This is a guest post by Lucy Series. An extended version of this post appears on The Small Places blog.
The Court of Protection has just announced its first pilot project: on transparency.
The pilot project will reverse the presumption in the Court of Protection Rules 2007 that hearings are heard in private. In other words, the public and the media will now generally be allowed into CoP hearings. The purpose of the pilot study is to assess whether or not, in the future, hearings should generally be held in public, in private, or in private but with the media having a right to attend (as they are in family proceedings). The press release also says that hearings will be displayed with ‘a short descriptor of what the case is about, allowing the media and members of the public to make an informed decision on whether to attend the hearing.’ This is a significant step for the media, as without this information it’s very hard to know whether a hearing would be of interest.
This is a dramatic shift in policy. Earlier this year our report on transparency in the Court of Protection made various recommendations for reforms that could enhance the system of reporting on cases. The report was featured here on the Transparency Project site. These included enhancing the system for notifying the media about reporting restrictions, improving the listing of cases, and clarifying when the media could lawfully be told about a case. Another recommendation was to consider opening up the court to the media upon the same basis as in the family courts. But this is not at all the same as having public hearings because (as discussed in the report) even if the media do attend a Family Court hearing, they are subject to automatic restrictions on what they can report as it is technically still ‘in private’. We also discussed how families and people subject to court proceedings might feel about greater steps towards transparency, and concluded that there were signs that many would not welcome this but that more research needed to be done. I suppose a pilot project is one way of finding out how people feel about it, but this is beyond what I had envisaged.
The pilot will cover all geographical regions and last at least six months, with the possibility of an extension.
Here are the questions that ran through my mind when reading the press release…
- What consultation took place with affected groups about the pilot study?
- How will those who are already in the CoP system feel about discovering that their case is now likely to be heard in public? Will they know before the hearing? Will they have an opportunity to request that the hearing be held in private?
- Will the likelihood of a public hearing impact on those who are considering making an application to court – is there the possibility that it might have a chilling effect?
- What plans are in place to assess how the pilot goes, and how the different stakeholders view this significant change in policy on transparency?
- As these will be public hearings (not merely hearings in private which the media will attend), the automatic restrictions on the publication of information from s12 of the Administration of Justice Act 1960 will not apply. So does this mean that the public and media can literally publish anything in any of these cases (and what about the ones without a hearing – are they ‘public’ or ‘private’ in the meaning of the AJA)? Or will there have to be reporting restriction orders made in each and every case? And if so, will the current system for notifying the media work when there is such a high volume of applications? And who will bear the costs of drafting the reporting restriction applications?
Alongside the press release is a background note and a practice direction for the pilot study.
Orders and reporting restrictions
When CoP cases are heard in private, there are automatic restrictions on what can be reported about them. There are some systems in place which mean that those who might be minded to publish or otherwise communicate information about private proceedings would be sensible to exercise caution before doing so. But this is not the case for proceedings heard in public – the default position there is that anything can be reported (provided it is lawful in other respects as well). To stem the publication of information for public hearings, you have to make a specific order restricting its publication. And this has practical consequences…
The background note says that ‘The scheme will involve the court making, as standard (but with the possibility of making a different order if that is appropriate in a particular case), an order allowing for a public hearing but imposing restrictions on identifying in any report or other publication the person who is the subject of proceedings (known as ‘P’).’ So it seems that there will be reporting restrictions protecting the identity of the person whom the case is about (P) in each case. The text of a standard order is provided.
This might sound like a matter of just inserting some standard text into directions orders for hearings, but it may be a bit more involved than that. Generally speaking, reporting restriction orders are intended to bind the media, which means that under s12 of the Human Rights Act 1998 the media have to be notified about each and every such order that might be made. At the moment, this only tends to happen in the handful of hearings each year for serious medical treatment or where a decision has been made that they should be heard in public, or there is a particular concern about media reporting. Practice Direction 13A gives guidance on how and when to notify the media using the Injunction Alerts Service. My guess is that this is done in fewer than 100 cases per year. I can’t find recent data on how many hearings the CoP hears annually now, but my guess is that it’s more than 1000, possibly significantly more than that.
