Saturday 14 May 2011

Court of Protection .... is for the weak and vulnerable not the rich and famous

Over recent weeks, there has been massive coverage of the use of injunctions to protect the private lives of various "celebrities" - (who can afford to bring these cases to court).  Then there has been the case in the European Court of Human Rights of Moseley v U.K. which is discussed on the UK Human Rights blog and by Head of Legal.  Mr. Moseley lost his argument that the European Convention required him to be notified in advance of any plan to publish items concerning his private life.

Far removed from these high profile cases are some profoundly difficult and sensitive cases coming before the Court of Protection.  One such case concerns a lady - (who must be known only as M) - who was admitted to hospital in 2003 suffering from brain stem encephalitis and is now in a "minimally conscious state."  M's family consider that M would not wish to continue living in her current state.  M's mother (W) applied to the Court of Protection for a declaration that M lacks capacity to make decisions as to her future medical treatment and that treatment may be lawfully discontinued.

Proceedings in the Court of Protection are normally
in private but the court may order an open hearing.  Furthermore, reporting restrictions can be applied.  These matters were addressed by Baker J in W v M, S, an NHS Trust and Times Newspapers [2011] EWHC 1197 (COP) which is considered in an article published by the Solicitor's Journal.  Baker J has given the strongest endorsement to statutory rules that if a Court of Protection hearing is held in public, it should be accompanied by far-reaching reporting restrictions protecting the confidentiality of those involved.  The judge has ordered that no commentary must lead to the identification of M or others involved (e.g. the NHS Trust treating her).   The case comes to a final hearing before Baker J in July and judgment will be given in open court.

Just like the "celebrity" injunction cases, this case also highlights the tension between the right to respect for private and family life (art. 8) and freedom of expression (Art 10).  A patient and his or her family must be permitted privacy during the distressing times of illness from which there is little to no hope of recovery.  Nevertheless, there is a public interest in the process by which decisions about withdrawal of life support are made.   The right balance has undoubtedly been struck here.   The Court of Protection is, as Baker J put it, concerned with the "weak and the vulnerable and not the rich and the famous."

1 comment:

  1. Following on from the report in the Telegraph yesterday about my breaking the super injunction in relation to ZAM v CFW and TFW [2011] EWHC 476 (QB), the Sunday Times is covering the story.