Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements)

Summary

The Court of Appeal has set aside the decision of Poole J in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3) (summarised in the July 2025 Practice and Procedure Report). The tragic underlying factors of the case were set out in Re AB (ADRT: Validity and Applicability) [2025] EWCOP 20 (T3), and involved a dispute over the validity of Carl Gardner’s Advance Decision to Refuse Treatment (‘ADRT’), which once given effect, led to the cessation of treatment and the end of Mr Gardner’s life.

A satellite issue in the underlying application had been an application by an observer, Professor Celia Kitzinger, for the position statements of the parties in the application. Mr Gardner’s mother had opposed the disclosure of position statement (which was also the position other members of Mr Gardner’s family). Professor Kitzinger was given leave to intervene in the proceedings before Poole J to make submissions on the disclosure issue, and was given leave to intervene in the appeal. The Official Solicitor was also given leave to intervene in the appeal in her own right, having ceased to be Mr Gardner’s litigation friend in the proceedings on his death.

Writing the lead judgment (the first delivered as the new President of the Court of Protection), Sir Stephen Cobb gave a summary of his conclusions at paragraph 12:

4. i) Court of Protection proceedings are private by default (rule 4.1 of the Court of Protection Rules 2017) (‘COPR 2017’), even where the court directs that hearings are to be held in public under rule 4.3 of the COPR 2017. Many hearings in the Court of Protection are of course in public, but a direction for a public hearing does not convert the proceedings into “public proceedings” equivalent to litigation in the civil courts or tribunals. The judge below erred in treating the proceedings as public simpliciter and in importing openness principles from jurisdictions which are public by default;

 

5. ii) Once lodged, position statements are “court records” within the meaning of rule 5.9(2) of the COPR 2017 (following Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38[2020] AC 629) (‘Dring’). However, they are not automatically disclosable to observers or non-parties, and court authorisation is required for disclosure of them to non-parties under rule 5.9(2) COPR 2017;

 

iii) Open justice does not entitle observers to access all material informing judicial decision-making. Access to documents must be justified by a demonstrable application of the open justice principle, not by curiosity, research, education, or personal interest;

 

5. iv) Disclosure of position statements which cite highly personal source material from the written evidence is a serious interference with Article 8 ECHR rights; in this case, the court failed to engage with rule 5.9(4) COPR 2017 and specifically consider whether disclosure should be: refused, redacted, or subject to use restrictions (e.g., in relation to source evidence);

 

1. v) The procedure for disclosing position statements to members of the public should be considered as a matter of priority by the ad hoc Court of Protection Rules Committee (‘COPRC’); in the meantime, the guidance offered by the Judge at [J2/36] should not be followed; the court should in the meantime consider disclosing case summaries, chronologies and lists of issues to observers who request information;

 

1. vi) The Court of Protection exists for P’s benefit. Transparency must support justice, not overwhelm it.

There were a series of hearings in the case, dealing with distinct and complex issues relating to the ADRT, and a number of applications were made for disclosure:

1. Professor Kitzinger made an application in advance of a hearing in March 2025 for disclosure of the position statements; Poole J gave ‘permission’ for the parties to release the position statements, but did not require them to do so (Mr Gardner’s family declined, as did the ICB with responsibility for Mr Gardner’s care). Mr Gardner’s legal representatives “made known to Professor Kitzinger that Mr Gardner’s family had found the request for disclosure of the position statements distressing and intrusive given the intensely personal nature of the material involved” (paragraph 20);
2. Following the March 2025 hearing, Professor Kitzinger applied for disclosure of the ADRT. All parties objected, and the court declined the request;
3. Professor Kitzinger made a further application for position statements filed for the May 2025 hearing. Again, Poole J granted permission for the parties to disclose these, stating that doing so was at the discretion of the parties. Again, Mr Gardner’s family and the ICB declined.

