‘Secrecy’ in the Court of Protection

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The Court of Protection hears cases relating to some of the most morally and politically contentious issues of our day and about some of the most excluded and silenced people in our society.  It is surely a good sign that the media, MPs and campaigners are sufficiently concerned about their plight that they take such an interest in this court’s new jurisdiction under the Mental Capacity Act 2005 (MCA).  Yet there is a difficult balance to be drawn between protecting the privacy of the individuals and families at the heart of these cases, and ensuring that the wider democratic objective of transparency in our justice system is met.

The Court of Protection is frequently described in the media as ‘secretive’, yet according to its judges this is an ‘old shibboleth’ which should be laid to rest.  Despite judicial efforts to permit greater media access and reporting, the reality is that the Court of Protection does not function like other courts, and information about its activities is still relatively limited. 

There are many arguments in favour of greater transparency in the Court of Protection.  In the most general of terms it is often said, following Jeremy Bentham, that: ‘Publicity is the very soul of justice. It is the keenest spirit to exertion and the surest of all guards against improbity.  It keeps the judge, while trying, under trial.’

It is important that the decisions of the Court of Protection judges are open to public scrutiny in order to promote faith that its rulings are just and fair, and to prompt debate and reform if it is felt that they are not.  Publicity is important for promoting wider understanding of the work of the court, for ensuring that politicians, officials and the wider public understand the kinds of issues it routinely handles.  The Court of Protection often relies upon the evidence of expert witnesses; evidence which cannot be scrutinized, debated and subjected to peer review without greater openness.  Many cases coming before the courts involve public authorities in the course of the health and welfare duties; surely their activities, particularly where they impinge upon such fundamental human rights of such vulnerable citizens, should be subjected to scrutiny?

Despite strong arguments in favour of greater transparency in the Court of Protection, it can be extremely difficult to achieve without also impinging upon the interests of the courts’ users.  In this paper, I will outline this tension in two separate debates concerning transparency in the Court of Protection: media freedoms to attend and report Court of Protection proceedings; and the routine publication of anonymised Court of Protection judgments.  I will argue that the courts have had good reason to be cautious about greater media access to hearings and litigants, but that the court could take greater steps towards transparency through introducing routine publication of anonymised judgments.

It is important that the decisions of the Court of Protection judges are open to public scrutiny in order to promote faith that its rulings are just and fair, and to prompt debate and reform if it is felt that they are not.

Media attendance and reporting restrictions in the Court of Protection
The legal basis for reporting restrictions in the Court of Protection is an amendment to s12(1)(b) Administration of Justice Act 1960 (AJA), which makes it a contempt of court to publish any information relating to proceedings sitting in private brought under the MCA. Interestingly, publication of information concerning cases heard in the Family Division of the High Court under the ‘inherent jurisdiction’rather than the MCA are not subject to such restrictions, despite a commonly held belief to the contrary.  The general rule in the Court of Protection is that hearings shall be brought in private, meaning that s12(1)(b) AJA reporting restrictions will apply.  However, r91 Court of Protection Rules 2007 permits the court to authorise the publication of information relating to private proceedings, and r92 permits the court to hold the hearing in private but to impose restrictions on the publication of any information in relation to those proceedings.

In 2009 the Court of Protection permitted journalists to attend court and report proceedings for the first time in a case relating to the world famous blind and autistic pianist Derek Paravicini.  But contrary to The Independent’s subsequent claims, this was not the creation of a ‘new right’, but merely the first time the media had chosen to exercise their pre-existing ‘right’ to attend and report Court of Protection proceedings, as laid down in the Court of Protection Rules 2007.  Since that time, The Independent reports that they have ‘won’ every application to attend Court of Protection proceedings.

However, although the rules do permit the media to attend court and to publish information relating to proceedings, the media complain that the application process is ‘cumbersome, time consuming and expensive’, and requires them to commit significant resources to the cost of an application without any guarantee of a story at the end of it.  It would be a shame if this had a chilling effect on reporting of Court of Protection proceedings, and perhaps it would be desirable to have a more lightweight media application process.  However it is unlikely the media will ever be granted the unfettered access to the court desired by some.  The overriding objective of the Court of Protection includes ensuring that the interests and position of the incapacitated adult are properly considered and that all parties are on an equal footing.  Without knowing what information the media might seek leave to report, nor how this might affect the rights and interests of the parties to a case, it is difficult to see how the court could offer journalists any ‘guarantees’ to a story in advance.

