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Law Column: ‘Pressing need’ for more transparency

The Court of Protection has generated many eye-catching, shocking, and controversial headlines over the last year.  The Court is often cast in a Kafka-esque light, portrayed as murky, remote and inaccessible.

Recently reported cases have included that of an autistic man who had his healthy teeth removed to prevent him harming himself; an Italian woman who had her baby taken into care and put up for adoption in Britain; and a woman who was jailed for contempt of court without being aware that the hearing to commit her was going ahead.

The Court of Protection intervenes when it is deemed that an individual does not have capacity to make a decision concerning his or her health, finance or welfare.

The general position is that the public are not allowed to attend hearings in the Court of Protection and journalists have to apply for permission to report them; even in cases where reporting is permitted, the Court will usually set down clear restrictions on what information may be published.

Over the last few years, there has been a growing concern about the secrecy which appears to surround this Court, a Court which is making the most difficult, sensitive and life-changing decisions imaginable.

A common difficulty with the reporting of cases in the Court of Protection is that in apparently attempting to preserve the anonymity of the individuals concerned, the Court of Protection sometimes grants reporting restriction orders which extend well beyond what would be necessary to achieve that aim.

For the regional press, the situation often seems untenable when the restrictions prohibit the identification of a particular geographical area as being the home of the individual, or the name of the hospital trust, or Council, involved.

As a result, the local paper is not able to tell its readers that the case in any way relates to their local area or community.  In that situation, the editor has to decide whether to leave the readers to draw their own conclusions about the location (i.e. assume that there’s a reason why it’s been included in the paper), or not report the case at all.

There is clearly a balance to be struck between protecting the vulnerable individuals who are concerned in the case and opening this court up to the sort of public scrutiny that has long been recognised as fundamental to the operation of the criminal courts.

The good news is that the Court’s current President, Sir James Munby, has made a number of public declarations in which he has acknowledged that there’s a “pressing need” for the Court of Protection to be more transparent.  Only last week, he issued new guidance addressing the issue of publication of judgements in both the Court of Protection and Family Court (of which he is also President).

The guidance states that permission to publish should always be given “whenever the judge concludes that publication would be in the public interest” and, significantly, this should be done whether or not a request has been made.

A presumption in favour of publication is introduced in cases where “a written judgment already exists in a publishable form or the judge has already ordered that the judgment be transcribed.”  However, this presumption can be overturned when there are compelling reasons why the judgment should not be published.

In all other cases, the starting point is that permission may be given for publication of a judgment whenever a party or an accredited member of the media applies for an order permitting publication.

When a judge grants permission for a judgment to be published, the Guidance says that:

  • public authorities and expert witnesses should be named in the judgment, unless there are good reasons why not;
  • the children, family members and vulnerable adults concerned in the proceedings should not normally be named in the judgment.  Unless the judge orders otherwise, all judgments will contain an order granting anonymity to the children, vulnerable adults and their families.  Failure to comply with one of these orders will amount to a contempt of court.  This means that the onus will be on the publisher to ensure that details available in the judgment will not lead to the identification of these individuals; and
  • anonymity in the judgment should not normally extend beyond protecting the privacy of the children and adults who are the subject of the proceedings and other members of their families, unless there are good reasons to do so.

The Guidance also provides that judgments approved for publication should be published on the BAILII website as soon as possible.

Comfort can be drawn from the position set-out in the Guidance.  It envisages a state of affairs in which information about cases in the Court of Protection is made much more available for publication.  However, there is still a lot of room for judicial discretion and so we will have to wait to see how the Guidance is implemented before declaring it to be a resounding success.