Inside a secret world

The new Court of Protection was set up in 2007 to take important decisions for those who lack the capacity to do so for themselves. These issues include where the patient should live, who should manage their finances and what medical treatment they should receive. Prior to 2007 the Court of Protection was part of the Office of the Public Guardian but these are now two separate bodies. It was felt that more clarity was needed concerning day to day decision-making for the most vulnerable members of our society. These decisions are of paramount importance to the patient and can be of the most private nature. Although Court of Protection cases are normally heard in private some recent cases have raised the question of publicising them.

THE COURT OF PROTECTION RULES 2007

When are the hearings heard in public?

• Rule 90(1) provides the general rule that a hearing is to be held in private
• Rule 90(3)(a) allows the court to authorise any person, or class of persons, to attend the hearing or a part of it
• Rule 91(3) allows the court to impose restrictions on publication of information
• Rule 92 allows the court to order a hearing to be held in public
• Rule 93 provides that an order under rr 90, 91 or 92 may only be made where there is good reason

The Case Law – recent landmark decisions:

(1) Journalists attend hearing and make representations about reporting

The first case in which rr 90 to 93 of the Court of Protection Rules were considered was A (by his litigation friend the Official Solicitor) v Independent News and Media Ltd, Associated Newspapers Ltd, Guardian News and Media Ltd, Times Newspaper Ltd, Telegraph Media Group Ltd and the Press Association [2010] EWCA Civ 343. A was an adult suffering from blindness, a learning disability and autism. Nevertheless he had an exceptional talent as a pianist, and had become very famous. His life attracted wide media interest and had even been the subject of a published biography.

The Court of Protection was asked to consider applications by A’s mother and sister to become his welfare and financial deputies.

The court found that, where the “good reason” element is present, a balancing exercise should be carried out between the media’s right to freedom of expression (under art 10 of the European Convention on Human Rights) and the patient’s right to a private life (under art 8). The Court of Appeal upheld Hedley J’s decision to allow designated journalists to attend the proceedings, and for them to make submissions at the end of the hearing as to what they wish to report.

Undoubtedly A’s case was exceptional, and the amount of information already in the public domain was an important factor in allowing the reporting. The fact that the court would hear submissions at the end of the hearing, as to what should or should not be published, provided certain safeguards for the patient. This is vital in cases where particularly sensitive information, which is not already within the public domain, is revealed unexpectedly during the hearing.

Shortly after the decision in A, the Court of Protection, and later the Court of Appeal were to consider the issue of access by the press again in P v independent print ltd, the council, the PCT and AH. The press had sought permission to attend proceedings concerning the care of a young man with severe epilepsy. Due to an administrative error the press application had not properly been served on the parties. The application by the press was heard one week before the final hearing. Permission was granted for attendance by designated journalists and the Official Solicitor appealed. The appeal was rejected on the basis that P was adequately protected by the safeguards which had been put in place for protecting his privacy, since he would not be identified and the parties would have the opportunity of making representations concerning any information that should not be published.

(2) Journalists allowed to name parties to the proceedings on the basis that the case is already in public domain

Hillingdon London Borough Council v Neary [2011] EWHC 1377 (COP), concerned the Deprivation of Liberty Safeguards (or DOLS), brought in by the Mental Health Act 2007, which amended the Mental Capacity Act 2005. The changes were brought in to remedy what had become known as the “Bournewood Gap”, following the decision of the European Court of Human Rights in HL v United Kingdom (Application 45508/99) (2004) 40 EHRR 761, which refers to cases where patients are deprived of their liberty within a care home or hospital, but are not detained under any of the provisions of the Mental health Act. The DOLS aim to protect patients who lack capacity and are deprived of their liberty. The deprivation of liberty must be necessary and in the best interests of the patient.

Steven Neary was a young man with a severe learning disability and autistic spectrum disorder who lived with his father, Mark Neary. In December 2009 Mr Neary became unwell and asked for Steven to be placed in respite care for a few days. Steven was not returned to his father’s care until an interim decision of the Court of Protection in December 2010. The court was asked to consider whether the local authority had lawfully deprived Steven of his liberty during his placement. As part of his efforts, Mark Neary began a Facebook campaign to have his son returned. Steven’s story was reported widely by the local press, the BBC and Private Eye.

In February 2011 Peter Jackson J considered an application for permission for designated journalists from five media organisations to attend the proceedings.

The court was asked to decide whether there was a “good reason” to grant such permission. The press argued that it was strongly in the public interest for the work of the Court of Protection to be reported, particularly because of the nature of the allegations in the case. As with the above case, a lot of information was already in the public domain.

The press also applied for permission to name the parties at an early stage, which would make their reporting more vivid. This is an issue that has not arisen before within the Court of Protection. The Official Solicitor opposed this and asked for the application to be considered at the end of the final hearing.

Peter Jackson J noted that “people should not routinely have their lives exposed to the public gaze just because their affairs are before the court as a result of their incapacity.” Publicity can have a strong effect on vulnerable individuals and the risks should be assessed. On the other hand, there is a genuine public interest in the court’s work being understood by the general public.

The court found that on balance, it was appropriate for designated journalists to attend the hearing, and that the parties could be named. The names were already in the public domain and proceedings would be “stultified” should that be withheld. No distress had been caused to Steven by the reporting so far.

(3) Not in the public domain: should the names of family members and care staff be published?

W (by her litigation friend, B) v M (by her litigation friend, the Official Solicitor) [2011] EWHC 1197 (COP), concerned a patient who had suffered severe brain damage. She had been in a “minimally conscious state” for many years and the family were seeking declarations from the Court of Protection that it was in her best interests for treatment to be discontinued. The court had directed at a preliminary hearing in November 2010 that the proceedings should be heard in open court.

It was then open to the parties to apply for an injunction preventing the publication of the names of the family members and care staff. The names in this case were not in the public domain. As a serious medical treatment case, a very large number of staff was involved in her care. The family and the Official Solicitor applied for an order preventing the press from contacting a total of 65 individuals involved in M’s care, many of whom were not previously known to the press. This order was aimed at reducing the risk that M’s identity could be revealed through the identity of her carers. A further hearing was listed in order to determine this issue but the parties were able to agree most of the issues surrounding the reporting. Baker J considered the same balancing exercise between arts 8 and 10 of the Convention and referred to the arguments in Neary regarding the public’s understanding of the work of the Court of Protection. He also stated that art 6 can be engaged if publication by the media would affect the capacity or willingness of a party to participate in the litigation.

The list of 65 individuals was cut down to include only M’s family, the parties, witnesses and her current care team. This was found to be sufficient in order to protect M, while enabling the press to report on the issues, the evidence and the arguments.

A move towards more transparency?

The Court of Protection is still a little known jurisdiction and has been accused by the press of being overly secretive. They no doubt would like to see the Court of Protection follow the lead of the family courts, which the press have been entitled to attend since 2009. The nature of the decisions that the Court of Protection takes means that proceedings must be private in order to protect the vulnerable individuals concerned. It is important that both the court, and the local authorities involved are held to account. For the work of the Court of Protection to be better known – as a result of the reporting of these three cases – must be a positive step forward. The interests of the individual concerned must however be of paramount consideration. There is no mysteriousness attached to this secrecy as the court is simply fulfilling its duties to the patient.

This article first appeared in Counsel Magazine

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.