Independent News and Media Ltd and Others v A
| Jurisdiction | England & Wales |
| Judge | THE HON. MR. JUSTICE HEDLEY |
| Judgment Date | 12 November 2009 |
| Neutral Citation | [2009] EWHC 2858 (Fam) |
| Docket Number | Case No: COP 11647854 |
| Court | Family Division |
| Date | 12 November 2009 |
[2009] EWHC 2858 (Fam)
The Hon. Mr. Justice Hedley
Case No: COP 11647854
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Gavin Millar, Q.C. and Ms Barbara Hewson
(instructed by Irwin Mitchell Solicitors) for the Respondent
Hearing dates: 5 th– 7 th October 2009
INTRODUCTION
This case concerns a young adult known as 'A' who is severely disabled, resulting in severe learning difficulties which render him incapable of making decisions as to any significant issue in his life. He is and is likely to remain dependant on others for his care and he is currently cared for in accommodation provided and managed by a national charity. However, he also possesses remarkable gifts and the practice of those have brought him to public, indeed international, attention.
The practice of these gifts brings very substantial personal and financial consequences and raises issues which will require careful and disinterested decision-making to be made on his behalf in the future. Moreover, the question as to the extent he can make his own decisions will itself need to be kept under careful review as such decisions will carry significant personal and financial implications. All those matters have of course to be set in the context of the proper provision of his care needs.
It is therefore unsurprising that these matters are the subject of consideration by the Court of Protection. Such proceedings inevitably involve his close family, the current care providers and no doubt others who may have a legitimate interest in his future. It is equally unsurprising, given the public interest that has been generated by his story and his public exploits, that the media have become aware of these proceedings and have shown a close interest in them.
This application in made by certain named media institutions and companies (whom for convenience I will describe as 'the media') for permission to attend the hearings in the Court of Protection and to report those proceedings including, of course, the identification of 'A'. They have been jointly represented by Mr. Guy-Vassall Adams of counsel. 'A''s family have decided, for reasons set out in an affidavit (and which seem sound to the court), to maintain a neutral stance on these applications, but they are opposed by the Official Solicitor, acting as 'A''s Litigation Friend, represented by Mr. Gavin Millar, Q.C. and Miss Barbara Hewson. This application itself has by order of the court been heard in public subject to a general undertaking by the media which restricts the matters that can in fact be reported. I shall therefore seek so far as possible to avoid reference to detailed matters which may in themselves tend to identify 'A'.
THE COURT OF PROTECTION
The Court of Protection, in its current form, was created by the Mental Capacity Act 2005. It has its own rules and its own judiciary, though all those nominated as Judges are appointed under the general law, and may sit in other courts. It has very wide powers to deal both with the person and property of those who lack capacity to make decisions for themselves. Early indications suggest that considerable use is being made of the court and, whilst much of its business will comprise matters of interest only to the family concerned, it is likely that some exercise of its powers, for example, in relation to the giving or withholding of medical treatment or deprivation of liberty by removal to a care home will raise matters of genuine public importance and concern.
The State has historically always assumed some responsibility for those who lack capacity to manage their own affairs. The Court of Protection has long provided an essentially administrative function in the management of the property of those who lack capacity. Originally presided over by the Master in Lunacy (an expression regularly found in the old cases), it developed a very considerable experience both in the cautious management of property and in the oversight of those who by virtue of Powers of Attorney exercised the management of the affairs of those who lack capacity to manage their own.
The Court of Protection did not have powers over the person of those who lacked capacity. The Mental Health Act 1959 (and its predecessors) had regulated in statute the powers of the State in respect of those who fell within the definitions in that Act. There remained, however, a group of people who were not covered by those Acts but who nevertheless lacked capacity. The Family Division, exercising the inherent jurisdiction of the High Court, sought in the latter part of the last century to develop remedies to meet the needs of those who fell into this group. Many of the principles and procedures so developed are now replicated in the Mental Capacity Act 2005 most especially the need to act in the best interests of the incapacitated person. That Act now effectively replaces the old administrative functions of the Court of Protection and the parallel exercise of the inherent jurisdiction with the new statutory Court of Protection.
