A (Covert Medication: Residence), Re

These are appeals by the First Appellant local authority (‘the LA’) and by the Second Appellant, the Official Solicitor (‘the OS’), from a decision of Mr Justice Poole (‘the judge’) sitting in the Court of Protection, as contained in a judgment handed down on 20 March 2024 and an order of 10 April 2024. It is a best interests decision under the Mental Capacity Act 2005 (‘the MCA 2005’) in relation to A, a 25-year-old woman who lacks capacity to make decisions about her residence, care, contact and medical treatment.

The Appellants challenge final declarations under section 15 MCA 2005 that it is in A’s best interests:

The judge fixed a one-day hearing on 18 April at which the detailed arrangements for the planning and timing of A’s change of residence, the cessation of CM, and the informing of A were to be determined, but that was postponed to await our decision.

The appeals, which concern the substance of the judge’s decision and the fairness of the process by which he reached it, are supported by the Second Respondent NHS Trust (‘the Trust’), which delivers A’s medical care. They are opposed by A’s mother, B.

The judge directed that there shall be no identification of A or her family (beyond the fact that they live in the North of England), or of the LA or the Trust, or the medical witness Dr X. That order remains in effect and must be complied with.

As will become clear, A’s circumstances are extraordinary, and gave rise to a genuinely difficult best interests decision. The statutory term ‘best interests’ has an inherent optimism, but there are cases where every option is problematic and even the best outcome is troubling. This was just such a case.

A was born in 1998. Her parents separated shortly after her first birthday and she was brought up by her mother alone. She was home-schooled by B and has never had any formal education. In 2010, at the age of 11, she was prescribed medication for epilepsy. Aged 15, she was identified by the LA as a child in need but B repeatedly refused to engage with social services. A has a relationship with her maternal grandmother, who lives near to the family home.

In September 2017, after B had told a GP that A had been fitting, the GP insisted on calling an ambulance and A was admitted to hospital. The medical staff were concerned at B’s resistance to the admission and refusal to let A speak for herself, and at the fact that A, then 18, had not experienced puberty and was living an isolated life. After two weeks A was discharged home.

In April 2018 the LA was driven to issue proceedings in the Court of Protection as a result of B’s persistent lack of co-operation with medical and social work professionals. A was assessed to lack capacity and (although B openly disagreed for several years) that has not changed. She was seen by the Trust’s endocrinologist, Dr X, who has advised throughout the proceedings.

It was by that stage established that A has the following life-long conditions: Mild Learning Disability (IQ 65); Autistic Spectrum Disorder (‘ASD’) – Asperger’s Syndrome; Epilepsy; Primary Ovarian Insufficiency (‘POI’); and Vitamin D deficiency. Taken together, these conditions render A an extremely vulnerable person, physically, psychologically and socially.

The proceedings in respect of A’s best interests have continued for fully six years. Their course is charted in five substantial judgments, the last being the subject of the present appeal:

During the first year of the proceedings, when A was at home with B, the LA and the Trust made strenuous efforts to encourage and persuade B to give A the support she needed. These included: (1) accepting A’s diagnoses of learning disability, ASD and POI; (2) allowing A to have unobstructed access to medical advice; and (3) supporting A to take Hormone Replacement Therapy (‘HRT’) to manage her POI and achieve puberty. Those efforts failed. There was also a high level of concern at A’s social isolation. She had no social life away from B, no friends of her own, and few independent living skills. Dr X advised that the physical and emotional harm arising from not undergoing puberty were extremely serious but could easily be averted by taking HRT. However, A was refusing HRT and B was saying that she had the capacity to make up her own mind.

In these circumstances, on 9 April 2019 by order of HHJ Moir, A was removed from home and moved to Placement A. It is a residential care home for 20-40 year olds with learning difficulties and ASD. Contact between A and B was restricted and supervised.

