CHAPTER ONE – THE RULES AND PRACTICE DIRECTIONS
The procedural rules that govern the operation of proceedings in the Court of Protection are set out in the Court of Protection Rules 2017[1] (the Rules).
The Rules have the overriding objective of enabling the court to deal with a case justly and at proportionate cost, having regard to the principles contained in the Mental Capacity Act 2005[2].
The rules on whether, and when, a hearing is to be heard in private or in public are set out in Part 4 of the Rules.
The general rule
The default position, by virtue of Rule 4.1, is that hearings in the Court of Protection are to be held in private.
COPR 4.1.—(1) The general rule is that a hearing is to be held in private.
The meaning of a private hearing is defined in Rule 4.1(2).
Pursuant to Rule 4.1(2) there are restrictions on who would ordinarily be able to attend a hearing in the Court of Protection, if it is being held in private, limiting the attendance to specific individuals which includes the parties and their legal representatives, the person who is the subject of the proceedings, and any person appointed as their litigation friend or as their representative appointed under Rule 1.2 of the Rules[3].
COPR 4.1 – (2) A private hearing is a hearing which only the following persons are entitled to attend—
(a) the parties;
(b) P (whether or not a party);
(c) any person acting in the proceedings as a litigation friend or rule 1.2 representative;
(d) any legal representative of a person specified in any of sub-paragraphs (a) or (b); and
(e) any court officer.
Therefore, the starting point according to the Rules is that hearings in the Court of Protection will be held in private, with only those people identified in Rule 4.1(2) (above) being entitled to attend.
Until a pilot scheme in 2016, this was the usual position in respect of Court of Protection hearings.
Notwithstanding the general rule, and the default position previously being that hearings will be in private, provision is made within the Rules to widen the list of those permitted to attend a hearing in the Court of Protection.
The court has the power, by virtue of Rule 4.1(3), to make an order authorising those not listed in Rule 4.1(2) to attend a hearing, or part of it.
This means that the court can, for example, allow members of the press or other classes of person to attend a private hearing or at the very least attend part of that hearing.
Under Rule 4.1(3) the court can also makes orders to exclude people or classes of people from attending a hearing in the Court of Protection.
This gives the Court the power to both extend and limit the scope of those permitted to attend a private hearing.
Rule 4.1(3) provides:
COPR 4.1(3) In relation to a private hearing, the court may make an order—
(a) authorising any person, or class of persons, to attend the hearing or a part of it; or
(b) excluding any person, or class of persons, from attending the hearing or a part of it.
There is an exception to the general rule in relation to committal proceedings which means that the general rule does not apply to proceedings for committal. By virtue of Rule 4.1(4):
(4) The general rule in paragraph (1) does not apply to a hearing for a committal order or writ of sequestration (in respect of which rule 21.27 makes provision).
The procedure and how this is applied in committal hearings is discussed in greater depth in chapter 5 of this guide.
Public hearings
Notwithstanding the general rule in Rule 4.1, the court has powers, under Rule 4.3, to direct that a hearing be heard in public rather than private.
COPR 4.3.—(1) The court may make an order—
(a) for a hearing to be held in public;
(b) for a part of a hearing to be held in public; or
(c) excluding any person, or class of persons, from attending a public hearing or a part of it.
This means that a judge in the Court of Protection can disapply the general rule and instead make an order under Rule 4.3 to hold a hearing or hearings in public.
As can be seen from Rule 4.3(1)(c), there is also provision for the court to control who is permitted to attend a hearing which is being held in public.
One of the consequences of a hearing being heard in public is that anyone attending that hearing will be privy to information from within the proceedings, some of which may be very private and confidential to the person who the case is about, or to the other parties involved.
Court of Protection cases, by their nature, involve very personal issues about the lives of the individuals on whose behalf the court is seized with making decisions.
The Court of Protection has the power to control what information from the proceedings is allowed to be published. Rule 4.3(2) provides for the making of orders to limit the publication of certain information.
