The role of the Court of Protection

The Court of Protection is a specialist court that deals with cases concerning the welfare and healthcare or property and financial affairs of people who do or may lack the mental capacity to make decisions about those issues for themselves.

The person at the centre of a Court of Protection case, known as “P”, will very likely be a vulnerable individual by virtue of a condition or disability – such as mental health problems, learning difficulties, brain injury or dementia – that gives rise to their lack or potential lack of mental capacity. The parties in a Court of Protection case will typically be P themselves (normally participating via a litigation friend – who will often be the Official Solicitor – or via an accredited legal representative), the relevant public body (usually P’s local authority or local NHS body) and, in many cases, one or more family members of P.

What is a closed hearing?

The issues that are addressed in cases in the Court of Protection can be sometimes very sensitive and emotive ones, such as whether or not P should be given a particular medical treatment or questions concerning P’s relationships. In some rare cases, the Court of Protection can decide that particularly sensitive information (known as “closed material”) should not be seen by one or more parties and/or their legal representatives, and/or that one or more parties and their legal representatives should be excluded from a hearing (known as a “closed hearing”).

The need for a clear procedure to deal with closed hearings and closed material had been highlighted by the recent case of Re A (Covert Medication, Closed Proceedings) [2022] EWCOP 44. This case concerned A, who is a young woman in her early 20s with a mild learning disability and Asperger’s syndrome. A also had primary ovarian failure, meaning that she had not undergone puberty, and it was reported that A’s mother, B, was failing to support and encourage A to engage with hormone replacement therapy so that A could undergo puberty.

In September 2020, the local NHS Trust had asked the Court of Protection to authorise hormone treatment for A that would be given without A’s knowledge or consent (known as “covert” treatment). B was not made a party to the application and so was not present at the hearing at which the Court of Protection considered this application and was not aware that a covert medication plan had been approved as being in A’s best interests. Covert hormone treatment was then started but without the knowledge of A, B or members of A’s family – B did not find out that A was going through puberty, because contact between them was only over the phone and so B did not see A. A number of closed hearings were held in the Court of Protection to review the issue, which B was excluded from and did not know about. When the case came before the Court of Protection again in September 2022, it was then decided that B should be told about the covert treatment and that it had been authorised at closed hearings from which she had been excluded.

Guidance on closed hearings

Following A’s case, the former Vice President of the Court of Protection, Mr Justice Hayden, published guidance on closed hearings and closed material – available here.

The guidance makes clear that the starting point in all cases is that all parties in a case should be able to participate in all hearings and be able to see all materials before the court.

If a closed hearing is being considered, then it must be a last resort and other, less drastic options for conducting the hearing must be explored first. There would need to be a complex and difficult balancing act for the Court of Protection weighing up the rights of all the parties versus the need to protect and promote the best interests of P and prevent harm to P. The guidance also makes clear that any exclusion from a hearing should be as limited as possible and kept under review to ensure that it is only maintained for as long as strictly necessary.

In terms of closed material, similar considerations apply. The Court of Protection will need to consider if disclosure of the material would involve a real possibility of significant harm to P and then, if it would, “whether the overall interests of P would benefit from non-disclosure, weighing on the one hand the interest of P in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur”.

Commentary

The guidance is complicated and contains various other provisions that would be relevant to cases where a closed hearing or closed material is being considered, but it is clear that the key consideration is what extent keeping hearings and material open to all parties would cause a risk of harm to P. The issue will need to be decided on a case-by-case basis, as what form the potential harm to P takes and the nature of the risk from open hearings or open material will differ according to P’s precise circumstances. The document also makes clear that it is guidance only and so is not necessarily to be followed rigidly to the letter in every situation, although there would likely need to be very good reason to depart from the guidance.

How our Court of Protection solicitors can help

Whether or not this guidance is of relevance to your case, if you are involved in a Court of Protection case then you should seek specialist advice as soon as possible. TV Edwards has a team of solicitors with expertise in mental capacity, deprivation of liberty and Court of Protection cases. If you are seeking legal advice relating to mental capacity, deprivation of liberty or Court of Protection issues, then please contact us on 0203 440 8000 or by email to enquiries@tvedwards.com to see if we can assist.