Balancing transparency with 'secrecy' in the Court of Protection

There probably aren’t many people who want to know what ‘goes on’ in the Court of Protection more than me; it’s what I spend much of my time trying to fathom.    An outsider would be forgiven for thinking that this branch of Her Majesty’s Court Service doesn’t feel that case law in this tangled and difficult area is anybody’s business but it’s own.  The reasons for this appearance are complex though, and not necessarily the fault of any individuals working within the courts. I think it’s important to draw a distinction between different ways that greater ‘transparency’ could be achieved; some might be more helpful than others.

Making more judgments available

First, and most pressing from my perspective, is the issue of making judgments available.  As a researcher, I rely on them to see what the law says.  It’s not just law geeks like me though, practitioners desperately need case law to guide them in the tough everyday decisions they make.  It’s not always easy for them to find them - there are ways to find some, but they’re not always obvious, and others never surface at all.

This seems to me to tie into a wider problem about ‘Open Justice’ in this country.  It’s an astonishing fact, that I only became aware of when I became a legal researcher, that it’s terribly difficult for people without expensive subscriptions to services like Westlaw and Lexis to actually found out what the law says.  First there’s the incredible state of affairs that although the government puts statutes online at legislation.gov.uk, it doesn’t necessarily update them when they are amended by future laws.  If you don’t believe me, try looking for the deprivation of liberty safeguards in the Mental Capacity Act 2005.  They should be at the bottom, under Schedule A1 – but they’re not there (or not on the date of writing, readers of the future!).  Here they are though, under Schedule 7 of the Mental Health Act 2007; you’ll notice that the changes to the Mental Capacity Act brought in by this bit of the Mental Health Act 2007 haven’t been updated on the Mental Capacity Act itself.

Case law isn’t much better.  Thanks to the sterling work of the Institute for Advanced Legal Studies at the University of London, all case law from the Court of Appeal and most from divisions of the High Court are available from Bailii.org.uk.  The website looks rather unassuming, but it’s revolutionary in terms of opening up justice; and in my view it’s a great shame that the courts themselves haven’t taken the initiative on doing this.  There’s a great article here on the Binary Law blog about some of the problems faced by Bailii and others in getting the judgments online.  One of the most interesting facts in this post is this:

There is still a restriction on the number of English cases from divisions of the High Court which can be added to the BAILII database, arising from the fact that the shorthand writers who transcribe judgments which have been given verbally (as opposed to those handed down on paper) own the copyright in the transcribed version of the judgment. This prevents the judgment being added to the BAILII database without the consent of the shorthand writer. BAILII, being a free website, has no funds with which to acquire a licence to copy and display these transcripts.

Now, Bailii has added a Court of Protection section to its pages here.  There’s about 9 cases from 2009, 20 from 2010, 2 (at the time of writing) for this year.  In an article I read this morning in the brand new Elder Law Journal (it’s really good – I recommend it – you can order a free copy on their website) District judge Alex Ralton says the Court of Protection receive 19,000 applications in 2009; 75% of those related to property and affairs, and 25% to personal welfare.  You might be forgiven for asking – where on Earth are they then?!

To be realistic, it would serve nobody’s interests if the court made all these judgments publicly available.  Imagine the work taken just in redacting them all, so that people’s names and identifying details were masked?  And who would want to plough through them all in order to find the ones related to their own areas of concern?  Most case law is made by district judges, and is likely to be a relatively uncontentious recital and application of the law.  But there are areas which are still contentious – the deprivation of liberty safeguards are a good example of this – where case law still struggles to make it onto the Baillii website.  Quite a few of them can be found on the Mental Health Law Online website, but even this list is not guaranteed to be comprehensive as it relies on solicitors uploading them themselves (I’m not quite sure why they can be uploaded onto this website and not Bailii – anyone any ideas?!).

