Re EM

This case concerns a 74-year-old man (“EM”) who was unfortunately diagnosed with malignant melanoma in October 2021 and brain metastases in April 2022. By an application dated 1 July 2022, NHS Coventry and Warwickshire Integrated Care Board (“the ICB”) applied for an order to remove EM from his home to an acute hospital setting (University Hospital Coventry and Warwickshire) because of serious concerns about the safety of his environment and his refusal of care. Those concerns were initially raised by Coventry and Warwickshire Partnership NHS Trust (“the Trust”), which has also participated in this application.

At an urgent out of hours hearing on 1 July 2022 before Keehan J, it was declared on an interim basis that there was reason to believe that EM lacks capacity to conduct these proceedings and make decisions about his medical treatment, care and residence. It was also ordered on an interim basis that it was in EM’s best interests: (i) to be taken from his house to University Hospital, Coventry and Warwickshire; (ii) for force to be used to gain access to his house if necessary; (iii) to stay at the hospital until further order of this court and to be prevented from leaving or self-discharging from hospital should he seek to do so; and (iv) to receive care there according to the clinical judgment of staff. EM was not represented, nor did he participate by any other means, at that hearing.

A return date was listed for 7 July 2022. At that hearing, I was asked to make an order declaring that it was in EM’s best interests to be further moved, this time to a nursing home, on the basis that EM was fit for discharge and a nursing home would be preferable to remaining in a ward in an acute hospital. While I granted that order, I required some convincing to do so in circumstances where I was being asked to order a second move for EM in the space of a week, again without any representation of EM. There was no “participation” by EM in these highly intrusive proceedings. No direction to that end had been made under r1.2(2) of the Court of Protection Rules 2017 (“COPR”). There was the following written evidence about his wishes and feelings viz:

a statement from the Palliative Care Registrar dated 1 July 2022 about EM’s home circumstances, his wish to stay at home and his reluctance to accept care;

a letter from the Palliative Care Consultant dated 6 July 2022 relating to EM’s presentation in hospital and his capacity and wish to return home; and

an urgent authorisation by a clinical sister dated 4 July 2022 recording that EM wanted to leave the hospital and thought he could look after himself.

During the hearing, I indicated to Mr Lawson that I was minded to give a short judgment on the minimum degree of participation that must be afforded to an individual such as EM on an application which asks the court to authorise his deprivation of liberty. Obviously, such an application is extremely serious and directly engages Article 5 of the European Convention on Human Rights (“ECHR”). I also observed, as regards the transparency order made by Keehan J, that there may be an issue to be grappled with as to whether such an order is technically sound.

This is my judgment.

A core principle of the Mental Capacity Act 2005 (“MCA 2005”) is that a decision made on behalf of an individual who lacks the mental capacity to make that decision (known for the purposes of the MCA 2005 and the COPR as “P” (Footnote: ¹)) must be taken in his (Footnote: ²) best interests (s. 1(5) MCA 2005). In conducting that best interests analysis, s. 4 MCA 2005 places on a statutory footing the imperative necessity of ensuring that the voice of P is carefully listened to. To that end, the person conducting the best interests analysis must take the following steps:

When an application is brought before the Court of Protection, the court becomes the relevant decision-maker for P and conducts the ultimate best interests analysis on those matters within the four corners of that application. Consistently with s. 4(4), the court must therefore promote the participation of P “as fully as possible in any act done for him and any decision affecting him”. It must also be provided with information, insofar as reasonably ascertainable, about those matters identified in Section 4(6).

Rule 1.2 COPR (headed “Participation of P”) provides the primary procedural mechanism by which the participation imperative in s. 4(4) MCA 2005 is implemented, stating that:

Rule 1.2 is supplemented by PD 1A on “Participation of P”, which begins by reciting “the importance of ensuring that P takes an appropriate part in the proceedings and the court is properly informed about P…” (para 1) before noting as relevant that:

In considering how P’s participation is to be facilitated in any given case, the court will therefore consider whether to join P as a party and to appoint a litigation friend to act for him or, alternatively, to appoint a “Rule 1.2 representative”. This in turn requires consideration of Part 17 COPR.

