The Court of Protection Transparency Pilot Introduction 1. On January 2016 the Court of Protection will begin a pilot scheme aimed at addressing one of the most controversial of its characteristics- its status as a so-called secret court. The aim of the pilot is described as to give the public better information about how the Court of Protection works. 2. This paper will look at the background to the pilot but will mainly be aimed at considering the practical implications and how to prepare for the pilot. Background. 3. The default position up till 29 January 2016 has been that cases are heard in private but that the court retains the discretion to vary this. The rules as they currently stand are as follows: 90.General rule hearing to be in private The general rule is that a hearing is to be held in private. (2) A private hearing is a hearing which only the following persons are entitled to attend (a) (b) (c) the parties; P (whether or not a party); any person acting in the proceedings as a litigation friend; 1
(d) any legal representative of a person specified in any of sub-paragraphs (a) to (c); and (e) any court officer. (3) In relation to a private hearing, the court may make an order (a) authorising any person, or class of persons, to attend the hearing or a part of it; or (b) excluding any person, or class of persons, from attending the hearing or a part of it. 91 Court's general power to authorise publication of information about proceedings (1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated in accordance with paragraph (2) or (2A). (2) The court may make an order authorising (a) the publication or communication of such information or material relating to the proceedings as it may specify; or (b) the publication of the text or a summary of the whole or part of a judgment or order made by the court. (2A) Subject to any direction of the court, information referred to in paragraph (1) may be communicated in accordance with Practice Direction 13A. (3) Where the court makes an order under paragraph (2) it may do so on such terms as it thinks fit, and in particular may (a) (i) (ii) (iii) impose restrictions on the publication of the identity of any party; P (whether or not a party); any witness; or 2
(iv) any other person; (b) prohibit the publication of any information that may lead to any such person being identified; (c) prohibit the further publication of any information relating to the proceedings from such date as the court may specify; or (d) impose such other restrictions on the publication of information relating to the proceedings as the court may specify. (4) The court may on its own initiative or upon request authorise communication (a) for the purposes set out in Practice Direction 13A; or (b) for such other purposes as it considers appropriate, of information held by it. 92 Court's power to order that a hearing be held in public (1) The court may make an order (a) (b) (c) for a hearing to be held in public; for a part of a hearing to be held in public; or excluding any person, or class of persons, from attending a public hearing or a part of it. (2) Where the court makes an order under paragraph (1), it may in the same order or by a subsequent order (a) (i) (ii) (iii) (iv) (b) impose restrictions on the publication of the identity of any party; P (whether or not a party); any witness; or any other person; prohibit the publication of any information that may lead to any such person being identified; 3
(c) prohibit the further publication of any information relating to the proceedings from such date as the court may specify; or (d) impose such other restrictions on the publication of information relating to the proceedings as the court may specify. 93 Supplementary provisions relating to public or private hearings (1) An order under rule 90, 91 or 92 may be made (a) only where it appears to the court that there is good reason for making the order; (b) at any time; and (c) either on the court's own initiative or on an application made by any person in accordance with Part 10. (2) A practice direction may make further provision in connection with (a) (b) (c) private hearings; public hearings; or the publication of information about any proceedings. 4
4. In July 2015 a new part 3 was added to Practice Direction 13A. This sensible provision allows the court to authorise a process of disclosure for certain specific purposes, for example by a party to their GP, to enable them to receive confidential support, or their MP to pursue a complaint. 5. Paragraph 33 sets out the circumstances in which information about proceedings can be released, for example to a party, a party s legal representative or accredited legal representative (or ALR, see chapter 12), an expert or author of a s49 report as well as the Director of Legal Aid casework. 6. Paragraph 34 reads: (1) A party or the legal representative of a party, on behalf of and upon the instructions of that party, may communicate information relating to the proceedings to any person where necessary to enable that party (a) by confidential discussion, to obtain support, advice or assistance in the conduct of the proceedings; (b) to engage in mediation or other forms of non-court dispute resolution; (c) to make and pursue a complaint against a person or body concerned in the proceedings; or (d) to make and pursue a complaint regarding the law, policy or procedure relating to proceedings in the Court of Protection. 7. There are restrictions on onward disclosure. It should be noted that if information is communicated under paragraph 34(1) (a)- perhaps to a party s GP or counsellor- the person who receives the information must not pass it on to anyone else. Further communication is permitted where the initial disclosure is made under 1 (b), (c) or (d), either to take part in some form of ADR or to make a relevant complaint. In these cases successive communication is permitted but only with the agreement of 5
