England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
MR JUSTICE HEDLEY
COP11531312

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/07/2011

This is the Judgment of the Court:

1. This is one of the many sad cases proceeding in the Court of Protection and the issue which arises in this appeal is whether the Independent Newspaper should be authorised to attend the substantive hearing which would determine the living arrangements to be made for a young man who lacks capacity.

The background

2. Directions are in force to preserve the anonymity of all parties to these proceedings, the preservation of that anonymity being of great importance to the wellbeing of this young man. Although, as we shall indicate, much information about the case is already available to the public, we shall be deliberately circumspect in setting out the salient facts. They are as follows. This young man, we shall call him "P", is 26 years old. He was born into a severely dysfunctional family and was taken into care. Eventually, after many foster placements, he was adopted by Ms AH. P suffers from severe uncontrolled epilepsy, for the treatment of which he has been in the hands of specialists for many years. His health has been a matter of grave concern to his adoptive mother and in many respects she has cared for him most admirably. The difficulty in the case arises because her devotion to her son has led her into conflict with the professionals who have a crucial role to play in controlling his epilepsy. They believe that he is at risk of cumulative brain damage and, at worst, sudden death. His epileptic fits do produce significant symptoms of fatigue, leaving him unable to take much exercise and frequently confining him to the house. His mother has held a belief that the cause of these symptoms is that he suffers the chronic fatigue syndrome known as ME. She began, therefore, to disagree with the treatment he was being prescribed. On 7th July 2007 P was admitted to hospital in an emergency because he was suffering prolonged epileptic seizures which were life threatening. AH had without medical advice withdrawn all his anti-epileptic medication some few days previously.
3. This led on 15 November 2007 to the institution of these proceedings by the PCT. The Court of Protection has been satisfied that he lacks capacity and there have been a number of contested hearings to determine P's future.
4. One related to resolving the dispute over the cause of his lassitude and whether a full assessment of his needs required his admission to hospital as an in-patient. On 25th June 2008, after a hearing over two days, the President, Sir Mark Potter, acceded to the application and gave directions for that assessment. He gave judgment in open court and the report of that judgment was published as [2008] EWHC 1403 (Fam) and is therefore fully reportable, subject to the usual restrictions on the identification of the parties.
5. P was duly admitted to a clinic and the treating clinician concluded that he did not suffer from ME. In due course he was discharged, not back home to his mother but to a residential facility in the area. He returned home for a trial period but that placement broke down and he returned to the residential home.
6. The matter came back before Hedley J. on 21st December 2009 for the substantive hearing when the issue was whether or not, as the PCT supported by the Local Authority and Official Solicitor advocated, P should be provided with independent living accommodation with limited contact to his mother or whether, as AH submitted, she should resume the care of P on a full time basis, acknowledging, in theory at least, the need for P gradually to move to independence at a pace which he could accommodate. Hedley J. said this of AH:

"24. [She] is undoubtedly a complex character, but of a type one has met before as a carer of those with special needs. She is and has been for over 18 years, single-mindedly devoted and committed to the care of P, and although it is an exhausting prospect, is determined to maintain that stance into the indefinite future. She has given to him an emotional warmth and stability which he so severely lacked when he came to her, and he is a far less emotionally damaged and vulnerable person now than anyone in 1992 had the right then to expect. The credit for that, and it is a huge achievement, belongs unarguably to AH.

25. However, it has come at a considerable cost to them both. It is utterly clear that they have been deeply and, as I find, unhealthily enmeshed with one another, so much so that when speaking to either about themselves or about the other, it is quite impossible to discern whose voice is actually being heard.

26. On the one hand, AH became deeply concerned that P was effectively an invalid with ME whilst on the other, she has fought to protect him from the intrusion of, as she sees it, incompetent, indeed mendacious professionals."

7. In a long and careful judgment, again delivered in open court, Hedley J. explained why "the disadvantages of a return to AH very significantly outweigh the advantages and by the same token, the advantages of independent living outweigh its undoubted disadvantages". He recognised that the question of contact was a delicate one and he foresaw the need for some control. He directed that there be a review of the case nine months after he was placed in this independent accommodation or within 12 months from that date.
8. 8th December 2010 was fixed for that review to be heard by Hedley J. and for the giving of any further directions for the hearing of the troublesome question of the contact P should have with AH.

