Another C-Section case and the ‘secret’ court

Since the widely-reported case of Ms Pacchieri (Re AA [2012] EWHC 4378 (COP)), there has been a string of cases before the Court of Protection in which approvals have been granted for caesarean sections to carried out upon women incapable of consenting to the procedure.   A further one can now be added to the list, in the case of Re P [2013] EWHC 4581 (COP).  Although it was decided in December 2013, the judgment has only now become publicly available.  As important as the decision is for Mrs P herself,  I hope that it will not be taken amiss if I say that it represents the careful application of conventional legal principles to specific facts which would not, itself, call for specific comment.

Rather, I want to note it because of a passage from the judgment of Peter Jackson J relating to the presence of media representatives in the court (as per standard practice in serious medical treatment cases).   At paragraph 7, he noted:

Those members of the media who are present have followed the proceedings and are in a position to inform the public in whatever way they think best.  I cannot envisage circumstances in which an important matter of this kind would be dealt with in any other way.  The court’s only concern is that the interests of incapable or vulnerable people are not needlessly sacrificed.  The time will surely come when responsible commentators will realise that attending hearings or making inquiries of the court as to how, and why, the decision has been reached will almost always lead to a fuller understanding and that it will no longer be respectable to fail to make basic inquiries and then to caricature the process as having somehow been closed or secretive.”

Lawyers such as myself who practice in the Court of Protection frequently find themselves fulminating about press coverage of the court. It is fair to say that it can seem at times that certain sections of the media are determined to cast the court in a uniformly negative light and to frame stories by reference to an agenda rather than the facts. But it is perhaps too easy for lawyers (and judges) to be complacent – as the President has recently noted in subsequent proceedings relating to Ms Pacchieri’s child) ([2013] EWHC 4048 (Fam), and reflecting upon the media storm in that case:

43. … there are two points that require to be addressed with honesty and candour. Both relate to the fact that, when this story first ‘broke’ on 1 December 2013, none of the relevant information was in the public domain in this country.

44. The first point is this: How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?

45. The second point is, if anything, even more important. This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of High Court Judges; it applies also to the judgments of Circuit Judges.

The President has made clear that he considers that the same principles apply in the Court of Protection as apply in the family courts, and has followed up on his second point by issuing new guidance on the publication of judgments, whose effect has already been seen.

The first point, however, is one that remains troubling to me.  We can only get better reporting of the processes of the Court of Protection if journalists attend hearings – but they can only attend hearings if they are aware of them and the issues which will be decided in them.   In medical treatment cases, the process of obtaining a reporting restriction order will in and of itself alert the press to the fact of an application; the same does not apply for proceedings relating to welfare or property and affairs which, in principle, are held in private.   Journalists do get to hear of some cases – most usually by a family member (either in ignorance or in defiance of the rules relating to the confidentiality of proceedings) notifying the press, but it does seem to me that a considerable amount remains to be done by way of liaison between lawyers, the judiciary and the press to highlight the listing of cases in which the public has a legitimate interest are to be heard.

In this regard, I have squarely in mind the recent comments of District Judge Eldergill noted in Westminster City Council v Manuela Sykes [2014] EWHC B9 (COP), explaining the general rule that CoP proceedings (other than serious medical treatment cases) are held in private:

“That is not the same as being secretive; a GP is not a ‘secret doctor’ because the press have no unqualified right to be present during patient consultations or to report what is said. All citizens have a right to expect that information about them will be held in confidence by their doctors and social workers, and to expect that any overriding, future, need to breach this right will go no further than necessary, and only exceptionally involve seeing it in national newspapers.

Everyone benefits from, and enjoys, this level of privacy and therefore there is a strong public interest in privacy. Not to allow an incapacitated person the same general right to privacy or confidentiality that we claim it for ourselves would be to discriminate against them because of their mental illness and vulnerability.

The one, highly important, difference is that whilst in an ideal world incapacitated people would have exactly the same right to privacy and confidentiality that the rest of us enjoy, when judges make decisions for them this brings into play the competing consideration that the public ought to know how courts of law function and administer justice: what kinds of decisions they are making, the quality of those decisions, and so forth.

While it is sometimes necessary to distinguish between ‘the public interest’ and ‘matters which the public finds interesting,’ there is a high public interest in seeing that hearings which determine the rights of incapacitated people, and their families, are fair and properly administered.”

I have no doubt that through the work of Phil Fennell and Lucy Series at Cardiff Law School, we will in due course get a better idea of the workings of the Court at a structural level; what I hope that we can work on in parallel are protocols to enable responsible reporting of current cases to highlight how the Court works in individual cases in such a way as to balance the interests identified by District Judge Eldergill.

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