Amid press reports that a judge has ruled that a Court of Protection (COP) case may be reported by the media in real time and has allowed “fairly generous access to material” produced by the parties in evidence, we consider what this is likely to mean for future COP hearings involving allegations of deprivation of liberty.
The case involves a 92 year old man (SJ) suffering from Alzheimer’s disease, who was living in a care home run by a local authority (LA). SJ had been living at home with his son (DJ) and his late wife. On the death of his wife, SJ moved to a residential home maintained by LA in December 2010. In April 2011, DJ attempted to remove his father from the care home but was prevented from doing so by staff and was later banned from visiting him completely. In May 2011, LA applied for and obtained a Deprivation of Liberty Order under the Mental Capacity Act 2005.
Following this, DJ launched legal proceedings against LA alleging that:
- It was preventing his father from returning home and holding him against his wishes.
- SJ had on numerous occasions asked to be allowed to return home
- That it had unlawfully deprived SJ of his liberty since February 2011.
- Both it and the care home had refused to allow DJ and SJ to have unsupervised contact.
- SJ has sufficient mental capacity to make a decision about where he wants to live and this assertion was supported by an independent consultant psychiatrist.
Arguments put forward by LA include that:
- SJ lacks the mental capacity to make a decision about where he should reside and it believes that he is better off remaining in the care home where he is currently living.
- There were health and welfare and safeguarding issues involved, namely that there were suspicions that DJ had physically assaulted SJ prior to his admission to the care home. DJ claims that the allegations are a symptom of Alzheimer’s disease.
- SJ is content to remain in the care home and any claims made by DJ that he is not is a result of manipulation by DJ.
COP hearings: the general rule
The COP is a specialist court dealing with cases which concern people who lack capacity to make certain decisions. It is governed by the Court of Protection Rules 2007 (SI 2007/1744). For more information, see our resources on the Court of Protection.
Rule 90 states that as a general rule COP hearings should be in private but the court is able to make an order authorising the publication of information about the proceedings (Rule 91). For example, in the cases of London Borough of Hillingdon v Neary and another [2011] EWHC 1377 (COP), G v E and others [2011] EWCA Civ 939 and P and another v Surrey County Council [2011] EWCA Civ 190.
Generally, even where an order is made allowing publication, judges have been unwilling to reveal more than a few details about the case and order that the parties only be known by initials. The Court also recently placed a specific ban on publishing information on any “social network or media including Twitter or Facebook”, as well as in other media in a case involving a woman in a minimally conscious state. The injunction banned the media from publishing information which could identify anyone in the case, but from contacting a number of people connected with it, including M’s relatives and care home staff (see our update). This seems to be contrary to the policy currently being advocated by other courts, such as the Supreme Court.
Decision to allow real-time reporting in this case
Press reports suggest that the judge in this instance, Mr Justice Ryder held that as it was a “paradigm case” at the “forefront of public awareness” and was of “general public importance” and “specific public interest” information about the case should be made available and reported on in real-time rather than having to wait until a judgment is available. Mr Justice Ryder also held that the media had made a good case to be allowed to attend the hearing and gain access to the court.
Mr Justice Ryder also held that the media should be allowed access to the material in the case which will enable the public to follow the decision-making processes adopted by the court.
So, what does this mean?
It seems that a precedent has been set, much will depend on how the media deal with the reporting of this case as to whether a case can be made for opening up all COP hearings to the public. Arguably, the issues dealt with by the COP are those involving the most serious issues, such as mental capacity and deprivation of liberty, and therefore should be made public in order to ensure that those decisions are capable of scrutiny.
If not, then it is likely that this case will itself give an insight into the COP decision-making process and the way that it deals with the deprivation of liberty safeguards.