BRITISH COURT CALLS FOR MORE PUBLIC SCRUTINY OF CASES WHERE THE FATE OF THE VULNERABLE IS DECIDED

By Dave Andrusko

As the last item of the week, “Court of protection should be open to public scrutiny, says leading judge” will be discussed relatively briefly along with a link to the story that ran over the weekend in the British publication, the Guardian (www.guardian.co.uk/law/2011/nov/06/court-of-protection-public-scrutiny)

Sir Nicholas Wall, the head of the Court of Protection, gave the Guardian unprecedented access to cases that almost entirely invisible to the public and recommended that there be much more transparency when it comes to decisions made about “the lives of vulnerable people deemed unable to make choices – including ordering the removal of life-sustaining treatment, and compelling vulnerable adults to undergo surgery including sterilization or abortion,” according to the Guardian’s Amelia Hill.

Readers of National Right to Life News Today are familiar with the Court of Protection because of our coverage of “M.” She is a 51-year-old woman whose sister petitioned to have her feeding tube removed.

Fortunately, Judge Baker agreed with the hospital staff and turned down the request. The salient issue was whether the “right” to remove food and fluids from patients diagnosed to be in a persistent vegetative state would be extended to patients in a “minimally conscience” condition, a less cognitively damaged state.

Sir Wall, the president of the family division, cautioned that he was not talking for all judges and that would likely be fierce resistance. But he told Hill that there was a “stalemate” between the Court of Protection, the public, and the media that is “is not satisfactory from anyone’s point of view.”

He called for a public debate on opening up the court, to be followed by legislation “enshrined in an act of parliament.”

“It seems to me a matter of public interest,” Sr. Wall said. “The public is, after all, entitled to know what’s going on.”

It really wasn’t until 2010 that the court’s business was opened up at all to the media, according to Hill, following a successful legal challenge. But gaining access is still cumbersome, expensive, and decided on a case by case basis.

Until a successful legal challenge by the media in early 2010, the court’s business was automatically conducted in private. Judges now decide whether the media can observe hearings on a case-by-case basis, often requiring news organizations to spend prohibitive sums of money on barristers and legal experts to argue their case for access.

“But access, which is still only granted on rare occasions, is no guarantee that cases can be reported,” Hill reported. “Even when journalists win the right to be present in the courtroom, judges still retain the right to decide what, if anything, can be published.” This has led to “accusations that the courts stifle debate about complex moral dilemmas and gag families from discussing cases in public.”

Wall said that even without a parliamentary statute, he is “increasingly encouraging judges who deal with life and death cases and those that involve the public interest – that is, deprivation of liberty safeguards or life support machine cases – either to sit in open court or to publish their judgments anonymously,” Hill reported. “The public deserve to know about how they are decided.”

Hill said the decision about opening up the court “is very fraught and people have very strong views.” He added, “My entirely personal view is that provided we can protect the confidentiality of litigants and their families, there’s not a reason we can’t hear the cases in the presence of the media.”