will need to be accessible and effective routes to challenge an assessment (e.g. if family feel someone is unhappy but the assessor did not agree).

I suspect this framework could be worked into an adapted version of the LPS, possibly even the DoLS if we are stuck with them. But only if the government chose to properly consult on it, particularly towards robust guidance on how to assess a person’s subjective viewpoint. This would likely need primary or secondary legislation to implement.

In the end, the kinds of safeguards you would need for ‘valid consent’ may well end up looking a lot like article 5 safeguards themselves – a robust assessment by a skilled practitioner, informed by people with independence from the care delivery, and someone independent to check its quality. You would also want this to be kept under active review, so that if the person’s subjective viewpoint changed, then this could trigger the rest of the article 5 safeguards. The valid consent argument is principled recognition of the person’s volition and their ability to enjoy liberty, not about saving on admin costs.

Lucy Series is an Associate Professor in the School for Policy Studies at the University of Bristol. She researches and teaches mental capacity, disability rights and adult social care law and policy. She blogs at The Small Places. You can read her book – Deprivation of Liberty in the Shadows of the Institution – free of charge here (hyperlinked) or on Kindle. She is on Bluesky @thesmallplaces.bsky.social.

^[i] There’s often debate about whether ‘Mrs Rochester’, the wife of Mr Rochester in Charlotte Brontë’s Jane Eyre would be considered ‘detained’. If you haven’t read the novel, Mr Rochester paid Grace Pool to ‘keep’ his wife locked in an attic (before she escaped and burned the house down). According to Wikipedia the book was published in 1847, which would be after the 1828 Madhouses Act was passed by Parliament. This Act (for the first time) required that if any ‘one insane person, or person alleged to be insane’ was received into the care of anyone other than a relative, they must have an order and certificate signed by two medical practitioners. Their names were also kept on a secret register to be visited, to check on their welfare (in Yorkshire, this would have been by local justices of the peace). In practice, ‘single patients’ (as they were known) were often kept secret, precisely to avoid this regulatory intrusion into what families often wanted to keep secret (see Akihito Suzuki’s brilliant Madness at Home and Sarah Wise’s brilliant Inconvenient People for descriptions of the lives of ‘single patients’).

However, Wikipedia also tells me that although Wuthering Heights was published in 1847, its events were set earlier in the century (late in the reign of George III (1760–1820)). At that time ‘single patients’ were not directly regulated (via the 1774 Madhouses Act), only places ‘keeping’ two or more ‘lunatics’.

Reconsidering Cheshire West in the Supreme Court: Is a gilded cage still a cage?

By Daniel Clark, 7th October 2025

“The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.”

These were the words of Lady Hale, who gave the Supreme Court’s majority judgment in a 2014 case that is now commonly referred to as Cheshire West.

The last line in particular will be familiar to anybody who (like me) has worked as a carer in the health and social care sector. It is drilled into us during our training because it expresses a very simple principle: the meaning of “deprivation of liberty” must apply equally to everyone. If I live in a penthouse with 24/7 butler service, but I cannot leave without asking the butler’s permission, I am deprived of my liberty.

On 20 and 21 October 2025, in an application brought by the Attorney General for Northern Ireland, the UK Supreme Court will be asked to re-consider its judgment in Cheshire West. Unlike Cheshire West, there is no protected party at the centre of this case, and so the appeal is a question of legal principle. In particular, the court is to be asked whether a person’s wishes and feelings can be taken as consent to their care arrangements.

In essence, if they seem to be happy and are not objecting to the “supervision” and “control” that make their life as comfortable as possible, is it really right to treat them as if they’re “deprived of their liberty”? Or, to put it another way, is this even a cage at all?

This is an issue that has been rumbling on for some time. The (then) government’s consultation on replacing the Human Rights Act specifically cites the Cheshire West case (at para 159-160) as an example of how social policy is “distorted” by human rights law. In response, two lawyers at Irwin Mitchell published a blog that defended Cheshire West, using Lady Hale’s words to reiterate that ‘a gilded cage is still a cage’.

If successful, the case now before the Supreme Court may see a reduction in the number of people considered to be deprived of their liberty for the purposes of Article 5 of the European Convention on Human Rights. Some charities are concerned that a successful appeal will be dangerous for disabled people.

This blog is intended to give background to the Supreme Court case by explaining how “deprivation of liberty” is defined in law, what the Supreme Court decided in the Cheshire West case, and what the implications of that judgment were.

I have an academic interest in this area. A chapter of my PhD thesis considers deprivations of liberty, meaning that I’ve spent a lot of time (perhaps more than I’d like to admit) thinking about the Cheshire West judgment. I’ll draw on some of that research in this blog.

First, I will explain Article 5 of the European Convention on Human Rights, and the case of HL v UK. Next, I will explain how that case led to the creation of the DoLS system. Then, I will set out the Supreme Court’s reasoning in Cheshire West.

Following the Cheshire West judgment, there was an almost immediate reaction from the Court of Protection. The next two parts of the blog will therefore detail the introduction of the Re X procedure (for deprivations of liberty of those living in a community setting) as well as Mr Justice Mostyn’s view that the Supreme Court reached the wrong conclusion.

One criticism that Mostyn J had of Cheshire West was that it had significant resource implications. I conclude this blog by demonstrating that this was accurate, and also that one result of this is that a significant number of people are now unlawfully deprived of their liberty – by which I mean not just that many are without the requisite authorisation but also – in an unknown number of cases, that people with capacity to make their own decisions about where to live and receive care, and people living in accommodation that is not in their best interests, are likely to have been overlooked.

1. Article 5 of the European Convention

§64(5) of the Mental Capacity Act 2005 states that any reference to a deprivation of liberty has ‘the same meaning as in Article 5(1) of the Human Rights Convention’.

Article 5 of the Convention relates to the right to liberty and security. As with most human rights, this is a qualified right. For the purposes of understanding deprivations of liberty authorised pursuant to the Mental Capacity Act, the relevant qualification is set out as such in subsection (e):

Article 5 – Right to liberty and security

1 Everyone has the right to liberty and security of person. No one shall be deprived of his [sic] liberty save in the following cases and in accordance with a procedure prescribed by law:

[…]

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

Prior to Cheshire West, one of the most significant cases for English and Welsh domestic policy surrounding deprivation of liberty and mental capacity was HL v UK.

HL was an autistic man who, following an episode of “agitation” at his day service, was moved to a hospital following sedation. He did not object to his residence in the hospital, and he was therefore not detained pursuant to the Mental Health Act 1983. However, HL could not consent to his inpatient stay.

Bournewood Community and Mental Health NHS Trust (his treating Trust) did not consider him to be deprived of his liberty because he was not restrained. The European Court of Human Rights found that this was irrelevant, and that he had been deprived of his liberty. As HL had no recourse to the courts, because he was not formally detained, that deprivation was found to be unlawful. This is because 5(4) of the European Convention makes clear that there must be a mechanism for challenging the detention – “everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”.

This was recognised in the Mental Capacity Act by the insertion of §21a, which makes provision for such a detention to be challenged in the courts. These challenges tend to focus on either whether P can be said to lack capacity to make decisions about their residences and care or whether P’s current care and living arrangements are in P’s best interests^[i].

2. The creation of the DoLS system

In response to the ruling in HL v UK, the DoLS (Deprivation of Liberty Safeguards) system was introduced in 2007. This came into force in 2009.

According to the Essex Autonomy Project, ‘Five and a half thousand DoLS assessments were conducted in the first nine months of implementation. There were 125 cases where a person had been found to be deprived of their liberty but the assessors had not recommended an authorisation because it would not have been in the ‘best interest’ of the concerned individual’ (see p1).

The DoLS system created two methods of authorisation – a standard and urgent authorisation. An urgent authorisation is granted by the managing authority (the place the person resides), and lasts for seven days. This can be extended, with the agreement of the supervisory body (the local authority), for a further seven days.

The purpose of the urgent authorisation is to legally authorise a deprivation of liberty ‘before the supervisory body can respond to a request for a standard authorisation’. A standard authorisation is granted after assessment by a Mental Health Assessor (a section 12 doctor) and a Best Interests Assessor (BIA). The standard authorisation must be granted within 21 days of the application being made but, as I will discuss later in this blog, that is simply not the reality on the ground.

The standard authorisation can be of varying lengths (though no more than a year).

While repeated assessments can be a person’s lifeline to greater freedom, they can also be inimical to the person’s welfare if the person is relatively settled and finds the questioning distressing. As Sandra and Joe Preston have explained, Joe’s mother was ‘subject to at least 9 short-term standard authorisations since May 2021” […] [but had] shown “no signs by word or action of objections” to where she is living’.

3. Cheshire West

In 2014, the Supreme Court handed down judgment in three cases (joined together on appeal) that concerned whether three individual people (anonymised as MIG, MEG, and P) were deprived of their liberty.

MIG and MEG were sisters, though they lived separately. P had no connection to either sister, and was older than them. In April 2025, I gave a talk about DoLS at the Socio-Legal Studies Association Annual Conference. Here’s my slide that set out the differences between the three protected parties.

As you can see, P, MIG, and MEG all lived in different places. They also had different care arrangements. Judges in the Court of Protection had found that MIG and MEG were not deprived of their liberty, but that P was. The Court of Appeal found that none of them were deprived of their liberty.

The Supreme Court took a contrary view. They unanimously agreed that P was deprived of his liberty and (by a margin of 4 to 3) found that MIG and MEG were also deprived of their liberty.

Giving the majority judgment, Lady Hale considered what a “concrete situation” of a deprivation of liberty might look like: ‘The answer, as it seems to me, lies in those features which have consistently been regarded as “key” in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned “was under continuous supervision and control and was not free to leave”’ (§49).

This is commonly referred to as the “acid test”. Crucially, a deprivation of liberty does not just occur in care homes or hospitals. These arrangements can occur in any place, not just a place of residence.

It is important to stress that “continuous” does not necessarily mean that somebody is being constantly watched. Arrangements such as locked doors that a person cannot leave through without supervision, or can leave but must return within a specified amount of time, also amount to continuous supervision and control.

Alternatively, a person may be free to walk around the entirety of their care home and its grounds. However, if a carer checks on them every hour or two, and should they be discovered as missing they would be found and returned to the care home, and the person lacks the capacity to consent to that arrangement, this also qualifies as continuous supervision and control.

In its consideration of the Strasbourg case law, the Supreme Court identified three elements of a deprivation of liberty. All three must be satisfied if a deprivation of liberty to be understood through reference to Article 5.

The objective element – P has been confined in a certain place for a non-negligible period of time.

The objective element is something that any person in the same situation would recognise as being a deprivation of liberty. Here’s how Lady Hale explained it:

[W]hat it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arranamgents are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.
§46

The subjective element – P does not consent or cannot consent. In the context that the Supreme Court was concerned with, an inability to consent arises because P lacks the mental capacity to do so.

Even when P says they’re happy with their residence, and that they do not want to leave, and welcome the fact that the doors are kept locked, this still amounts to a deprivation of liberty. It is this element of deprivation of liberty that the Supreme Court will be considering in October 2025. The key question is whether a person can, in effect, “consent” to living arrangements that would otherwise constitute a “deprivation of liberty” through the expression of their wishes and feelings, irrespective of whether or not they have the mental capacity to consent to those arrangements.

On the one hand, it seems that this would bring the approach more closely in line with Article 12 of the Convention of the Rights of Persons with Disabilities, which protects equal recognition before the law, because everyone would have the ability to “consent” (or not) to their living arrangements – and this would not be something taken away from people on grounds of mental incapacity.

On the other hand, Mencap, Mind, and the National Autistic Society have concerns that “changing the interpretation of deprivation of liberty will create confusion and will breach the human rights of people with mental health problems, learning disabilities and/or autism and will result in procedural safeguards being removed from people who need them to ensure that their care arrangements are not overly restrictive”, as Mathieu Culverhouse told Community Care.

It is imputable to the state – The state knows, or should know, about the deprivation of liberty.

In the conclusion of her judgment, Lady Hale comments on the need for there to be regular checks once a deprivation of liberty has been identified and authorised. I quote it here in full because it’s very relevant to what happened after the judgment –

Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us.
§57

4. The aftermath – the Court of Protection tries to impose order

In the Court of Protection Sir James Munby, the-then President of the Family Division, set to work in finding a way that would “simplify and extend” the framework. In a case that became known as Re X, he combined multiple cases that all involved an authorisation of the deprivation of liberty of a P who was living in the community (i.e. not traditionally institutional places). He created what became known as the Re X streamlined procedure, which is a somewhat ironic name given that it requires more paperwork than DoLS and the authorisation process can take months.

In a blog for the Open Justice Court of Protection Project, Eleanor Tallon explained this procedure as such: “essentially the streamlined process distinguishes between DoL cases to be dealt with out of the courtroom (i.e., ‘on the papers’), whilst allowing the court to give proportionate attention to cases where P may be objecting, or where there are other controversial issues which require more in-depth scrutiny by way of an oral hearing”.

If P appears to be objecting to their living arrangements, or if there are other complexities in the application, the judge who has been asked to make decisions on the papers can instead make directions for an oral hearing. This is now known as the “Failed Re X” procedure.

