The Court of Protection plays an important role in safeguarding the welfare of some of the most vulnerable individuals in society. Established by the Mental Capacity Act 2005, the Court is vested with significant powers to assist individuals who lack the capacity to make their own decisions.

Yet despite the obvious public interest in the Court’s work, relatively little is known about the institution itself or the cases that come before it. One of the principal reasons for this is the fact that, unlike in most judicial proceedings, cases before the Court of Protection are usually heard in private without the media or public being present.

In the recent case of London Borough of Hillingdon v Neary [2011] EWHC 413 (COP) the issue of media access to Court of Protection proceedings arose for determination. In a short and clear judgment, Peter Jackson J held that several media representatives should be allowed to attend hearings in the case, to identify the parties and to report any information that was already in the public domain. Although the judgment is avowedly fact specific, it nevertheless contains a helpful explanation of the factors that the Court of Protection will take into account when deciding the appropriate level of media access in individual cases. The judgment also provides a valuable discussion of the important role that the media can play in dispelling misperceptions and in informing the public about the Court’s work.

The facts

The proceedings concerned Steven Neary, a young man with autistic spectrum disorder and a severe learning disability. Steven lived with his father, who was also his main carer. In late 2009 Steven moved into local authority residential accommodation for a few days’ respite care. However at the end of this period the local authority decided that it was not in Steven’s interests for him to return home. Steven’s father disputed this assessment and during the impasse that followed Steven remained in local authority care for almost a year. He eventually returned to live with his father in December 2010, by which time proceedings had been commenced in the Court of Protection.

Two substantive issues arose for consideration in those proceedings. The first concerned the arrangements for Steven’s future care. The second concerned an application brought by Steven’s father and the Official Solicitor for declarations that the local authority had acted unlawfully in refusing to allow Steven to return home before December 2010.

At the outset of the proceedings several media parties applied to the Court of Protection for access to the hearings and for permission to report the parties’ names. If access was granted then a further application would be made in due course for permission to report information about the substance of the trial.

The issue of media access was complicated by the fact that Steven’s case had already received significant media coverage by the time that it reached the Court of Protection. The matter had been reported on BBC national radio and local television news and had featured in Private Eye on several occasions during 2010. An online petition set up by Steven’s father had also accumulated over 8,000 signatures. As a result of this coverage Steven’s name, address, the nature of his disability, the circumstances leading to his placement in respite care and his behaviour whilst in care were already in the public domain.

The legal framework

The rules regarding access to and reporting of the Court’s proceedings are contained in the Court of Protection Rules 2007. Rule 90(1) establishes the general principle that hearings in the Court of Protection are held in private. However the Court also has the power to allow any individual or class of people to attend the hearing (r. 90(3)(a)) and may  authorise publication of specified information about the proceedings (r. 91(2)(a)). And in an appropriate case it may even order a hearing to be held in public (r. 92). Any one of these orders can be made at any time provided that there is “good reason” to do so (r. 93).

In Independent News and Media v A [2010] EWCA Civ 343, [2010] 1 WLR 2262 the Court of Appeal ruled that a two-stage process applied to all applications brought under these rules. First, the Court must decide whether there is “good reason” to make an order. Secondly, if there is good reason the Court must then go on to decide “whether the requisite balancing exercise justifies the making of the order”.  As part of that balancing exercise the Court must consider the relative strength of the competing Article 8 and Article 10 interests at play.

In laying down this guidance the Lord Chief Justice explained that:

“The new statutory structure starts with the assumption that just as the conduct of their lives by adults with the necessary mental capacity is their own affair, so too the conduct of the affairs of those adults who are incapacitated is private business. Hearings before the Court of Protection should therefore be held in private unless there is good reason why they should not. In other words, the new statutory arrangements mirror and rearticulate one longstanding common law exception to the principle that justice must be done in open court.”

Neary concerned the application of these principles in a case where a large amount of relevant background material was already widely available in the public arena.

Judgment

Peter Jackson J began his analysis by referring to the decision in Independent News and Media and asking whether there was “good reason” to exercise the Court’s powers to permit some degree of media access. Three factors convinced him that this “good reason” threshold had been met in the present case. First, there was a public interest in the business of the Court of Protection and the way that it uses its extensive powers to make orders which affect the lives of vulnerable citizens. Secondly, the case involved allegations that the rights of Steven and his father had been seriously infringed for a prolonged period of time by the actions of the local authority. Thirdly, as mentioned above, a substantial amount of information about the case had already been made known to the public.

The Judge then turned his attention to the balancing exercise. He explained that the effect of publicity on individuals is a key consideration: “Any evidence that suggests a real possibility of a detrimental effect from publicity must weigh heavily.” However at the same time the Judge cautioned that there must always be “some proper factual basis for such concerns”. Mere speculation is therefore insufficient and proper evidence must always be provided.

Another relevant factor is the “genuine public interest in the work of this court being understood”. Peter Jackson J identified two dimensions to the public interest in this context. First, “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”. Secondly, allowing the media access to the court “may also help to dispel misunderstandings”. The Judge argued that it was not in the interests of individual litigants or society generally for a court responsible for the protection of disadvantaged people to be characterised as “secretive”:

“It is part of our natural curiosity to want to know other people’s secrets, and using pejorative descriptions of this kind may stimulate interest. The opportunity, in appropriate cases, to follow a process that has welfare, not secrecy, at its heart can only help the media to produce balanced reporting, and not fall back on clichés.”

