By Alex Ruck Keene – 15th July, 2020
The work of the Court of Protection is important and sensitive. It has sat in public for several years because of the recognition there is a legitimate public interest in understanding how it reaches decisions about the capacity and best interests of people, with often serious and far-reaching consequence for the person (and others around them). There are almost always reporting restrictions around the case because this is not theatre: hearings are not put on for public entertainment, and hugely sensitive details about the person are examined, often in minute detail. They have to be so that the court can come to a decision, but there is no legitimate interest in people being able to share those details.
The effect of the COVID-19 pandemic, and the move (in almost all cases) to remote hearings has had the ironic effect of both making it less open, because of the difficulty of physically attending court and more open by making it (more or less) easier for a person with an internet connection (or, if a telephone hearing, a telephone) to attend hearings across the country without moving from their armchair. The Open Justice Court of Protection Project is doing sterling work in enabling members of the public to understand how to attend court.
However, there is a difference between open justice and comprehensible justice. It is one thing for people to be able to come to court (whether in person or, at present, largely remotely) and another for them to be able to follow what is going on there.
Some of the ways that the courts – including the Court of Protection – are set up to enable justice to be done fairly and proportionately place hurdles in the way of this. For instance, making sure that much of the work is done by way of written arguments or witness statements in advance means that there are not (or should not be) surprises at the hearing which place people at a disadvantage. It also allows the hearing to proceed more efficiently because the judge has (or should have) the arguments well in advance so that they can prepare. But this means that, in court, much of what is happening will be done by reference to the ‘bundle’ of documents, to which anyone other than the parties to the case will not have access. There are some ways in which this can be overcome, for instance by requiring the lawyer who speaks first to give an outline of the case (as the Vice-President of the Court of Protection has suggested).
Another important barrier to public understanding of the processes of the court is the use of legal jargon which makes sense to those involved, but may not make any immediate sense to those who are not. This barrier is just, as if not more, serious where a person is involved but does not have a lawyer to help them translate.
To that end, and building upon work that Victoria Butler-Cole QC did several years ago, a small team comprising her, Sarah Castle (the Official Solicitor), Jakki Cowley (an IMCA), and I have produced a basic guide to the Court of Protection for lay people who may be going to court, or may be attending court. The guide is accompanied by a glossary of the terms that are regularly used. Jakki has also written a more personal guide called “You’re going to a welfare hearing at the Court of Protection – what does this mean for you?.” These documents are not official documents, but we hope that they may be of help in ensuring that those who attend court know what it does, and how it does it. All of the documents can be found here.
Alongside these documents, I should also flag the guide to remote hearings produced by the Transparency Project. It is designed for those attending family proceedings, but has practical information which may be equally useful to those attending hearings before the Court of Protection.
Alex is a barrister at 39 Essex Chambers who has been cases involving the MCA 2005 at all levels up to and including the Supreme Court and the European Court of Human Rights. He also writes extensively, has numerous academic affiliations, including as Wellcome Research Fellow at King’s College London, and created the website www.mentalcapacitylawandpolicy.org.uk.
He tweets @CapacityLaw