Opening up the Court of Protection

On 29th January 2016, a pilot scheme was launched designed to give greater publicity to the work of the Court of Protection.

This is a specialist Court which makes decisions about the personal welfare (e.g. medical treatment) and the property and affairs of persons who lack capacity to make them themselves, applying a best interests test. The Court of Protection’s main base is in London but it also sits throughout England and Wales.

The Court of Protection was established by the Mental Capacity Act 2005. It is responsible for:

deciding whether someone has the mental capacity to make a particular decision for themselves
appointing deputies to make ongoing decisions for people who lack mental capacity
giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration.
considering applications to make statutory wills or gifts
making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.

It deals with about 25,000 applications under the Act each year. A high percentage of applications relating to property and affairs are not disputed and they are dealt with on paper without a hearing.

A new Pilot Practice Direction will apply to new proceedings issued from 29 January 2016. The Practice Direction effectively changes the default position from one where hearing are held in private to one where hearings are held in public with reporting restrictions to protect identities. This means that when an order has been made under the pilot, both the media and the public will be able to attend, unless a further order has been made which excludes them.

The work of the Court has not been totally hidden from public view.

Court of Protection judgments have been routinely published since 2010.
Serious medical cases (such as a decision to stop life support) are held in public, with the identities of those concerned kept anonymous.
Committal hearings where a custodial sentence is imposed are also held in public.

Her Majesty’s Courts and Tribunals Service (HMCTS) is also amending the way in which court lists are displayed, so that they provide a short descriptor of what the case is about, allowing the media and members of the public to make an informed decision on whether to attend the hearing. Lists will be published on a weekly basis in court buildings and online at www.courtserve.net.

This follows on from the development of practice in the Family Court where, for the last 6 years, accredited media have been able to report on proceedings. It is accepted that many will want these proceedings to be private; the pilot is designed to provide evidence about how the balance between publicity and privacy might be improved.

For further information see https://www.judiciary.gov.uk/announcements/court-of-protection-prepares-to-open-up/