Court of protection should be open to public scrutiny, says leading judge
Sir Nicholas Wall calls for public debate and legislation for court that makes crucial decisions about vulnerable people’s lives
The tortuous decision-making processes of the most controversial – and intensely private – court in England should be opened up to public scrutiny, Sir Nicholas Wall, the head of the court of protection, says.
He made the comments in an exclusive interview with the Guardian, which was recently granted a period of unprecedented access to the court, which makes crucial decisions about the lives of vulnerable people deemed unable to make choices – including ordering the removal of life-sustaining treatment, and compelling vulnerable adults to undergo surgery including sterilisation or abortion.
Admitting that the present “stalemate” between the court of protection, the public and the media “is not satisfactory from anyone’s point of view”, Wall called for a public debate on opening up the court, followed by legislation enshrined in an act of parliament.
Signalling his support for this seismic shift in current practice, the president of the family division admitted: “It seems to me a matter of public interest. The public is, after all, entitled to know what’s going on. Locking up a mentally disabled person is a very serious thing to do and we don’t want people quietly locked up in private.”
Set up in 2007, the court of protection deals with some of the most harrowing and difficult decisions judges have to make. Cases have included that of Steven Neary, the autistic man found to have been illegally held in care by Hillingdon council, and Rachel Pullen, the young mother claiming that Nottinghamshire council put her six-month-old baby into foster care because she was too “stupid” to care for her.
Court of protection judges can also decide, despite the wishes of their family, where a person lives or with whom. In one recent incidence, the court ruled that a man with a low IQ should be banned from having a sexual relationship.
Until a successful legal challenge by the media in early 2010, the court’s business was automatically conducted in private. Judges now decide whether the media can observe hearings on a case-by-case basis, often requiring news organisations to spend prohibitive sums of money on barristers and legal experts to argue their case for access.
But access, which is still only granted on rare occasions, is no guarantee that cases can be reported. Even when journalists win the right to be present in the courtroom, judges still retain the right to decide what, if anything, can be published.
Their decisions are made only after consultation with the official solicitor (appointed to represent the interests of the person lacking capacity), local authorities and healthcare providers, all of whom commonly mount powerful arguments calling for access to be denied or, failing that, reporting severely curtailed.
The rarity with which judges grant reporting rights has led to accusations that the courts stifle debate about complex moral dilemmas and gag families from discussing cases in public.
Wall admitted concern that the current situation has created what he believes is a misleading image of the court. “These are deeply polarising cases. They inevitably involve conflict. There are those who believe the system is corrupt,” he said.
Wall said it was important for the public to understand the “tremendous responsibility” imposed on the court of protection and the “agonising thoughts” that go into the “balancing exercises” that inform its decisions.
The Guardian is the first newspaper to be given wide-ranging access to this hitherto closed corner of the English and Welsh justice system.
For three weeks, the Guardian was allowed to sit in on every court of protection hearing being held in the tucked-away courtroom at London’s Royal Courts of Justice, with the exception of one hearing in which the family objected.
In a rare interview, Wall said that even without a parliamentary statute, he is “increasingly encouraging judges who deal with life and death cases and those that involve the public interest – that is, deprivation of liberty safeguards or life support machine cases – either to sit in open court or to publish their judgments anonymously. The public deserve to know about how they are decided.”
Wall acknowledged that his call to open up the court would be hard for many judges to accept. “The decision about opening up the court is very fraught and people have very strong views,” he said. “My entirely personal view is that provided we can protect the confidentiality of litigants and their families, there’s not a reason we can’t hear the cases in the presence of the media.
“But that’s not a view shared by all judges. There’s a very powerful lobby which says these are confidential proceedings. But equally, there’s a powerful lobby saying lots of public money is funding this very important work, and the public have a right to know about it.”
Wall also used the interview to discuss the court’s controversial deprivation of liberty safeguards, which allow council or NHS officials to restrain someone in a hospital, care home or retraining facility for as long as the state deems it to be “in their best interests”.
At present, these powers are only available to judges sitting in the high court in London. Wall, however, revealed his support for broadening the remit to include circuit and district judges, with a consultation launched in the next month.
“If we are at the stage where case law has been established, then we can gradually work our way towards having people outside London who are competent in the work of the court of protection, acting as judges,” he said.