Expert welcomes calls for greater Court of Protection transparency

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Expert welcomes calls for greater Court of Protection transparency

8th November 2011

An expert in cases involving mental health and human rights legislation has welcomed calls for the Court of Protection to be subject to increased openness, public debate and legislation.

Echoing the views of the Court of Protection’s head judge, Sir Nicholas Wall, who said he believed the court should be opened up to public scrutiny, Mark McGhee, of Fentons Solicitors LLP said: “The Court of Protection is intensely private. I wholeheartedly welcome a move towards greater transparency as I firmly believe the court should be more open about its decision-making processes. It is heartening to hear that the head judge shares such a view.”

Set up in 2007, the Court of Protection is a specialist court handling over 1500 cases a month dealing with all matters concerning the personal property, welfare and finances of the most vulnerable people in society - those who are deemed to lack capacity to make specific decisions. While many cases involve elderly people who are unable to manage their own affairs, the Court also deals with an increasing number of younger people, including children who have suffered life-changing brain injuries.

Before a successful legal challenge by the media in 2010, the Court's hearings were automatically conducted behind closed doors. Now, judges decide on a case-by-case basis whether to allow the media into courtrooms. In exceptional cases where permission is granted, judges still retain the right to decide what, if anything, can be reported, and even when life and death matters are being decided, or a person's liberty is at stake, the Court very rarely allows journalists to report freely about cases and almost always insists identities of those involved are concealed behind single letters or sets of initials.

This apparent secrecy surrounding the Court of Protection and the fact that reporting rights are seldom granted has understandably led to the Court being accused of stifling debate and preventing legitimate public discussion regarding complex moral issues, as well as gagging the families involved from discussing their loved one’s cases in public or complaining to their local MP about cases in progress.

“Much of the criticism levelled at the Court is unfair,” said Mark. “It is important the public understands the huge responsibility it is charged with and the often incredibly difficult and harrowing decisions judges are required to make once they have balanced multiple factors against fundamental principles such as the right to family life, the right to liberty, the right to individual freedom of choice and the need to protect those who are deemed to be lacking in mental capacity.

“By their very nature, many of the 20,000 often tragic and complicated cases the court handles each year are private to the individuals concerned and their families,” added Mark. “However, in cases which set a precedent or cases involving wider public interest such as when decisions are made in regard to someone’s life-support apparatus, whether or not someone has the right to be able to have a family and certainly in cases where public authorities have violated an individual’s and family’s rights, cases should either be held in open courts or judges should be able to publish their judgments anonymously.”

Operating under the 2005 Mental Capacity Act, the Court of Protection can order that abortions be carried out or life-support machines be switched off. It can similarly order physical force to be used to make vulnerable people submit to medical procedures such as sterilisations where such procedures are deemed to be in their best interests. It can decide where an individual lives and who they live with, who they are allowed to see and how they are cared for. Under the controversial deprivation of liberty orders, which came into effect in 2009, it can also prolong the detention of people in hospitals or care homes against the wishes of that person’s family.

“These are incredibly serious powers we’re talking about, powers many people see as both dangerous and indefensible,” said Mark. “When the Court receives so much public funding to conduct work of this nature, the public is entitled to know how the system works. When vulnerable adults are forced to undergo incredibly invasive medical procedures or decisions are made to switch someone’s life-support machine off or to keep vulnerable adults away from their families, the public has a right to know how these decisions are made.

“It is widely acknowledged that the debate to open up the Court of Protection is ferociously contested on both sides but why can the media not be granted access when the case is in the public interest and the confidentiality of litigants and their families can be assured?” added Mark. “We need to have a system that protects the vulnerable and those unable to conduct their own affairs without interfering in the rights of families to look after the interests of their loved ones. I believe the work of the Court can be scrutinised without compromising the identities of the vulnerable people involved.”

Read more: Guardian