Your browser is out of date or unsupported. As a result, some elements of this website may not be fully functional. For the best possible user experience, it is recommended that you use the latest version of Chrome, Firefox or Microsoft Edge.
TV Edwards Solicitors Logo
Call us on: 020 3440 8000
  • Home
  • About Us
    • Awards and Accreditations
    • Corporate and Social Responsibility
    • Cybercrime and Fraud Warning
    • Make a Secure Payment
    • Our London Offices
    • Pricing
    • What Our Clients Say
  • Services
    • You & Your Family You & Your Family
      • Community Care
      • Court of Protection
      • Criminal Defence
      • Dispute Resolution
      • Family and Children Law
      • Mental Health
      • Personal Injury
      • Wills and Probate
    • You & Your Property You & Your Property
      • Housing
      • Property Disputes
      • Residential Property
    • You & Your Business You & Your Business
      • Alcohol & Entertainment Licensing
      • Business Crime and Fraud
      • Commercial Litigation
      • Commercial Property
    • _
  • Our People
    • Alcohol and Entertainment Licensing
    • Community Care
    • Court of Protection
    • Criminal Defence
    • Dispute Resolution
    • Family and Children
    • Housing
    • Mental Health
    • Partners and Management Team
    • Personal Injury
    • Property
    • Wills and Probate
  • News and Blogs
  • Careers
TV Edwards Solicitors Logo
  • Home
  • You & Your Family
    • Family and Children Law
    • Wills and Probate
    • Personal Injury
    • Dispute Resolution
    • Mental Health
    • Court of Protection
    • Community Care
    • Criminal Defence
  • You & Your Property
    • Residential Property
    • Property Disputes
    • Housing
  • You & Your Business
    • Commercial Property
    • Commercial Litigation
    • Business Crime and Fraud
    • Alcohol & Entertainment Licensing
  • About Us
    • Our London Offices
    • What Our Clients Say
    • Pricing
    • Make a Secure Payment
    • Awards and Accreditations
  • Our People
    • Community Care
    • Court of Protection
    • Criminal Defence
    • Dispute Resolution
    • Family and Children
    • Housing
    • Alcohol and Entertainment Licensing
    • Mental Health
    • Partners and Management Team
    • Personal Injury
    • Wills and Probate
    • Property
    • Support Team
  • News and Blogs
  • Careers
Call us on: 020 3440 8000
×
  • Divorce
    • Divorce process
    • Finances
    • Civil partnerships
    • Child arrangements
  • Children
    • Child arrangements
    • Social services
    • Adoption
    • Special guardianship
    • Relocation
    • International Children Law – Child Abduction, Relocation and Rights of Access
  • Modern Parenting
    • Surrogacy
    • Fertility
    • Donor conception
    • Co-parenting
    • Adoption
  • Unmarried couples
    • Pre nups, post nups and pre partnership agreements
    • Cohabitation agreements
    • Separation
    • Finances for children
  • Domestic abuse
    • Domestic abuse
    • Forced marriage
    • FGM
×

Start typing to search.

    ×
    TV Edwards Solicitors Logo

    020 3440 8000

    enquiries@tvedwards.com

    Our Offices

    TV Edwards Solicitors Logo

    020 3440 8000

    enquiries@tvedwards.com

    Our Offices

    Contact Us

    Please enter your first name(s).
    Please enter your surname.
    Please enter a valid email address.
    Please enter your contact number.
    Please select an option.
    Please enter a message.

    We’ll only use this information to handle your enquiry and we won’t share it with any third parties. For more details see our Privacy Policy.

    TV EDWARDS SOLICITORS LLP

    Closed hearings in Court of Protection cases

    The issues that are addressed in cases in the Court of Protection can be sometimes very sensitive and emotive ones.

    Back to News & Blogs 9th June 2023

    Blog author thumbnail
    Michael Sherlock
    Blog Community Care Court of Protection

    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.

    Related Services:

    Community Care
    Court of Protection

    More Articles

    Article Image

    TLATA and How It Affects You

    26th September 2023
    Article Image

    Common Myths about Criminal Defence – Debunked

    26th September 2023
    Article Image

    ADR Advantages and Disadvantages

    8th September 2023
    Article Image

    Who Keeps the Engagement Ring?

    7th September 2023
    Article Image

    Contentious Probate: a guidance

    7th September 2023
    Article Image

    Are You In or Are You Out? – Reforming the Landlord and Tenant Act 1954: Addressing Concerns of Slowness, Cost, and Opt-Out Security of Tenure

    4th September 2023
    All Articles 

    Contact Us

    020 3440 8000|enquiries@tvedwards.com|Our Offices

    020 3440 8000
    enquiries@tvedwards.com
    Our Offices
    Contact Us

    Cyber Essentials Accreditation Logo
    Lexcel Logo
    The Legal 500 – The Clients Guide to Law Firms
    Chambers 2021 Logo

    © 2023 TV Edwards LLP is authorised and regulated by the Solicitors Regulation Authority (465533) and is a Limited Liability Partnership registered in England and Wales number 0C325696. Details of the SRA Code of Conduct can be found at sra.org.uk. Registered name: TV Edwards LLP. Registered Office: 35-37 Mile End Road, London, E1 4TP.

    TV Edwards Solicitors Logo

    Contact Us

    Call us on: 020 3440 8000

    Our Offices


    • Quick Links
      • Pricing
      • Pay Online
      • Careers with TV Edwards
    • Insights
      • Blogs
    • Regulatory
      • Legal Disclaimer
      • Terms of Business
      • Accessibility
      • Privacy Policy – Website Users
      • Privacy Policy – General
      • Cookies
      • Complaints Procedure

    Find us on:


    TV Edwards Solicitors Logo
    © 2022 TV Edwards LLP is authorised and regulated by the Solicitors Regulation Authority (465533) and is a Limited Liability Partnership registered in England and Wales number 0C325696. Details of the SRA Code of Conduct can be found at sra.org.uk. Registered name: TV Edwards LLP. Registered Office: 35-37 Mile End Road, London, E1 4TP.
    Use of Cookies

    Our website requires the use of cookies. Enabling all cookies makes sure the website works as smoothly as possible, and also helps us to improve it. Some cookies are activated by default but tracking cookies aren't switched on without your consent.

    For our full policy, visit our cookies page.


    Using this tool will set a cookie on your device to remember your preferences.

    Necessary

    Necessary cookies enable core functionality of the website, including security, SRA Regulationand reCAPTCHA form verifications. It is possible to disable these cookies in your browser settings, but this could affect the functionality of the website.


    Recommended
    Off On

    Recommended cookies improve your experience of our site by helping to display our latest client reviews and embedded maps of our office locations. You can find full details on Google's privacy policy here.


    Analytics
    Off On

    We'd like to use analytics services provided by Google Analytics, Microsoft Clarity and Ruler Analytics to collect anonymous information from our visitors. The data we collect will help us to improve our website and services. Learn more about how we use these services and our commitment to safeguarding data in our Cookie Policy.

    Settings Save & Close
    020 3440 8000