Court of Protection lawyers,warn,that even with ‘watertight’ reporting restrictions, anonymity of those subject to proceedings cannot always be guaranteed.
They say that although transparency was important, ‘there is a price to be paid’.
But, is it in lawyers interests to say this, and what is this price?
And, more crucially, what is the price paid for secrecy, and, is secrecy necessary, and where does it leave accountability ?
See the £3 billion haul COP had already amassed in 2009
Read the power to imprison loving sister for 7 weeks until released by court of appeal. This is COP 2017
Lord Falconer, creator of the Mental Capacity Act, proposed its hearings be in public.
But, after ‘consultations’ not including the media, with 27 respondents, 11 for public hearings and 10 against, the Court of Protection Rules 2007 closed the court.
A Daily Mail campaign, scandals exposure and the COP being even more secretive than the care courts, forced a six month, court opt out ,media transparency pilot scheme .
From a fundamental perspective, as the right to privacy is personal, it is of concern that the state takes it upon themselves to exercise a citizen’s personal right.
Ignoring what they want or is really in their best interests.
As the MCA via the Court of Protection has made the state omnipotent .
It, can decide if a citizen wants to be processed in secret, along with all his other decisions.
Understandably, a person, might not want their predicament, financial and family business publically known.
And this was the justification for secrecy in non-contentious, property and financial applications..
Bur, whilst, health and welfare applications under the old High Court’s inherent jurisdiction were rare; under the MCA, they have overtaken non contentious property applications,, with 438 welfare applications in 2013/14, and 413 property and finance, and 31 disputes over Deputyships.
But welfare applications, in contrast to the fait accompli property applications are highly contentious.
If they were not, the Local Authorities, and Health and Social Care Trusts, would not need to apply for them.
And, welfare applications, allow state agencies, to remove a person’s autonomy for life.
And, to enforce all social and medical services, now in a private residential homes for life.
So effective, fair opposition from family members, and, the ‘incapable’ must be allowed.
Also, as these applications, are intrinsically oppositional, the inquisitorial nature of the Court of Protection, is wholly inappropriate, and open to abuse.
As few, if any, fact finding hearing are held, so allegations of neglect/abuse need not be proved.
And a huge disparity of equality exists between the state and individual.
As the procedure, and law are complicated.
And, effectively, no legal aid is available to families, who are forced to act as litigants in person, and, can even be threatened with the other parties costs.
Yet, they are the only independent voice, pitted, against three specialist barristers, the Official Solicitor appointed by the state to represent the incapable, the Local Authority and the Health and Social Care Trust .
The Court of Protection, itself, is underfunded, and clogged up.
And, at the same time the LIP, will be coping with the emotional horror of having no control over what happens to their loved one, and, caring for them.
And, dealing with endless assessments, and professional meetings.
So parents are faced with an impossible Herculean feat, anything but fair., which calls for the utmost transparency of process, not the least.
Particularly, as the court system per se, allows scant accountability .
Despite all this, COP proceedings are deemed fair, and, Human Rights Act s 6 compliant.
The scandals, that gave rise to the pilot of the ‘opening up’ of COP, will still occur, but will now remain hidden.
Steven Neary’s plight ,was exceptional, as his detention and treatment was already in the public domain.
The gagged imprisoned granny, and daughter, will still be gagged and imprisoned, but in their presence.
And, Paula Rawnsley would still be gagged, to protect Thomas Rawnsley’s privacy, and future care