Court of Protection pilots openness

cour of protectionThe Court of Protection has announced a pilot project to run from January under which the presumption in rule 90 of the CoP Rules 2007 that hearings are heard in private will be reversed. The Courts and Tribunals Service has published a background note, alongside a draft practice direction and draft order.

This specialist court was established under the Mental Capacity Act 2005 to deal with issues relating to a person’s property, financial affairs, and personal welfare where it is established that the person in question lacks capacity to make such decisions.

A number of newspapers and in particular the Independent have campaigned for the maximum possible openness of Court of Protection proceedings. Latterly, it has become possible for journalists to apply to have access to hearings. The requirement for a “good reason” to permit media access to and reporting of proceedings is said to “lie at the heart” of the determination of such media applications (although requiring
“good reason” did not ‘import a concept of being exceptional’ – per Hedley J, in Independent News and Media Ltd v A [2009] EWHC 2858 (Fam), [15]).

The involvement of the media in Court of Protection cases is a source of concern for some parties. Evidence is routinely provided to the court regarding the potentially deleterious effect of publicity on the vulnerable people involved. The court has preferred to address this concern through the imposition of reporting restrictions, rather than exclusion of the media from the court.

The pilot project seems to run in line with recent senior judicial sentiment. Speaking in October 2013, Sir James Munby expressed the view that ‘there should be the same kind of presumptive right of media access to court of protection proceedings, as there are in family proceedings’.

For further comment, see Lucy Series on the Transparency Project blog, and David Connett in the Independent .

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