COPR: what do the new rules actually do (and mean)?

In part because the Court of Protection Amendment Rules are written in typically impenetrable statutory instrument style, and in part to give commentary to explain more as to the reasoning behind them, you can find here an unofficial consolidation of the Rules as they will be from 1st July 2015 with the changes incorporated, and here a version of the consolidated Rules with unofficial explanatory notes prepared by Alex.   We will be providing further updates in due course specifically tied to the relevant paragraphs in the book, and will also publish the new/amended Practice Directions when they become available.

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All change at the COP (part 1)

The Court of Protection (Amendment) Rules 2015 were laid before Parliament on 9th March. Unless (which is very unlikely) the negative resolution procedure is invoked, the first part of the rules come into force in part on 6th April and the second, larger, part on 1st July.

They represent the first tranche of rule changes that will bring about the most fundamental reform of the Court’s processes since it came into being in 2007, reflecting the experiences of the first seven years of its life.

We will be covering the rule changes in more detail in due course and highlighting here precisely how they impact upon the current rules, as well as covering the suite of amendments to the accompanying Practice Directions.

This post serves as an overview.

The most important rule change – and the rule that we think it is proper to say most exercised the brain cells of the members of the ad hoc Rule Committee (including Alex and Sophy) – is the new Rule 3A, coming into force on 1st July 2015.   This rule fundamentally refocuses the approach of the Court of Protection to the participation of P.   It requires in each case the Court to consider, either on its own initiative or on the application of any person, consider whether it should make one or more of one of a ‘menu’ of directions relating to P’s participation.   That menu includes:

  1. P being a party;
  2. P’s participation being secured by the appointment of a representative whose primary function is to give P a ‘voice’ by relaying information as to P’s wishes and feelings;
  3. Specific provision for P to address (directly or indirectly) the judge determining the application; or
  4. No direction or an alternative direction (meeting the overriding objective) if P’s interests and position can properly be secured.

Equally importantly, assuming that the necessary steps are taken to enable this to happen by way of the creation of a panel of such representatives, Rule 3A provides that a direction may be made appointing an accredited legal representative (‘ALR’) to represent P. This can be done whether or not P is a party; importantly, if P is a party, then an ALR may be appointed without a litigation friend being appointed to act for P.   This innovation, drawn from Rule 11(7) of the Mental Health Tribunal Rules, is designed to supplement, not supplant, the role of litigation friends; the intention (as spelled out in the accompanying Practice Direction, 2A) is that ALRs can provide assistance where urgent orders are required and it is not possible to appoint a litigation friend.   They may also play an important role in ‘narrow’ applications such as applications under s.21A MCA 2005, thereby allowing the resources of litigation friends – whether the OS or otherwise – to be reserved for more complex cases where, for instance, expert evidence will be required.

Other important rule changes include (this summary being drawn in part from the Explanatory Note):

