Court of Protection Case Law Update - July 2024

As we head into the summer, it is good to take a look back over the last few months and a couple of cases from the Court of Protection and the Family Division which may be of interest to those reading.

We will start with the judgment of Theis J in Re ZZ (Capacity) [2024] EWCOP 21, followed by the judgment of Cusworth J in Y NHS Foundation Trust v AN & Anor [2024] EWHC 805 (Fam) before finishing with the judgment of (the editor of this newsletter may be happy to hear) Peter Jackson LJ in Re A (Covert Medication: Residence) [2024] EWCA Civ 572.

Re ZZ (Capacity) [2024] EWCOP 21 (Theis J)

An unusual case of a successful appeal in relation to Capacity. At first instance HHJ Burrows had found that ZZ had capacity to make decisions about residence, sexual relations and marriage. A finding that was appealed by the local authority. Z, through his litigation friend the Official Solicitor, opposed the appeal.

Theis J described ZZ in the following terms:

ZZ is a 20 year old man with a diagnosis of mild learning disability ('LD'), attention deficit hyperactivity disorder ('ADHD') and possible obsessive compulsive disorder ('OCD'). He suffered sexual abuse as a child and has himself been convicted of sexual assault on a 5 year old family member, resulting in an Intensive Referral Order for 12 months and a Sexual Harm Prevention Order ('SHPO'), which expires in October 2024. It is a condition of the SHPO that ZZ does not live or sleep in any premises where there is also a child under the age of 18 years unless approved by the local authority and does not have unsupervised contact with a child.

In 2019 ZZ had become a looked after child and had been placed in a residential and educational setting able to work with children displaying sexually harmful behaviours. Whilst in the placement ZZ continued to display challenging sexualised behaviours.

In July 2021 ZZ was assessed by a Consultant Clinical Neuropsychiatrist to ‘pose a very high risk of committing harmful sexual acts towards others’ because of his ‘intrusive [sexual] thoughts’ which were deemed obsessional.

Between January and April 2023 ZZ had threatened to reoffend, attempted to evade supervision and abscond from his placement by counting staff's steps on the stairs and taking steps to bypass the door alarm on the entrance to his flat. He did reoffend in April 2023 by unscrewing his window in order to exhibit masturbation to a member of the public from his bedroom, which was at the time of the hearing the subject of ongoing criminal proceedings.

ZZ had repeatedly made clear that he wanted to live with his girlfriend, TD, and her mother.

Theis J summarised the judgment of HHJ Burrows as follows:

In his judgment the Judge set out the relevant history and background, including the various assessments that have been undertaken. He noted the conclusions reached by Dr M, a Consultant Clinical Neuropsychiatrist, in July 2021 who observed that ZZ appeared friendly, manipulative and 'extremely preoccupied with sex' and, Dr M considered, posed a very high risk of committing harmful sexual acts towards others.
In relation to the decisions under scrutiny the Judge dealt with residence at [35] – [37] where, having referred to the matters listed in LBX, he then posed the question whether ZZ understood that care is an important aspect of the place where he would have to live. He accepted the submissions on behalf of the Official Solicitor that care is not part of the relevant information in ZZ's case, as what the local authority submit brings into the mix another placement that ZZ has to consider, namely one without the proper level of support, and that simply is not an option at the present time, so the Judge concluded 'If one removes the 'care' point from the LBX list as it applies to this case, there is no doubt ZZ has the capacity to decide on residence' [36]. The Judge continues that he has reached that conclusion as ZZ 'does not actually have a decision to make over whether he lives in a care setting' [37] although he recognises the situation could change and if it did, ZZ's capacity would need to be re-assessed.
In relation to capacity to engage in sexual relations he referred to the test in JB and the fact specific nature of any decision. He referred to Dr Rippon's evidence on the relevant matters and noted that Dr Rippon's evidence on the issue of consent has vacillated, her focus is on ZZ's insight into his ability to control his behaviour and stop himself from engaging in behaviour he knows is wrong and situations where ZZ may find himself in where he may find it difficult to stop himself because of his sexual urges. The Judge stated at [46] "Clearly, urges are, by their very nature, difficult to control, and it would be setting the bar too high if capacity to consent to sexual relations were to be ruled out because a person was unable to control an urge (for instance) to carry on with the sexual act. Having said that, ZZ is a sexual offender who is unable to control his urges to engage in very harmful and criminal sexual behaviour, as I have already found."

