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Openness and transparency in the Court of Protection

View profile for Mike Pemberton
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The Court of Protection makes decisions on behalf of people that lack the capacity to do so themselves.

The recent reporting of a case involving Wanda Maddocks has attracted a lot of publicity and alleged that the Court is far too secretive.

The Court had previously made such a decision in deciding whether it was in her father’s best interests to remain living in a care home (the view of the local authority) or whether he could return home (the wish of his family).

The Court’s decision went against the wish of the family, but they did not agree with this and tried to remove him from the home.

This resulted in Miss Maddocks being sentenced to 5 months imprisonment by the Court of Protection for breach of the court order.

This judgment was not published and secrecy rules barred the naming of Miss Maddocks and her father. However, In April, the Daily Mail exposed the ‘secret jailing’ and an article on the Mail Online last week told of Lord Neuberger’s appraisal of the exposure, stating that it had resulted in an increased openness, which he ‘welcomed without reservation’.

Lord Neuberger is one of the most senior judges and president of the Supreme Court.

The case was not made public for months and this led to a ‘furious row’ over the secrecy of the Court of Protection, the lack of reporting and subsequent lack of transparency and accountability in the system.

The Daily Mail’s reporting of the case is said to have prompted senior judges to make the decision to ban the secret jailing of defendants for any contempt of court.

Lord Neuberger also spoke of the general need for courts to avoid operating in closed session and said: ‘We should try to minimise the extent of when it is necessary to go in to closed session and do everything we can to ensure that the consequences of going into closed session are mitigated’.

Miss Maddocks served 6 weeks of her 5 month sentence. She was released after apologising to the judge in the case.

The Court of Protection is able to make judgments behind closed doors in due to the extremely sensitive nature of many of the cases before it and many cases do benefit from this protection.

The Court of Protection Practitioners Association (COPPA) had its first conference on 19th September in Manchester and reporting restrictions was a topic that was discussed at some length. Views were given by practitioners, Judges and representatives of the Press.

The Independent reported on the conference and Mr Justice Charles’ comments (as the Judge in Charge of the Court of Protection) that he wanted to see more rulings put in the public domain.

He said: “There is a need for judgments in the Court of Protection to be more readily available to the public at large, so they can understand - if they want to take the trouble to read them - the process and the care that is taken in reaching decisions on behalf of those who can't reach them for themselves.”

He added: “Soon there will be guidance from the president of the Court of Protection, James Munby, as to the publication of judgments of the court of protection in an anonymised form.”

The debate on reporting in the Court of Protection is gathering momentum, will this lead to a change in rules or procedure?

By Sophie Maloney, human rights law & civil liberties department