Should the Court of Protection hear all cases in public?

 In Comment, Gill's Blog

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The Court of Protection deals with harrowing and sensitive cases concerning the most vulnerable in society. It makes difficult and contentious rulings on a daily basis about the welfare of those who are incapable of managing themselves and their assets.

Until 2010 all decisions were heard behind closed doors but then Judges were able to decide on a case by case basis whether to allow the media into the court room. John Hemming MP believes it would be best to make all its hearings public. Amelia Hill in a special report for the Guardian newspaper on 7 November 2011 investigated.

The Court of Protection has to balance some of the most fundamental principles underpining society such as the right to individual freedom of choice (likewhere to live; whether to have sex; whether to marry etc); the right to family life and the protection of those who lack capacity from harming themselves and others.

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Some of the cases must involve the judgment of Soloman – for example is it better for the vulnerable person to be cared for at home or by a local authority or hospital? On the face of it a loving family may be the better environment but the actual ability to provide the care necessary may be inadequate to prevent harm from infection or to act purely in the best interests of the ‘patient’.

Is John Hemming’s argument correct when in discussion with Amelia Hill he said that the lack of public hearings prevents “legitimate public discussion of vital legal, moral and social issues”? It is true that public debate following the investigation of the phone hacking scandal at News International has had an interesting impact on the perception of the public about the importance of privacy and the effects of that being breached not only for celebrities but the public in general and distressed persons in particular. However, one wonders whether the human interest in intensely personal matters heard by the Court of Protection being examined in all parts of the media will help the public to take more than a ‘Big Brother’ voyeur approach to the cases.

It is true that the court cases to date on the right to die and the protection of those who may assist the patient when they are no longer able to end their own life, such as the Purdy case, have generated a much welcome debate about end of life decisions and the quality of life in difficult situations. They may even yet have an impact on the universal quality of pallative care in the UK rather than a postcode lottery of care.

How far must the state intervene in the problems surrounding the questions of depriving a person of liberty, life or the ability to have a family? Surely, protection is required to ensure that the potential risk of family members or carers benefiting financially or otherwise from what may be inappropriate behaviour towards the vulnerable is minimised. There must be accountability of those responsible for dealing with such matters as the Baby P case demonstrated but if I were a vulnerable person I would like to think that an independent Judge would not always take the line of the professional against my carer and would focus as required on what is in my best interests. If that is to allow the air of public debate into the arena then the Judge could decide to open the window of the court to the world but if there is no merit in public discussion of the personal problems facing me and my carers and advisers then I would like to think that a Judge could decide that the best thing for me would be to hear the issues with the window firmly closed.

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