Transparency Orders: Reflections from a Public Observer

By Celia Kitzinger – 23rd June, 2020

Members of the public who observe a hearing in the Court of Protection are supposed to be sent a Transparency Order.  This is a document (an injunction) forbidding us from making certain information public.  Its main purpose is to protect the identity of the person at the centre of the case and the identities of their family members.

In a physical courtroom, we can be handed a Transparency Order. If we’re observing a remote hearing, it should be emailed in advance – or if that’s not possible – the restrictions it imposes should be outlined at the beginning of the hearing, and the document itself sent at the earliest possible opportunity.

I’ve been receiving texts and emails from people who’ve been inspired by the Open Justice Court of Protection Project to observe court hearings.  They want to write blogs about their experience but are daunted by the Transparency Orders they’ve been sent and don’t fully understand – and are fearful of writing anything in case they inadvertently breach the Order.  This is not surprising, as it promises penalties such as prison, fines and having your assets seized. 

In her blog about attending in-person hearings in 2017, Gill Loomes-Quinn describes the Transparency Order as “intimidating” and found it very off-putting to have to “sign to agree to be bound by a document that is written in complex legal language”. She wondered whether the wording could be “simplified and made more accessible to members of the public”.  Three years later, it remains just as inaccessible!

So, this blog is an attempt to demystify Transparency Orders, help people understand them, and explain the underlying principles about reporting cases.

I started by trying to find a lawyer familiar with Court of Protection Transparency Orders to write a short blog on the topic.  Here’s my request, on Twitter, and the response from Victoria Butler Cole QC

 

If that’s sufficient information, you can stop reading now! 

Transparency Orders in Practice

I thought it would be useful to provide a bit more background and to report something of my own experience.  I’ve observed 36 remote hearings in the Court of Protection between 1 May 2020 and 22 June, and my experience with Transparency Orders has been quite varied.

You should be sent a Transparency Order for every case you attend as a member of the public.  In practice, though, I’m often not sent a Transparency Order in advance – and when I ask for one after the hearing, sometimes I still don’t receive it (even after chasing). Transparency Orders are in place for the vast majority of hearings you might observe. And it’s important to know what they mean so you can make sure you abide by them. It also helps to be familiar with what they look like in advance.

You can see what a typical Transparency Order looks like by downloading a template, with blanks to be completed relating to each individual case.  The Transparency Order that has been used since 29 January 2016, with the introduction of the Transparency Pilot – now cemented into the practice of the court (since 2017) via Practice Direction 4C  – is available here.  It’s worth checking out the unofficial annotated version of the pre-2017 template Transparency Order available here, created by Victoria Butler Cole QC and designed to help non-lawyers understand the Order.  The language hasn’t changed much over the years, and this is still a useful read. 

Transparency Orders and COVID-19

With the public health emergency, and the move from physical courtrooms to audio- and video-platforms, this Transparency Order was disapplied (i.e. no longer applies to cases that have been ongoing in the court) because it presumes a physical court with a public gallery. This means that fewer cases have been listed as “public”.  However, the Transparency Order can be re-applied if any member of the public (or journalist) requests access – so ‘private’ doesn’t really signal an intention to exclude us.  Indeed, this document was written by a Vice President who is “messianic” (his word!) about transparency[1]!  So far I’ve been successful in gaining access to every hearing listed as “private” that I’ve applied to.

You can see the new template (which lists hearings as ‘private’ by default) as an appendix (p. 18 onwards) to the 31 March 2020 Guidance here.   Notice that it specifically allows for “ongoing consideration” being given to “the means by which any remote hearing … can be accessible to the public”.  So if you request access to a remote hearing listed as “private”, the judge should consider how to make the hearing accessible to you.  It additionally forbids anyone from making a recording of a court hearing (e.g. video-recording or photographing the screen) and forbids the presence of any unauthorised person able to listen to the hearing while it is happening.  Judges sometimes also raise these points at the beginning of hearings.

As I mentioned above, despite what the rules say, you may not actually be sent a Transparency Order but you should act as though a Transparency Order does apply unless you are formally told otherwise.

What to expect in court

In my experience, when members of the public (or journalists) are present in court, issues relating to protecting the identities of P and P’s family are regularly raised orally at the beginning of hearings.   If I’ve been sent a Transparency Order in advance, the judge usually asks, at the beginning of the hearing, if I’ve received it and understood it.  On one occasion only I was asked to print off the Transparency Order, sign it, scan it, and email it back before the hearing[2].  If I haven’t been sent it in advance, the Judge has usually explained verbally (after the recording for the hearing has been started) what I’m not allowed to report, and I’ve been asked to verbally confirm, for the official recording, that I have understood.  Be prepared for this, and be ready to confirm your understanding.  It’s okay to ask a question at this point if you are not sure (e.g. I was unclear once from what the judge had said whether or not I could name the public bodies involved in the case so I clarified that with her.)

