The Court of Protection has recently published new guidance to take effect from 3 February 2014 to bring an end to the veil of secrecy that arguably shrouded the court that makes life-changing decisions on behalf of mentally incapacitated people.
The media together with families of vulnerable adults has long been campaigning for greater transparency in the court to improve public understanding of its process and to build confidence in the court system. The court has previously been criticised as being a ‘secret court’ and the lack of publicised judgements has been held to make it difficult to understand how the court operates to protect vulnerable adults.
The new guidance is a welcome step in transparency in the court process. It essentially provides that a judgement should be published unless there are compelling reasons not to do so. The guidance distinguishes between two types of judgement; those that the judge must ordinarily allow to be published and those that may be published. It is provided that permission to publish a judgement 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 third party or the media. In all other cases, permission should be given unless there are compelling reasons why the judgement should not be published. Due to the nature of the cases decided in the court anonymity will be afforded to the person who is the subject of the proceedings in the court and other members of their family. It is not intended however that anonymity shall be extended beyond this unless specifically ordered otherwise.
The judgements which now must be ordinarily published include those relating to the making or refusal of any order authorising a change of the placement of an adult from one with a family member to a home, involving a deprivation of liberty, involving the giving or withholding of significant medical treatment, or involving a restraint on publication of information relating to the proceedings.
Increased public awareness of those cases that are heard in the Court of Protection can only lead to a greater understanding of the issues that families face on incapacity. This will also serve as an important reminder that appointing an attorney under a Lasting Power of Attorney for health and welfare can be just as important as appointing somebody to look after their finances on incapacity.
