Court of Protection to test increased access for public and media

Public and media will gain greater access to Court of Protection hearings after a pilot scheme starting next year.

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.

With rare exceptions, such as serious medical cases, hearings have usually been in private with only those directly involved in the case attending.

The pilot will reverse this approach and the Court will normally direct that its hearings will be in public and make an anonymity order to protect the people involved.

The scheme will provide evidence to assess whether the Court should in future hold its hearings in private or in public and whether access should be given to the media but not the public.

Her Majesty’s Courts and Tribunals Service (HMCTS) will also amend 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.

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 support a move towards more public hearings to promote a wider understanding of the work and approach of the Court of Protection and the improvement of the  performance of the Court and 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:

“I’m pleased that we are piloting a new more open, more transparent Court of Protection. It’s right the public and the media should be able to see justice being done in this important court, while protecting the privacy of the people involved.”

The Court of Protection’s main base is in London but it also sits throughout England and Wales. The pilot is expected to run in all regions from January 2016 for at least six months (with the possibility of extension) to allow for the changes to be fully tested.

Please see background note below with further detail about the forthcoming pilot, a copy of the draft pilot practice direction and a new standard order for information purposes. Further detailed information will follow separately for court staff and members of the judiciary.

NOTES FOR EDITORS

  1. The Court of Protection was established by the Mental Capacity Act 2005. A high percentage of applications relating to property and affairs are not disputed and they are dealt with on paper without a hearing.
  2. Further information on the Court of Protection
  3. Court of Protection daily lists
  4. Court of Protection judgments on British and Irish Legal Information Institute.
  5. The Court of Protection Rule Committee and ministers at the Ministry of Justice have devised the scope of the pilot and the Practice Direction to judges to allow it to take place.
  6. The Practice Direction is made under rule 9A of the Court of Protection Rules 2007 (“CoPR”). It provides for a pilot scheme for the holding of hearings to be in public pursuant to orders under Rule 92 with a standard order for restrictions on reporting to ensure the anonymity of those lacking capacity and, where appropriate, other persons.
  7. It will apply to hearings in all proceedings except applications relating to serious medical treatment (for which Practice Direction 9E makes specific provision) and applications for a committal order (for which rule 188 makes specific provision).
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