Privacy series part two: Court of Protection – An open secret?

Our series focused on privacy and transparency considers issues encountered by practitioners across a range of different dispute resolution specialities. This blog explores the evolving transparency position in the Court of Protection, and how it seeks to balance the principle of open justice against the need to protect vulnerable individuals' privacy. 

Once referred to as a “secret court”, the Court of Protection is increasingly limiting its privacy and is arguably becoming more open. The Court of Protection makes decisions for individuals who lack mental capacity to handle their own financial affairs or make decisions regarding their own welfare, known as protected parties, or “P”. It therefore necessarily deals with highly personal financial and medical information of people who are extremely vulnerable and may not have any choice about whether proceedings involving them take place.

Capacity issues affect people from all walks of life equally, and some cases before the court involve very high-profile families, or issues of significant public interest like the Charlie Gard and Alfie Evans cases, which related to decisions concerning the withdrawal of treatment for severely ill children, and attracted media attention from around the world. While often it is the media that is pushing for the ability to report additional information, on occasion it is the family members of P, who want to tell the story and shine a light on what they may see as wrongs that have taken place in respect of the treatment of their loved one.

A Transparency Pilot was introduced in 2016 with a view to moving away from the previous position where almost all proceedings in the Court of Protection were heard in private. The holding of proceedings in private had attracted criticism, particularly from the media, and was said to offend the principle of open justice. Since the introduction of the pilot, in most cases, the court will order that the proceedings are held in public but subject to a reporting restriction order (sometimes referred to as a transparency order) preventing the disclosure of certain information to protect P.

Where reporting restrictions are imposed in the Court of Protection, issues with consistency sometimes arise between the approach taken by different judges. There has, for example, recently been a case where family members of P have been named in related contempt of court proceedings, where P’s identity (and that of P’s relatives) had been protected in the main Court of Protection proceedings. The contempt of court in that case related to the family member’s failure to abide by a court order directing him not to make contact with P.

The Rules

The Court of Protection Rules (“the Rules”) govern practice in the Court of Protection. The rules are also supplemented by practice directions.

Rule 4.1 states that proceedings in the Court of Protection will be held in private, but the court may order that a hearing, or part of a hearing will be heard in public under rule 4.3. In practice the court will direct that most hearings will be heard in public subject to some reporting restrictions.

Practice Direction 4C deals with transparency. This provides that unless it appears to the court that there is a good reason not to do so, the court will ordinarily exercise its power under rule 4.3 of the Rules and order that any hearing will be in public.

The court will consider the following matters when deciding if there is a good reason not to make an order that a hearing should be heard in public:

1. the need to protect P or someone else involved in the proceedings;
2. the nature of the evidence in the proceedings;
3. whether earlier hearings in the proceedings have taken place in private;
4. whether the court location where the hearing is held has facilities appropriate to allowing general public access and whether it would be practical or proportionate to move to another location or room;
5. whether there is any risk of disruption to the hearing if there is general public access to it;
6. whether, if there is good reason for not allowing general public access, there also exists a good reason to deny access to duly accredited representatives of news gathering and reporting organisations.

Restrictions

The reporting restrictions usually prevent the disclosure of certain information about Court of Protection cases, usually to protect P’s privacy to the extent necessary.

A standard reporting restriction order will usually include restrictions on reporting: the name of P; any information that is likely to identify P; that any member of P’s family is a party to the Court of Protection proceedings; and any information that might identify where P or a party lives or is being treated or cared for.

The Court of Protection now also publishes many of its judgments in order to promote transparency and so generally judgments are published, but the names of the parties are anonymised.

Exceptions

There are exceptions to there being public hearings and also exceptions to reporting restrictions. There are cases where reporting restrictions have been either lifted in their entirety or varied so as to permit much more extensive reporting, including of the names of parties.

It is important for parties contemplating litigation in the Court of Protection to keep in mind that it is possible that evidence filed in the proceedings may become public. Even if reporting restrictions are put in place at the outset, they could be lifted in the future. This is particularly relevant in cases where P is a high net worth individual, and matters before the court include commercially sensitive information, or information which is relevant to other proceedings.

The court ordinarily makes an order in respect of the proceedings being in public and applicable reporting restrictions without an application being required from the parties, though they will often make submissions on their positions. When considering whether to either impose more extensive reporting restrictions or to limit them, the court is required to conduct a balancing exercise between Articles 8 and 10 of the ECHR, being the right to respect for private and family life on the one hand and the right of freedom of expression on the other, including the media’s right to report. The approach to this balancing exercise was set out in the case of Re S (A Child):

1. Neither article 8 nor 10 has precedence over the other;
2. Where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary;
3. The justification for interfering with or restricting each right must be taken into account; and
4. The proportionality test must be applied to each right.

It is often a difficult balance to be struck and will turn on the specific circumstances of each case. In the majority of cases, anonymity is usually favoured, but it should never be assumed by parties that this will always be or remain the case.

Further information

If you have any questions or concerns about the topics raised in this blog, please contact Sophie Mass. 

About the author

Sophie Mass is an Associate in the Dispute Resolution team.  She specialises in trust, estate and court of protection disputes, often acting in high value and complex cases.