A smiling carer chats with an elderly lady

Transparency in the Court of Protection

Since his appointment as President of the Family Division and President of the Court of Protection, Sir James Munby has been taking steps to improve the transparency of these courts and increase public confidence and understanding. In light of the Daily Mail’s recent campaign to show the Court of Protection up as being a ‘secret court’, this transparency is a welcome and wise move.

Although many case reports are published and available to the public on the British and Irish Legal Information Institute website (Bailii), there really is an alarming lack of public knowledge about what goes on in the Court of Protection (CoP).  With a more transparent system the public might begin to understand how the CoP protects the most vulnerable in society, and doesn’t rip them off – as has been suggested by some journalists.

In his latest guidance, published in draft on 12 July 2013 and found here, Sir James Munby sets out the need for increased publication of cases heard in the Family Courts and Court of Protection. He says that certain classes of cases should be approved for publication by the court and sent directly to the Bailii website as soon as reasonably practicable, to be available for public consideration.

The guidance states (paragraph 16) that the types of cases that the court ‘must ordinarily allow to be published’ are those (in the CoP) relating to the making or refusal of any order:

  • authorising a change of the placement of an adult from one with a family member to a home;
  • involving a deprivation of liberty;
  • involving the giving or withholding of significant medical treatment; or
  • involving a restraint on publication of information relating to the proceedings.

These are generally the types of welfare case that pass through the CoP on a regular basis.

Cases were previously published when an interesting point of law was discussed, or helpful guidance produced by a CoP judge.  The starting point now is that the judgment should be published unless there are compelling reasons why it should not.

It will be interesting to see how this impacts on the rate of cases published. I think it will increase significantly, which will be great for practitioners who work within the system and for the public, who, if they are interested, can see how the judges strive to make decisions that they feel truly are in the best interests of vulnerable individuals who cannot make decisions for themselves.

The guidance also sets out those cases that “may be published’. These are all other types of cases in the CoP (and family courts) not mentioned in the list of cases that must be published. The starting point is that a judgment may be published whenever a party or accredited member of the media applies for an order permitting publication. The judge may approve publication having taken into account the rights arising under any relevant provision of the European Convention on Human Rights. In addition, if the Court considers it to be in the public interest, a judgment may be published in any event, regardless of any application made by a party or the press.

There are some points when any judge considering publication of a judgment must invite representations from the parties and any interested accredited members of the media – whether or not anyone has raised them. These include the extent of any anonymisation, whether the publication is conditional and how that should be drafted at the heading of the judgment.

I think it is interesting that the guidance says public authorities should be named in the judgment, unless there are compelling reasons not to (paragraph 21(i)). This could introduce some interesting decisions about the types of sufficiently compelling reasons not to publish the identity of the authority. No Local Authority will be deaf to the ‘naming and shaming’ that Manchester City Council and Hillingdon were subjected to in 2010 and 2011, but perhaps this guidance will remind public authorities who may not be following correct procedure (whether maliciously or not), to do so. This may have the effect of driving up best practice across the system.

It will be interesting to see how increased publication will influence the media’s perception of the CoP, as currently it is very negative. I think practitioners who represent individuals and public authorities in the CoP will welcome publication. It will provide more insight into the decisions made in the court and will help in providing advice and assistance to the courts.

If the changes to legal aid result in an increase in litigants in person (people who represent themselves in court proceedings, without the assistance of a lawyer), publication of previous cases will assist them in carrying out their own research. It would be useful if the newly published decisions could be summarised and classified into categories in order to assist such individuals in accessing them easily and effectively.

I am all for increasing public awareness of the cases that are heard in the Court of Protection.  Individuals might then see that appointing an Attorney for health and welfare is just as important as appointing someone to look after their money for a time in the future when they may be incapable of making such decisions themselves.