One reason why judgments may not be published is that they may not all be suitable for public consumption. Not because they mask anything sinister, but because the judges of the Court of Protection are extremely, extremely busy and under resourced.  Reference to this is made by the Office of Court Funds Official Solicitor and Public Trustee in their report, the Court of Protection report itself, and comments to this effect are made in various judgments.  Judges who have a great deal of cases to sit through may well issue judgments that give directions so that those involved in welfare know what they need to do, but they may not spend so much time on the more theoretical questions like ‘what makes this case a deprivation of liberty?’ or ‘what are the wider principles we should apply to best interests decisions’.  Because mental capacity law is highly fact sensitive it might be confusing to publish these judgments if people were to extrapolate from specific situations to other contexts where they don’t apply.  This may be one reason why the courts themselves have refrained from allowing them to be more widely circulated.  To my mind, this is a real shame, but it’s not straightforwardly the ‘fault’ of the judges – it is to do with wider issues of resourcing the courts themselves. Something that only the government can really remedy.

Allowing the press in

There has been an increasing clamour from the press to ‘open up’ the Court of Protection.  In some respects I have some sympathies with their arguments, but in many I don’t.  The recent judgment of Mr Justice Peter Jackson in London Borough of Hillingdon v Neary gives a great discussion of some of the key issues, and I really recommend reading it.

A general argument in favour of allowing the press to watch proceedings is that ‘there is a public interest in the work of the Court of Protection, and the way it uses its considerable powers to make orders which affect the lives of vulnerable citizens’ [7].  This relates to the wider perception of the Court of Protection in the public domain.  I often feel quite protective of the Court of Protection when I hear the way it is described in much of the popular media.  But misconceptions and suspicion will thrive unless people have a clearer idea of what the court does.  I feel pretty sure that if the public did have a better idea of what went on in the court, what reasoning decisions were usually based on, a lot of these suspicions would subside.  In part, the courts themselves – including the judges – perhaps need to make stronger efforts to engage directly with the press in explaining their reasoning.  I read articles, speeches and other works by judges in academic journals and at conferences which contain important principles around welfare and dignity and placing limits on the paternalistic interventions of the state that few would disagree with – but these don’t filter down to most people.  On the whole, Judges tend to shy away from media attention, and they have good reason to be wary of being seen as ‘political’ or ‘fame seeking’ etc, but if ordinary people are to trust the courts they will need some kind of insight into what they do.  Only the courts can provide that, since they direct what can be said about their work.

In some (hopefully rare) cases families actively want the press to sit in on cases because they want the world to know about any wrongdoing that has been found to occur by other public authorities involved in their lives.  This is a tricky issue, and one that the courts must be careful about.  A first point is that I would be extremely reluctant to have the media sit in on cases where families don’t want them there.  For any families who don't seek their presence, especially those who are litigants in person, it could be extremely daunting to have the press attend hearings - it could well leave families more reluctant to give a full account of what occurred.  Another factor is that a good many Court of Protection cases include very, very sensitive situations, where it’s simply not appropriate that the individuals involved are identifiable and their ‘dirty laundry’ is washed in public, as it were.  Think of the background to the MEG & MIG (P & Q) case – the history of neglect and abuse did not only touch upon the lives of the individuals the case concerned – but their wider families too.  It would clearly be unfair for them to be identified.  There’s a fine balance, between allowing the individuals and families concerned to tell their stories (they have a right to freedom of expression), but not allowing the fear that other, more painful, stories will be exposed to a wider public to prevent them from accessing justice when they need it.

