The Court of Appeal (CoA) allowed an appeal against an order requiring disclosure of position statements to a non-party observer in Court of Protection (CoP) proceedings. The Court held that such proceedings remain private by default, even where hearings are directed to be held in public, and that position statements require court authorisation for disclosure to non-parties.
Background:
Following a cardiac arrest in May 2024, Mr. Gardner suffered a hypoxic brain injury, entering a prolonged disorder of consciousness that left him entirely lacking capacity. In August, his fiancée revealed a "living will" containing an advance decision to refuse treatment (ADRT) alongside associated letters. These letters contained highly sensitive personal information and serious family allegations of fraud. His fiancée launched CoP proceedings in November 2024 to restrict family access and seek a welfare deputyship, a role later assumed by an Integrated Care Board (ICB). As severe end-of-life medical treatment was at stake, the CoA directed that the hearings be held in public, with a standard transparency order protecting identities.
The appellant family legally challenged the ADRT's validity and applicability under Section 26(1) of the Mental Capacity Act (MCA) 2005, asserting that it had been procured through fraud. Consequently, raw and unproven fraud allegations were reproduced within confidential legal position statements.
On 30 June 2025, the first day of the fraud trial, the appellant unexpectedly withdrew her allegations to prevent the sensitive claims from being aired in open court, allowing Mr. Gardner to be moved to a hospice for palliative care. Immediately following this highly emotional hearing, Professor Kitzinger applied for all historic position statements to understand how the case had "unfolded" for her educational blog and personal end-of-life planning. The Judge granted her full retrospective access, ordering full disclosure just as Mr. Gardner entered his final week of life before dying on 8 July 2025. The family appealed the disclosure order.
Decision:
The CoA entirely set aside the Lower Court’s order, allowing the appeal on two comprehensive grounds. First, the Appellate Court fiercely criticised the procedural handling, noting that the first-instance Judge had used pejorative language against a family whose stance actually aligned with prior case management orders. It ruled that a casual observer's personal interest or educational research does not legally justify a retrospective "archive dig" into sensitive, unproven family allegations of fraud that were no longer even active issues in the case. Second, under the substantive law, the CoA dismantled the lower framework by clarifying that allowing public attendance does not ‘magically turn’ a private-by-default jurisdiction into a public civil court. The Judge fundamentally failed to execute the staged rights balancing act mandated by V Associated Newspapers Ltd, which requires a neutral evaluation between Article 8 privacy rights and Article 10 mandated freedom of expression under the ECHR. The CoA noted that the Lower Judge had placed improper weight on the transparency order, leaving the family entirely unprotected from being publicly named alongside their private living will.
Implications:
This ruling provides considerable reassurance that your darkest, most vulnerable moments will not become public discourse. The ultimate implication of this decision is that the CoA has erected a permanent and "protective umbrella" over your private life. If a journalist, academic, or curious blogger sits in on your family court hearing, they do not have an automatic right to demand copies of your private legal arguments or sensitive family history.
The CoA has now established a strict, mandatory two-stage test, one that stops casual observers in their tracks. First, any outside request must explicitly demonstrate to a judge how access to your private documents will advance the principle of open justice or risk being thrown out. Second, even if they have a good reason, any judge must fiercely defend your welfare and human rights above their innate curiosity. Judges have, in effect, been told to flatly decline any distracting paperwork requests that might otherwise delay or impede the Court’s obligations to look after your loved one's best interests. Instead of handing over raw, unproven allegations or deeply personal medical details, courts will now only provide standard, uncontentious, stripped-down summaries of the basic facts. This enables clients to speak openly with their lawyers and present necessary evidence to a judge without the terrifying prospect that their sensitive disputes, unproven claims, or private wills will be data mined, archived, or published online. Such justice protects the vulnerable, ensuring that candour can never again be weaponised at the expense of family dignity.