Some very big news this week: the Court of Protection has just announced its first pilot project: on transparency.
As readers will know, the Court of Protection (along with the Family Court) is often described in the media as a ‘secret court’. This is because most of its hearings are heard in private – meaning that the public and the media cannot attend – and there are restrictions on what can be reported about Court of Protection cases. The Court of Protection has received a lot of negative publicity regarding this ‘secrecy’. The recent pilot project appears to be aimed at countering this criticism, and promoting a better understanding of the court and its work.
At the moment, there is a presumption in the Court of Protection Rules 2007 that hearings are heard in private. When cases are heard in private, s12 of the Administration of Justice Act 1960 means it may be a contempt of court to ‘publish’ certain information about the proceedings. ‘Publish’ is interpreted very widely, to include even telling another person about the case (Re B (A Child), 2004). The pilot project will reverse this presumption. The pilot project will be the first time new rules, introduced last year, which allow the Court of Protection to vary some of its rules for the purpose of pilot projects will be used. This particular pilot will last at least six months and will cover all geographical regions (i.e. all of England and Wales).
The pilot will also introduce changes into the ways in which cases are ‘listed’. Every day the courts post listings of what hearings are taking place. Court of Protection cases are listed online under the Family Court list (even though these have literally no legal connection to the Family Court – you can see why the media routinely conflate the two) and the Court of Protection list. These lists are also printed out and posted in the foyer of the Royal Courts of Justice. At the moment the lists are pretty uninformative – they just tell you the judge, the courtroom and the case number. Under the pilot study, hearings will also be displayed with ‘a short descriptor of what the case is about, allowing the media and members of the public to make an informed decision on whether to attend the hearing.’ This is a significant step for the media, as without this information it’s very hard to know whether a hearing would be of interest and whether or not to send a journalist to try to report on the case.
Although the Court of Protection has been taking steps towards greater transparency in the publication of judgments, holding hearings in public is a dramatic shift in policy for the court. Earlier this year we published a report on transparency in the Court of Protection, and made various recommendations for reforms that could improve the system for reporting on cases. Recommendations included improving the system for notifying the media about reporting restrictions, enhancing the listing of cases, and clarifying when the media could lawfully be told about a case. Another recommendation was to consider opening up the court to the media upon the same basis as in the family courts. But this is not at all the same as having public hearings, for reasons I will explain in more detail below. We also discussed how families and people subject to court proceedings might feel about greater steps towards transparency, and concluded that there were signs that many would not welcome this but that more research needed to be done. A pilot project is one way of finding out how people feel about it, but this goes significantly further than the recommendations in our report, and it raises a lot of questions.
What can be reported about cases heard in public?
At present, before the pilot project commences, hearings in the Court of Protection will generally be heard in private (rule 90). The only exception to this rule is serious medical treatment cases which are, for historical reasons, heard in open court (see Practice Direction 13A).
When proceedings are in private, ‘automatic restrictions’ on the publication of information about the proceedings from s12 of the Administration of Justice Act 1960 (AJA) applies. There is a lot of misunderstanding about what information s12 AJA restricts. In Re B (A Child) Munby J (as he then was) clarified that this prohibited the publication of ‘accounts of what has gone on in front of the judge sitting in private’ (i.e. what went on in the courtroom itself), and any documents – such as witness statements, reports etc – including any extracts, quotations or summaries of these. Somewhat surprisingly, s12 AJA does not prohibit publication of the identities of those involved in the proceedings, any photos of them, their addresses, the date and time and place of the proceedings, the nature of the dispute, the identities of any witnesses and parties and the text (or a summary of) any orders from the proceedings. So, in fact, s12 AJA is pretty useless for protecting the privacy of litigants, it’s just there to prevent what occurs in a courtroom from leaking out. However, s12 AJA may well have a chilling effect on the publication of information – many people believe it prevents the publication of identifying information even if in practice it does not.
