With many thanks to Barbara Rich for explaining what this all means for people involved in CoP cases.
Context and background
When the Court of Protection was established in its present form in 2007, the relevant court rules were written to cover two separate approaches to transparency: one for serious medical cases and another for all other types of case. (The second category would include court hearings and judgments on finance and property matters, and issues about health and welfare short of serious treatment). The original idea was for serious medical cases (because of the public interest in a court deciding on administering treatment to someone who refuses or cannot give consent) to be heard in public, but with appropriate reporting restrictions, and all others to be heard in private, much like family court cases, but with power (under rule 92 of the Court of Protection Rules 2007 and Practice Direction 13A which supplements rules 90-92) to direct that a hearing be held in public, and a related power to restrict the publication of information about the hearing.
Serious medical cases are few, and only a small part of the Court’s work. They can be of genuine public interest, especially if directly reported as happened in the case about Paul Briggs.
However, things changed in the family courts in April 2009, from when journalists could attend hearings there, although these were otherwise being held in private. It is rare for journalists to do so, because they would need to first know if it was going to be worth their while attending, then secondly they would need to get the judge’s permission to report on anything they had heard. This conundrum was graphically described by Brian Farmer of the Press Association at our Media Guide launch on 5th April.
Meanwhile, a pilot transparency scheme was introduced in the Court of Protection in January 2016, under which (as a general rule) all the cases in the second category above would also be held in public, but with appropriate reporting restrictions. So there was apparently little to differentiate between the procedure in the serious treatment cases and all the others. The transparency pilot does not apply to committal hearings, which are always held in public, under an entirely separate rule.
However, as Mr Justice Charles (the Vice-President of the Court of Protection) explained in his judgment in the ‘woman who sparkled’ case, published in April 2016, there were by that stage two separate sets of procedures to be followed regarding allowing members of the public (including journalists) to attend a hearing and what they may report afterwards. Mr Justice Charles has now decided that it was about time these separate procedures were amalgamated. He has done so by amending the template for the orders that are made in cases where the decision is made to hold the case in public, whether serious treatment or otherwise.
The announcement of this amendment to the standard order also deals with the way in which details of reporting restrictions will be notified to the Press Association. Under the original arrangements, any restriction that had been placed on reporting a serious treatment case had to be notified to the Press Association, to give the media an opportunity to challenge it. Under the pilot, the existence of a pilot order itself also had to be notified. Now that all types of case come within the pilot and have similar restrictions to protect individuals and their families being identified, any extra warning is unnecessary. This may means that even fewer cases are picked up by the media.
As we have previously reported, attendance at hearings is very low. Unfortunately, the message that Mr Booker can attend in person has not got through and he still describes the Court of Protection as ‘secret’. When the pilot was introduced, it was understood that there would be an assessment by the Ministry of Justice of its impact, and this is referred to in the closing paragraphs of V v Associated Newspapers. However, this assessment has either not yet been completed or just not published. As the original pilot was extended to 31 August 2017, we hope that its publication is imminent. In the meantime, Mr Justice Charles is asking for ideas about how the public might be better alerted to cases of interest (see below).
We now set out (for those who need to know) how the orders work.
The Transparency Pilot Standard Order
In both its original and its revised form, the standard order under the transparency pilot is likely to be an intimidating document for a member of the public interested in attending a hearing, but unfamiliar with court proceedings and the form and style of court orders. As Charles J’s note on the amended order points out, it is “directed to those who attend or find out what happened at an attended public COP hearing”. It takes the form of an injunction which binds not only the parties and the witnesses, but anyone who attends a hearing or finds out what happened at a hearing. The very first thing that can be read on it, in bold type, under the word “IMPORTANT”, is the range of penalties for breaking the injunction. So even before the interested member of the public even has an idea what the hearing is about, s/he is asked to sign a document which could lead to them being sent to prison, fined, or having their assets seized. (Paul Magrath has written about this when he attended.)
The revised standard order is divided into sub-sections with headings, which are intended to make it clearer, and do so, but the wording of each paragraph of the order is much easier to read and understand for anyone who is familiar with court orders and the way they are drafted than for anyone who is not. What follows may not be the best user guide written in simple language that there could be, but is an attempt to explain broadly what the order does, following the sub-headings that it now contains.
