Court of Protection pilot scheme: an experiment in greater transparency – Paul Magrath

27 02 2016

Court of ProtectionThe last few years have seen a gradual process of opening up the Family Courts to greater public scrutiny, partly to comply better with the principle of open justice (that “justice must not only be done, but must be seen to be done”) and partly to dispel the notion that justice administered in private hearings must have something to hide and cannot be fully accountable.

First, the rules were changed to permit accredited journalists to attend cases heard in private (ie not in open court). Then, some years later, practice guidance was issued to judges at circuit level and above, directing them to permit publication of certain judgments and place them in the public domain, even where the hearing had been in private, subject to anonymising the parties and redacting other details where necessary.

Now a similar  process is happening in the Court of Protection, a specialist court which deals with health and welfare issues for persons who lack capacity to take decisions about such matters themselves. Not all cases in the Court are heard in private: those concerning serious medical treatment of someone unable to consent have always been heard in public. But the private hearings have encouraged media suggestions of secretiveness just like in the Family Courts. Practice guidance directing judges to publish their judgments has gone some way to increasing the accessibility of the court to public scrutiny.  Now a pilot scheme has been launched under which many hearings, which would normally have been heard in private, will now be heard in open court, subject to safeguards.

You can read more about transparency in the Court of Protection in a report and related materials published by researchers at Cardiff university in April 2015, summarised here; and there is an earlier post on this blog about the pilot scheme, explaining its background and purpose.

In this post I want to say a little about how it actually works in practice, based on my own experience of attending one of the designated hearings.

Attending the Court of Protection

The Court of Protection sits in a number of locations, but the main one is in a building shared with the Central Family Court in High Holborn, opposite the top of Chancery Lane.

Lists of hearings are posted on a noticeboard in the lobby, and on the Justice website.

Some hearings in the list are marked “Not open to the public” but others, which have been designated as such, are listed as “Public with reporting restrictions”. The case I attended was listed as

AM -v- UH and EO and TH 1281945401 – Where UH should live – HEARING IN PUBLIC.

The Court of Protection courts are on the fifth floor of the building, and there is a separate reception desk for them. When I got there, I found a notice stating that anyone attending a hearing must sign in first. So I told the reception desk I wanted to attend a hearing in public. I was then given a copy of the court order which had set down the case for hearing in public, identifying the parties involved with initials (actually random letters of the alphabet bearing no relation to their actual names), and which set out the reporting restrictions, together with a bold warning that anyone breaching them “may be found guilty of contempt of court and may be sent to prison, fined or have their assets seized”. I was then asked to sign a form, indicating that I had been given this order, and stating my name and address and in what capacity I was attending the hearing. (I wrote “researcher”.) The person behind me in the queue followed the same procedure. He turned out to be a reporter, from the Press Association’s team in the Royal Courts of Justice.

In the court, we sat at the back, there being no designated press bench as in other courts. As well as a barrister representing the local authority and a solicitor representing the Official Solicitor, there were a number of parties present, and the court was quite full. Before the case began, the judge asked everyone to say who they were and in what capacity they were attending. When it was my turn, I gave my name and said I was from the Transparency Project. The reporter gave his name (Brian Farmer) and said he was from the Press Association.

 It was in this respect quite unlike a public hearing in open court, when only the barristers or solicitor advocates speak, unless there are litigants in person. No one normally asks who people are in the press bench or the public gallery. So this was an immediate difference in tone. I would say it also made the hearing less formal – less adversarial, even – and therefore less intimidating for the non-lawyers.

 On the other hand, the fact that we’d been asked to sign in and accept delivery of a court order warning us of the consequences of any breach of reporting restrictions was a more formal procedure than for attending most hearings in public, and might either deter those casually interested in attending (such as tourists, who often pop into the main law courts in the Strand to see them in action) or otherwise have a slightly “chilling” effect on a lay person wishing to research or write about the hearing.

