On 16 January 2014 the President, Sir James Munby, published Practice Guidance on transparency in the Court of Protection and the publication of judgments. This followed a period of comment and discussion on the draft guidance, which readers will recall was published in July 2013.
The new Practice Guidance takes effect from 3 February 2014 and differs from the terms of the draft guidance in a number of respects. In outline, the key points are as follows:
- The Practice Guidance applies to all judgments in the Court of Protection delivered by the Senior Judge, nominated Circuit Judges and High Court Judges. In due course consideration will be given to extending it to judgments delivered by other judges.
- Permission to publish a judgment should always be given whenever the judge concludes that publication would be in the public interest and whether or not a request has been made by a party or the media.
- Where a judgment relates to particular matters (summarised below) and a written judgment already exists in a publishable form or the judge has already ordered that the judgment be transcribed, the starting point is that permission should be given for the judgment to be published unless there are compelling reasons why the judgment should not be published. The specified matters are as follows:
- the giving or withholding of serious medical treatment and any other hearing held in public;
- a deprivation or possible deprivation of liberty;
- a dispute as to who should act as an attorney or a deputy;
- whether a person should be restrained from acting as an attorney or a deputy or that an appointment should be revoked or his or her powers should be reduced;
- moving an incapacitated adult (P) into or out of a residential establishment or other institution;
- the sale of P’s home;
- a property and affairs application relating to assets (including P’s home) of £1 million or more or to damages awarded by a court sitting in public;\
- capacity to marry or to consent to sexual relations; and
- restraint on publication of information relating to the proceedings.
- In all other cases, the starting point is that permission may be given for the judgment to be published whenever a party or an accredited member of the media applies for an order permitting publication, and the judge concludes that permission for the judgment to be published should be given.
- In all cases where a judge gives permission for a judgment to be published:
- Public authorities and expert witnesses should be named in the judgment approved for publication, unless there are compelling reasons why they should not be so named;
- the person who is the subject of proceedings in the Court of Protection and other members of their family should not normally be named in the judgment approved for publication unless the judge otherwise orders;
- anonymity in the judgment as published should not normally extend beyond protecting the privacy of the adults who are the subject of the proceedings and other members of their families, unless there are compelling reasons to do so.