This is separate to the DoLS process. Commonly referred to as a COPDOL (Court of Protection Deprivation of Liberty), a BIA is not required to assess the arrangements – any appropriately trained professional (like a social worker with no further qualifications) can undertake this assessment. The acid test nevertheless remains the same.

5. Did the Supreme Court get it wrong? Mostyn J and the case of Katherine

While some judges in the Court of Protection tried to impose order on the increasing number of applications, another judge took the view that the Supreme Court had simply got it wrong. In Rochdale Metropolitan Borough Council v KW, Mr Justice Mostyn considered the case of Katherine. He described her as “just ambulant with the use of a wheeled Zimmer frame. Mentally, she is trapped in the past. She believes it is 1996 and that she is living at her old home with her three small children” (§6).

Mostyn J found that “in Katherine’s case the second part of the acid test [being not free to leave] is not satisfied. She is not in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom” (§25).

Knowing full well that this flew in the face of the Supreme Court’s judgment in Cheshire West, Mostyn J said that the Supreme Court ought to revisit the issue. He was willing to grant a leapfrog certificate, meaning that an appeal would be directly transferred to the Supreme Court. The local authority did not consent and so Katherine’s litigation friend applied to the Court of Appeal.

The Court of Appeal allowed the appeal on the papers, and set aside the orders. Not satisfied, Mostyn J commented that

[I]n the absence of a reasoned judgment from the Court of Appeal explaining why I was wrong I maintain firmly the correctness of my jurisprudential analysis in my principal decision as augmented in my Tower Hamlets decision. In this difficult and sensitive area, where people are being looked after in their own homes at the state’s expense, the law is now in a state of serious confusion.
§26

The decision was again appealed.

In his Tower Hamlets decision, Mostyn J had returned to the case of Katherine:

[T]o characterise those measures as state detention is to my mind unreal […] [Article 5] was aimed at the midnight knock on the door; the sudden disappearance; the prolonged detention. Article 5 was not aimed at Katherine, seriously physically and mentally disabled, who is living in her own home and cared for round the clock by carers paid for by an organ of the state.
§58

He concludes with a note of concern about the streamlined procedure: “The streamlined procedure itself requires the deployment of much man and womanpower in order to identify, monitor and process the cases. Plainly all this will cost huge sums, sums which I would respectfully suggest are better spent on the front line rather than on lawyers” (§60).

Be that as it may, in its second judgment the Court of Appeal observed that Mostyn J was also responsible for the expenditure of a significant amount of money:

The judge has twice made decisions which have been the subject of an appeal to this court. On both occasions, the parties have agreed that the appeal must be allowed. This has led to considerable unnecessary costs to the public purse and unnecessary use of court time. We regret to say that it is the judge’s tenacious adherence to his jurisprudential analysis leading to his conclusion that Cheshire West was wrongly decided that has been at the root of this. He says at para 26 of the second judgment that “the law is now in a state of serious confusion”. Even if Cheshire West is wrong, there is nothing confusing about it.
§32

In Bournemouth Borough Council v PS & DS, Mostyn J again declined to authorise a deprivation of liberty on the grounds that one did not exist. He again expressed his view that ‘the matter needs to be urgently reconsidered by the Supreme Court’ (§40)^[ii]. Ten years later, that’s exactly what the Supreme Court is going to do, albeit without a protected party at the centre of the case.

6. Resource implications

Regardless of whether he was correct to describe the law as confused, Mostyn J was correct to be worried about the resource implications of the Cheshire West judgment.

A report published by Age UK has analysed the current DoLS system. In 2022/23, there were 300,765 DoLS applications. The average wait time for an assessment was 156 days. Of those applications, 126,000 were not completed. By contrast, the prisoner population of England and Wales in 2024 was 87,900. To illustrate that point, here’s a graphic I created for the talk I gave in April 2025.

The same report emphasises that the number of uncompleted applications does not just represent a growing administrative backlog. The report notes that the purpose of the safeguards ‘is to protect human rights by ensuring that a set of external checks’ (p11). Such a significant number of applications waiting to be completed has two implications.

First, because the urgent authorisation will lapse after (at most) 14 days, people are being unlawfully deprived of their liberty for a very long time indeed. Second, ‘there is inevitably a risk of injustice for some individuals, whose lawful right to liberty will have been inappropriately denied’ (p4).

The Cheshire West judgment is not the only factor in the growth of applications. Another reason is because every move requires a new authorisation. This is best illustrated by way of a hypothetical example.

Sarah has dementia and has been living at Sunny Hill Care Home for two years. She lacks the capacity to decide whether to be accommodated at the care home for the purpose of her care and (for the sake of argument) has been subject to a standard authorisation that has been reviewed every year. However, her Lasting Power of Attorney has concerns about the standard of care, and decides it’s in her best interests to move to Sunny Bank Care Home.

When Sarah moves to Sunny Bank Care Home, the DoLS application process will start again – the standard authorisation does not move with her. In the same way, let’s imagine that Sarah falls while at Sunny Hill. She’s then admitted to hospital, where she stays for about a month. While at the hospital, another DoLS authorisation needs applying for. Regardless of where her LPA decides it’s in her best interests to move, the care home will need to apply for yet another authorisation.

Now let’s change the example slightly. This time, Sarah is living at home with her wife. The local authority reviews her care needs, and she is assessed as lacking capacity to make decisions about her residence and care arrangements. Objectively the acid test is met, and the court has authorised her deprivation of liberty under the Re X procedure. If Sarah moves house and the acid test continues to be met, a fresh application will need to be made.

This is a resource intensive exercise, and the government has not been wholly unresponsive to these issues.

In 2021, the government proposed Liberty Protection Safeguards (LPS) as a potential solution. Amongst other amendments, these would mean that, after an initial assessment, a person would not need to be re-assessed every year if they have a progressive degenerative disease such as dementia.

The idea is that this would free up blockages in the system, and make time for more people to be assessed – people who may have been kept waiting under the DoLS framework. However, the (then) Prime Minister Rishi Sunak tabled the plans for the duration of that parliament, and the now Care Minster, Stephen Kinnock MP, has expressed scepticism that they would be effective.

Far from just freeing up resources, the ability to dispense with yearly assessments may also be of benefit to the person deprived of their liberty who is content with their arrangements.

In Bury Metropolitan Borough Council v EM & Ors ^[iii], HHJ Burrows was concerned with the perception of DoLS for people who are subject to them^[iv]. At §59, he said this:

By focusing on the Court and the making and un-making of a “dol”, Emma and other people in her position are made to feel peripheral to the whole process. Many of them conclude that “getting off the dol” is essential before they can be part of the process. Many feel that when on a “dol” they are filed away and forgotten only to be taken out for scrutiny when someone else makes a fuss.

A few sections earlier, he described the authorisation of a deprivation of liberty as ‘permissive rather than mandatory […] it enables the carer to use restrictions that amount to a deprivation of liberty, it does not require them to do so’ (§50).

Anslem Eldergill, who until recently was a Court of Protection judge, has written on LinkedIn about his reason for disagreeing with this approach. He writes that, “the idea that under the DOLS Scheme it is the care plan that authorises the detention, and that it is not necessary to rescind a DOLs order (one can just not exercise the authority to detain), are also incorrect […] No one wants an order authorising their detention hanging over them for the remainder of the original 6 or 12 month period’.

I am not sure who Anselm Eldergill has in mind when he writes about somebody claiming that it is not necessary to rescind a DoLS order. That’s not my reading of HHJ Burrows’ judgment, and I suspect (though I’m not sure) that he is referring to commentary on the judgment. In fact, the comments of HHJ Burrows align with section 8.8 of the DoLS Code of Practice:

Deprivation of liberty can be ended before a formal review. An authorisation only permits deprivation of liberty: it does not mean that a person must be deprived of liberty where circumstances no longer necessitate it. If a care home or hospital decides that deprivation of liberty is no longer necessary then they must end it immediately, by adjusting the care regime or implementing whatever other change is appropriate. The managing authority should then apply to the supervisory body to review and, if appropriate, formally terminate the authorisation.

It is clear that the judgment in Cheshire West has had significant implications. The fact of the matter is, however, that the Supreme Court cannot make policy decisions. The primary question for the court is whether they got it wrong in 2014.

With thanks to two individuals who gave up their time to fact-check this blog. Any remaining errors are entirely my own.

Editorial Note, 9th October 2025 – This blog has been lightly edited for clarity and brevity. It has also been updated to reflect the fact that the Supreme Court will now hear the case on 20 and 21 October.

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.

Footnotes

^[i] For examples of blogs about applications under §21a, see:

“Does that mean I am off the hook?”: A successful s21a Deprivation of Liberty Challenge by Claire Martin
Our ordinary story ….and how it became an unbelievable family experience of the Court of Protection by Amanda Hill
Dispute about capacity and best interests in a s.21A application by Daniel Clark
The ‘voice’ of P in a s.21A hearing: Reflecting on lost opportunities by Gill Loomes-Quinn
A s.21A challenge for a ‘restricted’ patient: A “shocking” delay by Febienne Green
‘What God has put together, let no man put asunder’: A s.21A challenge and the limits of Power of Attorney by Celia Kitzinger

^[ii] More recently, Mrs Justice Lieven has offered sharp criticism of the Cheshire West judgment. In Re SM, she found it was not necessary to authorise the deprivation of liberty of “a severely disabled child” because her liberty was not so deprived. Lieven J found that SM was unable to leave, not prevented from leaving. Alex Ruck-Keene described this as putting the Cheshire West cat amongst the pigeons, saying that it is ‘more serious than the challenges launched by Mostyn J […] because [Lieven J] engages with the [Cheshire West] judgment in a more sustained and detailed fashion”.

^[iii] Celia Kitzinger observed some of the hearings in this case, and wrote about it in this blog – Elucidating the meaning of deprivation of liberty orders: HHJ Burrows and local authority at cross-purposes on DOLS and care plans

^[iv] Mrs Justice Lieven expressed a similar sentiment in a case I recently blogged about: Lieven J grapples with cuckooing and the effect of a DOL order

“Let me talk about my partner’s death”– Court of Protection told

By Daniel Cloake, 23rd September 2025

Editorial note: Judgment in this case has now been published: Re Carl Gardner, Deceased (Duration of Transparency Order). This blog is reprinted, with permission (and a few minor changes) from Daniel’s own website: mouseinthecourt.co.uk. Daniel observed this hearing (COP 20006397) in person in Court 33 at the Royal Courts of Justice on September 16th 2025. Celia Kitzinger was also there in person as an intervenor in the case. The Open Justice Court of Protection Project has previously published four blogs about this ongoing case: from earliest to most recent, they are: “Determining the legal status of a ‘Living Will’: Personal reflections on a case before Poole J”; “Validity and applicability of an Advance Decision to Refuse Treatment: A pre-trial review”; “Preparing for possible future lack of capacity: My advance decision to refuse treatment and the case before Poole J”) and “Authenticity of a ‘Living Will'”.

The long-term partner of a man at the centre of Court of Protection proceedings has resisted an application made by his “very private” family to prevent details of the case from being reported following the impending expiry of reporting restrictions.

Mr AB was a 43-year-old man who became incapacitated after suffering hypoxic brain damage following a cardiac arrest on 5th May 2024. He required intensive hospital care to keep him alive which included clinically assisted nutrition and hydration.

The Court of Protection, a specialist court that makes decisions for people who lack the mental capacity to make those decisions themselves, became involved in November 2024.

Among other issues, the Court of Protection was asked to adjudicate on a dispute which relied on the validity of a so-called living will and other documents.

In the words of Mr Justice Poole, in a judgment dated June 2025, the Living Will set out his position to refuse certain medical treatment, including life-sustaining treatments, in the event that he suffered a serious brain injury from which he was unlikely to recover so as not to require full-time-care.

It was said to have been signed about a month before Mr AB had sustained his brain injury but its existence had only come to light in August 2024.

The family took the view that the document was fraudulent, or that it had been signed by him under undue influence.

Ultimately these objections were dropped at the last minute – the fraud accusation disappearing on the first day of a scheduled 4-day trial. Accepting the views of Mr AB in the documents, Mr Justice Poole authorised moving Mr AB to a hospice for withdrawal of clinically assisted nutrition and hydration and palliative care. Mr AB sadly passed away on 8th July 2025.

During the course of these Court of Protection proceedings, the identity of Mr AB, his partner, wider family members, and indeed other details which might allow identification of the same, were prevented from being reported or communicated to others. The details of these restrictions, treated as a contempt of court if breached, are recorded in a so-called transparency order.

The transparency order in this case was amended, in anticipation of the withdrawal of treatment, to expire on August 30th 2025. This would have the effect of removing all reporting restrictions.

The wider family, through Mr AB’s mother, sought to amend this expiry date to either never expire, or expire in 10 years’ time. This application was contested by both Mr AB’s partner and by Professor Celia Kitzinger, a founding co-director of the Open Justice Court of Protection Project, both of whom averred that the reporting restrictions should not be extended.