Rule 4.3(2) says:
COPR 4.3(2) Where the court makes an order under paragraph (1), it may in the same order or by a subsequent order—
(a) impose restrictions on the publication of the identity of—
(i) any party;
(ii) P (whether or not a party);
(iii) any witness; or
(iv) any other person;
(b) prohibit the publication of any information that may lead to any such person being identified;
(c) prohibit the further publication of any information relating to the proceedings from such date as the court may specify; or
(d) impose such other restrictions on the publication of information relating to the proceedings as the court may specify.
Rule 4.3(3) allows for the court, by way of a practice direction, to set out the circumstances in which the court will make an order under Rule 4.3(1) i.e. that a hearing should be heard in public.
Rule 4.3(3) provides:
(3) A practice direction may provide for circumstances in which the court will ordinarily make an order under paragraph (1), and for the terms of the order under paragraph (2) which the court will ordinarily make in such circumstances.
These kinds of orders, known as transparency orders, are now made by the court in proceedings which are being heard in public, where the court wishes to control the information that is to be published or discussed in the public domain.
Practice Direction 4C – Transparency and transparency orders
Practice Direction 4C – Transparency[4], has been in effect since 1 December 2017.
This practice direction was introduced following a pilot of a transparency scheme, which commenced on 29 January 2016.
Under the pilot scheme hearings were held in public, with orders being made for restrictions on reporting to ensure the anonymity of the person the case was about, ‘P’ and, where appropriate, other persons.
Following the pilot scheme, PD 4C was implemented.
Paragraph 1.2 of PD 4C provides that this will apply to hearings in all proceedings except applications for a committal order.
Paragraph 2.1 of PD 4C provides that the ordinary position is now that hearings will be held in public i.e. without an application having to be made for a public hearing; with a transparency order being made to control the information that is permitted to be reported or published or discussed outside of the proceedings.
PD 4C:
2.1 – 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.
Paragraph 2.2 defines an “attended hearing”. It says that except where a practice direction provides otherwise, an “attended hearing” means a hearing where one or more of the parties to the proceedings have been invited to attend the court for the determination of the application.
A Dispute Resolution Hearing is not an attended hearing for this purpose.
Most hearings before the Court of Protection will be attended ones, and therefore by virtue of the application of PD 4C, will be heard in public and be subject to a transparency order unless the court has determined that the ordinary position should not apply.
There is scope, under paragraph 2.4 of PD 4C, for the court not to make an order under paragraph 2.1, i.e. that the hearing will be public but subject to a transparency order, and to instead consider whether it should make an order under Rule 4.3(1)(b) (that only part of the hearing should be in public) or Rule 4.3(1)(c) (excluding a person or class of persons from attending a public hearing or part of it).
The matters which the court will consider when deciding whether there is good reason not to make an order for the hearing to be in public and subject to a transparency order, and whether to make an order under Rule 4.3(1) (b) or (c) instead, are set out at paragraph 2.5 of PD 4C. This is set out in full below:
2.5. (1) In deciding whether there is good reason not to make an order pursuant to paragraph 2.1 and whether to make an order pursuant to paragraph 2.4 instead, the court will have regard in particular to—
(a) the need to protect P or another person involved in the proceedings;
(b) the nature of the evidence in the proceedings;
(c) whether earlier hearings in the proceedings have taken place in private;
(d) whether the court location where the hearing will be held has facilities appropriate to allowing general public access to the hearing, and whether it would be practicable or proportionate to move to another location or hearing room;
(e) whether there is any risk of disruption to the hearing if there is general public access to it;
(f) whether, if there is good reason for not allowing general public access, there also exists good reason to deny access to duly accredited representatives of news gathering and reporting organisations.
PD 4C provides that an order pursuant to paragraph 2.1 will ordinarily be in the terms of the standard order approved by the President of the Court of Protection and published on the judicial website.
The link from PD 4C does not currently take you to the precedent order. The court staff should have the template as this is usually issued at the outset of proceedings, when initial case management orders are made on an application.
The Senior Judge, Her Honour Judge Hilder, has recently confirmed[5] that the Rules Committee is currently reviewing the wording of the standard template transparency order, and so it may be that a new template will be published in due course.
The standard terms of the transparency order include an injunction prohibiting the publication of the information which the court has directed cannot be reported or disclosed.
