Clare Jaycock writes:
On 15 February 2011 Hedley J ordered that a case proceeding in the Court of Protection which featured medical information of the highest sensitivity should be held in open court. The Court of Protection normally hears such cases in private.
The case concerned a young woman aged 21 with severe learning difficulties who was expecting her second child. The application, made by her mother, was for her daughter to be sterilised to prevent her becoming pregnant again. The case, which was adjourned, will turn on whether it is established that the daughter lacks the capacity to make decisions about contraception and, if so, whether sterilisation would be in her best interests.
In this instance, Hedley J determined that the case should be heard in open court because of the “legitimate public interest” in the case. The Judge considered that a hearing in open Court would help people’s understanding of the powers of the Court of Protection and provide “a real opportunity for debate” about “why the Court should have these powers and if it should, how it should use them”.
Read more on RPC Privacy Blog.
I’m somewhat surprised by this decision. The court seems to think that by imposing reporting restrictions, it is adequately protecting the woman’s medical confidentiality, but I would disagree with that view. If there are 17 people in the court room who hear sensitive medical information that they would not otherwise be entitled to access or hear, then the woman’s medical privacy and confidentiality have been compromised – even if none of the 17 ever whisper a word to anyone else or publish what they hear.
If the court wants to stimulate “debate,” let it publish a detailed court opinion that describes the background of the case while redacting identifying information.