After lengthy correspondence the Court of Protection Rule Committee have released their meeting minutes to the mouseinthecourt. The committee was described by the then vice-president Mr Justice Hayden as “the operational spine of the court“.
They provide a fascinating insight not only into being able to see what was discussed but also conversely what isn’t.
As part of an ongoing project looking at the transparency of decision making in the justice system, the mouseinthecourt has been examining the work of the various rule committees.
There is a demonstratable public interest in revealing how, why and by whom procedural decisions are made. It ties into the principle of Open Justice which “lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.“
This site has made available the minutes from 14th February 2019 onwards in the CoP section of the Rule Committee page. Some are still missing and we have been told efforts are underway to located these and provide minutes from earlier meetings.
We’ve assembled a few of what we consider to be the most pertinent points:
Jurisdiction
Feb 2019: Hayden J “was adamant that the Committee should have a long overdue statutory authority“. Eg see the legislation vis a vis the Civil Procedure Rule committee.
Hayden J “failed to see why an amendment could not be included in the MCA (Amendment) Bill currently before Parliament“
MoJ said they “had been advised that this was out of scope as the Bill focussed on deprivation of liberty.“
Hayden J replied that “that this response appeared to reflect a complete misunderstanding of the significance of the rules and their integral relationship to deprivation of liberty issues.“
In June 2019 we’re told that Hayden J: “advised the group that he and the President had met Minister Argar in March and that he had taken the opportunity of supplying the Minister with a copy of the draft framework for the rule Committee. He felt that the Minister was sincere in stating that he was determined to find parliamentary time for the proposed legislation as the case for the statutory committee was compelling“
Dec 2019: Hayden J “explained that there is a desire for the Rule Committee to become statutory“
Oct 2021: Hayden J has “throughout the last 18 months has spent a lot of time explaining to the senior judiciary that CoP is not an annex of the family court. Especially with the appeals system, lay litigants and some judges don’t know what the appeal route for a tier 2 decision is. There is a clear need to differentiate between the family division and CoP.“
July 2022: Hayden J “iterated the wish to request putting this Rule Committee on a statutory footing, he conveyed that he perceives resistance from MoJ, and questioned why the matter was still in question.
MoJ will continue to put in bids for this. Joseph O’Brien iterated he and colleagues had drafted the request approx. 4 years previously.“
The negatives
April 2021: “The fact that this achievement continues to be marred by the I.T. system at First Avenue House, should not eclipse the real achievements of all. The VP advised that he would continue to raise this point at every opportunity as something needs to be done about the system.“
April 2022: Hayden J “has sat on circuit and has noticed a continued exhaustion amongst judges with moral being low. The VP made a call to committee members on any ideas on how to solve and manage this.“
The positives
Feb 2019: Hayden J “advised that having recently been in Brussels, he could report that there was a healthy and strong respect for the Court.“
June 2019: Hayden J “went on to tell the minister [Edward Argar MP] of his admiration for how the judges and staff at First Avenue House coped with the volumes and that the court is effectively fire- fighting“
Dec 2019: Hayden J “was extremely impressed by the large amount of work done [by the committee] since” the last meeting.
“Since taking up his post, [Hayden J] said that he has been overwhelmed by the commitment and skill of all those he works with. The enthusiasm and commitment is very impressive, demonstrated by the amount of work that has been done since the previous meeting. He thanked everyone for their hard work and attendance.“
Nov 2020: Hayden J “took pride in what the Court has been able to achieve despite the pandemic and that no Tier 3 case has had to be adjourned as a result. Both Tier 1 and 2 have been similar...The Court has generated a volume of case law at Tier 2 and 3 that would make it busy at any time. The VP is very grateful to judges that have been able to generate judgements in this way.“
Hayden J: “the creation of the HIVE group was a moment of inspiration and that it has been a significant support throughout the pandemic. It will certainly be continued.“
April 2021: Hayden J “had taken every opportunity, during the last few months and at various meetings, to pay tribute to all the judges at the Court of Protection and all those that work within the court. The VP explained that it wasn’t an overstatement in this case to say that the CoP was a world-beater and that this was evidenced by the facts, as there are no delays or backlogs in Tier 3, Tier 2 and Tier 1, which was an astonishing achievement.“
Oct 2021: Hayden J reports that “the CoP has done extraordinarily well over the past 18 months. It is overperforming all the courts in UK by having every case that has gone to a judge being heard. This is down to the commitment from the Bar, the way they have been able to adapt their advocacy to video conferencing platforms and down to the judges. Unfortunately, CoP was not included in the Coronavirus Act which means how a case is heard is down to the discretion of the judge.“
Jan 2022: Hayden J “continued to praise how well CoP have been performing compared to other courts. This can be seen by the fact that CoP have zero backlog of health and welfare cases and with this performance the court has escalated very considerably in public awareness. The VP hopes that this will help attract more silks to CoP work and overall gain more resources.“
July 2022: Hayden J “thanked the Committee for their commitment to, and enthusiasm for the Rule Committee Meetings“
Feb 2023: Hayden J “thanked the High Group, and the staff of First Avenue House for their incredible work throughout the pandemic.“
Transparency orders
Feb 2019: “Lorraine Cavanagh raised the issue of transparency and the notice given to the public when attending a CoP hearing and the distress caused when reading the penal notice.”