A direction that hearings are to be in public (paragraphs 1 to 4)
Paragraph 1 is intended to include a definition of the issues to be considered at the attended public hearing. As Mr Justice Charles explains in the note:
“It is recognised that it is important that cases are appropriately described when they are listed to provide information to the public at large of what they are about when and where they will be heard.”
It is interesting that Mr Justice Charles has invited comments on how we could be better be made aware of what cases are about and how the public and the media can make themselves aware, or should be made aware, that certain types of case are due to be heard and a Pilot Order has been made in them. Comments should be directed to email@example.com as The Secretariat for The Court of Protection Ad Hoc Rules Committee.
Publicly accessible listings of cases in other courts only identify the names of the parties, the name of the judge, the court or list in which the hearing is taking place and the nature of the hearing, i.e. whether (in civil cases) a trial, an application or a directions or case management hearing. The only way in which a member of a public or a journalist could find out further information about the case before the hearing started would be either (a) by exercising their right under the Civil Procedure Rules 5.4C to obtain a copy of the statement of case or of any judgment or order given or made in public or (b) reading an accessible published judgment in a case that was under appeal or (c) by making an internet search on the parties’ names to see if the dispute or the individuals or organisations involved in it had already reached the published media in some way.
Obviously with a Pilot case in the Court of Protection, there will never be any identifiable name as the starting-point of a search, so the definition of the issues will be the only material which reveals anything about the case to be heard. The extent to which these definitions reveal how interesting the hearing might be to attend is limited. A hearing about serious medical treatment, in particular where that involves withdrawal of life-support, or management of fertility and pregnancy, is likely to have public interest because of the ethical issues and/or very sad personal history it deals with. A hearing about the removal of an attorney or deputy under the Mental Capacity Act 2005 may involve deciding serious allegations about misconduct, which are likely to have some public interest. A hearing which is described as simply whether a deputy should be appointed gives no clue as to how contentious the appointment is, or what the background facts are, making it impossible to judge the level of public interest it is likely to have. Similarly, a hearing which is described as being about where an incapacitated adult should live, or whether a lifetime gift or statutory will should be authorised for them will not give much indication of the extent of its public interest. This is true whether public interest is defined in the sense of enhancing public understanding of how the law works, or in the sense of “what the public is interested in”, which in this context will tend to mean stories which have a compelling narrative arising from the personalities and factual history, and/or stories which involve significant conflict and allegations of wrongdoing between the people involved in a legal dispute and/or stories which involve large amounts of money or valuable or distinctive assets. However, it is the details which give colour and interest of this type to a story which are likely to be hidden by the anonymisation required by the further paragraphs of the standard order.
The persons bound by the injunction (paragraph 5)
This is a checklist of all the categories of people who are bound by the order and who could potentially be liable for penalties for breaking it. It’s important to note that the list doesn’t stop with the parties and their representatives, the witnesses and anyone who attends all or any part of an attended hearing. The list goes on to include anyone who by any means obtains or is given an account or record of all or any part of an attended hearing, or of any order or judgment made following an attended hearing, anyone who is provided with or obtains documents and information arising from the application, and any organisation (and its staff) for whom a person who is bound by the order works or is giving evidence
The subject matter of the injunction (paragraph 6) and what the injunction prevents people from doing (paragraph 7)
The thrust of this paragraph is that anyone bound by the injunction is forbidden from making public any information which would identify the person who is the subject of the Court of Protection proceedings, or that any person is a member of their family, or that any other person or organisation is a party to the Court of Protection proceedings, or that any other identified person has taken a part in or been referred to in the proceedings. This isn’t just limited to identification of any of these people by their names, but also includes any information which identifies or is likely to identify where they live, or is being cared for, or their contact details. Paragraph 7 explains that this information cannot be published or communicated in writing, or by talking about it or electronically, including by way of social media, and that anyone bound by the injunction must not cause or enable or encourage or help anyone else to publish or communicate the forbidden information
Duration of the injunction (paragraph 8)
The standard order contains three alternatives for the judge to choose how long the injunction is to last: until further order of the Court, alternatively until the death of the person who is the subject of the proceedings, or alternatively until a specified number of weeks or months after their death
What the injunction does not prevent people from doing and does not apply to (paragraph 9)
This sets out what people bound by the order are allowed to do. This is a new feature of the standard Pilot order, and is modelled on the usual reporting restrictions orders made in serious medical cases. Paragraph 9(i)(a) allows people to report or comment on the proceedings in ways which don’t involve breaking the rules on publishing details which have been specifically prohibited under paragraph 6, and paragraph 9(i)(b) allows them to report or comment on Court of Protection proceedings generally, or applications similar to the one that is being heard. Paragraph 9(i)(c) allows publication of information relating to any other court hearing in England and Wales in which the court is sitting in public and did not itself make any order restricting publication. Paragraph 9(i)(d) allows people bound by the order to comply with any other court order and paragraph 9I)(e) allows them to disclose information for the purpose of caring for the person who is subject to the proceedings. Paragraph 9(ii) cross refers to and applies to Pilot hearings in public all of the contents of paragraphs 33-37 of Court of Protection Practice Direction 13A, which apply to hearings in private. These paragraphs contain detailed provisions, partly in the form of a table, setting out what specified information can be communicated and to whom in certain specified circumstances.
