Observer Granted Order for Disclosure of Position Statements

The Court of Protection has handed down a guideline judgment confirming that observers can, in certain circumstances, be granted access to position statements in sensitive proceedings. This decision strengthens the principle of open justice while maintaining strict safeguards under transparency orders.

The case concerned a patient suffering from a prolonged disorder of consciousness. The Court confirmed that an advance decision to refuse treatment, included in the patient’s living will, was legally binding. As a result, it was ordered that once the patient was transferred to a hospice, clinically assisted nutrition and hydration would be withdrawn in accordance with his wishes. The Court also addressed issues relating to family contact.

At the conclusion of the hearing, an observer who was neither an accredited journalist nor a legal blogger applied for disclosure of the parties’ position statements. Although disclosure had previously been permitted, not all parties had complied.

The Court reviewed the application in light of the existing Transparency Order and relevant authorities. Observing that there was no formal guidance on providing position statements to observers, the Court set out a clear procedure:

• Anonymisation: Parties should prepare position statements in a form that complies with the Transparency Order and anticipates possible disclosure.
• Transparency warning: Position statements should carry a front-page notice confirming that a Transparency Order applies and that breach could amount to contempt of court.
• Observer requests: Observers should ask parties for copies in advance of hearings, giving reasons for their request. If refused, they may apply to the Court for disclosure.

In this case, the Court concluded that disclosure would promote open justice and assist the observer’s understanding of the proceedings, with no risk to the patient or his family. It therefore varied the Transparency Order and directed that all parties’ position statements be provided.

This ruling offers vital clarity on how disclosure of position statements should be managed in Court of Protection hearings, balancing transparency with protection of the vulnerable.