David Rees KC “advised that this had been the subject of great discussion in the committee in 2016. The difficulty that we have is that the CoP is not covered by the Criminal Courts Act which provides a specific offence of divulging proceedings. The Notice handed out in the CoP was devised to substitute for the lack of CoP specific legislation. To introduce this for the CoP would require primary legislation.“
Hayden J “appreciated that the committee had already spent a vast amount of time considering this and suggested that it be parked for now but raised the possibility of whether the issue could be covered in the Code of Practice or in a court leaflet. He advised Committee members to contact him personally if they had any issues with this.“
Dec 2019: Hayden J “expressed that the order used for entry to the Court of Protection can be foreboding for those who are not lawyers. He is uneasy about the current process that seems disproportionate considering the numbers affected and would like the issue to be addressed in the next six months.“
Oct 2022: Alexander Ruck -Keene “Referred to EM 2020 (EWCOP 31) and Mostyn J’s concerns regarding the previous transparency orders in the case. In light of Mostyn J’s concerns the Committee was asked to consider whether the standard transparency order which dates from 2017, should be reviewed.“
Hayden J: “The suggestion of investigating competing rights as mentioned by Mostyn J is unworkable and therefore the court should continue as is.”
“Impenetrable hearings”
Nov 2020: Lorraine Cavanagh “shared that she has been contacted by Prof C. K. who wished to talk about impenetrable hearings and asked whether it would be possible to summarise in a paragraph what those sitting in on court hearings are not allowed to do. Judges are now reading out restrictions at the start of hearings but LC will redraft and circulate to see if agreement can be obtained.“
Hayden J “shared that judges have found accommodating Prof C.K and others via video conference difficult and stress inducing as it is not uncommon to have 30 to 50 people on the calls. However, we should remember what has been beneficial such as the significantly improved participation of P via video conferencing and being able to visit P when judges would not have had the time to before. The technology is not new and the VP questioned why this hadn’t been done before.
The VP noted that crowds attending court hearings may reduce once the furlough period ends.“
“Bruising experiences of misreporting”
June 2019: Hayden J “is conscious that Tier 3 judges have had bruising experiences of misreporting of remarks or judgments. He himself has been victim of this in a recent case. This does not happen in the Family Court because of the relevant orders that can be made.“
Oct 2022: Hayden J “advised that the recent judgement on covert medication has led to enquiries from Joshua Rosenberg and Louise Tickle regarding closed hearings. As a result, the VP has put together a document concerning public and private hearings. Which he sent to Joshua Rosenberg, who has found the document helpful.“
Joe O’ Brien “advised that there had been considerable comment on social media regarding the case, some of which had been inaccurate. He considered that there was need for a new debate around closed hearings.“
Reporting code of conduct
June 2019: “The question was raised as to what protection the Levenson codes gave to adults in CoP cases. LC advised that there are references to vulnerable adults but that the emphasis is on children. The Vice President queried whether the CoP was even considered when the codes were drawn up.“
“The Vice President suggested that he would like a working party to provide a draft code that parallels the one for children. LC volunteered and wondered if Brian Framer and a representative of the Transparency Project should be involved. ARK and J. O’B also volunteered. ARK suggested that Joshua Rosenberg might be a useful blogger to make contact with.“
Dec 2019: Lorraine Cavanagh and Joe O’ Brien: “have prepared a notice at the VP’s request. They have made a significant start to incorporate the protection of adults lacking capacity within the Editor’s (Media )Code. Following the Levenson Inquiry, the Family Division was included in the Code but there was no mention of the Court of Protection. It was felt that the Court of Protection should also be considered as it is very well known in some circles.“
Nov 2020: Lorraine Cavanagh “updated on projects that began prior to the pandemic. She explained that the press code sub-group. segmented the Media Code and set out desired changes for each chapter. There was a detailed debate about whether all circumstances would be inhibited by the initial clause in the Media Code and another meeting was planned to discuss. DR questioned whether the press would have to check the capacity of every member of a football team should they wish to take a picture of them and there were plans to fully consider this. Other priorities have resulted in the group not resuming but there are now plans to reconvene and progress.“
Fall-back to the Civil Procedure Rules
June 2019: “It was agreed that no amendment was necessary as in issues where the rules were silent they default to the CPR.“
Backlogs
Dec 2019: Hayden J “believes that as the profile of the Court is increasing, he will be asked to explain the backlogs [in non-contentious Property and Affairs Deputyship Applications] in the near future. He is open to suggestions about what can be done.“
Closed Court Hearing Guidance
Feb 2023: Hayden J “outlined a case in Nov 2022 where Mr Justice Poole had been running closed and open court proceedings in the same case, and the subsequent Open Justice and press coverage. The VP requested J. O’B and two others to form a sub-committee to look into guidance on closed hearings. The Committee received a submission from Professor Celia Kitzinger requesting press presence in closed CoP cases.
VP iterated this is not a proportionate measure; closed court should be kept closed for minimum period necessary for safeguarding. VP revealed the Sub-Committee all came separately to that same conclusion, and the response document is with the CoP President. VP will issue as guidance on 8th Feb.“
Note: You can read the background to this on the Open Justice Court of Protection website
Mouse in the Court 