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Law Column: New year, new transparency in Court of Protection

footansteylogonewAs we rang in the New Year, we also welcomed the launch of a pilot scheme in the Court of Protection which will see the press and public afforded greater access to hearings previously held in the strictest of confidence.

The Court of Protection, established in 2007 pursuant to the Mental Capacity Act 2005 handles cases that involve individuals who lack the necessary mental or physical capacity to make their own decisions in relation to medical and financial matters together with issues concerning their general welfare. The Court is notorious for the shocking cases it hears that often generate eye-catching and controversial headlines.

Such cases are not as frequently covered by the regional press as by the nationals, due to the draconian reporting restrictions almost always imposed that prevent reporting of matters such as the identification of a local area as being the home of the person involved, or the name of the Council or NHS Trust concerned.

Such restrictions have, historically, rendered the position of the regional press untenable as they are simply not able to highlight the vital local connection that makes the story relevant to their patch.

This situation has led to growing concern over the last few years about the seemingly secretive way that the Court of Protection operates, particularly in light of the gravity of the decisions it makes on a daily basis.

Currently, the starting position in relation to Court of Protection hearings is that the public are not permitted to attend. Although accredited journalists are allowed to attend such hearings, permission must be obtained from the Court to report the proceedings. Even in cases where such permission is obtained, the Court will usually set out strict instructions concerning what can and cannot be published

In November last year, plans for the new scheme were announced which when it launches (assuming the pilot scheme does not produce a spanner in the works) is expected to reverse the current approach meaning that the Court of Protection will now normally hold its hearings in public, making an anonymity order to protect the identities of the parties concerned.

In addition, in a move that is certain to be welcomed by journalists, amendments are to be made to the way that listings for the Court of Protection are published, meaning that Her Majesty’s Courts and Tribunals Service will now publish a short description of what the listed cases concern so that reporters can decide whether or not they wish to attend.

President of the Court of Protection, Sir James Munby has been vocal in his support of a move towards greater transparency to better public understanding and confidence in the judicial process and said that “it is logical to look at extending‚Ķtransparency to the Court of Protection provided the right balance can be struck to safeguard the privacy of people who lack capacity to make their own decisions”.

The pilot scheme is currently expected to run for six months, with the option of an extension to allow for the scheme’s provisions to be fully tested. It is envisaged that once completed, the pilot scheme will have generated sufficient evidence for an assessment of whether the Court of Protection should generally operate on an entirely public basis, or at least with more openness than exists at the moment.

Undoubtedly, there is a balance to be struck between protecting the welfare of vulnerable individuals and attaining the level of openness seen in the criminal courts. Although the imminent changes to the Court of Protection regime are, at present, only temporary, comfort should be taken from the fact that this pilot scheme represents a further, welcome, step towards transparency in what has traditionally been the most mysterious of all the Courts.