For litigation friends, the rules in Part 17 draw a distinction between ‘P’ and a ‘protected party’. (Footnote: ³) For example, a litigation friend can be appointed without a court order for a protected party, but by virtue of r.17.3 the appointment of a litigation friend for P must be by court order in accordance with r.17.4. This provides that:

As regards the appointment of Rule 1.2 representatives, r. 17.9 provides that:

There is a body of case law emphasising the importance of giving careful consideration to, and making appropriate directions for, the participation of P where an application is made to deprive him of his liberty. A significant proportion of that case law arises in the context of the fall-out from Cheshire West and Chester Council v P and Another [2014] UKSC 19 and the influx of applications to the Court of Protection which followed. While such case law pre-dates the COPR entering into force, it remains directly relevant when considering what is required to avoid a breach of the Article 5 ECHR rights of P where a decision is taken authorising a deprivation of his liberty.

In Re X [2014] EWCOP 25, when seeking to formulate principles for a streamlined procedure for the authorisation of deprivations of liberty, the then President of the Court of Protection, Sir James Munby, inter aliaopined that:

A further judgment was subsequently handed down by the President, namely Re X (No2) [2014] EWCOP 37, in which he supplemented his analysis in Re X on the participation of P, though remaining of the view that it was not necessary for P to always be joined as a party to proceedings.

On appeal, the Court of Appeal ([2015] EWCA Civ 599) concluded that it had no jurisdiction to entertain the appeal, as the President did not have jurisdiction to determine the issues in question at first instance. Two members of the court did, however, issue extensive obiter dicta that the President erred in determining that P did notneed to be joined as a party to proceedings where he was to be deprived of his liberty by the order being sought in those proceedings. Black LJ concluded that Article 5 ECHR required the following:

Moore-Bick LJ stated:

In The Health Service Executive of Ireland v CNWL [2015] EWOP 48, Baker J considered the question of whether, following the decision of the Court of Appeal in Re X and the entry into force of Rule 3A of the Court of Protection Rules on 1 July 2015, “an adult who is the subject of an application under Schedule 3 to the Mental Capacity Act 2005 to recognise and enforce an order of a foreign court that deprives the adult of his or her liberty [should] be joined as a party to the application”: [1]). Baker J noted that the Court of Appeal’s remarks “were (at best) obiter dicta or (possibly) merely dicta”, but “…I consider that I must treat the dicta as the strongest possible indication of how the Court of Appeal would rule on the question before it, in the event that the issue returns to that Court as part of a legitimate appellate process”: [14]. Baker J, importantly, stated:

Baker J opined that “very urgent cases” might require a slightly different approach to representation for P, albeit only on an interim basis. He stated:

Further important judgments on how P’s participation was practically to be secured followed, including the decisions of Charles J in Re NRA [2015] EWCOP 59, Re JM and Others [2016] EWCOP 15 and Re KT and Others [2018] EWCOP 1, although these focus on the practical mechanisms for securing participation at that time.

Throughout these judgments, rules and practice directions runs a golden thread pronouncing that the parties and the court must ensure that the participation of P is given careful consideration and promoted as far as possible. While the exigencies of a given situation may dictate the making of interim orders in the absence of representation for P, this power is to be exercised with especial caution. The court must review the “completeness” of the information transmitted to it with “a healthy scepticism”, since such information will be provided by those seeking authorisation for P’s deprivation of liberty, and therefore comes with the risk of confirmatory bias.

The arrival in 2017 of r. 1.2 of the COPR does not water down the force of this case law. The existence of a power to appoint an informal representative (r.1.2(2)(c)), or to allow P to address the court ( r.1.2(2)(d)), or to do nothing because P’s interests and position are ‘properly secured’ (r.1.2(2)(e)), does not signify in the slightest that such measures would be appropriate where a court is considering the extremely serious step of depriving P of his liberty. Such powers may be, and probably will be, appropriate where a lesser measure (such as how money is to be spent) is the subject matter of the application. But there is nothing in that rule, or in the practice direction, that suggests that anything short of party status (or appointment of an accredited legal representative) can be considered in a deprivation of liberty application. The case law establishes the standards where Article 5 is in play and nothing in the rules attenuates those standards.