The Independent Newspaper's involvement

9. The Independent has developed an interest in the workings of the Court of Protection which it condemns as "one of Britain's most secretive courts". This interest had led the Independent, with other newspapers, to apply, as it happened, to Hedley J. to be granted access to the hearings brought by the family of a blind musical prodigy seeking to be appointed as his deputies to take decisions on his behalf in relation to his personal welfare and his property and other affairs. Hedley J. granted permission and the Official Solicitor appealed, but the appeal was dismissed: see Independent News and Media and others v A [2010] EWCA Civ 343, [2010] 1 WLR 2262.
10. It may be – but it is not entirely clear – that AH directly or indirectly tipped the Independent off to this case. However it may be that they came to learn of it, the Independent's legal department emailed the Court of Protection on 22nd November 2010 attaching an application notice giving the correct number of the case and seeking "permission to attend the hearing and to report the hearing subject to the court's discretion to decide which, if any elements, may be reported". The application made it clear that "we are willing to take the judge's guidance on what can and cannot be published bearing in mind the statutory automatic anonymity for all those concerned."
11. Not having heard from the court office, the Independent made further enquiry and was informed that the matter had been transferred to the Royal Courts of Justice and would be placed before Hedley J. who was then out on circuit. It was not until 7th December that the legal department were informed that its application would be heard immediately prior to the hearing fixed for the following day, 8th December 2010.
12. The Independent's appearing by counsel took the other parties by surprise since no application had in fact been issued and they had not the slightest idea that the day would be interrupted by having to deal with this intrusion. They made their protest loud and clear. Hedley J. dealt with that as follows:

"2. … this application was not effectively served on any of the parties until the day of the hearing. That is clearly unsatisfactory. The reason that that has happened is because the applicants relied on email transmission to the Court of Protection office at Archway and that never yielded what they expected it to yield, namely, the sending out of an application form which could then be served on the parties.

3. Two matters flow from that. One is it is the obligation of any applicant to ensure that parties are served in good time and secondly, that reliance on email communications as a way of initiating an application is one that is not effective and the matters will have to be addressed in the conventional way. In the event, it has been accepted on all sides that this matter needs to be dealt with now, as otherwise it would result in an entirely unnecessary adjournment of the review proceedings which would be doubly unfortunate, given that this is a case from [out of London].

4. The second matter is that it merely illustrates that there are still some difficulties in terms of how the press and media generally play a role in Family and Court of Protection proceedings. It is usually the press that are in the position of complaining about want of notice in injunction proceedings. It merely illustrates that clear working procedures have still not yet been fully worked out in this rather difficult area. That said, I intend to entertain and deal with this application.

5. The second observation is this. This application (succinctly argued though it has been) raises some really quite difficult issues but almost a policy decision has been taken that the court must deal with these applications summarily and therefore I propose to give an ex tempore judgment even though some further deliberation might otherwise have been justified. Unless the Court accepts the discipline of summary determination and ex tempore judgment, cases are likely to be unnecessarily and significantly delayed each time an application of this sort is made."

The hearing before Hedley J.

13. He noted the distinction drawn in the rules to which we will refer in a moment between authorising attendance at what would otherwise be a private hearing and giving authority to report the proceedings. He applied the two-stage process prescribed by Independent News Media v A that the media must first show good reason why they should be permitted to attend and secondly, if they can, then the court must strike the balance between the article 8 and article 10 rights of the patient and the media. He held:

"9. … It seems to me that the workings of the Court of Protection are, and mostly certainly should be, a matter of public concern and information. This case is unusual in that it illustrates in a peculiarly vivid way the powers of the court in intervening in what appears to be a common view of mother and son that they should be allowed to live together but that the son's interests are in fact not served by that approach and the court has so found and has made contrary orders."

