A third of the way through an unprecedented six-month window into the workings of an obscure part of the judiciary, British journalism seems blinkered, biased and hell bent on missing the boat...
The Court of Protection [CoP] is little known for good reason. The court makes decisions on financial or welfare matters for people unable to make such decisions at the time they need to be made. Hence journalists have been kept from plundering its case load due to its invariably sensitive nature.
Yet there are other reasons that persist like stubborn weeds. Lazy journalism. Churnalism. Plain ignorance. So as spring unfolds, a watershed moment is passing. HM Courts and Tribunals Service had announced a Transparency Pilot: a six month window of opportunity of greater media access to the CoP. Now a third of the way through, the pilot could -should?- radically enrich understanding about this important area of legal work. For sure British journalism could do with a better understanding of the CoP.
Yet in the blink of an eye the most basic recce online conjures up 16 distinct usages of an ill-begotten, inaccurate, default phrase used by journalists – a kind of shorthand – to explain the Court of Protection. According to a very broad spectrum of British journalism The Court of Protection "handles cases involving sick and vulnerable people".
Red tops, right? Wrong...
Inaccuracy spans all the major players or brands: broadcasters like the BBC; national newspapers like The Guardian, The Daily Mail; regional/local papers like Birmingham's Mail or Brighton’s Argus among others. The prevalent cults of copying or churnalism, careless curation, and groupthink aggregation just chug along. So plenty of scope to delve deeper…
Spheres of influence
The majority of news items found are short news reports. Many do not appear to get shared much yet the digital footprint of a longer Daily Mail article apparently ran to 226 social media shares; a Guardian article had 60 shares; a Telegraph article had 50. Those numbers express ripples of interest that might please any professional media publisher or so-called star bloggers/influencers. Indeed there appears no boundary between pro journo and amateur blogger...
Churnalism abounds... "The Court of Protection handles cases involving sick and vulnerable people"
The Press Association (PA) news agency is cited in 7 of 16 examples (43.75%) that parroted the same phrase. Journalists, newspapers, blogs et al continue to copy-and-paste, to do a woeful job of fact checking before reporting and thereby adding to the enduring problems for journalism: poor products.
Aggregation builds... "The Court of Protection handles cases involving sick and vulnerable people"
A second tier of news aggregators, blogs and journals (credibility unknown) was notably found to have adopted the same phrase…
The Patient's Voice, Family Law, Anorexia Information, News RT, HM Immigration
Solutions?
1. Keep it simple
Today's journalism lark is never rocket science. A first port of call for any half-baked hack might be the UK Government’s guidance. Many helpful documents are available at www.judiciary.gov.uk –including their basic intro to the CoP:
"We make decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made (they 'lack mental capacity’)."
2. Cut out the middle man (or brand wielding second-hand info)
Stretching beyond secondary sources (one hallmark of churnalism) it is possible to search and find primary sources. Legal eagles are evidently one source or signpost –and often their thoughts, journal articles, and blogs counterbalance the churnalism offering more accuracy than the hacks in airing this area of legal work.
Solicitors Irwin Mitchell state:
“The Court of Protection is the judicial body responsible for making decisions relating to the management of finances and other affairs of those individuals who lack the mental capacity to do so themselves.”
Irwin Mitchell, notably, provide helpful fact sheets on their web site.
3. Avoid tunnel vision
Don’t fall into the same trap as so many –across so many stories, not just CoP: don’t obsess about a loaded term like “mental” in the UK Gov definition above.
Indeed there appears to be an unhealthy bias among the press when it comes to CoP. A misreading of the 'mental' element to CoP hearings. The official line from the UK judiciary about people subject to hearings in the CoP carries the qualifier that they “lack mental capacity”. Perhaps this is too often isolated and too easily reduced by a wide spectrum of the British media to signpost the reductive yet commonly used colloquialism of ‘mental’ that typically infers ‘sickness’ or ‘madness’.
Again the legal profession provides better signposting for journalists. Specialist vulnerable client lawyers J E Bennett declaim on their site that they are:
“Regularly appointed by the Court of Protection in circumstances where vulnerable people require representation in order to manage their property and affairs and their care and welfare. This could be due to a brain injury; illness; clinical negligence or age-related issues.
Likewise, specialist outfit Sen Legal states t:
“It is important to note that officers in the Court of Protection do not routinely deal with developmental disability. The bulk of their work is previously able adults with assets who develop dementia and are no longer able to manage their own affairs.
Glimmers of hope
The press corps' watchdog style industry mag, Press Gazette, has at least -at last?- flagged up the pitfalls of churnalism to editors and journalists when covering the CoP.
That said, the Gazette article from February 2016 is a rehashing from an original story ran almost a month before in the Solicitor’s Journal (well worth a read).
Worse, the Gazette’s churn came a few days after The Guardian had published a feature that wielded the same inexcusably inaccurate, inane phrase.
Much ado about nothing?
Not if you care about quality journalism. Not if you care about accurate reporting on the manifest action of the UK constitution. Not if you respect (media) law. Not if you support and safeguard the rights of people – especially those who, for a wide range of reasons, may lack mental capacity at the time a case is heard. And, perhaps most significant, not if you welcome any move (however small or fleeting) toward transparency in a world so adept at secrecy.
There remains more than half of this breakthrough window into the workings of the CoP. I hope that the British press will care enough to embrace the outstanding timeline to engage with, and accurately cover, the CoP. Yet the evidence above, albeit limited, might suggest that the press pack lacks the mental capacity to do so.