In her first judgment in June 2019, given after a hearing lasting six days, Judge Moir gave this assessment of the reasons for B’s response to A’s need for HRT:

Judge Moir’s reasonable prediction that B’s negative influence on A would diminish with separation and time has sadly been disconfirmed by the events of the last five years. From the outset of her time at Placement A, A refused to join in social activities and began to spend increasing time in her own room, neglecting her hygiene and appearance, and at times refusing to eat and drink or take her epilepsy medication. As this was considered to be in large part due to B’s influence, contact was reduced and then suspended entirely in June 2020. Despite this, A still resolutely refused to take HRT and expressed the wish, supported by B, to go home.

So it was that the Trust applied in July 2020, in closed proceedings from which B was excluded, for a declaration that it was in A’s best interests to be covertly medicated with HRT. Judge Moir granted the application by an order dated 28 September 2020 (‘the CM order’). She also ordered that B was not to be told about the order so as to eliminate the risk of her subverting its implementation. CM, which began in December 2020 and continues to this day, involves A being offered HRT tablets by staff on a daily basis, and upon her refusal, the staff administering the tablets by crushing them into A’s food, which she eats in her own time. The order was made as a last resort, after a complete failure to secure A’s voluntary acceptance of HRT in the 15 months since it had been declared to be in her best interests. Moreover, as Judge Moir had found, the treatment should have begun five years sooner, namely in 2014.

The adoption of a closed procedure inevitably added to the complexity of the proceedings, in that B and her legal representatives were unaware of the CM order. That state of affairs continued for two years, with the authorisation of CM being regularly reviewed at closed hearings. Contact, by telephone only and supervised, was resumed.

In April 2022, B issued an application for A to be returned home. It was then established that the administration of HRT had succeeded in its primary goal, in that A had achieved puberty, and in June 2022, the medication was changed to maintenance therapy (administered covertly by the same means). Dr X advised that this should continue. Puberty is irreversible and A will benefit permanently from having achieved it, but without continued maintenance medication she will be at a higher risk of early osteoporosis, fractures and cardiovascular complications. It was considered that A’s willingness to socialise had somewhat increased. She had not reacted to the physical changes that she had undergone or expressed curiosity as to what had brought them about.

In the summer of 2022, the case was allocated to Poole J following the retirement of Judge Moir. On 15 September 2022, he held a closed hearing and within days delivered a closed judgment in which he reviewed the issues of A’s capacity and her best interests in relation to HRT and CM. He found that she continued to lack capacity and that it continued to be in her interests to have HRT. As to CM, he considered it surprising that the process had not so far been discovered and he observed that its continuation was fraught with risk. He came to this conclusion:

The parties to the closed proceedings were united in their view that if B was informed of the use of CM there was a significant risk that she would find a way to tell A. Nevertheless, having thoroughly analysed the applicable principles and the competing factors at play, the judge determined that B should be informed of the past and ongoing administration of CM, and that she should be subject to an order preventing her from informing A about the CM. These orders, which were not appealed by the closed parties, brought the closed proceedings to an end.

At the beginning of the open hearing on 20 September 2022, listed to hear B’s application for A’s return home, the judge informed B that CM had been administered to A and that she had achieved puberty. The closed evidence, dating back to Judge Moir’s CM order, was disclosed to B and her representatives, as was the closed judgment that followed the hearing on 15 September. After some time for reflection, B agreed to her application for A’s return home being adjourned. She proposed that her contact with A be restored, that she should seek to persuade A to take HRT, and that upon A doing so, she should return home. The other parties argued for a more cautious approach. After further thorough consideration, the judge arrived at these conclusions, (Part One of this open judgment contained the closed judgment that had been delivered days earlier):

The judge made these apposite closing reflections about the course the proceedings had necessarily taken:

Taking stock, the judge’s decisions in September 2022 brought the closed proceedings to an end so that B once again had access to all material placed before the court. The judge determined that A’s best interests were served by exploring the most effective way of transitioning from covert to open medication and/or ending covert medication in a way that is likely to cause the least harm to A. To give effect to this decision, the judge required the LA and the Trust to draw up a plan for a transition to open medication with A’s consent and the informing of A about her medical history.

