Legally speaking, the judgment in King’s College Hospital NHS Foundation Trust v South London and Maudsley NHS Foundation Trust & Anor [2024] EWCOP 20 (‘King’s College’), given by Ms Justice Henke on 10th April 2024, has no importance in terms of developing the existing law of mental capacity. While undoubtedly important for the individual involved, (in whose best interests it was decided to have a leg amputated), King’s College’s wider significance lies elsewhere - in the fact the judgment was published.
In 2014, Sir James Munby (then president of the Court of Protection ‘(the court’)) issued guidance (‘the guidance’) on publishing judgments. The guidance set a presumption that certain judgments of the court should be published in the absence of ‘compelling reasons’ otherwise. One set of judgments Sir James had in mind were those arising from: ‘any application for an order involving the giving or withholding of serious medical treatment and any other hearing held in public.’
King’s College was one such judgment, involving, as has already been referred to, serious medical treatment (and also being heard in public). Ms Justice Henke explained, at paragraph 20 of the published judgment, her reasoning:
‘… this case has been heard in public subject to a transparency/reporting restrictions order. I consider that where, as here, a case has been listed for a final hearing in public, if it is reasonably practicable, a short judgment should be published so that the public may know, if they wish, what has happened and why it has happened…’.
While the guidance cannot be said to have always been followed by the court, this judgment represents an affirmation of the important principle of open justice: justice being done and also being seen to be done.
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