A few thoughts on the Guardian's Court of Protection piece

The Court of Protection hears cases about some of the most excluded and silenced people in our society.  It is surely a good sign that the media, that MP's and campaigners are sufficiently concerned about their plight that they take such an interest in this court's new jurisdiction under the Mental Capacity Act 2005.  As Amelia HIll has written in the Guardian today, the new Court of Protection came into being in 2007; the primary difference between this Court of Protection and the 'old' Court of Protection is a jurisdiction to hear matters of care and welfare.  According to the most recent Court of Protection report, the vast majority of the court's workload is taken up with property and affairs matters; fewer than 2000 of the 23,000 cases the court heard last year concerned welfare and care matters.  Nevertheless, it is these cases that capture the imagination of the public and the media.  Rightly so.  Amelia Hill is right to draw attention to the types of sensitive and controversial issues that fall within the court's jurisdiction: whether a person should continue to live with their family, or be removed from their care; levels of contact with family members in the presence of allegations of abuse; matters relating to sexuality like whether a person should be allowed to have sex, whether a person should be given contraception or be sterilised, whether a person should have an abortion; matters relating to medical treatments, including the power to coerce medical treatments and surgeries against a person's resistance, etc etc.  This court deals in the most intimate and personal matters in a person's life.  The question the Guardian has taken up, as other media outlets have before, is whether the court should be more open to ensure the decisions it makes are subject to proper levels of scrutiny and debate.

I have written quite a bit on this before (collected under the tag Open Justice), and my primary contention has been that the general rule that identities should be protected and information in the public domain should be subject to court imposed restrictions is appropriate and promotes justice.  I echo the words of Fenella Morris quoted in the Guardian: 'It seems to me there's an unfairness in saying that if you lack capacity, you don't have the right to the same level of privacy and dignity as the rest of us.'  However, I believe there should also be a general rule that written judgments are published for every case (particularly care and welfare cases), and that unless there is a very good reason (given in the judgment) any public authorities involved should be identified.  On the question of media attendance of hearings, I would be interested to know how many hearings the media have actually been refused access to.  From the sounds of what journalists tell me, the process for applying to attend a hearing is costly and involved; I'm sure improvements could be made and I'd like to see what recommendations they propose.  But I'm not sure a general rule of an open court would promote justice.  The media have tended to be involved in cases where families have sought them out and desired that they attend; I doubt that the majority of families involved in Court of Protection proceedings would want this.  The biggest concern would be that a full media gallery would have a chilling effect upon applications applications to the Court of Protection, and drive these decisions further underground away from even the scrutiny of the courtroom.

What I feel many in the media and family justice movement have failed to understand, is that before the Mental Capacity Act 2005 created the Court of Protection these kinds of decisions - around sexuality, medical treatments, family life - were still being taken, but without any kind of judicial oversight.  They were taking place in staffrooms, far from the eyes of either the law or the media, and only rarely did anybody seek judicial authorisation for controversial decisions like removing somebody from their family or forcing medical treatments upon them.  Only rarely would a family manage to challenge a decision they disagreed with.  The Mental Capacity Act 2005 hasn't just magicked up a whole range of new practices that interfere with liberty and family life; it has attempted to impose the rule of law on coercive practices that were already occurring, and offer families an appropriate route to challenge them.

The deprivation of liberty safeguards are another example of where the court's new powers to detain a person in their best interests impose the rule of law on practices that were already - are already - occurring throughout the country on an unscrutinised, unmonitored, and unchallengeable basis.  In the limited amount the deprivation of liberty safeguards have been reported upon, the media have tended towards the view that "more deprivation of liberty authorisations = bad".  This couldn't be further from the truth.  In all seriousness, what did they think the DoLS have changed?  Do they think the care homes and hospitals have suddenly started detaining a whole population that they didn't before?  The truth is that these people were already detained, and they were detained without any legal framework to reduce its arbitrariness and guarantee them a right to appeal.  The issue the media should be concerning themselves with is not that the courts have new legal powers to deprive people of their liberty; but that people up and down the country are currently deprived of their liberty without any legal powers at all.

I was interested that in a separate interview with the Guardian Sir Nicholas Wall:

...used the interview to discuss the court's controversial deprivation of liberty safeguards, which allow council or NHS officials to restrain someone in a hospital, care home or retraining facility for as long as the state deems it to be "in their best interests".

At present, these powers are only available to judges sitting in the high court in London. Wall, however, revealed his support for broadening the remit to include circuit and district judges, with a consultation launched in the next month.

"If we are at the stage where case law has been established, then we can gradually work our way towards having people outside London who are competent in the work of the court of protection, acting as judges," he said.