In consequence of the judge’s decision in September 2022, general guidance about closed hearings in the Court of Protection was issued on 9 February 2023 by Hayden J, as Vice-President of the court.

Returning to the chronology, at the further hearing fixed for 15 November 2022, the judge gave directions about B’s application for residence and about CM. Direct closely supervised contact between A and B then resumed at the end of November 2022 after a gap of over two years. It increased in frequency in the following year, with up to three visits a week, though the professionals had increasing concerns about the perceived negative effect of B’s influence on A’s previous willingness to engage in very limited activity outside the placement.

Between January and March 2023, three health promotion sessions were held with the aim of encouraging A to take HRT and accept the diagnosis of POI. At the last of these sessions A was informed that she had experienced puberty, but not that it was the result of CM. A further hearing took place before the judge on 13 March 2023.

Between May and July 2023, B attended four planning sessions with professionals ahead of a further session with A to encourage medication uptake, which took place in July 2023. A continued to reject HRT.

On 9 October 2023, the judge conducted a further hearing. His order recorded that the work undertaken to date had been unsuccessful in that A continued to say that she did not accept the diagnosis of POI and that she wanted a second opinion from a doctor independent of the NHS. The parties agreed that there was merit in facilitating an independent opinion on diagnosis, treatment, the benefits of HRT and the risks of stopping it. The OS was directed to obtain, by 30 November 2023, a report from an expert, whose identity was to be agreed. The parties further agreed that the most pressing best interests issue continued to be whether A could take her medication voluntarily. Detailed directions were given for a three-day hearing starting on 24 January 2024, described as a “final hearing”, to determine:

At a meeting of the multi-disciplinary team (‘MDT’) on 20 November 2023, it was concluded that there appeared to be three possible options in relation to A’s future support, residence and contact:

A’s social worker accepted that the final best interests decision about A’s care and residence was a difficult one. She discounted Option 1 because it was not compatible in the long run with A’s wish to be nearer to her family home. Despite A’s strong preference for Option 3, the social worker advocated Option 2, in the hope that this would give A greater independence and that she could be persuaded to take HRT, that being said to be the ongoing factor of magnetic importance in assessing her best interests.

The medication plan that the court had directed to be drawn up in September 2022 was never drawn up. The judge made no finding about why this was, but the LA informed us that the evidence showed that it was because the MDT did not consider that withdrawal of CM was in A’s best interests.

Despite extensive efforts, the parties were unable to identify an independent endocrinologist, and no further expert could therefore be instructed. In the meantime, Dr X was due to retire and was replaced by Dr K. She visited Placement A on 11 January 2024, but A refused to see her.

Also on 11 January, A’s solicitor attended on her. The judge described A as having used very clear and colourful language, but that does not fully convey her distressed and abusive presentation as recorded in the attendance note:

It is an indicator of the extreme length of the proceedings that the papers before the judge included the 17^th statement of the social worker, the 10^th statement of B and the 10^th statement of the OS’s agent. As one of the issues on appeal concerns the fairness of the process, it is necessary to set out the parties’ positions in some detail.

The LA’s opening stance was reflected in these passages from its position statement:

The opening position statement of the OS described the situation as “beleaguered with complexity”. It was “finely balanced and requires anxious scrutiny”. It was unlikely that A would take HRT voluntarily and if she did not “there is a difficult balancing exercise to decipher whether it is in A’s best interests or not to return home without medication.”

B’s opening position was that she was best placed to convince A to take her maintenance medication voluntarily and that this was best done at home. She suggested a trial period of 6/12 weeks at home with CM, while she took the lead in convincing A and getting her to see a doctor she could trust. If the court concluded that CM could not be delivered at home, A should nonetheless be returned home for 6 weeks without CM to see if B could convince A to take HRT voluntarily. The court was invited to consider A being informed about CM, as telling her would reduce the risks associated with her finding out.