The central conflict arose at the hearing on 30 June 2025, which was the first day of a hearing listed for four days. Mr Gardner’s family withdrew their contentions that the ADRT had been made under undue influence and was fraudulent. Where all parties accepted that the ADRT was valid on face, the contents of the ADRT and associated documents were not subject to examination in court. Poole J “went on to make a number of welfare decisions to give effect to the withdrawal of treatment for Mr Gardner and his transfer to a hospice for the commencement of palliative care. The Judge resolved a minor dispute about final contact for Mr Gardner with members of his family and his fiancée” (paragraph 23).

On the same day, Professor Kitzinger again (informally) applied for disclosure of the parties position statements. Poole J declined to consider this on 30 June 2025, but directed that Professor Kitzinger file a position statement on 1 July 2025 explaining the request, and the parties respond to it 24 hours later. In her written application, Professor Kitzinger now sought all positions filed throughout proceedings (including those which had not been disclosed by the family and ICB), not just those filed for 30 June 2025. Professor Kitzinger “argued that the case was of legitimate public interest, illustrating the Court of Protection’s role in end-of-life decision-making, and that meaningful open justice required access to position statements so that observers could understand, report on, and educate the public about how the case had unfolded” (paragraph 24). The application stated (in part)

[11] I have explained that I am seeking disclosure of the Position Statements in order to better understand how this case unfolded over time and the (shifting) position the parties took on different issues. It’s important for me to understand this for two reasons: (1) as an individual personally invested in making my own end-of-life plans in a manner than will hopefully convince medical professionals to act in accordance with my advance decisions and pre-empt judicial scrutiny (see (Determining the legal status of a ‘Living Will’: Personal reflections on a case before Poole J); (2) in my role as an educator and as author and editor for the Open Justice Court of Protection Project blog, which serves to inform and educate the public about the law – both statutory and case law – as applied by judges in the Court of Protection. In addition to my own blog posts cited above, I worked with another member of the public as editor on a third blog about this case …” (emphasis added by Sir Stephen Cobb)

Mr Gardner was transferred to a hospice, where life-sustaining treatment was withdrawn. He died on 8 July 2025.

Poole J considered the submissions and directed disclosure of the position statements on 14 July 2025 from the four hearings, as well as directing that the Transparency Order would expire on 30 August 2025 (which was later the subject of further consideration).

Transparency and open justice

Sir Stephen Cobb observed that “[t]he objective of transparency is not to put a non-party observer in the position of the judge on the bench, nor does it entail, as a condition of achieving that objective, that the observer be furnished with the entirety of the material underpinning the judge’s decision. The objective of open justice is long-acknowledged to be twofold: first, to enable public scrutiny of the way in which courts decide cases, to hold judges to account for the decisions they make and to enable the public to have confidence that they are ‘doing their job properly’ (Dring at [42]); secondly it is ‘to enable the public to understand how the justice system works and why decisions are taken’ […]” (paragraph 62).

Sir Stephen Cobb considered that the context of Court of Protection proceedings was important, and noted that in relying on the authority of Dring on transparency, “[i]t is material to note that Dring was an asbestos-linked personal injury claim, and Article 8 ECHR rights were not engaged at all. In this case, there is no question but that Article 8 is firmly engaged, adding significantly greater weight to the privacy arguments which were outlined by Baroness Hale in Dring” (paragraph 62).  At paragraph 63, he noted that Baroness Hale also observed in Dring  that the “obvious” exceptions to the disclosure principle are: “national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally”

Sir Stephen Cobb cited with approval the decision of Rajah J in W v P [2025] EWCOP 11, which raised as a consideration that those with capacity were entitled to deal with their personal affairs in private, and those lacking capacity should not necessarily lose this status. Cobb LJ considered that “there are many legitimate reasons why extensive disclosure of court documents should not be ordered in cases involving such intensely personal matters arising in the Court of Protection” (paragraph 63).

Sir Stephen Cobb was clear that it was for the person requesting documents “to explain why they seek them and how granting them access will advance the open justice principle (see Dring at [45] and Re HMP at [23]). If there is no good reason for granting disclosure, that will be the end of the matter. Moreover, disclosure of court documents in the fulfilment of the transparency objectives (outlined above) should be limited, in my judgment, to the extent essential to achieve those objectives and no further” (paragraph 63).

