Eleanor Roosevelt, 1958

'Where, after all, do universal human rights begin? In small places, close to home -- so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person... Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.' Eleanor Roosevelt, 1958

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Friday 4 March 2011

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, 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  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.


  1. Thanks for this. Fantastic post with some really useful links to the judgements. You raise some excellent points and I'm so grateful that you are writing this blog by the way, because it really helps me as a practitioner try to sift out some of the MCA case law. We are invariably trying to play catch up and rely on case law to help clarify some of the more difficult issues.

  2. Thanks CB, I think blogging is the way of the future for sharing across professions and disciplines, bridging research and practice. I get inspired by social work blogs like yours. As for sharing case law, see it as my contribution to the big society ;)

  3. Thanks for a thoughtful and insightful post. Is there any written, structured guidance (official or otherwise) on redaction policies for sensitive cases? I ask as someone involved with the project, i.e., potentially having to deal in practice with anonymising cases somewhere down the line.

  4. Hi Ryan,

    I'm afraid I don't know of any guidance on redaction policies. For cases heard under the Mental Capacity Act 2005, s12 AJA 1960 applies, for cases heard under the inherent jurisdiction see this case by Munby:

    But I'm really not sure what the redaction rules are. I know that one reason BAILII gives for not allowing Google to index its judgments is so that if the court realises it's published identifying information they can pull it from the public domain, and I can think of a couple of cases where the courts have done this. My guess is that it's left to the discretion of the judge how a case is redacted, although often in practice I think it's done by counsel and then approved by others involved in the case. I don't think anonymisation for the CoP is done by individuals other than court officers. Sorry not to be more help!

  5. Thanks for that. I'm not too worried actually if the answer is "use your common sense". If it's something we engage in with Judgmental, I'm sure a series of best practices will emerge over time.

    On the other hand, even 'professional' corporations and governments often get it wrong when it comes to data exposure. People not familiar with data protection and technology might not realise the relatively small amounts of personal data which can be used combinatorially with other sources and create a problem.

    If the Judgmental platform was made more interactive, it could actually be useful for CoP professionals to be able to flag parts of judgments which they feel may disclose undue information. It would be good to have your input if/when we get around to implementing something like that. Thanks!

  6. You might want to contact Jonathan Wilson at as he's got a lot of experience in these matters. I've also found the Court of Protection themselves are open to transparency promoting projects, so you could try contacting them?

    How were you planning to source the judgments themselves?

  7. Thanks for the contacts! I don't know if anyone from the CoP will be at the digital open justice event at the end of the month but I'll take it up with them if I meet any.

    I actually found this post because Judith Townsend quoted sections of it on the Judgmental mailing list. In the ensuing discussion it was suggested that we institute an upload facility (probably suitably moderated) like provides, and also use the corpus of cases they already have available there, contingent I suppose on receiving the suitable copyright permissions. To that end, it would be helpful if that website promoted the option to contributors of using a CC licence. Based on the conditions in their existing copyright notice CC-BY-NC might be suitable.

  8. I'll be at the DOJ event! Don't know about other COP types, don't know if they're aware of it? On MHLO, not really sue what the copyright situation is there, I expect that whole thing about the court's or the judges owning the copyright is relevant, but I've never really got my head around that. Probably best to ask Jonathan at MHLO, he know much more about these things!

  9. The guidelines are not to publish any information or judgments that shouldn't be... If you want to anonymise a judgment for publication it should be done in conjunction with the court rather than independently. You can use any judgments that are on Mental Health Law Online. With new ones, even if transcribed, they usually say Crown Copyright. I don't think you want to publish case summaries in any event, but please don't plagiarise them or copy more than a small handful. Where are you getting your transcripts from? You would need personally to trust everybody that uploads anything for publication.

  10. Determining what "shouldn't be" published is precisely the question; but it's not as if we'll be doing any independent investigations into cases, so it's unlikely that we'd end up with information in hand which hadn't been approved by a court.

    In saying that, perhaps it would be prudent to have a policy of only accepting documents from legal professionals, on the assumption that we can rely to an extent on their professional integrity and expertise in these matters.

    That would address the issue of personal trust as well. I picked a random page on MHLO and saw how you handle provenance, with a "Transcript provided by" line at the bottom, as well as the Contributors page. That's a very good idea; I would envisage us keeping the same information in principle, but probably in a different form (enabling semantic queries e.g. for "all transcripts submitted by solicitors" or "all transcripts received from barristers of X chambers").

    Thank you for the permission to use transcripts from MHLO. We might want to come back to you at a later time and be more explicit about what that entails:

    * For instance, official transcripts will be under Crown Copyright (or the copyright of the presiding judge(s), depending on who you talk to), so those would probably be fine.

    * Do you receive 'non-official' transcripts though, and what form do they take? If you do, do you have permission from the submitters to pass those on to the likes of us, to be distributed on another site? As I mentioned in a previous comment, an explicit Creative Commons license would simplify things. An Attribution-NonCommercial or Attribution-NonCommercial-ShareAlike license might work well. The Creative Commons website has a tool for selecting an appropriate license.

    As to case summaries, of course we wouldn't plagiarise your work. Not only is that antithetical to open web and open source principles, but as a law student it's beaten into me on a regular basis :-)

    Also as a law student though, I would like it if over time we accumulated a comprehensive set of case summaries, even if only community-contributed. Of course provenance information should be attached to those as well.

  11. If it has been approved by a court then you don't need to anonymise it. I've not given permission as such, as I don't have any rights in the transcripts: I just meant that we're all free to publish any of them. By contrast, for example, I think Bailii have copyright in their HTML versions. I sometimes get transcripts from barristers or solicitors before the court sends them to Bailii, but they usually end up there eventually. Most but not all 'legal professionals' are trustworthy: see !

  12. Ah, thanks for the clarification. I didn't know all the transcripts you have are the official ones; I assumed the fact that you're sent them by parties involved meant that an official version wasn't available, and you were working with notes made by legal teams themselves.

    As you say, since all your material is in fact coming from the courts that also effectively makes redaction itself a non-issue.