| SPOTLIGHT |
The Court of Appeal has dismissed appeals brought by a local authority and the Official Solicitor challenging final declarations made by a Court of Protection judge that it was in a young woman’s best interests to cease to be given covert medication, and to leave her current placement to return to live with her mother.
In Re: A (Covert Medication: Residence) [2024] EWCA Civ 572 Lord Justice Peter Jackson concluded that although Mr Justice Poole did not follow the professional advice, he reached his own conclusion based on a “considered assessment” of A’s best interests, supported by “coherent reasoning”.
He said: “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.”
The case concerned A, a 25-year-old woman who lacks capacity to make decisions about her residence, care, contact and medical treatment.
The appellants, the local authority and the Official Solicitor challenged final declarations by Mr Justice Poole that it was in A’s best interests:
Outlining the background to the case, the Court of Appeal judge noted that A was brought up by her mother (‘B’) 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, A was identified by the local authority as a child in need but B “repeatedly refused” to engage with social services.
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”, Lord Justice Peter Jackson noted.
In April 2018, the local authority issued proceedings in the Court of Protection as a result of B’s “persistent” lack of co-operation with medical and social work professionals.
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”, said Lord Justice Peter Jackson.
During the first year of the proceedings, when A was at home with B, the local authority and the Trust made 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.
The Court of Appeal judge said that those efforts failed.
In April 2019 by order of HHJ Moir, A was removed from home and moved to Placement A, where 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 an assessment of the reasons for B’s response to A’s need for HRT:
“Sadly, I find that B has been so obsessed with her own wishes, views, and fears that she is being blinded to the obvious and risk-free advantages to her daughter of encouraging her to undergo the treatment and has, instead, failed to encourage her daughter to engage with the treatment or has actively dissuaded her daughter from doing so. Thus, the prospect that B will in the future support her daughter and positively encourage her to engage with the treatment must be extremely limited. Sadly, it is difficult to reach any conclusion other than B would prefer A not to “grow up” for want of a better description, that she would prefer A to remain the same, dependent upon her mother, and isolated within her mother's sphere without any outside influence or interference.”
The Court of Appeal judge noted that Judge Moir’s “reasonable prediction” that B’s negative influence on A would diminish with separation and time has been “disconfirmed by the events of the last five years”.
He said: “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.”
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.
Covert mediation began in December 2020 and has continued until the time of the present appeal.
In April 2022, B issued an application for A to be returned home. It was 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, the Hospital Trust’s endocrinologist, advised that this should continue.
In the summer of 2022, the case was allocated to Poole J following the retirement of Judge Moir.
On 15 September 2022, he delivered a closed judgment in which he reviewed the issues of A’s capacity and her best interests in relation to HRT and covert medication.
He found that she continued to lack capacity and that it continued to be in her interests to have HRT. As to covert medication, he considered it surprising that the process had not so far been discovered and he observed that its continuation was “fraught with risk”.
Poole J concluded:
“The long-term continuation of covert medication is unsustainable but its immediate cessation would not be in A’s best interests. A’s best interests are 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. This needs to be a controlled process, if possible. The reasons why the covert medication plan was authorised in 2020 were sound but the very success of the covert hormone treatment plan has created the problem of how to end it with the least harm to A.”
At the beginning of the open hearing on 20 September 2022, the judge informed B that covert medication had been administered to A and that she had achieved puberty.
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 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”, said Lord Justice Peter Jackson.
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:
After hearing evidence from Dr X, the social worker and B, Poole J handed down his judgment on 20 March 2024. He found that it was in A’s best interests:
Poole J concluded: “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.”
Analysing the judgment, Lord Justice Peter Jackson noted: “[the judge] 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.”
At the hearing on 20 March 2024, the local authority sought permission to appeal which was refused by the judge. Permission was granted by Baker LJ on 17 April 2024.
The local authority and the Official Solicitor, supported by the Trust, advanced eight grounds of appeal:
Ground 1: The court made a final determination of A’s best interests in relation to residence when neither B, nor any other party, sought a final determination of that, or any other, issue.
Ground 2: Further and in the context of Ground 1), the court finally determined all issues in a way that was not in accordance with the relief sought by any party without canvassing its proposed final disposal in circumstances where:
a) oral submissions at the end of the evidence were not possible; and
b) no party’s written submissions addressed the question of what, if any, final decisions on residence or any other issue were in A’s best interests because there was no application for final disposal of any issue.
Ground 3: The decision that state actors provided A with protective measures to protect her from harm from B after she returned to live with B was not an available option and/or was unworkable and/or had no real prospect of safeguarding A’s health or welfare.
Grounds 4, 5 and 6: The decisions that A should stop receiving covert medication and be informed that she had been covertly medicated were wrong.
Ground 7: The court failed to take into account the fact that the degree of monitoring and supervision that A will need, and that B will impose, on a return to B’s house and sole care is likely to meet the Cheshire West test so that she will be deprived of her liberty there.
Ground 8: The court wrongly, and prematurely, gave final priority to A’s wishes and feelings rather than her Art 2 and Art 3 rights.
Considering Grounds 1 and 2, Lord Justice Peter Jackson observed that even though the professional focus was “understandably” on the issue of HRT, it was important to remember that from A’s perspective, the most important matter was her residence.
He said: “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.”
He continued: “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 [covert medication] in fragile and controversial circumstances.”
On Ground 2, he noted that it will “generally be good practice” for the court to alert the parties 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.
He observed: “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 pointed 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 covert medication programme.
The Court of Appeal judge said: “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 [covert medication] 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 [covert medication] was a powerful one. Further, the judge had flagged up this issue as long ago as September 2022 and he found, in my view rightly, that the issues of residence, HRT and [covert medication] were bound up with each other.”
He continued: “Residence, HRT and [covert medication] 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.”
Turning to grounds 3-8 which challenged the substance of the judge’s decision, Lord Justice Peter Jackson said on 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.”
He added: “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.”
On ground 4, the appellants submitted that the court failed to take into account the “unanimous view” of A’s multi-disciplinary team (MDT) that it was not in her best interests to be told about [covert medication] or to seek its view on the option of A stopping taking HRT.
The Court of Appeal judge did not accept this. He said: “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 para 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.”
On ground 5, Lord Justice Peter Jackon concluded that the judge was entitled to find, after carefully assessing the evidence, that the ability to maintain covert medication as a secret was “fragile” and that controlled disclosure was a better course. He said: “That was an evaluative finding that was clearly open to him.”
He added: “[the judge] 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.”
Ground 6 concerned the judge’s use of guidance on covert medication. The Court of Appeal judge found that the judge was “not unduly influenced by the guidance or by any misunderstanding about its date and status”.
He described Ground 7 as “equally insubstantial”. He said: “The degree of Deprivation of Liberty (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 argued 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.
On this, Lord Justice Peter Jackson concluded: “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 [covert medication] 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.”
He continued: “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.
“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.”
The Court of Appeal judge dismissed the appeals and restored the matter to the judge to conduct the implementation hearing that he directed.
Lady Justice Nicola Davies and Lord Justice Underhill agreed.
Lottie Winson