At a substantive hearing before Mr Justice Poole, with a number of observers watching remotely (although repeated microphone problems meant not always hearing remotely), barrister Parishil Patel KC, on behalf of AB’s mother, told the court their application had changed – and they now sought an expiry date of restrictions in either 2 or 10 years’ time.

Mr Patel told the court his client wished to “prevent publication of very personal, very private details about [AB]” who “was a very, very private person…he wouldn’t want people to know his information“.

He added Mr AB had said as much in his living will – “I like to maintain my privacy. I would not like my photo to be shared on social media“.

Whilst acknowledging that “it’s correct as a matter of principle that any derogation from open justice has to be justified”, Mr Patel submitted that the Article 8 privacy rights of the family members outweighed the Article 10 rights of the public to know the identity of those connected to the case.

Having recognised that Professor Kitzinger has a particular interest in communicating information to enhance the public’s understanding about living wills, he added that the public interest issues in the already-published judgments can be reported and discussed without the need for the identification of family members.

Mr Patel told the court there is a risk to the professional reputations of Mr AB’s relative,s having cited in written submissions that “many allegations were made in the proceedings which were not proven and were not ultimately relevant to the court’s final disposal of the proceedings“.

Barrister Ms Alexis Hearnden, on behalf of Mr AB’s partner, explained that her client wanted “to be able to speak freely about an enormous part of her life”, having become “embroiled in Court of Protection proceedings” over the past year. “At the moment the transparency order prevents her from fully speaking about that.“

Ms Hearnden explained that her client had “erred on the side of caution” so far, and avoided talking about any details of the case which could breach the current transparency order, with the potential consequence of a prison sentence or fine.

Questions to her client about how Mr AB died, or what his funeral arrangements were, had been discouraged save for dealing with logistical issues, we were told.

In written submissions drafted by Victoria Butler-Cole KC and Ms Hearnden, it’s said that the primary reason for anonymisation for Mr AB’s partner and family was to prevent identification of him. Reliance was placed on a line in a previous judgment of HHJ Hodge KC: It was said that now that AB has died, he “no longer has any need for the special protection afforded by anonymity“

The written submissions also said that the partner “is distressed by AB’s death and the court process, and that is exacerbated by the prospect of never being able to speak about what has happened, including even to her friends or family… the strained relationship with AB’s family was a significant reason for the issue of proceedings and the way that they developed“.

There is a strong public interest in the public being informed about the workings of the Court of Protection, and the challenges that are faced on a daily basis by individuals seeking to assert their rights and the rights of others in the Court of Protection

Written submissions on behalf of Celia Kitzinger

The court also heard submissions made on behalf of Professor Celia Kitzinger who was granted intervenor status at this hearing.

Represented pro bono by Emma Sutton KC and Gemma McNeil-Walsh the court was told they echoed the submissions of Mr AB’s partner and that they also resisted the continuation of the transparency order.

Ms Sutton told the court that there were some “unusual aspects” about this case, including the initial allegations that the living will was fraudulent, which were “really important to discuss freely“.

In written submissions it was said that “reporting is currently limited to an abstract form, devoid of much of its human interest; which could well mean that the blog posts (etc), will not be read, and the information will not be passed on” and that “the principle of open justice would be further promoted if the proceedings could be more freely discussed and reported upon without having to navigate the practical difficulties of complying with the terms of the transparency order“.

They acknowledged that although the Article 8 privacy rights of the family were engaged, “they are not weighty enough to justify maintaining the fetter” of the transparency order or sufficient to overturn the Article 10 rights of the partner, the intervenor and the public.

Mr Justice Poole indicated that he would reserve judgment and would hand down a draft to the parties “as soon as I am able“.

Towards the end of the hearing, two members of the public walked in and sat to observe proceedings.

Reassured by the judge that they could remain, but that he’d have to give them a copy of the transparency order, it transpired that they might not fully understand English.

After they had left, Mr Justice Poole commented that although tourists were entitled to come in and look at the work of the court, this exchange “shows some of the complexities which arise” when dealing with transparency orders.

Daniel Cloake is a blogger and news gatherer with a keen interest in Open Justice and the niche and the nuanced. You can read his many other blog posts on his own site“The Mouse in the Court”. He’s also blogged for this Project before (e.g. “I have to tell you something which may well come as a shock”, says Court of Protection judge). He tweets @MouseInTheCourt

Authenticity of a “Living Will”

By Celia Kitzinger, 20th September 2025

A document labelled a “Living Will” was at the centre of this case (COP 20006397) heard before Mr Justice Poole in the Royal Courts of Justice. The protected party is referred to as “AB” in the early judgments and in this (and earlier) blog posts: his name, Carl Gardner, is now in the public domain, following a published judgment concerning the duration of the transparency order.

His family claimed that the “Living Will” document was not valid, not applicable to his current situation, and not a genuine document produced by him of his own free will^[1]. The hearing I observed on 30^th June 2025 was supposed to be about the authenticity of the “Living Will” .

The issues of validity and applicability had already been dealt with in earlier hearings. The judge had ruled that the advance decision to refuse treatment (ADRT) contained within the “Living Will” was, if authentic, both valid and applicable (AB (ADRT: Validity and Applicability), Re [2025] EWCOP 20 (T3) (10 June 2025)). So now the question was: is it authentic?

The family said it was not an authentic document. They alleged fraud (that it wasn’t AB who had written or signed the document) and undue influence (that someone – unspecified – had persuaded or coerced him into writing or signing it). If the document was inauthentic, then neither the ADRT it contains, nor the expressions of wishes and preferences (e.g. in relation to contact with family) that are part of the document, could properly be taken into account in making decisions about his treatment and care. I haven’t seen the whole document, but a significant part of the Living Will is helpfully reproduced in the judgement cited above.

In the most recent blog post about this case, another observer and core team member of the OJCOP Project, Claire Martin summarised what’s happened so far:

The story is terribly sad. AB is a 43-year-old man who is being given medical treatment to keep him alive in a minimally conscious state. There’s a document that AB made not long before his brain injury, that he called a “Living Will” (not a legal term, but one which is commonly used), which includes refusals of life-sustaining treatments, including clinically assisted nutrition and hydration (i.e. the feeding tube, which is the main treatment currently keeping him alive). There’s been a dispute about whether these treatment refusals constitute a legally binding valid and applicable Advance Decision to Refuse Treatment (ss. 24-26 MCA 2005). That’s been resolved: the court has now ruled that they do. But the family also says that the document is fraudulent (that it’s not his signature on it) or, if it is his signature, then it was made under duress or undue influence. Meanwhile, the Trust continues to give him medical treatment which is quite possibly contrary to his legally binding instructions, and may also be contrary to his best interests – although these seem not to have been properly addressed. There is a bitter dispute between AB’s birth family and fiancée that is likely to be aired in court at the next hearing on 30^th June-3^rd July 2025. (Claire Martin, “Preparing for possible future lack of capacity: My advance decision to refuse treatment and the case before Poole J”).

It was listed as a four-day fact-finding hearing, and because ADRTs are a particular interest of mine (both personally and on public interests grounds), I went along to observe in person.

In the event, the case was concluded by the end of the first day. The family decided not to pursue their allegations of inauthenticity. The upshot of that was that the “Living Will” – including both the ADRT and the statements of wishes and preferences – was treated as genuine.

The authenticity of the “Living Will” document has different implications for the two elements within it. One part, the advance decision to refuse medical treatment (ADRT) is legally binding, as if the patient were making a contemporaneous capacitous refusal of treatment – and the court cannot interfere with that decision. The other part, stating wishes, feelings, and preferences, has legal standing and should properly be taken into account in making best interests decisions about the patient, but is not determinative.

In a second published judgment about this case, Poole J writes:

There being no challenge to its authenticity, the ADRT within the Living Will is binding in that it has effect as if AB were now refusing consent to the identified treatment, namely CANH. However, other parts of the Living Will which addressed contact with family members in the event that AB were to lose capacity, which he has, are not binding under the Mental Capacity Act 2005 but are highly relevant to a best interests decision about contact. I was invited to resolve outstanding disagreements about AB’s contact with the Third Respondent, his fiancée, and with members of his family whilst AB is cared for at a hospice. I made determinations about contact in his best interests. (Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3))

I will deal with the two parts of the Living Will separately.

**1. Advance decision to refuse treatment (ADRT)**

Since the judge had already handed down a judgment confirming the validity and applicability of the advance decision to refuse treatment (Re AB (ADRT): Validity and Applicability) [2025] EWCOP 20 (T3), the court’s acceptance that it was authentic as well meant that the ADRT was now constituted as AB’s own legally binding decision. This meant that it was not open to the court to make a ‘best interests’ decision about life-sustaining treatment – because AB had already made his own advance decision in accordance with §§24-26 Mental Capacity Act 2005. A valid, applicable, and authentic ADRT means that it is unlawful to continue any treatment that has been refused – and that included, in AB’s case, clinically assisted nutrition and hydration.

The judge made a short declaration that it was lawful to continue clinically assisted nutrition and hydration until AB could be moved to a hospice, but that transfer must take place within the next seven days. During the period prior to transfer, there must be no escalation of treatment – no cardiopulmonary resuscitation and no antibiotic treatment. At the hospice, he must be provided with palliative care and all life-sustaining treatment withdrawn, in accordance with his own binding advance decision.

It was a sombre and moving experience to hear this in court. It was profoundly sad to understand that AB’s life would now come to an end. It was also (for me) empowering to hear the judge recognise the limits of his authority over AB and to witness how the decision-making power of clinicians and the court was blocked by AB’s autonomous and capacitous decision.

2. Contact – a statement of wishes and preferences

The issue of contact between the family and the patient was more complicated. The Mental Capacity Act 2005 permits us to make legally binding refusals of medical treatment in advance of losing capacity – and AB had done so. But we can’t make legally binding refusals to allow people to visit us after we lose capacity; all we can do is express our wishes and preferences on the matter, and these should be taken into account (alongside any apparent current wishes and feelings) at the point at which best interests decisions need to be made about who visits us. In this case, AB had expressed a strong preference that members of his family should not visit him if he were to lose capacity – and he also explained why that was, expressing some very negative views about them. Not surprisingly, the family were upset about what he’d said about them, and they did want to be at his bedside as he lay dying in the hospice.

As it turned out, AB’s fiancée was content for his family to visit him (as they had been doing frequently ever since his brain injury). This was in part because he was unconscious and not objecting or showing any distress when family were at the bedside.

The Official Solicitor (represented by Katie Scott) made the point that “even if [his fiancée] and the family were able to come to an agreement on contact, it may be that the Official Solicitor will say, ‘well we can’t agree to that because of what he’s said in the Living Will’”. I was pleased to hear this – it gave appropriate weight to his written views, and affirmed for me the value of advance statements of wishes and feelings, even though they’re not legally binding.

The Official Solicitor eventually decided “not to stand in the way of that agreement” between AB’s fiancée and his family. The reasons given were that the patient would be in ‘calm coma’ at the hospice and not in any way aware of his visitors, and – crucially I thought – that a key motivation in not wanting family visits was that AB had wanted to “protect [his fiancée] from the treatment that he perceives she will receive at the hands of his family” (i.e. they’d be unpleasant towards her). The Official Solicitor’s view was that “what this court could do is provide her with that protection – set up ways of them visiting and [his fiancée] visiting with no chance of them meeting”. The parties agreed, and the judge approved, a “contact schedule” with buffer times to avert the risk of family and fiancée running into each other because “regrettably, that would be prone to result in conflict” (as the judge put it).

Implications for everyone planning ahead for future lack of capacity

This case is really significant for all of us concerned to plan ahead for a future when we may lack the mental capacity to make our own decisions about medical treatment, or indeed about anything else. We will publish some more blog posts exploring this in more detail.

For now, it is obvious that we need to ensure, as has always been the case, that our refusals of medical treatment comply with the statutory requirements for an Advance Decision as set out in ss. 24-26 of the Mental Capacity Act 2005. In addition, the most striking lesson from this case is that we also need to pre-emptively protect ourselves against possible claims of inauthenticity on the grounds that we didn’t actually write or sign the document ourselves, or that we were coerced or manipulated into doing so.

Compliance with the statute is not too difficult for anyone using one of the templates produced by competent charities in England and Wales. (These tend to be much better in practice than those I’ve seen produced by solicitors. And they’re free!). I recommend Compassion in Dying. Beware – because there are bad templates out there and I’ve seen many poorly composed ADRTs as a result. I’ve also been dismayed by reliance on templates from other jurisdictions, including American “advance directives” (presumably the result of a google search) and templates produced by Swiss assisted dying organisations: these rarely comply with statutory requirements in England and Wales.

It’s less obvious how to protect ourselves against claims of fraud and undue influence.

In his judgment dated 10^th June 2025 Mr Justice Poole summarises the main strands to the family’s argument explaining why he considered it necessary and proportionate to hear the family’s case that the ADRT is a fake document, or was signed under undue influence. He says:

51. Mere assertion of such a case without any grounds might well result in the Court exercising its case management powers to avoid a substantial hearing on those assertions. Here, however, I am satisfied that the Fourth Respondent’s [ i.e. the family’s] contentions merit proper, but proportionate, consideration by the Court:

51.1 There is evidence from the family that the style of language used in the ADRT […] is not at all typical of AB.

51.2 The family has provided evidence that there are plain errors in the documents which suggest that they were not made by AB, for example in the pet-name he gave his grandmother.

