Guidance on ‘closed hearings’ and ‘closed material’ in the Court of Protection – Article by Helena Spector and Suzanne Smales

The Vice President of the Court of Protection, Mr Justice Hayden, has issued guidance on “closed hearings” and “closed material” in the Court of Protection. The purpose of the new guidance is to provide a structured and consistent way for the court to consider whether a hearing should be closed and/or for material to be closed; to “provide clarity as to the principles to be applied and considerations to be taken into account in the very limited circumstances” under which closed proceedings take place. The guidance also applies to situations where a party and/or their representative is not to be told of the fact or outcome of a without notice hearing.

The guidance was issued following the decision in Re A (Covert Medication, Closed Proceedings), [2022] EWCOP 44, (‘Re A’) a case in which A, the incapacitated party, was subject to covert medication. A’s mother, B, was a party to the proceedings. A had been removed from B’s care due to ongoing concerns about B’s attitude to the issue of medication, and her ongoing influence over A. The covert medication plan was not disclosed to B, and was the subject of closed COP proceedings. The factually unique nature of the case was recognised by Poole J, and the relevance of that, as well as other aspects of the case, is discussed further below.

The guidance defines “closed hearings” and “closed materials” (both referred to in this article as ‘closed procedures’) as follows:

1. “Closed hearings” are hearings from which (1) a party; and (2) (where the party is represented) the party’s representative is excluded by order of the court. For the avoidance of doubt, this is different to a “private hearing,” which is a hearing at which all the parties are present (or represented), but from which members of the public and the press are excluded;
2. “Closed material” is material which the court has determined should not be seen by the party (and/or their representative).

The starting point in the guidance, which is unsurprising, is that all parties should participate in all hearings and have sight of all relevant material upon which the Court reaches a conclusion. The two bases set out in the guidance for derogating from that starting point are set out in paragraph 7:

• Where such is required to secure P’s rights under the ECHR; and
• Where there is another compelling reason for non-disclosure. It could be that a party seeks to justify non-disclosure of material (or a closed hearing) in their own interests or on the basis of a wider public interest (for instance protecting operational details of policing or national security).

Alongside the two broad bases for closed procedures, the guidance includes general principles for the court to consider when making a determination for a closed hearing.

1. A closed hearing in the Court of Protection must always be a matter of last, as opposed to first resort, in common with all jurisdictions. Intrinsic to this principle is a requirement that the parties must explore – and must demonstrate to the court that they have explored – all other less restrictive methods of conducting the hearing.

1. Ordinarily, it will be for the party (or parties) seeking a closed hearing to set out, well in advance of the hearing and with appropriate evidence, why it is justified. However, the ultimate decision is one for the court, and the court could, of its own motion, identify that a closed hearing is required.

1. The court must consider both common law fairness and the ECHR rights of the party or parties being excluded, but from a starting point that the purpose of the Court of Protection’s jurisdiction is to protect and promote the best interests of P, and the proceedings must not become an instrument of harm to P.

The guidance proceeds to set out the procedure on applying for closed procedures and the correct approach of Courts to transparency provisions (paragraphs 16 ­– 22) and a four-stage approach for dealing with closing material and non-disclosure (paragraph 23).

The guidance warns that disclosing materials and/or restricting access to a party’s legal representatives alone is likely to generate significant ethical problems and will be difficult to reconcile with professional codes of conduct. This, unfortunately, removes an option, that may otherwise have been seen as a useful tool, to avoid or mitigate closed procedures.

The final part of the guidance sets out how the Court and parties are to approach the remainder of the proceedings once a closed hearing has taken place. They stipulate that a record must be kept of why a decision has been taken (paragraph 26) in the event that disclosure can be made at a future point in time or in the event of an appeal. Further, the court must determine in as much detail as possible what is to be said to the excluded party in any subsequent hearing (paragraph 27). Notably:

In this regard, particular consideration needs to be given to any situation which may cross the line from silence to active deception as to what has taken place. Active deception should be a last resort as it has the potential fundamentally to undermine the confidence of parties and the public in the judicial system;

The guidance concludes where it begins, by reiterating (paragraph 29) that the starting point for the conclusion of proceedings is a judgment in open court relating to all aspects of the proceedings, including the details of any closed hearings/materials. In only exceptional circumstances should the court accompany an open judgment with an ancillary closed judgment.