The opening position of the Trust, in agreement with the LA, was that it was in A’s best interests for CM to continue and for her to move to supported living when a placement was found.

Evidence was given on the first day by Dr X, on the second day by B, and on the third day by the social worker. Unfortunately, time was lost for various reasons on the first and third days, with the result that oral submissions could not be made. Because of the difficulty of reassembling four leading counsel at a further hearing, it was agreed by all parties and approved by the judge that closing submissions would be made in writing.

It was common ground before the judge, and before us, that the key issue concerned the likelihood of A continuing to take HRT, by CM or otherwise and depending upon where she lived. The judge summarised Dr X’s evidence, which he accepted, on the consequences of her not doing so:

Through no fault of his own, Dr X had found himself acting as both clinician and expert witness throughout the proceedings. The judge observed that this should be avoided.

The court was told of a possibility of A being seen by an independent endocrinologist, Professor Z, but after the hearing that ultimately came to nothing as (amongst other reasons) the LA was opposed to A travelling to London and Professor Z was not willing to travel to see A.

B gave evidence about her intentions if A came home, including the possible ways of delivering CM (which she said she was prepared to allow but was unwilling to administer herself). The judge found her evidence to be evasive and unrealistic in a number of respects.

The social worker spoke of A’s strong wish to return home, but said that her horizons are so limited by her upbringing that it would be difficult for her to think any other way. She accepted that it was difficult to disentangle the effects of A’s learning disability and Asperger’s from the consequences of her upbringing and her relationship with B.

After the hearing, and before the judge gave his decision, the LA proposed to the other parties that there should be an adjournment to allow for further work by professionals and by A’s grandmother, aimed at persuading A to take HRT voluntarily. On advice, B declined to participate in such discussions, preferring to allow the court to reach its decision on the evidence given at the hearing. Accordingly, by the middle of February written submissions running to some 50 pages were filed.

The LA’s closing submissions (8 February) began in this way:

B’s closing submissions (8 February) included these passages:

The Trust’s closing submissions (9 February) included these passages:

The OS’s closing position (13 February) was that:

On 20 March 2024, the judge handed down his judgment. He found that it was in A’s best interests:

The 30-page judgment must be read as a whole. It contains summaries of the law and the evidence about which there is, and could be, no complaint. In introduction, the judge made these observations: the feasible options are all fraught with risk and it is difficult to foresee a good outcome for A, whatever the decision; the decision about residence is bound up with the continuation or cessation of CM, and all parties had approached the hearing in that way; and that, at [4]:

The last 13 pages contain the judge’s analysis. I will trace the stages of his reasoning.

First, he noted that the Option 2 proposal for a SIL placement had not been aired until shortly before the hearing. No placement had been identified and there was no evidence that such a placement would be suitable for A. The choice before the court was therefore between A continuing to live at Placement A, but with exploration of the possibility of moving to a SIL placement at some point, or A returning home to live with B: [44]. B had given plenty of notice of her application for A to return home. The related question of CM had been under active consideration for a long time and in the absence of good reason to the contrary, B’s application should be determined on the evidence now available: [45]. The decision about residence was complex and could not be divorced from consideration of the continuation of CM. The need for A to receive hormone treatment was a key reason for removing her from her home: [46].

