Court of Protection prepares to open up

A pilot scheme begins today which will see the public and media gain access to Court of Protection hearings across England and Wales for the first time.

A new Pilot Practice Direction will apply to new proceedings issued from today onwards. Hearings scheduled already under the old rules will not be changed but some urgent open hearings will feed through to the courts from next month.

The Practice Direction will effectively change the default position to one where hearings are held in public with reporting restrictions to protect identities. This means that when an order has been made under the pilot, both the media and the public will be able to attend, unless a further order has been made which excludes them. This will also apply to proceedings issued pre- 29 January but where a further hearing becomes necessary after the start date.

The specialist Court makes decisions about the personal welfare (e.g. medical treatment) and the property and affairs of persons who lack capacity to make them themselves, applying a best interests test. The Court of Protection’s main base is in London but it also sits throughout England and Wales.

Court of Protection judgments have been routinely published since 2010 and serious medical cases (such as a decision to stop life support) are held in public, with the identities of those concerned kept anonymous. Committal hearings where a custodial sentence is imposed are also held in public.

Her Majesty’s Courts and Tribunals Service (HMCTS) is also amending the way in which court lists are displayed, so that they provide a short descriptor of what the case is about, allowing the media and members of the public to make an informed decision on whether to attend the hearing. Lists will be published on a weekly basis in court buildings and online at www.courtserve.net.

Sir James Munby, President of the Court of Protection, said:

“For the last six years accredited media have been able to attend Family Court cases and have been better informed about the work of the Family Court as a result. It is logical to look at extending this greater transparency to the Court of Protection, provided the right balance can be struck to safeguard the privacy of people who lack capacity to make their own decisions.”

Vice President of the Court of Protection Mr Justice Charles said:

“I have long supported this move towards more public hearings to promote a wider understanding of the work and approach of the Court of Protection and improve its performance and that of those who appear in it. I am aware that others hold different views on whether hearings should generally be in public and hope that the pilot will provide useful evidence to weigh the rival arguments.”

Justice Minister Caroline Dinenage said:

“It is our ambition to increase the transparency and public accountability of our courts.

“While the privacy of the people involved will continue to be protected, it is also important that the public and media are able to see how justice is done.”

The pilot is expected to run in all regions for at least six months (with the possibility of extension) to allow for the changes to be fully tested. Media organisations consulted during the pilot’s development included the Society of Editors and the News Media Association.

In an advisory role Ministry of Justice Analytical Services will seek to understand how the pilot has been implemented and how it has worked in practice, exploring issues such as accommodating press and the public in courtrooms, and any publication or unwanted disruption attributed to the changes.
Key facts

The Court of Protection was established by the Mental Capacity Act 2005. It is responsible for:

  • deciding whether someone has the mental capacity to make a particular decision for themselves
  • appointing deputies to make ongoing decisions for people who lack mental capacity
  • giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
  • handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
  • making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration.
  • considering applications to make statutory wills or gifts
  • making decisions about when someone can be deprived of their liberty under the Mental Capacity Act. It deals with about 25,000 applications under the Act each year.

A high percentage of applications relating to property and affairs are not disputed and they are dealt with on paper without a hearing.

NOTES FOR EDITORS

  1. Further information on the Court of Protection
  2. Court of Protection daily lists
  3. Court of Protection judgments on British and Irish Legal Information Institute
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