A Practical Guide to Privacy, Transparency, Reporting Restrictions and Closed Hearings in the Court of Protection

The Court of Protection is seized with decision making for individuals who are found to lack the mental capacity to make those decisions for themselves. Those decisions can involve the individual’s health and welfare, including serious medical treatment decisions, as well as decisions about the management of their property and financial affairs. As a result, cases that come before the Court of Protection will often involve sensitive and private information about the individuals on whose behalf the court is making decisions. Careful consideration needs to be given to the rights of those individuals to have their privacy protected, whilst also balancing the important principles of open justice and the need for transparency in the court’s decision making. The general rule in the Court of Protection is that hearings are to be held in private, however the implementation of the new Practice Direction 4C – Transparency in 2017 has meant that the usual approach is now that proceedings will be heard in public but with appropriate orders being made to manage what information can reported. This guide considers the impact of the new practice direction and how the balancing exercise referred to above is undertaken by the court by reference to the practice direction, court rules and case law. ABOUT THE AUTHOR Laura Mannering is a solicitor advocate and partner at Edwards Duthie Shamash Solicitors with over fifteen years of experience specialising in Court of Protection and Community Care law. Laura is also an Accredited Legal Representative (ALR) under the Law Society Mental Capacity Accreditation Scheme. Laura has a particular interest in cases in the Court of Protection representing vulnerable adults in proceedings relating to their mental capacity and best interests in respect of issues concerning their residence, care, contact with particular individuals, foreign travel, contraception and engaging in sexual relations and consent to marriage, as well as cases involving decisions about serious medical treatment. Laura was instructed in the matters of Kent County Council v P (by her litigation friend the Official Solicitor) v NHS Kent and Medway Commissioning Group (formerly NHS South Kent CCG) [2022] EWCOP 3 and Esper v NHS NW London ICB (Appeal : Anonymity in Committal Proceedings), Re (Rev1) [2023] EWCOP 29 (10 July 2023), both of which are considered in this guide. CONTENTS Introduction Chapter 1 – The Rules and Practice Directions The general rule Public hearings Practice Direction 4C – Transparency and transparency orders Practice Direction 4A Summary Chapter 2 – Privacy Private hearings and reporting The balancing exercise: Article 8 ECHR v Article 10 ECHR The case law Summary Chapter 3 – Transparency Transparency orders – P’s information Transparency orders – the information of other parties/individuals’ Summary Chapter 4 – Lifting Reporting Restrictions Lifting the restrictions A decision not to lift the reporting restrictions Summary Chapter 5 – Transparency and Privacy in the Context of Committal Proceedings in the Court of Protection The Rules The case law Summary Chapter 6 – Transparency in the Context of Closed Proceedings The guidance The case law Summary Chapter 7 – Conclusions