A smiling carer chats with an elderly lady

Court of Protection: Anonymity v transparency

In January this year Sir James Munby, President of the Court of Protection, issued Practice Guidance entitled ‘Transparency in the Court of Protection: Publication of Judgments’. Sir James Munby is a staunch supporter of openness and transparency in the Court, believing that the publication of judgments should bring a greater understanding of the workings of the court, and public accountability of the judges who make such important decisions on behalf of some of our most vulnerable citizens.

As a result of the guidance, many more Court of Protection cases have been reported in the media and full judgments of decisions can be accessed by the public using websites such as Bailii. The guidance is clear that the anonymity of P and family members must be protected and public authorities and experts should be named unless there are compelling reasons to do otherwise. This protects and complies with P’s and P’s family members’ HRA Article 8 rights to privacy.

Importantly, however, although the names of P and family members may remain undisclosed, details of P’s behaviour and his or her circumstances are not, since this provides the background for the judge’s decision. Aside from the common disabilities of double incontinence and negligent personal care, the behaviours of those with learning disability or dementia can include challenging, violent and uninhibited sexualised behaviour. If P had the capacity to decide whether these details should be disclosed, they would almost certainly want them to remain private. No doubt P’s close family and friends would also like to preserve the dignity of their loved one by keeping intimate details private. The question arises whether such ‘transparency’ is for P’s benefit or for the judge’s benefit to provide the reasons for his or her decision?

Perhaps more alarming was a recent case between The Press Association and the Newcastle Upon Tyne Foundation Trust. The case concerned the medical treatment and care of a Jehovah’s Witness and considered whether P’s anonymity should be preserved after death and whether the confidentiality of information gathered during P’s lifetime for the litigation should continue after death. The Honourable Mr Justice Peter Jackson ruled that the Court did have powers to preserve P’s anonymity and the continued confidentiality of P’s personal information, but in this case he decided that ‘the balance falls in favour of lifting that anonymity’.

The Honourable Mr Justice Jackson cites in his judgment the case of Re Meek [2014] COP1, and quotes the words HH Judge Hodge QC that ‘the court must consider the potential effect on P’s relatives and other family members, on clinicians treating P, and on persons caring for P, if they knew on P’s death their anonymity would be lost.’ In my view this is a very important consideration. A huge amount of intimate and private information about P and family members is provided to the court during proceedings which can take months and occasionally years to be concluded. Family members who are parties to proceedings are often not legally represented, and their evidence or information provided may not have been tested. Will this all be allowed into the public domain if anonymity is lifted after death?

However, I loved the fact that in the recent case of Westminster City Council v Sykes (by her litigation friend RP) [2014] ewhc b9 (cop), District Judge Eldergill named P, Manuela Sykes; but he named her because he believed she would have wanted that, as a public figure and a campaigner. Manuela Sykes campaigned for the dispossessed, the homeless and the abandoned; I wonder what she would think about naming P without P’s consent and bringing intimate details of P’s life and person into the public domain, before or after P’s death, for the sake of transparency and accountability?

For further information about mental capacity or health and social care law, please contact Jess Flanagan.