This guest post by Celia Kitzinger is an APPENDIX to her post When family members apply to become parties: A hidden and “private” (but not sinister and secret) hearing
Several of my previous blog posts lament the fact that so many Court of Protection hearings are labelled “PRIVATE” and “NOT OPEN TO PUBLIC” although in fact judges do almost always routinely admit members of the public who ask to observe them. I’m often asked why they are so labelled. In this blog post I try to answer that question.
There are four sections.
The first section covers the situation prior to 29 January 2016, when hearings were PRIVATE by default, and observers were not allowed to attend.
The second section covers the period of the Transparency Pilot and its subsequent incorporation into normal court procedure, such that hearings were PUBLIC by default – up until the beginning of the COVID-19 pandemic. Listings between February 2016 and the end of March 2020 clearly signalled that hearings were PUBLIC with reporting restrictions.
The third section covers the period from 31 March 2020 (at the beginning of the pandemic) to date. The default has reverted to “PRIVATE”, but (unlike the situation prior to 29 January 2016) with the opportunity for observers to attend, though this opportunity has never been clearly signalled in the listings.
In the final section I consider what’s needed for the future to ensure open justice and transparency in the Court of Protection. (Spoiler: Listings need to specify that hearings are PUBLIC.)
1. PRIVATE by default until 2016
Until 2016, almost all Court of Protection hearings were conducted in private.
When the (new) Court of Protection was established under the Mental Capacity Act 2005, the “general rule” (with some exceptions, notably serious medical treatment cases and committal orders) was that “a hearing is to be held in private”. This means that the only people permitted to attend hearings are the parties, P and P’s litigation friend, plus their legal representatives, and court officials (Rule 90.1(2) Court of Protection Rules 2007).
Although the court had the power to order that other hearings should depart from the general rule and be held in public (Rule 92, Court of Protection Rules 2007) it rarely did so.
2. PUBLIC by default: The Transparency Pilot (2016)
On 29 January 2016 this all changed, with the introduction of the Transparency Pilot.
Announced with a bit of a fanfare, this effectively reversed the default position from one in which the vast majority of hearings were private (meaning nobody outside the case could attend) to a default position in which the vast majority of hearings were open to journalists and to the public, with reporting restrictions to protect the identity of the protected party and their family. Hearings were listed as “In public with reporting restrictions”.
Orders made under the Practice Direction– Transparency Pilot that came into force on 29 January 2016 meant that both the media and the public could attend unless a further order had been made to exclude us. The only type of hearings explicitly not covered by the Transparency Pilot and intended to remain ‘private’ were Dispute Resolution Hearings (§2.2 Practice Direction – Transparency Pilot).
The proposal was to run the Transparency Pilot for at least six months, with the possibility of extension, to assess its impact and “allow for the changes to be fully tested” (Pilot background note)
It was subsequently extended until 31 August 2017.
Then, in July 2017, the Court of Protection announced that the Transparency Pilot would continue and then become part of normal court procedure, with a package of revisions to Court of Protection Rules and supporting Practice Directions. The Court of Protection Rules 2017 then essentially reversed the presumption to provide that, henceforth, Court of Protection hearings (except for Dispute Resolution Hearings) would be public by default – meaning anyone could attend. Practice Direction 4C specifies that:
The court will ordinarily (and so without any application being made)— (a) make an order under rule 4.3(1)(a) that any attended hearing shall be in public; and (b) in the same order, impose restrictions under rule 4.3(2) in relation to the publication of information about the proceedings.
This remained the case until the end of March 2020.
3. Back to PRIVATE by default: Remote hearings and the COVID-19 pandemic (March 2020)
On 31 March 2020, Hayden J, Vice President of the Court of Protection, published a Guidance document which effectively reversed the default position (first introduced four years earlier by the Transparency Pilot, then continued under the 2017 Rules) that Court of Protection hearings were open to the public. Instead, they now became, by default, conducted in private again, and Practice Direction 4C was disapplied.
This Guidance was issued in the context of the COVID-19 pandemic which meant that legal proceedings were rapidly becoming remote (rather than in-person).