There are several respects in which the interests of court users may come into tension with the wider interests of transparency and publicity, the first of which is time and resources.  Every application the media make to attend court must be scrutinized by all the parties to a case, and late applications can lead to exasperating delays for decisions on pressing matters.  The court’s decisions to permit media attendance and reporting are usually framed in terms of a balancing exercise between the Article 8 rights (respect for private and family life) of incapacitated adults and their families, and the Article 10 rights (freedom of expression) of the media.

In London Borough of Hillingdon v Neary & Anor (Rev 2) Mr Justice Jackson commented, ‘Publicity can have a strong effect on individuals, particularly if they are not used to it, or if… they are vulnerable to anxiety and to changes in their environment.’

However, Jackson J also emphasised that there must be evidence which supported a proper factual basis for the claim that any given individual would suffer an adverse effect from publicity.  He also stressed that there was a genuine public interest in the work of the Court of Protection, and that it was not in the interests of the public in general or the individual litigants in any case for its work to be considered as secretive.  It was, he said, important that the media were able to report routine cases, that reflected the lives of ordinary people, as well as extraordinary cases like that of Derek Paravicini.

There was a genuine public interest in the work of the Court of Protection, and that it was not in the interests of the public in general or the individual litigants in any case for its work to be considered as secretive.

In W v M & Ors Mr Justice Baker found that the Article 6 rights (to a fair trial) of litigants might also be compromised if their capacity or willingness to participate in litigation were affected by the threat of media publication of identifying information, or attempts by the media to contact them.  This highly controversial case concerned whether a feeding tube should be withdrawn from a woman in a minimally conscious state to allow her to die.  In an earlier unpublished ruling the court had issued an injunction banning reporters from approaching 65 named individuals involved in her care, or approaching within 50m of four named properties.  This injunction was dubbed ‘draconian’, even ‘evil’, by campaigners emphasising the public interest in the case.  However it is worth noting that the injunction did not prohibit reporters from attending or reporting court proceedings, merely from ‘doorstepping’ or identifying a very severely disabled woman, those charged with caring for her, and her grieving family.

In a later hearing these restrictions were reduced to cover merely her family; a decision which was accepted by The Times Newspapers Ltd ­– the only media outlet who actually sent representatives to court – on hearing the evidence of the family.  The judgment described the family as being so fearful of media harassment that without such an injunction they might not have brought their case to court; when one reads the judgment in its 43,000 word entirety it is impossible not to have sympathy with their position.  It is important that vulnerable litigants have confidence in protections against intrusive media interest so that publicity does not have a chilling effect on the cases that are brought to the Court of Protection.

Nowhere in the media does it seem to be appreciated that if these cases are not brought to court, difficult decisions regarding adults who lack mental capacity do not go away. Outside of the Court of Protection, disputes and complex moral and political questions are simply resolved by other means, which may offer fewer guarantees of fairness, equality of arms or scrutiny.  Indeed, this was a growing problem prior to the introduction of the MCA.  It may well be that the media are frustrated that their access to Court of Protection cases is restricted, but they should bear in mind that if litigants are driven away from taking these decisions to the Court of Protection through fear of media harassment, such decisions will be made in places far further from view.

Publication of anonymised transcripts of Court of Protection decisions
Another means by which the decisions of the Court of Protection make their way into the public domain is the publication of written judgments, usually in anonymised form.  However, despite some improvements, the framework for publication and dissemination of these rulings still leaves much to be desired.  Many judgments are delivered ex tempore, meaning publication would incur significant transcription costs.  However, even those judgments which are delivered in written form do not routinely make their way into the public domain.  Leave to publish any judgment is left to the discretion of the individual judge, and although senior judges – including the President of the Court of Protection Sir Nicholas Wall and Lord Justice Munby – have exhorted their colleagues to routinely publish written and anonymised judgments, this plea does not seem to have met with widespread enthusiasm.

