Scuba diving in the murky waters of the CoP transparency regime

It’s been a while since I’ve blogged about open justice and ‘transparency’ issues in the Court of Protection, but ahead of a report on transparency that we’re going to publish shortly, I thought I’d share with you some slightly rambling thoughts on Mr Justice Newton’s recent ruling in A Healthcare NHS Trust v P & Q [2015] EWCOP 15.

The case concerned an application for an NHS Trust to withhold and potentially also to withdraw some treatment from a man who had experienced severe hypoxic brain damage from a cardiac arrest.  The Trust believed he was unlikely to regain consciousness, the family objected, and so the Trust made an application to the Court of Protection for declarations as to his best interests.  So, a party to this case is a family involved in what must be one of the most distressing set of circumstances imaginable.

From the outset, it’s hard not to have sympathy with a family who seek privacy in this most unimaginably difficult of times.  Because of the desire to protect the family’s privacy, complex questions about the precise legal framework to protect their identities arose.  It’s a bit of a scuba dive, I’m afraid, into some deep. dark and murky areas of law…

The general legal framework on transparency and privacy in the Court of Protection

As readers probably know, the general rule is that hearings before the Court of Protection are in private.  This in turn attracts the protection of s12 Administration of Justice Act 1960 (as amended) which makes it a contempt of court to publish information about the proceedings (sort of, I’ll come back to this below).  However, the general rule that proceedings are in private is reversed for cases about Serious Medical Treatment, like this case, which are usually heard in public (this isn’t in the Court of Protection Rules, it’s in Practice Direction 9E  – paragraph 16.  The court sits in public by making an order under Rule 92.  According to Newton J, this practice recognises ‘that cases involving serious medical treatment usually amount to a good reason for conducting the hearing in public subject to appropriate reporting restrictions’ (§13).

When the Court of Protection sits in public, the standard practice is to impose reporting restriction orders (RROs) to prohibit the publication of information about the identities of the relevant person and their family, and sometimes the other parties and professionals where that might increase the risks of identifying the persons concern.  Orders may also restrict the publication of other kinds of information or ban the media form contacting certain persons (under Rule 93).  Breach of these orders is a contempt of court.  RROs are used to protect the privacy of the relevant person and (usually) their family.  In cases like W v M, some families are so frightened of publicity about their case and being contacted by the media, it might impede their willingness to bring the case to court at all.  This, it was recognised by Baker J, would interfere with their Article 6 rights to a fair trial, not just their rights to privacy.

Imposing RROs on the media is a serious interference with their Article 10 European Convention on Human Rights (ECHR) rights to freedom of expression.  In recognition of this, s12 of the Human Rights Act 1998 (that instrument that some parts of the media love to hate) explicitly states that where a court is considering imposing a reporting restriction which will interfere with rights to freedom of expression, those seeking the RRO must take ‘all practicable steps’ to notify those it will affect unless there are ‘compelling reasons’ not to do so.  Accordingly, Practice Direction 13A (Hearings) explains how this should be done in the Court of Protection.  Essentially, the applicant notifies the media of the proposed restrictions using the CopyDirect service (now known as the Injunctions Alert Service), and the national media’s lawyers get some information about the case and decide whether or not to oppose the reporting restrictions.

In this case, the issue that arose was whether, when the applicant notifies the media, they should also tell the media the names of the parties, given that this was the very information they sought to suppress from the public domain?  You can see why families wanting to keep out of the public eye, and lawyers working for them, might think it’s a bit bizarre to provide the media directly with the very information they want to suppress.  Yet, this is the way the system works.  And, as the media representatives were at pains to point out – and Newton J accepted – it is a system that has worked fine for the ten years or so it has been in operation.  There was no evidence that information about cases that was disclosed to the media when they were notified of potential RROs had ever been used for editorial purposes – i.e. formed the basis of articles in the news.

Nevertheless, the family were concerned that the media potentially could do, and so the questions that arose were– can the solicitors even disclose this information to the media for the purposes of notification without that very disclosure constituting contempt, and must they disclose this information?  In the background hovers another question –  which may surprise readers who have chiefly heard the Court of Protection described as a ‘secret court’ – is the current framework in the Court of Protection ‘secret’ enough to protect the privacy of the parties?

