Press has no direct role in welfare proceedings in Court of Protection

12 May 2014 by Rosalind English

G (Adult), Re [2014]  (Associated Newspapers Limited intervening) EWCOP 1361 (1 May 2014) – read judgment

Sir James Munby, President of the Court of Protection has ruled that the Daily Mail has no standing to be joined as a party in welfare proceedings in relation to a vulnerable adult who has been declared by the courts as lacking capacity under the Mental Capacity Act. 

Background to the application

The court was concerned with a 94 year old woman, a British African Caribbean who  lives in her own home in London. G is 94 years old. G has never married and has no children. She has no family living in the UK.  She suffers from conditions that have limited her mobility; arthritis, rheumatism, a dislocation of her left knee and carpal tunnel syndrome. She also has high blood pressure and double incontinence. G rarely leaves home now, except for hospital appointments.

In May 2012 C and her husband F had moved into G’s home; they had been introduced by a friend at church. G said she needed help at night so the arrangement was that C would move in to provide it and that she would live there, rent-free, in return. Concerns gradually arose over the overbearing behaviour of C and the possibility that G was being intimidated. The local authority became concerned about the management of her financial affairs. But they and the police were restricted in any action they could take in the absence of a specific complaint by G. Furthermore the local authority took the view that, although G was a vulnerable adult, she did not lack capacity. At a later hearing however the judge decided that on the balance of probabilities, G lacked capacity under sections 2 and 3 of the Mental Capacity Act 2005 and accordingly that the case fell under the jurisdiction of the Court of Protection. He also made a reporting restriction order.

The issues before the Court

As there was considerable press interest in G’s case, the Associated Newspapers Limited (ANL), applied to be joined as a party to the proceedings. They argued, inter alia, that they had a “legitimate interest” in these proceedings for the following reasons:

1. The issue of whether G had capacity to communicate with the media would affect the ability of ANL to receive information about these proceedings, and to report upon the proceedings, and therefore ANL’s Article 10 rights were engaged
2. There was a strong public interest in allowing G to exercise her Article 10 and Article 8 rights to communicate with third parties
3. There was a strong public interest in the full and proper reporting of these proceedings so as to enable the public to be informed about the proceedings and about the workings of the Court of Protection
4. ANL had already reported on these proceedings and have already been represented at court hearings in the case.

They also contended that G’s rights under both Articles 8 and 10 of the European Convention of Human Rights were “starkly engaged” upon the application for an injunction. ANL was “concerned” that, unless it is permitted to do so, the court would not have the benefit of full argument on this point.
In addition, ANL claimed to be directly impacted by the proceedings. It prevented ANL from speaking to G about the proceedings. It limited the ability of ANL to report upon the proceedings. ANL’s rights under Article 10 were therefore engaged.

This restriction on ANL’s rights is particularly important in this case given the strong public interest in reporting of the work of the Court of Protection. The public wish to, and are entitled to, know more about what happens in the Court of Protection. An order which limits the extent to which ANL can report upon what G has to say about the proceedings will constrain the ability of ANL to fulfil the important function of imparting information about what takes place in the court.

ANL’s application was opposed by the Official Solicitor on behalf of G and by the local authority. It was supported by C and, up to a point, by F, who although not advocating that ANL be joined was concerned that ANL be permitted active participation in relation to those issues in which it had an interest.

ANL’s application was dismissed as misconceived.

Reasoning behind the decision

First Sir James Mumby pointed out that the State has a positive obligation under Article 8 to ensure that X’s right to respect for private life is not violated as a result of press intrusion or harassment: see, for example, Von Hannover v Germany (2003) 40 EHRR 1. The rights of the press could not trump the Article 8 rights of G because she lacks capacity; indeed, the identification by the Court of Protection of G’s best interests did not give rise to any justiciable issue as between G and the press.

ANL’s arguments under the right to receive information under Article 10 found no traction with the court. In this situation the court was only concerned with the press’s right to impart information. The right to access to information, if it exists at all, arises only in relation to information held by a public body, and the information in issue here was that held by G, C and F, that is, by private individuals.

The starting point is that if S, as a competent adult, declines to disclose information to J – if S, as it were, shuts the door in J’s face – then that is that. S is deciding not to allow J into S’s ‘inner circle’. S’s right to be left alone by the media, if that is what S wishes, is a right which, as I have already explained, is protected by Article 8 (see Re Roddy) and it trumps any rights J may have, whether under Article 8 or Article 10. J cannot demand that S talks to him and, as Leander shows, J’s reliance on Article 10 will avail him nothing. From this it must follow that S’s refusal to talk to or impart information to J cannot give rise to any justiciable issue as between J and S [para 38]

If, as here, S – in the present case, G – arguably lacked capacity, the court had to ask the following questions:

Was it in G’s best interests for the material not to be imparted to the press? If yes, then
Did G’s interests under Article 8 and the public interest in the protect of the privacy of the vulnerable and incapable, outweigh the private and public interests in freedom of expression under Article 10?

The judge stressed that ANL had no right or interest in the prior decision by the court as to whether G lacked capacity. This approach overlooked the true nature of what is happening when the court decides on behalf of an individual, where that individual’s best interests lie. He concluded that

joinder is as unnecessary for the protection of the media as it is undesirable from the point of view of the child or incapacitated adult whose welfare is being considered by the court.

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