Next, the judge addressed the issues of HRT and CM in considerable detail at [47-64]. He considered the timescale for his decision:

The only aspect of Dr X’s opinion that he did not accept was in relation to whether A should be told about the CM:

The judge then summarised his conclusions about HRT and CM:

The judge considered the lack of planning for ending CM:

He then made this general observation:

The judge next assessed the relationship between A and B. He found that B was heavily responsible for A’s isolation and lack of physical, mental, and social development and that their relationship remains enmeshed. Returning home will expose A to a substantial risk of harm flowing from the nature of the relationship between her and B. There is nothing to show that B’s approach would be different to what it was before. She has no real desire to change and gives no impression of thinking she has done anything wrong: [68-70]. However, the judge continued:

The judge’s final best interests analysis needs, and deserves, to be quoted in full:

At [82], the judge then stated his conclusions as to best interests, as outlined above. He acknowledged that he was departing from the positions taken by the professional parties, but said that the court had to put itself in A’s shoes and make a decision about what was best for her, taking into account, so far as practicable, her individual characteristics, likes and dislikes, values and approach to life. He concluded:

Finally, the judge addressed the steps that were necessary to implement his decision:

At the hearing on 20 March 2024, the LA sought permission to appeal which was refused by the judge. Permission was granted by Baker LJ on 17 April 2024. From A’s point of view the situation remains as it was before the judge’s decision, though B is of course aware of the decision and the appeal.

The LA and the OS, supported by the Trust, advance eight grounds of appeal. Grounds 1 and 2 concern the timing and fairness of the decision, while the remaining grounds challenge its substance.

Ms Katie Gollop KC explained that the LA does not submit that the judge’s decision was wrong in all circumstances, and there may come a time when it is right. However, he was wrong to have made this decision without exhausting all other avenues. It was regrettable that the court ran out of time to have heard oral submissions on what the judge was proposing. The parties understood the issue to be as between the proposal supported by the three professional parties and B’s application for a trial period at home. No party was suggesting that HRT should cease and no party positively advocated immediate cessation of CM. The decision did not need to be made now and the judge should have canvassed his proposed disposal with the LA and the Trust in advance, since they were to be charged with taking protective measures to facilitate the placement at home. That should have been done by convening a hearing for oral submissions or at least by informing the parties of his intentions and asking for further written submissions. The judge should have adopted the collaborative approach commended by Baker J in A Local Authority v TZ (No 2) [2014] EWHC 973 (COP) at [54]. Instead, his approach was not protective of A’s rights and was procedurally unfair.

For the OS, Mr Sam Karim KC described this as a very difficult and finely balanced best interests determination. A final decision was not appropriate. B had said that she would apologise again to A for her failure to encourage her to take HRT in the past (something she had previously done in September 2023), and Dr X had placed significance on this happening. The judge was wrong to make any final decision before the apology was given. At that point the independent expert that might be identified could seek to persuade A to take HRT voluntarily.

For the Trust, Mr Joseph O’Brien KC told us that the parties thought that the issue was about a 12-week trial at home, which the professionals regarded as a flawed plan. It was not perceived that the judge might at this stage make a final order and direct the cessation of CM and A being informed about it. He should have alerted the parties to his intentions. The failure to do so deprived them of the opportunity to provide submissions and evidence. Oral submissions have a value. The court could have considered the views of the MDT, heard argument on the question of A’s possible deprivation of liberty (‘DOL’) at home, and put the Trust and the LA into a position to show that the protective services they could provide would be inadequate for A’s protection. If that procedure had been followed, the judge might have been persuaded of the dangers of a return home. Instead, the decision was rushed and procedurally unfair.

For B, Mr Mike O’Brien KC submitted that the case needed direction amidst continued drift. A was living under draconian restrictions, with ongoing breach of her rights of which she was unaware. B’s application had been repeatedly adjourned and all attempts to persuade A to take HRT had failed. Despite the direction set by the court in 2022, the other parties had put forward no proposal to end CM and were saying that A must therefore stay in care. The hearing was listed for the big decisions to be taken, and the parties had fair warning of them, as can be seen from the judgment in September 2022, the order in October 2023, and the position statements filed at the outset of the hearing. B had already apologised to A, and both B and A had been asking for an independent second opinion to Dr X’s for years. Two members of the MDT gave evidence and the position of the team as a whole was very clear: they regarded B as an unmanageable risk and that was not going to change. B’s position on residence was for a trial period, but she had consistently been arguing that A should return home. It was accepted that no one had argued for stopping CM. However, in regard to HRT B had identified four options, three of which involved it continuing, but she also contemplated it stopping during the trial period, as reflected in her closing submissions:

At the outset of the appeals the Appellants submitted that we should set aside the judge’s order and direct a retrial, while accepting that this would cause significant delay. However, on reflection, they submitted at the end of the hearing that the matter could be remitted to the judge himself for further consideration. That would be on the basis that his order would be stayed or set aside and the matter relisted before him for further evidence and submissions so that he could retake the final decision. That might be the same or different, but it would be fully informed.

The Appellants argue that the judge’s decision was contingent on the LA and the Trust providing A with ‘protective measures’ that would mitigate the significant harm to which she would be exposed on a return to B’s care. There was no evidence that state-provided protective measures were available or would be effective to protect A from harm.

Ms Gollop argues that the judge prematurely made a decision about residence without having a full plan before him. She refers to the declaration at paragraph 2c of the judge’s order which provides for:

Ms Gollop conceded that the judge’s decision might be sustainable if the judge had said that everything had been tried and had failed, and that a return home without HRT was a price worth paying. Instead he made a best interests decision that involved the LA and charged the state with protecting A, an outcome that was neither fish nor fowl.

The Trust similarly contends that, as a matter of fairness to it and the LA, the judge was obliged to identify the specific harms that required protective measures and what those measures should include. Only then could the LA and other statutory bodies evaluate whether such measures were available options. Without that information, the plan for a return home, with or without a trial, was inchoate. The judge’s failure to engage with the LA, the Trust and the OS about such matters before determining what was in A’s best interests, compromised the best interests assessment and failed to ensure that A’s fundamental rights were properly addressed.

The Appellants argue 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 about CM or to seek its view on the option of A stopping taking HRT. They note that the MDT is not mentioned in the judgment. The judge was wrong to say that the prospect of A not taking HRT at all had not been actively contemplated, when the MDT had actively contemplated it and reached the unanimous view that it was not in her best interests.

It is said that the Court wrongly determined that it was in A’s best interests to be told about the past CM and that it was likely that at some point A was going to find out.

As to the first element, Ms Gollop raised particular objection to the judge’s plan for B to be involved in telling A about the CM. She asserted that, by making B a key messenger, the judge promoted her as a figure A can trust, when the truth is that B has harmed A in the past and is a risk to her in the future. A will not understand that B is the reason why CM was necessary. She will be deceived and her trust in health professionals will be damaged by the disclosure. The judgement might have been workable if there was the slightest sign that B had insight into A’s best interests, but she does not.

Further, the finding that A was likely to discover she had been covertly medicated failed to take account of A’s lack of reaction to undergoing puberty, the paucity of individuals who might give the game away, considering A’s isolated social situation, and the MDT’s robust contingency plan in the eventuality of inadvertent discovery. The risk of B telling A could be controlled by continuing the injunction.

The OS agrees that A should have been given more chance to take HRT voluntarily. The sequence should have been: apology, second opinion, final consideration of CM, and only then should a decision on residence have been made. Mr Karim extends this argument to a wider submission that the judge placed insufficient weight on his own extensive findings against B. He should have found that the least restrictive option was to achieve a situation in which A took her medication.

Mr Joseph O’Brien KC accepted that the central justification for removing A from home has been the administration of HRT, and that the social situation at home, though unhealthy, would not of itself justify removal. The Trust, also considers the decision premature when no party was seeking to tell A about the CM. It should have been reserved until all options had been exhausted.

For B, it is said that there was an increasing risk, appreciated by all parties, that A would find out about CM inadvertently. This challenge to the judge’s finding represents a change in the Appellants’ position.

