Court of Protection publishes guidance on ‘closed hearings’ and ‘closed material’

The Hon Mr Justice Hayden, Vice President of the Court of Protection, published new guidance on ‘closed hearings’ and ‘closed material’ on 9 February, which aims to establish clear procedure for cases involving closed material and closed hearings that are considered in the Court of Protection.

A sub-committee of the Court of Protection Rules Committee was set up in order to help formulate the new guidance, following the November 2022 decision in Re A (Covert Medication, Closed Proceedings), [2022] EWCOP 44, which dealt with the circumstances in which the Court may authorise a closed hearing to take place.

The Court of Protection has the power to authorise a hearing to take place without the involvement of specific individuals in exceptional circumstances if it deems that the best interests of the individual, where that individual lacks the ability to make decisions for themselves, may be undermined by the involvement of that party.

The newly issued guidance explains that ‘closed material’ is material that the court has determined should not be seen by the party and/or their representative. ‘Closed hearings’ are defined as hearings from which (1) a party; and (2) (where the party is represented) the party’s representative is excluded by order of the court. The guidance states specfically that: “For the avoidance of doubt, this is different to a ‘private hearing,’ which is a hearing at which all the parties are present (or represented), but from which members of the public and the press are excluded.” The guidance also applies to situations where an order may be made that a party and/or their representative is not to be told of the fact or outcome of a without notice application.

Mr Justice Hayden made the following observations during the abovementioned case: the Court of Protection may consider it necessary for a closed hearing to take place if it deems it to be appropriate to protect the individual’s rights under the Human Rights Act or for any other compelling reason; a closed hearing must be a last resort and the onus is on the party seeking a closed hearing to show that it is justified and no other options would suffice in the circumstances; and the Court of Protection must balance the rights of all the parties to be involved in the hearing against the protection of the individual’s best interests.