Lifting the curtain on our most secretive court
The court is one of the few tribunals left in which there is an automatic presumption that the media and public cannot attend proceedings, the Mental Health Tribunal is another.
Slowly and inexorably, progress is being made largely as a result of a shocking catalogue of cases. For example, that of Steven Neary, a young autistic man unlawfully deprived of his liberty by the London Borough of Hillingdon in a care home. ‘Few would doubt that vast improvements have been made within the court since it has started to be subjected to a modicum of public scrutiny,’ wrote Jerome Taylor in the Independent in May 2012.
Following a study by researchers at Cardiff University (Transparency in the Court of Protection (PDF) amendments to the Court of Protection Rules 2007 are due to come into force next month which will allow information from the court to be communicated in a tightly limited range of ‘specified purposes’, such as making applications to the European Court of Human Rights and obtaining healthcare or counselling.
‘There is no doubt that restrictions on the ways that Court of Protection cases are reported by the media are necessary to protect the privacy of those involved, but the current rules are not fit for purpose,’ the report’s author Lucy Series told the Daily Mail (here).
Today, in a case called Re X – addressing concerns that life-changing decisions were being made about vulnerable people – the Court of Appeal stressed that those without mental capacity ‘should always be directly involved in court hearings about their personal liberty.’ The Law Society said it launched the challenge to new stream-lining procedures in the court because, whilst recognising the ‘resourcing pressures’, they argued that ‘fundamental rights of patients to participate in legal proceedings about their liberty were at risk.’ ‘Anyone facing court proceedings which concern their liberty must be able to participate effecting in or be legally represented at those proceedings,’ said the Society’s president Andrew Caplen.
‘There is no doubt that restrictions on the ways that Court of Protection cases are reported by the media are necessary to protect the privacy of those involved, but the current rules are not fit for purpose,’ the report’s author Lucy Series told the Daily Mail (here). That paper had investigated ‘the secret imprisonment of Wanda Maddocks’ after she had tried to get her father out of a care home when she believed his life was in danger.
Maddocks had herself been jailed for contempt of court. The committal hearing was in ‘open court’ but the media was not told – nor did Maddocks attend. She later told the press she had been ‘jailed in secret’. Following the furore over that case, guidance was issued by the lord chief justice, and president of the family court reminding judges that it was ‘a fundamental principle of the administration of justice in England and Wales that applications for committal for contempt should be heard and decided in public, that is, in open court’.
The authors complained of ‘very variable reporting’ of cases by the ‘mainstream media’. On the one hand, there were ‘many examples of accurate and responsible media reporting of cases’ and, in particular, the publicity in the Neary case which ‘seems likely’ to have been ‘a factor behind growing awareness of the need to refer welfare disputes to court’. However they also flagged up instances of ‘highly inaccurate reporting’ (e.g., the case of Alessandra Pacchieri, an Italian woman who underwent a caesarean operation against her will following an order of the Court of Protection (here)).
A mix of problems come before the court, which was established under the Mental Capacity Act 2005, from ‘run-of-the-mill’ decisions about wills and property, to complex and controversial decisions about refusing treatment, whether a person should be sterilised or have their life terminated. In light of its far-reaching powers, its ‘secretive’ approach has been criticised by its own president, Sir James Munby, who has long supported moves towards greater transparency in order to address ‘the charge that we are a system of secret and unaccountable justice’.
The Cardiff study drew on a roundtable discussion in September last year which included judges, lawyers, journalists, and researchers. They came to the ‘unanimous agreement’ that there were serious shortcomings with current arrangements for media access’. ‘In particular, the need to apply formally to attend the hearing was costly, and could have a chilling effect on reporting cases.’ Everybody agreed that the arrangements in the courts for media attendance should be brought in line with the family courts where the press need not make an application to attend however the court has powers to exclude on specific grounds.
Unsurprisingly, the principle of ‘open justice’ was unanimously supported by experts in the Cardiff study and found to be ‘an essential feature of the rule of law’. However, unlike national security arguments which overshadow criminal and immigration cases, the key question is whether, due to the inherently sensitive subject-matter of the court’s cases, the confidentiality and privacy of those involved in its processes should override any general need for open justice.
