Lawyer says media reports of Court of Protection 'right to die' cases are misleading

A barrister has complained about "incompetent" media coverage of the Court of Protection.

Barbara Rich, who represents people involved in Court of Protection litigation, says the "mainstream media" has "failed to grapple with basic facets of the court" – such as capacity, the definition of "vulnerable", and right to die.

She makes her criticisms of "careless headlines" and "fundamental inaccuracies" in an article in the legal magazine Solicitors Journal headlined "Read all about it: Incompetent reports on the CoP".

The appearance of the article coincides with the start of a pilot scheme intended to allow reporters and members of the public access to previously private Court of Protection hearings.

"(The) mainstream media has failed to grapple with basic facets of the court, such as capacity, the definition of 'vulnerable', and right to die," says Ms Rich.

"The media has a vital role in bringing Court of Protection cases to wider public awareness. But, to date, the work even of the serious media has largely failed to accurately explain what the court does and does not decide."

She criticises headlines on reports of a recent Court of Protection case involving "the woman who had 'lost her sparkle' and wished to refuse life-saving treatment".

Ms Rioch goes on: "At least three broadsheet newspapers published articles under headlines containing the words 'right to die' and suggested that the court had 'granted' (the woman) such a right…

"The case was not about the right to die … no such right exists."

She adds: "Nearly as misleading is the suggestion that the court 'grants' individual adults any exercise of rights."

Journalists reporting the work of the Court of Protection appear to misunderstand "the presumption of capacity" and she says describing people at the centre of proceedings as "sick and vulnerable" is "misinformation".

"The presumption of capacity is essential to the functioning of everyday adult life, but appears wholly misunderstood by the media in reporting Court of Protection decisions," she says.

"Another piece of misinformation is the description of the Court of Protection as dealing with 'cases involving sick and vulnerable people'.

"This originated in a news agency report in 2014 and has been frequently cut and pasted by newspapers and the BBC since.

"The court does not deal with 'sick' people unless they have an impairment or disturbance in the functioning of the mind or brain.

"It has no business with even a terminally-ill person who does not have such an impairment or disturbance, let alone people who are 'sick' in the trivial sense of the odd headache or rash.

"Nor does it deal with 'vulnerable' people in the technical legal sense."

She refers to a court ruling which has "established the continuing existence of the inherent jurisdiction of the High Court to make orders protecting adults who are perceived to be vulnerable, but who do not lack capacity".

Rich goes on: "It would be over-lawyerly to expect the media to explain this distinction, but it is thoroughly unhelpful to use the word 'vulnerable' in the Court of Protection context.

"These fundamental inaccuracies form the bedrock of tendentious opinion pieces not worth the paper or bandwidth they consume, and do nothing to
support the court's transparency project or enhance public understanding of the law."

She added: "The public, the court, and its users deserve a higher standard of writing, editing, and insight into opinions formed by the media."

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