COURT OF PROTECTION

Intro: A court which has the power to jail people and make life and death decisions in secret could be made more transparent

The highly sensitive work of the Court of Protection often sits uneasily with the notions of freedom and transparency upon which the state rests. Judges sometimes make decisions on behalf of those individuals incapable of running their own affairs. The right to a dignified private life for society’s most vulnerable must certainly be protected, but the default position in which hearings are conducted behind closed doors and in secret does not reconcile with the central tenet of the law in Britain being based upon open justice.

The Court of Protection has made advances in recent years. Successive presidents of the Court have, for example, acknowledged the need for a special register in which nominated journalists become more acquainted with the workings and decisions of the Court – decisions which range from care arrangements to family access and to the disposal of assets.

The test case for others to campaign was in 2010, when the Court of Appeal ruled in favour of the media to have access to hearings about whether a blind and profoundly autistic pianist, Derek Paravicini, should continue to perform. That case set legal precedent, and since then access has been granted in a handful of other cases. However, it is still only in instances involving invasive medical treatment or a life-and-death decision that the presumption applies. Even then, the press and public are often not acquainted with the case until the hearing has already been heard.

Last May, the case of Wanda Maddocks sparked a national debate about transparency after she was sent to prison for five months after she tried to remove her 80-year-old father from the care of Stoke on Trent city council. Ms Maddocks had not been present or even represented in court.

She was thought to be the first person to be imprisoned by the court, which settles the affairs and appoints deputies to act on behalf of people who are unable to make decisions about their personal health, finance or welfare.

The current Court of Protection president, Sir James Munby (Lord Justice Munby), has been working tirelessly to resolve the issue. During the summer of 2013, he issued draft published guidance for judges in which he explicitly stressed the need for ‘greater transparency in order to improve public understanding and confidence’. Sir James also resolved that, as far as is possible, the Court of protection should be governed by the same rules that apply to the family courts (of which he is also president). In a written ruling on a long running case last week, Sir James put the theory into practice; he said the judgement would become public, but the family would not be named.

Despite the welcome steps forward that have been made, there is still much to be done. Sir James is due to release a second tranche of guidance, expected imminently, and it can only be hoped this will go further, by giving accredited reporters automatic access to the Court of Protection as they have in the family courts. If permitted, the usual proviso of cases being aired publicly being subject to negotiation with the presiding judge would apply.

There are wider issues, too. Leading lawyers, for instance, are warning of a ‘marked variation’ in the willingness of judges to talk directly to those who are the subject of proceedings as well as to the appointed solicitor representing their interests. This not only raises concerns over the possibility of human-rights violations, but questions of judicial consistency also arise.

The Court of Protection delivers rulings on some of the most difficult, sensitive and contested questions of modern life, and makes decisions that may define the course and circumstances of a person’s life. Public confidence is needed in such a powerful institution, and to ensure that happens the procedures and practices must be standardised and applied with uniformity and better consistency. The justice the Court dispenses must be as open as it can be.