Press, Perception and the Court of Protection


Having had to study the Mental Capacity Act in fairly great detail, I often have to turn to judgements made by the Court of Protection to extend my general legislative knowledge.

The Court of Protection has a number of functions that can get easily interwoven but generally, it makes judgements about issues of capacity.

It’s always interesting to me how the press report Court of Protection judgements as in general the court sits in private . It isn’t thought of very highly by the press – probably for the very reason that many of the cases take place behind closed doors – which is particularly unusual for a court in the UK. Indeed, it’s traditional journalistic byline seems to be ‘the-secretive-court-of-protection’.

There was a case this week which was heard which involved a pregnant woman with learning disabilities and a decision which was to be made as to whether she should be subjected to a sterilisation following the imminent birth of her child. It is very emotive and difficult as an ethical subject.

The Court decided, unusually, to open up the case to the media with the usual and understandable constraints of anonymising the parties.

What I found interesting was a comparison of reporting about the story before the case was heard and afterwards.

The Daily Mail is a case in point. On Tuesday Morning it published this piece.

They quote a spokesperson for Mencap

David Congdon, of disability charity Mencap, urged the court to ‘tread very carefully.’ He said: ‘It is a gross invasion of someone’s basic rights unless there are clear medical grounds and there do not appear to be in this case.

‘Using sterilisation as a form of contraception is totally unacceptable.

‘Years ago there were lots of cases like this but we hear of very few these days.’

Applications to sterilise women with learning difficulties can come from local authorities and do not require the backing of their families, he said.

‘The family’s position in these issues is not that great, because the person is an adult,’ he added.

‘They have to be consulted, but the application may have been made by social services.’

I can’t say I disagree with Congdon, it is a massive potential infringement of human rights to forcibly sterilise anyone but the weighting in the quote implies that the court disregards the family and it is a cunning and devious decision made by social services. Regardless of the fact that it is a medical procedure and any application would have to be made by the Trust employing the medics who would be responsible for carrying out the task.

The Telegraph use the same quote. As does the Independent which adds

Since the Independent’s battle to open up the Court of Protection, the paper has received numerous calls from people who allege that local authorities have been using the automatic secrecy governing the Court of Protection to severely restrict access to their loved ones. Because the hearings are largely held in private and no court listings are generally published earlier than the afternoon before hearings, it remains difficult to investigate and analyse such allegations.

You see, it’s easy to make one-sided complaints about a Court or a local authority when you only have a part of the story.

It’s easy to accuse ‘social services’ of being overbearing and evil when they are not able to construct any kind of counter-argument for the sake of the service users they represent. I say this having been involved personally in a case which could have been presented in a very one-sided way and would have been prime meat for the front cover of The Daily Mail – however the background of abuse within the family meant that what might have appeared to be callous actions had to be taken. We could never disclose that so would never have been able to defend ourselves.

But back to the secretive Court of Protection. The judgement or lack of it came yesterday as more information about the case was revealed.

It so happens that the woman’s mother was in favour of the sterilisation of her daughter. This is not a situation where the family have been side-lined by any means.

As the Mail put it yesterday

The woman, known only as Mrs P, broke down as she explained the drastic procedure was the only way to spare her 21-year-old daughter the heartache of having further children and being forced to give them up for adoption.

The daughter, known as P, already has one young son and is due to give birth to a girl today by caesarean section.

She was described as ‘sexually healthy and active’ but unable either to exercise restraint, or fully to comprehend the consequences of her behaviour.

Her mother told the Court of Protection that while her family would support these two children, they could not cope with any more.

She said: ‘I want the best for my daughter. We want to keep the children together as a family unit. But obviously we can’t keep on supporting more and more children.

Not really the evil social services taking action behind the backs of families that might have been implied the day earlier from the reporting.

