On 15 February 2011 Hedley J ordered that a case proceeding in the Court of Protection which featured medical information of the highest sensitivity should be held in open court. The Court of Protection normally hears such cases in private.
The case concerned a young woman aged 21 with severe learning difficulties who was expecting her second child. The application, made by her mother, was for her daughter to be sterilised to prevent her becoming pregnant again. The case, which was adjourned, will turn on whether it is established that the daughter lacks the capacity to make decisions about contraception and, if so, whether sterilisation would be in her best interests.A report of the case appears in the Independent, which has previously run a successfully campaign for open justice in the Court of Protection. Earlier postings on this blog here and here contain details of other instances in which the Court of Protection has relaxed its normal privacy rules.
In this instance, Hedley J determined that the case should be heard in open court because of the “legitimate public interest” in the case. The Judge considered that a hearing in open Court would help people’s understanding of the powers of the Court of Protection and provide “a real opportunity for debate” about “why the Court should have these powers and if it should, how it should use them”. That was particularly so as the application was for the daughter to undergo “serious medical treatment”.
His ruling however did not override the patient’s right to confidentiality when it comes to medical matters. The daughter’s right to confidentiality was preserved by strict reporting restrictions which meant that no details about her identity, her family or location could be published. No information might be released which could identify the patient, including the name of the NHS Trust, the doctors involved and the local authority concerned. It was the Official Solicitor, acting for the daughter, which applied for the reporting restrictions, upholding the principle that the daughter was entitled to keep her medical condition and treatment confidential.
The case is currently adjourned until May 2011 for further reports.
See further section 10.2 of the Privacy Law Handbook