Paradoxically this is a blogpost about a group of cases which I do not want to talk about. So it should be short. Instead I have had to break these posts into three because as I started to explore this interlinked set of topics I realised they raised more issues than I had imagined possible.
The cases which triggered these reflections are those concerning substitute decisions made on behalf of women experiencing mental disorders during childbirth. However, as this blogpost will make clear the substance of those decisions is not really of interest to me. I am much more interested in the vexed question of how we balance the privacy interests of people who have not made an application to the Court of Protecton with a legitimate interest in ‘seeing justice to be done’ and the rather alarming trend towards sensational and lurid reporting of cases concerning highly sensitive facts.
So this post asks what values should apply and how we should apply them when making decisions which affect the privacy of people who cannot (under a legal definition at least) make a decision for themselves regarding the publication of a case which discusses highly personal aspects of their lives.
The second post considers my own experiences of mental disorder and of decision-making in relation to childbirth. I have written it because I can. At present, since my health is fine, there is no question that I can decide to write about my personal experiences in a way which requires painful disclosures but which does not compromise my personal autonomy since it is founded upon choice. And this enables me to reflect on the inadequacy of English law in empowering pregnant women with mental disorders to adopt positive measures to protect their interests.
And the final post queries the relevance of my personal experiences to my ability to develop secondary judgements on these issues. Which is a neglected philosophical topic, especially in the field of mental capacity law, perhaps because we have assumed that people who have lacked capacity will never be judges or legal commentators. This is patently not true, but if it is not true, and I want to make the claim that my specific experiences makes me distinctively qualified to critique the law then I first need to evaluate whether that is true.
The current guidance and the law
New guidance on the publication of judgments in the Court of Protection has now been published and is intended to have immediate effect. The stated goal of the guidance is ‘to improve public understanding of the court process and confidence in the court system.’ The guidance does not differ hugely from the Draft Guidance issued in Summer 2013 and my comments in this blog post remain valid.
My strongly held view is that the current guidance serves the good of promoting the legitimacy of Court of Protection decision-making but offers no coherent ethical framework for deciding when to prioritise the privacy interests of adults lacking capacity over the (occasionally prurient) interests of secondary commentators. And I am one of those secondary commentators. I hope my interests are not too prurient, but I am as capable of hypocrisy as the next person who would never read the Daily Mail but sometimes looks at it online…
This creates a tension. A presumption in favour of publishing more cases because of the presumed good of transparency may mean jeopardising the privacy of some individuals. I do not think the potential harms of holding hearings in open court or publishing anonymised judgments have yet been evaluated against the possible benefits. Or if close analysis has been this analysis has, ironically, not been conducted openly.
The current law
The current law dates back over a hundred years to the judgment in Scott v Scott, a case concerning whether publishing details of an application to have a marriage annulled should amount to contempt of court or whether the initial proceedings should ever have been heard in camera at all. Viscount Haldane famously took the view that the principle of open justice should apply to all hearings, even those concerning matters as sensitive as those at issue in this case (the wife was asking for an annulment on the basis of her husband’s impotence), but held that important exceptions applied in cases where the court was hearing applications concerning children and incompetent adults because in these cases the court was merely replicating a private decision-making functions and no wider public interest was served by disclosing the content of the decisions being made. These remain the two exceptions to the principle of open justice in the English judicial system but times change. Today both the family courts and Court of Protection frequently hear applications from public authorities concerning their power to intervene in the private lives of children and adults lacking capacity. It would be wrong to characterise these decisions as purely private in nature.
The statutory framework for deciding whether and when a judgment made in the family courts or Court of Protection can be published is actually extremely complex, but well described in this lecture by Sir James Munby in 2010 (warning: pdf). The complexity of the framework may well have worked against the development of a supple set of practices because what appears to have become common practice is the adoption by the family courts of a relatively conservative approach to deciding when to hold hearings in camera, or allow the press access to written submissions to the court or to allow the publication of anonymised transcripts of judgments. This was almost certainly because of the adoption of the principle that in most cases it would be in the child’s best interests to maximise the degree of control exercised over personal information – but in the process errors have certainly been made.
