21st October 2013
Case for Court of Protection openness highlighted by the President of the Family Division of the High Court
Written by Conor Maguire.
Sir James Munby, President of the Family Division of the High Court and veteran of some of the highest profile cases involving vulnerable adults heard in the Court of Protection and in the Court of Appeal, has called for the opening up of the Court of Protection to public scrutiny chiefly by changing the rules which currently govern proceedings in the Court of Protection to allow members of the public to attend hearings and members of the press to attend and report the proceedings.
The argument for or against the proposal has continued almost as long as the Court of Protection has been in existence (2007).
Those favouring openness have routinely characterised the Court of Protection negatively as secretive and lacking the judicial transparency rooted in the common law principle that justice must be done in open Court. Conversely those who take a cautious approach to opening proceedings in the Court of Protection to greater public scrutiny largely base their argument on the need to preserve the anonymity of the often extremely vulnerable people to whom proceedings in the Court of Protection relate — often people with profound disabilities who could be placed at risk by their identity and the wider details of their circumstances becoming known to the wider public — to preserve, as much as possible, their personal autonomy and safeguard their dignity. The underpinning motivation of that argument is succinctly expressed by the then Lord Chief Justice and Master of the Rolls, Lord Neuburger, in A v Independent News and Media Ltd & Others  EWCA Civ 343, when he commented that,
“The affairs of those who are not incapacitated are, of course, handled privately, usually at home, sometimes with but usually without confidential professional advice. None of these decisions is the business of anyone other than the individual or individuals who are making them. And that, we emphasise represents an entirely simple and we suggest self evident aspect of personal autonomy. The responsibility of the Court of Protection arises just because the reduced capacity of the individual requires interference with his or her personal autonomy… just as the conduct of their lives by adults with the necessary mental capacity is their own affair, so too the conduct of the affairs of those adults who are incapacitated is private business.”
Notwithstanding Lord Neuburger’s comments, the principle that justice be done in open court is a cornerstone of democratic societies across the world and should not be lightly dismissed. Both arguments are persuasive and rather than the matter being either black or white, the proper course perhaps lies somewhere in the grey areas between the two positions. It is open to the media at the present time to make an application to report proceedings in the Court of Protection and several cases have been reported including the first reported case, that of autistic pianist, Derek Paravinci, to whom A v Independent New and Media Ltd & Others related and that of Steven Neary who made headlines in a case involving Hillingdon Council in 2011. A host of other cases have been reported on an anonymised basis including W v M, S & A NHS Primary Care Trust  EWHC 2443 (Fam) which considered the difficult question of whether it was in the best interests of W — a person in a minimally conscious state — to have life preserving treatment discontinued and X Primary Care Trust v XB & YB  EWHC 1390 (Fam) which considered the validity of an Advance Decision by a man with locked-in syndrome to refuse life preserving medical treatment.
The test currently applied to applications to report Court of Protection proceedings openly, and which seeks to balance the competing rights of the incapacitated party to freedom from interference with their private and family life against the rights of the Press to freedom of expression, is whether the interests of the public and the media are legitimately engaged in a given case. For the reasons espoused by Lord Neuburger, the threshold is necessarily a high one. The danger however with maintaining such a high threshold, and thereby significantly limiting the numbers of cases where permission to report on the proceedings will be given, is that the Court of Protection remains open to criticism that there is a lack of transparency and confidence in the Judgements made there is undermined. On the other hand, one could say that it matters little if the workings of the Court are criticised as long as the interests of the person at the centre of proceedings remain the proper focus of the Court with scrutiny of that by the legal representatives of the parties involved and the parties themselves.
There is merit in the President’s point of view however this needs to be tempered by a cautious approach to any steps which might unnecessarily infringe the autonomy of an incapacitated adult anymore than is completely necessary. It is open to the Courts to make orders requiring proceedings to be report in an anonymised way which satisfies both the rights of the incapacitated adult to freedom from interference in his private and family life and the Press freedom of expression. A lowering of the threshold to make such reports might be an appropriate compromise to that question.
The issue of public attendance at Court hearings is more troubling and whatever approach to that question is finally adopted, it seems axiomatic that where possible the identity of the person at the centre of the case, and necessarily therefore, the other parties involved, should be protected. Whether this could be satisfied by the use of anonymisation on court documents and advocates referring to the people involved in the case by reference to initials rather than names is something to be considered and tested.
The tide seems firmly turned towards opening up the Court of Protection with increasing pressure from the media, political figures, the wider public and now the President of the Family Division to go down that road. The question that arises then is where that leaves Lord Neuburger’s observation that the lives and affairs of incapacitated adults are, like their mentally capable counterparts, a private business… potentially for future public consumption?
Original article published in The Guardian.