Following the decision in Re A (Covert Medication, Closed Proceedings), [2022] EWCOP 44 in which a Protected Party (P) was being medicated covertly, the Court of Protection has issued guidance notes in relation to “closed” hearings and material.
What are closed hearings?
Closed hearings are hearings that take place without the knowledge or participation of another party, and closed material refers to documentation or other evidence to which one or more of the parties may not have access. The guidance the Court has issued is intended to set out some parameters, and a guide to anybody seeking to apply for a Court order without notice to another party in proceedings.
The concept of a closed hearing is controversial. It effectively means that one or several of the people involved in a Court of Protection case are not told about a hearing, or given any information about the specific circumstances leading to it. Essentially, if one or more of the parties involved in such a case is seen to present a risk to the Protected Party, the decision that they are likely to obstruct can be made behind that person’s back.
Case background
Re A involved a teenager who required, according to medical practitioners, medication having not gone through puberty. The Protected Party was not prepared to consent to the treatment, and the Protected Party’s mother was supportive of her daughter’s choice.
However, the Protected Party was found to lack the capacity to fully understand the implications of refusing treatment, and the Court believed it was in the Protected Party’s best interests to receive the required medication. The local authority applied to Court covertly, without notice to the Protected Party’s mother, and it was decided at a hearing that the mother was not told that the Protected Party’s carers could administer the medication via the Protected Party’s food so that she would be totally unaware of it.
In almost every case, when one individual or entity (Applicant) seeks a Court order against another person or entity (Respondent), the Respondent must be given notice of the Court application. Sometimes, in urgent circumstances, this can be as little as one day’s notice if say the Applicant considers that an urgent injunction is required.
The only circumstances in which the Respondent should not be given notice include situations in which an individual might be endangered if the Respondent is made aware of the application (e.g. in domestic violence cases in the Family Court) or if the Respondent is likely to liquidate themselves to avoid the consequences of a claim (freezing injunctions).
Generally speaking though, every individual or entity has a right to a fair trial under the Human Rights Act 1998, and it is an age old principle that everybody has the right to a “defence”. However, the Court of Protection’s primary purpose is to make decisions that are in the best interests of people who lack capacity, and if that decision could be undermined by another party knowing about it – even the Protected Party themselves – the Court may direct that the issue can be heard without notice being given.
The guidance from Mr Justice Hayden, which is available here provides:
- The starting point is that all parties to any proceedings, including the Protected Party, should be able to see all the materials on which the Court reaches its conclusions and should be able to participate in hearings;
- The Court may consider (but not necessarily authorise) closed hearings or authorising the use of closed material if:
- It is necessary to secure the Protected Party’s rights under the Human Rights Act 1998;
- Where there is “another compelling reason” for non-disclosure – i.e. a wider public interest or one party protecting its own interests;
- If the Court derogates from the principle of “open justice”, then the derogation must be as limited as possible, and only go as far as is strictly necessary;
- Closed hearings are a last resort and the party seeking one must set out why it is justified;
- The Court must balance the rights of all parties to a fair trial against its duty to protect and promote the Protected Party’s interests, and protect the Protected Party from harm;
- The Applicant must demonstrate that all other available options would not suffice;
- Reporting on the decision and disclosure of the outcome may be limited or outlawed altogether if appropriate; and
- There should be a separate closed judgment which may accompany the open judgment when the proceedings reach the final hearing.
Comment
Closed hearings and closed material can be dealt with alongside the Court’s open hearings. Practically, this could create difficulties in open proceedings because certain decisions made by the Judge will not be easy to explain if closed material or the outcome of a closed hearing was a key factor.
However, these guidelines at least give some framework that the Court of Protection will follow moving forward and it will be interesting to see whether the precedent set by Re A leads to other applications in particularly sensitive cases.
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