14. Unlike the case of A this was not "a striking good news story". Nevertheless:

"10. … it affords a valuable insight into the range of powers of the Court of Protection and, potentially, valuable insight into the way in which the High Court is disposed to exercise those powers when satisfied about the best interests of an incapacitated person. I conclude, for those reasons, that the press have established good reason which leads me on to the balance between article 10 and article 8."

15. The submissions of those opposed to the application centred on the Article 8 rights of P though the rights of AH were not excluded from consideration. The judge felt two matters were particularly material.

"15. … The first is that the court will have the ability to maintain the anonymity of the parties and, indeed, the area in which the parties live, save in so far as it is discernible from the original judgment, and thus to restrict the direct impact of any reporting on [P] himself. It would, I think, tilt the balance seriously the other way if there was to be a disclosure of this young man's name and whereabouts but that seems to me something over which the court retains control.

16. The second matter is this. In so far as AH has been encouraging the publicity of this case and in so far as she seeks to make use of that so as to increase her influence over [P] those seem to be matters that ought to be addressed within the contact proceedings because they merely emphasise (if emphasis be needed) the difficulties that the contact regime presently occasions for [P] himself. They do not seem to me, of themselves, to produce a position where article 8 rights outweigh article 10 rights.

17. I have one other point that I add to this consideration which is more within my own experience than otherwise but, in my experience over my nine years on the High Court bench, whenever journalists have been permitted to attend court, the ultimate reporting has always been fair, accurate and impartial and I personally am impressed by an argument which says that it is much more likely to be that if the journalist has listened to the proceedings than if the journalist is dependent on other sources of information particularly if the other sources of information have an interest in the proceedings and a limited perception of the true breadth of the issues being considered by the court.

18 For all those reasons, I have come to the conclusion that the court should make an order permitting that the particular member of the press on whose behalf this application is made should be allowed to remain and listen to the review but I have made it clear that I do not intend in any circumstances to be persuaded away from the continued anonymisation of these proceedings."

16. The judge thus made the order now under appeal with permission granted by Wilson L.J. The order provides that:

"1. The IPL is permitted to attend the hearings in this matter, without prejudice to the exercise by the judge of his power to exclude the IPL at future hearings;

2. The IPL is permitted to report the judgment handed down by Hedley J on 8th December 2010 relating to its application for permission to attend the hearing; …

4. The IPL is permitted to report the judgment in the substantive application," (which I take to be the judgment that followed later that day).

17. There was some confusion about the ambit of this order but the judge gave this clarification:

"My order has the effect of allowing press to attend any future hearings unless and until otherwise ordered by the judge taking that hearing on application to him by any party. It does not permit any reporting which is a matter for the judge conducting that hearing."

18. A second order dealt with the review and directions. It recited that the local authority agreed that they would provide a management instruction to those staff providing care to P on a day to day basis that those staff were to take all reasonable steps to ensure that he was not made aware of the fact of or the content of any media reporting of this case. Then it was ordered that:

"The second respondent [AH], whether by herself or the instruction or encouragement of any other person, shall not, by any means, bring to the attention of [P] the fact of, nor the content of, any media reporting of this case. Any person with knowledge or notice of this order or the judgment made on this date, shall be held in contempt of court if they bring or attempt to bring to [P's] attention the fact of or the content of any such media reports."

19. The Independent duly published an account of what had happened when the "secretive court opens the doors to journalists". We have read it. To our mind it is a report to which no offence can (or should) be taken: in truth the article strikes us as wholly unexceptionable.

The statutory framework

20. The Mental Capacity Act 2005 established the Court of Protection as a superior court of record and the Act made new provisions for persons who lack capacity in relation to any matter. Section 2 identifies such a person as one who is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. Section 1 establishes certain general principles:

"(1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests."

Section 4 assists in determining what those best interests are and how they are to be determined. The person making the determination must consider all the relevant circumstances and must consider, so far as is reasonably ascertainable, the person's own wishes and feelings, the beliefs and values that would be likely to influence his decision if he had capacity and the other factors that he would be likely to consider if he were able to do so.

