Court of Protection judge hands down ruling on provision of position statements to observer of hearing

NHS Staffordshire and Stoke-on-Trent Integrated Care Board brought the original case with AB - by his litigation friend, the Official Solicitor - Midlands Partnership University NHS Foundation Trust and AB’s relations CD and EF as respondents.

Poole J noted that AB had unfortunately died in a hospice before his judgment could be issued.

The judge said AB had made a living will, which he held to be valid and applicable, saying he had made an advance decision to refuse treatment

But before this decision could be treated as binding on those treating AB, he had to decide whether the living will was genuine and was it signed by AB under undue pressure.

Family members withdrew both challenges which left Poole J to make an order that once AB was transferred to a hospice clinically assisted nutrition and hydration would be withdrawn.

Although this completed the proceedings, Professor Celia Kitzinger sought an order directing parties to disclose their position statements to her.

Poole J said these were not all fully anonymised, although his judgment was.

He described Professor Kitzinger as “well known to the Court of Protection in that she has observed hundreds of hearings and written about many of them on a website run by the Open Justice Court of Protection Project which she co-founded in 2020”.

Professor Kitzinger said that at three previous hearings in this case she asked for position statements, that Poole J had given permission for these to be provided but not all parties complied and she sought a direction for their release.

Poole J said the Transparency Order used in family proceedings expressly referred to skeleton arguments and position statements, whereas the Family Transparency Order refers to disclosure to “reporters".

He said: "Neither Professor Kitzinger nor the other observers at the hearing on 30 June 2025 are ‘reporters’ – they are not accredited journalists nor are they legal bloggers…however, it is of note that in family proceedings held in private, position statements will be provided to reporters attending the hearing upon request (before the hearing).”

If position statements are unavailable, it can be difficult for observers to understand proceedings, he noted.

Poole J said there was no guidance on the provision of position statements to observers of Court of Protection hearings and that practice varied.

“I confess to having taken a less than rigorous approach in the past, simply indicating that I was content for position statements to be provided to observers who had a copy of the Transparency Order,” he said.

Looking more deeply at the law surrounding the question, Poole J suggested 10 points that could guide decisions.

These included that parties preparing position statements should foresee that an observer might request a copy and so should make these suitably anonymised.

PooleJ said that if an observer wants to see a party's position statement they should ask in advance of the hearing and state their reason.

When a hearing is in public and a Transparency Order has been made, a party is free to provide a position statement to an observer without requiring a court direction provided that the position statement does not include information protected by the Transparency Order and the observer is also bound by it.

If a party refuses to provide a position statement to an observer on request, they may apply to the court for a direction.

Poole J said some of those involved in the proceedings had chosen to provide position statements to Professor Kitzinger and he had to decide on those that had not, which were the board and EF.

He said: “I am persuaded that the provision to Professor Kitzinger of the position statements of all the parties, including the applicant ICB and the Fourth Respondent would advance the open justice principle.

"It would advance her understanding of the hearing and the proceedings. The fact that the proceedings eventually resolved without the need for a full hearing and without the need for submissions to be made on, for example, the issue of fraud, does not negate the conclusion that sight of the position statements advances understanding and the open justice principle.

"To understand what occurred at the hearing, an observer would need to know the initial positions of the parties prior to concessions being made.”

He said the Transparency Order and anonymity meant there was no risk to AB or family members from allowing disclosure of position statements to Professor Kitzinger or any other observer.

Mark Smulian