While recognising the importance of open justice, Sir Stephen Cobb emphasised that the administration of justice was the ‘primary duty of any court,’ and that “disclosure of personal documents in the name of transparency may either support or jeopardise that aim. While public scrutiny undoubtedly strengthens the integrity of the process, it must not be forgotten that such proceedings exist for P’s benefit. The administration of justice must never be compromised in the name of openness” (paragraph 64). He gave two specific examples of this:

1. Justice would be impeded if a witness withheld material from the court due to concerns about it being available to non-parties; and
2. While the MCA has a ‘core aim’ the participation of P in decision-making as far as possible, “[t]he quest to achieve openness should not operate as a deterrent to P from direct engagement in the proceedings, nor should it (as it might do) add to confusion for them.”

Sir Stephen Cobb was clear that open justice should support, rather than overshadow, the court’s core purpose.  “[S]atellite disputes about the form, content or disclosure of position statements risk obscuring the key issues and objectives of the proceedings’ and ‘that judicial office holders should guillotine the process, or even decline to deal with an application if they would otherwise be disabled or impeded from administering justice in the case itself, or diverted from other pressing judicial duties” (paragraph 80).

Sir Stephen Cobb found that Poole J had fallen into error in considering the Court of Protection proceedings “public” (paragraph 71). The starting point was that the open justice principle does not apply in Court of Protection proceedings (due to their ‘default’ status as private). Poole J had therefore fallen into error “in determining this application (i.e., for disclosure of position statements) when he wrongly relied on guidance from judgments delivered in jurisdictions which operate in public” (paragraph 72). Further, “in civil or public law proceedings for example, when the court is balancing the competing considerations of privacy and openness, no consideration needs to be given to the welfare of P as must happen in the Court of Protection” (paragraph 73).

Peter Jackson LJ agreed “wholly” with the lead judgment of Sir Stephen Cobb, and added his own observations on the nature of transparency:

85. The Court of Protection decides questions of often fundamental importance for those who lack capacity to decide them for themselves, and for their families. It is strongly in the public interest for the public to be able to reach its own conclusions about how the court is working, and to do so on the basis of reliable information. However, as My Lord has so clearly explained, the amount of information that can lawfully be put into the public domain has to be controlled so that proceedings that exist to protect vulnerable individuals do not become a means of harming them. The rules of court are accordingly designed to help judges to strike the balance in a way that can enjoy the confidence of parties, practitioners, reporters and members of the public, including those with an informed interest, such as Professor Kitzinger, who has made such a signal contribution in this field.
86. Court of Protection proceedings are private by default but they will often be heard in public under the protective umbrella of a Transparency Order. Although the order is necessarily framed in restrictive terms, it is in fact the means by which the greatest possible transparency is achieved. Its restrictions are no more than the price that has to be paid to make it lawful for the proceedings to be heard in public. I accept that this is somewhat counter-intuitive, as Males LJ recently remarked in Pringle v Nervo [2026] EWCA Civ 266at [72]. He commented that the sole purpose of a Transparency Order is to ensure privacy, and that it is odd that it does “precisely the opposite of what it says on the tin”. However, as I have explained, the purpose of a Transparency Order is much wider than that. By ensuring that, where it is appropriate, these important decisions can be taken in public, these orders decidedly advance the interests of open justice rather than hampering them.

Status of position statements in the Court of Protection and who discloses them

Sir Stephen Cobb noted that Court of Protection proceedings do not involve formal pleadings, and position statements are not formally ‘filed’ with the court nor do they have a statement of truth, though they are a well-established practice in the court. C Sir Stephen Cobb considered that the interchangeable use of ‘skeleton arguments’ and ‘position statements’ was unhelpful, and they should be identified accordingly. Where position statements are not mentioned in the COPR or COP Practice Directions, there was no explicit provision to be found within the rules for their treatment.