1. He then set out his conclusion at [47] as follows:

'All that being said, I agree with the Official Solicitor's submissions on this. I do not accept that a sixth factor or limb ought to be introduced into the JB test, namely, to have insight into and the ability to control one's urges. I also agree the conclusion I have reached, namely that [ZZ] has capacity in this area, fits in with Cobb J's statement in Re Z [2016] EWCOP 4, namely that ordinary risk taking, which may be unwise does not render the decision incapacitous. I would go further. A person can have the capacity to engage in sexual relations, understanding that his partner may withdraw her consent at any moment, and that with that he must stop the sexual act. If, however, when that withdrawal of consent happens the person is unable to overcome his urges, that is nothing to do with capacity to consent to sexual relations.'

Turning, finally, to the issue of marriage he concluded in [50] that in the light of his conclusion regarding sexual relations ZZ has capacity to enter into a marriage

Theis J reminded herself that HHJ Burrows had the benefit of hearing the evidence, particularly the evidence of Dr Rippon, albeit Theis J was critical Dr Rippon’s evidence stating that it was at times confused and confusing, noting that this made the task facing HHJ Burrows (whom she notes is an experienced Judge) much more difficult. Theis J also reminded herself that the test before her was not whether she would have reached the same conclusion, or a different one. The question was whether HHJ Burrows was able to reach the conclusions he did on the evidence he had, within the relevant legal framework.

In relation to residence, Theis J made the following determinations:

The decision reached by the Judge regarding residence was founded on his conclusion that the care ZZ received was not a relevant matter for him to consider and weigh up when making current decisions about where he should live. The Judge stated at [36] – [37] '…he has capacity to make a decision about residence where care is not an issue, because the only option is a placement with care provided. This is a difficult and common point. I have concluded that ZZ has the capacity to make the decision he has to make over residence, and that is because he does not actually have a decision to make over whether he lives in a care setting.' He then went on to outline that in the event that ZZ were to want to move to a place without an adequate level of care, support and supervision the matter would have to be revisited.
In reaching that conclusion he did not expressly grapple with the issue as to whether ZZ's wish to live with TD and her mother was a pipedream or not. The evidence refers to this being a consistent feature of ZZ's wishes and feelings that he has communicated to his solicitor, Dr Rippon and the social worker. The information about what support he would need, with whom he could live and how he would have contact with family and friends are all relevant to the question of whether ZZ understands and can weigh up whether he would be able to live with TD. These were issues explored with him by Dr Rippon. In connection with that he was clear to Dr Rippon that he did not need support from staff. When asked about this in oral evidence Dr Rippon stated that 'It was mainly in relation to care, the care aspect of any residence that I thought that he lacked capacity in…if there was an alternative placement available for him, I think he could compare and contrast two placements with the same level of care.' She considered in her discussions with ZZ what he said about living with TD was more than a pipedream as '…during the course of both interviews that was what he wanted, that's where he wanted to live, that was his…the place that, you know, that they'd identified as where he did want to live.'
In her submissions, Ms Roper acknowledged that the care element was a part of the relevant information regarding residence, as she accepted there should be specific reference to that in the declaration regarding residence, even though in his judgment the Judge had concluded in [35] it was not relevant.
In my judgment the Judge was wrong in reaching his conclusion that ZZ had capacity in relation to residence in a number of respects:

(1) He did not properly analyse the evidence regarding whether ZZ's wish to live with TD and her mother was a pipedream or not, as had been asserted by the Official Solicitor on ZZ's behalf. In her oral evidence Dr Rippon considered it was more than that and gave her reasons for saying that. In addition, this was the view ZZ had expressed over a period of time to a number of people.

(2) On the particular facts of this case, the Judge fell into error by not properly considering that the requisite care needed was relevant information to the issue of residence. In my judgment arguably it was. Ms Roper accepted that the declaration made by the Judge would have been more accurate if it stated that the declaration about residence was in the context of the care being provided. To do that would have required the Judge to analyse ZZ's ability to understand relevant information about the need for the care and support and use or weigh it in reaching a decision. That would include considering, in the context of residence, the evidence that ZZ did not consider he required the care and support that was being provided.

(3) The risk in the Judge's approach to this issue is that it has been considered in a silo, with implications for the local authority in being able to coherently manage a care plan for ZZ in the light of the declarations made which, although referred to at [48], was not properly addressed by the Judge.

