Re EM [2022] EWCOP 31 (29 July 2022)

Background

This was a judgment principally considering issues of capacity to conduct proceedings and make decisions about EM’s medical treatment, care and residence.

Those issues will not be considered in any detail here but instead the focus will be on the ancillary judgment made by Mr Justice Mostyn considering the minimum degree of participation that must be afford to an individual such as EM on an application which asks the court to authorise the deprivation of his liberty.

Mr Justice Mostyn also considered two further issues: i) the anonymisation of orders and ii) the technical correctness of the standard form Transparency Order.

The Law

The key provisions relating to the participation of P can be found in:

1.???Section 1(5) Mental Capacity Act 2005 (MCA) – “a decision made on behalf of an individual who lacks the mental capacity to make that decision (known for the purposes of the MCA 2005 and COPR as “P”) must be taken in his best interests.”?To that end, the person conducting the best interests analysis must take the following steps:

a.???“(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

b.???He must consider, so far as reasonably ascertainable:

?????????????????????????????????????????i.???The person’s past and present wishes and feelings (and, in particularly, any relevant written statement made by him when he had capacity”;

???????????????????????????????????????ii.???The beliefs and values that would be likely to influence his decision if had capacity;

??????????????????????????????????????iii.???The other factors that he would be likely to consider if he were able to do so

2.???Rule 1.2 Court of Protection Rules 2017 (COPR) (headed “Participation of P”) sets out the procedural mechanism

3.???Rule 1.2 COPR is supplemented by Court of Protection Practice Direction 1A on “Participation of P”.

4.???Case law can be found in matters including Cheshire West and Chester Council v P and Another [2014] UKSC 19, Re X [2014] EWCOP 25, Re X (No2) [2014] EWCOP 37, Re X [2015) EWCA Civ 599, The Health Service Executive of Ireland v CNWL [2015] EWCOP 48, Re NRS [2015] EWCOP59, Re JM and Others [2016] EWCOP 15 and Re KT and Others [2018] EWCOP 1.

Findings

Participation of P

The fundamental rule in relation to the participation of P is:

1.???Subject to the exception in (2), where an application is made which seeks the deprivation of P’s liberty, P must be joined as a party to the proceedings and a litigation friend (or an accredited legal representative) must be appointed to act for P.

2.???The exception referred to in (1) is where an interim order is very urgently needed and there is just not enough time to secure P’s representation before the hearing.?But at the hearing P’s representation at future hearings must be enabled.

Anonymisation of orders

Mr Justice Mostyn expressed concern in his judgment in J Council v GU and Others [2012] EWCOP 3531 (with similar concerns raised by Mr Justice Munby in HM (An Adult) [2010] EWHC 1579) that the anonymisation of parties caused confusion and also “dehumanises the participants”.?Notwithstanding these concerns, orders continue to be anonymised which Mr Justice Mostyn states “is a terrible practice” and he “cannot identify any justification for this practice”.?For the avoidance of doubt, this does not extend to public judgments.

Transparency orders

Mr Justice Mostyn expressed concern that the transparency order made in this matter may not be technically sound for two reasons: i) the order was made in the absence of a Re S-type balancing exercise, balancing the Article 8 ECHR rights of EM with the Article 10 ECHR rights of the public at large, exercised via the press; and ii) notice of the intention to seek the order had not been given to the press pursuant to s12(2) HRC 1998.

His reasons were are follows:

i)?????????????Rule 4.1(1) of the COPR provides that the "general rule is that a hearing is to be held in private". The rest of Rule 4.1 says nothing about what can be reported about such a hearing. It prevents a journalist attending the hearing, but its terms do not prevent any party talking to a journalist or that journalist subsequently writing a report.

ii)???????????Section 12 of the Administration of Justice Act 1960 imposes a blanket ban on reporting proceedings brought under the Mental Capacity Act 2005, but r.4.2 COPR and Practice Direction 4A allow, for the purpose of the law of contempt, certain disclosures to be made.

iii)??????????Rule 4.3(1) and (2) COPR supplies the court's power to order that a hearing be held in public and, consequentially to that order, to impose reporting restrictions.

iv)???????????Rule 4.3(3) provides that "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."?(emphasis added)

v)????????????Practice Direction 4C has been made under r4.3(3).

vi)??????????Reporting restriction orders can only be made following a court conducting the 'ultimate balancing exercise' between Article 8 and Article 10 ECHR rights as described by Lord Steyn in?Re S (a child)?[2004] UKHL 47 ;?[2005] 1 AC 593 .

vii)??????????There is no sidenote in the standard order template saying that a?Re S?balancing exercise must be undertaken, such as to prompt the judge to turn his or her mind to that exercise. Nor was there any statement in the specific order of Keehan J dated 1 July 2022 that this exercise had been actually undertaken.

viii)????????Save where there are compelling reasons why the press should not be notified, a reporting restriction order can only be made after all practical steps have been taken to give the press notice of the intention to seek such an order. But there is no provision to this end in r.4 COPR or PD4C. Such notification is required pursuant to s12 HRA 1998.

ix)??????????There is no rubric or sidenote in the standard order template saying that the press must be notified prior to the order being made, nor is there any statement that this occurred in the order of Keehan J dated 1 July 2022.

This was considered from para 43 as follows:

1. ?Plainly, on 1 July 2022 the media were not notified that a reporting restriction order was being considered. It is equally clear that a?Re S?balancing exercise undertaken was not undertaken. Had these steps been taken the order would have said so on its face. It is, however, a standard practice, condoned by r.4 COPR and PD4C, not to take these steps. That being so, I respectfully suggest that the correctness (I hesitate to use the word lawfulness) of this standard practice is reviewed by the Rule Committee with input from all relevant stakeholders.
2. One possible way of resolving the problem might be to leave the proceedings to be heard "in private" but to make a standard order at the beginning of the case which relaxes the strictures of section 12 of the 1960 Act by permitting the press and legal bloggers to attend the hearings and allowing them (and the parties) to report the proceedings provided that they do not identify P directly or indirectly (see?Norfolk County Council v Webster & Ors?[2006] EWHC 2733 (Fam) ?where an equivalent order was made). In my opinion such a permissive order would?not?be a reporting restriction order, and therefore would?not?trigger the requirement to undertake a?Re S?balancing exercise in every case. Nor would such an order spark the requirement to notify the media of the intention to seek the order under s. 12(2) of the HRA 1998.
3. I recognise, however, that in?Webster?at [77] Munby J thought that such a permissive order did trigger a requirement to undertake a balancing exercise. Further, at [121] he considered that an order which permitted the press to attend the hearing would mean that the proceedings were not "in private". If that were so then it would follow that the permissive order would certainly be characterised as a reporting restriction order, which would bring into play s. 12(2).
4. I leave it to others to determine if those views are correct.

The full judgment can be found at https://www.bailii.org/ew/cases/EWCOP/2022/31.html