51.3 The family has given evidence that some of the assertions made in the documents are at odds with AB’s communications with them at the time.

51.4 The documents were produced so late after AB’s brain injury. It is a legitimate question to ask why those who knew he had made the ADRT would not produce it if it had indeed been made before he lost capacity.

51.5 The document was produced after a significant falling out between [AB’s fiancée] and the family and was relied upon by [AB’s fiancée] to seek to exclude the family from involvement in AB’s life and decision-making about his treatment.

Re AB (ADRT: Validity and Applicability) EWCOP 20 (T3)

Because the family decided, at the eleventh hour, on the first day of the projected four-day hearing, not to pursue their case that the Living Will was a fake or the product of undue influence, I don’t know how these arguments would have played out in court. The two people who witnessed the signature to the Living Will were in court ready to give evidence, but they were never called on to do so – not least because there were concerns that there could have been potential criminal charges against them that had not been spelt out, and they hadn’t been given the opportunity to get legal advice.

The position statement from AB’s fiancée (represented in court on that day by Victoria Butler Cole KC ^[2]) helps me to understand how she had planned to counter the allegations of fraud and undue influence. She says: “There is no obligation on any person inviting a medical professional to rely on an ADRT to establish in the Court of Protection that it is a genuine document”. So, the starting assumption must be that a legal document (such as an ADRT) is genuine, and allegations of fraud and dishonesty in relation to such documents must be proved on the balance of probabilities, based on evidence and not mere speculation.

In this case, the evidence in support of the fiancee’s position that the ‘Living Will’ is a genuine document, freely created, and reflecting AB’s actual wishes and values includes:

the court has sworn witness statements from the two men who signed the living will as witnesses to AB’s signature
these two witnesses are close friends of AB’s, they don’t stand to gain anything by making fraudulent claims about his living will
the reason why the fiancée was not aware of the living will until August 2024 was because AB didn’t tell her he was making it as he didn’t want to “upset” or “worry” her
AB’s friends were not surprised that he produced a living will – they gave witness evidence that he’d told them that he had “got his affairs in order in case the worst were to happen”. This followed a series of serious health issues (leading to several A&E visits due to breathing problems) in the run up to his cardiac arrest on 4^th May 2025.
The advance decision to refuse treatment is consistent with AB’s views as expressed to those of his friends who submitted witness evidence (in writing) to the court, and with a tattoo he has which reads “Death is not the greatest loss in life. The greatest loss is what dies inside us while we live”. This is consistent with views expressed in the living will that prioritise quality of life over quantity.

The fiancee’s position statement counters the concerns raised by the family, saying (for example) that AB wrote formal professional documents as part of his work and was perfectly competent to do so (and this was testified to by a colleague); that he used different pet names interchangeably for his grandmother; and that the reason why the living will wasn’t brought to the attention of the doctors before August 2025 was because she was not aware of its existence and the two witnesses were not aware of the severity of AB’s brain injury (as borne out by contemporaneous text messages e.g. between one of the witness’ mother – an advanced health care practitioner – and AB’s fiancée, one of which reads “Thank GOD No Brain damage they will check his cognition when they wake him up”).

The fiancée points out, too, that she has nothing to gain from AB’s death: he has no property, no savings and no life insurance: there is no motive for her alleged dishonesty.

Finally, in relation to the allegation of undue influence, it would be odd (as Poole J observed in his judgment) to manipulate AB into signing the Living Will when he had capacity, and then to fail to bring the document to anyone’s attention for four months after his brain injury.

In any event, these arguments were not tested in court because the family did not pursue the allegations. But it worries me that the circumstances surrounding the Living Will, and the content of the Living Will itself, raised sufficient concerns to the judge that he considered it necessary and proportionate to hear the family’s case. The judge’s decision to hear the family’s evidence caused a significant delay in implementation of (what turned out to be) AB’s properly-made valid and applicable ADRT – a delay of many months during which he was subjected to medical treatments he had lawfully refused. I would want to guard against my own ADRT being vulnerable to this kind of scrutiny by the court. If anyone were to try to question the authenticity of my ADRT in future, I would very much hope that the court would “exercise its case management powers to avoid a substantial hearing“.

None of us would want our loved ones to be placed (like AB’s fiancee) in the position of having to defend the authenticity of our written documents after we’ve lost capacity. We want to produce documents that are sufficiently robust to avoid this kind of challenge. The best I can come up with for now are these three suggestions.

1. Tell everyone about your ADRT and any other statements you’ve made about what you want to happen if you lose capacity to make decisions for yourself. Tell your GP, and your family and friends – including people you really don’t want to “upset” or “worry” – because if things go wrong later, they will be much more upset and worried than if you’d told them at the time. Tell people who you know or suspect will disagree with what you want for yourself, because those are the people who might challenge the document and plant doubts in the minds of clinicians and the courts.

2. Record, in writing, who you have told and what their views are. It’s can be helpful to write (for example) “I’ve told my daughter that I don’t want cardio-pulmonary resuscitation and I’ve got my GP to formally record this in a DNACPR form. My daughter’s very upset about this – she wants me to live forever, but this is my decision and I’ve explained to her why I don’t want anyone to try to get my heart beating again if I have a cardiac arrest. She doesn’t agree with me – so if you’re reading this in a situation where I’ve lost capacity, please give my daughter the emotional support she needs to cope with this, but please respect my wishes and don’t let them be over-ruled by what she wants”. There’s no need to be hostile or angry with people who might disagree with you – but you do want to protect your right to make your own decisions, irrespective of their opinions on the matter.

3. Tell people where your documents are stored. Give copies to people, including your GP and any professionals treating you. Take them to hospital with you. Make clear that people who know about them must produce them immediately in any medical emergency or if you’re found to lack capacity to make your own decisions (even temporarily). You may need to find ways of engaging with health care professionals who are uncomfortable with being informed about your decisions and may be dismissive or cavalier about your documents (e.g. refusing to look at them and stating airily, “I’m sure it won’t come to that”, in my own experience!).

There may well be other lessons to be learnt from this case – and from another very similar case which I’m currently following in a regional court, in which there are also allegations that P was subject to undue influence in making her Advance Decision to Refuse Treatment.

The case continues after AB’s death

Finally, there have also been two further developments in this case since AB’s death.

One relates to the duration of the reporting restrictions. The family applied to extend the Transparency Order, which prohibits anyone from naming or doing anything likely to identify them, AB and AB’s fiancée, as the people involved in this case. It was due to expire at the end of August 2025. It was extended pending a judicial decision on this, after the family applied for the Transparency Order to be extended for a further 10 years. The family’s application is opposed by AB’s fiancée: she does not want to be subject to a court injunction preventing her from identifying her partner and herself as having been involved in a Court of Protection case. I was joined to that case as an intervenor, and support the fiancée’s position and the principle of open justice.

The other development relates to Poole J’s decision to direct disclosure of Position Statements, and to the very helpful guidelines about disclosure of Position Statements to observers, as set out in his second judgment in this case (Re AB, (Disclosure of Position Statements) [2025] EWCOP 25 (T3)). The family has applied for permission to appeal in the Court of Appeal.

We’ll be reporting on both developments in upcoming blogs.

Editorial note: There are now three published judgments, as listed below. Click on the link in the name of the case (the protected party, “AB” can now be named as Carl Gardner)

AB, Re (ADRT: Validity and Applicability) [2025] EWCOP 20 (T3) (10 June 2025)

AB, Re (Disclosure of Position Statements) [2025] EWCOP 25 (T3) (15 July 2025)

Gardner (Deceased), Re (Duration of Transparency Order) [2025] EWCOP 34 (T3) (24 September 2025)

The protected party died on 8^th July 2025. We offer my condolences to his fiancée, his family, and his friends.

Footnotes

[1] For previous blog posts about this case see: “Determining the legal status of a ‘Living Will’: Personal reflections on a case before Poole J” and “Validity and applicability of an Advance Decision to Refuse Treatment: A pre-trial review” (both by Celia Kitzinger), and “Preparing for possible future lack of capacity: My advance decision to refuse treatment and the case before Poole J”, by Claire Martin.

[2] Alexis Hearnden and Catherine Dobson, also both of 39 Essex Chambers acted as counsel for the fiancée as well as Victoria Butler-Cole, and all three counsel were instructed through Advocate. All three barristers were representing her because none of them was free for all four days of the hearing (as listed), so they decided to overlap instead, since it wasn’t realistic to expect to be able to find new pro bono counsel who was available for the entire period.

[3] I am grateful to all parties for disclosure of their position statements in relation to this hearing.

[4] Information about the position of the (biological) family is assembled from what was said in court and from the position statements of the other parties and from published judgments. It does not come directly from the family’s position statement since I do not have permission to publish that document.

Should surgery be delayed while the legal framework relating to capacity is established?

By Sandra Preston and Amanda Hill, 15th September 2025

We observed this remote hearing (COP 13630253) before Senior Judge Hilder at First Avenue House in London on Wednesday 3rd September 2025.

It was Sandra’s first time observing a remote hearing, but Amanda has observed scores. We have divided this blog into two parts. First Sandra describes the hearing and highlights what she found most interesting, and then Amanda outlines the key points she took from it.

The protected party (P) is a woman with diagnoses of mild learning disability, emotionally unstable personality disorder, functional neurological disorder, dissociative disorder and elective mutism. She can communicate using Makaton. Amanda observed a previous hearing about this case on 25th July 2024. At that time, P had been in hospital for a long time and was awaiting discharge to a specially adapted bungalow. It became apparent during this hearing that care and residence have broken down. Now P is back in hospital and awaiting an urgent surgical procedure. The hearing became about authorising that. But where P should live and who should care for her after she left hospital is the long-term substantive matter before the court.

This was a fully remote hearing: the judge was in an empty courtroom. In all there were 15 people on the screen, which is a lot of people.

The protected party was represented by Ian Brownhill (via the Official Solicitor, her litigation friend).
Ulele Burnham represented the local authority, Suffolk County Council;
Samantha Paxman (with two hats on) was representing both Norfolk and Suffolk NHS Foundation Trust and NHS Suffolk and North East Essex ICB; at times SJ Hilder asked Counsel which hat she had on when she was speaking and if the other hat agreed;
Anna Bicarregui, was representing P’s sister and brother pro bono. (P’s sister and brother were also present in court.)

There were also solicitors and professionals representing the Trust, ICB and County Council on the link.

Summary of the hearing – By Sandra Preston

The real issues between the parties at this hearing, as I understood them, were what medical treatment P should receive, when and on what legal basis, and whether a suitable package of care and support could be provided for her in the community once she was fit for discharge from hospital.

After requesting and receiving the link and a copy of the Transparency Order from the Court staff, I also submitted requests to each of the four parties asking them to share their Position Statements. Three of my requests were granted: the notable exception was the Official Solicitor, from whom I received the standard template refusal. Following the guidance in Re AB (Poole J) I wrote to ask SJ Hilder to direct the Official Solicitor (OS) to disclose their PS, which the judge did in her no-nonsense way at the start of the hearing. Fifteen minutes later all the observers had the necessary Position Statements and the hearing got underway.

We learned that P had resided for some time in an acute hospital setting where previously there had been concerns about her capacity to make decisions about her hydration and nutrition. It appeared that her treating clinicians had now decided she had capacity in this regard and she was consenting to a nasogastric feeding regime. She required gallbladder surgery, having had a drain fitted as a temporary measure to ease her pain and to buy time while the various parties deliberated over the legal basis for the operation to go ahead. It was unclear whether this would necessitate an application to the court, or whether P was being treated as capacitous in this regard. Her family members were concerned that surgery, which had been planned for a specific date, and which was considered to be in P’s best interests, should not be delayed unnecessarily. They also wanted the surgery to proceed while P was still in a hospital setting.

The OS’s overriding concern appeared to be how this matter was being litigated. P was being deprived of her liberty in a hospital setting where, if she was not being treated as capacitous, she was effectively in hospital without a DoLS. It was a matter for the acute hospital Trust to decide under what legal basis they could proceed or whether they would need to apply to the court. But they had less than two weeks until the date planned for surgery.

SJ Hilder’s view was that it would be wrong for planned surgery to be delayed while legal framework issues were resolved. She instructed P’s representatives to make express representations to the acute hospital Trust seeking answers to the list of questions that had been drafted for the clinicians and warning them about the need for a proper legal framework. She also wanted confirmation as to whether the insertion of the nasogastric feeding tube had been a capacitous decision or a best interests one. She set out a clear timetable of the steps that needed to be taken and by when, so that the surgery could proceed as planned.

SJ Hilder then moved on to address the main issue which was what progress had been made in identifying a community setting to which P could be discharged following surgery. The primary position of all parties, including family members, was that if and when an appropriate care package could be identified, P’s needs would be better served in a community setting. The LA put forward their concerns about the identification of appropriately skilled carers, the absence of which could cause the community placement to fail. No options were immediately available but three potential care providers were currently under consideration. SJ Hilder set some firm deadlines for when these providers would need to put their cards on the table in terms of being able to meet P’s post-surgery assessed needs.

