In AB (Court of Protection: Police Disclosure)  EWCOP 66, a decision handed down in October 2019, but which for some reason did not appear on Bailii until December 2020, Keehan J considered an application for disclosure of psychological reports in relation to the subject of Court of Protection proceedings. The Official Solicitor on his behalf opposed the application and submitted that only very limited information should be provided to the police in relation to the reports.
The background can be described shortly. There were three reports, two relating to litigation capacity and capacity to make decisions about residence, the third addressing the issue of AB’s capacity in relation to access to the internet and social media. For purposes of preparing this report, AB underwent an education programme in relation to decision-making relating to accessing the internet and social media. After he had had undergone that programme that the psychologist prepared her third and final report in which she concluded that at that time AB had capacity to access the internet and social media. The police were undertaking an investigation into offences said to have been committed by AB in between one and two years earlier relating to category C images of children. Subject to the issue of disclosure of the report sought by the police, this investigation was concluded. Keehan J was told by Counsel for the police that if the expert had concluded that AB lacked capacity to access the internet and social media, it was likely the criminal proceedings would be discontinued against AB. Furthermore, if the court declined the police’s application for disclosure, then the police would instruct their own expert to undertake a capacity assessment of AB.
The parties were agreed on the legal principles that should be applied. Rule 5.9 of the Court of Protection Rules 2017 provides for an application to be made by a person who is or was not a party to proceedings in the Court of Protection to inspect any other documents in the court records or to obtain a copy of such documents or extracts from such documents. It was submitted by the Official Solicitor (without dissent) that there was no existing authority on the principles to be applied in relation to such a request for disclosure under Rule 5.9, but it was agreed that the test to be applied was not a best interests test, but rather the test set down in Re C (A Minor) (Care Proceedings: Disclosure)  2 WLR 322, with appropriate modifications. This test contains ten points, as follows:
1.The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor;
2. The welfare and interests of other children generally;
3. The maintenance of confidentiality in children cases;
4. The importance of encouraging frankness in children’s cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which section 98(2) applies…;
5. The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice;
6. The public interest in the prosecution of serious crime and punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor;
7. The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order;
8. The desirability of cooperation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly important in cases concerning children;
9. In the case to which Section 98(2) applies, the terms of the section itself, namely that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations;
10 Any other material disclosure which has already taken place.
Keehan J agreed that he should apply those principles with the necessary changes for purposes of the Court of Protection. At paragraph 8, he noted:
and take account of the fact that AB does not wish these reports to be disclosed to the police. I take account and give considerable weight to the public interest in the administration of justice, the public interest in the prosecution of serious crime, and the public interest in convicting those who have been guilty of violent or sexual offences against children. Those are plainly important factors which ordinarily carry considerable and even determinative weight in applications for disclosure. In this case, however, I attach particular weight to issue 7:
“The gravity of the alleged offence and [more importantly] the relevance of the evidence to it…”
It was only the third report which was of interest to the police in the case, but it did not deal with the question of whether he had had capacity in the period covered by the index offences with which AB was charged. Keehan J therefore held that the report contained nothing of relevance to the police investigation other than for the police to know that: (a) prior to coming to a conclusion, the expert had arranged for AB to undergo educative work; and (b) that her assessment that, in May 2019, AB had the capacity to access the internet and social media, was limited to that time and in the context of the educative work undertaken with him.
Keehan J was fortified in coming to his conclusion by also taking into account
11. […] the singular importance in cases before the Court of Protection of those who are the subject of the proceedings being frank in their discussions and their cooperation with professionals. It is vital that those who are the subject of proceedings in the Court of Protection have confidence in the confidentiality of the proceedings and, in particular, the confidentiality of assessments undertaken of them for the purposes of determining whether or not they have capacity in the various relevant domains.
12. It is, in my judgment, supremely important that those who are the subject of the Court of Protection are as frank as they possibly can be to those who are seeking to assess them and, accordingly, I would only consider disclosing the expert’s report to the police if the weight to be given to the public interest was so great as to outweigh the consideration of frankness by AB in the Court of Protection proceedings. As it is, I have come to the conclusion that the expert’s reports are not relevant to the issue that the police have to determine for the purposes of the prosecution of AB, namely between 2017 and 2018, did AB have capacity to access the internet and social media? As I have already said, the expert does not address that issue in any of her reports. Accordingly, the application is refused.
Given the obvious irrelevance of the reports in question – even the report relating to capacity to access internet or social media – it is not surprising that Keehan J drew the conclusion that he did, although the judgment is a helpful reminder of the time-specificity of capacity.
It is, though, with respect, not entirely obvious that the importance of frankness upon which such weight was placed by Keehan J quite plays out in the same way as it does in relation to children. The C case was not concerned so much with potential incrimination by the child themselves, as by those who might potentially have committed offences against the child. There may, perhaps, be some more links required in the logical chain before the position in relation to the subject of proceedings before the Court of Protection is reached. Perhaps another, more satisfactory way, of framing this would have been to identify that the Court of Protection would be substantially hindered in its ability to discharge its inquisitorial functions if it were deprived of its ability to obtain the best information in relation to the subject of proceedings. The decision does, however, set up an interesting – and unresolved – tension as between the Court of Protection’s functions in considering the best interests of the person, and the wider societal interest in determining both whether that person has committed an offence and, if they have, their responsibility. It is not impossible to imagine a case in which this tension cannot be avoided on the basis of the irrelevance of the information being sought by the police.