The Public Guardian v XR & Ors



Judge: DJ Geddes

Citation: [2020] EWCOP 65

In this case,[1] District Judge Geddes had to consider the ability of the Court of Protection to grant injunctive relief in relation to the publication of video material relating to P on YouTube.   DJ Geddes made clear that posting on a YouTube channel, even one with no subscribers, undoubtedly constituted “publication.”   She continued:

  1. It is not unusual for families to post innocent material including incapacitous family members online, either as a means of storing their own memories, or even as a means of sharing with each other, their friends, or the wider public news about their family. I doubt whether anyone puts their mind to whether they need the consent of the individuals to do that. When other organisations such as schools and day centres wish to publish material, they almost invariably seek consent from the people involved usually as part of a general contract. I do not have any evidence and have not heard submissions to allow me to come to any conclusions about whether consent is, in fact, required for the posting of such innocent material and, if so, whether it would be in VQ’s best interest for such material to be posted.

Interestingly, DJ Geddes noted that she was unconvinced that this wide question would properly be for the Court of Protection at all:

  1. […] There might be issues of copyright in relation to the ownership of video or still imagery and there may or may not be grounds to restrain the publication of images or videos of VQ per se to protect her right to a private life but I believe those issues would be a matter for a court sitting in the civil jurisdiction with the Court of Protection’s role merely being to decide whether it would be in her interests to bring such proceedings.

In the instant case, the material in question was specifically related to the proceedings before the Court of Protection, and DJ Geddes had little hesitation in finding that, whether or not it showed P or contains an audio record of her speaking, was controlled by s.12(1)(b) Administration of Justice Act 1960 and may not be published unless publication falls within the exceptions contained in Practice Direction 4A, paragraphs 33 to 37.

DJ Geddes therefore made an order directing the individual in question to remove “any video, audio, still photography of [P] or any other person and any other written material of whatever sort, which includes content relating to these proceedings posted on social media, YouTube, or any other platform accessible to third parties forthwith.”

In the main body of the proceedings, concerned with whether or not the individual in question should be removed as attorney, and usefully, as, to date, there has been no reported decision on this point,[2] DJ Geddes made clear at paragraph 48 that the donor of an LPA must understand, retain and be able to use and weigh:

what is a lasting power of attorney, why she wants to make the power, who she is appointing as an attorney, why she has chosen to appoint that person as an attorney, and what powers are being given to the attorneys. There are a number of other matters which would need to be understood in terms of the nature of the power that has been granted and the authority which the attorney is given including in relation to property which would be anything that the donor could do but also in relation to welfare, authority to give or refuse consent to the carrying out or continuation of life-sustaining treatment. It is submitted that for the purpose of s.3(4) of the Mental Capacity Act, the donor has to understand the reasonably foreseeable consequences of making or not making a power, or making it in different terms, or appointing different people.

[1] Note, Neil having been involved in this case, he has not contributed to this summary and comment.

[2] References having to be made to Re Boar (Unreported) and Re Collis, an order of Senior Judge Lush made on 27 October 2010.

CategoryPractice and procedure - Other, Lasting Powers of Attorney - Revocation, Lasting Powers of Attorney, Practice and procedure Date

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