Inaccurate Reporting In Court Of Protection Cases – What Options Do I Have?

In Court of Protection proceedings concerning the health and welfare of an individual who lacks the capacity to make decisions for themselves, it is not uncommon to see several different parties involved. 

More often than not, these will include the local authority under whose jurisdiction the Protected Party is based, a local health authority, if there are question marks over whether the Protected Party should receive certain treatment and quite often the Protected Party’s parents, children, spouse, or other close relatives and friends will be parties to the proceedings.

Court proceedings

Sometimes Court proceedings are necessary if major decisions cannot be taken collaboratively without the sanction of a Judge. Quite often, however, Court proceedings are initiated in less urgent circumstances when there is a dispute between the parties as to what is in the Protected Party’s best interests.

These proceedings can cover a vast range of issues, although a rather large percentage of Court of Protection proceedings begin when a Protected Party has been moved away from home or has been denied regular unsupervised contact with a close relative. This can sometimes be necessary for the Protected Party’s own protection, but it can also be a rather punitive measure to impose on both the Protected Party and members of the Protected Party’s family.

When there is an argument between the carers who are charged with looking after the Protected Party (and by extension, the local authority, social workers to whom they answer), and relatives, records will usually be kept by the carers and by the local authority of the Protected Party’s day-to-day activities and how they are coping with contact sessions with the relatives. Sometimes these records can be very detailed and can cover topics such as how the Protected Party has presented, how the Protected Party has behaved before and after a contact session and in some circumstances how the relative(s) in question has/have behaved. The big problem though is that these records are subjective and they are often prepared covertly without being disclosed to the family member in question for data protection reasons.

When a relative is subjected to accusations of improper conduct (which can range from defying the requests, orders and policies of care, homes, up to coercive and abusive behaviour), examples of their behaviour will often be noted down, but given the subjective nature of the reports that are made, they are not always fair or balanced appraisals of how that relative or friend has behaved when the Protected Party has been with them or truly reflective of the positive aspects of maintaining that relationship.

In certain cases, however, the contents of such records can be very serious, indeed in terms of the content, and the inflammatory way in which they are written. In the Court of Protection, where there is a dispute over whether an individual or individuals may have contact with the Protected Party, those same people have the right to be heard and to put forward a positive case and answer any allegations against them. Everybody has the right to a fair trial under the Human Rights Act 1998 and this can in some cases compel the Court to order that the local authority discloses its records of contact sessions and any accessible records from a care home.

If there is a significant dispute over the behaviour of a particular relative, and that is preventing people from having contact with that relative, the case can actually be listed for a mini-trial, known as a fact-finding hearing. This is where the relative who is accused of improper conduct can instruct their advocate (or personally, if self-represented) to cross-examine the individuals who have made the inflammatory records.

Sometimes it is just a question of the judge determining what is or is not correct or proven on the evidence but inflammatory records can do much more damage in limited cases. All individuals do have rights under data protection legislation to ensure that records kept about them off, fair, accurate and reasonable. If records have gone way beyond what is necessary, have presented inaccurate, or inflammatory information about an individual, or have deliberately and purposely been created to try and undermine an individual or their credibility, there can be remedies under the Data Protection Act 2018 or alternatively, the individual who is affected may be able to pursue remedies under the Defamation Act 2013.

Comment

Whilst these rights do exist and can lead to remedies in the High Court including damages and costs, it is important to remember that the individual who is record keeping in such instances is charged with caring for a vulnerable adult or child. They will have statutory duties to ensure that the person is protected.

This can sometimes justify keeping accurate records of the behaviour of the Protected Party’s close family, even if those records are not terribly flattering. Therefore, there must be a fair balance between reasonable and proportionate record-keeping and ensuring that records that are kept are accurate, and achieve the objective that they are supposed to achieve and nothing further.