When there are concerns that identifying information may be published (or otherwise communicated outside of the proceedings) the court can issue reporting restriction orders (RROs, see rule 91). RROs may be directed towards the parties, or specific individuals, or anybody who knows about the order or the media. If RROs are intended to bind the media and prevent them from publishing information about a case, then the media must be warned in advance before the order is made (s12 Human Rights Act 1998). This is to give the media the opportunity to make submissions if they feel the RRO is too broad or should not be imposed, as it interferes with their right to freedom of expression. In our report on transparency, we heard that this doesn’t always happen in an effective or timely fashion, but it is clearly recognised as an obligation on the court and the parties in Court of Protection Practice Direction 13A. RROs are routinely made in serious medical treatment cases because they are heard in open court.
Under the new pilot project, hearings will generally be in public. This means that the automatic restrictions on the publication of information imposed by s12 AJA will not apply. However, as I’ve just explained, s12 AJA is not in fact very useful for protecting privacy (except in the sense that it may have a chilling effect on the publication of identifying information). Under a new practice direction for the pilot project, the courts will make an RRO for each and every hearing prohibiting the publication of information that could be used to identify the person whom the proceedings are about and any member of their family. A draft order is provided that will be used as a template. Paradoxically, then, this pilot project will in some ways offer better protection of the identities of the people whom the case is about than the existing restrictions imposed by s12 AJA, which the court generally relies upon. At the same time, it will make it harder for the parties and others to the case to alert the media to the identities of those involved in the case – although presumably they will be able to alert them to the fact of the hearing and the information in the listings. Meanwhile, the media and the public will be free to publish and communicate information about the case – including what went on in the courtroom – unless that is subject to additional reporting restrictions, or is likely to identify the individuals whom the case is about.
However… matters are not quite as clear cut as they might seem. RROs are only binding on certain people named in the order. Under the draft order, the following groups will be bound:
- the parties and their representatives
- the witnesses,
- all persons who attend all or any part of an attended hearing, and
- any body, authority or organisation (and their officers, employees, servants and agents) for whom any such person works or is giving evidence
One group is notably absent from this list: the media. In other words, the media will not routinely be prohibited from publishing identifying information about those involved in Court of Protection proceedings. At face value, this seems like an alarming omission, if the purpose of the RRO is to prevent the person’s identifying information leaking into the public domain. However, arguably the individual’s privacy is still protected by the terms of the order because no person who is a party to the case or a witness, and no person who attended the hearing, could lawfully inform the media of any identifying information – without themselves breaching the terms of the order. If the media attend a hearing, then they will be bound by the order as part of the third category of persons. The potential danger (from a privacy perspective) therefore lies in situations where the media did not attend the hearing (so are not bound by the RRO) and somebody has provided them with details of the case who either is not a party to the case or a witness themselves, or else who has breached the RRO. In these circumstances, there is a theoretical risk that the media could publish identifying information about the person and their family.
Whether or not this risk would actually transpire is an open question. As Newton J pointed out in A Healthcare NHS Trust v P, 2015 the media have a lot to lose if a rogue editor decides to publish information of this nature, and it presumably this would be a pretty important failure of the pilot project. However in this day and age of social media, we cannot always rely upon editors to prevent the disclosure of identifying information. We will have to wait and see whether this is a real risk.
One reason for not routinely including the media in RROs for public hearings is this would engage s12 of the Human Rights Act 1998, and they would have to be formally notified. I don’t know how many hearings there are in the Court of Protection each year, but my guess would be 1000 or more. This is significantly higher than the number of serious medical treatment cases and the few cases where RROs are currently used by the Court of Protection. Having to formally notify the media imposes a significant resource burden upon the court and/or the parties, as they must formally alert them to the potential order and provide them with information about the case. Perhaps the media were not included in the draft order because of the potential resource burden this would impose. We will have to wait and see how this approach pans out.
One possible outcome from the pilot project is a permanent revision to the Court of Protection Rules, reversing the general rule on private hearings. If such reforms were being considered (or even if they weren’t) it strikes me that it would be sensible to consider introducing statutory provisions that routinely protect the privacy of the person whom the case is about and their family (and friends, who are not infrequently involved in these cases). This could be modeled on s97 of the Children Act 1989, and would remove the need to make orders in every case protecting the identity of the person and their family, and would close this potential loophole regarding whether or not the media are bound by the RRO.
How will public hearings impact upon litigants?
