Transparency, Privacy and the history of the Court of Protection

By Janet Weston, 27th April 2021

The Open Justice Court of Protection Project, which supports members of the public to observe hearings in the Court of Protection, is the clearest possible evidence that the Court of Protection can no longer be described (as it was in the press in 2015) as the most sinister and secretive court in Britain.  Hundreds of people have observed hearings since 15th June 2021 when the Project was launched.  

The recent move towards a more open Court began in 2016, with the Court of Protection Transparency Pilot. This aimed to increase access to the court for the public and the media (click here to find out more about the Transparency Pilot). The Pilot has since been adopted into court procedure. It was a response to concerns that the Court of Protection had operated too much behind closed doors in the past, making it appear unaccountable, confusing, and mysterious – even secretive. 

Back in the nineteenth century, determinations of incapacity were anything but secretive. They were undertaken through what was then called a ‘lunacy inquisition’, in which witnesses including the alleged ‘lunatic’ gave evidence in public before judge and jury. Not only would local people gather as spectators, but some nineteenth-century lunacy inquisitions were also covered in the national press in great detail. This included breathless coverage of sometimes scandalous or eccentric private lives, and the names, addresses, and detailed descriptions of all involved. 

The publicity – and cost – associated with a lunacy inquisition were part of the reason for a significant change in the late nineteenth century. Much simpler procedures without juries were introduced. Many of these cases were decided at a private hearing, or even simply on the basis of papers submitted. These changes were in the interests of making legal protections available to all who needed them, not just those who could afford the elaborate and public ‘lunacy inquisition’ procedure and could stomach seeing their personal, medical, and financial business scrutinised by neighbours and newspapers alike.

The word ‘lunacy’ was also banished from all paperwork and from the name of the office that dealt with incapacity decisions. It was becoming an unfashionable term in any case in the 1920s, seen as both stigmatising and inaccurate. But its disappearance in this context was also a question of discretion. Civil servants felt that it would cause embarrassment to those found incapable of managing their own affairs and their families, if their dealings with a ‘Lunacy Office’ became known. 

The Lunacy Office was quietly renamed the ‘Management and Administration Department’ in 1928. 

These words at the top of letters and forms, instead of ‘lunacy’, were much less likely to cause discomfort or embarrassment. Importantly, they gave nothing away to the casual observer who might catch sight of a piece of paperwork or appointment book. (In the end, this name proved too opaque and lasted less than 20 years: “Court of Protection” was adopted instead in 1947.)

There were suggestions mid-century to move the business of the Court of Protection into local magistrates’ courts, but these were opposed in the interests of maximising privacy. It was argued that many people applying to the court would rather not have these personal matters heard near their home, where details of mental illness, infirmity, financial problems, or family disagreement might leak out into their community. The relative anonymity of a centralised London court was said (by some!) to be far preferable. 

This emphasis on privacy was perhaps a long-lasting legacy of the intrusive press coverage of the nineteenth century. It might also have reflected changing ideas of privacy itself, particularly in relation to the family and any kind of mental infirmity or disability. Some historians have argued along these lines, suggesting that by the mid-twentieth century, children with learning disabilities for example were much more likely to be placed in institutions with little or no ongoing family contact, as though they were a shameful secret. Even just a few decades earlier, children with the same disabilities might have been institutionalised, but would have remained a publicly-acknowledged and valued family member. Difference and disability had arguably become less easily accepted in 1950s Britain. In this context, the overriding impulse within the Court of Protection towards discretion, privacy, and even secrecy, met with little opposition.

Only in the 1970s did this emphasis upon privacy and discretion begin to raise eyebrows. It presented a legal difficulty: the Court of Protection was not a court of record. In fact, it was not quite a court at all. Its cases were an exception to the principle that justice should be administered in public, and so its judgements were largely inaccessible to lawyers trying to advise their clients. 

The logic behind this lack of legal reporting was the court’s ‘quasi-paternal jurisdiction’. When acting ‘in lunacy’, the House of Lords had found in 1913, ‘the Court is really sitting primarily to guard the interests of the ward or lunatic’, and not to decide a dispute. Therefore, their primary duty was the individual’s care and not to the public delivery of justice (Scott v Scott [1913]). The fact that this care demands some element of privacy is still reflected today, in the Transparency Orders by which observers are bound. These usually restrict public communication of a person’s name and address, and that of their family members.

It was only when the Court of Protection was re-created as a court of record in 2007 that its judgements were published with any regularity, and significant steps to open it up again to public observers did not materialise until 2014. The open court that we now have would have been familiar to anyone working with the nineteenth century ‘Lunacy Office’, but would have been very surprising indeed to their successors with the old Court of Protection in the mid-twentieth century, for whom privacy and discretion meant a firmly closed door. 

This history of the disappearance and reappearance of ‘openness’ shows that change doesn’t always move in one direction. Pressure to make the Court of Protection less public or less open could well resurface again: the transparency we have today should not be taken for granted.  

Janet Weston is an Assistant Professor of History at the London School of Hygiene and Tropical Medicine where she is working on a Wellcome Trust-funded project on the history of mental incapacity. You can read her work here and here. Her book Looking after Miss Alexander will be out in 2022 with McGill-Queen’s University Press. She tweets @janetlweston

Photo from the Wellcome Collection. Reference MS.5157 (Part of Holloway Sanatorium Hospital for the Insane, Virginia Water, Surrey, September 1889)

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