Opening Secret Courts

As it happens, I work a lot around issues of Mental Capacity in my day to day work so I have more than a passing interest in the dealings of the Court of Protection. The Court of Protection, you see, has a hand in many of the issues that might relate to decisions that are made in relation to people who lack capacity.

The Court of Protection is generally closed. The reasons being (and I make no judgement of the rightness or wrongness of this) is to protect those whose personal business arises in the court. As it relates to people who lack capacity in general, they are not able to make a decision about the reporting, or not, of their personal lives as they unfurl in the court and usually have not personally taken the active decision to go to court so should not (the argument goes, I suppose) deal with the publicity that surrounds it.

This is what is mean by ‘closed’ justice and ‘hidden’ courts that some newspapers, the Independent notably, campaign against.

I’m not a campaigning journalist concerned about the lack of transparency in decisions although I grant that is an issue,  but I am a practising social worker who would find the published decisions very useful in my current practice and having a mind, particularly in matters regarding deprivations of liberty, to seek to understand current case law (which changes rapidly) it can be a challenge to find the information I feel I need to ensure my practice is safe and lawful at all times.

I would love to see more opening up of the court with the strict proviso that anonymity was preserved to those to whom the decisions are made. There are always options for other types of rulings to be made – for particular private rulings where privacy could not be guaranteed due to circumstances but it would go a long way to improving understanding and knowledge if we could, at least, use the information in the rulings that the judges use to interpret decisions and it could inform our practice on a very practical level.

Sir Nicholas Wall, the Head of the Court of Protection, gave an interesting interview in the Observer yesterday. It came in the context of the Guardian having been given access to the courts for three weeks.

In a rare interview, Wall said that even without a parliamentary statute, he is “increasingly encouraging judges who deal with life and death cases and those that involve the public interest – that is, deprivation of liberty safeguards or life support machine cases – either to sit in open court or to publish their judgments anonymously. The public deserve to know about how they are decided.”

I don’t disagree with him actually.

Although I was surprised by this part

Wall also used the interview to discuss the court’s controversial deprivation of liberty safeguards, which allow council or NHS officials to restrain someone in a hospital, care home or retraining facility for as long as the state deems it to be “in their best interests”.

At present, these powers are only available to judges sitting in the high court in London. Wall, however, revealed his support for broadening the remit to include circuit and district judges, with a consultation launched in the next month.

Because I while it is factually correct, I’m not sure that ‘restrain someone in a hospital, care home or retraining facility’ gives an accurate view of what the Deprivation of Liberty Safeguards are really about but I’ll come back to that another day.

But there are a number of issues for me. I wonder at the media’s motives regarding their interest in the Court of Protection and sometimes wonder at the lack of sensitivity and understanding presented in some of the campaigning talk but it is important to remember that mistakes are made and publicity, for example, in the case of Stephen Neary, can lead to errors being highlighted and change practice for the better (and more lawful) across the UK. I’ve seen a substantial change of emphasis since the Neary ruling regarding the responsibilities of ‘supervising authorities (the Local Authority or PCT) since that case. One of the difficulties is when there is a difference of opinion between what may be in the best interests of the  person whose case is brought and their family members and that’s mostly when many of the issues can be liable to confusion through third party comments and interviews.  The point to make, which the Neary case proves though, is that local authorities and the NHS do get things wrong and the ‘secrecy’ should not be seen as a way of moving these public bodies away from public accountability.

I have more of a concern about reporting restricts being lifted as opposed to anonymised judgements being issued.

Still, it’s good to see some progressive thinking from the judiciary and I fully expect a decision about secrecy/clarity to be made on the basis of the best interests of the person whose case is being decided above anything else.

I’ll follow up with some more explanations of some of the work I do in this field and how important the Mental Capacity Act is to my work on a daily basis.

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