Therefore, the transparency order must include a penal notice on the face of the order to make clear that a breach of the order would be contempt of court.
For any public hearing where there is in attendance someone who is not a party to the proceedings, P, or their legal adviser, they should be provided with a copy of the transparency order and asked to confirm that they have read and understood its terms. Ideally this should be done prior to the commencement of the hearing.
Practice Direction 4A
If an application is made for an order under Rules 4.1 to 4.3, where PD 4C does not apply, then this will be governed by Practice Direction 4A – Hearings (Including Reporting Restrictions) (PD 4A)[6].
PD 4A also deals with the procedure for applications for orders imposing different or additional restrictions on the publication of information to those imposed by a transparency order under PD 4C, including applications which are founded on P’s Convention Rights.
PD 4A provides that any application for a specific order under Rules 4.1 to 4.3 must be made on a form COP9 Application Notice. The court should then consider whether that application should be considered as a discrete issue.
If an application is being made to impose additional or different restrictions to the information that the court has already determined can be reported, then regard must be had to Part 2 of PD 4A.
By virtue of Section 12(1) of the Administration of Justice Act 1960[7], in respect of proceedings brought under the Mental Capacity Act 2005 where the court is sitting in private, the publication of information about those proceedings would be a contempt of court. However, Rule 4.2(1) provides that such information can be communicated if an order has been made under Rule 4.2(2). Rule 4.2(2) gives the court the power to make an order permitting the publication or communication of such information or material relating to the proceedings as the court may specify or an order permitting the publication of the text or a summary of the whole or part of a judgment or order made by the court.
Rule 4.2(3) also allows the communication of information from a private hearing, subject to the provisions of Part 3 of PD 4A. This includes, but is not limited to, for the purpose of allowing a party to obtain support or advice. Further exemptions allowing the communication of information relating to the proceedings are set out at Part 3 of PD 4A.
Where the court has made an order permitting the publication of information, there is no requirement to give notice that a reporting restrictions order is being made.
The exemption on the requirement to give notice does not apply where the court has already made an order permitting the publication of the information, and therefore where an additional order is sought restricting information that can be reported. In those circumstances, regard must be had to the requirements under section 12(2) of the Human Rights Act 1998[8] and the applicant seeking to restrict the freedom of expression must have taken all practicable steps to have notified the respondent(s) to that application or must be able to show that there is a compelling reason why notice should not be given.
Notice of an application must also be given in the following circumstances;
- if a party is inviting the court to impose restrictions or further reporting restrictions based on an application founded on P’s convention rights, or the court is considering doing so; or,
- if the Court has already ordered that proceedings should be in public and an application is being made to vary or increase the reporting restrictions already imposed.
PD 4A provides that this can be effected by serving notice of the application via the Press Association’s CopyDirect service.
Whilst the court retains the right to make such orders without notice, PD 4A makes it clear that service should be the norm.
As is noted at paragraph 27 of PD 4A, the aim of any reporting restriction order should be to protect P rather than to confer anonymity on other individuals or organisations, although it is noted that the order may also restrict the identification of others where the absence of such a restriction is likely to prejudice their ability to care for P, or where identification of such persons might lead to identification of P and defeat the purpose of the order. This is explored further in Chapters 3 and 4.
Paragraph 28 of PD 4A provides that orders will not usually be made prohibiting the publication of material which is already in the public domain, other than in exceptional cases.
At paragraph 29 of PD 4A it is confirmed that such orders should not last for longer than is necessary to achieve the purpose for which they are made.
Any application that is made for further reporting restrictions, or an order made by the court on its own initiative, which invokes P’s convention rights will involve a balancing of P’s rights under Article 8 (right to respect for private and family life) and the Article 10 (freedom of expression) rights of those who may wish to report information about the proceedings. This is considered in further chapters by reference to the case law in which this balancing exercise has been carried out.
Summary
Following the introduction of PD 4C the position is now that the court will ordinarily make an order that any attended hearing in the Court of Protection shall be in public, but subject to a transparency order which limits the information that can be reported.
