Court of Protection 2021 by Stephen Wood QC
Tue 9th Mar 2021
Disclosure by the Court of Protection to Law Enforcement Agencies.
Stephen Wood QC summarises the important principles of disclosure emerging from the case of In Re AB (Court of Protection: Police Disclosure)  4 WLR 34 and their application to Rule 5.9 of the Court of Protection Rules 2017.
In this case a police force made an application for disclosure of psychological reports prepared by a psychologist in relation to XY.
The police were interested in XY’s capacity to access the internet and social media as they were investigating offences said to have been committed by XY in 2017 and 2018 relating to indecent images of children. The police force told the Court that if the position was that XY did not have the ‘capacity’ they would discontinue proceedings; however, if the Court refused permission to disclose, they would instruct their own psychologist to make an assessment.
At the time XY was the subject of proceedings in the Court of Protection and a highly vulnerable individual.
Practitioners may be aware that in such applications the Official Solicitor acts as the patient’s litigation friend.
In this case the OS opposed the application for ‘blanket’ disclosure of all psychological reports to the police but submitted to the Court that some limited disclosure was sufficient.
During the course of the proceedings before the CofP, XY was assessed by a psychologist on three occasions. The first two reports related only to XYs capacity to conduct litigation and to make decisions about his residence.
Only the third report addressed the issue of XY’s capacity to access the internet and social media.
The Court heard that for the purpose of preparing the capacity assessment on accessing the internet and social media, XY had undergone an education programme in relation to decision-making relating to accessing the internet and social media. It was after he had undergone that programme that the psychologist prepared the third report in which she concluded that at that time, that is May 2019, XY did have the capacity to access the internet and social media.
Rule 5.9 of the Court of Protection Rules (2017) provides for an application to be made by a person who is or was not a party to proceedings in the Court of Protection to inspect any other documents in the court records or to obtain a copy of such documents or extracts from such documents.
The importance of this case is that save for the Rule itself, there was no guidance or ‘steer’ in relation to the principles which ought to be applied in the application of Rule 5.9.
It was submitted on behalf of the OS that the court should adopt the criteria set out in Re C (A Minor) (Care Proceedings: Disclosure)  2 WLR 322 mutatis mutandis to the Court of Protection.
The decision in Re C has recently been approved by the Court of Appeal in the case of Re M (Children)  EWCA Crim 1364.
In Re M, Swinton Thomas LJ set out ten guiding principles in relation to family proceedings as follows: –
“1 The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor.
2 The welfare and interests of other children generally.
3 The maintenance of confidentiality in children cases.
4 The importance of encouraging frankness in children’s cases. All parties to this appeal agree that this is a very important factor………
5 The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice.
6 The public interest in the prosecution of serious crime and punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor.
7 The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order.
8 The desirability of cooperation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly important in cases concerning children.
9 In the case to which Section 98(2) applies, the terms of the section itself, namely that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations.
10. Any other material disclosure which has already taken place.”
Keehan J hearing the application by the police force, agreed that he should apply these principles to Rule 5.9.
In addition, the learned Judge considered that it was appropriate to take account of the fact that XY was opposed to the disclosure of the Reports to the Police and to the public interest in the administration of justice, the public interest in the prosecution of serious crime, and the public interest in convicting those who have been guilty of violent or sexual offences against children.
The Judge observed that those were “plainly important factors which ordinarily carry considerable and even determinative weight in applications for disclosure”.
In this case, however, Keehan J attached particular weight to Swinton Thomas’s principle No 7: –
“The gravity of the alleged offence and [more importantly] the relevance of the evidence to it…”
In this context it was obvious that the first two reports of the psychologist were not conceivably relevant to the question of XY’s capacity to access the internet or social media.
The third report however did touch upon the issue of XY’s capacity to access the internet and social media, but that assessment was reached after XY had undergone a programme of education to assist him to have capacity to make that particular decision and that was in May 2019.
Thus, the third report did not deal with the question of whether AB had capacity on this issue in 2017 and 2018, the period covered by the offences with which XY was charged.
Thus, authorised for disclosure in this case was information confirming that: –
(a) Prior to coming to a conclusion about capacity, the psychologist had arranged for XY to undergo educative work; and
(b) That her assessment that, in May 2019, XY had the capacity to access the internet and social media, was limited to that time and in the context of the educative work undertaken with him.
It may be that this was an inevitable conclusion on the basis of what the Reports actually said. In concluding remarks, no doubt with one eye on future applications, Keehan J said that: –
“the singular importance in cases before the Court of Protection of those who are the subject of the proceedings being frank in their discussions and their cooperation with professionals. It is vital that those who are the subject of proceedings in the Court of Protection have confidence in the confidentiality of the proceedings and, in particular, the confidentiality of assessments undertaken of them for the purposes of determining whether or not they have capacity in the various relevant domains.
It is, in my judgment, supremely important that those who are the subject of the Court of Protection are as frank as they possibly can be to those who are seeking to assess them and, accordingly, I would only consider disclosing the expert’s report to the police if the weight to be given to the public interest was so great as to outweigh the consideration of frankness by XY in the Court of Protection proceedings.
Stephen Wood QC
8th March 2021
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