Alex RKThe Court of Appeal has dismissed the appeal of both the local authority and the Official Solicitor against the decision of Poole J in Re A (Covert Medication: Residence) [2024] EWCOP 19. This 5-year long case concerned a 25-year-old woman (‘A’) who was being covertly medicated in a care home whose mother sought her return to which all other parties were opposed. The previous judgments were reported at [2019] EWCOP 68; [2020] EWCOP 76; and [2022] EWCOP 44. In a previous closed hearing, it had been decided to be in A’s best interests to be administered hormone replacement treatment (‘HRT’) covertly. Two years later Poole J decided her mother should be informed and for contact between them to be reintroduced. In September 2022 it was decided that a plan should be prepared to transition to open medication.
A was told that she has gone through puberty and she steadfastly refused to take the medication voluntarily. Before Poole J, the issues were whether it was in her best interests to return to her mother’s, in respect of which the issue of covert medication was inextricably linked. Covert HRT had produced a significant medical benefit for A by ensuring she went through puberty, protected her against the loss of bone density and the very significantly increased risk of cardi-vascular disease. However, Poole J was troubled by the fact that the plan for covert medication had no end date in sight; she was not severely cognitively impaired; its purpose – to induce puberty – had happened; and if HRT ceased, she would likely experience menopausal symptoms.
Poole J carefully analysed the benefits and burdens of A returning to her mother’s against her continued stay. On balance, and contrary to the position advanced by the local authority, the NHS Trust and the Official Solicitor, Poole J decided it was in her best interests (i) to return home to her mother’s care; (ii) for covert medication to cease; (iii) for her to be informed that she has been covertly administered HRT and that it has been of benefit to her health and stopping it would be harmful to her health; (iv) to allow her mother to try to persuade her to take HRT voluntarily; and (v) for support to be provided to her in the community whilst she is living at home. Poole J held:
84. The assessment of best interests in this case is complex. Whatever decision is made, or if no decision is made, there will be both positive and negative consequences for A. I acknowledge the risk that my determination of A’s best interests will result in her returning home to an unhealthy relationship and will expose her to the harmful consequences of ceasing HRT. However, those risks are outweighed by the benefits of ending the deprivation of A’s liberty and the serious interference with her Art 8 rights, and of avoiding the risk of an unmanaged disclosure to her of the covert administration of HRT. The Court is enjoined to seek to achieve purposes “in a way that is less restrictive of the person’s rights and freedom of action” (MCA 2005 s1(6)). Here, severe restrictions have been imposed in order to achieve the benefit of medical treatment. Now, the continuing and remaining benefits of treatment are not sufficient to justify the continued restrictions.
Accordingly, he directed, a plan should be prepared for A’s return home and for the release of information to be carried out in stages.
The Official Solicitor and local authority appealed, supported by the NHS Trust responsible for A’s care, but opposed by her mother. The appeal was against both the substance of the decision and the fairness of the procedure by which it was reached.
In the introduction to his judgment (the sole reasoned judgment of the court), Peter Jackson LJ observed at paragraph 6 that:
[…] 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.
Having set out the factual background and the circumstances leading to the judgment of Poole J (a particular feature being that time had run out in the hearing for oral submissions to made on the course of action Poole J was proposing), Peter Jackson LJ set out five matters of principle
88. 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.
89. 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.
90. 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.
91. 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.
92. 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.
As to process, Peter Jackson LJ noted at paragraph 101 that it would have been preferable for Poole J to have alerted the parties in some fashion to his intention to take a different path to that proposed before him:
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.
Peter Jackson LJ had little hesitation in dismissing the challenges to the substance of Poole J’s decision:
110. 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.
Peter Jackson LJ also noted that, had the court allowed the appeal, there would have been no alternative to the entire situation being remitted to another judge, but that:
111. […] 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.
No doubt to the disappointment of the representatives before the court, who had prepared detailed draft guidance on covert medication following the invitation of the court upon the grant of permission to include submissions about such guidance, Peter Jackson LJ ultimately concluded that this was not a case in which it was necessary or appropriate to give such guidance.
Comment
The A case has already had wider ramifications, in the form of the closed hearing guidance issued by the former Vice-President of the Court of Protection, Hayden J. The Court of Appeal’s judgment may not have such immediate wider ramifications, but it is an important and grounding judgment about the scope of Court of Protection proceedings. Especially in an environment where it appears that there are so few effective routes of challenge to decisions by public bodies about how social and health care needs are to be made, it can be tempting for all concerned (including on occasion the court itself) to give the Court of Protection the role of guardian. As tempting as that can be, this judgment is a clear reminder that that is not the court’s function.
