Dispelling the myth of the ‘secret court’

03/03/2011

By Martin Terrell, Partner in Court of Protection. Published in The Times (online)

First published in The Times (online) on 3 March 2011 (paid subscribers to 'timesonline' only).

The labelling of the Court of Protection by the media as a ‘secret court’ creates a greater illusion of mystery than is perhaps deserved. Far more interest is generated than if it were simply described as ‘private’.

The decision of Mr Justice Peter Jackson in the case of Steven Neary provides a valuable insight into how the Court of Protection can intervene positively in the lives of the vulnerable, in this case a young man with autism and learning disability.

The case shows that the Mental Capacity Act 2005 can work in applying principles of best interests to a person’s life even where these conflict with the overly bureaucratic or protective instincts of a local authority to intervene. The judge also had to address the extent to which details of the case, and in particular the identity of Steven, could be reported.

The difficulty in any such case is that the ideals of open justice conflict with a person’s right to privacy, especially where the person is a child or adult who lacks capacity.

There is a difficult balancing act to perform, and the principle remains that in these cases, privacy outweighs publicity. As the judge explained, a person’s private life should not be “exposed to public gaze simply because their affairs come before the court as a result of their incapacity”.

The courts can, however, depart from this principle and are aware that justice should be seen to be done.

The judge acknowledged that there was “a public interest in the work of this court being understood” and he was keen to dispel myths about a secret court.
It is all very well for lawyers to read reports of cases where the parties are referred to by initials and understand how a jurisdiction works. But the judge acknowledged that the wider public needs to connect to the people in a story before it can become fully engaged with the issues.

Steven’s case was one that raised serious issues of public interest, made all the more newsworthy by the lives of the individuals concerned. The judge therefore applied the two-stage test given by the Court of Appeal in the case of Derek Paravicini: is there a legitimate public interest, and if so, do the benefits of publicity outweigh any detriment to the interests of the person who lacks capacity? Each case must therefore be decided on its own merits.

By all accounts, there was a positive public interest in this story. But could details be disclosed without harming Steven? 

Concern for his privacy and welfare were paramount and considered with great care by the judge. The facts were already in the local media and Steven and his father were already accustomed to a degree of publicity. By all accounts, the media had reported on their lives positively.

The judge considered it unlikely that the media would exploit its privilege by “irresponsible journalistic practices, such as door-stepping an autistic man”. Above all, Steven had not suffered from the publicity that already existed and would be very unlikely to suffer from that publicity continuing.

In Steven’s case the judge also allowed the names to be disclosed at the beginning of the hearing rather than leave this to the end, the first time such a decision has been made in the Court of Protection. But as with Derek Paravicini’s case, it was the pre-existing publicity that made the judge more likely to allow the media to report in the case.

These are highly unusual circumstances and cases such as this are far from common. What this sensible judgment does show is that where the circumstances permit, the courts are willing to be generous in allowing the public to have an insight into how the courts operate.