Out of sight

The Court of Protection is charged with making intensely private decisions about persons who lack capacity. If it was not for the fact that a person lacks capacity, these decisions would be outside of the public domain.

With this in mind, there is no good reason why the media should generally be given access to Court of Protection proceedings, nor why they should generally be allowed to report them. The appropriate degree of public scrutiny of the Court of Protection can, as a rule, be achieved by the court process itself and the publication of anonymised law reports.

Uninvited audience

The mere presence of an uninvolved audience in the Court of Protection interferes with the right to privacy of the incapacitous person and their families. The Court of Appeal accepted in Independent News Media v A that the conduct of the affairs of incapacitous adults is private business. People who have capacity enjoy the freedom to make significant decisions about their lives in private, without the media acting as a spectator. Celebrities invoke legal protection from press interest in the most intimate details of their private lives. Why should this be any different for people who lack capacity?

The information made available in Court of Protection proceedings includes medical and financial records and details about the most intimate aspects of the incapacitous person’s life. A journalist cannot simply walk into a hospital and request access to a person’s medical records on the basis that the actions of doctors with regard to incapacitous adults should be open to public scrutiny. This kind of information is usually kept private unless that person consents to it being disclosed, even if only impliedly by issuing legal proceedings.

The incapacitated person cannot consent to this information being heard by people who would not ordinarily have access to it, and does not choose to issue legal proceedings in order to decide important issues in his life. There can be no good reason why a person should be denied this basic right of privacy simply because the court is required to make decisions on his behalf.

The court must make decisions about the incapacitous person in accordance with his best interests. It will only rarely be in the best interests of the incapacitous person to allow the press to attend and report proceedings concerning them. The clear harm to P was recognised by the Court of Appeal in P v Independent Print Ltd and others, where the court went to great lengths to protect the anonymity of P and to prevent him from finding out that his case had attracted media interest. If the court has to make wide-ranging orders which protect the anonymity of P in these cases, they are clearly very serious concerns about P’s welfare that should not easily be overridden by non-specific references to the public interest.

Conspiracy theory

The media interest in the Court of Protection is justified on the basis that there is an inherent public interest in opening up the court to scrutiny. This argument is often based on the allegation that the court is secretive, making decisions away from the public eye so that they cannot be held to account. But there is no conspiracy between judges, advocates and the parties to ensure that a particular outcome is achieved or that the wishes of a family are overridden.

The Court of Protection makes decisions based on all of the circumstances of the case, with the assistance of advocates and expert evidence as to the best interests of the incapacitous person. If there is an error in the decision, it can be appealed. This is a much more robust form of scrutiny than allowing the public, particularly the media, to sit in on hearings.

The principle that justice should be open and accessible is incredibly important. However, it should not be pursued at the expense of the privacy of an individual who, by the very nature of the court’s involvement, has no say in how the proceedings are conducted. Only in very specific cases should a breach of an incapacitous person’s privacy by allowing the presence of the media, or subsequent reporting, be justified.

Fenella Morris is a barrister at 39 Essex Street. Fellow chambers' barrister Rose Grogan also contributed to this article

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