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A version of this essay was first published in the British Journalism Review.
The odds are that you as a BJR reader - or as a member of any randomly selected demographic - might, one day, find your own or a relative's life touched by the Court of Protection. The Court of Protection, or "CoP", is where decisions affecting the lives of vulnerable adults (those deemed to lack the "mental capacity" to do so themselves) are made. They may have lost "capacity" after a brain injury, or the creeping onset of dementia, or oxygen-deprivation, or a congenital disability - the list is long, and ever-increasing, thanks to medical advances and a rapidly ageing population.j
Since its creation under the Mental Capacity Act 2005, the workload of the CoP has been massive. Its current incarnation is a descendant of the old "lunacy" jurisdiction, with the focus now firmly - and correctly - on the "best interests" on the person lacking capacity ("P"). Having decided whether a person actually does lack capacity, the CoP's remit includes the appointment of deputies to represent P's best interests - often a highly contentious issue.
Most difficult of all perhaps are what one judge has called the "agonising" decisions which these courts are called upon to make about P's welfare and financial affairs - particularly when they involve disputes surrounding where P should live, or with whom, or whether it is in his/her "best interests" to have contact with family members. The most intimate issues before the CoP have included whether P's best interests are served by allowing him/her to have sex, to fall pregnant, or even to holiday with a spouse.
Such intimate matters clearly engage P's Article 8 privacy rights under the Human Rights Act; even before it was enshrined in UK law, the old Court of Protection held its hearings in private. But while other sensitive legal arenas opened their doors, legislating to admit journalists (the family and youth courts being a notable comparable example), the CoP did not follow suit.
The media have recently endured unprecedented opprobrium as the Leveson Inquiry and Hackgate have dominated the news agenda. Perhaps this is a time to recognise the often unsung expenditure of time and resources which is devoted to reporting cases heard behind closed doors.
"It is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done."
Thus spoke Lloyd George's Lord Chief Justice (Lord Hewart) in 1924, explaining why we, the public – or at least the press, as our eyes and ears – should be admitted to almost the entire British court system. ‘Open justice’ underpins and straddles several of the rights enshrined in the Human Rights Act – the right to a fair trial and the right to freedom of speech being but two examples. How these can be squared with P's privacy rights is the question.
The principle of open justice was never absolute. Mr Justice Bayley said in 1829 that ". . proceedings should be in public, and that all parties who may be desirous of hearing what is going on…[should be admitted]... provided there is no specific reason why they should be removed…”
Such reasons were found to apply to certain categories of court proceedings which were closed to public and media scrutiny - perhaps most strikingly, those involving national security or the rights of children or vulnerable adults.
By 2009, the year when new legislation allowed the media automatic access to the family courts, the Court of Protection remained almost the last remaining court to conduct all its affairs wholly behind closed doors. That was the year that an Independent reporter heard on Radio 4 about the blind and autistic pianist Derek Paravicini's first concert tour with an orchestra. Struck by his remarkable life story, the journalist’s attempts to investigate the musician’s current circumstances hit the buffers. It turned out that decisions relating to the affairs and living arrangements of this world-famous performer were in the hands of the CoP. This meant an automatic blanket prohibition on investigating, hearing about or reporting anything relating to the case.
The Independent's legal department was asked by the reporter whether anything could be done.
The media were by that time allowed access to the family courts, although no reporting was permitted without the consent of the judge. When The Independent applied to attend the Paravicini proceedings, it soon became clear how very different matters were in the CoP. The Mental Capacity Act of 2005 made provision in its Rules for anyone who could show “good reason” to attend its private hearings – but these were uncharted waters, as no media organisation had ever before tried to do so.
This first media application turned into an expensive test case, jointly brought by a consortium made up of newspaper and broadcasting organisations. The Court of Appeal decided in favour of the media, a ground-breaking decision paying more than lip-service to the open justice principle, whilst simultaneously recognising that it does not strictly apply to CoP proceedings. The other significant legal development in their leading judgment was that for the first time, the judges explicitly recognised that the right to freedom of expression in Article 10 of the European Convention of Human Rights includes the freedom to receive – not only to impart – information and ideas. In other words, the public had a right to be informed, in addition to the media's right to freedom of expression.
As the Court of Appeal said:
“It would be difficult to find a more appropriate hearing before the Court of Protection for media understanding of its processes. It is valuable for the public to be fully informed of precisely what happens in a court in which the overwhelming majority of hearings are…. to be conducted in private. That is a particularly significant point….in the light of the interest and concerns which have been expressed in some quarters about the new Court of Protection.”
The media might have been forgiven for believing that applications to attend private CoP proceedings would now be relatively straightforward. This was not to prove the case.
