Independent wins a 'hugely important' victory for the vulnerable
Landmark ruling allows media scrutiny of court dealing with society's defenceless
Thursday 01 April 2010
A controversial court which hears all of its cases in secret will open its doors to the media from today, following a successful legal challenge by The Independent which was immediately hailed as a "hugely important" victory for transparency.
Until now, all cases heard at the Court of Protection – which makes decisions about people incapable of managing their own affairs, including those with Alzheimer's disease, brain-damaged soldiers and others with limited mental capacity – have been held in private.
But yesterday, three of the country's most senior judges cleared the way for journalists to attend hearings provided they had "good reason" to do so. The Lord Chief Justice Sir Igor Judge, Master of the Rolls, Lord Neuberger, and Sir Mark Potter, the President of the Family Division and the Court of Protection, ruled that the presence of selected journalists "will ensure that matters of legitimate public interest may be drawn to the attention of the judge". The judgement, handed down at the Court of Appeal, sets an important precedent which opens up future cases to media scrutiny.
Over the past six months The Independent has been in touch with a number of people who say that the court has treated them unfairly. They include:
*A woman who was forcibly separated from her adopted son, who suffers from severe epilepsy and ME. The court ruled in favour of the local Primary Care Trust, which claimed she was a bad influence and that her son should be removed to a specialist care home.
*A woman who was prevented from caring for her elderly, blind aunt, following a dispute with her nursing home and a local authority over a number of care lapses. Her aunt died four months later.
*A woman whose access to her elderly sister, who suffers from multiple sclerosis, was restricted to one hour every fortnight after she complained to her local authority that the care home was not equipped to meet her needs.
In each case the facts have proved extremely difficult to establish, because the media have been prevented from attending the hearings.
Yesterday's ruling stated: "[The judge] is not qualified to determine what is or may be of interest to the public: that is the function of the media. In any event, it would be an inappropriate exercise of a judge's responsibility... Therefore, while the presence of a small number of media representatives would somewhat reduce the privacy of the proceedings, it would enable those representatives to be fully aware of the issues which may be of legitimate interest to the public."
Dan Tench, a media lawyer with Olswang LLP, said: "This could have significant consequences in terms of freedom of information and allowing access for the media to situations from which previously they have been barred. From now on, if the Government wants to restrict such access, it will at the very least have to have a good reason for doing so."
The change in the law was prompted by a test case brought by The Independent and supported by other media organisations. It centres around a severely disabled but gifted young man, whose talents have brought him international fame. Lawyers for this newspaper argued that there was a strong public interest in the media being given access to "appropriate" cases in the interests of open justice.
The court has so far taken control of more than £3.2bn of assets, acting in cases where people do not leave a lasting power of attorney which hands control of their assets to family or friends.
In November, the Justice Secretary Jack Straw ordered a review into the workings of the court, after it emerged that it had received more than 1,200 complaints from members of the public in its first 18 months of operation.
"It is valuable for the public to be fully informed of what happens in a court in which the overwhelming majority of cases are ... to be conducted in private," the judges concluded. "That is a particularly significant point in the light of the concerns which have been expressed about the new Court of Protection."
A Ministry of Justice spokesperson said: "We have always said that it is open to the press to make an application to attend the court on a case-by-case basis."
My father's story: By Gillian Row
My father Herbert was living with my stepmother in West Sussex. He'd remarried at 80, many years after my mother died, and was in good health. He didn't suffer from Alzheimer's and, apart from being slightly forgetful, was fully cognisant. So when he became ill it was a very rapid decline.
I saw him at Christmas 2005, when I noticed for the first time things weren't right – he spoke to me for a number of minutes as if I were his sister, discussing life in India where he had grown up. Within a couple of months, after a number of falls, he'd become completely mentally incapacitated.
A social worker explained that, as happens in many cases, because Dad was incapacitated and I didn't have lasting power of attorney, all his financial matters would now be dealt with by the Court of Protection and that I would have to hire a solicitor to apply to become my father's receiver, now known as a deputy. This was complete news to me. I hadn't even heard of the Court of Protection.
My father had a reasonable pension, so the money side of things wasn't really an issue, but we did have to pay the solicitor a hefty fee for applying on my behalf to the court, plus the further fixed sum of £695 to the court for processing the application. My father would have been furious about handing over his money in this way had he been aware of the situation.
Any dealings I had on the phone or by letter with the court seemed to completely dehumanise the situation, and I almost felt like someone from whom my father needed to be protected – not his loving daughter but "the enemy". My father was now known as "the patient" and I was "the receiver".
Whenever I rang to speak to someone at the Office of the Public Guardian, it was almost impossible to get hold of anyone, and when I did I was shunted from one person to another. The people in the office seemed cold and totally uncaring.
The most upsetting time came when I received a formal letter saying that the court was sending a "visitor" to see my father. I had to sit there with my father trying to interpret everything he said, because she couldn't understand what he was trying to say. I felt I was being checked up on and it was humiliating for both my father and me. I was enraged to think that anyone would consider that I wouldn't do everything I could to help and protect my father.
While I completely understand that some people are abused by their carers, my situation must be a common one for people caring for elderly parents, and I now urge all my friends to talk to their parents about getting a lasting power of attorney for them while they still can, so they don't have to go through the same situation, which made an already distressing situation even worse.
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