The first post-pandemic all-remote Court of Protection hearing (which I attended) was on Tuesday 17 March 2020, less than 24 hours after the Prime Minister’s announcement to the nation to avoid all non-essential contact due to COVID-19. (See: “Skype in the Court of Protection: The courts in the time of coronavirus” for the lawyers’ perspective on this hearing and “Remote justice: A family perspective” for the view from a family member.)
Until the COVID-19 pandemic, court hearings were overwhelmingly held in court rooms and such audio- and video-technology as was deployed (e.g., for urgent out-of-hours hearings or to bring otherwise-unavailable witnesses into the physical courtroom) was the exception rather than the rule. So, the Court had to adapt rapidly to the demands of remote hearings in the pandemic.
During March 2020, the Vice President of the Court of Protection, Hayden J, produced further Guidance notes – beginning with the recommendation to judges to avoid visits to the protected party, especially in care homes (Guidance of 13 March 2020); then advising that all hearings with time estimates of two hours or less would take place by telephone (Guidance of 18 March 2020); then stating that “no hearings which require people to attend are to take place unless there is a genuine urgency and it is not possible to conduct a remote hearing” (Guidance of 24 March 2020) ; and finally laying out detailed guidance for the conduct of remote hearings (Guidance of 31 March 2020). It’s this latter Guidance which resulted in remote hearings being designated “Private”.
The primary concern in March 2020 about moving court hearings onto ‘off the shelf’ audio/video platforms related to security. The court wanted to minimise the risk of “unauthorised recordings being made by a litigant or as a result of malicious third party hacking” (§50 Guidance of 31 March 2020).
This security risk had been addressed in Schedule 25 of the Coronavirus Act 2020, the emergency legislation passed by Parliament a few days earlier, on 25 March 2020. The Coronavirus Act 2020 amended the Courts Act 2003 and the Tribunals, Courts and Enforcement Act 2007 to permit the public broadcasting of court proceedings (thereby maintaining the principle of open justice) while making it a criminal offence to make unauthorised recordings of court proceedings or transmit them to other people. The new legislation applied specifically to the Court of Appeal, the High Court, the Crown Court, the county court, the family court, and to magistrates’ courts (s.85D(2), Coronavirus Act 2020). But not to the Court of Protection.
The exclusion of the Court of Protection by the Coronavirus Act 2020 was seen as causing a problem for continued public access to its hearings.
“The Coronavirus Act allows the listed courts to direct public broadcasts of the hearings or part thereof (or record a hearing for the purposes of public broadcast after the fact): Section 55, Schedule 25, paragraph 1, amending s.85A Courts Act 2003). This provision is not extended to the Court of Protection and inevitably therefore public access by way of either live or retrospective broadcast is restricted. Live broadcasting of court proceedings may only be authorised by statute.” .(§64, Guidance of 31 March 2020)
Since the Court of Protection was not covered by the Coronavirus Act, Hayden J, while restating the Court’s commitment to transparency and alert to the risk of it becoming “a casualty of our present public health emergency“ said that remote hearings would be conducted in private. Practice Direction 4C (the direction that all COP hearings are ordinarily in public) would be disapplied. However:
“In each case active consideration must be given as to whether any part of any remote hearing can facilitate the attendance of the public, if so Practice Direction 4C may be applied and the transparency order reissued.” .(§59 Guidance of 31 March 2020)
The draft Order appended to Hayden J’s Guidance of 31 March 2020 reads as follows (the first 9 paragraphs are reproduced here, with red highlighting from me to indicate the salient points with regard to “private” hearings and the opportunity for the public to attend them):
“IT IS ORDERED THAT:
1. All hearings in this matter shall take place in private and by way of remote hearing
pursuant to Court of Protection Rules 2017 r 3.1(2)(d) unless the court directs otherwise.
2. The parties and their representatives shall attend all hearings by way of /[Skype]/[telephone]/[other].
3. It is forbidden for any person to make, or attempt to make— (a) an unauthorised recording, or (b) an unauthorised transmission, of an image or sound which is being transmitted through a live video link or transmitted through a live audio link in this case.
