Most of us will not need to come into contact with the Court of Protection, which since its establishment in 2005 has ruled on the property, financial affairs and welfare of people who are unable to take responsible decisions for themselves.
This is, in other words, a very important court, precisely because it adjudicates on behalf of some of the most vulnerable people in our society, which is why this newspaper’s revelations about the casual and far from transparent manner in which some of these decisions are made should worry everyone.
What The Independent has discovered is that judges of the court in some cases seem to be issuing snap rulings on people’s welfare – including on whether they should be allowed to die – out of hours, on the telephone. One retired judge has recalled that he was in the back of a taxi when he issued a ruling on whether a Jehovah’s Witness with learning difficulties should have a transplant.
One problem with these out-of-hours rulings is that some are made after hearing the testimony of only one party’s barrister. Decisions crucial to people’s livelihoods are thus taken on the basis of a single summary of the rights and wrongs of all the sides involved – a tall order given the complexity of some of the cases that the court handles.
That judges are deciding any matters involving life and death on the basis of one side’s testimony will probably surprise many. We cherish the idea that impartiality remains the cornerstone of British justice, namely the right to a fair hearing, which implies judgment following the delivery of arguments both for and against. Of course, most people accept that the volume of work before courts these days means that judges must take an increasing number of decisions without the involvement of juries, which is a regrettable development. But routinely allowing one-sidedness in the process of evidence submission looks like a bigger step in the wrong direction.
What should cause additional concern is that judges are not obliged to make recordings, written transmissions or even keep detailed notes of these rulings, which makes it hard to evaluate their quality or appeal. We do not know even how many are made each year.
The opaque character of the rulings meanwhile gives rise to suspicions that something untoward may be taking place. Lawyers have told this newspaper of their suspicions that some local authorities may be taking advantage of a provision intended only for the last resort to get cases rushed through that might be contested if they were heard during normal court sitting hours.
No one is suggesting that this out-of-hours provision should be scrapped. There will always be cases coming before the Court of Protection, especially over weekends, that cannot wait until it sits at 9am on Monday.
But we have a right to insist on a much greater degree of transparency in these rulings. John Hemming, the chair of the All Party Parliamentary Group on Family Law, is today calling on the justice committee to look at some individual cases. He says the Government is complacent about the system and that as an absolute minimum statistics need to be kept about the number of out-of-hours rulings as well as about the outcomes. We support him in this. In handling decisions made concerning, and on behalf of, the mentally incapable, the Court for Protection has a weighty responsibility. If is to live up to its name, its decision-making processes need to be far more visible and accountable than they are now.
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