The rules and authorities cited above emphasise the importance of P’s voice being heard on any application which seeks to deprive him of his liberty. Yet on two separate occasions within the space of a week, the court was asked to make significant decisions concerning the health and welfare of EM without him being represented and with virtually no participation by him.

On the first occasion, the order made by Keehan J on 1 July 2022 authorising EM’s first move (from home to hospital) contained an interim declaration (Footnote: ⁵) that there was “reason to believe that [EM] lacks capacity to conduct these proceedings…”. It also recited that the “the Official Solicitor ha[d] been contacted but [is] unable to provide representation for this application at this time”. The order did not:

Provide any detail about the approach made to the Official Solicitor, including why that approach was unsuccessful (e.g. because security for her costs could not be provided or that she had not been formally invited to act as litigation friend);

Beyond the unsuccessful approach to the Official Solicitor, identify whether EM’s participation was further considered by the court and the parties before the order was made (e.g. by approaching an Accredited Legal Representative and seeking his consent to be put forward to the court for appointment, or by identifying EM’s wishes and feelings in respect of the proposed move); or

Identify how EM’s participation would be addressed moving forward, such as by formally inviting the Official Solicitor to act as litigation friend for EM or making some other direction consistent with the duty in r. 1.2 COPR.

The (telephone) hearing before Mr Justice Keehan was attended by EM’s Palliative Care Registrar. She provided a witness statement dated 1 July 2022 and gave some oral evidence. I am informed, though this is not apparent from the face of the resulting order, that the hearing was also attended by a nurse and by his general practitioner, and that two of EM’s children attended and spoke about his wishes and feelings. Having read the witness statement of the Palliative Care Registrar I can understand why the order was made. It set out the significant risks to EM were he to remain in his own home even for a short period of time. I consider, however, that while EM’s voice was heard in the sense that his wishes and feelings were conveyed to the court he was, as I have stated above, not facilitated to participate meaningfully in the process in the manner envisaged by r1.2 COPR. Moreover, how that deficiency might be remedied for future hearings was not addressed. Of course, I make no criticism of my colleague who was dealing with an emergency out-of-hours application over the telephone. I accept that the applicant did explain that the exigencies of the situation meant that the application had to be made ex parte and that EM’s representation could not be facilitated. But the resulting order did not explain how that would be secured for the next hearing.

On the second occasion, a week later, I was asked to authorise a further move for EM. Again, there was no representation for EM. Mr Lawson’s position statement stated that:

At the hearing, it was confirmed by Mr Lawson that family members had been asked if they would be willing and able to take on the role of litigation friend. They were not. The position statement also confirmed that attempts had been made to secure an advocacy service for EM for this hearing but were unsuccessful. The averment that the Official Solicitor “has not yet accepted the case” was perhaps not perfectly expressed as she had never been formally invited to act as litigation friend by the court.

The Official Solicitor’s well-known Practice Note on “appointment as litigation friend in personal welfare proceedings in the Court of Protection (including serious medical treatment cases) and appointment as advocate to the court” dated 3 February 2021 (Footnote: ⁶), sets out her acceptance criteria including the need to be formally invited to act as litigation friend in each case.

Despite the continued absence of representation for EM, I was persuaded that it was appropriate to make the order. I was satisfied that this was a “very urgent case” where it would be appropriate to make a further interim order notwithstanding the lack of representation for him, whilst making directions to secure his participation moving forward. I note that there was had been an attempt to ascertain EM’s wishes and feelings for the hearing. A witness statement by the Director of Nursing and Clinical Transformation at the ICB stated that:

Section 4 MCA 2005, the Rules and Practice Directions, and the case law all reflect the critical importance of ensuring that P’s participation in proceedings is properly considered and promoted in any application before the Court of Protection. Moreover, the case law mandates that this will, in cases concerning an individual’s deprivation of liberty such as the present, almost invariably require P’s joinder and the appointment of a litigation friend. I agree with the statement of Baker J in CNWL that it may be acceptable in “very urgent cases” to make interim orders before representation for P can be secured, although this will require the court when exercising such a power to consider the circumstances of the case very carefully indeed. Such scrutiny will include considering whether the decision can be deferred until representation can be secured, or whether P’s participation can be secured in any other way on an interim basis. The court must also ensure it makes appropriate directions to secure P’s participation moving forward.