Turning to sexual relations, Theis J acknowledged that she had found this a particularly difficult issue, as had HHJ Burrows, but she had ‘not without hesitation’ reached the conclusion that the decision at first instance on this aspect was wrong:

(1) The Judge did not properly deal with various aspects of Dr Rippon's evidence in particular (a) whether ZZ was able to use or weigh information about consent in the context of ZZ's sexual impulsivity and the complexity of the causes of that, including his mental impairment; (b) that ZZ's disinhibited sexual behaviour was due to a combination of his mental impairment, which included his cognitive functioning and executive functioning and gave disproportionate weight to the significance of ZZ's ordinary sexual urges/desire.

(2) The Judge wrongly equated ZZ's sexual disinhibition with the usual risk-taking of a person of commensurate maturity (as Cobb J did in Re Z). The Judge failed to properly weigh in the balance the evidence that ZZ has a record of sex offending and has been assessed as manipulative and presenting a very high risk. His sexually disinhibited behaviour falls into a different category than that envisaged by Cobb J in Re Z, with the result that the ability to use or weigh the question of consent needs to be considered in that context.

(3) The Judge erred in not following the approach set out in JB by asking himself first is the person unable to decide the matter for himself by reference to the matter and the relevant information, second is there a clear nexus between his inability to make a decision in relation to the matter and an impairment of, or disturbance in the mind or brain. If he had taken that structure it would have directed him to the relevant parts of Dr Rippon's evidence.

In relation to marriage, Theis J found that on the facts of ZZ’s case, this ground of appeal was also made out although she declined to enter into the fray in regards to whether or not it is a pre-condition of capacity to marry, that the individuals concerned have capacity to enter into sexual relations. A matter which has previously divided judicial opinion.

Y NHS Foundation Trust v AN & Anor [2024]EWHC 805 (Fam)

This case concerned a 16 year old girl, AN, who had on 5 February 2024, been diagnosed with acute leukaemia. After one day in hospital AN discharged herself with the support of her parents, but against medical advice. The treating clinician at the time was satisfied that AN had capacity in relation to her diagnosis.

On 7 February 2024, a Consultant Haematologist visited AN at her home and spoke with her in the presence of her mother. AN explained that she needed time to come to terms with her diagnosis and asked for several days to do that. The consultant explained to her the urgency in starting treatment promptly and why, given the potential for life-threatening complications, this would usually be done as an inpatient. AN was explicitly told that without treatment she would die of her leukaemia. The consultant recorded that she felt AN had capacity in relation her diagnosis and treatment and agreed to give her limited time at home with the intention of admitting AN on the 9 February 2024.

On 9 February 2024 AN returned to the hospital for blood tests and a review. Those tests confirmed a diagnosis of Precursor B cell ALL which was described as an aggressive, rapidly progressive form of blood cancer that, if untreated would be expected to result in life threatening complications within a matter of days or weeks. However, with appropriate treatment there was a very high chance of remission and a good chance of long-term cure.

Cusworth J recounts the rest of the background as follows:

The hospital's intention was that AN should be immediately admitted for the starting of therapy on an urgent basis. This would include intravenous fluid hydration for the first 48 hours (protecting the kidneys from tumour cell breakdown), and dexamethasone (steroid) tablets to destroy the cancer cells. The doctor explained that, when leukaemia cells are broken down by steroids, breakdown products released into the bloodstream can interfere with kidney function, which therefore requires inpatient admission to enable appropriate blood test monitoring, IV fluids and observations to be performed.
After many hours of conversation with the professionals on 9 February, AN remained of the view that she did not want to be admitted for treatment. Dr X, in company with psychologist Dr Z, performed a capacity assessment for AN, and concluded that she did not have clinical/physiological impairment of brain functioning, nor any history of mental health disorder. However, she found that AN was not accepting of her diagnosis, or of the inevitability that she would become unwell in the absence of urgent treatment. This led her in her statement to conclude that AN 'does not display sufficient capacity today to make decisions about her treatment/safety'.
Dr X then set out the 3 options which she understood to exist for AN, the first being immediate admission for treatment, and the third being AN going home with no specific agreement about re-admission. However, whilst under this last outcome the doctor foresaw the likely progression of the disease to fatality in days or weeks, it was the second option which I understood from AN's mother's submissions to me to be one which she could accept. That involved a further delay of admission for several days whilst providing steroids and supportive care medicine for AN to take at home, with a view to daily blood tests being performed and AN being re-admitted to hospital on Monday 12 February.
That then was the position when the matter was brought to the court by the applicant Trust yesterday evening. Given that AN's parents, who with her were objecting to admission, had expressed a desire to see the judge, I determined to conduct the hearing remotely to the hospital, despite the late hour. I received a position statement and oral submissions from Ms David of counsel for the applicant, and submissions from AN's mother, BN, in person. AN was present in the room with her mother and could hear and see the evidence and submissions. By the time that the hearing commenced, her father had left to look after her siblings. I was also grateful for the assistance of Mr Brownhill of counsel who appeared for the Official Solicitor, appointed as Advocate to the Court. That unusual situation arose as follows.
The application before me has been brought under the inherent jurisdiction. As AN is 16, she remains a minor and so would in those circumstances usually be represented through Cafcass as her guardian. I have been referred to the January 2023 guidance provided jointly by Cafcass and the Official Solicitor dealing with out of hours medical cases involving children. However, given that the issue of capacity has been raised, and in light of AN's age, this may yet become a case that should appropriately proceed in the Court of Protection, in which case the court could appoint the Official Solicitor as AN's litigation friend. In circumstances where no officer of Cafcass was available at short notice, and pursuant to the Attorney-General's Memorandum of 19 December 2001, paragraph 3, the Official Solicitor was satisfied that this was a case where 'there is a danger of an important and difficult point of law being decided without the court hearing relevant argument', as reconfirmed and explained in the President's Guidance dated 26 March 2015.

Cusworth J ultimately came to the following conclusion:

In this case, the factual background is clear and not in dispute. I accept the evidence of Dr X of the risks to AN if she goes home over the weekend and begins her treatment, but without the intravenous fluids that would protect her kidneys and the regular and reliable testing that would come with her admission. There is a clear and very serious further risk to AN's already compromised health if she is not admitted for treatment tonight. And she is currently in a bed in the hospital and allowing treatments to be administered to her.
Furthermore, the fact of an existing underlying infection suggests that the prospects of unmanageable damage occurring before the matter can come back before a court remain significant. Given that to be effective, once necessary tests have been administered to AN, after allowing final decisions about her representation to be taken, and then to get her further instructions, a court hearing next week cannot be before Wednesday 14 February, the period of concern for the court is some 5 nights. Unless AN has a change of heart, or there is a further emergency, the question of her admission would next fall to be considered then.
In all of those circumstances, this is clearly a case in my judgment where intervention would be appropriate, if justified in the interests of AN's welfare. I do however pay serious regard to her expressed views and wishes and to those of her parents, both in supporting her and for their own part in advocating for a return home for their daughter. She is clearly an intelligent and articulate young person who, despite the most traumatic of circumstances has nevertheless been able to converse at length with her doctors and in so doing impress on them her capacity and her awareness of her situation. It is not a surprise that she has found the final step, of acknowledging the gravity of her diagnosis and consenting to immediate and demanding treatment a hard one to take over such a short period of time. I remind myself that just this time last week, all of the events since her diagnosis were completely unforeseen and unforeseeable. She has in fact coped remarkably well with the most terrible of situations. It is completely understandable that she would like to be at home.
In that situation, I have given very careful thought to whether AN's autonomy should be respected, and she should be given the additional time to process her position which is in effect what she feels that she needs. However, I have come to the very clear view that, notwithstanding her age and her expressed wishes, her welfare needs do dictate that she must now remain where she is and commence inpatient treatment as Dr X urgently recommends. I bear in mind that this is not a young person who is refusing treatment, but rather one who clearly says that she wants to be treated, but simply wishes to delay the commencement of that treatment. The evidence is very clear that such a delay risks seriously compromising the efficacy of the treatment. The potentially extremely serious side effects of the steroids which AN would be taking at home would not be mitigated by the intravenous hydration which could be provided in a hospital setting. Further, chemotherapy, which would otherwise begin at the start of next week, would almost certainly be delayed, increasing further the risk of the cancer proving fatal.
In this case, both the likelihood of an infection causing a serious negative impact on AN's health if the treatment outlined by Dr X is not now started, and the extreme consequences of such an impact for AN, are clear. As against those dangers, alongside of course AN's own clearly expressed wish for more time, I have to weigh the very positive potential outcomes if the treatment is commenced immediately without those risks being run. In those circumstances I am clear that the balance falls comfortably in favour of intervention, and in acceding to the Trust's application for an order which will keep AN in hospital where she is now, so that the life-saving treatments which are available can be administered to her.
I hope that she will understand this decision and accept the treatments as offered, as Dr X anticipated that she would. I was gratified to understand from Ms David that the Trust do not propose any physical or chemical means of restraint in order to administer AN's treatment, but rather just to ensure that she is not free to leave the hospital, in the expectation that while she is there, she will permit the treatment that she so badly needs.