The Court of Protection itself has complained that ‘practitioners and judges have been hampered by a lack of reported case law and inconsistent reporting of judgments handed down by the Court of Protection’. It was suggested that the problem had been resolved with the creation of a dedicated Court of Protection database on BAILII in October 2010.  The BAILII Court of Protection database is certainly welcome, but for reasons which are unclear it still has remarkably few published judgments.  For example the BAILII website has only 20 published judgments for 2011, yet the Court of Protection makes thousands of decisions each year, and issues hundreds of welfare orders.  The independent website Mental Health Law Online hosts significantly more Court of Protection judgments than BAILII; it is unclear why judgments which can be published on this site are not routinely published on the other.  The 39 Essex St Court of Protection Newsletter is widely read in court and legal circles, and Jordans Publishing recently launched a new series of Court of Protection Law Reports, although the price tag may be off-putting to non-legal audiences.  Despite these efforts, however, the majority of Court of Protection decisions are not published, anonymously or otherwise.

It is often suggested by lawyers that where a case is of legal importance it will be published, however recent cases in the Court of Protection suggest this is not uniformly happening.  In A London Local Authority v JH & Anor District Judge Eldergill was referred by counsel to the unreported case Re: GC which he found ‘helpful’ in reaching his decision.  More recently, the Court of Appeal was asked in K v LBX to consider ‘an apparent conflict between the line of High Court/COP decisions which are at odds with a developing line of cases at the same level’.  One of these two apparently conflicting lines of Court of Protection case law was well publicised and well known to lawyers and health and social care professionals; it suggested that where a decision must be made about where an incapacitated adult should reside, priority should be given to placement in the family home.  However, a second line of case law, unpublished and unknown to most professionals and lawyers had also been evolving in the Court of Protection; this line of reasoning suggested that there was no such ‘starting point’ or priority for family placements.

Readers with an interest in health and social care will quickly realise the significance of such a change of direction in mental capacity case law.  In the first instance hearing of K v LBX, which is itself still unreported, Mrs Justice Theis had relied upon an unreported judgment by Roderic Wood J and her own ‘more recent experience of such cases’ to argue that there had been a ‘philosophical and practical shift’ towards placements promoting ‘greater independence’ rather than maintaining the status quo of family life. From the perspective of equality of arms, of legal certainty, of ensuring that health and social care professionals are appraised of the correct approach to take when making best interests decisions on behalf of incapacitated adults, it seems indefensible that counsel and judges should be able to refer to, and rely upon, judgments which are not in the public domain.  It also seems likely that such failures to publish written judgments of legal significance could be in violation of the UK’s obligations under Article 6 European Convention on Human Rights.

Yet for as long as publication rests on judicial discretion it will be hard to promote public faith in the inner workings of the court  

However, even ensuring that cases of legal interest are published will, in my view, be insufficient to quell concerns about transparency in Court of Protection proceedings.  As Munby LJ has written:

Releasing for publication only those judgments which are ‘reportable’ means that the public obtains a seriously skewed impression of the system. What one might call ‘routine’ judgments in ‘ordinary’ care cases and private law cases should surely also be published — all of them, unless, in the particular case, there is good reason not to.

For example the activities of public authorities in relation to incapacitated adults which bring them to the Court of Protection may not be of ‘legal’ interest, but they are of significant social and policy interest.  Requiring routine publication of anonymised judgments, including the identities of any public authorities involved in the cases, would go some way towards dispelling a view which is taking hold in some quarters that the courts, experts and public authorities are in cahoots, exercising sinister and unaccountable powers over vulnerable people and silencing those who speak out.  The reality I suspect is not that the courts are engaged in some sinister conspiracy, rather that the current haphazard system for publication is struggling amidst high and growing judicial workloads.  It was found in a pilot project to routinely publish certain rulings under the Children Act 1989 that judges struggled without additional resources allocated for transcription and anonymisation.

The difficulty may also be judicial culture.  The judges of the Court of Protection see this work day-in, day-out, and perhaps they do not understand the fascination and concern even the most routine-seeming cases may hold for the wider public.  Yet for as long as publication rests on judicial discretion it will be hard to promote public faith in the inner workings of the court amidst unverifiable, and hence uncontestable, hints and allusions that darker forces are at work in those other, unpublished, cases.

(c) Lucy Series. This is an extract from Justice Wide Open, a collection of working papers published in June 2012 as part of the ‘Open Justice in the Digital Era’ project at the Centre for Law, Justice and Journalism, City University London, http://bit.ly/openjustice.