Answering these questions is far less straightforward that it at first appears, unfortunately, so grab your deep-sea-lawyering scuba gear and jump on in…

What information about Court of Protection is, and isn’t, restricted from publication?

Perhaps surprisingly, the transparency/privacy regimes in the Court of Protection is not covered by the Mental Capacity Act 2005 (MCA) itself, which established the court.  In fact, I think Newton J is incorrect when he says (at §7) that ‘For understandable reasons Parliament decided that hearings in the Court of Protection should usually be held in private’, because I don’t think this was a decision made by Parliament.  I cannot find any record of a Parliamentary debate on this particular issue during the passage of the Bill (though if anybody knows of any, please do send me a link).  In the 2006 consultation on what became the Court of Protection Rules 2007 the government originally floated a general presumption that it would sit in public.  Consultation responses were somewhat equivocal on this but were sufficiently concerned about privacy that the government changed its mind (apologies, there isn’t an online copy of the response document, but if you need a copy I can email you a scanned version).  Hence the general presumption in Rule 90 that the Court of Protection sits in private.

Now, I might be missing something huge here so – media lawyers! – please tell me if I am, but my understanding of the legal framework is that nothing in the rules themselves makes it a contempt of court to publish information about the proceedings (unless, of course, this directly violates an order of the Court of Protection), although it is often said that they do.  The ‘automatic restrictions’ on reporting information (i.e. those that are not imposed by a specific order) that are typically referred to are contained within s12 AJA, which I referred to above.  Even this, I confess, I find a somewhat baffling provision.  Section 12 AJA says that:

The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a) where the proceedings—

(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii) are brought under the Children Act 1989; or

(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;]

(b) where the proceedings are brought under Part VIII of the Mental Health Act 1959, or under any provision of that Act authorising an application or reference to be made to a Mental Health Review Tribunal or to a county court;

(c) where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published;

(d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings;

(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.

(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.

The eagle eyed among you will notice that this provision doesn’t actually say when it is a contempt to publish information about proceedings heard in private, it says only that outside of these provisions it is not generally a contempt to do so.  In order words, s12 AJA restricts where courts can find contempt for publication, it does not itself create new forms of contempt.  Be that as it may, most people treat s12 AJA as basically meaning that if you publish information about proceedings of the Court of Protection, sitting in private, it will probably be a contempt (if mens rea requirements are satisfied – see Pickering v Liverpool Daily Post [1991] 2 A.C. 370).

But what information, precisely, is restricted from publication?  This was considered by Munby J (as he then was) in Re B (A Child) (and see also X v Dempster [1999] 3 FCR 757).  The answer to this question is somewhat surprising – s12 AJA actually does not restrict the publication of precisely that information which you would think should be protected on grounds of privacy – things like the names of the parties, their address, photographs of them, and the nature of the dispute (see §65).  So, if the solicitors in A Healthcare NHS Trust v P & Q were worried that disclosing the names of the parties via the CopyDirect service was a contempt because of the automatic restrictions of s12 AJA, they were straightforwardly wrong – s12 AJA does not prohibit this.  What s12 AJA does prohibit from publication is ‘accounts of what has gone on in front of the judge sitting in private, as also the publication of documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment’ (Re B (A Child), §66 – NB this list is non-exhaustive).  So you can’t go publishing descriptions of the proceedings themselves or extracts from witness statements and so on, but nothing in s12 AJA stops you publishing a person’s identity (before acting on this, please do read on to the end of this post…).  This might surprise some people – it certainly surprised me the first time this was brought to my attention.