Re A (Covert Medication: Residence) [2024] EWCA Civ 572

The Court of Appeal considered appeals by the Local Authority and the Official Solicitor against the judgment of Poole J in Re A (Covert Medication: Residence) [2024] EWCOP 19. As ever, there is no substitution for reading a judgment and that is perhaps even more true for long running cases such as these where the procedural background has such an impact on the outcome.

This matter has been the subject of four other reported judgments about the covert medication of A, without the knowledge of A, or her mother B, for Primary Ovarian Insufficiency (POI).

For a full background readers should consider the history set out in the judgment at first instance but in brief, A is now 25 years old and has diagnoses of Epilepsy, learning disability and ASD. A’s POI meant that by 18 years old, she had not gone through puberty. POI posed significant risks to her health and A’s treating endocrinologist recommended a course of Hormone Replacement Therapy. A was refusing HRT and B said A had the capacity to make up her own mind.

In 2019, by judgment of the court, A was removed from B’s care and placed in residential care. Whilst there her contact with B was supervised and it was hoped that A could be persuaded to take the course of HRT. A declined to do so and also declined to join in social activities.

In closed proceedings in 2020, A was ordered to have the HRT covertly and both A and B were not told in order to prevent A from refusing food and B from seeking to dissuade A from taking the HRT.

B and observers were not aware of the fact of the closed proceedings until 2022. Understandably, B was confused as to why A was not receiving HRT when that had been a central reason for the decision that it was in A’s best interests to be removed from B’s care. B was ordered not to inform A of what had taken place.

By 2022, A had achieved puberty and required maintenance medication for her POI and A’s willingness to socialise had increased, albeit not significantly. B agreed to seek to persuade A to take the covert medication, hoping it would be a gateway to the process of the A returning to live with B. By late 2023, A continued to reject her diagnosis of POI.

In January 2024 the case returned to court to consider A’s best interests in relation to residence and care. Both A and B expressed very strong wishes for her to return home. Poole J found that it was in A’s best interests to return home, for covert medication to cease, and for A to be informed she had been covertly administered HRT.

Eight grounds of appeal were brought by the local authority and OS, supported by the NHS Trust. For the reader’s ease I will set out the grounds of appeal below in turn alongside the court’s determination of each. However, before addressing the grounds of appeal, Peter Jackson LJ, giving the lead judgment, made some general observations about matters of principle:

The first is that A's circumstances are highly abnormal, even in the world of the Court of Protection. As a result of a series of careful best interests decisions she has been taken from her home, separated from her family, and detained against her will in Placement A for five years. She has resolutely rejected HRT, but for well over half of that time she has been taking this significant medication in ignorance. The judge was right at [59] to regard these matters as very serious interferences with A's rights, particularly as the main goal of HRT had been achieved, and to face up to the fact that there was no obvious end in sight to the present state of affairs.
The second matter is the length of time that the proceedings have lasted. The overriding objective in rule 1.1 of the Court of Protection Rules 2017 requires the court to deal with a case expeditiously, fairly, proportionately and economically. Rule 1.3, which mandates active case management, requires the court to avoid delay and keep costs down. The burden is always on those arguing for proceedings to be extended, and submissions that the judge's decision was premature or rushed have to be seen in the context of proceedings that had continued since April 2018. Their exceptional length was bound to influence on the court's approach to case management, including its decision about when a final decision should be made.
Third, and relatedly, the Court of Protection exists to make decisions about whether a particular decision or action is in the best interests of the individual. It is not a supervisory court, as confirmed by Baroness Hale, giving the judgment of the Supreme Court in N v ACCG [2017] UKSC 22, [2017] AC 549 at [24], in a passage referred to by the judge:

