Earlier this week I spent a day on a Court of Protection course. Just as we were all entering a post lunch semi-vegative state, up strode Wall LJ to the podium. He is both President of the Family Division and of the Court of Protection. Readers of this blog may find his brief address interesting. I don’t have a complete note of it, but I scribbled as furiously and as accurately as I could, leaving out the bits I wasn’t madly interested in.
He began with an observational joke: that there are about ten years of work for the legal profession in every new act of parliament passed. He was talking about the Mental Capacity Act 2005, but I was thinking about the LASPO bill and what legal challenges may radiate from it (judicial reviews, funding appeals…).
I feel, he said, “Munby vulnerable” (picking up on a phrase coined in an earlier lecture to describe a vulnerable individual who does not lack capacity per se but whose will is overborne by external circumstances). Don’t we all. Don’t we all.
And so it began. Jokes over, he got down to it (some paraphrasing):
“I encourage everyone who sits in the Court of Protection to publish their judgments on BAILII. I acknowledge it involves a great deal of work to correct and anonymise judgments but the benefit to the profession is huge. I am a great believer in the court sitting where it can in public. It is not an instinctive reaction from a Family Division Judge or in relation to matters which are essentially private. There is an advantage to the public to see how very difficult and sensitive cases are handled and the care that is gien. It doesn’t mean the parties have to be exposed to the full glare of publicity. I have sat in open court with the parties anonymised where it is a question of life and death. The press are very good at not doorstepping and people do remain anonymous.”
He went on to talk about the benefits of the CoP sitting locally so that justice could be done locally. He wanted to encourage people to participate in proceedings. That, he said, makes good sense where there is an unpalatable decision to be made. …
“I am irritated when those who criticise the Court of Protection and Family Justice System say experts are hired guns who say the payer dictates what they should say. That is a canard.
In RP v Notts CC a particular McKenzie friend alleged that a solicitor had forged all the documents in his file. In that case the expert was a joint instruction by the Local Authority and the patient. It was suggested that the report was purely for the benefit of the LA, said what the LA wanted and that the expert had deliberately falsified. I tried in my judgment to give a strong assessment of my views of the particular opinion set out on behalf of the person without noticeable effect. In my view the work done by those in the Court of Protection is done in good faith and designed so far as it can to assist P (the subject of proceedings). The way we treat people unable to make decisions is a hallmark of the system.”
The McKenzie friend in RP v Notts was of course John Hemming MP. You can read the judgment here.