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Access to Court of Protection

Litigation Letter

Access to Court of Protection

Independent News and Media Ltd and others v A FD TLR 17 November

Court of Protection proceedings are within the recognised exceptions to the open justice principle. Since art 10 of the European Convention on Human Rights guaranteeing freedom of expression, was not first immediately engaged, it was for an applicant to demonstrate good reason for publicity before the court was obliged to conduct the conventional balancing exercise between rights under arts 10 and 8, protecting the right to privacy. The Court of Protection in its current form had been created by the Mental Capacity Act 2005 with very wide powers to deal with both the person and the property of those who lack capacity to make decisions for themselves. While much of its business comprised matters of interest only to the family concerned, it was likely that some exercise of its powers would raise matters of genuine public importance and concern. Rules 90-93 of the Court of Protection Rules 2007 supplemented by a Practice Direction 13A (Court of Protection: Reporting restrictions), provided that ordinarily hearings should take place in private, that the burden of establishing that a particular case should be heard in public and reported lay on the applicant; and that an application should only be granted where it appeared to the court there was good reason for so doing. The application concerned a young adult, (appearing by his litigation friend, the official solicitor), who, despite possessing remarkable gifts, had severe learning difficulties and was likely to remain dependent on others for care and the management of his affairs. In concluding that good reason within r93 had been shown the judge said the issues in principle were already within the public domain and the questions which they raised were readily apparent; the court was equipped with powers to preserve privacy while addressing the issues in the case, and the decision of the court would have major implications for the future welfare of A and it was in the public interest that there should be understanding of the jurisdiction and powers of the court and how they were exercised. In the present case the balance was in favour of the media being allowed to attend what were in all other respects private proceedings, and being permitted to report material already in the public domain or that answered the legitimate questions of a reasonable person who knew what was already in the public domain. Such material would include A’s name, the nature of his talent and disability, his reliance on others for the management of his affairs but not, inter alia , details of his care and medical treatment, the nature of his earnings or family discussions.

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