Variation (paragraph 10)
This allows anyone affected by the order to apply to the Court to vary or discharge it (i.e. to say it no longer applies) and in particular anyone can ask the Court to allow the publication of information which would otherwise be prohibited, on the basis that it is lawfully in the public domain “or for such other reasons as the Court thinks fit”.
Further orders (paragraphs 11-14)
Paragraph 11 explains that any judgment or order made, or any transcript of the hearing, is to be anonymised so that it contains no reference to the name or address of anyone referred to in it, but that anyone who needs to know the identity of any anonymised person is entitled to receive a confidential schedule giving the necessary identification.
Anonymisation in the form of substituting initials for names can be problematic in two different ways. It may be insufficient to achieve true anonymisation, if the facts about the case which are legitimately published enable anonymised individuals to be identified, perhaps through a “jigsaw” process of comparison with other material which is already in the public domain, or through identification of other details, such as the registered title number of land which is involved in the hearing (as it might well be in a case about where someone who lacked capacity was to live, or whether their former home should be sold). And on the other hand, it may be impenetrable even for professionals involved with the case. Some Court of Protection applications contain a large number of parties – statutory will applications with numerous prospective beneficiaries, for example. When all are anonymised, the case becomes an alphabet soup in which it is difficult to retain a sense of who is who and what their role is. Some advocates are complaining about this, because it seems unnecessary for so long as virtually no one is visiting the Court.
Paragraph 12 gives the Court a flexible power to give directions about how information or copies of documents put before the Court are to be provided to anyone who is present at an attended hearing and who doesn’t otherwise have a right to see it. One way in which it would be desirable for this power to be routinely used would be to enable anyone who attends a hearing and is bound by the standard order to see the position statements or skeleton arguments which the parties’ lawyers will have prepared in advance of the hearing. It is very difficult for anyone who attends any court hearing simply as an interested member of the public to really get an idea of what is going on without access to these documents, which the judge will have pre-read and which are an important element in the setting out of facts and advocacy in a case.
Paragraph 13 directs that a record is to be kept by the Court, containing a list of the anonymised names separately from the other parts of the information defined in paragraph 6.
Paragraph 14 allows a person who has not been present at an attended hearing to apply to the Court to be allowed to be provided with the information defined in paragraph 6, giving evidence about why they wish to be provided with it.
Rights of audience (paragraph 15)
This paragraph makes clear that anyone who could have acted as an advocate at a hearing held in private can do so at an attended hearing
Costs (paragraph 16)
This paragraph provides that the costs of making a Pilot Order are ultimately decided by the judge who makes overall decisions about who should pay the costs of the case.
Family courts and the Court of Protection – Where are we now?
The current position can be summed up as follows. All hearings in the Court of Protection will normally be held in public and may be reported on (within anonymising restrictions) but the judge may, depending on circumstances, decide against a public hearing. Mr Justice Charles is seeking ways in which the public might be encouraged to actually turn up. This is still a ‘pilot scheme’ without any information yet about review or a change in the court rules. We can only assume that Mr Justice Charles issuing all this detail now must mean the Pilot will exend beyond the end of August.
Most hearings in the family courts will be held in private but journalists may attend. Again, there is flexibility for the judge to decide on more or less publicity. There is no sign of the President reviewing his guidance on publication of judgments on Bailii, issued in January 2014 and applying to both family cases and the Court of Protection. Across both courts, the test to be applied is to balance the competing interests in privacy and freedom of expression by focusing on these in each case.
Feature pic : Courtesy of Michell Zappa on Flickr (Creative Commons licence) – thanks!