Open justice at the Court of Protection?

Court to consider issuing new guidance after criticism of closed hearings

A senior judge responded yesterday to supporters of open justice after concerns were expressed about a little-known system of closed proceedings in the courts. Mr Justice Hayden told me that the Court of Protection would be considering whether judges needed new guidance to avoid “inaccurate reporting” of hearings and the creation of a “false narrative”.

The announcement by the court’s vice-president follows the disclosure of a secret hearing at the court, which decides whether adults in England and Wales lack capacity to take decisions on financial or welfare matters and then acts in what it finds to be their best interests. The hearing involved a woman in her early 20s who had been denied the hormone treatment she needed until the court ordered it to be given without her mother’s knowledge.

When the Court of Protection was established in its present form by the Mental Capacity Act 2005, it normally sat in private. New guidance on publishing judgments was issued in 2014. Journalists and members of the public have been allowed to attend hearings since 2016 — although there are usually restrictions on identifying the person who may lack capacity, sometimes referred to as the “protected party” or P.

Since 2020, open justice has been promoted by a well-regarded voluntary project that encourages observers to attend hearings and report what they see. Professor Celia Kitzinger, a psychologist and co-founder of the Open Justice Court of Protection Project, has personally observed more than 360 hearings during the past two-and-a-half years. But until last month she had no idea that the court sometimes held hearings from which one or more of the parties had been excluded.

Indeed the excluded party — who could be a relative of the protected person — might not even know that the hearing was taking place. Nor would the press or public. There are no “special advocates” to represent the relative’s interests, as there might be in other closed hearings. Lawyers who had represented the relative at previous hearings would also be kept in the dark.

All this emerged from a judgment published by Mr Justice Poole on 11 October in a case called Re A (Covert Medication: Closed Proceedings). It’s a remarkable story.

The story of A

A young woman referred to by the letter A is the subject of the proceedings. She is “a 23-year-old woman, soon to be 24”, with mild learning disabilities and Asperger’s Syndrome. She lacks capacity to make decisions about her residence, her care or her contact with others. Nor can she take decisions about the treatment she needs for her epilepsy, vitamin D deficiency or primary ovarian failure.

Her ovarian failure meant that, at the age of 20, she had still not gone through puberty. Quite apart from the psychological impact, this causes premature osteoporosis — leading to serious bone fractures. Fortunately, the condition can be treated with hormones. A patient with ovarian failure would normally receive this medication as a teenager. It’s “straightforward, guaranteed to succeed, and would transform A from a child to a woman”, a doctor told the court. Without treatment, though, she would have an “extremely bleak” prognosis with significant risks to her physical and mental health.

Until 2019, A lived at home with her mother, referred to in the judgment as B. The mother had not sought medical help or advice for her daughter’s ovarian failure. Legal proceedings were launched by the local council, whose social services department had been alerted by hospital staff. The local NHS trust was also made a party to the case.

A circuit judge, Judge Moir, found in 2019 that A and B had an “enmeshed” relationship. The daughter had been home-schooled and isolated from the wider community. Moir concluded that the mother would prefer her daughter not to “grow up”.

Five years ago, the young woman was removed from her mother’s home against the wishes of both of them. She was moved to a residential placement in the north of England where her mother was allowed only limited contact with her by phone.

The NHS trust responsible for A’s care wanted her to begin hormone treatment. She had previously refused to take the tablets she had been offered. Moir concluded that this was the result of her mother’s influence.

A hearing took place on 26 May 2020, which Kitzinger observed remotely. Given what was said in court, it looked to Kitzinger as if hormone treatment would shortly begin. That was the last anyone heard of the case for nearly two years.

There was another hearing in late April 2022. By that stage, B was applying for her daughter to be sent home. It can be very difficult to work out what is going on at a court hearing unless you can speak to the lawyers or look at the court papers. But it appeared to Claire Martin, a consultant clinical psychologist who observed that hearing for the open justice project, that A had not been receiving treatment after all.

She wrote:

I am quite baffled as to why it was two years later and P is still not receiving the treatment she needs for her primary ovarian failure. 

In a blog published at the beginning of May, Kitzinger added:

It is entirely unclear to us why she has been left untreated, since this was a key justification for depriving her of her liberty in the care home (against her will, and that of her mother) and for restricting and then stopping contact between mother and daughter.

The closed hearing

We now know that the inferences drawn by Martin and Kitzinger were wrong. There had been a further hearing in September 2020 at which the NHS trust asked the court to authorise covert treatment. Moir agreed that this would be in A’s best interests. If A refused to take a tablet, it would be given to her without her knowledge. We are not told how this might be done but presumably the medication could be added to her food or drink. Covert medication began at the end of that year. It has been entirely successful.