21. The Court has power to make declarations as to whether a person has or lacks capacity and as to the lawfulness of acts done or yet to be done in relation to that person. There is power under section 16 to make decisions concerning the person's personal welfare or his property and affairs. Section 17 provides:

"(1) The powers under section 16 as respects P's personal welfare extend in particular to—

(a) deciding where P is to live;

(b) deciding what contact, if any, P is to have with any specified persons;

(c) making an order prohibiting a named person from having contact with P …"

22. Section 51 of the Act provides that rules of Court may be made and subsection 2(h) further provides that the rules may make provision:

"for enabling or requiring the proceedings or any part of them to be conducted in private or for enabling the court to determine who is to be admitted when the court sits in private and to exclude specified persons when it sits in public."

23. The Court of Protection Rules 2007 set out the overriding objective:

"(3) These Rules have the overriding objective of enabling the court to deal with a case justly, having regard to the principles contained in the Act."

24. Part 13 of the Rules is relevant. This provides:

"90.— The general rule - hearing to be in private.

(1) The general rule is that a hearing is to be held in private.

(2) A private hearing is a hearing which only the following persons are entitled to attend—

(a) the parties;

(b) P (whether or not a party);

(c) any person acting in the proceedings as a litigation friend;

(d) any legal representative of a person specified in any of sub-paragraphs (a) to (c); and

(e) any court officer.

(3) In relation to a private hearing, the court may make an order—

(a) authorising any person, or class of persons, to attend the hearing or any part of it; or

(b) excluding any person, or class of persons, from attending the hearing or any part of it.

91.— Courts general power to authorise publication of information about proceedings

(1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private may be published where the court makes an order under paragraph (2).

(2) The court may make an order authorising—

(a) the publication of such information relating to the proceedings as it may specify; or

(b) the publication of the text or a summary of the whole or part of a judgment or order made by the court.

(3) Where the court makes an order under paragraph (2) it may do so on such terms as it thinks fit, and in particular may—

(a) impose restrictions on the publication of the identity of—

(i) any party;

(ii) P (whether or not a party);

(iii) any witness; or

(iv) any other person;

(b) prohibit the publication of any information that may lead to any such person being identified;

(c) prohibit the further publication of any information relating to the proceedings from such date as the court may specify; or

(d) impose such other restrictions on the publication of information relating to the proceedings as the court may specify.

92.— Court's power to order that a hearing be held in public

(1) The court may make an order—

(a) for a hearing to be held in public;

(b) for a part of a hearing to be held in public; or

(c) excluding any person, or class of persons, from attending a public hearing or a part of it.

(2) Where the court makes an order under paragraph (1), it may in the same order or by a subsequent order—

(a) impose restrictions on the publication of the identity of—

(i) any party;

(ii) P (whether or not a party);

(iii) any witness; or

(iv) any other person;

(b) prohibit the publication of any information that may lead to any such person being identified;

(c) prohibit the further publication of any information relating to the proceedings from such date as the court may specify; or

(d) impose such other restrictions on the publication of information relating to the proceedings as the court may specify."

93.— Supplementary provisions relating to public or private hearings

(1) An order under rule 90, 91 or 92 may be made—

(a) only where it appears to the court that there is good reason for making the order;

(b) at any time; and

(c) either on the court's own initiative or on an application made by any person in accordance with Part 10.

(2) A practice direction may make further provision in connection with—

(a) private hearings;

(b) public hearings; or

(c) the publication of information about any proceedings."

25. An application for an order under rule 90, 91 or 92 must be commenced by filing an application notice form using COP 9 in accordance with Part 10 of the Rules. Rule 80(1)(b) provides that where an application is made, the applicant must serve the application notice on every party to the proceedings as soon as practicable and in any event within 21 days of the date on which it was issued. Having regard to the court's case management powers provided by rule 25(2)(h), the court should consider whether to direct that the application should be dealt with as a discrete issue.