"…the jurisdiction of the Court of Protection (and for that matter the inherent jurisdiction of the High Court relating to people who lack capacity) is limited to decisions that a person is unable to take for himself. It is not to be equated with the jurisdiction of family courts under the Children Act 1989, to take children away from their families and place them in the care of a local authority, which then acquires parental responsibility for, and numerous statutory duties towards, those children. There is no such thing as a care order in respect of a person of 18 or over. Nor is the jurisdiction to be equated with the wardship jurisdiction of the High Court. Both may have their historical roots in the ancient powers of the Crown as parens patriae over people who were then termed infants, idiots and the insane. But the Court of Protection does not become the guardian of an adult who lacks capacity and the adult does not become the ward of the court."

The Court of Protection is not, therefore, A's guardian, and nor are any of the professional parties, whatever duties they may owe her. This should not be forgotten amidst the need for rolling reviews of the 2020 CM order, and the fact that B's application, issued in April 2022, remained undetermined for so long. The Court of Protection has become a fixture in A and B's lives. If that is necessary because the court is for good reason unable to bring its involvement to an end, so be it, but it should not be mistaken for normality. In this connection, I repeat what I said in Cases A & B (Court of Protection: Delay and Costs) [2014] EWCOP 48, in a paragraph approved by Sir James Munby P in this court in N v ACCG (see Re MN (Adult) [2015] EWCA Civ 411, [2016] Fam 87 at [104]):

"14. Another common driver of delay and expense is the search for the ideal solution, leading to decent but imperfect outcomes being rejected. People with mental capacity do not expect perfect solutions in life, and the requirement in Section 1(5) of the Mental Capacity Act 2005 that "An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests" calls for a sensible decision, not the pursuit of perfection."

Here, the court's task was to select the best practical outcome that was realistically available, even though all options were, to say the least, imperfect. It was beyond its powers to eliminate risk or make A's many problems go away.

Fourth, while the Court of Protection's role is not supervisory, it is inquisitorial. Subject always to the demands of fairness, the judge was obliged to reach his own assessment, and he was not limited to choosing between the positions taken up by the parties. The demands of fairness are sensitive to context, and in the present context the parties were entitled to have the opportunity to present evidence and argument about the outcomes that were properly open to the court before a decision was made.
Lastly, I repeat that this was a genuinely difficult decision. The case, described by all the parties as very finely balanced, had become stuck. The direction of travel identified by the court in September 2022 had not been advanced. All the professional advice went one way, and A's litigation friend, the OS, was advocating an outcome that was directly contrary to her wishes. The only party who argued for a different outcome, B, had limited credibility and was the subject of justified criticism for her misguided and gravely damaging parenting. A's predicament called for an energetic response from the court, one way or the other. In these circumstances, the well-known statement of Baroness Hale in In re J (a child) [2005] UKHL 40, [2006] 1 AC 80 is on point:

"12. If there is indeed a discretion in which various factors are relevant, the evaluation and balancing of those factors is also a matter for the trial judge. Only if his decision is so plainly wrong that he must have given far too much weight to a particular factor is the appellate court entitled to interfere: see G v G (Minors: Custody Appeal) [1985] 1 WLR 647. Too ready an interference by the appellate court, particularly if it always seems to be in the direction of one result rather than the other, risks robbing the trial judge of the discretion entrusted to him by the law. In short, if trial judges are led to believe that, even if they direct themselves impeccably on the law, make findings of fact which are open to them on the evidence, and are careful, as this judge undoubtedly was, in their evaluation and weighing of the relevant factors, their decisions are liable to be overturned unless they reach a particular conclusion, they will come to believe that they do not in fact have any choice or discretion in the matter."

This judge had lengthy experience of A's situation and his judgments show a profound understanding of all aspects of this exceptionally difficult matter. We should therefore pay particular respect to his thorough and considered evaluative decision.

Having provided those observations, Peter Jackson LJ went on to deal with each ground of appeal in turn.

Grounds 1 and 2 – Timing of the Final Determination of All Issues

1) The court made a final determination of A's best interests in relation to residence when neither B, nor any other party, sought a final determination of that, or any other, issue.

2) Further and in the context of Ground 1), the court finally determined all issues in a way that was not in accordance with the relief sought by any party without canvassing its proposed final disposal in circumstances where:

a) oral submissions at the end of the evidence were not possible; and

b) no party's written submissions addressed the question of what, if any, final decisions on residence or any other issue were in A's best interests because there was no application for final disposal of any issue.

