Generally, any hearing that takes place within the Court is done so by providing notice to all parties to the proceedings and all parties being notified of any outcome or decision. The recent case of Re A (Covert Medication, Closed Proceedings), [2022] EWCOP 44 within the Court of Protection has offered further guidance on when it may be acceptable for a closed hearing to take place, i.e. a hearing which not all parties are notified of.
Background to the case
This case involved a teenager (“P”) who required specific medication due to her medical diagnosis but did not consent to the treatment. P’s mother also objected to the medication being administered and was supportive of her daughter’s decision.
P was deemed to lack capacity to understand the consequences of refusing medication and the Court found it to be in P’s best interests to receive the treatment. The local authority applied to the Court without notifying P’s mother and a hearing was held without P’s mother participating. An Order was made by the Court within this hearing to authorise P’s carers to administer P’s medication to her via her food so that she would be unaware. It was also decided that P’s mother would not be notified of this decision.
Guidance as to when a closed hearing is acceptable.
The Court of Protection’s primary function is to make decisions in an individual’s best interests where that person lacks the capacity to make the decision for themselves. The Court can therefore authorise in exceptional circumstances for a hearing to take place without the involvement of specific individuals if it deems that the best interests decision may be undermined or compromised by the involvement of that party.
Mr Justice Hayden offered the following guidance within this case:
- The starting point of every application and hearing is that all parties have the opportunity to participate and have sight of all documents which the Court have to consider
- The Court may consider it necessary for a closed hearing to take place if it deems it to be appropriate to protect P’s rights under the Human Rights Act or for any other compelling reason.
- Any restriction of ‘open justice’ must be limited to what is only ‘strictly necessary’ and no more than this.
- The closed hearing must be a last resort and the onus is on the party seeking a closed hearing to show that it is justified and no other options would suffice in the circumstances
- The Court must balance the rights of all the parties to be involved in the hearing against the protection of the individuals best interests.
Comment
The guidance allows for clearer understanding as to when a closed hearing may be necessary and justified within certain proceedings in the Court of Protection. This may allow for future applications to be bought to the Court for a closed hearing to take place however it is not clear yet as to whether this judgement has created any influx of such applications.
If you are concerned that someone you know lacks capacity in relation to their finances or welfare or you need help within Court of Protection proceedings, please get in touch with our Court of Protection team on 0344 326 0049 to discuss how we might be able to assist.