4. It is forbidden for any person to make, or attempt to make— (a) an unauthorised recording, or (b) an unauthorised transmission, of an image of, or sound made by, any person (whether P or another person) while that person is participating in court proceedings through a live video link or a live audio link in this case.
5. [If relevant] The transparency order made on the [insert date] is hereby discharged.
6. Practice Direction 4C is disapplied.
7. On the court list for the next hearing the words “to be heard remotely” will be endorsed next to this case.
8. Accredited members of the press and legal bloggers may seek to attend the remote hearing by putting in a request to this court confirming the email address of the relevant journalist or legal blogger who is to be joined to the platform and the name of their employer (if any). If such permission is granted the disapplications at §§5 and 6 above will require to be revisited at the commencement of any remote hearing attended by the press or a legal blogger.
9. Any other person may apply for permission to attend the remote hearing in the same fashion as an accredited member of the press or legal blogger, also giving an explanation as to why they wish to attend. In such an event §§5 and 6 above will require to be revisited in any order which permits such attendance.”
The effect of this Order (which was routinely applied for remote hearings for the next two years or more) was that hearings were listed as “PRIVATE” (as ordered in §1) and “to be heard remotely” (as in §5) – but (usually) with small print stating that “anyone wanting to observe any Court of Protection hearing (including those being conducted in private) should contact….” Here’s a recent example.
For anyone who has read the Guidance of 31 March 2020, it is apparent what is being done by the small print here. It refers to the possibility, referenced in §8 and §9 of the draft Order, of a member of the press or legal blogger (§8) or any other person (§9) applying for permission to attend – in which case it was envisaged that “the disapplications at §§5 and 6 above will require to be revisited”, i.e. the transparency order (i.e. reporting restrictions) discharged in §5 of the Order would be revived (or new reporting restrictions created), and that Practice Direction 4C (making the hearing public), previously disapplied by §5 of the draft Order would be reapplied.
Unfortunately, few members of the public have read the Guidance of 31 March 2020 and so, for most people who might consider observing a COP hearing, the fact that they can do so despite the “PRIVATE” label is entirely opaque.
The logic of all this seems also to have been opaque to the people charged with operating this system during Summer and Autumn 2020 when we first set up the Open Justice Court of Protection Project. Members of the public (including me saw the word ‘PRIVATE’ and believed that we could not be admitted to hearings. If we asked for admittance, court staff regularly replied – without referring our requests to judges – saying that we could not be admitted because all remote hearings were PRIVATE. We even got the same response from some judges. It was extremely challenging to gain access to Court of Protection hearings.
It’s still challenging to convey to members of the public that PRIVATE doesn’t mean they can’t observe hearings. That’s why the Open Justice Court of Protection Project reproduces the listings on our Twitter page, simply omitting the word “PRIVATE”.
Moreover, the effect of §9 of the 31 March Guidance quoted above which specifies that members of the public are required to supply “an explanation as to why they wish to attend” is to add another deterrent to public observation. People worry their reason isn’t a legitimate one (especially if they are themselves involved in COP proceedings). When I started observing back in 2020, I was routinely asked this question and routinely replied that my motive was to “support the judicial commitment to open justice”. When others contacted me in a panic about what to say (some proposing elaborate justifications with appended CVs to demonstrate the ‘worthy’ nature of their request), I advised everyone to give the same minimal response. By the beginning of 2021, there were no more requests for explanations (although, exceptionally, I know of two such requests in the last month).
4. Moving forward
Now that the Court of Protection is no longer in the throes of dealing with the drastic effects of a public health emergency, it’s time to sort this out.
It looks as though remote hearings are here to stay for a significant proportion of hearings.
Many of them recently have in fact been listed as “PUBLIC WITH REPORTING RESTRICTIONS” – which sends the (accurate) message that the public can observe them, but that we will be told that there are things we can’t report.
Many, though, continue to be listed as PRIVATE – with the effect that members of the public believe they cannot observe them, thereby perpetuating the impression of a ‘secret’ court, operating behind closed doors.
The ‘small print’ stating that we can ask to observe PRIVATE hearings doesn’t serve its intended purpose – and it’s often omitted anyway.
