Very recently, in a decision by Senior Judge Hilder, the media were permitted to report the name of a protected party – Tony Hickmott –who has been embroiled in Court of Protection proceedings for a considerable period of time as he has been detained for far longer than should have been necessary.
The decision to allow the media to report on the case was deemed to be in the public’s best interest, and not to the protected party’s detriment.
This raises an interesting question – when is it permissible to report details of Court of Protection proceedings, or to access information relating to protected parties?
Court of Protection
The Court of Protection exists to protect vulnerable individuals who lack the capacity to make decisions for themselves. Proceedings in the Court of Protection tend to have a transparency order in place which limits those able to have knowledge of the case and obtain information relating to it.
Those seeking to become involved or obtain information about proceedings without an automatic right must apply to the Court of Protection for permission. This practice is in place to protect the protected party, who will often be vulnerable by the nature of the case.
The individuals automatically notified of an application will be the immediate family of the protected party and others involved with the protected party’s health and welfare or property and financial affairs, most commonly the local authority or local health authority.
On notification those individuals will be provided with a COP5 which they can complete and return as an acknowledgement of service, indicating whether they wish to become involved in the proceedings. Any party seeking to be involved as a party to the proceedings should notify the Court by the return of the COP5. Failure to return the COP5 may lead to that individual being excluded and if they change their mind at a later date they will need to seek the Court’s permission.
Any person making an application for information about a case will have to demonstrate that the release of the information is in the protected party’s best interest or that it is very much in the public’s interest for the information to become known. In considering the latter, the Court’s mandate to ensure the protected party is protected will nearly always outweigh the public interest argument. Case law has shown the exceptions to be where the protected party has since died and the release of information remains in the public’s interest or, where other parties have been fraudulent and the Court feels it’s necessary to publish details, in which case details of the protected party may remain anonymous, as in the cases of Re Joan Treadwell, Deceased and The Public Guardian v JM.
The protected party’s personal information is kept as private as possible from other parties within litigation normally and only disclosed on a “need to know” basis provided it is also in the protected party’s best interest for it to be revealed. This raises the question, on what basis will it be in the protected party’s best interest to provide an applicant with information relating to the protected party or the proceedings?
Some examples would be to provide medical evidence for the purpose of an expert report or care plan or, the details of the protected party’s finances for a proposed Deputy. Another example may be friends and family who have an interest in the protected party and details are necessary for that, for example, a friend of the protected party needing contact details of the protected party so they can call/visit the protected party.
Whilst the Court of Protection may order the disclosure of some information it is unlikely they will simply provide all information relating to the protected party. Instead, they will often only disclose the information necessary to enable the particular issue to be dealt with and all other details will remain private. This is again to protect the protected party, and to some extent, the other parties involved, whilst maintaining the protected party’s best interests.
As always in the Court of Protection, any decision will be based on the best interests of the protected party and at times this can be a delicate balancing act. If you would like to obtain information about a protected party please contact a member of the Court of Protection team who will be happy to advise.
How can Nelsons help
If you require any advice in relation to the subjects discussed in this article, please do not hesitate to contact Stuart or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.Contact us