During the course of proceedings in the Court of Protection a vulnerable adult was assessed on a number of occasions by a psychologist. One assessment, completed shortly after an educational programme on decision-making relating to accessing the internet and social media, concluded that the vulnerable adult had capacity to access the internet and social media at that time. The police started an investigation into criminal offences, relating to category C images of children, said to have been committed by the vulnerable adult prior to the completion of the aforementioned educational programme and psychological assessment. The police applied, pursuant to rule 5.9 of the Court of Protection Rules 2017, for disclosure of the psychological reports.
On the disclosure application—
Held, application refused; limited summary information provided. (1) When considering a request for disclosure under rule 5.9(2) of the Court of Protection Rules, by a person who was not a party to the proceedings in the Court of Protection but who sought to inspect or obtain a copy of documents in the court records, the court was to apply the criteria and principles set out in established authorities in relation to family proceedings with the necessary changes for the purposes of the Court of Protection (paras 5–6, 7, 8).
(2) It was singularly important that those who were the subject of proceedings in the Court of Protection were able to be frank in their discussions and their co-operation with professionals and have confidence in the confidentiality of the proceedings and, in particular, the confidentiality of assessments of them undertaken for the purposes of determining whether or not they had capacity in the various relevant domains. Similarly, it was supremely important that those who were the subject of Court of Protection proceedings were as frank as they possibly could be to those who sought to assess them and, therefore, disclosing an expert's report to the police ought only to be considered if the weight to be given to the public interest was so great as to outweigh the consideration of frankness. Here, the expert's reports were not relevant to the issue that the police had to determine for the purposes of their potential prosecution of the vulnerable adult, namely whether he had capacity to access the internet and social media during the relevant historic period, which was not addressed in any of the psychological reports. Accordingly, other than informing the police that, in relation to the third report, the expert had arranged for the vulnerable adult to undergo educative work prior to coming to a conclusion, and that her assessment that the vulnerable adult had the capacity to access the internet and social media was limited to that point in time and in the context of the educative work undertaken with him, the application for disclosure was to be refused (paras 10–12).
Summary of factors applied in family proceedings in relation to disclosure applications (para 7).
Joseph O’Brien (instructed by the Official Solicitor) for the vulnerable adult.
Nathan Palmer (instructed by Solicitor, Legal Services) for the police force.