Mark Neary: The father who opened up secret courts - Home News - UK - The Independent

Mark Neary: The father who opened up secret courts

One year ago, Mark Neary brought his autistic son home, and out of care. He tells Jerome Taylor how his harrowing legal battle helped shine a light on one of the UK's most controversial judicial systems

Mark Neary was watching his son Steven take part in a music class last week when a thought hit him. "I was looking at Steven, watching him enjoy the class, when it suddenly came to me," he said. "If we hadn't fought our corner he would be in that hospital in Wales right now.

"It's like a flashback, all the memories come flooding back."

Just under a year ago a court ruled that Steven, a 22-year-old autistic man from north-west London, had been unlawfully deprived of his liberty when he was taken away from his father and placed in a care home for nearly a year.

Mark fought a lengthy battle to prove that the council was wrong, even as they prepared to move his son hundreds of miles away to a new care home in Wales. He eventually won in a victory that reunited a family and shone a spotlight on the workings of Britain's little known Court of Protection.

The court was set up in 2007 to administer on behalf of some of Britain's most vulnerable people – those who lack the mental capacity to make their own decisions.

Steven may not be able to make crucial decisions about his life, but the memory of being taken away from his father still haunts him. When the court finally ordered his return he would ask his father every day whether he was going to go back to the care home.

"We still have that," says Mark. "He's always asking whether they'll come take him away. It's horrible."

Crucially, his behaviour has improved dramatically since his return. When Steven was kept at the care home he would regularly lash out at staff, who often logged between 10 and 12 instances of difficult or violent behaviour every week. The local council insisted that was partially why he needed to be kept under their supervision. Mark argued relentlessly that the only reason he was acting up was because he missed home. He has since been vindicated.

"The positive thing is that Steven is really content now," he says. "He's much happier. I have to keep a log and he rarely has any instances now. He's back where he belongs and that's important."

Two years ago no one outside of Mark's immediate circle of friends would have known anything about his troubles, or even that Hillingdon Council had acted unlawfully in taking away his son.

It was only when The Independent won a series of legal victories allowing the press to attend a small number of Court of Protection hearings that the curtain began to lift on what was once one of Britain's most opaque judicial systems.

That was 18 months ago and in the meantime the public has become significantly more knowledgeable about the court's operations. But there is still a long way to go. Few would doubt that vast improvements have been made within the court since it has started to be subjected to a modicum of public scrutiny. The media's campaign to be allowed in to cases of public importance has coincided with an increasing desire by some of the court's most senior judges to push for more transparency. Sir Nicholas Wall – the head of the family division – Lord Justice Munby and Mr Justice Hedley have all spoken out in favour of allowing press into some cases and publishing more judgments in anonymised form. The judiciary has balked at suggestions that the court is secretive. They say it is closed to protect the privacy of vulnerable individuals but more steps must be made to make it more transparent where possible. As a result, the public is more aware of the often tortuous decisions these judges have to make in what can be complicated and often deeply tragic situations.

In the past 18 months the public has been told of a string of vital cases including a decision not to allow a woman in a minimally conscious coma to have her nutrition withdrawn; an elderly couple's fight to go on holiday after their local authority refused them permission; a mother's bid (eventually withdrawn) to have a daughter with severe learning difficulties sterilised because she kept getting pregnant; and numerous disputes where children have been removed from their parents – rightly or wrongly – by local authorities. None of these could have been made public before.

Details have also emerged for the first time of how the Court of Protection intervenes to prevent serious wrongdoing. As well as the Neary judgment, we now know that an 18-year-old man with autism and severe learning difficulties was unlawfully deprived of his liberty by Wigan Council when he was placed in a padded cell 192 times in a single month. We also know that employees of a care home in Cheshire were sacked after they doctored the records of a difficult patient in their care.

"The media's work in publicising what has happened in the Court of Protection has been incredibly helpful," says Richard Charlton, chairman of the Mental Health Lawyers Association. "The Neary case in particular was a blast of clean air. It shone a fantastic spotlight on how powers can be abused but also how the court can stop such abuses."

Among lawyers there now are fewer signs of resistance to applications from the media to report some cases. When The Independent first sought access to the Court of Protection we were vehemently opposed by both local authorities and the Official Solicitor – appointed by the government to represent those who are unable to make key decisions about their lives. The paper had to fight two separate cases through the High Court with both going as far as the Court of Appeal costing the media tens of thousands of pounds. Each time the judges found in the media's favour, saying it was vital the public had a good idea of what the court did in their name in cases that were of legitimate public interest.