SJ Hilder set the date of the next two-hour hearing for 2pm on 14th November (coincidentally the date on which one of the family members was due to give birth) and again gave directions as to what she expected to happen in the interim. This included an update from the surgeon as soon as practicable after the operation had taken place, which she considered it was the responsibility of the parties to obtain. If P was considered clinically fit for discharge from hospital following the operation and if the parties could agree on a community care package/placement, she would accept a COP9 application from any of the parties to vacate the 14th November hearing. If she had not received this by 4pm on 29th October, the hearing would go ahead.

Reflections I – By Sandra Preston

For an observer coming to this case for the first time, it was no easy task to establish who everyone was on the screen and what their roles and issues were. The Position Statements helped greatly in this respect.

The judge ran this hearing with clinical precision, setting out clearly what her expectations were and fixing firm deadlines by which actions needed to have been completed, and making it evident to representatives when she was less than pleased with their response (eg “it’s not helpful to be told a party has not yet made its mind up”). It left me feeling confident that if the various representatives did what she required of them within the timescales set, progress would be made on the next occasion that would be beneficial for P.

One thing I noticed was that SJ Hilder sought permission from the representatives before addressing family members. The family members were clearly much more closely involved and better placed to answer her questions (which is more often than not the case) and it made sense to me for her to direct her questions to them rather than via their representatives.

It was disappointing that Counsel for the Local Authority did not know the name of one family member and had to be corrected after continued use of the name of a well-known actor rather than the person’s actual name. The eye-rolling of that family member concerned each time it happened suggested she felt the same way.

Reflections II – By Amanda Hill

I found it interesting reading Sandra’s reflections, as she picked up something that I had noticed too – the etiquette or unwritten rules of the courtroom and the impact this can have on family members and proceedings as a whole – particularly the matter of the judge speaking directly, or not, to family members.

Court etiquette is that a judge speaks to a party through their legal representatives. Represented parties do not normally get to speak (unless they do so as witnesses), only their barrister does. At this hearing, it was clear that P’s sister in particular had enormous knowledge to be able to help the judge make her decisions. To me it felt an unnecessary step for the judge repeatedly to ask Counsel for permission to speak to her clients. On at least three occasions that I noted, P’s sister put her ‘yellow hand’ up and the judge asked her Counsel if she could speak to her client directly (with ‘yes’ being the answer each time).

Would the ceiling of the court come crashing down if court etiquette was suspended with agreement at the start of a hearing, in suitable circumstances such as I think this one was? There have been previous hearings when these family members have been present and addressed the court, so it wasn’t the first time they were in court. It was already a bit of a strange hearing protocol-wise, as yellow ‘MS Teams’ hands were often popping up as the judge was speaking. Just as family members knew more about P than did Counsel, so too the professionals had more knowledge of what was happening on the ground than did their Counsel, as it was a fast-moving situation.

I understand that this etiquette has developed over time but nothing formal is written down. Reasons for organising speakership in this way are:

A person has chosen to be represented, so it’s about protecting their rights – and they may not wish to speak in court
A party may unintentionally mislead the court in what they say, which could get them into trouble
The judge has to deal with both evidence and submissions, and contributions from an individual unaware of the distinction can cross that boundary
It’s a hearing and not a meeting and so only one representative per party speaking prevents chaos.

These are of course valid reasons. But I just wonder whether the unwritten rules could be bent more when it makes sense.

Moving to the interventions by the family in this hearing, the family members were concerned that P needed the gallbladder surgery urgently, and after extensive discussions with the clinician, in P’s sister’s opinion, it was the right thing to do for her sister. (Her brother didn’t speak but I know from their position statement that he agreed). There was discussion during the hearing about whether a less drastic solution was possible. P’s sister asked to address the court (via putting her yellow hand up) and I’m reporting the gist of the conversation (I don’t touch type, so my notes won’t be completely verbatim).

P’s Sister: I am thinking that people are getting muddled …the drain was a short-term measure as surgery was not possible after infection …I went through the risks and benefits with (the senior surgeon) and he is happy that it is in her best interests to have surgery as soon as possible …. The only way he can stop the pain and infection is removing her gallbladder, and, like an appendix, we can live without it.

The Judge’s reply to her: Yes, the order reflects confusion….. So I want the order changed to say that P has not had surgery and you say that you support it. This is an area that lawyers get irate (about) as P has to give her own views. (They) are not trying to delay (surgery) but (we) are trying to ensure that there is a lawful framework for surgery.

I found the judge’s choice of words interesting: “lawyers get irate as P has to give her own views” (that is via her Litigation Friend, the Official Solicitor). This can be confusing to family members – many of whom don’t fully understand (or don’t accept) that it’s not them who represent a person who does not have capacity, but rather the Official Solicitor. However, it was clear in this case that P’s sister knew more than the Official Solicitor. This exchange reflects the in-depth knowledge of her sister and how she was trying to get the best treatment for P. She was worried that surgery would be delayed. But the procedure has to be properly authorised by the court – and P’s sister isn’t the one who can give approval, that’s the judge.

The judge was on top of things, listened to P’s sister, and recognised that the order needed to be changed. P had been asked herself but had said that the decision was “too big” for her. But she had not been assessed as lacking capacity. So, the use of the term ‘best interests’ by the surgeon to P’s sister was also problematic for the court.

I suspect that the outcome will be that the surgery does go ahead, once the court is satisfied as to the legal framework and has the appropriate answers from the surgeon.

There was a similar exchange towards the end of the hearing. Counsel for P (via her Litigation Friend the OS) was concerned about the nature of the surgery and whether it would be the least invasive option, and what that meant for recovery time. Again, P’s sister asked to intervene. She stated that the surgery would be keyhole and that the surgeon hadn’t done any other type of surgery for this issue in six years. At this point I saw Counsel for P do a physical ‘thumbs up’ (with his real hand) on screen.

The third intervention from P’s sister that I want to highlight was towards the end of the hearing. She is playing a vital role on the ground as she is effectively acting as interpreter for P, using Makaton (and having to fit this in with a full-time job). Hopefully the Trust can find personnel who know Makaton to reduce the reliance on P’s sister.

During the discussions about future hearing dates, it became apparent that Ian Brownhill had stepped in at fairly short notice for another barrister. He said that he would not be available for the November hearing. But the judge did ask if, for continuity, he could be available for an urgent hearing about the proposed medical treatment if one was needed. This exchange shows how much juggling legal teams and the court have to manage, and how family can provide some continuity.

At the time of publication, the surgery should be done and we wish P a good recovery. We hope to be able to report on how the case is progressing if the 14th November hearing goes ahead.

Sandra Preston is the daughter-in-law of a P who was involved in Court of Protection proceedings, as she describes in her earlier blog post, written jointly with her husband, P’s son, Joe Preston. You can read it here: A court hearing and 23 visits from 16 officials: Family doubt that ‘Deprivation of liberty’ is working in the public interest. Sandra can be contacted through the project email on openjustice@yahoo.com.

An emergency statutory will for a dying man

By Jenny Kitzinger, 11th September 2025

Mr R is a 72-year-old man who has a psychiatric illness and appears to have an (unidentified) underlying neurological condition which has contributed to rapid mental and physical decline over the last two years. He is in end-of-life care and expected to die within days. He was the protected party at a hearing (COP 20020839) I observed remotely on 2nd September 2025 at First Avenue House before DJ Mullins. It was listed as a directions hearing about a statutory will.

A statutory will is a last will and testament authorised by a judge in the Court of Protection when the protected party lacks capacity to make a will themselves, and when it is in their best interests for the will to be made. There’s more information in a blog post by a lawyer: “Statutory Wills: A barrister explains” and a blog about a different case here: “Judge approves statutory will in contested hearing”. For an example of academic analysis of statutory wills and discussion of case law see “Doing the right thing under the Mental Capacity Act 2005”

I’m personally interested in wills as I’ve just completed an arduous process of being executor for the will my father wrote, and I’m particularly interested in statutory wills because I’m a lay Deputy for Property and Finance for my brain-injured sister, Polly Kitzinger. My deputy role means that I have responsibility for ensuring that decisions Polly’s unable to make for herself are made in her best interests. A Deputy cannot make a will for the person they act for, but they can make an application for the court to do so, and they (or anyone concerned for the person’s welfare) can draw up a draft will for the court to consider.

Most statutory wills are approved by the court without a hearing. They are not problematic – nobody contests them. So there are not very many opportunities to observe hearings and I was pleased to be able to get to this one.

Background

Despite the fact that Mr R has been found to lack capacity to make a will, he is still able to communicate his views about the sort of will he wants. He used to be married (now divorced). He has a son and daughter from that marriage who he’d like to be executors of his will and to inherit everything.

He also has an ex-partner who used to live with him. He’s told his children, and separately also said to an independent social worker and a solicitor, that he does not wish his ex-partner to receive any benefit from his estate. (His main asset is a relatively modest house).

The problem is that Mr R’s existing will, drawn up in 2014, makes his then-partner co-executor (along with his son) and doesn’t name his daughter as executor. The 2014 will may also still give his ex-partner some claim to live in his house (as she was doing when he wrote the 2014 will). This claim may be (at least theoretically) possible despite the fact that the relationship ended soon after Mr R first became unwell. A few months after he was admitted to hospital (in Autumn 2023), she moved out of his house, ended the relationship and returned to live in a house she owns. They’ve not seen each other at all now for well over a year, and Mr R is clear that he does not want to see her.

Many people in this situation might make a new will – but Mr R cannot do that because he now lacks ‘testamentary capacity’. He understands the nature of his relationships (e.g. that his ex-partner is no longer in his life, and the importance of his children to him) and he’s clear about what he wants to happen in terms of inheritance. However, when visited in hospital and subject to a formal capacity assessment, he said that he thought his assets were “worth nothing” and that his house was “gone”- so it has been determined that he does not understand the nature and extent of his estate, which is one of the key tests for ‘testamentary capacity’. (See Box 1)

This is the context in which an urgent application to the Court of Protection has been made by his children for a ‘statutory will’ – a will authorised by the court in the best interests of a protected party.

The statutory will they propose would remove Mr R’s ex-partner as co-executor and also take out any reference to her rights of occupancy. This would allow Mr R’s children to inherit the house, as they would have done anyway, but ensure this was free from any potential claim from the ex-partner in regards to living in the property.

I do not know the views of the ex-partner on all this as she was not represented in court, and had submitted no response since being notified of the hearing and served with the relevant papers. Her sister had sent a text message to Mr R’s son saying that no response could be expected from the ex-partner until she’d had time to seek legal advice.

This was an upsetting set of circumstances for all concerned – with time, money and stress being devoted to the issue of inheritance as a man lay dying, and it was clear that the case was very urgent indeed.

The hearing

Counsel for the applicant son and daughter was Jennifer Lee, Pump Court Chambers (and Mr R’s daughter was also present online, sitting with her solicitor.)

Counsel for Mr R, by his litigation friend the Official Solicitor was Georgia Bedworth of Ten Old Square

There were very clear and helpful position statements (written the day before), which I’d been sent in advance along with the Transparency Order (in compliance with the guidance from Mr Justice Poole in Re AB).

The position statement from applicants sought an order for authority to execute the Statutory Will for Mr R emphasising that the state of his health made the matter urgent. If the Court was unable to do that (e.g if the ex-partner submitted objections that left the judge of the view that there was doubt about Mr R’s best interests), they wanted an interim order authorising execution of the proposed statutory will (as a holding position) to be followed by an urgent contested hearing.

The OS agreed with the applicants that it was in Mr R’s best interests to authorise a statutory will in the terms proposed. In her position statement the OS noted that as yet no response had been received from the ex-partner – and that it was possible that she might dispute some of the facts – but that Mr R’s wishes and feelings, “which were expressed in the absence of either of the Applicants” were “a factor of magnetic importance in assessing Mr R’s best interests”.

At the hearing there was still no information from the ex-partner and she did not attend.

A draft order agreed between the applicants and the OS had been shared prior to the hearing and the judge said the final approved version would be sent to me when it was ready. (I’ve not yet received it.)

The hearing lasted just over an hour and this included breaks for counsel to read the draft order and consult with one another about minor amendments.

Part of the hearing involved what information Mr R’s ex-partner been given and the opportunity she’d had to respond.

The ex-partner’s (non) involvement in the case – notification and serving

When applying for a statutory will it’s important that people who might be affected by it (e.g. might have expectations as beneficiaries) are informed about the application.

At a previous directions hearing the judge had (as is pretty standard in these cases) ordered that the OS be invited to represent Mr R and also that the ex-partner be notified of the application.

The judge explained that he’d had some reservations (prior to being able to consult the OS) about going so far as to ‘direct full service’ on the ex-partner as this meant revealing extensive details of Mr R’s medical and financial situation to her.

However, the OS has subsequently gone on to accept the invitation to represent Mr R and, after discussion with the applicant’s counsel, the decision had been made to ‘serve’ rather than simply ‘notify’ her.