None of the parties in the appeal adopted the approach of Poole J that position statements could be obtained directly from the parties without an approach to the court, nor that the parties were obliged to prepare anonymised versions of position statements if disclosure was directed. Sir Stephen Cobb agreed with both of these submissions, noting that while protection of P may require anonymisation of judgments, it was not necessary for position statements disclosed along with transparency orders.

Disclosure of position statements

All Court of Protection hearings are private by operation of the COPR; however, Practice Direction 4C has created a default position that attended hearings are to be in public, subject to reporting restrictions as set out in a standard transparency order. An attended hearing may be held in private if there is good reason for doing so.

Part 5 COPR governs the ‘supply of documents to a non-party from court records.’ There is a general right to inspect judgments or orders made in public. However, access to any other documents is subject to an application under Part 10 COPR, and if minded to give disclosure, the court will consider whether to give it on an edited basis.

It was agreed between the parties (and accepted by the court) that “[o]nce position statements have been lodged with the court (whether to the court office or to a judge’s clerk) they become “documents and records which the court itself keeps for its own purposes” (Baroness Hale in Dring at [22]) and therefore fall within the class of “any other documents in the court records” within the terms of COPR 2017 rule 5.9(2)(a)” (paragraph 51(iv).

Sir Stephen Cobb noted that Professor Kitzinger never made a formal, written application for documents in accordance with Part 10 (but the court has the power to dispense with the requirements of any rule, and was entitled to consider an informal application).  Sir Stephen Cobb, however, found that Poole J had erred in giving Mr Gardner’s family no warning that she was extending her application to all position statements in the case (thus returning to reconsider earlier, unchallenged decisions in proceedings), leaving Mr Gardner’s family only 24 hours to respond to this request. This was particularly challenging in light of the orders made on 30 June 2025, which put Mr Gardner on an end-of-life pathway and move to palliative care, and Sir Stephen Cobb considered that the family was justified in their ‘strong complaint’ about the timing of the request.  “There was no need for the Judge to determine the disclosure application at that precise point in time, and it was, I believe, unfair to place the family under pressure to deal with it; whilst this was a foreseeable consequence of the timing of the application, we accept the submission of Ms Sutton that this was not Professor Kitzinger’s intention” (paragraph 66(ii).  Sir Stephen Cobb also found that Poole J had erred in viewing the family’s earlier refusal to provide position statements as somehow un-cooperative or obstructive, even though the court had left disclosure at the discretion of the family.

Sir Stephen Cobb further considered that Professor Kitzinger’s reasons for wishing to see all of the position statements (which focused on understanding “how the case had “unfolded” given her wish to “pre-empt judicial scrutiny” in relation to her “own end-of-life plans” and separately “in my role as an educator and as author and editor” for the Project’s blog” (paragraph 67) did not “support the case for retrospective disclosure of sensitive information in order to ‘advance the open justice principle’ (Dring at [45]) for the benefit of members of the general public” (paragraph 67).

Sir Stephen Cobb considered that “the provision of position statements to an observer which contain large amounts of highly personal and sensitive source evidence (including allegations which were disputed and never subject to findings) without redaction or restriction on the use of such material, represented a significant intrusion on her Article 8 ECHR rights and those of the family, which was neither necessary or proportionate” (paragraph 76). While a Transparency Order protected Mr Gardner’s identity, it did not protect the personal and sensitive document found in his ADRT and the position statement, and in any event, expired after his death.

Process and procedure

Sir Stephen Cobb considered this issue should be referred to the Court of Protection ad hoc Rules Committee for further consideration (and we understand such a referral has now been formally made by Senior Judge Hilder), but offered some practice points in the interim at paragraph 80:

(a) that it would be appropriate for the observer / non-party to make some form of application to the court for sight of the filed documents in accordance with rule 5.9 COPR 2017 so that the respondents know what is in issue and have the chance to express views,

(b) the decision about disclosure should be that of the Judge, not the parties or their legal representatives, and

(c) the issue should (unless impractical) be dealt with proportionately and briskly in advance of (or at the very outset of) a hearing so as to ensure that observers are best able to understand the hearing, and to avoid disputed issues of disclosure arising after the substantive determination.