This does not however remove the court’s power to hold a hearing in private.
The court will need to consider the factors set out at paragraph 2.5 of PD 4C when determining whether the proceedings as a whole or a specific hearing should be heard in private, rather than applying the ordinary approach.
Provision within the Rules also allows the court to make specific orders limiting the information that can be published both in hearings heard in private and those being heard in public.
In the next chapter we will look at specific case examples to consider how the court applies the considerations at paragraph 2.5 when determining whether a matter should be in private or public.
There is scope to interpret quite widely the prohibition on the disclosure of “any information” that might lead to the identification of P, a party to the proceedings, or anyone else the court has determined should not be identified.
What is clear from the case law is that there is a tension between the need to protect P and the parties to proceedings, including protecting their privacy, and ensuring that any prohibition on disclosure is proportionate to the infringement on the Article 10 rights of those who may want to report or discuss the facts of the case.
Another issue which has been raised, in the context of transparency orders, is whether the making of a transparency order requires the court to undertake a Re S type balancing exercise (see below) as between the Article 8 rights of P and the Article 10 of the public and the press, when making such an order.
As is noted above the introduction of PD 4C has meant that the court will now ‘ordinarily’ list a hearing in public and at the same time make an order under Rule 4.3 (i.e. a transparency order) to prohibit the reporting of the information listed in the transparency order.
In his decision in the matter of Re EM [2022] EWCOP 31 (29 July 2022)[9], Mr Justice Mostyn expressed some concern about this approach, on the basis that such orders will be made routinely and therefore without the carrying out of the Re S type balancing exercise required when making an order which restricts what information can be reported/disclosed from proceedings.
Mr Justice Mostyn suggested that the Rules Committee may wish to consider the standard practice of making transparency orders. As noted above, the Rules Committee is reported to be reviewing the standard wording of transparency orders. It is not known whether this will extend to addressing the points made by Mr Justice Mostyn about the making of transparency orders in standard terms, which continues to be the practice.
In the matter of Hillingdon Hospitals NHS Foundation Trust v IN & Ors [2023] EWCOP 32 (21 July 2023)[10], Mr Justice Poole considered the matter of the transparency order, confirming that he agreed with the analysis of Mr Justice Mostyn that the transparency order is a form of reporting restrictions order. He noted in the judgment that although the transparency order allows the proceedings to be heard in public, it also restricts what can be reported. As such, applying the authorities, including the decision of the Court of Appeal in Abbasi v Newcastle Upon Tyne Hospitals NHS Foundation Trust and Ors [2023] EWCA Civ 331[11] and PD 4C, the conclusion of Mr Justice Poole was that when considering whether to make a transparency order the court must still carry out the balancing exercise described by Lord Steyn in Re S [2004] UKHL 47[12]; i.e. balancing the competing Article 8 and Article 10 convention rights. The application of this balancing exercise is considered in the following chapters, by reference to the case law.
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[1] https://www.legislation.gov.uk/uksi/2017/1035/contents
[2] https://www.legislation.gov.uk/ukpga/2005/9/contents
[3] Rule 1.2 addresses the participation of P in Court of Protection proceedings and provides for the appointment of an accredited legal representative or a representative to address the matters set out in section 4(6) of the Mental Capacity Act 2005.
[4] https://www.judiciary.uk/wp-content/uploads/2022/09/pd-4c-transparency-1.pdf
Per Her Honour Judge Hilder in the decision in VS: https://www.bailii.org/ew/cases/EWCOP/2024/6.html
[6] https://www.judiciary.uk/wp-content/uploads/2022/09/pd-4a-hearings-reporting-restrictions.pdf
[7] https://www.legislation.gov.uk/ukpga/Eliz2/8-9/65/contents
[8] https://www.legislation.gov.uk/ukpga/1998/42/contents
[9] https://www.bailii.org/ew/cases/EWCOP/2022/31.html
[10] https://www.bailii.org/ew/cases/EWCOP/2023/32.html
[11] https://www.bailii.org/ew/cases/EWCA/Civ/2023/331.html
[12] https://www.bailii.org/uk/cases/UKHL/2004/47.html