In retrospect, this seemed significant not least because the only response to the paperwork being delivered to the ex-partner’s house had been a message from her sister to Mr R’s son suggesting that only a covering letter had been delivered and saying “As this was so late in reaching us you can’t expect a response from [ex-partner] until she’s taken legal advice”.

Some time was spent clarifying the implications of this message. The photograph accompanying the text actually showed a set of paperwork beneath the cover letter which the solicitor charged with serving the paperwork had confirmed ‘accord in size to the paperwork I served’ – and the court also had the signed statement from this solicitor that he had served the paperwork.

The Judge concluded that it would be correct to say that the ex-partner had indeed been ‘served’ (rather than just notified) and he noted that the text message from the ex-partner’s sister simply gave ‘a reason for not responding’. He recorded the fact that there had been no response from the ex-partner (such as indicating that she opposed the application and giving her version of the facts and why she thought the statutory will was not in Mr R’s best interests).

Why authorising the statutory will is in Mr R’s best interests

The rest of the hearing was spent on the substance of why all parties in court (i.e. the applicants and the OS) believed that a statutory will was in Mr R’s best interests.

The OS supported removing the ex-partner as executor and replacing her with Mr R’s daughter (to become co-executor with Mr R’s son) because Mr R had (in early 2024) “when capacitous” given his son and daughter Lasting Power of Attorney (for property and affairs & for health and welfare) and his current expressed views now (even though incapacitous) were that he trusted his children.

The OS believed it was also in Mr R’s best interests to remove the statement referring to the ex-partner’s right of occupancy that was present in the 2014 will.

Mr R’s current wishes were “a factor of magnetic importance” – and as far as ‘past wishes’ were concerned the removal of the statement about his then-partner in the proposed statutory will could be consistent with Mr R’s wishes at that time too. The 2014 will stated that his children should inherit his house but that his then-partner, should have the right to live there unless she wanted to leave or got married to someone else. The OS’s position was that, arguably, the fact that she had already ended the relationship and moved out meant that, even under the terms of the 2014 will, her right to occupy had ended. But the problem was that these caveats in the will were directed to the period after Mr R’s death. It is not clear how the will applied if his then-partner had broken up with him and had moved out while he was alive. This option seems not to have been considered at the time, and the will was written in an ambiguous way that could leave the door open for potential litigation on this point.

The OS’s position was that the rights intended to be granted in the 2014 will were “conditional rights” founded on having a close relationship financially and emotionally – and this was no longer the case

The judge accepted this position, noting that the clause in the 2014 will was: “understandable in the context that he wanted to protect his partner”, but that:

“There was perhaps a gap in matters considered – it doesn’t address what happens if the relationship ends before Mr R’s own death. But if he HAD been asked about that it’s not much of a stretch to suggest it is very likely that he’d have thought her right to occupy should end.”

The OS’s position was that it was in Mr R’s best interests for the statutory will to reflect the significant change of circumstances (that the ex-partner was no longer in a relationship with Mr R, and the property was no longer her home) and made the point that removing any reference to right of occupancy for the ex-partner was practical, since she did not live there, and the house had actually been put on the market (and an offer accepted by his LPAs), and there were no tenancy rights under the housing act. The OS’s position was also that, if Mr R were able, he’d take into account the consequences of NOT making a statutory will – which would carry a (possibly small) risk of the ex-partner coming forward to make a claim, which leaves scope for expense and distress for his children in fighting the case.

The hearing concluded with some discussion of minor amendments to the order – but with the judge executing the order authorising the statutory will.

Reflections

This is a situation that could confront any of us – and our partners, ex-partners, family and friends.

Rights of occupancy are an interesting feature of wills that have come up in discussion with several of my friends – where, for example, their mother has died and their elderly father now has an (often younger) partner who has moved in with him. I suspect that a right of occupancy clause for the new partner or setting up a ‘life-time interest’ trust is a common feature in wills where an individual wants both to take care of his current partner and also to provide an inheritance for his children/grandchildren (by a previous marriage). Even when the (relatively new) relationship lasts until the death of the home-owner and they retain mental capacity to the end, the situation has its complexities – but I’d never thought about the implications of such a will after a break-up and how this is further complicated if the testator loses capacity (before or after the breakdown of the relationship). I suspect this gap in considering such implications is also common among people writing wills – and perhaps even some lawyers who help people draw up wills. (I would welcome correction on this last point.)

The case I watched highlights the importance of ensuring that wills are written very clearly and different changes of circumstances are considered.

This case also shows how quickly and efficiently the Court of Protection can act when needed.

Delays in bringing cases to court, or delays once they reach the court, are a common problem: many of the Open Justice Court of Protection Project blog posts highlight the glacial slowness with which cases can reach and progress through the courts.

Sometimes, of course, delay can be purposive and constructive – e.g., when it gives times for mediation. In this case, though, the unpredictable but imminent prospect of Mr’s R death meant the urgency was self-evident and there was no time for mediation. As the judge commented

“Many applications for statutory wills have due consideration over 3 to 4 months with the OS helpfully guiding applicants to a mutually agreed resolution but this one was urgent and I am grateful to the OS and the applicants working together on this.”

It is also clear that the urgency of the case increased even during the course of the application being made because Mr R’s feeding tube came out after his children had completed the CoP application form for a statutory will, but before the first directions hearing (see timeline in Box 2).

In this case, I think that (on the basis of the evidence available at the time) the Court has come to a timely and pragmatic solution that tried to consider and conform to Mr R’s wishes as much as possible. I hope that the hearing has helped to avoid the mess that could have been left if no statutory will had been approved. It is, however, unfortunate that court intervention for Mr R was needed, especially at such a difficult time for anyone who cared about him (or, indeed, had cared about him and shared a life with him in the past – however difficult the end of that relationship might have been).

I do not know the ex-partner’s views on the decision or what her expectations of Mr R were. I do think, though, that there is an argument for trying to ensure provision (for ourselves or others) during our lifetimes that cannot be withdrawn when a will is changed. It is not uncommon for someone who has been a main carer for many years and ‘promised’ certain benefits in a will to find those promises have not been realised in the final will and testament because the person who’s died simply changed their mind. But under those circumstances the potential legatee will have no grounds for challenging a will unless for example, they can prove undue influence or a failure to make ‘reasonable financial provision’ for certain types of dependents.

Anyone can change their will at any time when they have capacity to do so: that’s one of the reasons so many murder mysteries revolve around will making – and why wills can result in family conflict and expensive litigation.

Another lesson from this case is the need to keep wills under review. One option open to Mr R when he still had testamentary capacity may have been either to change, re-affirm or clarify his will after his partner ended their relationship.

It’s possible that Mr R might have had testamentary capacity in early 2024 after his partner had moved out (he apparently had the motivation and relevant mental capacity to appoint his children as his LPAs in that same year). It is also perhaps possible that he knew (or could have been informed by a clinician) that he might lose testamentary capacity in the near future. For me, then, this case is a reminder that carefully writing or rewriting a will should be one potential priority not just because we think we might die (which is inevitable) but because we might lose testamentary capacity – which, of course, a significant proportion of us are going to sometime before we die.

Decision to remove a professional deputy (without a fact-finding hearing): DJ Clarke in action

By Celia Kitzinger, 9^th September 2025

Almost exactly four years ago, Ms H was appointed as a Court of Protection Deputy for the protected party in this case (COP 11126846). It’s not been an easy role.

The protected party (P) is a young man who sustained a brain injury as a child and has, in adulthood, been assessed as lacking capacity to manage his property and affairs. Following the childhood brain injury, he was awarded several hundred thousand pounds of financial compensation, which is in a court account now managed by his Deputy. (For information about the role of a Deputy, take a look at this very readable and engaging blog post: What does a Deputy for finances do? by Ruth Meyer, who is herself a professional Deputy).

Initially, P’s sister acted as his Deputy – but after five years or so, she resigned. She was replaced by another relative. That second Deputyship broke down as well. A professional (panel) Deputy was then appointed by the court, but that Deputy then requested to be discharged due to accusations from P about the management of his finances. The current replacement Deputy is another professional Deputy, Ms H, appointed by court order on 20^th August 2021.

According to the judge, “it’s fair to say that Deputyship is not without its challenges”.

Ms H says (diplomatically) that “communication with [P] has … been difficult throughout my time as Deputy”, and she charts a history of problems, beginning soon after she took up the role.

In 2022, when P moved to a supported living setting where he would be responsible for paying his own utility bills, his support network – including the social worker – agreed that the Deputy should take over management of his Personal Independence Payments (PIP) to ensure his utility bills were paid. P objected and ever since then has made repeated requests for his PIP to be returned to him (or to a member of his family). He’s now living with his mother and contributing to household bills – but despite the Deputy’s repeated requests has never sent a breakdown of his household contributions. He’s also occasionally requested large amounts of money from the Deputy including for holiday flights, and a new car for his brother.

Then, in June 2023, P himself filed an application inviting the court to revoke the Deputyship as he believed he’d regained capacity and was finding the Deputy “overly controlling and restrictive”. (Although this case began with P as the applicant, he was subsequently replaced by three family members – his mother, brother and sister – who are the current applicants.)

In response to P’s application to discharge her as Deputy, Ms H filed a COP 5 objection to being removed as P’s Deputy but unfortunately the court considered the capacity evidence without having the COP 5 objection in front of them (the Deputy not having been informed of the application until the end of October 2023), and made the decision to discharge the Deputy.

In June 2024 the Discharge Order was set aside, following receipt of a letter to the court from the social worker who’d given the capacity evidence filed by P. She retracted her evidence as having been based on incomplete information. Ms H was reappointed on an interim basis.

Alongside his application to dismiss the Deputy, P had also completed some Lasting Powers of Attorney forms, purporting to appoint family members to act in the event he lost capacity in the future. Separate proceedings were brought by the Public Guardian and the court found P lacked both the capacity to manage his finances and also lacked capacity to execute the Powers of Attorney. This means a Deputy is still needed.

There was a Dispute Resolution Hearing (DRH) in July 2024, which was attended by P and some of his family members (including his mum), a legal representative for the Deputy, and by the person who was Deputy before Ms H had been appointed. The DRH did not resolve the issues.

There were some ineffective listings and delays – at least one hearing was postponed because the Special Visitor report had not been provided by the date specified in the order- and over this period Ms H continues to report that P and his family are refusing to meet with her, and that she’s not received any response to a proposed “working together” agreement.

I’ll describe what I saw in court across two hearings I observed, both in person, before DJ Lisa Clarke at First Avenue House in London: one on 8^th May 2025 and the next on 8^th August 2025, which concluded the proceedings.

May hearing

This hearing was supposed to consider the question of who should be P’s Deputy.

The judge, DJ Clarke, said in her opening summary that “On the occasion of the last hearing P attended with his mother, brother and sister, and we had a remote interpreter assisting the mother. There was little engagement with Ms H despite her presence at the hearing. P and all his family members chose to leave before the hearing concluded”.

This was a pertinent observation to make at the beginning of the hearing on 8^th May 2025 because neither P nor any of his family members were present. They’d submitted an application for the hearing to be adjourned, saying that they were “experiencing health issues” and that “the person most able to represent [P] is feeling emotionally drained”.

The judge released the interpreter who had come to court to assist P’s mother, and then said to Ms H (attending remotely due to her own health issues that day): “I have not made a decision as to whether to adjourn this hearing […] Before I make a decision, I’d like to hear from you as to what you think has been going on, and what course you think I should take”.

Ms H said that at the last hearing she’d had no objection to a change of Deputy “but I’ve changed my mind now. He’s not going to engage with any Deputy, so I think it should be me at present”.

The judge ran through what she had done to progress this case, which included making it clear that “it is in [P’s] best interests to have as much engagement as possible [with the Deputy] to find a viable working relationship”. She had also made directions that the court bundle should be provided to the applicant family members and that Ms H should write offering dates for a meeting and that the family should respond agreeing to a date, or offering alternative dates, or explaining why they would not meet with her. Ms H had offered some meeting dates but the family had declined them, failed to offer alternative dates, and not given any reasons beyond not wanting to work with Ms H. There had also been no response to the proposed “working together” agreement.

The judge said that the application to adjourn the hearing was “poorly and improperly constituted – it is not clear who is making it, it is not signed or dated, and there are no supporting documents”. She also commented on the family’s “wholesale failure to comply with directions” and “correspondence which suggests resistance”. On the other hand, “they are applicants in person, not legally qualified or represented”, and one of the accompanying documents mentioned that a family member had been hospitalised. She was also “mindful that at the hearing on 6^th February, it was abundantly clear that there was resistance from family members and from P himself to your continuing as Deputy”.

