P (Discharge of Party), Re

A Court of Protection decision to remove an existing party, withhold material, or dispense with service is a procedural decision. It is not determined solely by P’s best interests under Mental Capacity Act 2005 section 1(5). P’s interests remain central, but any restriction on another person’s procedural rights must go no further than strict necessity.

Natural justice applies in the Court of Protection as in other jurisdictions. Save in truly exceptional circumstances, an active party cannot fairly be discharged without notice, a meaningful opportunity to make representations, and reasons. The court must consider less restrictive measures, including temporary orders, redaction, a gist, limited participation, or a special advocate. Exclusion is a last resort.

P was a highly vulnerable adult who was the subject of Court of Protection proceedings concerning her residence, care and contact. P’s mother had been a respondent for over 18 months.

Following serious new allegations and related local-authority and police investigations, Hayden J heard material in the mother’s absence. On the court’s own initiative, he discharged her as a party without prior notice, disclosure of the material, or reasons. He later adjourned her application for reasons indefinitely.

The mother appealed both orders. The appeal was managed partly by a closed procedure, with a special advocate representing her interests. The central issue was whether the court could fairly remove her as a party in that manner while protecting P from harm.

1. Appeals allowed. The order discharging the mother as a party and the later order adjourning her request for reasons were set aside. Warby LJ and Peter Jackson LJ agreed with Baker LJ.

2. A decision to dispense with service, remove a party, or withhold reasons is a case-management decision. It is not a decision made for or on behalf of P within section 1(5) of the Mental Capacity Act 2005. P’s interests and position nevertheless occupy a central place. Where P’s interests conflict with the affected person’s Convention rights, the conflict is resolved by reference to P’s best interests, but the restriction imposed must be strictly necessary.

3. The Court of Protection’s wide powers under the Court of Protection Rules 2017 do not displace ordinary principles of judicial inquiry. Fairness and natural justice apply across jurisdictions, though their application depends on the proceedings and circumstances. An existing, active party could only conceivably be discharged without notice in an extraordinary case. The appellant had neither notice, meaningful disclosure, an opportunity to address the proposed removal before it was made, nor adequate reasons.

4. The new allegations justified urgent protective action. The judge could initially withhold sensitive information, suspend contact for a short period, exclude the appellant from a hearing, or make other protective orders. Those measures did not establish that permanent removal as a party, without notice, was necessary. The provisional conclusion about contact, reached on one-sided material, did not make the appellant’s continuing participation purposeless.

5. The court should have adopted a staged approach: full participation, then proportionate partial participation through redaction, a gist, restricted disclosure, or other safeguards, and exclusion only as a last resort. A special advocate was a possible, although complex, safeguard. The appellant was restored as a party, but disclosure was withheld for 28 days so that any properly made application to restrict her participation could be considered.

• Court of Appeal (Civil Division): Allowed the mother’s appeals and set aside the orders discharging her as a party and indefinitely adjourning her application for reasons.
• Court of Protection: Hayden J discharged the mother as a party on 3 November 2020 and, on 10 December 2020, adjourned her application for reasons until disclosure could be consistent with P’s best interests.