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MCA blog 2023: Closed Proceedings - treading the fine line between Article 6 and transparency

By Rebecca Wardle

Published In: Mental Health, Court of Protection

Sam Karim KC, head of Court of Protection at Kings Chambers, has been a specialist in the Court of Protection since the beginning of the Mental Capacity Act 2005. In addition to his Court of Protection work, Sam Karim KC also has a successful practice in Judicial Review, Human Rights and Civil Liberties matters.

Sam Karim KC talking at Switalskis MCA conference

It is this wealth of experience, which led to his insightful talk at the Switalskis annual review of the Mental Capacity Act 2005. Mr Karim KC discussed  the balance between transparency and Article 6 (right to a fair and public trial) and how closed proceedings fit in-between.

 Transparency is key in Court of Protection proceedings. No one likes to think that their loved ones lives are being decided behind closed doors, or in hushed conversations. Should the Court of Protection be required, they want reassurance that all aspects have been properly considered, deliberated and explored.

 There are times however, when aspects of proceedings  need to be held behind closed doors. An example is the recent case of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44 Here P required covert medication which was opposed by her mother, but found to be vitally in her best interests. Closed proceedings were needed for the Court to approve the proposals for the covert treatment, and how this treatment was to be delivered whilst ensuring minimal distress for the protected party (P) and her family.

In his opening lines, Mr Karim explained that when he was younger he had been taught that ‘Knowledge is Wisdom’, but that the more he learns of Human Rights the more he is vexed. Ordinarily, in any other jurisdiction, you must wait for an Article right to be breached to be able to bring the matter before the Court. However, in the Court of Protection this is not the case. The Court of Protection has many competing interests, carefully needing to balance:

  • the Human Right to Liberty (Article 5)
  • a fair and public trial (Article 6)
  • a family and private life (Article 8)
  • and that of expression and reporting (Article 10)

These interests compete against one another, and must be carefully considered. Any infringement must be in P’s best interests and all rights are to hold equal value and be given fair consideration.

 How then is the court to do this?

 How is one right to be held above another? The answer is not clear cut and so, His Honour Mr Justice Hayden has provided guidance on closed hearings and closed materials and how these should be approached. In short:

  • closed hearings must always be a last resort, and all parties must have explored and demonstrated to the court
  • that all other less restrictive methods of the hearing being conducted have been considered
  • the court must consider both the common law fairness of, and European Convention on Human Rights of the party/parties to be excluded. This must be done whilst maintaining that the Court of Protection’s jurisdiction is to protect and promote P’s best interests. Proceedings must not become an instrument of harm to P
  • any closed hearing is expected to be conducted before a Tier 3 Judge
  • it is expected that a closed hearing will fall outside of Practice Direction 4C, and therefore will be heard in private. Given the limited circumstances in which a closed hearing can be ordered, it’s very likely that to enable the public to access the hearing would defeat its purpose
  • at the conclusion of proceedings, it ought to be addressed in an open judgement that there has been closed material or a closed hearing. The open judgement may need to be accompanied by a closed judgement, for example where the closed material formed a crucial part in determining capacity, or best interests. This should only be in exceptional cases as otherwise there would be no public record of why the court reached its conclusion.

At the end of the talk, Sam Karim KC returned to his views on knowledge and left the audience on a thought-provoking note. When it comes to best interests, sometimes knowledge does not help. As we develop as a society, the issues on behalf of P become more complex.

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Rebecca is a Trainee Solicitor in our Wills and Probate team.

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