  • Amending rule 4 to reinforce the duty of the parties to co-operate so as to further the overriding objective of dealing with cases justly having regard to the principles in the MCA 2005, and making express that a failure to cooperate (and to be full and frank in the disclosure of information and evidence to the court) can sound in costs.   This is a precursor to what we anticipate will be more detailed consideration to be given in the second tranche of rules to the question of how case management in the COP can be reinforced as to ensure that limited public monies and judicial time are deployed in a way properly calibrated to the nature of the issues at stake (i.e. picking up concerns voiced by Peter Jackson J in Re A and B (Costs and Delay) [2015] EWCOP 48).
  • Substituting a new Rule 9, which allows for the COP – in the case of a lacuna – to choose whether rules contained in the CPR or the FPR most appropriately fit the problem to be addressed. There is also provision to enable the version of the CPR or FPR to be applied to be specified – thereby getting round the problem which at exists at present in light of the mismatch between the CPR post-Jackson and the COPR as regards costs provisions;
  • Making amendments to Parts 8, 9 and 12 to remove the need for a separate application where permission is required, removing the requirement for permission in certain cases (most obviously Re X type applications where authority is sought by way of an order under s.16(2)(a) MCA 2005 to deprive a person of their liberty), and making it easier for the requirement for permission to be removed in other cases;
  • Introducing a requirement (in Rule 87A) that permission is required to withdraw proceedings (mirroring the provision in FPR r.29.4(2));
  • In Part 12 (dealing with applications), making amendments in relation to allocation of types of cases to levels of judge, reflecting the introduction of Tier 1, Tier 2 and Tier 3 categories of judge following widening of the pool of judges who may be judges of the Court of Protection by virtue of changes made by the Crime and Courts Act 2013;
  • In Part 13 (hearings), making amendments to allow communication of information about proceedings to third parties for specified purposes (for example, research), and for the court to be able to do this on its own initiative.   There is also an important amendment to Rule 95 clarifying that the court can admit, accept and act upon such information, whether oral or written, from P, any protected party or any person who lacks competence to give evidence, as the court considers sufficient, although not given on oath and whether or not it would be admissible in a court of law apart from this rule. This amendment picks up – belatedly – the decision of McFarlane J (as he then was) in Enfield LBC v SA [2010] EWHC 196 (Admin) and the ‘work around’ he gave there as to the admissibility of evidence from P.
  • Replacing Part 17, with details of how litigation friends and ‘Rule 3A’ representatives are to be appointed and how their appointment is to be brought to an end. It should be noted here that the new rule 144 ends the anomaly in the rules that existed previously that required P, in essence, to prove that they had litigation capacity: all P has to do now is to make an application
  • in Part 19 (costs), making amendments to ensure that where provisions of the Civil Procedure Rules are incorporated by reference, they do not include the Jackson reforms insofar as they relate (e.g.) to costs budgeting;
  • in Part 20 (appeals), which will come into force on 6th April, making provision for appeals within the Court of Protection between the different tiers of judge, and revised provision about appeals to the Court of Appeal; and
  • in Part 21 (enforcement), making amendments to ensure that where provisions of the Civil Procedure Rules are incorporated by reference, they are the provisions following recent amendment.

New forms are in train to pick up these changes, and we will provide updates as and when we can.

The ad hoc Committee very deliberately did not seek in this tranche to tackle some of the other thorny questions that face the Court, for instance relating to transparency, expert evidence and the extent to which a regime akin to the Public Law Outline should be imported.   This first tranche, however, will start the Court of Protection on a new trajectory that is, we believe, orientated more clearly around P.

Who decides as to death?

In an unusual and tragic case, Re A (A Child) [2015] EWHC 443 (Fam), brought by an NHS Trust seeking declarations as the fact that a child was brain dead and that the ventilator providing them with life support could be turned off, Hayden J has confirmed what should happen where there is doubt as to whether brain steam death has occurred in a child.  Although a Coroner has concurrent jurisdiction and the High Court has jurisdiction over a body, Hayden J referred with approval to the passage in Jervis on Coroners (13th Edition) at paragraph 5-14, which provides that:

The coroner may also be faced with the difficult task of deciding whether a body in his area is actually dead, for instance when it is connected to a life support machine in an irreversible coma… it appears that once a person has suffered brain stem death which no medical treatment is able to reverse, the person is ‘dead’ for the purposes of the coroner acquiring jurisdiction even whilst a machine ventilates the body.”

Hayden J continued:

“21. […] That proposition is said to be supported by Mail Newspapers v Express Newspapers [1987] FSR 90; Airedale NHS Trust v Bland [1993] AC 789. The footnote also refers to Thurston’s Coronership: 3rd Edition 1985, which sets out the view that I have just recorded but also the opposing one, that while the heart beats and the blood circulates, there is no “dead” body i.e. for the purposes of establishing the Coroner’s jurisdiction. I note that the distinguished authors also make the following observation which, in tone, seems to imply that they regard it as self evident:

‘Of course, in practice no Coroner would insist on taking possession of the body were it was still connected to a life support system.’

 22.  I associate myself entirely with those observations. I cannot conceive of any circumstances in which the Coroner should seek to intervene, where a body remains ventilated, beyond those circumstances concerning the removal of organs where the family are consenting. Any other approach I regard as likely to generate immense distress and contribute to an atmosphere where sound judgment may be jeopardised.

Exactly the same propositions must hold true in relation to adults and, as with a child, the proper forum for resolution of the questions that follow upon brain death must be the Court (in that case, the Court of Protection).

[A version of this note appeared in the March 2015 39 Essex Chambers Mental Capacity Law Newsletter]

What place morality (as compared to forensic rigour)?

