Gardner (Deceased) (Court of Protection: Disclosure of Position Statements), Re

Court of Protection proceedings remain private by default even where a hearing is directed to take place in public under the Court of Protection Rules 2017. A public-hearing direction does not make the proceedings equivalent to civil proceedings that are public by default. Position statements lodged with the court are court records, and disclosure to a non-party requires judicial authorisation under rule 5.9(2). The applicant must explain how access would advance open justice. If that threshold is met, the court must conduct a fact-specific and proportionate balancing exercise, giving particular weight to P’s Article 8 rights and considering editing or restrictions on use. Open justice does not justify disclosure merely for curiosity, education, research or personal interest. Pending review of the rules, case summaries, chronologies and issues lists will generally provide a proportionate starting point for observers.

The appeal arose from proceedings concerning an incapacitated adult’s advance decision to refuse treatment. The Court of Protection had directed that hearings be held in public subject to a Transparency Order. An observer sought position statements prepared for several hearings, including statements containing sensitive allegations drawn from written evidence. The judge first permitted disclosure at the parties’ discretion, but later ordered compulsory disclosure of statements from four hearings, relying on open justice and the Transparency Order.

The patient died after accepting the effect of the advance decision. His mother appealed, challenging both the procedure used to revisit the earlier disclosure directions and the legal approach to disclosure. The central issues were whether the proceedings were properly treated as public proceedings, whether position statements were court records requiring authorisation, and how disclosure should be balanced against privacy and welfare.

1. Appeal allowed. The order of 14 July 2025 requiring disclosure of the position statements was set aside. The judge had power to vary his earlier case-management direction, but exercised that power unfairly and substantively incorrectly.
2. Court of Protection proceedings are private by default under rule 4.1(1) of the Court of Protection Rules 2017. A direction that a hearing be held in public under rule 4.3 does not convert the proceedings into public proceedings equivalent to litigation in jurisdictions that are public by default. The judge therefore erred in treating the proceedings as public simpliciter and in relying on guidance drawn from such jurisdictions.
3. Position statements lodged with the court are documents in the court records within rule 5.9(2), following Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38; [2020] AC 629. A non-party must apply to the court for access. The applicant must explain the reason for seeking the document and how access would advance open justice. If good reason is shown, the court must then assess the competing factors, practicalities and proportionality.
4. Open justice does not entitle an observer to the entirety of the material informing the judge’s decision. Disclosure should extend no further than essential to the transparency objective. The court must give full weight to P’s Article 8 rights, welfare and participation, and must consider editing, redaction and restrictions on use under rule 5.9(4). Unrestricted disclosure of position statements containing disputed and highly personal source material was neither necessary nor proportionate.
5. The observer’s retrospective request, made at the end of a difficult hearing and expanded to cover earlier statements, gave the family inadequate notice and placed them at an unfair litigation disadvantage. The request was directed substantially to understanding the historical development of an issue that had ceased to require determination, and did not establish a good reason for retrospective disclosure.
6. Pending consideration by the COPRC, the guidance in the lower court’s judgment at [J2/36] should not be followed. Applications should, where practicable, be raised before or at the outset of the hearing. Case summaries, chronologies and lists of issues under PD4B para.4.2(a)–(c) will ordinarily provide a proportionate source of information, leaving any further request to be determined by the judge under rule 5.9.

• Court of Appeal (Civil Division): Appeal allowed and paragraph 2 of the order of 14 July 2025 set aside: [2026] EWCA Civ 640.
• Court of Protection: Mr Justice Poole ordered disclosure of position statements from specified hearings to the observer and directed that the Transparency Order expire on 30 August 2025: [2025] EWCOP 25 (T3).