Defendant Imprisoned For Breach Of Court Of Protection Transparency Order

Last year, we considered the case of Sunderland City Council v Macpherson in which the Mother of the Protected Party regularly breached the Court of Protection’s Transparency Order by publishing details regarding her Daughter’s case. A Transparency Order is an order placed on proceedings which prevents parties from discussing the case with any person outside of the case. With Court of Protection proceedings focusing on vulnerable adults, this is necessary for their protection. Disclosing details of the case interferes with a protected person’s right to a private family life, which will likely cause distress and expose them to the risk of being taken advantage of by others.

The Court of Protection initially felt that the breaches were serious enough to warrant imprisonment for 28 days. The imprisonment sentence was made on a suspended basis which allowed Ms MacPherson to avoid prison providing there were no further breaches within the next 12 months, expiring on 15 January 2024. This case was recently brought before the Court of Protection again as Ms MacPherson had further breached the terms of the Transparency Order.

Ms MacPherson remained of the view that her Daughter had been wrongfully diagnosed and was therefore receiving medication she did not require. Ms MacPherson took steps to challenge the Court of Protection’s findings at every stage and in August 2023 the Court of Protection refused her permission to appeal. In response to this refusal, Ms MacPherson advised the Court that she will continue to breach the Transparency Order and proceeded to do so by reinstating the old social media posts she previously removed following her suspended sentence. There were also several further breaches.

Ms MacPherson sought to defend the breaches as being within her rights of Article 10 human rights, being the “freedom of expression”. The Court noted that, whilst Ms MacPherson retains such a right, she must do so without breaching the injunctions. The Court focused on those injunctions being in place to protect the Protected Party and not to persecute Ms MacPherson. It was agreed Ms MacPherson had breached the injunctions and therefore the terms of the suspended sentence.

The Court of Protection then considered the appropriate sentence. A sentence by way of a monetary fine was considered. However, this was not appropriate as Ms MacPherson had no means to pay the fine and her house is currently occupied by her husband only, who has his own care needs. With Ms MacPherson now residing in France, no monetary fine would be suitable punishment for her breach. The Court noted that a sentence of imprisonment may not prevent Ms MacPherson from breaching the Order and that she cannot be committed until she returns to England. The only sentence the Court felt was appropriate for the severity of the breach however was a prison sentence, which must be served following the previous sentence being suspended. Ms MacPherson was consequently sentenced to three months imprisonment for the breaches made and must also serve the previous sentence of 28 days for which she broke the terms of the suspension.

Comment

This case confirms the severity of Transparency Orders in the Court of Protection and demonstrates that imprisonment may be necessary to protect a protected party.