Rachel Baker has recently appeared in the High Court before the Vice President of the Court of Protection the Honourable Mr Justice Hayden, in a case concerning the capacity of a young adult, “H”, living under arrangements described by Hayden J as a “profoundly restrictive regime”.
Rachel was instructed by the local authority responsible for H’s accommodation and care. The background facts of the case were that H is a transgender woman believed by an expert psychiatrist to pose a high risk of sexual harm to pre-pubescent children.
The restrictions on H’s liberty include 2:1 supervision at all times, CCTV installed in her home and hourly checks on H when she is in her bedroom. H is not allowed any unsupervised access to the internet or electronic devices.
The purpose of the hearing was to determine whether H has capacity to make decisions including about whether she should be placed under these restrictions, whether she can use the internet and with whom she can have contact.
The case had been listed as a public hearing and a number of observers attended the hearing remotely. However, due to the potential for press and public interest in the case, particularly when the issue of transgender rights can stir strong emotions, Hayden VP considered there to be a tangible risk to H’s safety and privacy if details of her identity were to become public and therefore decided that the case would be heard in private.
The judgment, available here and to be cited as A Local Authority v H [2023] EWCOP 4, therefore considers the principle of “open justice” in the Court of Protection as well as the legal tests regarding mental capacity.
Hayden VP felt it was helpful to “have the relevant law, relating to issues which arise regularly in the Court of Protection, accessible in one judgment” and the case has therefore provided an opportunity for the court to summarise these key legal principles in a single judgment which is binding on the lower courts.
