How a secret court was made to open up

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Indy Politics

The Act of Parliament that created the Court of Protection was pushed through in a hurry, amid an outcry from dozens of MPs, as the government tried to get its outstanding business completed in time for the 2005 general election.

The fuss then was over a clause that was going to allow people to make "living wills" saying what they would like to happen if they became incapacitated, which was interpreted as giving the green light to euthanasia.

With that furious row going on, MPs apparently missed the possibility that the Court might become controversial for other reasons entirely. As it came into existence, its officials took control of £3.2bn in assets, but those who experienced its working criticised it as clunky, costly and insensitive. When they tried to complain, they found that the Court was protected from public scrutiny by secrecy and layers of bureaucracy.

As these complaints filtered through to the media, they were difficult to verify because journalists were always barred from proceedings. Reporting a member of the public's disagreement with a court decision could land a journalist with a contempt of court charge. This secrecy was imposed because it was assumed to be in the best interests of the vulnerable people whose cases came before the Court.

The doors opened slightly in 2009 when the Court of Appeal upheld a court judgment obtained by The Independent which allowed reporters into the courtroom as long as they could show "good reason" to be there.

Yesterday's ruling does not mean that the Court of Protection is now open to the press and public in the same way as a criminal court – where the principle is that justice must be seen to be done – or even the family court, where there is a presumption that accredited journalists are allowed to report proceedings but names are withheld, so that the families retain their privacy while the manner in which the courts work can be scrutinised.

In the Court of Protection, the issue of whether there is to be any publicity at all is still to be decided on a case by case basis. That often involves hiring barristers and legal experts – a costly exercise that cannot be repeated frequently and is often well beyond the financial reach of local news organisations. Once inside a hearing, the judge has the last word on what, if anything, can be reported.

Even when permission is granted, the Official Solicitor (appointed to represent the interests of the person lacking capacity), the local authorities or the healthcare providers in a case will often fight to keep proceedings behind closed doors.

Local authorities are particularly jittery. For years they have been able to make often controversial decisions in absolute secrecy and it is rare for them not to put up a fight once they find out that the media want to report on these decisions.

Since turning our attention to the workings of the Court of Protection for the past two years, The Independent has been inundated with calls and emails from people who say they are unhappy with the way it works – most often, but not exclusively, from people who have seen individuals removed from their care, often on the say-so of a single health professional.

They also allege that any attempts to fight such moves in the Court orgo to the press result in an intense backlash from the local authorities who use the courts to restrict access even further.