I can’t find any mention of this requirement for notifying the media of reporting restrictions in the practice direction for the pilot project. Reading the text of the draft order, I notice that it only mentions that the following persons should be bound by it:
(i) the parties and their representatives
(ii) the witnesses,
(iii) all persons who attend all or any part of an attended hearing, and
(iv) any body, authority or organisation (and their officers, employees, servants and agents) for whom any such person works or is giving evidence
In other words, the orders don’t appear to be intended to bind the media unless they are a journalist who attends any or part of the hearing. In which case, presumably the view is that they would be notified at the hearing in some way?
What does this mean for privacy? How would the media learn about a case? Presumably through either attending a hearing (in which case, they would be bound by the order), or through some other person telling them about it – as has typically been the case in many CoP welfare disputes that have been reported. In fact, this reporting restriction order does make it clearer that none of the parties or witnesses can tell the media about the case – or at least, not the identity of the person whom the case is about. As we explained in our report, this was actually unclear under the current rules. Ironically, unless the media turn up to the hearing, it may be harder now to tell them about a CoP case as there’s an explicit injunction against you communicating ‘any material or information that identifies or is likely to identify that… [ X] and members of X’s family are respectively the subject (and so a P as defined in the Court of Protection Rules 2007) or members of the family of a subject of these proceedings’ or ‘any material or information that identifies or is likely to identify where any person listed above lives, or is being cared for, or their contact details.’.
So perhaps the media don’t have to be notified. However, the media won’t routinely be bound by the reporting restrictions, and yet isn’t this what many people worry about when they talk about privacy in the CoP? Are there gaps in the privacy protection offered here in terms of media publication, if third parties alert the media to a case that no journalist attended? Perhaps responsible editors won’t test this, as the piloted system is presumably of great benefit to media wanting to report on a case – but how will they know what they can and can’t report, if they haven’t been notified? In effect, they may still have to apply for permission if there is the possibility that the RRO (which they haven’t seen) covers other information about the case than the person’s name.
Impact on litigants
I am not aware of any public consultation on this pilot project, and yet it has the potential to have a significant impact upon litigants involved in CoP proceedings. Litigants will presumably learn that the hearings will be in public through a directions order. I hope that their lawyers explain the consequences of this to them, and give them the opportunity to object if it is important to them that their case is heard in private. If they do object, I wonder how this will impact upon their legal costs. And how will litigants in person be placed in this system; will they spot the relevant provisions in the order before the hearing?
Assessing the outcomes of the pilot
It’s not clear from the press release and background note what criteria the success or failure of this study will be assessed against, and what tools the CoP and the Ministry of Justice will use to assess this success or failure. Will there, for example, be surveys and interviews with litigants about their views? As a researcher, I do hope that there are concrete and clear plans for appraising the success of the project and, in particular, its impact on those using the courts. It would be unhelpful to rely only on easily obtained feedback, such as the views of the judiciary or people who are motivated to air a view, or the media itself. There is a risk here of failure to engage with the views of those who matter most – those whose personal affairs are now being considered in public.
If there are plans for research underway, then the CoP and the MoJ will have to consider whether the provisions of s30-34 Mental Capacity Act 2005 apply, which provides safeguards for research involving those who lack the mental capacity to consent to participate. Not everyone involved in CoP proceedings will fall into this category but the group of those who don’t will not be representative of ‘P’ in general.
I appreciate that some families and Ps really do want to talk about their experiences to the media, and this has often prompted really important changes in practice and raised awareness about important issues under the Mental Capacity Act and in the CoP. However, many families don’t want their private affairs heard in public. I always think of the family in the heartbreaking case W v M, who were so frightened of media publicity they almost didn’t bring the case. I’ve heard similar stories about other families not bringing or withdrawing proceedings because of concerns about publicity. It’s not altogether clear what criteria will be used to decide whether or not a hearing should be in private. My hope would be that if any party (or P) objects to the hearing being public, the strong presumption would be that the case would be heard in private. I can’t think of many cases where that presumption should be rebutted, although perhaps some think that it should be for the deputies/attorneys ‘behaving badly’ cases. Even there, however, the risk is that if the deputy or attorney is identified, so can the person be (even if they aren’t named), and many people might feel embarrassed or upset to know that such an abuse of their trust is now also public information.
My main feeling about the pilot project is surprise that such a radical approach has been taken, rather than the incremental step of simply allowing media access and requiring the media to apply for permission to report what they think is of interest. We shall wait and see what transpires…
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