DJ Clarke reflected on the “over-riding objective” (of enabling the court to deal with cases justly and at proportionate cost, Civil Procedure Rule 1.1) and considered herself to be in a “finely balanced position”. She said: “Either I simply dismiss the application and continue your appointment either as interim Deputy or convert it back to a full Deputyship; or I make a Directions hearing, with directions expressing the need for medical evidence for non-attendance and non-compliance – and if there is no medical evidence, what the outcome will be: dismissal of the application to dismiss the Deputy. I am conscious there have been numerous previous Deputies and relationship breakdowns. It is unlikely to be in [P]’s best interests to repeat this in the future. There are limited resources of this court and a need to apportion them appropriately. On balance, and with a degree of reluctance, I’m going to adjourn. If I do not, there will be further applications to the court that will lead us back to the same place we are now. There will be one more go.” (For a different case in which the judge did not adjourn a hearing and went on to appoint a professional deputy in the absence of the parties, take a look at this blog post: “ When parties don’t appear in court and judge goes ahead anyway: Appointing a professional deputy”).

The next hearing was listed for 12 noon on 8^th August 2025 (“the earliest date I have”) – with effectively the same directions as last time, but with a form of ‘unless’ order (i.e. “an order directing that a specified sanction will be imposed unless the party concerned takes a specified step before a given date. The sanction specified occurs automatically on a failure of the party to comply with the unless order; no further order is required: CPR Rule 3.8” LexisNexis definition). The judge said: “The terms of the ‘unless’ order will be that if the applicant doesn’t comply with the order to file by 27^th June, the application will be dismissed and the court will make an order converting the interim Deputyship to a full Deputyship”.

I didn’t see what else the judge could realistically do under the circumstances. I know how hard judges work – this judge in particular – and how crowded their lists are. It’s dispiriting to list hearings that people don’t engage with. It wastes court time – and it wastes public money.

It also really can’t be in the interests of the protected party to have a Deputy he declines to engage with, and a judge trying to figure out what’s in his best interests in the absence of the family members, who clearly have views too.

August hearing

The start of the hearing was delayed. I found myself seated next to the family in the waiting room, so I introduced myself and gave one of them (she turned out to be P’s sister) my business card, with a link to the Open Justice Court of Protection Project website on it, so that they could find out more about the Project and what we do. I think one of them used a mobile phone to check us out.

The family did not seem perturbed by my role – although they did talk among themselves in their native language (which I don’t speak or understand), and at one point I think I was being pointed out to P himself, who seemed unworried by my presence as far as I could tell. The family seemed well-disposed towards me: when the hearing ran over the lunch hour – it didn’t end until 2.45pm – P’s sister kindly gave me a packet of crisps during a short adjournment to keep me going! (Reminder to self: always take a snack when court-watching!)

The judge opened the hearing with a comprehensive summary of proceedings so far, including information I’d not known before about P’s finances: the amount remaining from his compensation pay out, how much he receives in PIP (which the Deputy manages), and the approximate amount of Universal Credit (which P receives direct). It seems his expenditure results in a regular monthly deficit.

Family failure to follow directions to date

The judge then asked whether any of the applicant family members had filed medical evidence relating to their failure to attend the last hearing. They shook their heads. The sister said, “it was very personal – I’ll keep it to myself”. There was mention of the mother’s brother having been hospitalised – but no evidence or further details were provided.

The judge moved on to ask about whether there had been a meeting with the Deputy (no) and why not: “We said right at the beginning, we just felt really disrespected by her and her team, and that we are not going to be engaging with her in any way whatsoever. We don’t want to be engaging with someone who is so hostile to my brother”. The judge responded: “You made your position clear before, and I directed that you must respond to her. Did you?”

“No.” the sister replied. “Because as I said before in court, no way can we repair the relationship between us and her”. The Deputy confirmed that “I received nothing from them”.

The issues today

The judge then summarised the situation, and the issues before her today.

There is clearly a dispute between the family, and [P], and the Deputy about difficulties in relation to the Deputyship from 2021 onwards. In order to understand what happened, I would have to have a detailed fact-finding hearing. On its face, that would appear disproportionate and not necessary to resolve the matter, which is about the Deputyship going forward. I clearly understand the family’s position is that Ms H should not continue to be Deputy. That is also [P’s] view. They would all prefer if [P’s sister] was appointed as his Deputy going forward. If I am not minded to appoint [P’s sister], I am asked to appoint an alternative panel Deputy. Ms H’s position is that there are likely to be similar problems with any Deputy, and that continuing to change the Deputy is not in [P’s] best interests, and that she continues to wish to try to work with the family. And as I understand it, she maintains that she should remain as the Deputy, but that in the alternative a panel Deputy should be appointed in preference to a family member.

Should there be a fact-finding hearing?

The judge said she would canvass everyone’s views as to whether or not she should hold a fact-finding hearing – which would be a 3-4 day hearing. There was a short adjournment for family members to step outside the court and see if they could resolve the question between them.

Despite the judge’s best efforts to explain, it wasn’t clear that the family members all understood what would be involved in a fact-finding hearing, as became apparent when the hearing resumed. (The mother spoke in her native language: I’ve quoted the interpreter’s version of her words).

Judge: Ms H?

Ms H: I think a fact-finding hearing would be long, costly and not in [P’s] best interests. Resolving the issue of who is to be Deputy today would be in his best interests.

Brother: I would like a fact-finding hearing, but my sister doesn’t.

Judge: Why?

Brother: There are a lot of things we haven’t addressed in this court. My sister has shown professionalism in managing his money in the past.

Judge: That doesn’t tell me why you need a fact-finding hearing. A fact-finding hearing would be considering the questions that are unresolved at present about how this Deputy has managed his finances in the past.

Brother: That’s what I want.

Sister: It’s not what we want. It would take too long – it could take years. I don’t think we need one.

Judge: Mrs X? [P’s mum]

Mother: (inaudible – as is the interpreter)

Judge: I’m not sure I can explain to you more than I’ve done already what a fact-finding hearing is. If you don’t want to express a view, that’s fine. But if you do, now is your opportunity to tell me.

Mother: [speaks to interpreter]

Interpreter: She is asking me for my opinion, which I’m not allowed to do.

Judge: So you don’t have an opinion at the moment?

Mother: Of course I have an opinion.

Judge: Well what is it?

Mother: Yes.

Judge: You’d like a fact-finding hearing?

[Mother doesn’t answer. Brother and sister are talking to each other in their native language. Sister says to judge: “She doesn’t understand”.]

Judge: I can either finish the proceedings today – in which case I will hear from you about who should be the Deputy and make a decision, OR put it off, for what is likely to be a long period of time, for a lengthier hearing to examine what exactly was done in the past with the Deputyship by Ms H, which will involve a longer hearing and more cost. Then I’ll make some findings about the facts about how the Deputy has acted, or not acted, and why. And after that, we’ll have to look at the question of who should be the Deputy. And if you want to have a fact-finding hearing, you’ll have to explain to me why it’s necessary, proportionate, and in P’s best interests for that to happen. So what would you like to say to me about that?

Mother: After all the trouble the Deputy has given me, I don’t want the same person. P is distressed by the Deputy.

Judge: This isn’t addressing the question I asked you. I’m going to make it very simple. Do you want me to decide today or another day?

Mother: I want it to finish today.

Judge: So it’s only you, [Brother], who wants a fact-find, and you’re not pressing very hard.

Brother: No – no, I retract what I said.

Judge: Okay. There’s an obvious dispute about how the Deputy has acted and why, but there is no doubt that there have been disagreements over the last few years – and I don’t consider that it’s necessary to make findings of fact as to the exact reasons for those difficulties. […] So I am now going to hear briefly from each of you about who you think should be the Deputy going forward, and why. The three options are: Ms H remains; P’s sister be appointed in her stead; or an alternative professional deputy from the panel is appointed instead of either of those two. (Addressing P). When I have heard from all the parties, P, I will give you an opportunity to tell me what you want.

Who should be Deputy?

The judge asked each of the parties in turn who they thought should be Deputy.

Ms H (current Deputy)

Ms H reiterated the view she’d expressed in her Position Statement that “[P] is trying to remove me as Deputy as neither he nor his family fully understand the role and obligations of the Deputy. It appears that [P] expects any requests to be agreed, without providing the information required for me to fulfil my role of Deputy. […]. I feel that [P] needs to learn to work with his Deputy and that continually changing Deputy would not be in his best interests.”. She said she would be “happy to remain as panel Deputy” but that in the event the judge decided she should not do so, then “I don’t think there’s a clear understanding in the family of what the Deputy does, and so I do think an alternative panel Deputy, and not a family member, would be in P’s best interests”.

P’s sister

The sister said: “I’m really involved in his life, even though I don’t live with him any more. I’m in contact with him every day. In the past few years that I’ve not been living with him, I’ve developed a better relationship with him and can work for him. After my mum, I am the person who understands him the best. I know he can get paranoid and angry, but when he comes down, he always regrets it. It will save him money if I do it. I’m willing to do it again. I have a background in accounting as well – I was doing it before and I gave a report to the Public Guardian every year with no complaints.” The judge asked about the sister’s personal circumstances since she’d indicated that she was on long-term sick leave and hadn’t attended the previous hearing due to health concerns. The sister said she was on the waiting list for surgery but didn’t think it would impact on her ability to fulfil her duties as a Deputy and that she would “fulfil my job according to the requirements”. The interaction continued:

Judge: You’ve just told me that you understand you have to follow rules and guidance. Tell me how I can have confidence in that when you’ve failed to comply with directions from this court.

Sister: When there is a deadline, when someone is dependent on me, I would always respect their autonomy and dignity.

Judge: It doesn’t give me confidence that you’ll follow the rules when you don’t follow what I have told you to do in a carefully worded direction.

Sister: It was a family decision. Not just me.

Judge: It was on you as an individual, with the greatest respect.

Sister: As a Deputy it’s all on me. I’m the one responsible.

Judge: And what is your view about a panel deputy if I am not minded to appoint you?

Sister: Ms H doesn’t know anything about his needs. He wasn’t being listened to by Ms H or her team. He was just being ignored. She’s never met him once.

P’s brother

Brother: Following on from my sister, in terms of how she was previously managing the Deputyship, she had more of a relationship with P. He was able to express what his needs were. He gets very distressed at times and has outbursts but his family is able to contain that. It’s very concerning that P doesn’t have a lot of money and I don’t understand why he has a professional deputy when my sister is willing to do it. I don’t know how much the Deputy gets, how much is taken from his money to pay her. Yes, the court needs to know where his money is going, but he should have some elements of choice. Back in 2022 he told the Deputy he wanted to go on holiday and because money was not released to him, we had to pay for it. As a family, we are having to support P financially as well as emotionally. There are emails from Ms H saying she wants to meet with P, and he’s traumatised when I say, “do you want to speak to the Deputy”. I don’t know how to resolve this, mentally or emotionally. He has a learning disability – you can’t expect him to communicate by emails. He needs to be able to build up a relationship. My sister is willing to do this for free and he hasn’t got a lot of money, and it’s not in his best interests to have a professional deputy

There followed a somewhat cross-purpose conversation about sourcing an external deputy, but it was clear that the brother had nobody else to nominate for the post today.

Mother

P has been in distress for so many years. I do not want it continued. I do not want the current Deputy to continue. I’m P’s mum, and what I saw so far, my heart isn’t accepting it. I want the Deputyship to come back to my family. I want my daughter to be doing it as she was previously and for it to remain as it was before.

Protected party

P: After my mum, my sister and I are very close. I want my sister to be my Deputy. I’ve been begging money off my sister and my brother. I need all my money to return back to me, and I don’t want Ms H as my Deputy. Since my money was taken over- We went on holiday to Egypt last year and my brother paid for it. We did ask Ms H for money, but she refused to give it to us.

Judge: I hear that it’s important to have your sister as Deputy because you’re close to her. Alright, thank you.

Having heard everyone’s views, the judge called a short adjournment. She said she was very conscious that the hearing had overrun (it was by now 1.40pm) and that it had gone over the lunch hour. She wanted to review what she had heard from everyone before making a decision, and suggested returning at 2.30pm. There was a problem with the interpreter (he was only paid until 1.15pm) so the break was attenuated to 15 minutes, with the intention of being finished by 2.30pm (although it actually took until 2.42pm).

Judgment

The judge referred early in her judgment to the decision in Kambli v The Public Guardian [2021] EWCOP 53 – which I heard and wrote down as Camberley v the PG, and couldn’t find at the time, but have subsequently located: locating case law mentioned in court (when it’s not written down in position statements) is always challenging.

The Kambli case, I discovered, is often cited as an authority for the position that “when a deputyship encounters difficulties, the response of the Court should not be to change the appointment as default response. Changing deputy inevitably incurs costs which could otherwise be avoided and risks being perceived as ‘rewarding’ negative behaviour, which in turn undermines the prospects of future stability. Rather the Court should probe the actual circumstances, with a view to salvaging working relationships if possible” (§39, Kambli).

In Kambli, salvaging working relationships turned out not to be possible. The case was heard by Senior Judge Hilder. Mr Kambli, the Deputy, was finding it impossible to work with P and his family – saying that there had been an irretrievable breakdown in the relationship between his firm and P’s family. He said that P’s father in particular was “rude, obstructive and undermines my authority as Deputy” and was “intent on breaking down any relationship he has with a Deputy by ‘Deputy shopping’ until he finds a Deputy that will accede to his demands“. The judge decided to appoint some distant relatives proposed by P’s father in place of Mr Kambli, subject to heavy restrictions and supervision, in the hope of breaking the cycle of P being repeatedly subject to the cost of new deputies being brought in.