The situation for proceedings under the Children Act 1989 is slightly different, as under s97 there is an explicit prohibition on the publication of any material ‘which is intended, or likely, to identify’ children in certain Children Act proceedings, their address and any school they may attend.  But there is no equivalent to the criminal offence for publishing identifying information under the MCA.  However, counsel for the family in A Healthcare NHS Trust v P & Q argued that ‘it being a criminal offence to identify a child or their address pursuant to section 97(2) of the Children Act 1989 such prohibition on disclosure is also to the Press Association in such a case of a child and by analogy to an incapacitated adult’ (§46).  It was said that there needed to be good reason to justify a departure from the position for incapacitated adults, citing Munby P’s recent transparency guidance.  It was also argued that there was either a lacuna in the law protecting adults subject to the Court of Protection’s jurisdiction or that this could be covered by s97 Children Act.  Newton J gave this argument short shrift, saying that the analogy was not a good one.  I have to confess, whilst I have sympathy with what counsel were trying to do here, the thought of establishing new criminal offences ‘by analogy’, without resort to primary legislation, makes me… twitchy.  You could take the view that should be an equivalent offence under the MCA, but the fact is there isn’t, and I think you’d be hard pressed to secure a criminal prosecution for an offence that is clearly about identifying children in family proceedings, for identifying an adult in a (statutorily) different court.  (As an aside, those interested in the ‘by analogy to wardship’ approach taken by Munby P in the Re X cases might be interested in Newton J’s comments about analogies between the MCA and wardship: ‘It should be remembered too that wardship is a different animal, created in an entirely paternalistic age which would be unthinkable under the Mental Capacity Act 2005 today’, §47).

Before returning to the case, I just want to make one further point about the automatic restrictions on the publication of information imposed by s12 AJA.  It only kicks in for information about proceedings for a court ‘sitting in private’.  In other words, I read s12 AJA as only applying for private hearings, so if the Court of Protection makes an order under Rule 92 to sit in public, the automatic restrictions of s12 AJA do not apply.  (At this point, please check the pressure guage on your legal-scuba-diving-equipment).  So, I think (and I’m happy to be corrected on this) that if you’re having a public hearing, for example in a serious medical treatment case, then s12 AJA restrictions don’t apply at all…  Having said that, it is I suppose possible (even likely) that some hearings in a case like this may be in private (for example, directions hearings) whilst others might be in public.  In which case, what information is affected by the private hearing and what by the public hearing?  Moreover, in the majority of Court of Protection cases the court doesn’t ‘sit’ at all – public or otherwise – it decides matters on the papers.  So are there any reporting restrictions there at all?  I honestly don’t know.  Arguably, the phrase ‘sitting in private’ could be construed broadly to simply mean ‘dealt with by some other way than a public hearing’.  I don’t know, but perhaps somebody reading this does?

Is it lawful to tell the media the names of the parties when notifying them of the proposed reporting restriction order, and is it necessary to do so?

To return to the question, I’m firmly of the view that s12 AJA itself does not make it a contempt of court to tell the media of the names of any parties to whom a proposed reporting restriction may apply for the purposes of notification.  The first reason is that, as discussed, s12 AJA doesn’t cover the identities of the parties anyway.  The second reason, where there is a public hearing not a private hearing, is that s12 AJA may not apply at all (although I’m open to argument on that one if some bits of the case are still ‘in private’).  And the third reason (again, I’m open to argument on this) is that I’m not sure that we can seriously call notifying the media the ‘publication’ of information under s12 AJA.  I appreciate that ‘publication’ is pretty widely drawn in Re B (A Child), but notification in accordance with court rules and practice directions, not to mention the Human Rights Act, is hardly the same thing as disclosing information to somebody who is completely outside of the case, let alone publishing it in the papers.  If it were – how could anybody ever be notified of the names of parties in any Court of Protection cases?  Why does notification suddenly become ‘publication’ when it’s to the media, and not any other person you might have to notify about a Court of Protection case?  So I think, s12 AJA simply cannot make it a contempt to notify the media of the names of the parties, unless there are specific prohibitions on this.