The fundamental rule is this:

Subject to the exception in (2), where an application is made which seeks the deprivation of P’s liberty, P must be joined as a party to the proceedings and a litigation friend (or an accredited legal representative) must be appointed to act for P.

The exception referred to in (1) is where an interim order is very urgently needed and there is just not enough time to secure P’s representation before the hearing. But at the hearing P’s representation at future hearings must be enabled.

In the field of public law applications under Part IV of the Children Act 1989, a guardian for the subject children is invariably appointed by the court under s. 41 of that Act to represent them and to safeguard their interests. Sometimes it will not have been possible for the appointment to have taken effect by the time an emergency application is heard. But the representation of the child is always at the forefront of the minds of all participants and the court. In my opinion it would be as well if a similar mentality was present in proceedings in the Court of Protection involving the deprivation of liberty for P.

I wish also briefly to address two further matters which have arisen in this case namely (i) the anonymisation of orders; and (ii) the technical correctness of the standard form Transparency Order.

Almost a decade ago, in the case of J Council v GU and Others [2012] EWCOP 3531, I deprecated the practice of anonymising documents (other than reported judgments) in the following terms:

Similar sentiments were expressed by Munby LJ in HM (An Adult) [2010] EWHC 1579 (Fam), where he referred to his appearance as counsel before Sir Stephen Brown P in Re G (Adult Patient: Publicity) [1995] 2 FLR 528 and recounted:

No-one has paid any attention to these remonstrations and the practice of anonymisation of orders has continued unabated. So, in this case I was presented with a draft order within which P was anonymised throughout. While this was not quite the ‘Alphabet Soup’ which has remained on the menu in many cases (where the court is faced with multiple anonymised persons, public bodies and sometimes even the clinicians) I was reminded of my earlier judgment in GU.

I requested that the perfected order should remove the anonymisation in order to restore EM’s identity. I then amended the draft order to make clear on its face that there was a transparency order in force prohibiting the identities of the anonymised parties from being published or otherwise disclosed, and reminding readers that a breach of the transparency order would be a contempt of court.

Since my judgment in GU, the COPR have entered into force. The new rules do not cause me to change my view, and I remain mystified from where this practice of anonymising orders derives.

It is a terrible practice. I have struggled to imagine the impact on a person, particularly someone who is close to the line between capacity and incapacity, of reading a formal order which rules his life profoundly, in which his identity is stripped away and he is simply reduced to initials. It would surely be utterly demoralising, and perceived as patronising and insulting. I cannot identify any justification for this practice and I reiterate my comments in GU that it should not continue. For the avoidance of doubt, my comments do not extend to public judgments, such as this. P will certainly be anonymised in this judgment.

By the time this application came before me, a transparency order in broadly standard terms had been made by Keehan J also on 1 July 2022. I have reviewed the issue of transparency in judgments in the Family Court (most recently see Gallagher v Gallagher (No 1: Reporting Restrictions) [2022] EWFC 52). In that judgment I made it clear that I was not intending to give any further judgments on the issue of transparency in financial remedy proceedings, and I am not doing so here (even by analogy).

However, when considering the transparency order made in this case on 1 July 2022 I was concerned to note that it may be technically unsound for two separate reasons namely (i) the order was made in the absence of a Re S-type balancing exercise, weighing the Article 8 ECHR rights of EM with the Article 10 ECHR rights of the public at large, exercised via the press; and (ii) notice of the intention to seek the order had not been given to the press pursuant to s12(2) HRA 1998.