I am not aware of any public consultation on this pilot project, and yet it has the potential to have a significant impact upon litigants involved in Court of Protection proceedings. In the family courts there have been longstanding debates about the impact of ‘publicity’ on children, and there is research that suggests that children (or at least, some children) do not want ‘publicity’ about their case – even if anonymised. There is no equivalent research in the Court of Protection.
Based on my own (non systematic) research in this area, I would expect the reaction of families to be very mixed. Some actively seek publicity about their case – sometimes because they are upset about the court’s rulings, sometimes because the court has corrected a manifest injustice that they want to be known more widely. However, some families are actively concerned about publicity about their case, and seek to avoid it. It can and does have a chilling effect on some families bringing proceedings. We know, for example, that the family in the heartbreaking case of W v M were very concerned about media publicity and without a robust RRO would not have brought the case. Some families may feel scared of bringing important matters to the court’s attention in order to avoid media interest. As we heard in a roundtable event that informed our report on transparency, even with ‘watertight’ reporting restrictions, sometimes individuals can still be identified. Even if individuals aren’t identified, they may find it distressing to read deeply personal information about their case in the newspapers, or even in a judgment.
In short, we simply don’t know enough about how public hearings will impact on the litigants. I hope the pilot project will provide an opportunity for research into this area. I hope that litigants are alerted to the fact that hearings will be held in public well in advance, so that if they do have concerns they will be able to request that the court sits in private. It would be useful to know what criteria the court will apply to such requests. It will also be important for legal representatives to alert litigants to this. I do have some concerns that where litigants are unrepresented they may not pick up on the fact their hearing is in public if this information is written in legalese and buried in a directions order. Perhaps the Court of Protection could include a clear (non-legalese) statement in letters providing information about hearings alerting those attending to the fact it will be in public, and how they can object to that in advance if they have concerns.
How will the success or failure of the pilot project be assessed?
It is clear that there is a general drive to increase ‘transparency’ – and perhaps also perceptions of transparency – in the Court of Protection and the family court at present. It is interesting that these developments are taking place in the Court of Protection without any public consultation, when similar proposals for the family court stalled following a public consultation (of sorts; it was a strange consultation, brought to us courtesy of Jordan’s publishing and not via the Ministry of Justice which would have been the more usual course for policy consultations!). It is also interesting that the Court of Protection pilot will go further than measures in the family court to enhance transparency – the court will actually sit in public, rather than simply permit the media to attend and then be required to seek permission on what they can publish.
The purpose of the pilot project is described in terms of it being ‘right’ that the public and media can attend, to promote better understanding of the work of the Court of Protection, and to provide evidence to weigh arguments about the correct balance to be struck between privacy and transparency. If the purpose of the pilot project is to provide evidence based policy (for want of a better phrase) about increased transparency, one would hope that there are plans in place for robust research and proper consultation to be undertaken to explore different experiences of public hearing and the views of different stakeholders. One of the real dangers of debates in this area is that some voices are heard much louder than others. The voices of the media are heard loudest of all, and for obvious reasons they favour transparency. The voices of families who go to the media about their case are also usually heard. It is extremely rare for the person whom the case is about to go to the media, but there are some examples of this. However, almost by definition, the voices of those who do not seek publicity – who may have concerns about public hearings, or be scared of being identified or simply not want their private affairs discussed in public (even if they aren’t named) – are not widely heard. These groups don’t go to the media, if they are heard at all it is through their lawyers and occasionally mentioned in judgments. If we are to take seriously their concerns, there must be mechanisms to ensure their voices are heard as part of this pilot project. I would be concerned about any consultation model that simply expected people to ‘speak up’ if they have concerns, and does not actively seek their views: these populations are unlikely to ‘speak up’ in the same way that vocal critics of the court and vocal families do.
Ideally, there will be carefully planned research that would use a range of methods to canvass the views of a wide range of stakeholders. However, conducting research on this population is extremely challenging for a range of practical, ethical and legal reasons (trust me on this!). I hope this is something that the court and the Ministry of Justice are working on, because otherwise the pilot project will only tell us what we already know: some people want more publicity, and their voices will be heard, loud and clear.