The hearing

The case concerned the care of a 67-year-old woman, blind and with symptoms of dementia, who her family and friends believed was not being properly looked after at a local authority care home. There were complaints of neglect on one side and about interference with the management of the home on the other. The woman had been moved from one home to another – six different homes in less than two years. Although nothing final was going to be resolved at this hearing, the judge allowed the woman’s son and daughter, and a friend who frequently visited her, to air some of their grievances.

It was clear they felt pretty strongly but it was also clear that their demands and complaints would be difficult to satisfy and resolve at the best of times. The hearing was directed towards arranging a “round table meeting” (mediation) chaired by the Official Solicitor, at which everyone would be able to present all their evidence and arguments. A timetable was agreed. After that, the case would return to the same judge, and if the matter had not been resolved by mediation, he would hear evidence himself and make a decision. The combination of opportunity and threat was intended to focus the parties’ (especially family members’) minds.

 What did the parties think about the fact that the hearing was (for practical purposes) in open court? I ask this because there have been reports that this Pilot Scheme had taken some parties by surprise, and that they might not have allowed their cases to proceed in the Court of Protection had they been aware that the hearing could be attended by members of the public and reported (with restrictions and anonymisation) by the press.

 Not so in this case. The fact that we had identified ourselves meant that the parties knew who I and the Press Association reporter were. Our presence did not appear to inhibit them in speaking inside the court. After the hearing was over, we were able first to speak to the lawyers and then, outside the building, we were actually approached by one of the family members. It was clear that this party was very much in favour of the case getting as public an airing as possible. He wanted his “day in court” and when people want that, they often want the publicity and (by expectation) public vindication that will bring.

I would need to attend more cases to get a sense of whether this is a common view or an exception to the rule. And I dare say the local authority or anyone from the care home, had they attended, might not have been so keen on the publicity. But it does challenge the presumption of a preference for privacy in such cases. Of course, the person who really needs the privacy is the woman who was the subject of the proceedings, who cannot look after herself, and it seems entirely right to anonymise the case as far as possible to prevent any harm to her interests.

Reporting restrictions

In terms of reporting the case, particularly for someone who is not an accredited media representative, one of the difficulties is finding out what the case is about and what exactly one can say about it. The order which you are given (and must sign for) is quite categoric about not identifying some of the parties, but it doesn’t say anything about who these parties are. The fact that the case was called “Where UH should live” indicates that UH represents the woman in the care home. Presumably the other initials in the case title referred to the other parties involved. But, significantly, the paragraph specifying which parties were not to be identified did not list AM (the applicant), which turned out to be the local authority. At the end of the hearing the PA reporter asked whether we could, therefore, name it. We could. (It turned out to be Camden London Borough Council.)

The order also states that

“the court shall give further directions as it thinks fit concerning the provision of copies of documents put before the court and the terms on which they are to be provided to any person who attends the hearing…”

This would cover things like skeleton arguments and perhaps affidavits or other documents put before the court, though none were in this case. Normally, access to such documents would be confined to accredited reporters or those who had specifically asked for them. It is interesting seeing something that provides for the court to direct its mind to the matter in any event, although I suspect in most cases it would probably need to be reminded to do so, and of course it could well decide not to permit access to such documents.

But the fact the we were given anything on paper at all is a very welcome and interesting development. In most cases where reporting restrictions apply, such as those involving children and young persons, it is simply assumed that the only people likely to publish anything will be media reporters, who will check to see what restrictions apply. Sometimes the judge will mention that there are reporting restrictions, but often that will only be at a preliminary hearing, so (particularly if the case is heard in open court) someone sitting in the public gallery might not be aware of that. Blogs and social media accounts are full of people deliberately breaching reporting restrictions on court proceedings, but there must be just as many who are simply unaware of the ambit of any restrictions that apply. Handing everyone who attends a piece of paper or putting up notices in or outside the court might seem a bit of a fiddle for overworked court staff, but it really shouldn’t be difficult to manage. So there might well be things to be learned from this pilot scheme that could be applied in other areas as well.

This post originally appeared on the Transparency Project blog and is reproduced with permission and thanks.


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