A’s mother had been legally represented at previous hearings. But she and her lawyers were not told about the application for covert medication. It follows that they were unable to oppose what the NHS trust was proposing. But it is important to understand that A’s interests were taken into account. She was represented in court by a lawyer instructed by the Official Solicitor, who acts as a “litigation friend” for people without mental capacity. And, in the eyes of the law, A is an adult. Her mother is no longer responsible for her.

The open hearing

The application by A’s mother for her daughter to be allowed home was allocated to Poole, a High Court judge. A hearing was arranged for September of this year.

A few days earlier, Poole had held a closed hearing to review the covert medication plan. The hearing was not publicly listed and so no observers or journalists were present.

After considering the evidence, Poole decided that the continued use of closed proceedings could no longer be justified. He said:

Accordingly, B and her legal advisers should now be informed that A has been, and continues to be, covertly administered hormone treatment for her primary ovarian failure. B should be informed that the treatment has been successful and that A has now gone through puberty with the associated physical changes, that A appears not to have recognised those changes, or the significance of those changes, and that her socialisation and behaviour have improved.

Given the limited time before the open hearing begins, and the need to impart the previously withheld information in an orderly manner, the information will be given to B and her legal representatives by me at the opening of the hearing on 20 September 2022.

This may come as a shock

Poole explained the background to the case when the hearing opened in 20 September. As reported by Daniel Cloake, another observer, he then addressed the mother directly.

“I have to tell you something which may well come as a shock,” the judge told B.

He then disclosed that A had been secretly medicated. He also ordered B to keep this information from her daughter.

The hearing was then adjourned for two hours so that B could talk to her counsel, Mike O’Brien KC (a former MP who was solicitor general 2005-2007). Having been kept in the dark until then, O’Brien had been preparing to argue that the placement had failed and should be brought to an end because A had not received any medication.

The court was then told that B was pleased to hear that her daughter had gone through puberty. She withdrew her application for a change of residence but requested more contact with her daughter.

Poole ensured that Kitzinger and Martin could observe what followed at the hearing, although reporting was restricted until his judgment was published.

In it, Poole ruled that:

• The daughter should continue to receive hormone treatment covertly.

• The local authority and the NHS trust should draw up a plan under which A could be told what had been going on.

• B’s lawyers and the Official Solicitor’s lawyers should have time to consider the plan.

• There would be a hearing in the main Royal Courts of Justice building on 15 November at which the judge would review the plan.

• The daughter would remain at her placement for the time being with some supervised telephone contact, progressing to face-to-face contact if that went well.

Reaction

Kitzinger was understandably dismayed:

We will now investigate how it came about that an observer was admitted to a public hearing in which a salient (“magnetic”) fact of the case was meticulously concealed (by order of the court), leading — surely inevitably — to inaccurate reporting.

We believe (as Celia Kitzinger said to Poole J in court) that the conduct of proceedings in this case has undermined the work of open justice and transparency in the Court of Protection.

“It’s disturbing,” she told me afterwards, “for me to have contributed, via the Open Justice Court of Protection Project, to the growing reputation of the Court of Protection as a beacon of transparency — without knowing for the last two years that these closed hearings were a feature of its practice.”

Comment

I am not suggesting for a moment that the two judges decided the case wrongly. Hormone treatment was clearly in this young woman’s best interests. Doctors feared that she might refuse to eat if she suspected that she was being medicated against her wishes.

However, the case raises a number of procedural questions. I asked if a judge would be available for interview.

Judicial response

The answer was no. But last week the senior judge of the Court of Protection sent me the following statement:

The applicable framework when determining whether the Court of Protection should sit in public, as it invariably does, or in private, as it occasionally must, is derived from a number of sources. The Mental Capacity Act 2005 requires the Court to consider both an individual’s “capacity” in relation to the issues in focus within the hearing and his or her “best interests”. The protected party, P, may have a pressing need for privacy which may only be met by sitting in private. The scope and ambit of the hearing will always be guided by P’s best interests.

That said, whilst this will invariably weigh heavily, it is not determinative. Practice Guidance was issued concerning transparency in May 2014 by the then President of the Court of Protection, Sir James Munby; Guidance for Remote Access to the Court of Protection was issued on the 31st March 2020 by the Vice President of the Court of Protection, Mr Justice Hayden.

In addition to the above, any decision to sit in private will always engage the Human Rights Act 1998 and the European Convention on Human Rights. The principles, well established and set out in Re S (FC) [2004] UKHL 47, provide “a simple and direct” (Lord Steyn) route for evaluating the competing rights and interests in focus and in which none has precedence.

Treatment without consent has been recognised as likely to be a restriction falling within the scope of the objective factors creating a deprivation of liberty (DOL) within the reach of Article 5 of the European Convention on Human Rights. Medication without consent and covert medication are aspects of continuous supervision and control, relevant to the existence of a DOL order.

