Court of Protection issues guidance on ‘closed hearings’ and ‘closed material’

Mr Justice Hayden had set up a sub-committee of the CoP Rules Committee to help formulate guidance following the decision in November 2022 in Re A (Covert Medication, Closed Proceedings) [2022] EWCOP 44.

The aim was “to establish a clear procedure in those, relatively limited number of cases, in which closed material and closed hearings fall to be considered in the Court of Protection”.

The guidance sets out that “closed hearings” are 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” meanwhile is 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 guidance, the Vice President said: “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.”

Mr Justice Hayden also stressed that the document was intended to be by way of guidance only.

The sub-committee comprised Alex Ruck Keene KC (Hon) (Chair), Michael Mylonas KC, Joseph O’Brien KC and Fiona Paterson. It received submissions from Professor Celia Kitzinger, Open Justice (Court of Protection).