Overhaul of Court of Protection media rules needed to prevent miscarriages of justice and improve transparency, new study finds

A group of legal experts is calling for an overhaul of the rules governing the way in which the Court of Protection (CoP) works with the media in England and Wales, to improve transparency and help protect against miscarriages of justice.

The study, funded by the Nuffield Foundation and led by researchers from Cardiff University's School of Law, recommends changes to the rules that govern media access to CoP cases, to enhance accountability and increase public understanding of the Court's work.

The Court of Protection makes decisions about the care and treatment of people who lack mental capacity due to conditions including dementia, learning disabilities and mental health problems.

Due to the socially and politically-sensitive nature of the cases handled by the CoP, strict rules govern media access to its proceedings, with journalists having to make costly applications to attend hearings.

While recognising the need for some restrictions to be in place to protect the privacy of those involved, the report calls for an overhaul of the rules to allow for routine media access to important hearings - a mirroring of the practice applied in the Family Court system.

The study is the result of a roundtable study which saw Cardiff researchers come together with more than 20 participants, including judges, CoP lawyers, media lawyers, journalists, civil servants and other researchers, all of whom have experience of working on Court of Protection welfare cases.

The resulting report proposes that the system for informing the media of important CoP cases is improved to allow for greater legal clarity on when parties and legal representatives can lawfully inform the media about a case.

High-profile cases of the media playing an important role in promoting understanding of people's rights are also highlighted by the research. This includes the case of Stephen Neary, whose unlawful deprivation of his liberty by the London Borough of Hillingdon led to public outcry after his father turned to the media with his public fight to bring his son home.  The case led to heightened awareness of the role of the Court of Protection in challenging decisions of public bodies relating to the care and treatment of people who may lack mental capacity.

Dr Lucy Series from Cardiff University's School of Law, who co-authored the study, said: "There's no doubt that restrictions on the ways that Court of Protection cases are reported by the media are necessary to protect the privacy of those involved, but the current rules are not fit-for-purpose. Today's report seeks to address the ways in which this protection can be preserved or even strengthened, while at the same time enabling more open discussions on cases deemed of public interest. 

"Clearly, there's a need for further exploration of how the law can be framed in a way that can best accommodate the diverse situations facing the Court of Protection. But all participants in the research expressed support for the principle of 'open justice'. Media reporting on Court of Protection cases, and the publication of judgments, were seen as important to enhance public understanding of the Court of Protection's work, to protect against miscarriages of justice and to promote public confidence in the court. Open and accessible judgments were also said to be important for access to justice for litigants in person who might not have access to law reports or legal advice."

Read the full report: Transparency in the Court of Protection: Report on a Roundtable