Discussion

In Re A, (at par 40), Poole J. held:

‘The decision taken to exclude B from the Trust’s application to use covert medication was an exceptional course which engages B’s Convention rights under Arts 6 and 8, as well as A’s Convention rights. Such exclusion requires regular review and scrutiny of changing circumstances to ensure that it remains justified.’

That important observation about Convention Rights is reflected in the Guidance at pars 27(4) and 28 (2), which highlights the importance of a constant review of the justification for keeping material, and/or hearings, closed.

However, that raises the thorny issue of how that can be achieved without the voice of the excluded party, and perhaps more importantly, any evidence from the excluded party being heard. For example, in Re A, the justification for excluding B was B’s attitude and negative influential behaviour upon A. There had been a previous hearing at which the first instance judge had made findings about those matters, upon which the court relied. However, that deprived the court from up to date and important relevant evidence on that issue as time progressed. The case also illustrated how B’s part and position in the proceedings, became frustrated, if not meaningless, without access to the information that was being withheld.

Convention Rights

The lawfulness of closed hearings is not an issue unique to the Court of Protection. They do appear, albeit in exceptional circumstances, in both civil and criminal proceedings. The effect of ECtHR decisions in Chahal v United Kingdom (1996) 23 EHRR 413 and A and others v United Kingdom [2009] ECHR 301 is that Article 6 of the European Convention on Human Rights (Article 6 conferring the right of access to the courts) is not infringed by a closed material procedure. However, this is provided that appropriate, highly stringent conditions are met.

Those conditions are set out in Bank Mellat v HM Treasury [2013] UKSC 38. They would generally include the following: (1) the hearing must be kept separate from a party for exceptional reasons (generally reasons of national security); (2) hearing to determine the issues in the substantive matter would not be fair without that material being made available to the judge to review; (3) the provision of a sufficiently informative summary of the material heard in private to the excluded party; and (4) the need for an independent advocate who has reviewed all of the material who is able to challenge the need for a closed hearing, to test the evidence in that hearing, challenge relevance/weight and make submissions about the material.

It is interesting to note that the procedure stipulated in Bank Mellat is undoubtedly more stringent than that envisaged by Hayden LJ. This is most notable in the role of the special advocate. The special advocate is given access to the withheld material and is appointed to represent the interests of the person from whom it is being withheld. That party therefore has some representation in a hearing from which they have been excluded. The special advocate operates in stringent constraints and is not permitted to speak to the party or legal team whose interests they represent.

The special advocate works under significant constraints, most notably a prohibition on speaking to the person whose interests he or she is representing, or their legal team.

Closed hearings with a special advocate are not uncontroversial. They have been subject to a Justice and Security Green Paper, followed by a consultation period. Special advocates themselves have raised concerns with the manner in which the process is conducted (for example, here). These involve close scrutiny of the process by politicians, interest groups and members of the Bar.

There is no such scrutiny subject to closed hearings in the Court of Protection. This is despite the fact that the safeguards are significantly fewer and less formal. In the Court of Protection no automatic provision is made for special advocates, the excluded party is unlikely to be provided with an index and  summary of the excluded material, and the excluded party is unaware that a closed hearing has taken place.

The lack of the formal safeguards present in the civil and criminal jurisdiction and the comparative lack of public, Parliamentary and legal oversight on the issue is concerning.

It is equally concerning that there is no external monitoring of the number of cases in the Court of Protection which involve closed material or closed hearings to confirm that these powers are not being overused, as highlighted by the Open Justice Project.

An Exceptional Course to Take

Both the facts of Re A, recognised as exceptional by Poole J, and the Guidance issued by Hayden J, remind of the ‘very limited circumstances’ in which closed procedures should be considered. Such caution seems very well placed. It is suggested that it is difficult to successfully reconcile the use of closed procedures with Convention rights in the current Court of Protection procedural model.