‘The idea that anyone should be able to apply to have someone effectively locked up for any amount of time without the press, and through the press the public, being able to scrutinize what is going on, is surely contrary to good sense and open justice.’
A journalist in the Cardiff roundtable
One lawyer observed that people were brought to the court, often against their will, to have intimate details about their circumstances aired before the judge. He found that ‘almost without exception’ families found it an invasion of privacy for lawyers to read about their private lives, let alone the general public. Whilst transparency was important, there was ‘a price to be paid’, he added.
A ‘media circus’ could place families under ‘unbearable pressure’ with the consequence that ‘everyone loses sight of what matters, which is the best interests of that person’.
The report cited the story of Ashya King, a young boy with cancer, and the ensuing ‘media frenzy’ following revelations that his parents had been arrested after removing him from hospital to try an alternative treatment overseas. The chief exec of the University Hospital Southampton recalled:
‘The switchboard and patient support services were overwhelmed with calls from irate members of the public; our press team were besieged by the media… through all of this we still had thousands of patients who needed care and treatment.’
One journalist reported that his news editor did not understand what was meant by Ashya being made ‘a ward of court’. ‘Nobody knows how the system works because they cannot get in,’ they journalist said.
A last chance
Other journalists pointed to numerous instances where families and parties to cases in the court actively welcomed and sought publicity to express their feelings about the process,, such as Steven Neary and the Labour politician, Manuela Sykes, who campaigned on social justice and gender issues, as well as the treatment of the elderly in care homes. After Sykes herself developed dementia she was forcibly admitted to a care home under a deprivation of liberty authorisation, which she found deeply distressing. Sykes expressed a ‘strong wish’ for her situation to be reported and for her to be named. Although her specific rights in relation to publicity were not discussed, Judge Eldergill stated:
‘She has always wished to be heard. She would wish her life to end with a bang not a whimper. This is her last chance to exert a political influence which is recognisable as her influence.’
Under current laws, those individuals who want the public to hear about their case are faced with contempt of court proceedings and potentially prison if they go to the press. A number of the Cardiff experts were of the view that ‘almost nothing was known’ about what those subject to proceedings actually thought about allowing greater public and media access to the court.
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) has been effective in highlighting ways in which disabled people can be discriminated against in the court process. In one case involving a man detained under the Mental Health Act, the Mental Disability Advocacy Centre was able to intervene, pointing to Article 13 CRPD which obliges states to guarantee ‘effective access to justice for persons with disabilities on an equal basis with others’. Pointing also to article 6 of the European Convention on Human Rights, guaranteeing the right to a fair trial, the judge in the case said that ‘a patient should have the same or substantially equivalent right of access to a public hearing as a non-disabled person who has been deprived of his or her liberty, if this article 6 right to a public hearing is to be given proper effect’.
The role of the media as a positive force – an educator of the public and a corrective to miscarriages of justice within the trial process – emerged as a central theme from the Cardiff discussions. One of the journalists cited the Roy Meadows scandal, in which Professor Meadows’ ‘expert evidence’ was relied upon to prosecute multiple women for murdering their infant children. Following publicity highlighting the flaws of the evidence, and the subsequent quashing of the convictions of Sally Clark and Angela Cannings, the Criminal Cases Review Commission reviewed other cases and similarly found the convictions to be ‘unsafe’. ‘If this had not been a criminal case, where Meadow’s claims received public scrutiny and were widely discredited, then experts might still be making such pronouncements today’,’ the journalist said.
Following the roundtable discussions – and in a surprising show of co-operation between lawyers and journalists – all participants agreed that the automatic exclusion of media attendance at the Court of Protection must end. This would avoid the ‘chilling effect’ of media exclusion whilst enabling the court to restrict the sharing of sensitive information where warranted, thus balancing the need for transparency with privacy. This could signal an important step towards ensuring that decisions made about some of society’s most vulnerable people are adequately scrutinised, challenged, and indeed applauded, where necessary.