P (Application to Withhold Closed Material: Concurrent Civil Proceedings), Re
[2024] EWCOP 26
P (by his litigation friend, the Official Solicitor) v Manchester City Council & Ors
12 June 2024
[2024] EWCOP 43 (T1)
Court of Protection
A local authority tried to stop a son's mum from seeing his medical records, worrying it would make him withdraw. The judge said there wasn't enough proof this would happen and refused the request. Because the request was poorly made, the authority had to pay the costs.
Key Facts
- •Application for a closed material order to restrict P's mother's access to his medical records.
- •P is a 27-year-old man with multiple issues and conditions living with his mother.
- •Local authority, ICB, and Trust supported the application, citing concerns about P's disengagement if his mother had full access.
- •P's mother and Official Solicitor opposed the application.
- •Conflicting evidence regarding P's wishes and the risk of disengagement.
- •Capacity expert report pending.
Legal Principles
Necessity is a high bar for overriding the principle of openness and transparency in the Court of Protection.
KK v LCC [2020] EWCOP 64 and Mr Justice Hayden's Guidance of 6 February 2023
The test for a closed material order is one of strict necessity; it must be imperatively demanded.
KK v LCC [2020] EWCOP 64
Court of Protection Rule 19.3: No order as to costs in personal welfare applications is the general rule.
Court of Protection Rules 19.3
Court of Protection Rule 19.5: Departure from the general rule on costs is justified by circumstances such as conduct of the parties.
Court of Protection Rules 19.5
Outcomes
Application for closed material order dismissed.
Insufficient evidence of necessity to justify restricting access to P's medical records; conflicting evidence; risk of disengagement already exists; potential for prejudice to P and his mother's relationship.
Costs awarded against the local authority, ICB, and Trust.
Unsuccessful application; unreasonable pursuit of an unusual application with insufficient evidence; flawed arguments; disregard for transparency and openness.