Procedural unfairness

26. The hearing fixed for 8th December was an important hearing as the court was reviewing the arrangements that had been made for P's residence and since the restrictions on P's movements and his placement in the residential unit raised issues under article 5 of the ECHR, it was essential to hold the fixture. The other pressing issue was to decide whether to restrict mother's contact. A day had been set aside for the review and for directions. None of the parties were aware of the application to be made by the Independent. It was sprung upon them on the day of the hearing. Not surprisingly they protested that they had been ambushed and that the hearing had been hijacked. The Official Solicitor as P's next friend sought an adjournment to lead expert evidence on the effect the application would have on P.
27. We have set out at [12] above how robustly the judge felt he had to respond. We cannot see how he can fairly be criticised for deciding to deal with the case there and then. The application was to attend that hearing and he could not properly deal with that question by adjourning the application to the date after the conclusion of the very hearing in which the media were interested, nor could he even put the hearing of the application back to the end of the day. That would have denied the applicant the very privilege they were seeking to claim. We fully appreciate the argument that the Independent would have itself to blame if its reporter had been excluded since it had failed to follow the proper procedures for making applications within the rules. Their attempts to issue the application were totally inadequate and rightly the subject of criticism by the judge. No good reason is given why the legal department could not attend the court office which is the way business is ordinarily conducted. It is not good enough to resort to email communication. The judge was alive to all that.
28. Other factors had to be considered as well. The local authority and the PCT had attended by counsel at considerable public expense. The matters listed for hearing could not sensibly be adjourned. To bring the parties together on another day would have been another considerable expense and the judge was entirely right to have regard to the wasted cost that would follow. Far better that the judge gets on with the task than that he procrastinates.
29. As for the handicap that the Official Solicitor had no opportunity to place expert evidence before the Court, that disadvantage has now been addressed and a report has been obtained from the treating clinician and placed before us. It is a report "regarding impact of media reporting" on P with particular regard to the article published in the Independent on 9th December 2010. Dr M expresses his opinion that:

"If [P] were by chance to come across the article in the Independent he would be unlikely to either identify himself in the article or apply the circumstances to his own.

…

Future newspaper articles, both national and local, and broadcast media reporting either on radio or television are likely to increase the probability of the case coming to the attention of those who know or associate with [P] and to [P] himself.

…

If [P] believes that information about him is being shared with the media it will contribute to a sense of distrust. This will seriously undermine his care plan and developing therapeutic relationships.

…"

30. Although we are content to admit this fresh evidence, in our judgment it does not impeach Hedley J.'s decision. It does not suggest that any harm to P would follow from the mere attendance of the press to witness the conduct of the hearing. So far as reporting the proceedings is concerned Dr M accepts that P himself is unlikely to link himself with any report of his case. There is a chance that those caring for him or knowing him in the local community might associate the article with him but the judge has taken adequate steps by his orders to ensure that third parties do not impart unhelpful knowledge to him.
31. We fully appreciate that the Official Solicitor, the local authority and the PCT laboured under the difficulty of not being prepared to deal with an application sprung upon them, but having made their protest, they had to bow to the inevitable and deal with the application as best they could. They were right to do so in the unhappy circumstances. There undoubtedly was pressure upon them to do so and the judge cannot be criticised for taking the sensible and pragmatic course he did to get through the day's work. His was a robust but nonetheless fair and proper decision which we would uphold.
32. This Court is invited to give guidance as to how these applications should be managed. We decline to do so. It is not for this Court at this early stage in the life of the Court of Protection to lay down rules for the proper way in which the media must make their applications. The President and the judges of the Family Division must, in the light of their much greater experience of the day to day working of the court and the pressures upon it as its workload explodes, begin to establish the proper practice and the best way to cope with the unexpected applications made under rules 90 to 93. It is not for us at this time and certainly not in this case to lay down practice directions from on high.

Was there good reason for making the order?

