Court of Protection proceedings are typically subject to Transparency Orders.
What are Transparency Orders?
Transparency Orders restrict/limit the disclosure of proceedings details (including the identity of the parties involved) with a view to safeguarding the privacy of the protected parties. This is necessary in the Court of Protection as the cases revolve around vulnerable persons who have been assessed to lack the mental capacity to make the specific decision in question, concerning either their Health and Welfare or property and Finances. The Mental Capacity Act 2005 deems a person will lack capacity when they are unable to:
- Understand the relevant information about the decision;
- Retain the information long enough to make a decision;
- Weigh up the information as part of the decision-making process; and
- Communicate their decision.
Transparency Orders will prevent the details of the proceedings from being disclosed to individuals not involved in the case. It may however allow for Judgments to be published subject to the party’s details being made anonymous. This allows the Court of Protection to balance the interests of the protected person but also that of open justice. Open justice is fundamental in the English legal system with a view to ensuring fairness and promoting consistency throughout the Courts.
There may be occasions where it becomes necessary to exempt certain activities from a Transparency Order. For example, when disclosing details of a case to third parties when seeking expert advice or assistance for the Protected Party. Any exemption sought must be approved by the Court of Protection and will only be allowed when it remains within the best interests of the Protected Party. The recent case of The BBC v Cardiff Council and others demonstrates the Court of Protection’s approach when considering an application to lift a Transparency Order.
Auckland Broadcasting Corporation v Cardiff Council & Ors [2024] EWCOP 50
Facts
This case concerned an application made by the BBC to exclude the effect of the Transparency Order over proceedings concerning MC (the Protected Party) for the purpose of a documentary. This application was supported by MC’s mother who hoped the documentary would shed light on the difficulty MC has faced and enable him, and others in similar situations, to be able to get the help that they need. In support of the application, the Court of Protection heard evidence from the BBC as to the proposed disclosure of MC and his case, and evidence from MC’s psychiatrist.
In considering the evidence, the Court of Protection weighed up MC’s right to a private life, as protected by Article 8 of the Human Rights Act 1998, in comparison to Article 10, the right to freedom of expression. The Judge was required to ensure that, if the application was allowed, MC’s right to a private life would be balanced alongside the right to freedom of expression. The Judge accepted that there may be some benefit in disclosing details of MC and his case within the documentary, being the positives set out by MC’s mother.
The Judge however noted the impact this may have on MC, despite the possibility of him agreeing to the documentary, in that MC’s care was delicate and significant progress had been made and disclosing details now may have an adverse impact on MC and his care. This adverse impact would likely be long lasting throughout MC’s life. The Court of Protection therefore concluded that MC’s right to a private life on this occasion, outweighed the right to freedom of expression. The application made by the BBC was therefore dismissed as this was not viewed to be in MC’s best interests.
Comment
This case again confirms that the Court of Protection endeavour to make decisions based on a Protected Persons best interests. Whilst lifting the Transparency Order in this case may have afforded a benefit to MC, the risk far outweighed that possibility and accordingly, the Transparency Order was to remain in place.
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