For most members of the public, it’s also impossible to distinguish between PRIVATE hearings that members of the public can ask to attend (and to which we will most likely be admitted) – which is most of them – and those that are really PRIVATE and to which we won’t be admitted (which is Dispute Resolution Hearings (DRHs) which were never included in the Transparency Pilot). So, for DRHs, PRIVATE does mean the public can’t be admitted, whereas for all other hearings (including “Case Management Hearings” (CMH)) it doesn’t.
When I raised this concern at a Court of Protection Court User Group Meeting (20 April 2022), Her Honour Judge Hilder (HHJH) ‘noted the degree of legal complexity in “private” and “public” hearings’. Her summary, as recorded in the minutes of that meeting follows. It both confirms my prior understanding (as above) as to why so many remote hearings are listed as “PRIVATE”, but also raises an additional concern (for me) about what appears to be contradictory information concerning transparency orders.
“Pre-pandemic, the “ordinary” approach was that COP hearings were conducted in public subject to a “transparency order” in the form of an injunction. The pandemic brought the need for remote hearings which, in line with the VP’s Guidance of 31/3/22 [this is a typo – obviously, and should be 20] are held “in private” but with observation opportunities, as opposed to “private” hearings in accordance with the Rules (e.g. DRH) where observation is not considered appropriate. HHJH acknowledged that some judges are using a “transparency order” for the first type of hearing where an observer attends, whereas the approach in line with the statutory provisions in relation to “private hearings” would be a positive order permitting publication of specified information.” (§8 Minutes of Court of Protection Court User Group Meeting, 20 April 2022).
The acknowledgment that “some judges are using a “transparency order”….’ downplays the reality that, on the basis of my observation of more than 300 “PRIVATE” remote hearings across England and Wales, I can report that virtually all judges invoke a transparency order when an observer joins the hearing (albeit observers are not always sent them). This is because, in line with Mr Justice Hayden’s Guidance of 31 March 2020, Practice Direction 4C (making the hearing public), previously disapplied by §5 of the draft Order, is reapplied at the beginning of the hearing, meaning that the hearing is now PUBLIC (not private) and a transparency order is therefore reapplied, as specified in §§8-9. The alternative practice described by HHJ Hilder, of keeping the hearing “private” and permitting publication of specified information can achieve much the same effect in practice, but it is not what seems to have been envisaged in the Guidance of 31 March 2020, and in my experience has only ever been done by (some) judges in First Avenue House. Moreover, my experience is that it is not a helpful practice for members of the public, who then have only an oral account of what they can say about a “private” hearing, meaning that some have been too anxious about breaching instructions they may not have fully understood or remembered to write a blog post.
In response to my observation that the listing of hearings as PRIVATE has a chilling effect on open justice, Her Honour Judge Hilder “requested that an amendment is made to the listing template to include a simple ‘yes/no’ to an express question of whether observers can request to attend a hearing” (§8 Minutes, Court of Protection Court User Group Meeting, 20 April 2022).
This has been, so far, imperfectly implemented. It’s not present for many hearings, and when it is present the “express question” is confusing and the answer missing – as shown below). The question in the right-hand column should be “Can observers request to attend?” – as minuted in the meeting – not “Can this hearing be attended” (which is unclear) and since it’s not been answered with either a Y or an N, the would-be observer is none the wiser.
Like the small print already in (intermittent) use, adding a column to attempt to explain that members of the public can ask to observe a PRIVATE hearing, is an unwieldy and uncertain method of achieving transparency in the Court of Protection. (I have since been informed by a manager that “that template was shared prematurely and should not have been used as yet”.)
The obvious way to promote transparency is to make remote Court of Protection hearings – like in-person ones – PUBLIC (with reporting restrictions) by default and to use the word “PUBLIC” on the lists.
I can’t believe it’s beyond the ingenuity of court to achieve that!
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She has been observing Court of Protection hearings since 2010 – initially dozens of in-person serious medical treatment cases, and then since May 2020, a wide range of remote hearings (more than 300) in courts across England and Wales. You can follow her on Twitter @KitzingerCelia
Featured image: Private / Public via Shutterstock.