The debate is thus easy to over-simplify. It can appear as if crusading journalists with a zeal for the truth have worked hard to expose the closed practices of the family courts and Court of Protection who will otherwise treat any attempt to expose their arbitrary decision-making as a contempt of court. Conversely it can also appear as if ill-informed journalists have set out to vilify decision-making within the family courts who have only ever sought what was in the best interests of children. Neither description is fair.
I agree with Sir James Munby that the statutory framework needs considerable reform if we are to expect coherent frontline decision-making in the future.
There is one point where I differ with him profoundly.
It is not the case that the same principles which govern transparency in relation to children should apply equally to adults even if this can be derived from Scott v Scott. He stated this in the Draft Guidance published in June 2013 and again in his judgment in RC v CC. He was wrong on both occasions.
The policy difference is obvious. The position concerning children who are subject to local authority decision-making and their privacy interests is entirely different to that of adults. If a child is caught up in a contest between a local authority and her parents over what is in her best interests there is a triangulation effect created by the fact that the parents also have independent legal interests in the case – they also have rights to see the evidence, and in some cases a desire for publicity regarding the case and in others a desire to protect their child’s privacy. But the parent’s interests in privacy and transparency and those of the child’s may well be at odds. Decision-making in such circumstances is therefore extremely complex.
In cases concerning adults the complexity is considerably reduced. The only proper concern for the court is how to balance the privacy interests of the adult with the objects of open justice. Other family members may well have a strong personal interest in the case, they may act with or against the interests of their family members, but they could not plausibly argue that their rights under Article 8 ECHR have been undermined by an order made by the CoP.
Not only that but the Court of Protection is a creature of statute, it only came into existence under in 2007 and the CoP Rules, notwithstanding the fact that they are only a statutory instrument, make it easy to argue that Parliament must have intended the Court of Protection to develop its own distinct system of principles to apply when determining whether and when it is appropriate to compromise privacy for the sake of transparency.
I assume this argument must have been made forcefully by others because Sir James, in his role as President of the Family Division has now published two sets of guidance, one for the family courts and one for the Court of Protection. But he is still reiterating the point that the same principles apply in both cases.
Possible harms of holding hearings in open court and publishing anonymised judgments
The second blogpost in this series is an abnormally personal reflection on my own personal medical history. I can assure you that this cervix-gazing will cease after today but I am in a position to write and publish it because I have agency. I can choose whether to put information about my medical history in the public domain or not and at this time I can (I imagine) handle the consequences of how it is interpreted.
But what if I’m one of the very few women who cannot exercise judgement for themselves during labour and about whom an assessment concerning capacity or best interests is sufficiently complex it warrants a referral to the Court of Protection. How would I feel if in the fragile period after giving birth a judgment was published concerning my mood and behaviour during labour?
One possible harm is that mere knowledge of the occurrence of a public hearing or the existence of an anonymised judgment in the public domain will, for some people, be a source of distress. If this distress is outweighed by the improvements to decision-making attained by an application to the CoP then perhaps the individual may, in time, come to feel grateful instead. But even if this is the case it is not obvious that she will feel that it was necessary that the hearing was held in public at a time when, for fairly obvious reasons, it was unlikely that she could attend. If she did decide that she wanted the benefits of publicity regarding the hearing at a later point in time when she has recovered capacity, it would, perversely remain a contempt of court for anyone to publish her identity.
A second harm is that, as I have argued before, in an era when information is cheap, privacy comes at a premium and anonymisation is extremely hard to achieve. It is also the case that the practice of removing names but leaving in much pertinent medical history, and in some cases the name of the hospital and involved clinicians will make individuals traceable.
