Mental Capacity Case

Re P (Court of Protection: Transparency)

Keehan J

There have been very few judgments on the operation of the transparency provisions of the Court of Protection.   One has recently appeared on Bailii (although decided last year): Re P (Court of Protection: Transparency) [2019] EWCOP 67. The case concerned a young man with a mild learning disability, autistic spectrum disorder and attention deficit hyperactivity disorder.  He had recently been convicted of sexual offences, and was likely to face further prosecutions for further offences.

When the Court of Protection proceedings concerning (it appears) P's residence and care arrangements came before Keehan J, he questioned why an order had initially been made for the proceedings to be in private.

As he noted:

  1. The usual approach is that hearings are heard in public and a transparency order will be made (see paragraph 2.1). The background to the "usual approach" was a desire to ensure that the Court of Protection, which has the power to make a wide range of orders involving those who lack capacity including medical treatment and deprivation of liberty orders, avoided the label of "the secret court". This label had been adopted by numerous press organisations. The concept of a "secret court" had the potential to undermine the confidence of the important work of the Court of Protection.
  1. Private hearings reinforce the concept of the secret court. The concerns about unwarranted and intrusive reporting could be addressed by an order which prevented the identification of information that could lead to the identification of the subject of the application and other parties.
The concerns in the instant case, asserted by the local authority and/or National Probation Service, related to the potential for P (who had already been photographed by the press and been the subject of articles as a result of his conviction and sentencing at the Crown Court) to be identified, putting him and the residents at his placement at risk of abuse or harm.

Keehan J accepted that "[w]hen considering the factors set out in PD 4C [going to whether to have a public hearing], the need to protect P is a very powerful factor in favour of holding the proceedings in private. The sanction for a breach of a transparency order is contempt proceedings. If the order is breached, however, the information which the order sought to protect may already be in the public domain and the harm to P and/or his placement may have already occurred" (paragraph 15).  However, the "importance of public justice, […] is a central tenet of the Court of Protection. It should only be overridden when the circumstances of the case compellingly, and on the basis of cogent evidence, require the proceedings to be heard in private" (paragraph 16).  Keehan J considered that the balance could best be struck by: (1) excluding members of the public from attending future hearings; (2) permitting accredited members of the press and broadcast media to attend; and (3) making a transparency order which allowed the hearings to proceed in public but subject to reporting restrictions.