To join, or not to join? That was the question...

A new Court of Protection decision provides helpful guidance on applications for party status – and in this case, the issue of non-disclosure of confidential information.

The case concerned DK, a 19-year-old highly vulnerable woman with global learning disabilities, an autistic spectrum disorder, and associated profound needs. She lacked litigation capacity and was represented by the Official Solicitor as her Litigation Friend. Leeds City Council asserted that DK lacked capacity to make decisions about her residence, contact with others, and use of social media and sought declarations and welfare orders in these respects.

The maternal aunt, KK had been DK’s main carer during her childhood but they had not lived together for the past three years although they still had contact with each other. At first instance, His Honour Judge Hayes QC refused KK’s application to be joined as a party to the proceedings. She sought permission to appeal this decision to Mr Justice Cobb.

KK’s application for party status continued to be opposed by the City Council (CC) and the Official Solicitor (OS) on DK’s behalf. There was no dispute between the parties as to whether the correct legal test on joinder and party status had been applied, set out in the Court of Protection Rules 2017 rules 9.15 (1) and 9.13 (2). As a reminder, this is anyone with “sufficient interest” may apply to be joined as a party to the proceedings and the court “…may order a person to be joined as a party if it considers that it is desirable to do so for the purpose of dealing with the application".

The issue centred on the information the CC and the OS sought to rely on but wished to keep confidential from KK and her legal representatives. His Honour Judge Hayes QC read the material but neither KK nor her lawyers were given access to it because it was argued to do so would be contrary to DK’s best interests: a supplementary judgment was given in which a view was expressed about the confidential material and its significance to the decision. This judgment was also not disclosed to KK and her legal representatives.

The main dispute in the appeal focused on the management and deployment of the confidential material and its impact on the decision of His Honour Judge Hayes QC. It is worth noting Mr Justice Cobb’s comments at paragraph 32:

“There is an appropriately accepted premise by all counsel in this case that it is contrary to the principle of open justice for a judge to read or hear evidence, or receive argument, in private; they rightly and unanimously accept that open justice is fundamental to the dispensation of justice in a modern, democratic society (per Lord Neuberger in Bank Mellat v HMT at §2/§3). It follows that generally, every party has a right to know the full case against him, and the right to test and challenge that case fully. I say 'generally' because there are, as counsel in this case properly recognised, exceptions to this.

So, how should the court exercise its discretion under the Mental Capacity Act 2005 and the Court of Protection Rules 2017 when managing sensitive information/evidence subject to non-disclosure?

Mr Justice Cobb offered this guidance on procedure and practice:

"i) The general obligation of open justice applies in the Court of Protection as in other jurisdictions [...];

ii) A judge faced with a request to withhold relevant but sensitive information/evidence from an aspirant for party status, must satisfy him/herself that the request is validly made [...];

iii) The best interests of P, alternatively the "interests and position" of P, should occupy a central place in any decision to provide or withhold sensitive information/evidence to an applicant (section 4 MCA 2005 when read with rule 1.1(3)(b) COPR 2017); the greater the risk of harm or adverse consequences to P (and/or the legal process, and specifically P's participation in that process) by disclosure of the sensitive information, the stronger the imperative for withholding the same [...];

iv) The expectation of an "equal footing" (rule 1.1(3)(d) COPR 2017) for the parties should be considered as one of the factors [...];

v) While the principles of natural justice are always engaged, the obligation to give full disclosure of all information (including sensitive information) to someone who is not a party is unlikely to be as great as it would be to an existing party [...];

vi) Any decision to withhold information from an aspirant for party status can only be justified on the grounds of necessity [...];

vii) In such a situation the Article 6 and Article 8 rights of P and the aspirant for party status are engaged; where they conflict, the rights of P must prevail [...];

viii) The judge should always consider whether a step can be taken (one of the 'procedural mitigations' referred to at [26] above) to acquaint the aspirant with the essence of sensitive/withheld material; by providing a 'gist' of the material, or disclosing it to the applicant's lawyers; I suggest that a closed material hearing would rarely be appropriate in these circumstances."

Comment

As Mr Justice Cobbs explains it will be relatively uncommon for someone in the position of KK – a former primary carer of P (particularly where P is still a young adult) who wishes to have party status in proceedings under the MCA to be denied joinder to the proceedings – and be denied the chance to contribute to the decision-making in the welfare proceedings. In such circumstances, it will always be necessary to balance “the pros and cons of the particular joinder sought in the particular circumstances of the case”.

That said, there is now clarity and a set of principles to follow thanks to Mr Justice Cobb.

These Court of Protection cases are challenging and do present difficult decisions – don’t hesitate to get in touch if you would like to discuss any of the issues raised here or if you have a matter you would like to discuss with a specialist in our friendly Court of Protection team.

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