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13 March 2023 | Comment |

Anonymity in the Court of Protection

The team looks at the Court of Protection’s recent approach to anonymity in Health and Welfare cases.

The recent case of Sunderland City Council v Macpherson [2023] EWCOP 3 has once again considered the issue of anonymity within the Court of Protection.

In this case, rather than the focus predominantly being on the protected party (commonly known as “P”), the issue was whether the anonymity of her mother should remain and, in turn, whether there was a risk of P’s own identity being revealed as a result.

There are good reasons for protecting P’s anonymity in Court of Protection proceedings, such as an invasion of privacy, P’s lack of capacity to consent to details about their personal or private life being disclosed or the impact such publicity may have upon their wellbeing or mental state.

This long-established restriction is seldom lifted. The recent case of PH v Brighton and Hove City Council and others v British Broadcasting Corp and another [2021] EWCOP 63 in one of only a handful of examples where the Court of Protection has permitted P’s anonymity to be lifted.

In that case, P had been detained for over 20 years necessitating the need for open and public debate on an informed basis. HHJ Hilder essentially agreed that, to learn and evolve, public decision-making bodies needed to know that the matter required the Court of Protection’s involvement. In essence, there was a public interest in disapplying reporting restrictions. That is not to say that P’s best interests and the risks of that reporting were not properly considered; those risks were simply deemed to be very low, and P’s situation had already been widely reported (without reference to the Court of Protection proceedings).

Relaxing anonymity provisions is a balancing exercise between Articles 8 and 10 of the European Convention on Human Rights (the right to privacy and freedom of expression respectively). Sunderland City Council v Macpherson considered those very same rights.

Perhaps ironically, in this more recent case, those rights were considered because P’s mother breached an injunction preventing her from publicising any aspects of that case or of any recording of P or her care on any social media platforms. Despite that, P’s mother repeatedly published videos of P and her care, and details of the proceedings on Twitter, Facebook and YouTube. She was therefore in contempt of court which can carry a maximum sentence of two years’ imprisonment.

While allowing P’s anonymity to be lifted by identifying her mother would grant the latter what she had sought, in breach of the original injunction, it would, the judge considered, facilitate a competing public interest in identifying a defendant in contempt of court rather than risk public distrust in the Court of Protection if an unidentified party to proceedings was imprisoned.

Similarly to PH v Brighton and Hove City Council and others v British Broadcasting Corp and another, the risks to P and her best interests were carefully and thoroughly considered, and the judgment clearly reflects this. Again, the risk to P here was low as she had limited contact with others. The court therefore permitted her mother’s name to be reported.

In short, the court took the view that the lesser of the two “evils” was to identify the mother and the reasons for the court’s decision in the hope of extinguishing or at least dampening any negative publicity or distorted reporting based on P’s mother’s home videos.

Identifying and imposing a criminal sentence on P’s mother arguably eases the strain on the healthcare professionals subject to her mother’s unfounded allegations in caring for P. P’s mother was sentenced to five concurrent terms of 28 days’ imprisonment, suspended for 12 months. Such a sentence may also serve to restore public faith in the care provided to vulnerable individuals.

It is clearly a good thing that Court of Protection cases can sometimes be published, balancing the need to protect P’s best interests with the public’s need to understand and have confidence in the court’s decision-making process. It is equally a good thing that in 99.9% of cases P’s anonymity is protected and only released in very exceptional circumstances with her best interests at the forefront of any decisions taken in that regard.

On the other hand, the more recent decision of A Local Authority v. H (by her litigation friend, the Official Solicitor)[2023] EWCOP 4 relating to P’s sexual identify and preferences demonstrates why, in the majority of cases, the court will usually favour anonymity. Indeed, leave for judgment to be published in that case is on the condition that any published version of it, the anonymity of P and members of their family must be strictly preserved. Anybody, including representatives of the media, will be in contempt of court should they fail to ensure that condition is strictly complied with.

Our Private Wealth Disputes Team provides specialist advice to families and individuals on wills, trust and estate disputes.

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