Following my first experience of attending a Court of Protection hearing in public under the pilot scheme, described in an earlier post, I attended another case hearing last week to see how far it would follow the same pattern, and whether I could pick up some more information about the court’s work.
In fact the subject matter wasn’t very different. Once again, it was the sort of case that would normally have been heard in private, concerning someone who didn’t have the mental capacity to decide or consent for herself, and where she should live. The problem in this case was not family dissatisfaction with the care home options, but a lack of joined up approach on the part of the various medical authorities. However, the procedure was very similar to the earlier hearing. I was asked to sign a form confirming that I had received an order of the court, requiring any reporting of the case to respect the anonymity of the parties concerned. On this occasion the local authority was specifically named in the case, so one did not have ask. And when the hearing commenced, we were all introduced – in fact the judge had the list of our names and invited each of us to identify ourselves. This time there was no reporter and I was the only non-party present. I was allowed to come forward and sit in solicitors’ row.
What I learned this time, though, was that it is possible when attending such a hearing to ask for the parties’ “position statements”. These are documents supplied to the court in advance of the hearing, setting out from each party what its position is.
Coming into court and hearing a case for the first time, it can be really baffling knowing what is going on and what the background facts are. All the parties already know all the background and so do the lawyers and other professionals, as does the judge who has read the file in advance. An experienced press reporter will know how find out more, even if they have to wait till the hearing is over and speak to one of the lawyers or parties. But as a member of the public one doesn’t always have that opportunity. So being able to read these position statements would make a big difference. But you have to specifically ask for them, and there’s nothing in the order which you sign for, or in the information given to non-parties, to suggest that you have any such right. I would not have known unless I had been told.
My proposal, for what it’s worth, is that the order itself – the one you are made to sign for – should set out in a bit more detail what the case is about and what the issues are that the court needs to decide. In this case, all it said was:
“IT IS HEREBY ORDERED that
(1) This application be set down for an attended hearing on 18 March 2016 at 2pm before District Judge Eldergill with a time estimate of 2 hours at which the Court will consider the following issues:
(a) whether to make final declarations as to capacity,
(b) whether to make interim orders regarding residence, care or deprivation of liberty,
My suggestion is that there could either be a further paragraph setting out some of the background detail, or that this paragraph could be enhanced or expanded to include that detail.
Here, by way of example, is a section of the opening part of a judgment given by the same judge in another recent case, cited as PB v RB & anor  EWCOP 12:
2. The case concerns the welfare of RB, a 74 year old woman who has dementia. At the present time she lives in a residential care home referred to as E Care Home.
3. RB has one son (PB) and three daughters (CL, DB and LA).
4. The primary issue is whether it is in RB’s best interests to remain at E Care Home or to return to her home at R Close.
5. A third possibility, that she move to extra care supported housing at R Court, is no longer an option because it is unlikely to have a vacancy for some considerable time. R Court could potentially have provided RB with a two-bedroom flat with 24 hour support.
This would provide anyone coming into court – as it provides those reading the beginning of this judgment – with an outline sketch of what’s going on and what the case is about.
My alternative suggestion would be for the applicant (as happens in care proceedings) or for the court itself to provide a separate document, explaining the background and issues in the case. This document could then be handed out alongside (or as an appendix to) the court order imposing reporting restrictions which you have to sign for before the hearing. That would ensure media reporters and interested (or merely curious) members of the public would not be left in the dark.
The objection to such a proposal might very well be to question the value of the additional work involved, without having any idea whether media reporters or members of the public were likely to attend the hearing or not. At least the position statements are something the parties need to provide anyway. So could they not automatically file extra copies with the court, just in case?
This brings me to another point. How many people – especially non-media people – actually do attend these hearings? The pilot scheme has been going for a couple of months now. Discreet inquiries made to court staff at the Holborn building suggested that apart from the Press Association reporter, the number of non-media attendees could easily be counted on two hands. There may be more at other court locations.
We would certainly like to hear from anyone who has availed themselves of the opportunity to attend such a hearing under the pilot scheme. It would certainly be a shame, after all the press carping about “secretive” hearings, if, when the court was actually opened up, nobody came to see it. There must be a risk that the experiment will be deemed a failure and not rolled out in any permanent form, in which case it will be transparency that suffers.