Independent News and Media Ltd & Ors v A

Proceedings under the Mental Capacity Act 2005 are ordinarily private and do not immediately engage the media’s Article 10 rights. An application for attendance or reporting must first satisfy the gatekeeping requirement of good reason under the Court of Protection Rules 2007. That requirement is fact-specific and serves the purposes of protecting privacy and encouraging frank discussion. If good reason is established, the court must then balance the competing Article 8 and Article 10 rights, applying an intense and fact-specific proportionality assessment. Permission may be granted for attendance and limited reporting where material already in the public domain, and information answering legitimate public questions, can be separated from intimate personal, medical and financial details.

The media applied for permission to attend Court of Protection proceedings concerning a severely disabled young adult known as ‘A’, and to report those proceedings, including his identification. The application was opposed by the Official Solicitor, acting as ‘A’s litigation friend. The proceedings concerned the management of ‘A’s personal and financial affairs, his care, and decisions about public appearances. The central issues were the construction of Rules 90–93 of the Court of Protection Rules 2007, the meaning of ‘good reason’, and the interaction between privacy under Article 8 and freedom of expression under Article 10.

1. Application granted in part. The media were entitled under rule 90(3) to attend future hearings, which remained private in all other respects. The court did not at that stage make an order under rule 91(2) or (3) authorising publication.
2. The Mental Capacity Act 2005 and the Court of Protection Rules 2007 formed the governing statutory and procedural framework. Rule 90(1) established privacy as the general rule, while rule 93(1)(a) required good reason before the court could depart from the ordinary arrangements. The expression had its ordinary meaning. It did not require exceptional circumstances, but the word ‘good’ had to be understood in the context of protecting privacy and encouraging frankness.
3. The court adopted a two-stage approach. First, the applicant had to establish good reason for attendance or reporting. This was a gatekeeping inquiry. If good reason was absent, no order could be made under rules 90–92. If it was established, the court was required to undertake the balancing exercise identified in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, while remaining attentive to the statutory purpose.
4. The institution of proceedings under the 2005 Act did not itself engage the media’s Article 10 rights, because such proceedings fell within an exception to the open justice principle. The media nevertheless had procedural rights to apply under rule 91 and had to demonstrate good reason. The making of the application did not itself trigger the balancing exercise.
5. Good reason was established by the combination of the matters already in the public domain, the court’s ability to preserve privacy while addressing the issues, and the substantial public interest in understanding the Court of Protection’s jurisdiction and powers. The subsequent Article 8 and Article 10 balance was fact-specific. It permitted reporting of matters already public and information answering the legitimate questions of a reasonable person aware of those matters, while protecting earnings, care details, family discussions, medical treatment and private decision-making criteria.
6. The judgment itself did not identify ‘A’ or permit reporting capable of doing so pending any appeal or expiry of the appeal period.