To consider one recent judgment, the issue of P’s lack of capacity was not contested by the Official Solicitor simply because the individual’s presentation was so extreme, the woman’s treating team had no doubt as to what intervention was in her best interests, and her extended family were wholly supportive of this decision.
The actual ruling was therefore not difficult, albeit it needed to demonstrate that the action proposed could be consistent both with the Mental Capacity Act and the total car-crash created by the interface between the Mental Health Act and MCA.
There was a section which clarifies that the caesarean was not treatment for a mental disorder and applies A NHS Trust v Dr A and that the treatment be administered under the inherent safeguarding jurisdiction of the High Court since the patient is currently detained under the Mental Health Act and therefore cannot be subject to further compulsion under the Mental Capacity Act. I could agree there is a legal interest in publishing that paragraph alone.
But the rest of this stuff? The name of the hospital, the doctors involved, making the hearing public? Whose victory was this?
The most obvious victor was the Court of Protection and that was only because Mostyn J’s reasoning in An Earlier Case was so awful they needed to do something to redeem themselves. More recent reporting of judgments suggest that a wider range of evidence has been taken into account when considering whether and why caesarean without explicit consent may be in a woman’s best interests under s.4 of the MCA.
But the underlying hierarchy of values appears to be that the Court of Protection’s interest in not being pilloried for lousy decision-making in the popular press (or by me – but the reading stats for this blog make me think that isn’t a factor!) outweighs the individual’s interest in not having her privacy invaded at a hearing heard in public. This is not self-evident.
How can we use values in guidance?
Well first we need to think about what kind of value privacy is, what goods it protects, and how these goods may endure even at times when personal autonomy is compromised by mental dysfunction. These are large questions, privacy law is a field in its own right with its own conferences and lots of books and stuff which I have not read.
Oddly decision-making about best interests on behalf of people lacking capacity has rarely considered their interests in their privacy in much depth. The Official Solicitor did have a go when he unsuccessfully appealed the first instance judgment in Re A.
There is a view that protecting a right to privacy (a right to private space, control over personal information etc) is primarily a means of promoting autonomy – a necessary but not sufficient condition. So if we make a best interests decision primarily or solely on the basis that it will protect the individual’s privacy we are arguing for a breach of autonomy (a substitute decision) to promote autonomy, a kind of circular legal reasoning I dislike.
On the other hand privacy can clearly protect other goods including human dignity – we can still argue that it is in the best interests of a person in a vegetative state for information about their personal life not to be shared, not despite the fact that they cannot control the use of this information but precisely because they cannot control this information and it would undermine their dignity to allow widespread disclosure.
Adults with mental capacity can protect their autonomy, their dignity and control information about their lives in any way they see fit.
It is implicit in an assessment that for reasons of mental dysfunction an adult lacks capacity to make a decision that she cannot adequately protect her own autonomy and thus her privacy if it is, indeed, a dimension of that.
But for many adults capacity is dynamic and fluctuates over time. The current CoP guidelines prioritise the interests of the public in knowing that justice is seen to be done, and this is a significant interest, but have done nothing to address the issue of the individual’s interest in her own right to describe her own experience of being subject to CoP decision-making, nor do they even identify that a public hearing may not be justified if it is likely to cause psychological distress to the individual.
I’ve chosen to focus specifically on the issue of hearings relating to intervention concerning birth because they strike me as creating a perfect storm of problems for justifying the current guidance. They involve decisions that are highly personal and time sensitive. The individuals involved are extremely likely to recover full mental capacity in the future and have a coherent awareness of the content of the decisions made regarding the birth and how they were reached and who was involved in reaching them. But they also concern the reproductive rights of adults with mental disorders and the wider community has a powerful interest in knowing in what forum substitute decisions about such matters are made and how they are made.
I do not know how to resolve this ethical dilemma, but I do think we should articulate that it is a profound ethical dilemma and therefore one which deserves close attention, specifically to the experiences of women with mental disorder themselves.