the party who communicated the information in the first place and for the original purpose. 8. The new pilot was foreshadowed on 16 January 2014 when Sir James Munby P issued guidance entitled Transparency in the Court of Protection: publication of judgments. The President considered that too few judgments in the Court of Protection were made available to the public and that greater transparency was needed to build both understanding of and confidence in the court system. He made it clear that this was part of an incremental approach and that the guidance would be followed by further guidance, then practice directions and changes to the rules, with a view to harmonising practice in the Court of Protection with that in the Family Court. 9. The current pilot is an important part of this incremental approach. It was announced in November 2015 and the aim is to give the public better information about the Court of Protection. It was not preceded by any kind of consultation and the changes are far-reaching. Although a pilot scheme, it will be nationwide and the changes go further than harmonising the Court of Protection with the family court system. 10. The scheme will be evaluated at its conclusion and it is understood that the Ministry of Justice (MoJ) will accept comments during the course of the pilot. The introductory note from the Vice-President of the Court of Protection, Mr Justice Charles, states that the MoJ will provide information on how the pilot will be assessed in due course. Practitioners are urged to sharer their experiences- and that of their clients- at the conclusion of the pilot. 6
How will the pilot work? 11. The court has released a set of documents (which can be found at http://courtofprotectionhandbook.com/posts/). The key documents are a. The new Practice Direction and b. The draft Pilot Order. c. The Vice President s note. 12. The Practice Direction is made under the powers in COPR 9A (which provides for pilot schemes) and 93 (2). It reverses the presumption that hearings will be in private. Instead the default position is that they will be in public with standard orders to ensure the anonymity of P and, where appropriate, other persons. 13. The practice direction applies to hearings in all proceedings except those cases where there are already established arrangements for them to be heard in public (serious medical treatment cases, which will continue to be governed by PD 9E and committal hearings). 14. Paragraph 1.3 makes it clear that the Pilot will apply to hearings which have been listed on or after 29 January. However cases which commenced before the pilot started are not exempt, although the fact that there have been earlier private hearings in a case will be a relevant factor in the court s decision- making if it is considering departing from the (new) general rule that the case will be heard in public. 15. Paragraph 2.1 explains that when the pilot scheme applies the court will ordinarily direct that any attended hearing shall be in public and will make a standard order in relation to the publication of proceedings. So, once the pilot order has been made it will be in place for the remainder of the case and all attended hearings will be in public. A dispute resolution hearing is not an attended hearing (para 2.2). 7
16. Paragraph 2.4 allows the court not to make an order under para 2.1, but only if it considers there is good reason for not making the order. Good reason has been considered in case law as it has formed the threshold for the court to consider the balance between the article 8 rights of individuals and the article 10 rights relating to freedom of expression. This was the test set out by the Court of Appeal in A v Independent News and Media Ltd and others [2010] EWCA Civ 343: it is suggested that the courts will still need to take this two stage approach. Once the Pilot Order is made however the Vice President s note states that the court should consider notifying the media at that stage. Therefore any applications should be made as soon as possible. 17. Paragraph 2.5 sets out some of the factors that the court will consider when deciding if there is good reason not to make an order that the hearing should be in public. These are: the need to protect P or another person involved in the proceedings; (b) the nature of the evidence in the proceedings; (c) whether earlier hearings in the proceedings have taken place in private; (d) whether the court location where the hearing will be held has facilities appropriate to allowing general public access to the hearing, and whether it would be practicable or proportionate to move to another location or hearing room; (e) whether there is any risk of disruption to the hearing if there is general public access to it; (f) whether, if there is good reason for not allowing general public access, there also exists good reason to deny access to duly accredited representatives of news gathering and reporting organisations. (2) In sub-paragraph (1)(f), duly accredited refers to accreditation in accordance with any administrative scheme for the time being approved for the purposes of this pilot by the Lord Chancellor. 8
