Will opening Court of Protection doors lead to greater understanding?

News Article

A six-month pilot scheme has been launched, which sees the Court of Protection throw open its doors to the public and, for the first time, grant access to hearings which were previously held in the strictest of confidence.

The new Court of Protection (COP), established in 2007 pursuant to the Mental Capacity Act 2005, handles cases that involve individuals who lack the necessary mental capacity to make their own decisions in relation to medical and financial matters, or issues concerning their general welfare.

One purpose of the new transparency measures is to attempt to improve public understanding of the court process and confidence in the court system.

Tim Steele, a partner with Palmers’ private client team who specialises in Court Of Protection matters, explained: “The court makes some momentous decisions about people’s lives and it is only right that its workings and scope should be better understood. Until now, the only way that members of the public found out about landmark rulings was via the media.

“In the past, the media have not always got to grips with issues relating to capacity and have repeatedly misunderstood the court’s powers. Although a handful of accredited journalists have previously been allowed to attend hearings, non-accredited members of the media subsequently re-wrote these stories and, rather like ‘Chinese whispers’, cases have sometimes been misreported, leading to public confusion.”

An example of this is the recent decision regarding the case of the woman who had ‘lost her sparkle’ and wished to refuse life-saving treatment.

At least three broadsheet newspapers published headlines containing the words ‘right to die’ and suggested that the court had ‘granted’ the woman, known as ‘C’, such a right. The case was not about the ‘right to die’. No such right exists. The campaign and proposed legislation for such a right (the Assisted Dying Bill) was rejected by MPs in September 2015.

In C’s case, the only issue was whether or not she had capacity to make a decision to refuse life-saving medical treatment; the NHS trust having applied for a declaration to ensure that it acted lawfully in any continuing treatment. As with any decision made by any adult, C was presumed to have capacity, unless the contrary was proved and the court found that C did indeed have capacity.

Tim Steele added: “Whether greater access to the workings of the Court of Protection will lead to more accurate media reports and, in turn, better public understanding, only time will tell. Certainly the public, the court, and its users deserve a higher standard of reporting accuracy in relation to the momentous decisions made and the basis on which the Court makes those decisions.

Those wishing to grant loved ones the ability to make decisions regarding their finances and/ or their health and welfare should seek to create Lasting Powers of Attorney (LPAs) which can simplify, and reduce the cost of, the process when someone loses the capacity to make such decisions for themselves. LPAs are powerful documents capable of abuse however, and it is highly advisable to seek professional advice before creating the same.”

Palmers has a specialist team who can advise on Court of Protection matters and on Lasting Powers of Attorney. For further information please contact us.