33. By virtue of Rule 93(1) any order authorising attendance of an outsider at the hearing or authorising the publication of any information relating to the proceedings can only be made where it appears to the court that there is good reason for making that order. What constitutes good reason was considered by this Court in Independent News & Media Ltd v A. In giving the judgment of the very strong court being the Lord Chief Justice, the Master of the Rolls and the President of the Family Division, Lord Judge C.J. remarked that it was an "extraordinary case" as A, a thirty year old man, was born blind, suffered learning difficulties associated with autism spectrum disorder and was accordingly incapable of leading an independent life. Yet he was simultaneously, despite those severe disabilities, a man of remarkable accomplishment, a musical prodigy, who had won international acclaim. The compelling human interest in this life story of triumph over disability had attracted public attention in the media. The application before the Court of Protection was for the appointment of his family as his deputy to take decisions on his behalf in relation to his personal welfare and his property and other affairs. The Independent made application to be granted access to the forthcoming hearing. That application was, as it happens, heard by Hedley J. and the effect of the order he made was to enable a designated representative of the media to attend the hearing in the Court of Protection and thereafter to apply to the judge for his authorisation to enable them to publish information disclosed in the proceedings. It is exactly the same application as has been made in our case. The court held:

"10. Rule 90 is clear. Hearings will normally be held in private. The court is vested with a permissive power to enable anyone, or any class of people, to be present at the hearing. The permissive power is not confined to but it includes representatives of the media. Similarly, with the court's jurisdiction to authorise the publication of information which relates to the proceedings, including, of course, the hearing itself: anyone or any class of people may apply.

11. None of these orders may be made unless there is "good reason" for making it. We do not propose to re-write the words "good reason". They mean what, taken together, they say. Arguments about whether the general rule that the hearing should be in private amounts either to a presumption or to a starting point are in practice unlikely to be anything other than semantic. If in the judgment of the court there is good reason to grant the authorisation, the order may be made: otherwise not. No doubt more compelling reasons would be likely to be required in support of a full public hearing rather than a suitably anonymised publication of the court's judgment. In agreement with Hedley J, we would emphasise that, even when good reason appears, before the necessary authorisation can be granted better reasons may lead the court to refuse it. Accordingly the reality is that provided good reason appears, the court will then assess all the relevant considerations and make a balanced, fact-specific judgment whether the specific authorisation should be granted. In other words, before the court makes an order under Rules 90 to 92, a two-stage process is required; the first involves deciding whether there is "good reason" to make an order under Rule 90(2), 91(1) or 92; if there is, then the second stage is to decide whether the requisite balancing exercise justifies the making of the order."

34. The Court explained:

"19. The new statutory structure starts with the assumption that just as the conduct of their lives by adults with the necessary mental capacity is their own affair, so too the conduct of the affairs of those adults who are incapacitated is private business. Hearings before the Court of Protection should therefore be held in private unless there is good reason why they should not. In other words, the new statutory arrangements mirror and rearticulate one long-standing common law exception to the principle that justice must be done in open court."

35. The Court concluded:

"22. … because A's remarkable situation, including (in particular through the medium of the published biography) details of his private life, is already in the public domain that the interests of the public and the media are legitimately engaged. … Therefore, while the presence of a small number of media representatives would somewhat reduce the privacy of the proceedings, it would enable those representatives to be fully aware of the issues which may be of legitimate interest to the public and to make better informed submissions to the judge about the matters for which publication should be authorised.

23. We should add that it would be difficult to find a more appropriate hearing before the Court of Protection for media understanding of its processes. It is valuable for the public to be fully informed of precisely what happens in a court in which the overwhelming majority of hearings are, in accordance with the statutory structure governing its process, to be conducted in private. That is a particularly significant point at this time, in the light of the interest and concerns which have been expressed in some quarters about the new Court of Protection. That feature of the case, and Hedley J's reasoning, merits attention in the context of the high public interest element of this case."

