The Court of Appeal’s decision in Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements) [2025] EWCA Civ 640 provides welcome clarification on the balance between transparency and privacy within the Court of Protection.
As transparency reforms continue to develop within the justice system, the judgment reinforces an important principle when protected parties are involved. Whilst public understanding of the Court of Protection is valuable, the interests of protected parties must remain paramount.
The decision
The case concerned whether position statements should be routinely disclosed to observers and members of the press attending Court of Protection hearings.
The Court of Appeal confirmed that there is no automatic right to access these documents. Instead, a request for disclosure must be carefully considered against the rights of the protected person and others involved in the proceedings.
In reaching its decision, the Court recognised that Court of Protection cases frequently involve highly sensitive information, which could include medical evidence, family circumstances, financial matters and care arrangements. The principle of open justice must therefore be applied differently in Court of Protection proceedings compared to other forms of litigation.
The Court further highlighted that transparency can often be achieved through other means, such as anonymised judgments, and other neutral documents.
In practice
The issues raised in Re Gardner reflect situations we encounter in practice when working on contentious issues.
Recently, Tom Young and I, along with the other parties received a request on the day of a remote Court of Protection hearing for an observer to attend a hearing concerning a protected party. Whilst we recognise the importance of transparency and the growing interest in understanding the work of the Court of Protection, such requests require careful consideration.
Court of Protection hearings often involve information about personal matters. In many instances, the protected person is unable to express their own views about who should have access to that information and who should not. It is essential that decisions regarding attendance and disclosure are made with the individual’s privacy and best interests at the forefront.
The Court of Appeal’s decision reinforces this approach. Transparency is important, but it should support justice rather than compromise the privacy of those whom the Court of Protection exists to protect.
Why this matters
The judgment provides valuable guidance for deputies, professionals and families involved in Court of Protection proceedings.
Whilst transparency remains an important feature of the justice system we hold in England and Wales, the case confirms that the Court of Protection is a unique jurisdiction where the protection of vulnerable individuals must remain the overriding consideration.
This information is for guidance purposes only and does not constitute legal advice. We recommend you seek legal advice before acting on any information given.
