By Emma Christie and Lily Wildman – 13th August 2020
The Court of Protection has been labelled by critics such as journalist, Christopher Booker, as the ‘most sinister’ and ‘shadowy’ court in England and Wales.
The promotion of an open justice system is fundamentally important to society; it enables the public to engage in proceedings and report on them (so far as compliant with reporting restrictions) and it furthers principles such as public confidence and an impartial judiciary. However, as noted by Celia Kitzinger in an earlier blog post, it is rare that the public attend Court of Protection hearings. This somewhat compromises the achievement of open justice.
With the majority of hearings now operating remotely, we took advantage of the “Open Justice Court of Protection Project” to observe a hearing.
Our first experience with the Open Justice Court of Protection Project arose from stumbling upon the twitter page (@OpenJusticeCoP). Their page states their objective of promoting open justice and goes on to list court hearings by date, with an email and telephone number to contact to register an interest in observing the hearing. Interested but somewhat unsure about the protocol for getting in touch with the court, we messaged the reliably helpful twitter page, and – with support from Celia – we found it remarkably straightforward to access a hearing on Friday 7 August 2020.
We chose one listed in the Family Division of the Royal Courts of Justice (the listing page is here). These hearings are before the most senior (Tier 3) judges in the Court of Protection – for us, this was Mrs Justice Roberts. The case (COP 13630725 Re: AB) was listed for hearing in open court at 10:30am.
We sent emails requesting access to the contact email address given on this listing webpage. As advised, our email subject lines contained the time and date of the hearing, the name of the judge and the case number. Our emails were short, but professional, stating that we were aspiring barristers with an interest in open justice and that we wanted to learn more about the Mental Capacity Act 2005 in practice. In response, we received emails from the Court Clerk which included a link to the Microsoft Teams Meeting later that day. This was around two hours before the hearing was due to start. As it turned out, though, the hearing did not start for another two hours after the scheduled time, demonstrating a key point that will be familiar to those in the legal profession – prepare to be flexible!
When we clicked on the link to join the Microsoft Teams conference call, we were asked by the judge to confirm our names and explain our interest in the case. We were then asked to read through the ‘Transparency Order.’ These vary from case to case and as we hadn’t been sent one in advance for this particular hearing, we emailed the Clerk and read through this document after the hearing. More about Transparency Orders – a feature of almost every hearing in the Court of Protection – is available here. For a concise summary, Victoria Butler Cole QC explained the Transparency Order and what it forbids in relation to blog posts/social media:
- You cannot publish any information which reveals the identity of P, or any other person or body named in the Transparency Order, and links them to the Court of Protection Case
- If you have any concerns that something you might have heard might inadvertently reveal their identity (age, where they live, medical condition etc.) you can ask the judge to clarify. You often see Press Association reports saying ‘a woman in her 30s in the East of England’ for example.
Finally, we stated that we were members of the public who were interested in learning more about mental capacity. After this, we were told to mute our microphones and turn our video off during the hearing. The judge explained to us that this was in order not to confuse the parties to the case who were present in the hearing we observed today.
After contacting the Open Justice Court of Protection Project on Twitter, we had been given invaluable advice about how to make the most out of attending the hearing. We were made aware of how important it is to take detailed notes – this not only aided our understanding of the matters in the case but also helped with writing a blog post afterwards. As a judgment may be published following a hearing (especially hearings before Tier 3 judges), we focused on recording actual quotes from counsel or the judge, especially anything compelling or persuasive.
Here’s a summary of the hearing we observed.
The party at the centre of the case (“AB”) was a lady in her late twenties with Anorexia Nervosa. Today’s hearing concerned the issue of ‘litigation capacity’ – the capacity of an individual to instruct somebody to represent them in court. The court noted that this is separate from subject matter capacity, which relates to the capacity to make decisions on issues of medical treatment (in this case) or another substantive decision such as where to live or who to have contact with. After speaking to AB, Judge Roberts, reiterating the words of Ms Gollop QC (counsel for AB) described AB as an “articulate, thoughtful and reasonable young woman” a factor, in addition to expert capacity assessments, which influenced the finding that AB had the litigation capacity to instruct counsel to represent her in a subsequent, substantive hearing. This will determine whether AB has capacity to refuse medical treatment.. This is a matter that is to be determined in court next week, and we hope to be able to attend the hearing.
Overall, we encourage anyone with an interest in open justice (which should be everyone), including students, or aspiring lawyers, to utilise this great project and raise awareness of just how open, open justice can be. Whilst COVID-19 has brought ample levels of disruption and postponement, it has made engaging with the principles at the heart of our justice system easier than ever. This is especially the case for us as two Northern students who would otherwise have struggled to attend the Royal Courts of Justice in person.
Lily Wildman is an aspiring barrister who has just graduated with a law degree from Durham University and will be commencing the Bar Practice Course in September this year. During the COVID-19 pandemic, she worked as a Care Assistant at a Nursing Home, which honed her awareness of the safeguards surrounding adults who lack capacity. She tweets @lilymwildman
Emma Christie is an aspiring barrister who has recently graduated from Durham Law School and will be returning to pursue an MJur researching the Domestic Abuse Bill (2020). She has experience volunteering with dementia patients. She tweets @emmaleechristie