As will become apparent, Parliament was clearly exercised about the question of privacy so far as the new Court was concerned. Although it is wholly distinct from the Family jurisdiction, the problems of privacy and public interest in its proceedings and the actual exercise of its very wide powers were not dissimilar. This case provides the court with its first opportunity to reflect on those problems and the tension between the essentially private nature of the subject matter of the proceedings and the legitimate public interest in the practice and exercise of the powers of the new Court. It does so in the context of a person of whom much is already known by the public and whose story has an almost irresistible attraction to it.
The Mental Capacity Act 2005 is intended to provide what is effectively a complete code for dealing with issues of capacity subject essentially only to the Mental Health Acts. It provides the principles upon which the jurisdiction is to be exercised, defines the issue of capacity and makes detailed provision for the definition and exercise of the powers conferred by the Act. Whilst no doubt it may be necessary to refer to earlier decisions made under the pre 2005 legal regimes, it will be important to bear in mind that matters relating to those who lack capacity are intended to be regulated by a new Statute.
Part 2 of the Act creates the new Court of Protection. Section 51 provides for the making of Rules of Court and Section 51(2) indicates the potential subject matter of those rules. Section 51(2)(h) is in these terms –
"for enabling or requiring the proceedings or any part of them to be conducted in private and for enabling the court to determine who is to be admitted when the court sits in private and to exclude specified persons when it sits in public."
It is therefore apparent that the Legislature was alert to the issue of sitting in public or private and contemplated that both may in due course be permitted or indeed required. The Rules, to which I must now turn, were a direct response to the specific concerns of Parliament.
PART 13: COURT OF PROTECTION RULES 2007 (51 2007/1744)
The relevant Rules are 90–93 supplemented by a Practice Direction PD13A. It is necessary to set out in full the terms of Rules 90–93.
General rule – hearing to be in private
90.(1) The general rule is that a hearing is to be held in private.
(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;
(d) any legal representative of a person specified in any of sub-paragraphs (a) to (c); and
(e) any court officer.
(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.
Court's general power to authorise publication of information about proceedings
(1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private may be published where the court makes an order under paragraph (2).
(2) The court may make an order authorising—
(a) the publication of such information relating to the proceedings as it may specify; or
(b) the publication of the text or a summary of the whole or part of a judgment or order made by the court.
(3) Where the court makes an order under paragraph (2) it may do so on such terms as it thinks fit, and in particular may—
(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.
Power to order a public hearing
Court's power to order that a hearing be held in public
92.(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...
To continue reading
Request your trial
-
British Broadcasting Corporation and another v Sugar (No 2)
...which are held for journalistic purposes. 95 True it is, as Lord Judge CJ noted when giving the judgment of the Court in Independent News and Media Ltd v A [2010] 1 WLR 2262 (para 42), that the Venice Commission has described Tarsasag as "a landmark decision on the relation between freedom......
-
M.R and Another v an tArd Chlaraitheoir and Others
...NEWS & MEDIA LTD & ORS v A 2010 1 WLR 2262 2010 3 AER 32 2010 EMLR 22 2010 EWCA CIV 343 INDEPENDENT NEWS & MEDIA LTD & ORS v A 2009 1 MHLR 336 2010 1 FLR 916 2009 EWHC 2858 (FAM) EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8 EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMEN......
-
B (A) v D (C)
...ILRM 449 STATUS OF CHILDREN ACT 1987 S36(4) INDEPENDENT NEWS & MEDIA LTD & ORS v A 2010 1 WLR 2262 INDEPENDENT NEWS & MEDIA LTD & ORS v A 2010 1 FLR 916 MENTAL CAPACITY ACT 2005 (UK) PART 2 P (M) v P (A) 1996 1 IR 144 D (R) v DISTRICT JUDGE MCGUINNESS 1999 2 IR 411 X (D) v JUDGE BUTTIMER U......
-
Re M (A Patient) (Court of Protection: Reporting Restrictions)
... ... be in open court but imposing reporting restrictions and prohibiting media contact with family and carers - Media challenging scope of order - ... H v News Group Newspapers Ltd [2011] 1 WLR 1645, CA distinguished. Where, ... cases in the Queens Bench Division, in which celebrities and others seek to restrain publication concerning their private lives, are unlikely ... [2011] EWHC 413 (COP) ; [ 2011 ] MHLR 89 ; 14 CCLR 239 Independent News and Media Ltd v A [2010] EWCA Civ 343 ; [ 2010 ] 1 WLR 2262 ... ...