Having attended two earlier hearings in the Court of Protection under its transparency pilot scheme, described here and here, last week I paid a third visit in the hope of picking up further information about the court’s work.
This time, I had heard about the case on Twitter. One of the barristers, Barbara Rich, tweeted
“Preparing for my first CofP hearing under transparency pilot, anonymising registered titles to land in case it identifies P”.
(P is the standard way of referring to the anonymised person for whose benefit the proceedings are being conducted.) When I replied expressing my interest in attending the hearing, Barbara told me that it concerned “the discharge and appointment of a deputy for property and affairs”. The previous two cases had been about where P would live; this one was about who was going to manage P’s affairs.
Knowing I was likely to attend, and having read my earlier posts, Barbara had very helpfully made copies of the position statements of all the parties, of which there were three: (i) the person currently occupying the position of deputy for property and affairs of P; (ii) the person applying to have that person’s appointment discharged and for a replacement to be appointed; and (iii) the Official Solicitor, acting as litigation friend for P.
The position statements had all been anonymised in accordance with the order directing the case to be heard in public under the transparency pilot scheme. As Barbara’s tweet indicated, that meant something more than just replacing all the names with initials. She had anonymised registered titles to land to avoid someone looking them up in the Land Registry and so being able to identify the parties from them.
Having the position statements made a huge difference to my understanding of the case. They set out the background, identified the issues for the court (in a much fuller way than the court order did) and set out the evidence and legal arguments which each party proposed to rely on. Had the hearing actually gone ahead, I would have had a much clearer picture of what it was about than in a case where I had nothing but the terse statement in the court order to go on. So, in a way (from a purely selfish perspective), it was a pity that the case in fact settled; the parties managed to reach a compromise and, after further wrangling, they even decided who was going to bear what costs. But in another way it was not a pity at all, because it is much better for the parties if they can reach agreement on a solution amongst themselves, rather than having one imposed by the court.
The judge made a point of complimenting the applicant on her “realistic” approach in deciding not to pursue what was beginning to look like a rather weak claim. Directions were given and an undertaking given by all the barristers to agree and file a draft order with the judge the next working day. [Update 29/4/16: Where parties compromise a Court of Protection case, the judge needs to approve it on P’s behalf.]
I was, once again, the only non-participant in attendance. There was no press reporter. The three barristers in the case were all from the same chambers – 5 Stone Buildings – which I found interesting, though it is not unusual since barristers are all self-employed and in a specialised area of practice there may not be many different chambers to go to. I wondered why they could not have settled the case over tea in chambers but of course you can’t settle without the consent of your clients and that was why they’d been closeted in separate consultation rooms at the court, still discussing their differences even as the hearing was due to begin.
The Court of Protection transparency pilot scheme was designed to run for at least six months, and (according to the press release announcing its commencement) to provide “evidence to assess whether the Court should in future hold its hearings in private or in public and whether access should be given to the media but not the public”. Part of that evidence will, I infer, consist of how the media have responded.
A good example of distorted and excessive media coverage from the Court of Protection is the case of “C” (Kings College Hospital NHS Foundation Trust v C  EWCOP 80), which Julie D has written about here. Although that was not a case within the pilot scheme, being a serious medical treatment consent case decided last year, there was a further judgment this month, V v Associated Newspapers  EWCOP 21, in which the Court of Protection extended reporting restrictions even after the person concerned, having refused life-saving medical treatment, had died. In a schedule tacked onto the end of the main judgment (see paras 189 onwards), Mr Justice Charles (who chairs the ad hoc Committee on the Court of Protection Rules) made a number of observations about the difference between hearings in public in serious medical treatment cases and those in public under the transparency pilot, in terms of how reporting restrictions are notified to the media and others.
A key difference is that in the former, under Practice Direction 13A, the media will be given notice in advance of an application to impose reporting restrictions and the order will identify the people whose identities are not to be published and who are not to be approached for information. Under the pilot scheme, the media is not normally given such notice; it is only when people turn up at the public hearing that they are given the order and both this and any other information (such as position statements – see above) is provided in pre-anonymised form. So, in a sense, they don’t know what they don’t know. If they happen to see or hear a name during the hearing itself, the order prevents them divulging that outside. (As it happened, I did hear a few names in the course of the hearings I attended.)
We are now about half way through the transparency pilot period, unless it is extended, and the first thing to be said is that media coverage has not been overwhelming. Without conducting exhaustive research, the impression I get is that a bare handful of cases have been reported in the news media. But the fact that the pilot was taking place was widely reported, often using the inaccurate shorthand description of the cases as involving “sick and vulnerable” people. Lack of reporting is not, however, a sign of failure. What would be a sign of failure is a lot of distorted and inaccurate reporting of the cases, similar to what occurred in the C case, and that does not appear to have happened.
Of course, there will be cases that have attracted the attention of specialist law reporters, such as the Community Care Law Reports published by Legal Action Group and the Court of Protection Law Reports published by Jordans; and some of them will have been picked up by more general series like the Weekly Law Reports published by ICLR and the Family Law Reports (also Jordans). So a possible benefit of the transparency pilot may be the fact that some cases that might not otherwise have featured in the law reports will now do so. But this may be a bit of an illusion. That is because, as in the family courts, when a case in heard in private, the judgment can still be released into the public domain if it contains a point of legal or public interest. The key difference is that under the transparency pilot that becomes the norm rather than something left to the judge’s discretion.
The effect on how cases are reported is only one aspect of how the pilot should be assessed. Crucially, there is the effect on litigants themselves. Such research should be more than merely anecdotal, but we have yet to see how this is planned to take place. Other interested parties whose feedback should be sought include the judiciary and the legal practitioners involved in the cases, for whom it will have imposed an additional burden in terms of preparing anonymised documentation and judgments. But there are benefits too, in that it will have raised awareness of the need to be conscious, when dealing with such cases, of the public scrutiny and media coverage they may attract. That scrutiny is an essential element of open justice and there seems no good reason why, with suitable protections in place, that should not operate in the Court of Protection in welfare and property cases just as much as in serious medical treatment cases. (And, by extension, family law cases of the sort normally heard in private.)
It is not clear from the announcements on the Judiciary website how they plan to gather feedback, but in the schedule to his judgment in V v Associated Newspapers Ltd, Charles J says, at para 216:
Comment and contributions from the media and others on the points made above and generally on the practice relating to and the terms of Pilot Orders and PD 13A Reporting Restrictions orders would be most welcome.
Accordingly, we will continue to monitor the pilot scheme on this blog, and intend to offer our own feedback in due course.