But that doesn’t answer the question of whether or not one should notify the media of the names of the parties.  At one point Newton J comments (I think citing counsel’s argument) that ‘it is simply unnecessary for the media to know the identity of P before forming an opinion on the terms of the RRO being sought, the issues being the centre of interest’ (§49).  I’m not sure the media would agree with this.  Whilst it may well be true that we would like the media to only be interested in the issues (legal, political, social, ethical), the fact is that the media are also very interested in the human element.  Imagine if – for example – one of the parties was a figure who was already in the public eye, this very well might have an impact on whether they wanted to challenge proposed reporting restrictions.  Suppose, for example, the case were about alleged misconduct by a deputy who was also a public figure?  Or safeguarding allegations about a public figure?  I’m not saying it’s morally right that these people should be identified, just that it seems to me we can’t dismiss the reality that for the media at least, it isn’t only about the issues.  I can definitely see that there might be some cases that are simply so sensitive it’s inappropriate to notify the media of the names of the parties, but I certainly don’t think that could be a general rule.  And, indeed, Newton J concluded that ‘the whole thrust of the law from the Practice Direction onwards dictates that in order to form a proper view the Press should see all the information including names’ and ordered that the names of the parties be disclosed (§68).

The Contempt of Court Act 1981 rides to the rescue!

To recap, there appeared to be concern in this case that the very act of notifying the media of names of the parties could actually risk the media publishing this information before an RRO was in place.  Especially since, as was noted at §48, at the point at which the media are notified about the case, there is in fact no order yet in force prohibiting the publication of the relevant information.

I hasten to add, as discussed earlier, there was no evidence that this had, in fact, ever occurred (§52).  And Newton J stated that ‘the Court should work on the basis that just because it may hypothetically be that one rogue editor or subscriber takes a different view that the fact that one individual in the sector abuses or could abuse his position does not mean that that freedom is lost by all members of the Press’ (§50).  But it did raise the question of what – legally speaking – did actually prevent the media from doing this.

One possible answer was that the media have a contractual agreement with CopyDirect which prevents them from using the information from notifications for editorial purposes (§61-2).  This seems like a good thing to have in such a contract, but if that was the only thing preventing publication of this information I would be nervous: breach of a contract between a media organisation and CopyDirect does not offer (to the best of my knowledge) any remedy to the person whose privacy has been breached.  Newton J also highlighted that on any reasonable view this information was confidential and so the media organisations were under an equitable duty to treat it as such (§63-4).  I’m no expert in the law of confidentiality, but I’m still not sure if that gives the relevant person and their family a remedy if the information supplied by CopyDirect on a confidential basis is misused?  Having said that, these reasons – and the fact that misuse of this information would bring the current system of notification crumbling down and no doubt result in a much more restrictive system in its place (see §65) – are good incentives for the media not to publish this information…

Happily, for the avoidance of any doubt, the Contempt of Court Act 1981 rode to the rescue.  Under s1, ‘conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so’, if the following is established to the criminal standard: publication is ‘addressed to the public at large or any section of the public’, which ‘creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced’ at a time when the proceedings are active.  As Newton J pointed out, this is a different set of criteria for contempt to those under s12 AJA, which were addressed in Re B (A Child), and he was ‘clear’ that the publication of any information about the identity of the relevant person or the parties would amount to contempt under the 1981 Act because (§56):

  1. The requirements of publication addressed to the public at large or any section of it and at a time when proceedings are active are met.
  2. There is more than a remote risk of serious prejudice or impediment to the course of justice (since it would render the application for reporting restrictions redundant) and in any event once P’s identity is public, Article 10 freedom of expression islikely to outweigh P’s Article 8 right to privacy, so unauthorised publication islikely to have a “deleterious effect”.

And, if a ‘strict liability’ offence could not be made out, Newton J took the view that the publication of material contained in an application for an RRO could still constitute contempt at common law as:

It is likely to have a significant and adverse effect on the administration of justice by thwarting the very purpose of the application, thereby making the application for reporting restrictions redundant. Intent to impede or prejudice the administration of justice is likely to be inferred from the context that the publisher will be aware of the context of how the information was received, the purpose for which it was received and the likely restrictions sought in the application. (§59)

Therefore, in summary, and for the avoidance of any doubt, the following factors prevent the media from publishing the names of parties when they are notified of them in any application for an RRO (§67):

  1. It would be a statutory contempt.
  2. It would be a contempt of common law.
  3. It would be in breach of the express contractual arrangements between any subscriber and the Press Association (with a powerful deterrent effect).
  4. It would be a breach of confidence.

So, having solved that little legal conundrum, please ensure you don’t resurface to normal life too quickly…

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