It is submitted that the judge misdirected himself at [67] that “covert medication should be used exceptionally, for severely incapacitated persons”, and that this led him into error. At [27] he cited a 2020 judgment that had referred to the Psychiatric Bulletin from the Royal College of Psychiatrists, dated 2 January 2018, which detailed the College Statement on Covert Administration of Medicine, in which those words appeared. In fact, the Bulletin dated from 2004, pre-dating the MCA 2005. Since then, there has been guidance from NICE in 2014 and 2017 and from the CQC in November 2022, in each case containing a short reference to CM. None of that guidance suggests that covert medication should only be used for severely incapacitated persons, nor that there should be an end plan for CM before it is begun. The judge’s observation suggests that he doubted that A should have been covertly medicated in the first place.

For B it is said that the misattribution of a more recent date to the Bulletin is immaterial because the judge attached minimal weight to the guidance. It was no more than an expression of the obligation to take the least interventionist approach, as required by section 6(1) MCA 2005. The claim that the judge doubted the original decision for CM is baffling, as he had repeatedly approved it at earlier hearings.

It is said by the Appellants that the court failed to consider that A will be deprived of liberty in B’s care. The judge was wrong at [73vi] to consider that “Return home would restore A’s liberty and give her freedom to make choices about daily activities, including socialisation outside the home”, when A is likely to require constant supervision. The Trust agrees. A DOL at home was not discussed.

B acknowledges that there may be a deprivation of liberty in the community, but there is a qualitative difference between depriving A of her liberty at Placement A and her living at a home where she has wants to be.

The Appellants, supported by the Trust, assert that the court wrongly and prematurely prioritised A’s wishes and feelings over her Article 2 and 3 rights. It failed to weigh in the round the very significant medical and social risks to A in returning home. The correct and proportionate decision would have been for A to experience independent supported living with the option of no contact with B so as to promote her welfare and ensure the administration of vital medication.

The OS submits that A’s wishes and feelings are an important factor in the balancing exercise but the judge failed to undertake a full balancing exercise in respect of the competing Articles of the ECHR: 2, 3, 5 and 8. He accepted that Articles 2 and 3 were engaged, but failed to consider the nature of those rights as absolute and as imposing positive obligations on the State. Conversely, Articles 5 and 8 are qualified rights from which derogation may be permissible.

There are two aspects to these appeals: Grounds 1 and 2 concern issues of process, while the remaining grounds relate to issues of substance. Before addressing these aspects in turn, I make five 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:

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:

Having identified these matters of principle, I can now express my conclusions on the grounds of appeal.

These grounds concern the timing and fairness of the judge’s decision. The Appellants and the Trust assert that the court was wrong to make a final determination in relation to residence when neither B, nor any other party, sought a final determination of that, or any other, issue (Ground 1), and to make a final decision that was not in accordance with the relief sought by any party without giving the parties the opportunity to make oral or written submissions about the proposed outcome (Ground 2).

Although the two grounds are complementary, I start with the complaint about the making of a final order. In my view the assertion about residence is not entirely correct. The Appellants and the Trust were all seeking a final order dismissing B’s application: see paragraphs 46 and 48-49 above. It is true that B was only seeking an interim order, but she was in a weak litigation position and the judge was not constrained by her forensic stance. Even though the professional focus was understandably on the issue of HRT, it is important to remember that from A’s perspective the most important matter was her residence. Looking at the history of the litigation as a whole, in my view the issue of her return home was at large and long overdue for decision.

As to the submission that no party was seeking that the proceedings should come to an end, I have noted that proceedings should only continue when they need to. Here, the Appellants and the Trust were arguing for yet more time (a) to investigate the possibility of a SIL placement, and (b) to persuade A to take HRT voluntarily. Mr Joseph O’Brien argues that oral argument would have enabled the court to consider the views of the MDT, hear argument on DOL at home, and put the Trust and the LA into a position to persuade the court that the protective services they could provide would be inadequate for A’s protection. Mr Karim emphasised the need for B to make another apology to A and for an independent endocrinologist (yet to be identified) to be given the opportunity to change A’s mind about HRT. I do not find these submissions persuasive for the reasons given below in relation to grounds 3, 4 and 7.