18. It should be noted however that the court is not expected to take a binary approach and either make a standard Pilot Order or no such order at all. Instead, para 2.4 provides that the court should always consider as an alternative making an order under Rule 92(1)(b) and (c) that only part of the hearing will be in public or that some persons or classes of persons should be excluded. 19. In his accompanying Note on the Pilot, Charles J commented that it is important that reasons are given for any decisions not to make a pilot order. He therefore encourages judges who make such decisions to give a judgment, which will be a public document explaining his or her reasons for their decision and setting out who took part in the application or consideration. Moreover judges are encouraged to provide details and/or a copy to the Vice President. Plainly the expectation is that a Pilot Order will be the norm. 20. Paragraph 2.6 provides Where the court makes an order pursuant to paragraph 2.1 or 2.4 that an attended hearing or part of it is to be in public, the court will grant, to any person who would have been entitled under the Legal Services Act 2007 to exercise rights of audience at that hearing if such an order had not been made and the hearing was held in private (and who is not otherwise entitled to exercise such rights), the equivalent rights of audience at that attended hearing and any further attended hearing. unless the court is satisfied that there is good reason not to do so. 21. This was a late addition to the scheme, after it was pointed out by several solicitors who had seen the draft documentation that the effect of holding public hearings would be to deprive them of their rights of audience in the Court of Protection. This had in my view- been an oversight and was quickly responded to. The new 9
provision does however give rise to the question of when there might be good reason not to allow a solicitor to appear in a public hearing in the COP. The Pilot Order 22. It appears that there will be one order made in each case affected by the Pilot and that it will then remain in force throughout the case, unless an alternative order is made. 23. The first thing to be aware of is that the order will be a public document and therefore P s full name should no longer appear in full. Likewise the names of the parties will be appropriately anonymised. 24. The standard order will provide for the next hearing and any further hearing to be in public. Paragraph 2 makes it clear however that admission to the pilot will be dependent on the attendees signing a document before they go into court which will give their details and will confirm that they have been given a copy of the order and are aware of its terms. 25. The standard order will contain some basic details of the issues that the case concerns, from a list of standard descriptions. These will also be included in a cause list. a. where P should live; b. contact with specified persons; c. prohibiting contact with P; d. healthcare; e. capacity to marry or to consent to sexual relations; 10
f. appointment of deputy for personal welfare; g. varying or terminating an urgent or standard authorisation under the Deprivation of Liberty Safeguards; h. authorising a deprivation of liberty (in relation to e.g. care and residence arrangements); i. appointment of deputy for property and affairs; j. discharge or conduct of deputy; k. will, codicil, gift or settlement of property; l. registration of enduring or lasting power of attorney m. discharge or conduct of deputy or attorney (application by Public Guardian/delete as necessary); n. recognition and enforcement of a protective measure under the law of [name country] o. publication of information about proceedings. 26. It is noted that this will make research into the types of cases which come before the courts much easier. 27. Paragraph 5 is the injunctive provision and reads as follows: (A) The following persons (the Persons Bound by the Injunctive Order) are bound by this injunctive order: (i) the parties and their representatives, (ii) the witnesses, (iii) all persons who attend all or any part of an attended hearing, (iv) all persons who by any means obtain or are given an account or record of all or any part of an attended hearing or of any order or judgment made or given as a result of an attended hearing, and (v) any body, authority or organisation (and their officers, employees, servants and agents) for whom any such person works or is giving evidence. (B) The material and information (the Information) covered by this injunctive order is: (i) any material or information that identifies or is likely to identify that 11
(a) [ X] and members of X s family are respectively the subject (and so a P as defined in the Court of Protection Rules 2007) or members of the family of a subject of these proceedings, or that (b) [ --- ANONYMISED REFERENCE TO ANY OTHER PARTY -- ] is a party to these proceedings, or that (c) [ ----- ANONYMISED PERSON WHOSE IDENTITY SHOULD NOT BE PUBLISHED ----- ] (who the Court has so identified to the parties in private) [ -- ------ has taken a part in / or been referred to in ----------- ] these proceedings; and (ii) any material or information that identifies or is likely to identify where any person listed above lives, or is being cared for, or their contact details. 12
