Secrecy and the Court of Protection

The Court of Protection case of SCC v JM & Ors has created headlines in the press again now that Wanda Maddocks has been revealed as the first person known to the public to be given a prison sentence for contempt of court by the Court of Protection. Although the case is an extreme example of the court exercising its powers, should there be some concern about the private nature of its hearings and judgments?

In brief, Wanda Maddocks ignored Court of Protection orders in relation to removing her father from a care home, distributing leaflets during hearings that identified her father and the proceedings in the court, abusing and threatening a social worker and bringing her father to court on the day of the judgment regarding a welfare application. This caused her father, who suffered from dementia, great distress and care professionals around him felt action had to be taken to protect him. She evaded service of the application for the contempt of court proceedings and didn't attend the hearing. The judge, HHJ Cardinal, stated that he was left with no choice but to rule that Ms Maddocks should be committed for contempt of court.

This case highlights that Court of Protection orders are to be taken seriously and obeyed like any other court order. If orders are not abided by, there are sanctions that the court is not afraid to use. The role of the Court of Protection is to protect vulnerable people who lack the capacity to look after their own affairs.

Sentencing Ms Maddocks to prison for contempt demonstrates that the court will make robust decisions to safeguard people who cannot protect themselves. It also provides a level of security for those involved in the care of vulnerable people. The court will make orders to prevent abuse of social and care workers and will subsequently enforce them.

Although it is right that the court should be tough on those that disobey its orders, questions are being raised about the private nature of hearings and judgments that can result in prison sentences. The Court of Protection is gaining a reputation in the press for being secretive leading to allegations of corruption and abuse of powers. With the court looking after the affairs of the vulnerable, it can ill afford to be perceived in this way.

Under the Court of Protection Rules 2007 any court proceedings in the Court of Protection are to be held in private with only the parties, litigation friends, legal representatives and court officers present unless the court orders otherwise. This is because of the sensitive nature of the proceedings that the court hears.

The court is often grappling with moral dilemmas which it has been suggested should be aired in public for open discussion. But often these matters are deeply personal to the people involved and lack of capacity to make the decision themselves shouldn't lead to a lack of privacy.

Committal hearings in the Court of Protection are held in public unless the court orders otherwise and Ms Maddocks' hearing was open. Complaints are being made that although the hearing wasn't in private, it was not widely publicised and therefore, in effect, it was as if it was in closed court. If the hearing is to be held in private then the court will state the name of the person concerned, the nature of the contempt and the sentence levied. Unlike other court hearings, the judgments do not tend to be published and this has led to the suggestion that there are no proper checks and balances for decisions that are being made.

This viewpoint ignores the fact that appeals can be made against a judgment in the Court of Protection which can be taken all the way up to the Court of Appeal. A party to proceedings (including committal hearings) can appeal within 21 days of the decision whether or not there was a hearing. The appeal system should be sufficient to ensure that the judgments being made are fair and correct.

The case of Wanda Maddocks proves that the court will impose sanctions on those that disobey its orders giving it some clout in the protection of the vulnerable and their support workers.

Although an appeal system is in place for decisions that parties are not happy with, the court will have to carefully gauge what is of a sensitive nature and should remain private and what should be in the public domain for the good of moral and social dilemmas.