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.

In my view Ground 2 raises a more substantial issue. 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.

This aspect of the appeals is more straightforward, and I will address each ground in turn.

By Ground 3 the Appellants and the Trust argue that the judge’s decision was contingent upon protective measures and that it was premature to make a decision without identifying what the risk of harm to A would be at home or consulting them about what safeguards could be put in place. These arguments are unconvincing. The type of harm that A is likely to suffer at home is well documented. The judge will have had a broad idea of the type of services that were realistically likely to be available to mitigate the harm and he had evidence about this from the social worker at paragraphs 32-48 of her statement of 8 December 2023. The court had ample information upon which to make a decision in principle, without which all progress would have been stymied. The anxiety of the LA and the Trust about A’s situation cannot deter the court from reaching its own best interests decision.

Ground 4 is that the judge failed to take into account the unanimous view of the MDT. I do not accept this. The position of the MDT was copiously referred to in the evidence and submissions. The social worker’s statement alone refers to the MDT almost fifty times and sets out its view with full clarity. The judge devoted eight paragraphs to the evidence of the two most significant members of the MDT. At [83] he acknowledged that he was acting contrary to the professional advice and was therefore taking pains to explain his reasoning. The submission that he failed to take the professional position of the MDT into account rests entirely on the fact that he did not refer to the team by name. There is no substance to this ground.

Ground 5 challenges the judge’s decision that A be told about the CM and his finding that she was likely to find out at some point. It was premature to make this decision until all other options were exhausted. I have to some extent dealt with this ground in the procedural context. As to the substance, the judge was entitled to find, after carefully assessing the evidence, that the ability to maintain CM as a secret was fragile and that controlled disclosure was a better course. 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.

Ground 6 concerns the judge’s use of guidance on CM. I agree with the submission of Mr Mike O’Brien that this submission goes nowhere. The judge was not unduly influenced by the guidance or by any misunderstanding about its date and status.

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 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.

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.

In summary, aside from the procedural issue that impacted only on the final step of the judge’s journey, I can find no fault in his overall approach. He grasped the essence of this complex and concerning case and he appreciated that A’s situation cried out for a definitive decision. Wherever she lives she will suffer harm and gain some benefit, and a move home in the face of deep professional scepticism could only take place with a firm judicial lead. The judge might have followed the professional advice, but he explained why he did not. He might have approved a trial at home (though it seems in some respects the worst of all worlds) but he did not do that either. Instead he reached his own conclusion, based on his considered assessment of A’s best interests, supported by coherent reasoning. For what it is worth, I find his analysis strongly persuasive. Once he had reached his decision, it was his task to see it through. The provision of a further day’s hearing was an appropriate mechanism.

If we had allowed the appeal, I can see no alternative to A’s entire situation being remitted to another judge. That prospect was so unsatisfactory that it led the Appellants to suggest as a fall-back that we should allow the appeals and remit the matter to the judge to hear oral submissions and to reconsider his decision. Unless the appeals are allowed, this issue does not arise, but I consider the fall-back position, though well-intentioned, would be unprincipled. It would place the judge in the impossible position of being required to reconsider a settled and carefully considered decision.

Finally, I record that when permission to appeal was granted, it was noted that this is said to be the first CM case to come before this court. The parties were therefore invited to include submissions about any general guidance that we might consider it appropriate to give. We express our grateful thanks to counsel for the Appellants and the Trust for having responded to this invitation by providing some carefully framed draft guidance. They did so with some diffidence, bearing in mind the complexity of the issue and the variability of the circumstances that may arise, and we are indeed of the clear view that this is not a case in which it is necessary or appropriate for this court to give general guidance.

For the reasons given above, I would dismiss the appeals and restore the matter to the judge to conduct the implementation hearing that he directed.

I agree.

I also agree.