Fast-forward two years and negotiation (not litigation) is becoming more common. Reporters have been able to turn up at court and argue their own way into a position where they can report proceedings – so long as the identities of those concerned are protected.

Yogi Amin, a specialist in Court of Protection cases with the law firm Irwin Mitchell, says there is growing recognition within his trade that coverage of the Court of Protection is healthy. "Journalists need to turn up, be interested and have a go," he says. "Lots of times there have been cases where no lawyers have been needed to decide what can be reported."

Last week The Independent sat in on a case in Birmingham in which a local health trust was trying to seek the court's permission to carry out an exploratory procedure on an 87-year-old woman with dementia to gauge whether she might have cancer.

The media and lawyers acting on behalf of the local trust negotiated reporting restrictions prior to coming to court – allowing The Independent to detail an important medical case while keeping the identity of the women completely secret. Rather than reserve a morning of court time arguing whether the media should be allowed in, the judge approved the reporting restrictions within minutes, allowing the court to focus its energy on the 87-year-old woman instead.

The case came to court because the woman's son objected to her being placed under general anaesthetic so that doctors could discover whether repetitive internal bleeding was caused by cancer.

A gynaecological oncologist was adamant that an exploratory procedure needed to be preformed with urgency and gave powerful testimony from the witness stand. "My clinical nose is twitching a lot," he said. "I'm concerned about a woman who continues to bleed. I worry about it a lot. I'd say there's perhaps a 50 per cent chance this could be cancer." In the end the son did not show up in court and – after hearing evidence that a general anaesthetic posed little risk – the judge ordered the medical procedure to go ahead.

Such cases are the bread and butter of the Court of Protection which receives more than 20,000 applications every year, 1,200 of which turn into full-blown hearings. Judges have to make difficult decisions about deeply private matters. Scrutiny of their decisions has helped boost confidence in the court's ability to deliver justice. Lord Justice Munby, the current chairman of the Law Commission, recommends that the Court of Protection should try to publish as many decisions as possible, not just the extraordinary or unusual ones.

"Releasing for publication only those judgments which are 'reportable' means that the public obtains a seriously skewed impression of the system," he has written. "What one might call 'routine' judgments in 'ordinary' care cases and private law cases should surely also be published – all of them, unless, in the particular case, there is good reason not to."

But so far this doesn't seem to be happening. Only a tiny fraction of judgments ever make it into the public domain. The legal website Bailii, a charity which collates court judgments and is one of the few ways outside of the mainstream media that the public can access court decisions free of charge, lists only 20 Court of Protection judgments from 2011. The figures for 2012 are even worse. In the first five months of this year only two judgments have been published, compared to six by the same period last year.

"It's a real problem," says Lucy Series, a PhD researcher at the University of Exeter. "I don't think judges are being deliberately secretive, it's more that the system for publishing judgments is both archaic and chaotic."

Opening up the court of protection: cases we now know about

Deprivation of liberty (June 2011)

A long-running battle between Mark Neary and Hillingdon Council which began when Mark's son Steven was taken into care for nearly a year after his father fell ill. It is one of the few Court of Protection cases where everyone, other than the care home Steven was taken to, has been named, because the identities of Steven and Mark were known before proceedings began. The court ruled that Hillingdon acted unlawfully in depriving Steven of his liberty. He now lives with his father again.

Minimally conscious woman (September 2011)

A tragic case that has set legal precedents in the debate over right-to-die requests. The family of "M", a woman who was brain-damaged by viral encephalitis, went to the court to ask whether nutrition could be withdrawn. M is in a minimally conscious state, which means she exhibits occasional glimmers of awareness. The court decided that the preservation of life, while not absolute, was a fundamental principle and refused permission for nutrition to be withdrawn.

The right to have sex (January 2012)

In January this year, a case revolved around "H", a 27-year-old woman with learning difficulties, autism and a highly sexualised history where men had often taken advantage of her. The court was asked to decide whether H had the capacity to consent to sexual relations. The judge eventually decided that she lacked the capacity to understand contraception or that sex could result in pregnancy, clearing the way for the local authority to control whom she sees.

In numbers: UK's secret courts

20,000+ Applications are received by the court every year; most are comparatively simple cases appointing a deputy to manage the property and affairs of someone who is newly incapacitated.

1,200 Number of applications that turn into full-blown court hearings ranging from a few hours in front of a judge to a week-long hearing or more.

15-30 Applications received every month that challenge the deprivation of someone's liberty. The figure doubled after the Steven Neary judgment. There is no figure on how many deprivations of liberty are in place across the country, nor on how many appeals are successfully challenged.

163,000 Lasting power-of-attorney applications were granted in 2010, an 86 per cent rise on the previous year.

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