36. Miss Cherie Booth Q.C. who now appears on behalf of the Official Solicitor submits that the judge erred in finding that there was good reason to permit the Independent to attend the hearings and also to permit the newspaper to report the judgment he handed down that day. She submits that there was no material that was already in the public domain and therefore no legitimate questions that a reasonable person would ask about P. There was nothing in his case that could be said to be of compelling human interest as it was in A's case.
37. In our judgment that is not a fair criticism. The judge recognised the differences between the case before him and Independent News and Media Ltd v A but he held that despite the higher public profile of A in that case, this case is itself an unusual example of the vivid way the powers of the court can be exercised to remove this disabled young man from the care of his mother: see paragraph 9 of his judgment cited at [12] above. The publication of the previous judgments of the court had already put P's circumstances before the public and the Independent had already reported on the case. There was, therefore, continuing public interest in the eventual outcome.
38. Miss Booth submits that interest in the working of the court cannot alone constitute a good reason for permitting access to journalists for if it were, that interest pertains to all cases and the exception would become the rule. The Official Solicitor has placed evidence before us that he acts as litigation friend for persons who lack mental capacity to make decisions for themselves in some 442 cases. He was excluding cases which relate to a person's property and affairs. Of the healthcare and welfare cases a very common dispute if where a public authority, either a local authority or a primary care trust, is in dispute with an incapacitated person's close family about where that person should live and in what way and by whom the person should be cared for so that the issues which arise in this case are not at all exceptional. That may be. The very fact that the issues which arise in this case are common to many others seems to us to add weight to the Independent's argument that, publicity having been given to this case, there remains good reason to see the case through to its conclusion. The grant of permission in this case will not open the floodgates: each case must be decided on its individual merits and the prevailing presumption of no invasion of the privacy of the proceedings prevails unless good reason is shown in that individual case.
39. Miss Booth submits that the maintenance of P's privacy is vital in this case because media attention will undermine the therapeutic work he receives and hinder his wellbeing. The Official Solicitor was disadvantaged in the hearing before Hedley J. in not having had notice of the application and not having had, therefore, the opportunity to present to the court the evidence to support such a submission. Miss Booth accepts that we are not under that disadvantage because we have the benefit of the report of Dr M. That report is essentially directed to the "impact of media reporting". It did not deal at all with the antecedent question of leave being granted to the journalist to attend the hearing in order to be better informed not only about the workings of the court but about those matters which the press would then wish to report. Comment about the secret workings of the Court of Protection can have no impact on this patient's wellbeing. In so far as private and personal facts relating to P were to be reported, the judge availed himself of the powers given to him by Rule 91(3) to impose restrictions on the publication of any information which would identify P. He accepted that the local authority would provide a management instruction to those members of the staff providing care to P on a day to day basis so as to ensure that P would not be made aware of the fact of or the content of any reporting of his case. AH was made subject to an injunction that she would not bring to P's attention the fact of nor the content of any reporting and the order makes plain that any breach would be treated as a contempt of the Court. Given that recital to the order and that injunction, the judge properly exercised his discretion to reduce the limited risk of publicity adversely affecting the wellbeing of P. It should also be noted that the publicity was limited to reporting what took place on 8th December 2010. The judge was not in any way fettering the discretion of the judge who was to hear the contact dispute in February and there was, therefore, ample opportunity for the Official Solicitor to be prepared to protect P's interests at that further hearing.
40. In our judgment Hedley J. approached this question in accordance with the guidance given by the Court of Appeal in Independent News & Media Ltd v A; he correctly acknowledged the previous press interest in this particular case; he was entitled to find it was a vivid example of the work to be done in the Court of Protection and he was right to find that the functioning of the Court of Protection is a matter of legitimate public interest. He was fully entitled to find, indeed was correct to find, that there was good reason for the limited intervention sought by the Independent.

Do P's Article 8 rights outweigh the media's Article 10 right to freedom of expression?

41. As the Court of Appeal recognised in paragraph [19] of its judgment in Independent News & Media Ltd v A, just as the conduct of their lives by adults with the necessary mental capacity is their own affair, so too the conduct of the affairs of those adults who are incapacitated is private business. The Court went on to say:

"27. In our judgment the considerations which arise under article 8 are effectively encompassed within the legislative structure of the 2005 Act and the rules made under it. The privacy rights of those involved in proceedings in the Court of Protection are addressed by the over-arching principle that the hearing should normally be a private hearing from which the media, or indeed any other outsiders, are excluded. As we have explained, in essence this structure follows well-established common law principles governing the way in which the affairs of patients, who do not come to court as well informed volunteers, but who are vulnerable and under disability, are provided with many of the same safeguards as those provided to children, who for different reasons are subject to disability."

