Disclosure of documents subject to implied undertakings
Did I hear you say ‘Secret Court’? Not any more as the Court of Protection will now be ‘Open Court’, or at least it is between 29 January and 31 July 2016 for the duration of a transparency pilot. Over recent years, particularly from certain sections of the media, the Court has received regular criticism over its lack of transparency and the making of important decisions behind closed doors. This is why it has been referred to as a ‘Secret Court’.
Fair enough you might say as secrecy, if that is what this is, flies in the face of the principle of ‘open justice’ as a cornerstone upon which the legal system in this country is based. It will therefore be an interesting six month period for all involved with the Court of Protection as we adapt to these changes and see if public perception of the Court changes. 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.
So what is changing?
From this point onwards during the transparency pilot, all hearings can now be expected to be open to the public and the media unless there are very good reasons to decide otherwise. This is based on the principle that there is a clear and legitimate interest to the public in knowing what decisions are being made by the Court. However, as with all things, nothing is quite that simple and there will continue to be safeguards and restrictions on what can be reported in the media. In most cases, it will still not be possible to identify the individual or family who are the subject of those proceedings.
Is this really going to matter to most people who become involved with the Court? From my perspective as a Property and Affairs specialist, the vast majority of cases will ordinarily proceed without an attended hearing. In these cases then the simple answer is no. However, in cases where there is a dispute over a financial matter such as a will or a gift or where it is alleged somebody has been acting improperly, then conceivably the media will take an interest. I am sure most people would have reservations about their private financial information becoming publicly known, simply because they have suffered the misfortune of losing capacity to make decisions about their own affairs. As a consequence, the safeguards designed to protect individual privacy will need to be effective. This is particularly so given how easy it can be to identify somebody through the internet and social media when even the most basic details about them are published.
The problem for those working in and with the Court of Protection is to know which case may suddenly spark an interest with the media and to put safeguards in place to best manage the situation. I am a lawyer, not a journalist, and our respective definitions of what is interesting may be wildly different. At the very least we all, as practitioners and clients, need to be prepared for the possibility of such public scrutiny and the additional challenges it may bring.
Despite some reservations about the possible impact on the privacy of some, I believe that this pilot will be a good thing. I am hopeful it will lead to a better understanding of the very important work the Court undertakes and perhaps also counter some of the negative opinions that have been expressed in the past. The results of this pilot will be evaluated and perhaps adjustments made at the end of the six month period, but I would be very surprised if this approach was not to be continued long term. It is safe to say that greater transparency is here to stay and hopefully we will hear no more of the ‘Secret Court’!
Should you have any questions about the issues raised in this blog or in respect of the Court of Protection, please contact Simon Hardy or members of our Deputyship team and Reputation and Media team.
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