Read all about it: 'Incompetent reports on the CoP

January 2016 marks the start of a pilot scheme that will increase public and media access to hearings in the Court of Protection - the court established under the Mental Capacity Act 2005 to make declarations about capacity and best interests decisions on behalf of adults who lack capacity. The court's rule that hearings are in private will be reversed, meaning hearings
will generally be public with anonymity orders to protect the privacy of those involved.
The scheme follows the Practice Guidance of January 2014 [2014] EWCOP B2, which authorised publication of important judgments of the court.

Public understanding

One purpose of the transparency measures is to improve public understanding of the court process and confidence in the court system. The court makes some momentous decisions about people's lives, and it is right that its workings and scope should be better understood.
In addition, non-lawyers often
act as decision makers under the Mental Capacity Act and need to know the law that shapes their duties. Although published judgments may be read by anyone on the internet, the media has a vital role in bringing Court of Protection cases to wider public awareness. But, to date, the work even of the serious media has largely failed to accurately explain what the
court does and does not decide.

Careless headlines

Media reports of the recent decision in King's College Hospital NHS Foundation Trust v C [2015] EWCOP 80 (the case of the woman who had 'lost her sparkle' and wished to refuse life-saving treatment) illustrates these failings.

At least three broadsheet newspapers published articles under headlines containing the words 'right to die' and suggested that the court had 'granted' C such a right. As Mr Justice Hayden pointed out in a similar case, dealing not with capacity but whether it was in P's best interests to receive life-sustaining treatment (Re N [2015] EWCOP 76), the case was not about the right to die. As he said, no such right exists. The campaign and proposed legislation for such a right (the Assisted Dying Bill was rejected by MPs in September 2015) made it clear that a person's capacity to make a decision to end their own life must be proved as a threshold to any court order permitting assisted dying. It is irresponsible to suggest through careless headline appropriation of the words 'right to die' that a court which deals with people who lack, or may lack, capacity might also rule whether such people had said right.

Nearly as misleading is the suggestion that the court 'grants' individual adults any exercise of rights. In C's case, the only issue was whether or not she had capacity to make a decision to refuse life-saving medical treatment, the NHS trust having applied for a declaration to ensure that it acted lawfully in any continuing treatment. As with any decision made by any adult,
C was presumed to have capacity, unless the contrary was proved. The court found that C had capacity, as both the Official Solicitor on her behalf and her daughter, V, argued. It had no further jurisdiction to make decisions for her or orders 'granting' or 'permitting' her to
do anything. The presumption
of capacity is essential to the functioning of everyday adult
life, but appears wholly misunderstood by the media in reporting Court of Protection decisions.

Another piece of misinformation is the description of the Court of Protection as dealing with 'cases involving
sick and vulnerable people'.
This originated in a news agency report in 2014 and has been frequently cut and pasted by newspapers and the BBC since.

Lawyerly expectations?

The court does not deal with
'sick' people unless they have an impairment or disturbance in the functioning of the mind or brain. It has no business with even a terminally ill person who does not have such an impairment or disturbance, let alone people who are 'sick' in the trivial sense
of the odd headache or rash.
Nor does it deal with 'vulnerable' people in the technical legal sense. DL v A Local Authority [2012] EWCA Civ 253 established the continuing existence of the inherent jurisdiction of the High Court to make orders protecting adults who are perceived to be vulnerable, but who do not lack capacity within the meaning of the 2005 Act. It would be over-lawyerly to expect the media to explain this distinction, but it is thoroughly unhelpful to use the word 'vulnerable' in the Court of Protection context.

These fundamental inaccuracies form the bedrock of tendentious opinion pieces not worth the paper or bandwidth they consume,
and do nothing to support
the court's transparency
project or enhance public understanding of the law.
The public, the court, and its users deserve a higher standard of writing, editing, and insight into opinions formed by the media.

Barbara Rich is a barrister practising from 5 Stone Buildings @5sbla wwww.5sblaw.com