42. The judge accepted the submissions that Article 8 was engaged because P "is particularly vulnerable because of the unusual relationship which he has with his mother AH which it is said effectively disables him from independent living". Contrary to Miss Booth's submission, therefore, it seems to us that the judge did have proper regard to the extent of the rights conferred by Article 8 which require respect for a person's physical and psychological integrity.
43. On the other hand, section 12(4) of the Human Rights Act 1998 enjoins the Court to have "particular regard to the importance of the Convention right to freedom of expression." Thus the judge had a difficult balance to strike and the approach which should be adopted on an appeal of this kind is now settled. As it was put in Brown v Associated Newspapers Ltd [2007] EWCA Civ 295, [2008] QB 103 at [45]:

"Although the exercise upon which the judge was engaged was not the exercise of a discretion it was similar in that it involved carrying out a balancing exercise upon which different judges could properly reach different conclusions. In these circumstances it is now well settled that an appellate court should not interfere unless the judge has erred in principle or reached a conclusion which was plainly wrong or, put another way, was outside the ambit of conclusions which a judge could reasonably reach."

44. In our judgment Hedley J. did not err in principle, he did not have regard to any fact to which he ought not have had regard nor did he fail to take into account any material matter. His judgment fell within the generous ambit in which there is reasonable room for disagreement: indeed, so far as we are concerned, he reached the right conclusion.

Meeting P's best interests

45. It is submitted that the judge failed to have regard to P's best interests. Reliance is placed on Rule 3 which sets out the overriding objective to enable the court to deal with the case justly having regard to the principles contained in the Act and among those principles is that contained in section 1(5) which we repeat for convenience, namely:

"An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests."

46. For our part we do not see that principle having any application to the question the judge had to decide. Permitting the press to attend and permitting the press to report the judgment is not an act done or decision made for or on behalf of the disabled person. Section 1(5) is concerned with acts done or decisions made in relation to the management and administration of that person's property and affairs or to decisions relating to his health or medical treatment. We are concerned with the decision taken by the court about the administration of the court's process and it falls outside section 1(5).
47. If section 1(5) were to apply, then it would give the court a discretion. In the great case of Scott v Scott [1930] A.C. 417 where the issue was whether the divorce courts had the power to hear a nullity suit in camera, Lord Shaw of Dunfermline, in a powerful speech in favour of open justice, observed scathingly at p. 477:

"To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand."

48. In wardship the court always has a discretion and must exercise it in a manner which makes the welfare of the child the paramount consideration but that does not apply when the court had to balance the interests of the child against the freedom of the press. As Lord Denning M.R. put it in In Re: X (A Minor) (Wardship: Jurisdiction) [1975] Fam 47, 58G:

"It would be a mistake … to give the judges a power to stop publication of true matter whenever the judges – or any particular judge – thought it was in the interests of a child to do so."

That has been consistently followed: see, for example, R v Central Independent Television Plc [1994] Fam 192.

49. In our judgment, therefore, section 1(5) does not govern or dominate a decision to be taken under rules 90 to 93: there is no requirement for the decision to be dictated by the best interests of P. Welfare is not the paramount consideration trumping all other considerations. That is very far from saying that his best interests are ignored or are irrelevant. The impact upon him will always be a material factor, its weight depending on the particular facts and circumstances of the individual case. In deciding whether or not there is good reason for the media's attendance or reporting, the judge is bound to have regard to any ill-effect it may have on the person concerned. Otherwise he cannot deal with the case justly.
50. We are totally satisfied that Hedley J. had P's interests well in mind throughout the hearing before him. He was fully aware of his vulnerability and of the effect publicity could have upon him. Hence the safeguards he imposed. His decision remains beyond challenge.

Conclusion

51. We heard this appeal on 1st February as a matter of urgency in order not to derail the substantive hearing which was due in court the following week. Having heard the argument we dismissed the appeal saying that we would give our reasons for doing so later. This is the judgment of the court setting out the reasons which led us to dismiss the appeal.