In this case, DJ Clarke cited Kambli to remind herself that changing a Deputy is not a default option. It has financial implications for P and may also have “wider repercussions”, e.g., she said it “can be perceived as rewarding a lack of engagement or poor behaviour”. But in the end, she came to the conclusion that “the current arrangements are not working. Despite Ms H’s laudable willingness to try to make this Deputyship work, I have concluded it has reached the end of the road”.

DJ Clarke then considered the only two alternative possibilities for the Deputyship before her that day: P’s sister, and a new panel deputy.

Concerning the sister, the judge said: “There are several reasons why this might be considered to be in P’s best interests. His estate, though not minimal, is not extremely substantial, and it is widely accepted that the costs to an individual’s estate of a family member being appointed over those that would be incurred by a professional Deputy would favour the appointment of the family member, if all else was equal. There are other reasons why family members are often considered preferable. Those include: the relationship between the family member and the person who requires a Deputy and the fact that family members are often already familiar with the protected person’s affairs and have personal knowledge of them, and perhaps have a better and more in-depth understanding of their wishes and feelings, and also of how to make the relationship work, and how best to communicate with that individual. There are also difficulties with appointing family members, who may find it hard to make decisions in the person’s best interests if that conflicts with the protected person’s wishes and feelings. In this particular case, [Sister] has previously acted as P’s Deputy for a period for a period of some five and a half years, and to the best of my knowledge there were no concerns raised about her management of his finances during that period. She did not continue after March 2015, citing personal circumstances, and I have only the very briefest understanding of what those circumstances are. She has shown a reluctance, which is understandable, to disclose the private details of her life, but she has indicated that she has an underlying but treatable health condition, that she expects to undergo surgery for that, perhaps next year, and she is currently on long-term sickness absence from work. I have some concerns which – despite my giving her the opportunity to address – I don’t feel have been fully allayed, as to whether her health would impact on her ability to manage the Deputyship, at least until she has recovered from her future surgery. I also have concerns as to whether she fully understands the role of a Deputy and what is required of her. These concerns are particularly pressing in view of the fact that this is not someone who has never acted as a Deputy but acted previously for five and a half years, and should therefore be very clear about the Deputy’s role. I raised with her my concern about some of the comments she made in her Witness Statement [I haven’t seen this] and both those comments and her response to them did not allay my concerns, or persuade me that she understands the role, or is capable of making decisions in P’s best interests, having regard to whether or not he has capacity to make certain decisions himself, and keep a regular and appropriate oversight of his affairs. I note from her correspondence with the Deputy that she was either unwilling or unable to provide the Deputy with details necessary for any Deputy to undertake the role, by giving an understanding of what obligations P has. I have little confidence that she will undertake a rigorous examination of any of those matters if appointed as Deputy today. That is underlined by the fact that she has on several occasions failed to comply with directions of this court. She explained she believed they were family decisions – whereas she was clearly directed as an applicant in her own right, and should have complied with them as she was clearly directed to do. In light of those factors, and other concerns that I have, I am not satisfied that she is a suitable person to be appointed to act as P’s Deputy.”

The judge addressed the sister directly: “As I have little confidence that you will prioritise the obligations of a Deputy over your own, P’s, or other family members’ wishes and feelings, I don’t consider it to be in P’s best interests to appoint you as a Deputy going forward. And I have reached the conclusion that the best solution is to appoint an alternative panel deputy who will be sourced by the court following this hearing”.

A fresh start?

The judge hoped (somewhat optimistically in my view) that the new Deputy would signal a “fresh start” for the family going forward.

“I want to say a few words to the family in particular in relation to this course of action. I understand there have been problems, and I would ask you all to keep an open mind about any new professional Deputy, and to engage with and work with them to promote P’s best interests, because what is clearly NOT in his BI is for there to be further dispute and further costs incurred in having repeatedly to consider the question of whether there should be a different Deputy. In light of history of this matter, is seems to me it would be helpful to ensure there is a structured relationships between P and the family and the future Deputy, so what I propose to do is to include, in an order, a requirement that the new Deputy produce a “Working Together” agreement, which clearly sets out the expectations on both sides – from the Deputy what can be expected by P and the family, and also what the Deputy can expect from the family and P. And that agreement should cover the means of communication and the frequency, timeframes for responses to correspondence, on both sides, who will manage what finances, the points of contact between the family, P and the Deputy, how decisions will be made, and how any disputes between P and the Deputy – or between the family and the Deputy – will be resolved. It will take some time for the Deputy to be able to put that document together. The final document should be lodged with both the court and the Public Guardian. I hope this will assist everyone to understand the role of the Deputy and to manage expectations in a way that gives the new relationship a better prospect of working than the existing one. I urge you all to consider this a fresh start.”

The judge also addressed P directly:

“I understand, P, that this is not what you wanted – that you would have preferred your sister to be your Deputy. Sometimes I have to make very difficult decisions. I’ve taken into account what you want – but for reasons I’ve explained, I don’t think your sister acting a Deputy is in your best interests. I’ve taken into account that your family is very important to you. But the person managing your money in your best interests may not always make the decisions you would like them to make. That money may sound like a substantial amount but it has to last you for the rest of your life. Your needs may be greater in future. Your money has to be carefully managed so that you have what you need and what it’s in your best interests to have. The Deputy I appoint will be greatly assisted in making decisions that are in your best interests if you communicate with that Deputy and provide them with information they request. And while I understand it’s onerous, the Deputy has duties to the Public Guardian who has oversight of their activities, and that means they have to account for every penny of your money. They will need invoices, accounts, receipts, so I would be grateful if your family will support you to provide them with information they need so they can do their job properly. I appreciate it’s intrusive but I’m afraid it’s necessary.”

P replied: “I’m very disappointed. I wanted my sister. For the last 12, 15 years we’ve been so close”. “I understand that,” said the judge. “But I’m not going to appoint your sister. I’m going to appoint a professional”.

And with that the hearing ended.

Reflections

I’ve now observed eight hearings before DJ Lisa Clarke – some on line, some in person – and in every one of them I’ve found her to be conscientious, thorough, and personable.

She’s alert to the challenges of open justice: she’s been helpful in making sure that I have the relevant background information, providing me with summaries and ensuring I have Position Statements where possible. She’s made explicit to counsel when it’s been necessary (which, unfortunately, it has) that she has no editorial control over my reporting. She’s treated everyone in court (lawyers, interpreters, family members and P) with respect and consideration.

I am always uncomfortably aware that transparency can be a time-consuming matter for the courts. Judges routinely check that I have the Transparency Order and ensure that I’m provided with an opening summary, and I always ask for position statements. (And sometimes we have concerns with the Transparency Orders and ask for variations – including once, laying arguments for transparency out in a Position Statement in a case before DJ Clarke observed by Daniel Clark.). None of this is cost-free for the court. Position statements can be a time-consuming matter since lately the Official Solicitor has taken the blanket position that they will not disclose position statements unless ordered to do so by a judge – so there is a ritual performance of my request, followed by their refusal, followed by a judicial order which (depending on the actors) can take anything up to 20 minutes of court time. This has played itself out in a couple of the recent hearings before DJ Clarke – with the added complication that (contrary to the guidance in Re AB (Disclosure of position statements), parties had not prepared anonymised versions (she described that as “disappointing” in COP 14226400) and/or were unable to detach position statements from the court bundle. The judge has sometimes anticipated problems with provision of position statements: on one occasion, after the ritual interaction with the Official Solicitor, she produced a copy she’d personally asked staff to prepare earlier for me.

I’ve never seen her show signs of impatience or take short-cuts. Hearings I’ve observed have often run over their allotted time slot (frequently through the lunch break) but she never seems to be trying to hurry people or to make rushed decisions. “You must be very hungry by now!”, said one finance professional as we trailed into the courtroom at 1.15pm (for a case listed to be heard at noon), moments after the participants from an earlier hearing had left: “that need not concern the court” the judge said – nicely, with a small laugh ((COP 1307949T). This is a judge who does work extremely hard – I’ve not seen her concentration or ability to function impaired by her dedication or lack of breaks, but I do worry for her well-being. She’s clearly concerned for the well-being of others: she closed another hearing by saying “Apologies that I’ve eaten into your lunch hour as well as mine. Thank you all for continuing to work together”; and she remembered that in the course of a discussion about dates and deadlines, one the lawyers had said he’d be on holiday, adding “I trust you’ll have a lovely break!” (COP 20006344).

In my experience, DJ Clarke is always well-prepared. At every hearing I’ve seen, it’s obvious she’s read the bundle and is on top of the paperwork (she sometimes delays the start of hearings to read Position Statements that are submitted late, e.g. COP 20006344). I’ve been impressed by her grasp of details and by her ability to ask pertinent questions that cut through some of the morass of information to issues at the heart of the case.

Whenever I’ve seen her, DJ Clarke has been calm and focussed in her manner. She is courteous but firm with everyone. She drew attention at the end of one hearing to the fact that counsel had submitted their position statement very late “which is in part why we are still in court half an hour after this hearing is supposed to have ended”. She responded to counsel’s apology by saying: “I’m grateful for the apology but I’m more concerned to make sure position statements are filed in a timely manner in future” (said very nicely with a smile) – so that I heard her not as “complaining” about counsel’s past actions (which is how counsel had treated it, by apologising) but rather as trying to ensure an effective hearing at the listed time on the next occasion the case was before her, i.e. a positive and future-focussed approach.

I’ve also heard this judge be firm and clear with family members, but never in a way I heard as inappropriate or unfair. In a case heard in the morning before the Deputy case in the afternoon, P’s daughter told the judge that other family members have stolen money from her: the judge replied, “I’m very sorry that’s something you’re experiencing, but it’s not something I can do anything about”. The daughter also said she’s being evicted and will “probably be homeless” by the date the judge suggests for the next hearing: the judge responded, “While I have every sympathy with that in relation to you, your homelessness doesn’t necessarily mean this court should adjourn” (COP 14226400).

The care DJ Clarke takes with her cases, and her commitment to making life better for the protected party, is apparent across reports of her hearings from other observers (“Navigating engagement in capacity assessment”; “DJ Clarke calls time on public body delay”; “A young man failed by NHS South West London ICB and the London Borough of Wandsworth”). What’s also clear from these earlier blog posts is that DJ Clarke can also be very sharp with public bodies who seem not to be acting in P’s best interests – and in one disturbing report, also with family members (“Perhaps the most contentious matter is the question of his social media and internet access.” But who is the decision-maker?). Observers in this last case said they were shocked by the way DJ Clarke behaved towards the family – both through their counsel and to P’s mother in person. For Daniel Clark, one of the observers, DJ Clarke is “an impressive judge who was clearly frustrated with the lack of progress” in this case – but her behaviour typified a display of “asymmetric power dynamics”, quite unlike what he’d seen in two previous hearings of the same case. Nothing remotely similar occurred in any of the hearings I’ve watched.

I’ve observed a lot of different judges in a lot of different hearings. If I were P, or a member of P’s family, DJ Clarke is a judge I’d be very happy to have hearing my case.

1. Summary of the case so far (Celia and Amanda)

2. The Court of Appeal hearing on 9th September 2025 (Celia)

3. Bearing witness in person to the Court of Appeal hearing (Amanda)

4. Hearing on 19th September 2025 before DJ Temple in Newcastle (Celia)

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1. The two hearings

Hearing 1 (1st September 2025): (Renewed) directions for a capacity assessment

Hearing 2 (26th September 2025): Directions for P’s participation, financial information, evidence and witness cross-examination

2. Reflections on the conduct of the hearings

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Cheshire West was right on the objective limb

Cheshire West was also right on an equalities approach

Valid consent isn’t the same as an ‘objections’ test

Valid consent would require substantive and procedural safeguards

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1. Article 5 of the European Convention

2. The creation of the DoLS system

3. Cheshire West

4. The aftermath – the Court of Protection tries to impose order

5. Did the Supreme Court get it wrong? Mostyn J and the case of Katherine

6. Resource implications

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1. Advance decision to refuse treatment (ADRT)

2. Contact – a statement of wishes and preferences

Implications for everyone planning ahead for future lack of capacity

The case continues after AB’s death

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Summary of the hearing – By Sandra Preston

Reflections I – By Sandra Preston

Reflections II – By Amanda Hill

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Background

The hearing

The ex-partner’s (non) involvement in the case – notification and serving

Why authorising the statutory will is in Mr R’s best interests

Reflections

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May hearing

August hearing

Family failure to follow directions to date

The issues today

Should there be a fact-finding hearing?

Who should be Deputy?

Ms H (current Deputy)

P’s sister

P’s brother

Mother

Protected party

Judgment

A fresh start?

Reflections

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2. The Court of Appeal hearing on 9^th September 2025 (Celia)

4. Hearing on 19^th September 2025 before DJ Temple in Newcastle (Celia)

Hearing 1 (1^st September 2025): (Renewed) directions for a capacity assessment

Hearing 2 (26^th September 2025): Directions for P’s participation, financial information, evidence and witness cross-examination

**1. Advance decision to refuse treatment (ADRT)**