(C) Subject to further order of the Court and save as provided by subparagraph (D) the Persons Bound by this Injunctive Order shall not by any means directly or indirectly: (i) publish the Information or any part or parts of it, or (ii) cause, enable, assist in or encourage the publication of the Information or any part or parts of it. (D) Subject to further order of the Court this injunctive order does not prevent the Persons Bound by this Injunctive Order from communicating information relating to these proceedings on the basis that Part 3 of Practice Direction 13A to the Court of Protection Rules 2007 (which relates to proceedings held in private) applies to these proceedings. 28. Those who considered the draft documentation which was released in advance of the Pilot will notice that a new sub-section has been added to (5) (A). This is subparagraph (iv). It will be noted that members of the media are not specifically listed. The media must be given notice of an order restricting the media from reporting what happens in a given case (see Practice Direction 13A). Charles J explains in the Vice President s note that to give the media formal notice on each occasion that a Pilot order was made would be impracticable and would cause delays. His view is that this is not necessary anyway as if a member of the media attends a hearing they will be bound by the terms of the order. The possible lacuna identified by Lucy Series (https://thesmallplaces.wordpress.com/2015/11/25/court-of-protectiontransparency-pilot/) that someone who attends the hearing subsequently breaches the Pilot Order and provides information to a third party is catered for by sub-para (iv) which binds the third party. 29. This however places a significant burden on the third party who is given an account of what has happened at a hearing, but who may not have been told about the order or seen it. 13
30. It will be seen that 5(B) sets out the information which is covered by the injunction. This broadly protects the identity of a. P and members of P s family, b. Other parties (eg, local authority, Trust, other individuals) c. Other persons involved or referred to. 31. The injunction does not prevent disclosure of information under part 3 of Practice Direction 13A (see above) if this has been permitted by the judge (see para 5D). 32. Paragraph 6 requires any transcripts of judgements to be anonymised. 33. Paragraphs 7 and 8 deal with the provision of copies of documents. It is understood that the reasoning behind this is that there is no point allowing access to the court without taking some steps to facilitate an understanding of the issues. Thus, any accredited member of the media will be given copies of the following documents which must now be anonymised: a. Position statements b. Statements of issues c. Chronologies and d. Skeleton arguments. 34. Paragraph 9 provides for a record of that information which the court has determined should not be released to be kept and referred to as the Record. This information may be made available on such terms as the court thinks fit to anyone who attends the hearing (para 9) or makes an application supported by evidence (para 10). 35. Paragraph 11 gives the parties and anyone affected by the order liberty to apply to vary or discharge it. the Vice President s note makes it clear that such applications 14
must be supported by evidence, although this is not in the Practice Direction or the draft order. 36. Paragraph 12 deals with the question of solicitors rights of audience. What will happen at court? 37. The MoJ has released details of its guidance to staff. From this it appears that the following steps will be taken: a. There will be a daily cause list, using the descriptions set out in paragraph 26, for pilot hearings. b. There will be notices on the doors of the courtrooms, to show which are pilot hearings and which are not c. Staff are given specific instructions as to what they can and cannot tell those who make enquiries about cases, d. Those who want to attend hearings will not be allowed to unless they sign an attendance form which also states that they are aware of the Pilot Order. Preparing for the Pilot 38. The following steps are likely to be helpful (and in many cases will already have been taken): a. Advising clients about the proposed changes- see suggested letter which you are welcome to make use of. b. Anonymisation- no longer use the full names of P in an order or position statement. This will involve a cultural shift as practitioners move back to the old regime of alphabet soup. 15
c. Review your caseload- are there cases where you think it is likely you will ask the court not to make a Pilot Order? What about new cases? d. It is likely that at the outset the costs of a case may be increased by the time it takes to consider and advise the client of the impact of the pilot scheme. Practitioners will therefore need to factor this into costs estimates for privately paying clients and the LAA. 39. And last of all- think about the caselaw. SOPHY MILES Doughty Street Chambers 16