The Court of Protection was established by the Mental Capacity Act 2005 to make decisions about the care and treatment of people who lack mental capacity because of conditions like dementia, or have learning disabilities or mental health problems. These cases often encompass socially and politically sensitive issues.
The cases that the Court of Protection hears are highly personal, so there are restrictions on their reporting by the media to protect privacy. Consequently, the media frequently refer to the Court of Protection as a ‘secret court’, often lumping it together (or confusing it with) the Family Court. Yet the two courts apply different legislation and have different sets of court rules. They do, however, have some common issues arising from the tension between privacy and protection, on the one hand, and openness and accountability, on the other.
Perceptions of ‘secrecy’ in the two jurisdictions collided in spectacular fashion in the case of Alessandra Pacchieri in 2013. It was widely reported that the High Court had ordered a compulsory caesarean section at the behest of social workers in order to remove Pacchieri’s baby into the care of a local authority – reports that were quickly exposed as false. Pacchieri’s case cast a spotlight on transparency issues in the Family Court and the Court of Protection, and shortly afterwards the President of the Family Court and the Court of Protection, Sir James Munby, issued new guidance on the publication of judgments in each court (here and here).
Researchers at Cardiff University have recently published a report on transparency in the Court of Protection. This report is part of a research project funded by the Nuffield Foundation on welfare cases in the Court of Protection. The report contributes to the debate by setting out a comprehensive overview of the complex legal framework governing transparency in the Court, highlighting certain limitations and uncertainties in that framework. It includes a schedule of the cases which have been deemed ‘newsworthy’ and engaged media attention in the past ten years.
It also reports on a roundtable discussion on the topic of transparency in the Court of Protection, held in September 2014 and attended by members of the judiciary, Court of Protection lawyers, media lawyers, journalists, civil servants and other researchers, all of whom have experience of working on Court of Protection welfare cases. Roundtable participants suggested a number of improvements that could be made to the current transparency framework.
All participants at the roundtable expressed support for the principle of ‘open justice’. Media reporting on Court of Protection cases, and the publication of judgments, were important for several reasons: to enhance public understanding of the Court’s work; to protect against miscarriages of justice; and to promote public confidence in the court. Open and accessible judgments were also said to be important for access to justice for litigants in person who might not have access to law reports or legal advice. Yet whilst all participants broadly supported the principle of ‘transparency’, there was some disagreement about what this entailed in practice.
The report concluded that whilst restrictions are necessary to protect privacy, current processes are far from ideal. The report seeks to address the ways that those involved in such cases can be protected, but with the potential for issues raised within the cases to be openly discussed by the media if newsworthy. It makes a number of recommendations on how transparency can be improved upon.
The proposals include a rule change to permit the media to attend important welfare hearings such as serious medical treatment cases. At present, the media are first required to apply to attend hearings, which can be costly. By routinely allowing them to attend hearings, the report proposes a mirroring of the practice currently applied in the Family Court system. The report also recommends that the system for informing the media of important Court of Protection cases be improved and identifies a need for greater legal clarity on when parties and legal representatives can lawfully inform the media about a case.
Other recommendations included that the Court, or researchers, should explore ways to collect statistics on how effectively the transparency guidance on the publication of judgments is being complied with; how many judgments meeting the criteria for publication under the new guidance are, and are not, being published? More research is still needed on: the views of litigants about media reporting on Court of Protection cases and the publication of judgments; the users of published judgments and their information and access needs; and the effect of ‘transparency’ on the behaviour of the judiciary and other actors within the legal system.
The report is timely, as further reforms to the transparency framework in both the Family Court and the Court of Protection may be on the horizon. In August last year, Sir James Munby, the President of the Family Division, issued his consultation on ‘Transparency – the next steps’ on which responses were due by October 2014. The Transparency Project responded, and also published some other responses on our site. As far as we are aware, there have been no subsequent developments, but we cannot imagine that the President’s determination not be ‘saddled with the claims of secrecy’ have fizzled out.
The ‘next steps’ proposal only discusses the Family Court; it is not clear whether similar proposals will be developed for the Court of Protection. However, it is notable that recent rule changes in the Court of Protection appear to pave the way for pilot schemes and further transparency reforms such as potentially making court documents public and requiring judges to consider for each hearing whether it should be held in public. Further reviews of the Court of Protection Rules are pending, and transparency may be further considered then.
The legal framework in the Court of Protection has some overlapping features with the Family Court, but also many differences. An analogy is often drawn between the two courts in the media, and also by the President himself. However, several participants at the roundtable discussions argued that the two courts were different, that the issues were different, and that therefore a different approach may be required for each court. What that approach should be, is likely to be a hotly contested issue in the years to come.
A summary and the full report, Transparency in the Court of Protection: Report on a Roundtable are both available here.
The lead author of the report is Dr Lucy Series, with co-authors, Phil Fennell, Julie Doughty and Luke Clements.
This post originally appeared in The Transparency Project which aims to promote transparency in the family justice system in England and Wales.