https://www.bailii.org/ew/cases/EWCOP/2022/44.html
This case concerned closed proceedings at which the Court of Protection authorised the covert administration of hormone treatment to a young woman without the knowledge of her family. [A] was the subject of these proceedings. [B] was her mother.
This judgment is published as a single judgment but:
- Part One follows a closed hearing on 15 September 2022, to which [B] was not a party, on the Trust’s application in relation to the covert medication of [A].
- Part Two follows an open hearing involving all parties on 20-22 September 2022.
[A] is a 23-year-old woman, soon to be 24, who has been found to lack capacity to make decisions about her residence, care, contact with others, and her medical treatment for epilepsy, primary ovarian failure, and vitamin D deficiency. Until 2019 [A] lived with her mother and up until this time [A]’s primary ovarian failure had not been referred to or investigated by healthcare professionals and remained untreated. Consequently, [A] at the age of 20 years and 8 months had not undergone puberty.
Mr Justice Poole summed up the case detailing how in unpublished hearings in 2019 and 2020 HHJ Moir had made orders to remove [A] from her mother’s care against the wishes of both of them, and then in a closed hearing approved the covert medication of [A] who was then residing in Placement A and only having indirect, telephone contact with her mother.
The closed hearing then determined:
- That [A] had not regained capacity in respect of the relevant issues.
- That it was still in [A]’s best interests to receive hormone treatment for her primary ovarian failure.
- That it was in [A]’s immediate best interests not to cease covertly administering treatment but this was ultimately not sustainable. [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 likely to cause least harm.
- That [B] should be informed of the past and ongoing covert administration of medication as balancing all the relevant factors the continued use of closed proceedings could no longer be justified. The balance of rights and [A]’s best interests now weighed in favour of openness with [B]. Poole J therefore stated he would make [B] aware of the closed hearings at the commencement of the open hearing.
- That consideration would be given to removing the Reporting Restrictions Order would be discussed in the open hearing.
In the open hearing Poole J informed [B] and her representatives of the closed hearings and the use of covert medication. Having then been given time to digest this [B] told the court that she was pleased that [A] had gone through puberty, that she would like to encourage [A] to take the maintenance hormone treatment by speaking to her in person and that she still wanted [A] to return home. On the second day of the hearing, the court was told that [B] had reflected further and no longer wished to pursue her application for a change of residence at that hearing and the application was adjourned.
However, [B] did seek extended contact and proposed a medication plan which would involve her speaking directly to [A] to encourage her to take the hormone treatment. She proposed that if [A] began taking the treatment she could then return home. Poole J told her there could be no question of [A] being told that if she took the hormone medication, she could return home. No such promise could be made to her as the question of residence was separate from that of medication or covert medication and other parties might yet oppose [A]’s return home even if she began voluntarily to take her medication.
[B] was allowed extended contact with [A] but considering the most obvious route by which [A] might learn of the use of covert medication, given past actions, would be through contact with [B], Poole J made injunctive orders against [B] to prevent her communicating any matters to [A] which might cause [A] to discover that she has been covertly medicated.
Taking that into account and wider issues of transparency and human rights Poole J decided to also remove the reporting restriction order and allow publication of the hearing. One matter of concern for the Judge in considering this was that due to the open and closed proceedings running in parallel, a blogger for the Open Justice Project had inadvertently misled their readers by commenting on information from the open hearing without knowledge of other information in the closed hearing, meaning the view given was incorrect. The Open Justice Project subsequently published this statement on the matter.
Reference was made in this case to DJ Bellamy in AG v BMBC [2016] EWCOP 37AG which sets out guidance in relation to covert medication decisions in the context of standard authorisations. Click here for the CASCAIDr insight into that case.
CASCAIDr Comment: This is clearly a ground-breaking and difficult case, complicated by the open and closed hearings running in parallel. Covert medication of any person represents a significant interference with their human rights and here the court has had to consider this in the context of the best interests of somebody deemed to be lacking capacity and subject to undue negative influence from her own mother. Poole J reflects on the earlier hearings conducted and says “it is not my role to conduct a forensic post-mortem into the previous decisions of HHJ Moir, but it is evident that great care was taken over the decision-making.”
Prioritising a least interventionist or restrictive approach, what the judge does here is to start to build the exit strategy from both the covert medicating and the closed hearing. The case carefully considers the wider impact of this, acknowledging that if the use of covert medication is also a barrier to options for residence and contact then the covert feature should be removed as soon as it can possibly be achieved, without creating an unacceptable risk of harm to [A].
The use of a closed hearing is in itself always going to be controversial but in running alongside the open hearing it creates not just a point of debate around transparency but a situation where a whole group of people as parties to proceedings are not in possession of the full picture. This is subsequently demonstrated by the issue arising with the Open Justice blogger, through no fault of their own, publishing an incorrect view of the situation. It could be argued that reporting restrictions on the open hearing might have been a sensible preventative measure but equally this would have raised questions around necessity that would have been difficult to address.
Although we would not comment on whether this approach was right or wrong, it’s difficult not to feel some sympathy with the mother who believed she was engaged in a process making an application around the residency of her daughter but doing this on a misconceived basis. Due to the circumstances playing out in the closed hearing her application was never going to be successful but she was completely unaware of this. On discovering what was actually happening she then ceased her application. However, her involvement and presentation was a key reason the approach taken was regarded as required in the first place…