Peter Jackson LJ started by pointing out two things at paragraph 95:

Ground 1 is not strictly true as the Appellants and the Trust were seeking final orders dismissing the application made by B in relation to A’s residence.
Although the issue of HRT was understandably at the forefront of the professional’s minds, the matter of residence was no doubt the most important matter from A’s perspective and in any event the issue of her return home was not only at large but long overdue a decision.

In relation to Ground 1, the court therefore said the following:

In relation to Ground 1, I therefore conclude that there were strong reasons for the judge to make a final decision in principle, while allowing an opportunity for a discussion of implementation at a subsequent hearing. This was an order that was properly open to him, whether or not the parties expected it, and no party suffered unfairness thereby. The course proposed by the Appellants and the Trust entailed significant and possibly indefinite prolongation of the proceedings with no very promising outcome beyond the beneficial aspects of continued CM in fragile and controversial circumstances.
It is further said that the judge should have adopted a collaborative approach to the development of a plan. However, there is a distinction to be drawn between decision-making and implementation. It is a matter for a judge to decide in the individual case whether, at what stage and in what manner the parties should contribute. In this case, the judge cannot be criticised for deciding that he did not need further information from the parties before making the central decision of principle.

Ground 2 raised a more substantial issue. Peter Jackson LJ took the following view:

… I have already observed that the judge was not bound by the parties' positions. However, I do have apprehensions about the course that the proceedings took once it became clear that oral submissions could not be given at the end of the hearing. Although it will often be an efficient use of resources for closing submissions to be made in writing, the process of oral argument can be of considerable value, particularly in a difficult case. Further, it will generally be good practice for the court to alert the parties by one means or another to the fact that it is considering an outcome not positively sought by them, so that they can make submissions about it or even seek to call further evidence. In this case, once the judge contemplated making a different and final order, he would have been well advised to ask the parties to address that in written submissions or to have investigated the possibility of reconvening for oral submissions, perhaps remotely. To that extent I accept Ms Gollop's submissions on this ground. The question for us is whether the judge's failure to take this course rendered the proceedings unfair.
The Appellants and the Trust point to the fact that B was only arguing for a trial at home, that no party positively advocated stopping HRT, and that no party proposed that A should now be told about the CM programme. Again this is true to an extent. No party was advocating cessation of HRT, but B's case was that A should return home on trial, even if that led to temporary cessation.
However, I particularly understand the concern expressed about the judge not canvassing further views from the parties before making a decision about telling A about the CM in circumstances where no party positively advocated this and where it might have an adverse impact on her ability to trust professionals. On the other hand, A's mistrust of professionals was ingrained and the argument for controlled disclosure of CM was a powerful one. Further, the judge had flagged up this issue as long ago as September 2022 (see paragraph 21 above) and he found, in my view rightly, that the issues of residence, HRT and CM were bound up with each other. Telling A was also an issue that had featured significantly in the evidence (see paragraph 55 above) and I consider that the judge was entitled to grasp the nettle without hearing further submissions about it. Mr Joseph O'Brien's pithy submission that the judge's solution was "not out in argument" invites an unduly narrow interpretation of what the case has been about. Residence, HRT and CM had been live issues for years and the judge was well aware of the entrenched positions of the parties. It would have been preferable for him to have alerted them in some fashion to the court's intention, but they had extensive opportunities to present evidence and argument about all outcomes that were properly open to the court. The fact is that the judge's view of the case differed from that of the parties. His decision may have surprised experienced advocates, which puts one on inquiry, but that does not of itself render the process unfair. Of particular significance, if further submissions had been invited they would have been a familiar, though no doubt more detailed, rehearsal of arguments that had been exhaustively considered over a lengthy period. Overall, in these particular circumstances the process was not ideal but it was not unfair. I would therefore dismiss these grounds of appeal.

The court found the remaining grounds far more straight forward and dealt with them swiftly and in turn:

Ground 3 – The decision that state actors provided A with protective measures to protect her from harm from B after she returned to live with B was not an available option and/or was unworkable and/or had no real prospect of safeguarding A's health or welfare

3) The court's final determination of the issues of residence and care were contingent on the LA providing A with "protective measures" that would mitigate the significant harm to which she would be exposed on a return to B. There was no evidence that state-provided protective measures were an available option or, if available, an option that was workable or had a real prospect of being effective in terms of either protecting A from harm or giving effect to her rights and promotion of her welfare.

