Confirmation That Transparency Orders In The Court Of Protection Cease Upon The Protected Party’s Death

Transparency Orders are a vital mechanism within Court of Protection proceedings, being designed to balance the principle of open justice with the need to protect the privacy of vulnerable individuals. Given the sensitive nature of those proceedings, Transparency Orders are typically in place and will restrict the disclosure of case information in order to safeguard the Protected Party. The standard form does, however, allow for judgments to be published in anonymised form, supporting the need for open justice. Standard orders will also allow limited disclosure to professionals providing expert advice, in the best interests of the Protected Party.

Why are Transparency Orders put in place?

Transparency Orders are commonly in place for the duration of the case or the remainder the Protected Party’s life, to ensure that the Protected Party remains protected even after the case has concluded. It follows that, on the death of the Protected Party, therefore, the Transparency Order in place will be discharged. The recent case of Re Gardner considered whether a Transparency Order could be extended beyond death.

This case was originally before the Court of Protection in relation to the validity of AB’s Advance Decision to Refuse Treatment, as covered in our previous blog. That case had a Transparency Order in place that was due to expire shortly after AB’s death. Following AB’s death, AB’s family applied for the Transparency Order to be extended for 10 years or 2 years with further reporting restrictions.

The Fourth Respondent submitted that the discharge of the Transparency Order would “threaten [  ] relationships, careers, community and values” and feared “we could be approached in public, gossiped about and become isolated in our communities. We would be genuinely concerned about our physical safety…”.

Alongside concerns for their safety, the family considered the discharge of the Transparency Order would also jeopardise their employment, stating “our careers and jobs are at risk if we are identified … if the knowledge was widely known in my community my employer would have no choice but to end my employment. False allegations … would likely result in suspension pending investigation. In my profession, a suspension on my record, even if unfounded, would cause reputational damage.”

In support of the Transparency Order being extended, the Fourth Respondent sought to rely on Article 8 of the European Convention on Human Rights (right to private and family life), submitting that continued anonymity was necessary to protect the family’s privacy.

In considering the impact of the discharge, the Judge found that the Transparency Order was originally imposed to protect AB’s Article 8 rights and the integrity of live proceedings. With those proceedings having now concluded and AB having died, the justification for continued restrictions no longer applied. The Judge commented that the speculative concerns raised by the family, regarding reputational harm and professional risk, did not outweigh the strong presumption in favour of open justice under Article 10.

This case confirms that Transparency Orders in the Court of Protection are not designed to protect family members but instead focus on safeguarding the Protected Party. In the event a Protected Party later dies, therefore, it will be necessary for the Transparency Order to be discharged. The Judge did, however, comment that, if the family involved had concerns about the reporting of a case after the death of a Protected Party, they should instead seek tailored reporting restrictions or an appropriate anonymity order.