Having said all that, if the courts were to systematically allow the press to sit in where families were angry with public authorities, the resultant press attention would be heavily biased against public authorities themselves.  Clearly this is undesirable for public authorities – and may in fact discourage them from referring cases to court when they should.  It would also feed an unfair perception against their work.  Local authorities in particular intervene at times because the families themselves are not meeting the needs of their relations; in some cases, situations amount to outright neglect and abuse.  We hear a lot in the press about cases of local authority wrongdoing – but for entirely good reasons, local authorities are unable to trumpet when they have intervened because of wrongdoing by families.  It seems to me that it would be inappropriate for local authorities to ever be able to tell 'their side' in these safeguarding cases, no matter how frustrating that must be for professionals involved.  The responsibility for balanced reporting must lie with the press - they must ensure that the public is are aware that sometimes intervention in family matters is appropriate, just as the press would acknowledge it is in child protection.

It would also be undesirable in a wider sense if the press only ever report on cases where public authorities have acted inappropriately.  Serious damage could be done to the public’s faith in them more widely.  I was really frustrated to see in the Independent’s reporting into the Neary case that the lead article said:

Mr Neary's mistake was to turn to Hillingdon council in December 2009 when he was suffering from flu-like symptoms. He asked them to take his son into a residential care home, supposedly for just three days to give him respite.

Using respite services when you need to is not, and should never be reported as, a mistake.  Irresponsible throwaway comments like this cause people to lose faith in the local services they rely on to ensure their loved ones, or themselves, get adequate support and care.  What would have been far more helpful in this instance would be if the papers informed the public about the mechanisms that are available to families to resolve disputes, not pin the blame on respite services.

In general, I have to say, I have been really, really disappointed with the quality of reporting of Court of Protection cases.  From petty mistakes, like papers saying the Court of Protection was set up under the Mental Health Act 2007 rather than under the Mental Capacity Act, to wider misrepresentations of its powers and actions.  I don’t mean to single out Deborah Orr, because I’ve seen very few articles that did report particularly accurately, but some of the comments she made in this article are a good example of the way journalists generally don’t seem to understand the very way the court works.  Orr writes of this case:

In both P's and Alan's cases, the judge, if not the jury, is still out. But a couple of things seem extraordinary. First, it would have been pretty easy to check whether Alan was actually at risk of disease, by checking with his partner. Second, it seems accepted that there is no question that P's partners could or should be controlled.

If Orr had read the judgment carefully, she would have seen that the reason the judge did not consider whether Alan was at risk of infection by his partner was because the case law (in his view of it) directed him to look at the question of whether Alan could decide for himself about sex – not whether sex was in his ‘best interests’.  It would be far beyond the court’s (or the local authority's) powers to direct that another party, not represented at proceedings, were tested for STD’s solely for the benefit of another party.  Likewise, under what jurisdiction would the Court of Protection be able to direct that P’s partners (who may have capacity, or may not) be ‘controlled’?  Orr is right that, on the surface, it might seem extraordinary to some – but surely the point of responsible journalism is to look at what underlies these ‘extraordinary’ appearances and report on that as well.

Someone commented to me on Twitter recently that ‘confidential’ would be a preferable word to ‘secretive’ in describing the Court of Protection – and I agree with that.  The 'secrets' the court keeps it does with good reason.  All the welfare decisions it deals with concern perhaps the most private aspects of anyone’s lives.  Why should these aspects of people’s lives be paraded before the press for the sole reason the person concerned lacks mental capacity?  Most people would be horrified to think that the details of their sex lives, for instance, were to be discussed in front of a court, and adding journalists into the situation hardly makes the process more dignified.  My tentative view – and I’m open to argument on this – is that I see no good reason why the press, if they are that interested, cannot rely on judgments like the rest of us in the vast majority of cases. Even then, there is clearly an issue that those who know the individuals involved may well be able to identify them from the judgment and learn more than they need to know about very personal aspects of that person's life.  But a balance has be brought somewhere between transparency and privacy, and in my view publishing judgments with identifying features redacted brings us closer to it than open court.

I don’t think the courts are ‘secretive’, meant in a pejorative sense.  Aloof, distant, slow to acknowledge and respond to public and professional need for more information about their activities – yes.  But sometimes there are some secrets that are best kept just that, in the interests of all.