Privacy and reporting in the Court of Protection

In the matter of Kent County Council v P (by her litigation friend the Official Solicitor) v NHS Kent and Medway Commissioning Group (formerly NHS South Kent CCG) [2022] EWCOP 3 (https://www.bailii.org/ew/cases/EWCOP/2022/3.html), Mrs Justice Lieven has considered the question of whether Court of Protection proceedings concerning a 21 year old woman, referred to in the judgment as P, should be opened to the public and also whether members of the press should be allowed to report on the case.

The proceedings were commenced in March 2020 and to date have been heard in private, although Mr Brian Farmer, on behalf of the Press Association, was present at the hearing on 18 November 2021.

The background

The facts of this particular case are stark. In the summer of 2019 P was recovered from the home of her parents, having been found by police “in a state of extreme neglect, suffering from malnutrition and in an exceptionally poor state of care”. P is noted to have “suffered both physically and mentally as a result of her traumatic experiences”.

During the course of the proceedings P has been found to lack capacity to make decisions about her care and residence, contact with her parents and property and affairs decisions. As she has also been assessed to lack capacity to conduct the proceedings she is represented by the Official Solicitor.

Kent Police have been investigating the matter since August 2019, but to date no charging decision has been reached. Considerable concern has been expressed about the length of time that the investigation has taken. It is noted that the police have in response provided a detailed chronology of the steps taken in the investigation and have pointed to the complexity of this case and the need to conduct inquiries over events going back 10 years.

Given the extreme sensitivity of the case, the potential for press interest given the circumstances in which P was found and the concerns about the potential impact on P if she became aware of any media or social media about her case, the proceedings have to date been conducted in private.

However at the hearing on 18 November 2021 the issue of opening the matter to the public was revisited, and following this Mrs Justice Lieven has issued her judgment which concludes that the matter should now be heard in public (with orders to protect P’s anonymity).

The law

There are separate rules (the Court of Protection Rules) which govern practice in the Court of Protection.

These include a ‘general rule’ (rule 4.1) that proceedings will be in private, although the court can make an order allowing a hearing or part of it to be heard in public (rule 4.3).

These rules are supplemented by practice directions. Practice Direction 4C, “Transparency”, which has been in effect since 1 December 2017, provides that unless it appears to the court that there is a good reason not to do so, the court will “ordinarily” exercise its power under rule 4.3 to order that “any attended hearing shall be in public”, as well as imposing restrictions on the information that can be published about the proceedings.

Matters which the court will have regard to when deciding if there is a good reason not to make an order that a hearing should be heard in public are set out in paragraph 2.5 of Practice Direction 4C. They include, in summary;

  1. the need to protect P or someone else involved in the proceedings;
  2. the nature of the evidence in the proceedings;
  • whether earlier hearings in the proceedings have taken place in private;
  1. whether the court location where the hearing is held has facilities appropriate to allowing general public access and whether it would be practicable or proportionate to move to another location or room;
  2. whether there is any risk of disruption to the hearing is there is general public access to it;
  3. whether, if there is good reason for not allowing general public access, there is also a good reason to deny access to duly accredited members of the press;

Conclusion

Practice Direction 4C is borne out of a pilot scheme, the “transparency pilot” which started in 2016. Prior to that, hearings in the Court of Protection were held in private which drew criticism on occasion and accusations by some that the Court of Protection was a “secret court”[1].

There is of course a balance to be struck. Cases in the Court of Protection will usually involve individuals who are very vulnerable and who are considered to lack capacity to make decisions for themselves about certain matters.

There will often be information discussed and shared within the proceedings about matters of a very private nature for those individuals, and some of that will need to be aired during court hearings.

These individuals will often not have much control over what information about them is shared, or who it is shared with. Their rights under Article 8 of the Human Rights Act (the right to respect for your private and family life) should not be interfered with unless there is justification for doing so.

Submissions were made on behalf of P that the information before the court in this case was “deeply personal” and “at the “more prurient end of the scale””. The local authority argued that although there may be a legitimate public interest in the police and criminal justice process, there was no similar legitimate public interest in the Court of Protection proceedings and the “very personal and intimate information which is necessarily before the Court of Protection”.

The protection of the individual’s rights under Article 8 has to be balanced against the legitimate public interest in seeing justice in operation, and the press’s right to report on matters including public court hearings as protected by Article 10 of the Human Rights Act.

The conclusion reached by the judge in this case is that there is an important public interest in holding court hearings in public and allowing the press to report on them, and that therefore the presumption should be for open hearings unless there are strong countervailing factors for doing so.

In this particular case two potential countervailing factors are identified, i) interference with P and her Article 8 rights, and ii) the potential impact on any future criminal trial.

Having considered those factors Mrs Justice Lieven has concluded that in this particular case the balance now comes down in favour of allowing the press to report the proceedings and in allowing the public to attend the hearings, subject to appropriate orders restricting what information can be reported.

Author: Laura Mannering

Laura Mannering was instructed by the Official Solicitor to represent P in this case. Laura is a Solicitor-Advocate within the Court of Protection team at Edwards Duthie Shamash with over 13 years’ experience practising in the Court of Protection, and is regularly instructed by the Official Solicitor in cases in the Court of Protection.

[1] https://www.telegraph.co.uk/news/2016/10/16/the-terrifying-tale-of-how-britains-most-secret-court-imprisoned/