Sir Stephen Cobb considered that the initial stage would need to be consideration of whether there is a ‘good reason’ for the request for disclosure. The process must respect P’s Article 8 ECHR rights, be proportionate to the open justice principle. Sir Stephen Cobb suggested that disclosure of the following would generally support the open justice objective:

(a) The case summary;

b) Chronology of relevant events; and

c) Issues for determination.

Sir Stephen Cobb considered that “[t]hese documents are generally expected to be short and uncontentious; indeed, they should ideally be agreed. The case summary will usually set out the essential background to the proceedings without any, or any material, quotation from the source material (i.e., the filed evidence), and should also comply with the Transparency Order” (paragraph 78). These documents would “meet the needs of the observers to receive basic information about the case and fulfil the objective for open justice. With the benefit of the information contained within such documents, an observer can, if they feel compelled to do so, then make an application to the judge (on a more informed basis than they would at present) for disclosure of other documents, in accordance with rule 5.9 COPR 2017” (paragraph 79).

Comment

This judgment is a welcome appellate clarification in relation to what can often be very inconsistent practice in the Court of Protection as to how requests of this nature should be addressed and by whom. We consider it clearly correct that the application is made to a judge (rather than directly to advocates) and taken by a judge with adequate notice to the parties, and taking into clear consideration P’s own wishes and feelings, and Article 8 ECHR rights. We also welcome Sir Stephen Cobb’s clear and robust statements that the administration of justice is the primary role of the court and if the presence of observers is leading to satellite issues which are interfering with the court’s role, the judge may ‘guillotine’ that process to ensure focus remains on the application before the court.

We would note that while Sir Stephen Cobb cites the COPR’s provisions on the need to file a case summary, chronology and list of issues for determination (which are to be agreed if possible), these documents are very often omitted in practice, and changes will need to be made to standard practice in the COP to routinely produce these documents.

We would consider that this change of practice may very well be a positive development in the welfare jurisdiction. COP proceedings can often suffer from drift, particularly where there is not judicial continuity, as many of the individuals at the heart of Court of Protection welfare proceedings can have many challenges and complex circumstances. There can sometimes be a push to consider “every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved” A & B (Court of Protection: Delay and Costs) [2014] EWCOP 48 at paragraph 15.

By virtue of a change to the template orders held by the Court of Protection, we understand that orders will provide that case summaries are now to be prepared and provided at the time of the provision of the bundle (which is typically several days ahead of the provision of position statements). We consider that this may offer several benefits:

1. As in family proceedings, a chronology and case summary document can be prepared at the start of proceedings by the solicitors issuing the case, and updated as necessary to reflect developments. We would anticipate that work around these documents at subsequent hearings should be limited, and focused on the significant developments.
2. It would appear sensible to hold round-table meetings ahead of the preparation of the case summary, and for the content of the issues to be determined to be agreed at the round-table meeting. This would hopefully help to clarify the extent of any disputes in good time ahead of a hearing, or else identify that the parties are not in dispute and allow for timely consent orders to be submitted (rather than these being filed shortly prior to a hearing).
3. Agreed case summaries and chronologies would likely be of considerable assistance to judges hearing COP matters. COP bundles are often hundreds of pages long, including lengthy care planning documents or assessments. When hearings are listed for one hour, it is simply unreasonable to expect that a judge will have time to read those hundreds of pages of material in detail prior to the hearing. Chronologies and case summaries of a few pages highlighting the significant events in P’s life and setting out a clear, concise list of what disputes exist would likely assist in helping judges in their preparation.

The use of a case summary may also help to address what are often excessively long position statements in the Court of Protection. Where the case summary document sets out the agreed facts and the judge has a chronology available, the position statements do not need to recount that information, and can instead simply focus on the position of the parties on the issues in dispute (which would have already been identified in the case summary). We consider that considerably shorter, focussed position statements which clearly articulated what the parties wanted the court to do and why the parties argued the court should do it would help to improve the efficiency of Court of Protection proceedings both in and out of court.