The Transparency Order is not intended to prevent you from writing about the hearing. 

It’s designed to protect the identities of the person at the centre of the case (“P”) and P’s family.  It may also extend to cover the identities of other people who are involved in the case, and sometimes also those referred to in court, and even statutory bodies and professionals – especially where identifying them would risk “jigsaw identification” (For more about ‘jigsaw identification”, take a look at this blog on the Transparency Project website.)  I attended one hearing where the Transparency Order forbade revealing the identities of the treating clinicians for this reason. 

The principles behind Transparency Orders

Any one of us could become the subject of a Court of Protection hearing.  Most of us would not want details of our lives – our personal habits, relationships with family and friends, character foibles and personality issues – laid bare for the public to pore over.  It can be painful for P and P’s family to experience this kind of exposure in Court, and worse still to have it reported outside the courtroom.  There is rarely any valid reason why the public should have access to P’s name or the names of their family members. However, some such reasons do exist. Here are two examples:

When there has already been publicity about a particular case.  In the case of Steven Neary, for example, this included media coverage on the BBC and the magazine Private Eye and a petition, launched by his father Mark Neary, with around 8000 signatures  demanding his return home.  The judge concluded it was ‘frankly unreal’, given the extent of information already available, for the proceedings to be conducted and reported as if the identities of Steven and Mark Neary were unknown (London Borough of Hillingdon v Neary [2011] EWHC 413 (COP)

When P herself wants her voice heard in this way. One of my favourite Court of Protection judgments with a named “P”,  is District Judge Eldergill’s judgment concerning Manuela Sykes.  Ms Sykes was a life-long feminist and campaigner for women’s rights, a committed Christian, a political activist who stood for parliament, the editor for 40 years of a trades union newspaper, and a campaigner for people with dementia – the condition with which she was now diagnosed.  “Ever a fighter”, now deprived of her liberty in a care home, this was her last fight.  In deciding to “lift the cloak of anonymity” the judge observed that she had lived a very public life, never shied away from public controversy, and “she would wish her life to end with a bang rather than a whimper”.

The importance of P’s personal details in court hearings

Court hearings can reveal intensely personal – and sometimes unflattering – information and even criminal allegations.  In recent hearings I’ve learned that the person at the centre of the case allegedly sexually harasses people, or engages in racist behaviour or that they are assaulting care staff.  I’ve learnt that P’s family members are “delusional”, ‘uncooperative” or incapable of understanding or engaging with the kind of care P needs.  I’ve heard about a boyfriend who was believed to be “abusive” and a mother who reportedly supplies her learning-disabled son with illegal drugs from her own dealer.

These details can be relevant to the best interests decisions that need to be made – for example, whether it’s in P’s best interests to be at home with family or in a residential placement, and if the latter, what kind of residential accommodation would be most suitable.  So these can be appropriate matters for the Court to consider and it may be important to include these details in a judgment, and in any report by journalists or bloggers, because they are necessary for understanding why the judge made the decision they did.

The Mental Capacity Act 2005 takes a very broad and person-centred approach to best interests decision-making.  In arriving at a decision the judge must consider (amongst other things) P’s past and present wishes and feelings, the beliefs and values that would be likely to influence their decision if they had capacity, and other factors they would take into account if they had capacity to do so (s.4(6) of the Act).  This can mean a thorough-going exploration of the way a person lived their life and the kinds of goals they embodied in their everyday actions.

Transparency vs.P’s right to privacy

When the court is required to make a ruling as to someone’s capacity to make their own decisions, a similar exploration of their past values and beliefs is sometimes required.  A case heard in 2015 before Mr Justice MacDonald (Kings College Hospital NHS Foundation Trust v C v V [2015] EWCOP 80) concerned a woman in her 50s (“C”) who wanted to refuse renal dialysis, after having damaged her kidneys in an attempted suicide.  If she did so, she would die.  If she consented to treatment she would likely live for many years.  The question before the court was whether or not she had the mental capacity to make the decision to consent to or to refuse medical treatment herself (and if not, whether dialysis would be in her best interests).  The Judge heard evidence from one of C’s adult daughters about C’s lifestyle and values, and from three psychiatrists.  He concluded, on the balance of probabilities, that C did have capacity to make her own decision about renal dialysis. In setting out his reasons in the published judgment, he described C like this:

