Court of Protection case held in public

A High Court judge took the unusual step of ordering that a case in the normally secretive Court of Protection should be heard in open court because of its “substantial public interest”.

The order was passed by Justice Hedley as he adjourned a hearing yesterday.

The case involved the mother of a 21-year-old woman with significant learning difficulties applying for an order that her daughter, now pregnant with a second child, could be sterilised after giving birth.

The Court of Protection normally hears sensitive matters relating to the most vulnerable members of society behind closed doors to protect their privacy.

But this case was held in open court because of the “legitimate public interest” in understanding the court’s powers, particularly in cases involving applications for “serious medical treatments” for patients who are unable to give their own consent to the procedures.

The interests of the woman – who can be known only as P – are being represented by the Official Solicitor.

Strict reporting restrictions mean that no details about the woman’s identity, her family or location can be published.

The ban includes publication of the name of the NHS Trust, treating doctors, or the local authority involved.

Hedley said: “The court has a duty, where a person lacks capacity, to make decisions in the best interests of the person if called upon by an interested party to do so.

‘And that is how this case comes before the court.”

However, Hedley said court did not have sufficient evidence on which it could base a decision, and ordered a further hearing in April “to see whether there remains a real issue to be tried and if there is, to arrange for its trial”, with the full hearing expected in May.

Continuing the order that the case should remain in open court, the judge said this was so there may be an understanding not only of the powers of the Court of Protection, but “a real opportunity for debate” about “why the court should have these powers and, if it should, how it should use them”.

They were all matters of “substantial public interest”.

The court was told that the young woman was due to give birth yesterday.

Her mother, who with her husband is already looking after her first child, sought a declaration that sterilisation during the Caesarean section would be lawful and in her daughter’s best interests.

Hedley was told that expert evidence was not yet available for the court to make a determination in an application which raised “extremely serious and important” issues.

The issues to be decided are whether P lacks the capacity to make decisions about contraception and, if so, whether she should be sterilised by means of “tubal ligation”.

Hedley said he shared the anxiety of P’s mother about further delays “and losing this opportunity”, but the evidence on the issues of capacity and best interests was at present “incomplete”.

The mother told the court that P and her children were being kept together as a family unit, but added that the family could not carry on supporting more and more children, and that future children would have to be removed and adopted.

Hedley said he understood the mother’s wish for a decision which would have enabled the sterilisation to be carried out when the daughter gave birth, but added: “The evidence as to capacity is incomplete and the evidence as to best interests – as to precisely what steps ought properly to be taken to protect against future pregnancies – is also incomplete.

“Much as the court shares Mrs P’s anxieties about further delays and losing this opportunity, I am satisfied that the requirements of the Mental Capacity Act 2005 cannot be complied with at the present time so as to enable the court to make that decision.”

At an earlier hearing Mrs Justice Hogg had held that the final hearing in the case should be in open court, and that P should be represented by the Official Solicitor.

It was the Official Solicitor’s office which applied for the reporting restrictions, arguing that identifying P would be an unjustifiable intrusion into her private life and that of her family, as she was entitled to keep her medical condition and treatment confidential.

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