Thus, section 1(6) of the Mental Capacity Act requires consideration of the principle of the least restrictive order and how that should be achieved:

“1(6) Before the act is done, or the decision made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.”

It follows that the interference with P’s rights must be proportionate to the circumstances of the case and accord with the principle of minimum intervention, as prescribed by the “best interests” requirements mandated by Section 4 of the Mental Capacity Act.

Any authorisation by the Court of Protection of covert medication is likely to be both rare and exceptional. It has been considered on two occasions: Re AG [2016] EWCOP 37; SS v London Borough of Richmond Upon Thames & Anor [2021] EWCOP 31. The guidance Giving Medicines Covertly given by the National Institute for Health and Care Excellence (NICE) is likely to be central to the Court’s assessment.

The Honourable Mr Justice Hayden

Vice President of the Court of Protection

17th October 2022

Response

Hayden’s statement was very welcome but did not answer the questions I had planned to ask. I have listed them here together with the answers I received from the court last Thursday:

• How often does the Court of Protection hold closed hearings?

Though the Court of Protection will commonly grant a reporting restriction preserving the anonymity of the protected party, it is very rare for the court to hold closed hearings.

• What rules and practice directions apply?

Due to the nature of these very rare situations and the need to make decisions based on the specific circumstances, there are no explicit rules or practice directions.

• How are the interests of the excluded party represented?

It is intrinsic to the very rare circumstances that lead to a closed hearing in the Court of Protection that the excluded party cannot be represented. They will have been represented in previous hearings and provided evidence that has made clear that a closed hearing is in the best interests of P [the protected party].

• Withholding information from the public may be necessary but can it ever be appropriate for a court to allow the public to be misled?

In these extraordinarily rare cases where a closed hearing is deemed necessary it may be that the full details are not available until the judgment. This, as with all decisions, is made in the best interests of P [the protected party].

A spokesperson added that a senior judge who had sat in the Court of Protection for nearly a decade could recall only two or three occasions during the period when a closed hearing was required. Some judges had never held a closed hearing.

Discussion

Should there be practice directions covering closed hearings? Or are they so rare that guidelines would be of little use?

And would it be better for observers to be excluded completely from hearings at which they might otherwise be given only a partial account of what is happening?

On Friday, I discussed these questions with Kitzinger and with Michael Mylonas KC, head of the Court of Protection team at Serjeants’ Inn Chambers. You can hear what they had to say on today’s edition of Law in Action, to be broadcast on BBC Radio 4 at 4pm and then available as a podcast on BBC Sounds.

After recording these interviews, I put some of the points that emerged to Hayden as the vice-president of the Court of Protection. He responded by sending me a new statement yesterday afternoon:

1. The judgment of Mr Justice Poole in Re A and the related judgment of HHJ Moir have generated considerable public interest. It is neither appropriate nor necessary for me to comment on either of those judgments.

2. Concern has arisen here, not in relation to the welfare outcome for the protected party (P) in the case which was conspicuously positive, but in respect of the procedure Judge Moir followed. It was necessary, to give effect to P’s “best interests” (as required by the Mental Capacity Act 2005), for the regime of “covert medication” that the Judge authorised to be kept entirely private. The reasoning underpinning the decision is set out in both judgments. The decision was arrived at in closed session and although the Judge returned into open court this fact was not, nor could it have been, disclosed. The process adopted therefore, no doubt aiming for some degree of transparency, in fact created a false narrative. It led, inevitably, to confusion and, equally inevitably, to inaccurate reporting. This is inherently undesirable and irreconcilable with the Court of Protection’s well recognised commitment to transparency.

3. Though the facts of this case were highly unusual, I consider that there is potential for them to arise again, most likely in different circumstances in what is a highly fact-sensitive jurisdiction. For this reason, I propose to convene a sub-committee of the Court of Protection Rules Committee to consider whether this issue requires procedural or Practice Guidance and, if so, what the scope and ambit of that should be. They will report to me as Vice President and any guidance will be issued by or with the approval of the President of the Court of Protection [Sir Andrew McFarlane].

4. By way of postscript, whilst the vast majority of the commentary that I have been shown in relation to this issue is both erudite and measured, I have noticed that P’s circumstances, as an adult woman of 23 years, have sometimes been directly equated with those of a child in Family Proceedings. That mistake, which was once a commonplace, fails properly to respect P’s autonomy and now requires to be consigned to the past.

Conclusion

This is an excellent outcome. Hayden has clearly engaged with the concerns expressed by Kitzinger and other commentators. Members of the rules committee will now decide whether new guidance is needed.

We can all understand why closed hearings may be appropriate from time to time. Until now, though, nobody outside the system was aware that they existed or knew what principles they followed. In my view, “light-touch” guidance would draw public attention to the existence of closed proceedings and provide reassurance about the way they are handled by the courts.