It is an incredibly difficult decision to be made and as it happened, no decision and therefore no sterilisation order was made. The judge, ordered that at present there was no sufficient evidence to meet the criteria for such a drastic action under the Mental Capacity Act and while the best time to perform the sterilisation would have been at the time of the caesarean (which I believe was to take place this week), further hearings will happen over the next few months before a final decision can be made.

Clearly it is not a body that makes heartless and unconsidered judgements for the sake of it and loathe though I am to wander into the comment sections of Daily Mail stories, the difference between tone in the first story where the situation had been set up and has comments such as

‘All those in favor please show us your Nazi membership card as this is exactly what they did, So be very very carefull, many alive now do not understand the implications of what is potentialy a dangerous and devastating and far reaching precedent bought on by these council jobsworths. ‘

And

‘OMG, my blood is boiling reading this tragic story. What right do the council have to do this? How severe are this woman’s learning difficulties? Why not give her a contraceptive jab every 6 months, given at home if need be? Are social services and a representative of the secretive family court going to be present at the birth of the baby, whisk the baby away as soon as it is born and put up for adoption? If this is given the go ahead by the judge and forced sterilisation takes place, this is just the start. We will have crossed a line and the ‘Brave New World’ will begin. ‘

I know the Daily Mail comment section is not the place to look for rational argument and debate but we get a feel of the general perception that this is somehow a ‘council decision’.

After the information is shared in the second article, the tone of the comments change to

It’s sad but i have to agree with the mother. I think she has a very valid point. She will be looking after the children and it will break the WHOLE family’s heart should they have to give up any children for adoption. Also what happens if she falls pregnant every year till she can’t have any more children. The daughter clearly does not understand the situation because of her disability.

And

Unfortunately due to the Human Rights Act, this mother’s desperate plea will be ignored despite the emotional, psychological and physical turmoil this young girl will go through again and the stress and pain for her family. Very sad situation for everybody involved including the unborn baby.

Please don’t assume that I am ‘in favour’ of the sterilisation as a matter of course. I’m not but I do think the decision is absolutely taking place in the right arena where the considerations of P and her family need to be wholly taken into account under the law.

It’s just easy to see, in this case, how easy public perception and tone can be altered by reporting styles and language.

6 thoughts on “Press, Perception and the Court of Protection

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  3. The moral should be that justice must be done in public. The argument that ‘you would agree if only we could tell you’ could be used to hide anything.

    I’m wondering about her capacity to consent to having sex and why we’re not hearing anything about the man involved. Could it be that she’s being taken advantage of?

  4. As someone who regularly uses legal judgments from the Court of Protection, I would much prefer to see more of them in the public domain. I’d prefer not to wonder what the selection criteria are for making some cases public, whilst others pass under the radar. However, having been involved in the court, and the family court, I think it’s important to realise that having the press present can be extremely daunting for families. In many cases family members are representing themselves, because they don’t have access to legal aid. Often they may be entirely unsupported in the court room. Public bodies are usually represented, and are usually more experienced in dealing with the courts, so it may be less personally intimidating to them whilst having a large press audience could place families at an even greater disadvantage. I’d prefer to see judgments published, and reporting bans on families themselves lifted, but I’m not sure I’d want to see the press in the court rooms themselves unless the family themselves want them there.

    I think this post raises some important issues about media reporting on the Court of Protection. I’m constantly appalled at the basic mistakes made by journalists and how they gloss over important issues.

    • ians12 – fair point.

      Mike – That’s also a good point. There are many questions to be asked around the circumstances of the pregnancy, but we are never going to know more than we do at this point and can only assume that they were and are being asked.
      I do think that more understanding and transparency is the way ahead but the consideration of confidentiality is there to counterbalance.
      Hessian Pepper – I agree in that I think the more information we have about the decisions, the more understandable they become. I do trawl around the Office of Public Guardian website but even there the judgements are not very easy to find.
      There seem to be a few more of these cases being opened up.
      I agree that the balance of the decision should remain with the families involved.

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