I now set out my concerns, very briefly, as follows:

Rule 4.1(1) of the COPR provides that the “general rule is that a hearing is to be held in private”. The rest of Rule 4.1 says nothing about what can be reported about such a hearing. It prevents a journalist attending the hearing, but its terms do not prevent any party talking to a journalist or that journalist subsequently writing a report.

Section 12 of the Administration of Justice Act 1960 imposes a blanket ban on reporting proceedings brought under the Mental Capacity Act 2005, but r.4.2 COPR and Practice Direction 4A allow, for the purpose of the law of contempt, certain disclosures to be made.

Rule 4.3(1) and (2) COPR supplies the court’s power to order that a hearing be held in public and, consequentially to that order, to impose reporting restrictions.

Rule 4.3(3) provides that:

Practice Direction 4C has been made under r4.3(3), and provides that:

The emphasised passages in r. 4.3(3) and PD4C, paras 2.1 and 2.3, provide for a standard order to be made almost automatically: i.e. without any enquiry whether such an order is appropriate on the facts of a given case. That such an enquiry is necessary flows from the fact that the transparency order is undoubtedly a form of reporting restrictions order.

Reporting restriction orders can only be made following a court conducting the ‘ultimate balancing exercise’ between Article 8 and Article 10 ECHR rights as described by Lord Steyn in Re S (a child) [2004] UKHL 47; [2005] 1 AC 593 as follows:

There is no sidenote in the standard order template saying that a Re S balancing exercise must be undertaken, such as to prompt the judge to turn his or her mind to that exercise. Nor was there any statement in the specific order of Keehan J dated 1 July 2022 that this exercise had been actually undertaken.

Save where there are compelling reasons why the press should not be notified, a reporting restriction order can only be made after all practical steps have been taken to give the press notice of the intention to seek such an order. But there is no provision to this end in r.4 COPR or PD4C. Such notification is required pursuant to s12 HRA 1998, which provides that:

There is no rubric or sidenote in the standard order template saying that the press must be notified prior to the order being made, nor is there any statement that this occurred in the order of Keehan J dated 1 July 2022.

Plainly, on 1 July 2022 the media were not notified that a reporting restriction order was being considered. It is equally clear that a Re S balancing exercise undertaken was not undertaken. Had these steps been taken the order would have said so on its face. It is, however, a standard practice, condoned by r.4 COPR and PD4C, not to take these steps. That being so, I respectfully suggest that the correctness (I hesitate to use the word lawfulness) of this standard practice is reviewed by the Rule Committee with input from all relevant stakeholders.

One possible way of resolving the problem might be to leave the proceedings to be heard “in private” but to make a standard order at the beginning of the case which relaxes the strictures of section 12 of the 1960 Act by permitting the press and legal bloggers to attend the hearings and allowing them (and the parties) to report the proceedings provided that they do not identify P directly or indirectly (see Norfolk County Council v Webster & Ors [2006] EWHC 2733 (Fam) where an equivalent order was made). In my opinion such a permissive order would not be a reporting restriction order, and therefore would not trigger the requirement to undertake a Re S balancing exercise in every case. Nor would such an order spark the requirement to notify the media of the intention to seek the order under s. 12(2) of the HRA 1998.

I recognise, however, that in Webster at [77] Munby J thought that such a permissive order did trigger a requirement to undertake a balancing exercise. Further, at [121] he considered that an order which permitted the press to attend the hearing would mean that the proceedings were not “in private”. If that were so then it would follow that the permissive order would certainly be characterised as a reporting restriction order, which would bring into play s. 12(2).

I leave it to others to determine if those views are correct.

The hearing before me took place on 7 July 2022. On 14 July 2022, after the writing of this judgment had been largely completed, I was informed that EM had sadly died the previous day. I passed on my condolences to his children then, and I repeat them in this judgment.

The proceedings technically abated on the death of EM, and following his death there is no direct benefit to his children in any further steps which could be taken.

I have considered in such circumstances whether I should hand down this judgment. I have decided that I should do so, as I consider that my observations on the three specific matters of participation, anonymity and the correctness of the standard transparency order should see the light of day.