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Court of Protection Update (September 2015)

Sally Bradley and Julia Townend, barristers of 4 Paper Buildings, focus on the applicable law and procedure pertaining to reporting restriction orders in the Court of Protection generally and further to the recent judgment in A Healthcare NHS Trust v P & Q.

Sally Bradley, barrister, 4 Paper BuildingsJulia Townend, barrister, 4 Paper Buildings















Sally Bradley and Julia Townend, barristers, 4 Paper Buildings

In this update we propose to focus on the applicable law and procedure pertaining to reporting restriction orders in the Court of Protection generally and further to the judgment of Newton J in A Healthcare NHS Trust v P & Q [2015] EWCOP15.

Facts in A Healthcare NHS Trust v P & Q
The subject of the proceedings was P. In November 2014 P had suffered a serious cardiac arrest which resulted in a severe hypoxic brain injury considered by medics to be severe and irreversible such that P would not regain consciousness. P was from then totally dependent on intensive care. P's family strongly disagreed with the medical opinion and recommendations.

The NHS Trust applied to the Court of Protection for:

The law and procedure: reporting restriction orders in the Court of Protection
At paragraphs 8 to 41 inclusive of his judgment in A Healthcare NHS Trust v P & Q, Newton J summarises the law and procedure pertaining to reporting restriction order applications in the Court of Protection.

The general principles might be summarised as follows:

The procedure for reporting restriction applications in the Court of Protection is set out in Practice Direction 13A of the Court of Protection Rules 2007. The authors' summary is as follows:

o The order must not be made where the person against whom the application is made is neither present nor represented unless the court is satisfied that the applicant has taken all practicable steps to notify the respondent or there are compelling reasons why the respondent should not be notified11.

o National newspapers and broadcasters should normally be informed of the application – orders without notice will be exceptional12. Notice can be effected by the Press Association's CopyDirect service (known as the Injunctions Alert Service) which will be responsible for notifying the individual media organisations13. The details can be found at paragraph 15 of Practice Direction 13A.

o The Press Association should generally be served with the application form/application notice seeking the restriction order, the supporting witness statement, any legal submissions in support and an explanatory note setting out the nature of the proceedings in the prescribed form14. Practitioners should ensure that the contents of the explanatory note do not breach any rule or order of the court in relation to the use or publication of information. If these documents are not served on the Press Association the applicant should ensure enough detail is provided to enable the media to make an informed decision as to whether it seeks to attend a hearing or be legally represented15. The court may dispense with any of these requirements. Equally the court may give notice of its own initiative to the national media, and send such information as it considers necessary.

The general question for the court in A Healthcare NHS Trust v P & Q
The general question was whether in applications for reporting restriction orders the applicant Trust, when notifying the Press Association of the application, is required to identify P and/or the parties (including P's family). The NHS Trust, the Official Solicitor and the Press Association argued that there is such a requirement. P's family objected to the disclosure of the identity of P and/or P's family. 

The court noted that nowhere in any of the requirements for media notification of applications is there provision for notification in which the parties are anonymised. Newton J balanced Article 10 and Article 8 and considered numerous points extracted from earlier decided case law at paragraph 39 of his judgment. Newton J set out the arguments in favour of revealing the parties' identities to the Press Association at the notification stage in paragraph 48 of his judgment and the arguments in support of anonymisation at paragraph 49.

Newton J's conclusions can be found at paragraphs 50 to 68 inclusive of his judgment. He concluded that a number of factors come together preventing the media from revealing the parties' names at the notification stage and prior to the making of any reporting restriction order because it would be a statutory contempt, it would be a contempt of common law, it would be in breach of the express contractual arrangements between any subscriber and the Press Association (with a powerful deterrent effect) and it would be a breach of confidence. Therefore it was held to be in the interests of transparency "the whole thrust of the law from the Practice Direction onwards dictates that in order to form a proper view the Press should see all the information including names". Newton J ordered the disclosure of the identity of P and the family to the Injunctions Alert Service so that the Press may respond if desired. 

Comparing jurisdictions: reporting restriction orders in the Family Division
Whilst this article focuses on the procedure pertaining to reporting restriction order applications within the Court of Protection, it is worth noting that Practice Direction 12I to the Family Procedure Rules 2010 regulates the procedure pertaining to such applications in the Family Division. As readers may be aware:

Further guidance can be found in the Practice Note 'Applications for Reporting Restriction Orders' dated 18 March 2005.

Interestingly in A Healthcare NHS Trust v P & Q when the Court of Protection was considering the issue as to whether or not P and/or P's family should be granted anonymity at the stage of the applicant for a reporting restriction order notifying the Press Association, reference was made to the Family Court. Children have the added protection of section 97(2) of the Children Act 1989 which provides that

"no person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify any child as being involved in any proceedings... in which any power under the Children Act 1989 or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child or an address or school as being that of a child involved in any such proceedings".

Counsel on behalf of P's family in A Healthcare NHS Trust v P & Q argued by analogy with it being a criminal offence to identify a child or their address pursuant to this section (including to the Press Association) it should also be expressly forbidden to identify a vulnerable adult to the Press Association upon an application being made for a reporting restriction order. Newton J did not accede to this argument for the reasons set out at paragraph 67 of his judgment.
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Footnotes:

[1]
Rule 90(1) Court of Protection Rules 2007;Independent News Media v A [2010] EWCA Civ 343 at [19]
[2] Section 12(1) Administration of Justice Act 1960; Paragraph 7 Practice Direction 13A
[3] Rule 92(1) Court of Protection Rules 2007; Paragraph 1 Practice Direction 13A
[4] Independent News Media v A [2010] EWCA Civ 343
[5] Paragraph 16 Practice Direction 9E 
[6] Rule 92(2)(a) Court of Protection Rules 2007
[7] Rule 92(2)(b) Court of Protection Rules 2007
[8] Rule 92(2)(c) Court of Protection Rules 2007
[9] Rule 92(2)(d) Court of Protection Rules 2007
[10] Paragraph 16 Practice Direction 9E
[11] Paragraph 10 Practice Direction 13A
[12] Paragraph 13 Practice Direction 13A
[13] Paragraph 14 Practice Direction 13A
[14] Paragraph 15 Practice Direction 13A
[15] Paragraph 17 Practice Direction 13A
[16] Paragraph 21 Practice Direction 13A
[17] Paragraph 23 Practice Direction 13A
[18] Paragraph 27 Practice Direction 13A
[19] Paragraph 28 Practice Direction 13A
[20] Paragraph 29 Practice Direction 13A
[21] Paragraph 2.1 Practice Direction 12I 
[22] Paragraph 3.1 Practice Direction 12I
[23] Paragraph 3.3 Practice Direction 12I
[24] Paragraph 3.4 Practice Direction 12I

16/9/15