A (Covert Medication: Residence), Re

The Court of Protection must select the best practical outcome realistically available, even where every option carries serious harm. It is an inquisitorial decision-maker, not a supervisory guardian, and is not confined to choosing between the parties’ proposals. Fairness nevertheless requires a proper opportunity to address outcomes not positively sought.

In long-running cases involving covert medication, the court must confront the duration of restrictions, the fragility of secrecy, the risks and management of disclosure, and the continuing medical benefit against autonomy, liberty and family life. Convention rights are balanced by their substance, not by formal precedence. An evaluative decision attracts appellate respect unless plainly wrong.

A, aged 25, lacked capacity to make decisions about her residence, care, contact and medical treatment. She had lived in a care placement for approximately five years and had received covert hormone treatment after repeatedly refusing it. The treatment had brought about puberty but was medically beneficial only if continued.

Mr Justice Poole, in [2024] EWCOP 19, declared that it was in A’s best interests to return home to her mother, cease covert medication, and be told about the medication and its benefits. The local authority and the Official Solicitor appealed, supported by the NHS Trust. They challenged the fairness and timing of the decision and the balancing of medical risks, A’s wishes, family life, autonomy and liberty.

Appeals dismissed. The matter was restored to the judge for the implementation hearing he had directed.

1. The Court of Protection is not a supervisory court or the guardian of an adult who lacks capacity. Its role is to make the decision that the person cannot make, selecting the best practical outcome realistically available. It is not limited to choosing between the parties’ positions, although its inquisitorial role remains subject to procedural fairness. The principles in N v ACCG [2017] UKSC 22 and Cases A & B (Court of Protection: Delay and Costs) [2014] EWCOP 48 were applied.
2. The judge was entitled to make a final decision in principle. The issue of residence was at large and long overdue for determination. An implementation hearing could properly follow. It would have been preferable for the judge to alert the parties that he was considering an outcome not positively sought, particularly disclosure of the covert medication. However, the issues had been live for years and the parties had extensive opportunities to present evidence and argument. The process was not unfair.
3. The judge had sufficient evidence to decide the principle of a return home without a completed protective plan. The likely harm arising from A’s relationship with her mother and the realistically available mitigating services were documented. He had taken the professional evidence and the MDT’s position into account, notwithstanding that he did not refer to the MDT by name.
4. The finding that secrecy surrounding the covert medication was fragile, and that controlled disclosure offered a better prospect of persuading A to take hormone treatment voluntarily, was evaluative and open to the judge. His use of professional guidance caused no error. Any deprivation of liberty at home did not materially alter the best-interests assessment.
5. The judge had balanced the medical consequences of stopping treatment against A’s wishes and feelings, autonomy, liberty, family and private life, and the risk of harm. The question was the substance of the rights engaged, not a formal hierarchy between absolute and qualified Convention rights. Continued removal from home could be justified only by the medical benefits of treatment, and the proposed supported-living placement was insufficiently concrete to displace the judge’s conclusion.

The appellate court found no basis for interfering with the judge’s careful evaluative decision. It considered that no general guidance on covert medication was necessary or appropriate.

• Court of Appeal (Civil Division): appeals from the Court of Protection dismissed. The implementation hearing directed by the judge was restored.
• Court of Protection: Mr Justice Poole, [2024] EWCOP 19, declared that A should return home, cease covert medication and be informed about it.