The court was unconvinced by these arguments and found that over the course of the proceedings Poole J would have had ample information and insight as to the risks that were posed to A at home with B, and also sufficient information from the social worker’s statement as to what services would be realistically available to mitigate those risks.

Grounds 4, 5 and 6: The decisions that A should stop receiving covert medication and be informed that she had been covertly medicated were wrong

4) The court failed to take into account the unanimous view of A's MDT that it was not in her best interests to be told that she had been or was being covertly medicated and its active contemplation of the option of A stopping taking HRT.

Peter Jackson LJ did not accept this. In the social worker’s evidence alone the MDT was referred to almost 50 times. Poole J devoted 8 paragraphs to the evidence of the two most significant members of the MDT. In the words of Peter Jackson LJ ‘there is no substance to this ground.’

5) The Court wrongly determined that it was in A's best interests to be told that she had been covertly medicated. In particular, the Court wrongly concluded that it was likely that at some point A was going to discover she had been covertly medicated.

The court considered this ground and found: ‘That was an evaluative finding that was clearly open to him. He rejected the submission that A should not be told because he regarded frankness as offering the best chance of persuading A to take HRT voluntarily: again that was a judgement for him to make. Essentially this ground argues that the judge should have acted more cautiously, but he was entitled to consider that a cautious and highly restrictive approach had repeatedly failed since the summer of 2022.’

6) The judge's finding that "Covert medication should be used exceptionally, for severely incapacitated patients" was wrong and led him into error.

This ground concerned the judge’s use of guidance for covert medication. The court considered that that submission goes nowhere and the judge was not unduly influenced by the guidance or any misunderstanding as to its date or status.

Ground 7: Deprivation of Liberty

7) The court failed to take into account the fact that the degree of monitoring and supervision that A will need, and that B will impose, on a return to B's house and sole care is likely to meet the Cheshire West test so that she will be deprived of her liberty there.

The court found at paragraph 107: ‘Ground 7 is equally insubstantial. The degree of DOL that A experiences at Placement A is markedly greater than she would experience at home because of her strong feelings in the matter. Even assuming she would suffer DOL at home, an analysis of that issue takes the best interests assessment nowhere.

Ground 8: Prioritisation of Wishes and Feelings over ECHR Arts 2 and 3

8) The court wrongly, and prematurely, gave final priority to A's wishes and feelings rather than her Art 2 and Art 3 rights.

The court found this final ground also failed:

108. Ground 8 argues that the court wrongly and prematurely prioritised A's wishes and feelings over her Article 2 and 3 rights and failed to weigh in the round the harm that would come to her at home. The correct and proportionate course was for her to experience a SIL placement with the option of no contact with B in order to increase her independence and ensure she receives HRT.

109. I reject this wide-ranging submission. The judge scrupulously charted the harm that A had suffered at home and would be likely to experience on a return. He made all allowances in favour of the unidentified SIL placement, including the somewhat improbable possibility of CM continuing there. But he was confronted by the reality that A had entirely rejected Placement A and there was no basis for believing that she would accept any other alternative to going home, particularly if it had to be bolstered by stopping contact with B. The argument about the order of precedence of the various ECHR articles is sterile. What matters is the content of the rights that are engaged, not whether they are absolute or qualified. The judge had to balance A's deep unhappiness and the deception of CM against its significant medium and long term benefits for A's health. Mr Joseph O'Brien was right to accept that A's continued removal from her home could only be defended on the basis of the medical benefits that flowed from it, and that removal on the basis of the severe dysfunction of her home life could not be justified. I agree, particularly where A's life at Placement A is so limited in social terms. This ground also fails.

Although this was a very difficult case the judgment is, in many ways, a back to basics of procedure and case management. The five general observations found at paragraphs 88 to 92 should inform case management in many other long running cases but also all cases before the court of protection.

It is also a reminder, that in any case before the court of protection the purpose of the court is not to seek a perfect solution but to make a sensible decision. In every case before the court of protection both sensible case management in line with the overriding objective and the acknowledgment that sensible decisions, and sensible risk appraisals are often better for P than long drawn out proceedings seeking the perfect solution that may never come to fruition.