Care and welfare proceedings in general, and the deprivation of liberty safeguards in particular, are said to be causing significant problems within the Family Division of the High Court, through diverting judicial resources away from their normal business of family cases without any increase in resources.  It is no wonder that Sir Nicholas Wall, then, would want these cases to be heard by circuit and district judges.  I would be interested to see what the consultation finds though, as the case law seems to me to be far from 'established' - in the DoLS at least.  Only a few weeks ago a high court judge refused to rule on whether a person was deprived of their liberty or not, because the case law was so unclear.  Perhaps that will change when the Cheshire ruling comes out though.

I just wanted to take issue with a few comments made by John Hemming on the Court of Protection, reported in the Guardian.

First, he says, the "secrecy" of the process – which can extend to families being ordered not to complain to their MPs about cases in progress – undermines the fundamental principle of British law that justice must be both done and seen to be done.

It strikes me that Hemming is seeking to conflate issues he regularly campaigns on in family justice matters with the Court of Protection.  Indeed, that may be why the article cites the case of Rachel Pullen as a Court of Protection case, when - although it did concern issues of mental capacity - it was surely primarily a family court case concerning her children.  I've never really known what evidence Hemming bases his contention that the family courts are ordering families not to complain to their MP upon, but I would absolutely astonished if this was occurring in the Court of Protection.  I challenge him - and media outlets that reproduce this claim - to provide evidence that a Court of Protection judge has even once ordered a family not to complain to their MP.  [Edit 07/11/2011: John Hemming has been in touch to say that he knows of specific examples where a Court of Protection judge has made such an order. However, he says he can't provide more information without getting his constituents into trouble, which is fair enough.  It was apparently discussed on 17 March 2011, I think in this debate, although I'm not clear which of these cases he is referring to.]

Second point:

The second problem, [Hemming] says, is the use the court makes of single experts to sum up all the evidence presented, instead of a range of experts giving varied opinions.

Instead, Hemming wants disputes dealt with under a tribunal system, where people who are detained may appear in person instead of having decisions taken on their behalf by the official solicitor, on the advice of a single expert.

I have to say I find this argument absolutely laughable.  One of the key differences between the Court of Protection and tribunal systems is surely that such a range of experts and other witnesses are called upon.  That is precisely why Court of Protection cases are lengthy, costly and involved, and why it would be hard to deal with them under a tribunal framework.  It is my contention that the 'best interests' framework under the Mental Capacity Act 2005 has significantly shifted the balance of power away from 'single expert' justice, because it covers such a range of issues.  Unlike many other areas of law, the Court of Protection judges absolutely do not defer to the authority of medical experts, or single experts.  In fact one of the things that is striking about cases like W v M (the case of the minimally conscious woman whose family sought to allow her to die) is the range of voices heard that would normally be ignored in the courts.  Baker J heard evidence not only from medical authorities, but also Occupational Therapists, Physiotherapists, care home managers and even ordinary care staff - not to mention family.  And all their views were accorded respect and considered in hist judgment.  Take another case on litigation capacity, V v R [2011], the court heard evidence from a psychiatrist, a neuropsychiatrist, two neuropsychologists and the claimant's mother.  This is a far cry from the 'single expert' view that Hemming paints, and I'm not really sure what kinds of cases he is referring to.

As for the idea a tribunal system would be better - does Hemming mean a tribunal system like the one used in mental health?  The one so 'secretive' that the media and 'transparency' campaigners have all but forgotten to campaign about it?  The one where Albert Haines had to fight to have his case heard in public, and where - even so - the hospital sent their PR officer to sit in on his interview with the Independent (I'm sure it was his best interests they were looking out for there...).  Talk about secret justice - where are the published judgments for those cases then?  And this system covers far, far more people.  It's true that tribunals are more 'accessible' in certain respects than the Court of Protection, but that doesn't mean they offer a better guarantee of justice. There is research that suggests that the mental health tribunals do not treat patients particularly fairly, that they discredit the views of patients, and that they defer excessively to medical opinion.  They have to do this, in my view, to get through so many cases so quickly; the difficulty with not having a rigid hierarchy of expertise is that you have to listen carefully to everybody's view - and that takes time.  

I agree with Hemming that there are issues in the way litigation capacity is managed in England and Wales; I'd like to be more convinced that the mechanisms for restoring legal capacity are robust.  I'd like to see the people at the heart of these cases more involved in the court proceedings.  But I'm really not sure on what grounds he thinks a tribunal system will help.  Court of Protection cases are lengthy and involved mainly for the reason I've just pointed out: they don't just defer to the opinion of a single expert, they do take the views of family and P themselves seriously, and they balance a whole range of factors beyond the medical.  The single biggest threat to justice in my view is the lack of resources to enable the court to continue to do that.