The Court of Protection is often described in the media as a ‘secret court’, because it typically sits in private and reporting restrictions often prohibit the publication of information about cases. Yet because the court deals with highly sensitive and personal issues, it is also important that the privacy of litigants is protected. This can lead to tensions between the desire of the media and others to impart information about the court, the desire of the public to learn more about these cases, and the privacy interests of the person whom the case is about and their family.
As part of our research on the Court of Protection, we held a roundtable meeting in London last year, bringing together experts with a range of perspectives on transparency in the Court of Protection to discuss issues like media reporting on the court and the publication of judgments. Participants included members of the judiciary, lawyers with experience of acting for litigants in Court of Protection welfare cases, media lawyers, journalists and other professionals working in media, civil servants and researchers. We have produced a report describing the discussions in that meeting, as well as a summary of the existing legal framework for transparency.
At the roundtable, participants argued that media reporting on Court of Protection cases, and the publication of judgments, were important for the following reasons:
- To enhance public understanding of the Court of Protection ‘s work;
- To protect against miscarriages of justice;
- To promote public confidence in the court;
- ‘Open’ and ‘accessible’ judgments were said to be important for access to justice for litigants in person who might not have access to law reports or legal advice.
Whilst all participants broadly supported the principle of ‘transparency’, there was some disagreement about what this entailed in practice. Some participants highlighted the limited evidence base for claims that transparency protected against miscarriages of justice. There was concern about the potential harm to individuals about information from their private lives being in the public domain, including the distress which could arise from reading published reports about one’s own case – even if this did not result in further harms. Lawyers with experience of Court of Protection litigation warned that even with ‘watertight’ reporting restrictions, anonymity could not always be guaranteed, commenting that although transparency was important ‘there is a price to be paid’.
There was unanimous agreement that there were some serious shortcomings with current arrangements for media access and reporting on Court of Protection cases. In particular, representatives of the media argued that the need to apply formally to attend a hearing was costly, and could have a chilling effect on reporting Court of Protection cases – this would have a disproportionate impact on smaller media organisations. All participants felt that arrangements in the Court of Protection for media attendance at health and welfare cases should be brought in line with the family courts, where the media do not need to make an application to attend private hearings, but the court has powers to exclude them on specific grounds and restrict the publication of information.
A significant area of concern was how the media could, or should, be informed about important cases. There was disagreement among the participants about whether it is lawful for a party, or their lawyer, to alert the media to an important case; there is an urgent need for clarity on this issue. Some participants felt that the court listings should be more informative, so that the media could see which cases might be important in order to send a journalist to attend the hearing. There were also concerns about the procedures for notifying the media about reporting restrictions.
On the basis of discussions at the roundtable, we have identified the following issues for further exploration:
- Consideration should be given to whether the court should adopt a rule change to permit the media to attend important welfare hearings, as well as serious medical treatment cases, without making an application first – mirroring the practice in the Family Court;
- Consideration should be given to improving the system for informing the media of important Court of Protection cases;
- There is a need for greater legal clarity about when parties and legal representatives can lawfully inform the media about a case;
- Practice Direction 13A may need to be updated to remind the parties of the need to notify the media of any order imposing reporting restrictions, in addition to notifying them of any application for reporting restrictions;
- The court, or researchers, should explore ways to collect statistics on how effectively the transparency guidance on the publication of judgments is being complied with: how many judgments meeting the criteria for publication under the new guidance are, and are not, being published?
- More research is needed on: the views of litigants about media reporting on Court of Protection cases and the publication of judgments; the users of published judgments and their information and access needs; the effect of ‘transparency’ on the behaviour of the judiciary and other actors within the legal system.
A copy of the report can be downloaded here: Transparency in the Court of Protection Report