“C is a person to whom the epithet ‘conventional’ will never be applied. By her own account, the accounts of her eldest daughters and the account of her father, C has led a life characterised by impulsive and self-centred decision making without guilt or regret. C has had four marriages and a number of affairs and has, it is said, spent the money of her husbands and lovers recklessly before moving on when things got difficult or the money ran out. She has, by their account, been an entirely reluctant and at times completely indifferent mother to her three caring daughters. Her consumption of alcohol has been excessive and, at times, out of control. C is, as all who know her and C herself appear to agree, a person who seeks to live life entirely, and unapologetically on her own terms; that life revolving largely around her looks, men, material possessions and ‘living the high life’. In particular, it is clear that during her life C has placed a significant premium on youth and beauty and on living a life that, in C’s words, ‘sparkles’.” (Kings College Hospital NHS Foundation Trust v C v V [2015] EWCOP 80 para. 8)

This case was widely covered in the media, with lots of details about C’s life: check out this BBC report (which includes details of C’s suicide attempt), this Guardian article, which quotes most of paragraph 8 from the judgment,  and the Daily Mail which also draws on additional information revealed in court.

Although some media reporting was characterised as “prurient” by Mr Justice Charles, it was entirely within the terms and conditions of the Transparency Order for it to be reported.  Some people questioned whether it was really necessary for all this information to be included in the judgment – but that was a matter for the judge. Once it had been so included, it could be reported under the terms of the Transparency Order. 

But, despite intense media interest in the case, nobody revealed C’s name, or the names of her family members.

Once the Court had ruled that C had the capacity to make her own decision, she decided to refuse dialysis, moved to a hospice, and died on 28 November 2015, fifteen days after the hearing.  In view of the subsequent media interest in this story,  Mr Justice Charles ordered that reporting restrictions should extend beyond C’s death to protect the private and family life of C’s daughters, including the youngest, a teenager for whom the circumstances of her mother’s death had wrought “an appalling impact on [her] emotional and psychological wellbeing” (para. 20(3)), exacerbated by the extraordinarily intrusive and insensitive behaviour of journalists, as detailed in that judgment (paras. 21-24).   The judgment is an interesting read for anyone wanting to consider the relationship between transparency and the right to privacy, and the underlying legal principles that govern the making of reporting restrictions orders. 

As this story illustrates, it’s important when writing about hearings observed in the Court of Protection to bear in mind not only the legal requirements of the Transparency Order, but also the likely impact of what is written on the people centrally involved in the case. 

Summing up – key points

A Transparency Order does not prevent us from writing about the hearings we’ve observed. 

It does prevent us from publishing (orally, in writing, via social media or in any other way)  “any material or information that identifies or is likely to identify” a list of people which (almost always) includes P and their family members and sometimes other people too (like doctors or other health care professionals treating the person).  Sometimes organisations are also included in this list. 

It also prevents us from publishing “any material or information that identifies or is likely to identify where any person listed above lives, or is being cared for, or their contact details.”    This means not publishing names of hospitals or residential placements, and thinking carefully before publishing local details that might identify a specific geographical area with the potential to lead to such identification.

It is rare for Transparency Orders to prevent us from naming public bodies (e.g. the local authority or county council) – but that does sometimes happen.  It’s concerning when we’re told we can’t name public bodies because they are ‘public’ and funded by our taxes and should be accountable. It is possible to ask for the Transparency Order to be changed (“varied”) if you consider it overly restrictive, and the journalist Brian Farmer very often does so.

We can always name the Judge and the barristers involved in the case.

If you’re interested in following up on debates about reporting restrictions and open justice, I’d recommend reading Mr Justice Peter Jackson’s judgment balancing the right to respect for private life with the right of freedom of expression (in relation to the Steven Neary case)  Mr Justice Charles’ judgment  and the excellent Court of Protection Handbook and its accompanying website which covers Transparency Orders among many other aspects of the life of an application through the Court of Protection. 

Celia Kitzinger is co-founder (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project.  More information about Celia and her work is available here.

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[1] Quoted in a tweet from @TorButlerCole 6.01pm 25 June 2019 live-tweeting Mr Justice Hayden’s lecture at the inaugural event at the Court of Protection Bar Association. It’s an interesting thread.

[2] This was not a good idea. The email saying that I could have access to the hearing if I signed and returned the Transparency Order before the hearing started stated that the Transparency Order was attached to the email.  It was not.  By the time I had emailed the judicial staff to point this out and requested a copy of the Transparency Order, the hearing had started without me.  I subsequently raised this problem with the judge concerned who told me she believed that a signed Order was required and that she could not admit me without it. This is the only occasions (in 36 hearings) where this was requested.