Book review: Laura Mannering, A Practical Guide to Privacy, Transparency, Reporting Restrictions and Closed Hearings in the Court of Protection (Law Brief Publishing, 2024, 89 pages, £49.99)
That this book is required is a testament to the sea change that has occurred since Charles J, the then-Vice President of the Court of Protection, decided[1] to throw the doors of the court (mostly) open in 2016, first by way of a pilot, and then by way of cementing the position into the Rules in 2017. In the first few years, the doors may have been open, but almost no-one came. Then COVID-19 occurred, the majority of hearings went online, the Open Justice Court of Protection Project was founded, and, not without glitches recorded regularly on the pages of the OJCPP, hearings up and down the country started regularly – and continue regularly – to be heard in (and attended by the) public, subject to reporting restrictions contained in Transparency Orders.
The Transparency Order framework is a clunky one, requiring an order to be made every time simultaneously reversing the statutory presumption that the hearing will be in private and imposing reporting restrictions. The clunkiness has been a problem from the outset, but it stems from the fact that the primary legislation (the Mental Capacity Act 2005) does not contain the powers automatically to protect the identity of P without an order being made every time. I have discussed this further here, but until the MCA 2005 is amended, we are stuck with the current framework.
And, whilst we remain stuck, Laura Mannering’s book provides a very clear and very useful guide to the relevant Court of Protection Rules and the Transparency Practice Direction and the cases in which they have been considered. A partner at Edwards Duthie Shamash solicitors, the author is in court very regularly having to deal with the matters covered in the book. By drawing out – in successive chapters – the issues of privacy and transparency, she highlights how the current approach of the Court of Protection seeks to balance the two. She also usefully addresses how the balance is rather different in the context of both committal hearings and so-called ‘closed’ hearings.
As the author notes, matters relating to transparency are in a state of some flux, although developments are somewhat stalled at the time of writing as we await the decision of the Supreme Court in the Abbasi and Haastrup cases. As she notes, whilst this case concerns the naming of clinicians in cases involving the serious medical treatment of children, it is already being applied in the Court of Protection. Further developments relating to transparency in the Court of Protection (for instance by way of a further iteration of the precedent transparency order) will have to await what the Supreme Court has to say. But given that we do not know when the decision will be handed down, nor, in turn, when the transparency order and (if necessary) the surrounding process can be updated, it made perfect sense not to delay publication of this extremely helpful book. What it does mean that is we have to hope that the author can be persuaded to think about getting a second edition ready sooner rather than later.
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Full disclosure: I was provided with a review copy by the author. I am always happy to review books in the fields of mental capacity, mental health law and healthcare law.
[1] I am simplifying. The process was more complicated, and involved also the Ministry of Justice, the Lord Chancellor and the President of the Court of Protection. However, having been on the ad hoc Rules Committee throughout the relevant period, I can confirm that the initiative was very firmly that of Charles J.