The next CoP story to interest The Independent involved a lengthy, expensive and farcical legal battle, which, briefly summarised, resulted in no newspaper reporting of the substantive hearing. This despite another victory in the Court of Appeal for The Independent, allowing it access to the hearings. This time the person at the centre of the case was a young man whose life story was not already widely known to the public. However, Jerome Taylor, the reporter following the case, was ultimately ‘ambushed’ at the regional court where the substantive issues were decided, as lawyers persuaded the district judge not to allow any reporting. He describes the experience vividly in his accompanying article to this piece.
Despite that bruising encounter, The Independent – which has led the continuing campaign to open up the Court of Protection - has kept the faith and has to date been involved in eight CoP applications to attend private proceedings. These have all been vivid illustrations of the day to day workings of these courts, ranging from a woman in her sixties’ fight for access to her sister, to a mother’s struggle for contact - even by phone - with her son, to an autistic adult’s unlawful removal by a local authority from his father's care at home, to a disabled man’s deprivation of both his liberty and his former foster parents’ care; to give but a few examples...
Much credit is due to the senior judges who have done so much to dispel the widely held perception of the CoP as a "secretive" court, and to consider and define the threshold of "good reason" for media attendance and reporting.
In 2011 Mr Justice Peter Jackson, when allowing the media access to a case surrounding the care of an autistic adult named Steven Neary, neatly summarised the new judicial willingness to allow the media access:
"There is a genuine public interest in the work of this court being understood. Not only is this healthy in itself – the presence of the media in appropriate cases has a bracing effect on all public servants, whether in the field of social services or the law – but it may also help to dispel misunderstandings."
He went on:
"The ability of the media to participate need not be limited to cases involving extraordinary individuals such as Mr Paravicini. Interesting and potentially important examples can arise wherever decisions have to be taken about people whose lives mirror those of large numbers of others in the same position. In considering whether good reason has been shown, the question is not whether the individual is exceptional, but whether the issue is one of genuine public interest."
Steven Neary is a young autistic man found to have been unlawfully deprived of his liberty by Hillingdon Council. His father Mark, who also writes in these pages, credited the media coverage of his case for Steven's return home.
Should public authorities shelter under the privacy umbrella?
Professionals in this field often seem to disagree with both the senior judiciary and the families locked in disputes over their vulnerable relatives’ care with the authorities. Why should intimate details of a person's life be aired in public, they argue, just because they are "vulnerable" and unable to object to unwarranted publicity? Consequently all too often, journalists and newspaper legal departments are met with strong resistance by council officials or primary care trusts who might, one sometimes suspects, prefer that their acts or omissions not be held up to public scrutiny.
Against this, The Independent and supporting media organisations have argued that anonymised court reporting – as in other "sensitive" cases – protects the acknowledged and respected privacy rights of the vulnerable individual. It can only be a good thing to shine a light on the agonising decisions faced by judges. The media should be allowed to act as the eyes and ears of the public; the principle of "open justice" should extend to these sensitive cases. The senior CoP judges have agreed, and The Independent has won every one of its contested applications, including twice in the Court of Appeal.
The problem is the disproportionate expenditure of time and resources required each time that a reporter's interest is caught by a CoP "story". Nevertheless the media's persistence has been rewarded by a slow but definite sea change in attitudes - putting The Independent's Jerome Taylor on the shortlist for the 2012 Paul Foot award for campaigning journalism.
From a situation in 2009 when no reporter had ever attended a closed Court of Protection hearing, we have moved to a position where the parties involved are often open to negotiation allowing our attendance. We have even, on occasion, been able to agree in advance what reporting, if any, should be allowed (the presiding judge permitting), thus avoiding costly and time wasting legal argument in court.
It has been hard for budget-cut newspapers to continue to devote scarce resources to costly court applications when there is no guarantee of a "story". But the fight continues for the CoP, like the family courts, to automatically allow reporters in – cases involving invasive medical treatment are routinely heard in public, with reporting restrictions imposed as needed. Why should less ‘dramatic’ cases exclude reporters?
Steven Neary’s case was just one example of the strong public interest self-evidently inherent in publishing stories involving the alleged or actual malfeasance of public bodies. Clearly the actions of public bodies, particularly where they impact on the most vulnerable members of society, should be subject to public scrutiny. It seems difficult to justify automatic reporting restrictions which effectively allow public authorities to escape that scrutiny, and to shelter under an umbrella of anonymity which was never designed to protect them, but rather the vulnerable person whose well-being they are charged with safeguarding.
The campaign will go on – resources permitting – until CoP hearings are normally reportable - albeit within privacy safeguards set by each presiding Judge hearing a case.
So far, other than in my legal work, my life has not been touched by CoP, either directly or indirectly. But were that to change - subject to my dignity being preserved, and my identity kept private - I would like the Fourth Estate to keep an eye on things for me.
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