Court of Protection transparency pilot

The Court of Protection was established by the Mental Capacity Act 2005 and makes decisions on financial or welfare matters for those who lack the mental capacity to make a particular decision themselves.

On 29 January 2016, the Court commenced a pilot scheme, allowing the press and public access to hearings which have traditionally been held in private. The pilot scheme will run in England and Wales for at least six months, with the possibility of extension. The pilot is consistent with recent changes in the Family Courts, which issued new guidance on Transparency in the Family Courts in 2014.

What is changing?

While Court of Protection judgments have routinely been published since 2010, the default position has been for the hearings themselves to be held in private. Only those directly involved in the case could typically attend and permission was required from the court before the proceedings could be reported (usually under strict conditions). This has led to some concerns about the secretive nature of the Court, particularly given the importance of the decisions being made on behalf of vulnerable people and their families.

Under the new regime the default position will be for the hearing to be held in public, unless a specific court order is made to restrict attendance, for example in cases involving serious medical treatment. There will, however be safeguards and restrictions on what information can be reported in the media. In particular, it is unlikely that journalists will be able to identify those involved in the proceedings or where they are being cared for. .

What does this mean?

The stated aim of the scheme is to strike a balance between the public interest in transparency in the courts and the privacy of vulnerable individuals. In particular, it is hoped that the scheme will give the public a greater understanding of the work being carried by the Court of Protection and in particular its decision making processes.

It is unlikely that most cases will attract the attention of either the media or the general public. However, where cases are reported, both journalists and representatives for those involved will still need to be alive to the risks of 'jigsaw identification', where the reporting of particular details could still lead to identification. Parties can take some comfort in the fact that the standard order includes provision for a penal notice, making a breach of the order contempt of court and punishable by a prison sentence, fine or asset seizure.

The success of the scheme remains to be seen but this pilot scheme is potentially an important step towards ensuring both greater transparency and accountability in the Court of Protection.

If you require further information on anything covered in this briefing, please contact Jennifer Agate ,Charlotte Fraser ([email protected]; 020 3375 7120) or your usual contact at the firm on 020 3375 7000. Further information can be found on the Mental Capacity page on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, March 2016