The Judge explained that the ability of the media to participate was not confined to cases involving extraordinary individuals such as David Paravicini, (the musical prodigy who had been the subject of the Court of Protection proceedings in the Independent News and Media case). This is because:

“Interesting and potentially important examples can arise whenever 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.”

On the specific question of whether or not the parties should be named, Peter Jackson J also referred to the following further factors:

(a)  Stories about particular individuals are much more attractive to readers than stories about unidentified people: In re Guardian News and Media Limited [2010] 2 WLR 325, [63]. Therefore, the potential for advantage or disadvantage from publication is “somewhat magnified by the personalisation of the proceedings.”

(b)  Once the parties’ names are publicly attached to the proceedings, the Court’s ability to control that information is lost. Accordingly, “parties should not be named at the outset where any real possibility can be foreseen of the balance falling the other way at the end of the proceedings.”

(c)  On the other hand, it is in no-one’s interests for proceedings to be stultified by the withholding of information that is already in the public domain.

After reciting these considerations the judge then explained his reasons for granting the media access in the present case. First, Steven’s circumstances were already in the public domain to a considerable extent. If the claims made by his father and the Official Solicitor are made out, then the facts deserve to be known to the public. On the other hand, if those claims are not made out then it may be right for the record to be corrected. Secondly, there was no evidence to suggest that Steven would suffer detriment or distress is the media were granted access. In particular, the Judge “entirely reject[ed] the possibility that the media would exploit its presence at future hearings by irresponsible journalistic practices, such as door-stepping an autistic man”. Thirdly, the Judge emphasised that the risk of a negative portrayal of Steven’s behaviour by the media was unlikely and in any event could be mitigated by the fact that “the court can control what information from the proceedings is reported”.

In reaching this conclusion the Judge also noted that the reaction to the information that had already been published about Steven’s situation had been “sympathetic” and that there was no evidence that any member of the public had taken a hostile view towards Steven as a result of anything published in the media about the case. On the contrary, the Judge felt that “a far more natural reaction to knowing more about the situation of Steven and his father is likely to be a desire to support and help them.”

On the specific question of whether the parties should be identified by their full names at the outset of the proceedings, the Judge said that it would be “frankly unreal” for the case to continue under initials, given the extent of information already publicly available. However in any event there was no foreseeable possibility of the Court preventing the media from reporting the parties’ names at the end of the proceedings and therefore there was no reason not to do so at this stage.

Discussion

The decision in Neary is an important illustration of the way that the Court of Protection can use its powers to permit an appropriate level of media access without compromising the need to protect the best interests of protected individuals. Although the judge emphasised that his decision was “not intended to represent a precedent, nor a change in practice” the overall tenor of the judgment is clearly receptive to responsible efforts by the media to inform the public about Court of Protection business.

A couple of specific points call for comment. First, in discussing the reasons for conducting Court of Protection hearings in private, Peter Jackson J said that:

“The affairs of those who are not incapacitated are normally handled privately. People should not routinely have their lives exposed to public gaze simply because their affairs come before the court as a result of their incapacity.”

This statement echoed a very similar passage in the Court of Appeal’s judgment in Independent News and Media. However a similar point could arguably be made about victims of crime (who frequently have to undergo public cross-examination about their private affairs) and claimants in personal injury cases (who often have intimate details about their physical and emotional health exposed to public view).  In both of these types of case the victim/claimant may be entirely blameless and the private information in question only becomes public because of something that was entirely beyond the innocent party’s control.  One might therefore ask whether those proceedings should be treated any differently to proceedings concerning the affairs of people who are incapacitated in some way.

Secondly and more importantly, Neary is notable for the positive attitude that the Court of Protection showed towards the role that the media can play in promoting public understanding of the Court’s role and the sort of cases that it regularly deals with. Granting access to the media can help to demystify the Court and to dispel the pejorative overtones of “secrecy” that otherwise tend to accompany many reports about the Court’s activities. The judgment clearly suggests that responsible reporting can actually be encouraged by allowing access to what would otherwise be closed proceedings.

Thirdly, the judgment also makes it clear that the presence of the media can have a salutary effect on how the Court of Protection actually performs its functions. Closed proceedings are often attacked on the basis that justice must not only be done but “must be seen to be done” too – the implication of this argument being that media access is mainly concerned with showing that justice has been done rather than ensuring that the process itself is just in the first place. However in Neary we find a suggestion that the interests of justice are themselves served by the “bracing” effect of the media’s presence at court proceedings. In other words, the simple presence of the media may help to focus minds, deter improper practices and ensure that decisions are adequately reasoned. This is an important point and it is one that can in theory be applied to any court or tribunal.

Conclusion

Despite its faintly Dickensian name, the Court of Protection is a modern institution operating in a legal environment where open justice is the norm and private hearings are the exception. The Court’s Rules represent a deliberate deviation from the usual position regarding access to judicial proceedings. This is done in order to protect the privacy of individuals who lack capacity to exercise control over their personal affairs. However the very reason that calls the Court of Protection into being – the need to protect the best interests of incapacitated individuals – is also the foundation for a strong public interest in opening up the Court’s work to responsible media reporting and public scrutiny.

Whilst the facts may be slightly unusual, Neary represents a sensible and pragmatic approach to reconciling these two important interests. The judgment recognises the potential benefits of media reporting and places an appropriate degree of trust in journalists to behave sensibly when doing so. And it makes the reasonable assumption that responsible journalism can actually be promoted by providing access to what would otherwise be unseen and unreported hearings.

Edward Craven is trainee barrister at Matrix Chambers.