Challenging a Transparency Order prohibiting identification of the Public Guardian as a party

By Celia Kitzinger, 24th May 2024

I have just submitted my Position Statement (as a litigant in person) for a hearing, listed for one hour, about my application to vary the Transparency Order to permit identification of the Public Guardian in a recent case in the Court of Protection.

I am dismayed that it’s been necessary for a member of the public to make a formal COP 9 application and to be required to attend a hearing about this matter, which could (surely!) have been dealt with swiftly by a judge on the papers, on the grounds that this prohibition is unlikely to be compatible with open justice. But here we are. Perhaps there is something of which I am unaware that will cast a different light on the matter.

Here’s the statement I’ve submitted to the court – redacted, since it would breach the Transparency Order to let you know the case to which this prohibition applies. Everyone knows the Public Guardian is often involved in Court of Protection hearings, of course, so I can’t be breaching the Order by letting people know that I am involved in one such case. I simply can’t tell you which one. I will report on the outcome in due course.

POSITION STATEMENT

(REDACTED to comply with the Transparency Order I am challenging)

By applicant, Professor Celia Kitzinger, co-director of the Open Justice Court of Protection Project for a hearing at XXXXXXXXX Court before HHJ XXXXXXX. via CVP

1. This is an application for variation of the Transparency Order to permit identification of the Public Guardian as a party in this case. The variation would involve deleting the initials “OPG” (Office of the Public Guardian) from §6(i)(c) of the sealed Order made by XXXXXX. dated and issued on XXXX 2024.
2. I make this application as a person affected by the Order in my role as co-director and blog editor of the Open Justice Court of Protection Project.  The Project was set up in June 2020 to support the judicial aspiration for transparency by encouraging members of the public to observe hearings and to blog about them.  We have supported more than a thousand members of the public to observe Court of Protection hearings and published nearly 500 blog posts. 
3. A member of the public (GXXXXX ) observed a hearing in this case on XXXXXXXXXX 2024 and has sent me a blog post about it which I cannot publish because it identifies the Public Guardian as the applicant.  On the basis of my reading of this blog post, I believe it is is impossible, in practical terms, to write about the proceedings without identifying the Public Guardian’s role.
4. I am submitting this Position Statement without having seen a Position Statement from the Public Guardian explaining why they sought protection of their identity from the court (if they did) and why they oppose (if they do) my application to vary the Transparency Order.  As a Litigant in Person, I would appreciate knowing in advance of the hearing what their position is and the arguments they advance to support it, since I am already at a significant disadvantage as a non-lawyer representing myself.  It is difficult to challenge arguments I haven’t yet been made aware of, and at present I cannot envisage any circumstances under which it could be necessary, proportionate or in accordance with the principle of open justice to prevent the public from knowing that the Public Guardian was involved as a party in the Court of Protection. Nor, having read GXXXXX’s report of the hearing, can I see any reason why we have been ordered to conceal the Public Guardian’s involvement in this particular case.
5. I raised the general principle of anonymising the Office of the Public Guardian (or the Public Guardian) at the First Avenue House COP User Group meeting on 23rd April 2024 and was told, by a representative from OPG, “The OPG doesn’t routinely, and very rarely, seeks to be anonymised. It is likely that any such transparency order has been made without OPG input.” At my instigation, GXXXXX has recently attempted to seek input from the Public Guardian about this matter in relation to this case in particular, but without success.  

The reasons I am advancing for varying the Transparency Order are as follows:

6. The information that the case involves the Public Guardian as applicant is already in the public domain. The hearing on XXXXXXXX 2024 was listed in Courtel/CourtServe as below – and the screenshot of this listing was circulated by the Open Justice Court of Protection Project on social media, including X (formerly Twitter), where we have over 6k followers). Since posting this information pre-dated the Transparency Order, and Transparency Orders cannot act retrospectively, we have not deleted this information. When information is already in the public domain, it makes no sense for Transparency Orders to seek to suppress it. 

7. Transparency Orders are not designed to protect the identity of public bodies. Under the terms of the Transparency Pilot 2016, now incorporated into routine Court of Protection practice, the purpose of the Transparency Order is to enable hearings to be held in public in accordance with the principles of open justice and Article 10 rights to freedom of information, while protecting the Article 8 privacy rights of the person at the centre of the case (P).  Protection of public bodies was never an intended goal.

8. There is no evidence that identifying the Public Guardian risks identifying P. The is only circumstance in which I have seen judges order that the identity of public bodies cannot be reported is when so doing makes it “likely” that P could be identified, via a process of jigsaw identification.  This is rarely the case – but does occasionally arise (e.g., with small NHS Trusts with only one specialist centre at which someone with P’s medical condition could be treated).  It is highly unlikely that identifying the Public Guardian as the applicant in this case carries a risk that people could identify the protected party.  The onus is on the applicant who seeks anonymity, and the court that grants that anonymity, to explain how it would be “likely” to do so. No such explanation has been offered.

9. I have seen no evidence of a careful balancing exercise of P’s Article 8 right to privacy with the public’s Article 10 rights to freedom of information. The Court of Appeal in Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331 has confirmed the need for an intensive fact-sensitive evaluation and balancing exercise when curtailing freedom of speech to safeguard Article 8 rights. I am not convinced that any such balancing exercise has taken place in this case – or that if such a balancing exercise were to be undertaken, the outcome would be in accordance with the current reporting restrictions.

10. One consideration weighing heavily in favour of varying the Transparency Order as per my application, is the draconian consequence of concealing the identity of the Public Guardian, which is that in reality the case cannot be reported at all.  This seriously compromises the freedom of expression of the member of the public who observed the hearing, who cannot have her blog about it published, and my own freedom of expression as blog editor, as I cannot publish her blog post.  It also compromises the public’s right to receive the information we are prohibited from publishing –and this is information concerning a public body engaged in matters of legitimate public interest.   

Celia Kitzinger, 24th May 2024

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 500 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia