New guidance on Court of Protection ‘closed hearings’

The Vice President of the Court of Protection has issued guidance on ‘closed hearings’ and ‘closed material’.

In November 2022, following the decision in Re A (Covert Medication, Closed Proceedings) 2022, Mr Justice Hayden convened a sub-committee of the Court of Protection Rules Committee to create guidance to establish a “clear procedure” in which closed material and closed hearings are heard in the CoP. It is emphasised that the guidance document is intended to be by way of “guidance only”.

The guidance defines in its opening paragraphs what is meant by ‘closed hearings’ and ‘closed material’.

‘Closed hearings’ are defined as hearings from which “(1) a party; and (2) (where the party is represented) the party’s representative is excluded by order of the court. For the avoidance of doubt, this is different to a “private hearing” which is a hearing at which all the parties are present (or represented), but from which members of the public and the press are excluded.”

‘Closed material’ is defined as “material which the court has determined should not be seen by the party (and/or their representative).”

The practice guidance also applies to situations where an order may be made that a party (and/or their representative) is not to be told of the fact or outcome of a without notice application.

On the purpose of the new guidance, Mr Justice Hayden explains, neatly:

“In situations which are rare, but which do occur from time to time, it is necessary for the court to consider whether a hearing should be closed and/or for material be closed. Nothing in this guidance is intended to increase the number of closed hearings or applications for material to be closed. Rather, its purpose is to provide clarity as to the principles to be applied and considerations to be taken into account in the very limited circumstances under which such steps may be appropriate.”