Observer Granted Order for Disclosure of Position Statements

In a guideline case, the Court of Protection has granted an application by an observer to a hearing for disclosure of the parties' position statements.

The proceedings related to a patient who was suffering from a prolonged disorder of consciousness. The Court concluded that an advance decision to refuse treatment included in a living will he had made was binding, and an order was agreed that once he was transferred to a hospice, clinically assisted nutrition and hydration would be withdrawn. The Court also made determinations about contact with family members. At the conclusion of the hearing an observer, who was neither an accredited journalist nor a legally qualified blogger, sought an order directing the parties to disclose their position statements to her. The Court had previously given permission for position statements to be disclosed, but not all parties had done so.

The Court noted that a Transparency Order had been made, by which all observers were bound, and considered a number of previous cases dealing with access to position statements.

Observing that there was presently no guidance on the provision of position statements to observers of Court of Protection hearings, the Court set out the procedure that it thought ought to be adopted. It considered that parties preparing position statements should foresee that an observer might request a copy and should therefore prepare suitably anonymised position statements that comply with the Transparency Order. It suggested that it would be helpful to include a warning on the front sheet of position statements that a Transparency Order was in force and must be strictly complied with, and that failure to do so may be a contempt of court.

If an observer wished to see a party's position statement, they should ask the party in advance of the hearing and state their reason. If a party refused to provide a position statement on request, the observer could apply to the Court for a direction that they be provided with a copy on such terms as the Court considered fit.

In this case, the Court was persuaded that providing the observer with all of the parties' position statements would advance the open justice principle and her understanding of the proceedings. Given the protections offered by the Transparency Order, the Court did not consider that there was any risk to the patient or his family from providing the position statements to observers. The Court varied the Transparency Order to allow the provision of the position statements to the observer, and directed that they be provided.