Summary

In In the matter of A (A Child) [2015] EWFC 11 (Family Court (Sir James Munby P)), the President of the Family Division, Sir James Munby P, was extremely critical of the local authority’s analysis, handling of the case and conduct of the litigation in what he described it as “an object lesson, in almost a textbook example of, how not to embark upon and pursue a care case.”

This case concerned an application for a care order and placement order.  The child in question had been born while his mother was serving a prison sentence. He was accommodated in local authority foster care and the care application was not issued until some 8 months after his birth.

As well as proceeding on assumptions with no evidential basis, the local authority made repeated reference to the “immoral” nature of the father’s behaviour. The father’s immoral behaviour included having had sex with a 13 year old girl when he was 17 years old, and being a former member of the English Defence League (EDL).  Sir James Munby P made clear that the “morality” of the father’s character was neither appropriate nor relevant and that these aspects should never have featured as part of the local authority’s case. He was also at pains to emphasise that it was for the local authority to prove, on a balance of probabilities, the fact upon which it seeks to rely.

Comment

Although not a COP case, COP practitioners should take note of the President’s warning that:

…the father may not be the best of parents, he may be a less than suitable role model, but that is not enough to justify a care order let alone adoption. We must guard against the risk of social engineering, and that, in my judgment is what, in truth, I would be doing if I was to remove A permanently from his father’s care.

The same concerns hold true in cases relating to adults particularly where there are safeguarding concerns.

The tone of Sir James Munby P’s approach also chimes with the key principles governing the MCA.  One principle is that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. The fact that others, including the court, think that a decision is unwise or unsavoury, is an insufficient basis upon which to displace their decision. Another principle is that the best interests requirement should take into account the particular wishes and feelings of the incapacitated person, again, even where others, or the court, would not necessarily agree.

[A version of this note appeared in the March 2015 39 Essex Chambers Mental Capacity Law Newsletter]

When does the court need an expert to assist as to veracity?

Summary

in Wigan Council v M, C, P, GM, G, B and CC [2015] EWFC 8, Peter Jackson had to consider whether expert evidence was required in family proceedings in relation to (1) the capacity of a witness to give evidence and (2) the witness’s veracity.  As materially similar principles apply by analogy in COP proceedings, the conclusions reached by Peter Jackson J are equally applicable to judges of and practitioners appearing in that court.

Two children, aged 15 and 16, alleged that they had been sexually abused by their stepfather. At a case management hearing, the stepfather applied for a ‘veracity assessment’ and an assessment of the children’s ability to give evidence. The application was supported by the other parties and granted by the court.

An experienced clinical psychologist with special experience in the analysis of forensic interviews was instructed. The expert concluded that there was nothing in what the children said that required the interpretation of an expert. The children were articulate teenagers who were capable of giving evidence.

Peter Jackson J, whilst acknowledging that an assessment of capacity to give evidence, and the arrangements that should be made to assist a witness to do so fairly is a proper subject for expert advice where necessary, it is not necessary in every case. He identified three principles:

  1. As a matter of law, there is no bar on the admission of expert evidence about whether evidence is or is not likely to be true.
  2. Expert evidence can only be adduced if it is necessary to assist the court to resolve the proceedings. The fact that expert evidence is admissible and might be relevant or even helpful in a general way is not enough.
  3. Cases in which it will be necessary to seek expert evidence will nowadays be rare. Judges have been trained in and are expected to be familiar with the assessment of evidence. The court is only likely to be persuaded that it needs expert advice if it concludes that its ability to interpret the evidence might otherwise be inadequate.

Peter Jackson J also expressly agreed with what was said by Baker J in A London Borough Council v K [2009] EWHC 850 (Fam) that veracity or validity assessments have a limited role to play in family proceedings. The ultimate judge of veracity, i.e. where the truth lies, is the judge and the judge alone.

Comment

In the COP, as in the Family Court, an expert may give evidence on questions going to factual matters, such as the veracity or truthfulness of a witness but the final decision upon those matters remains for the judge. Indeed, the ultimate questions of whether P has capacity and what is in their best interests are matters for the court.

The equivalent to Part 25 of the Family Procedure Rules 2010 is COPR Part 15 accompanied by PD 15A. Pursuant to rule 121, the COP is under a specific duty to limit expert evidence to that which is “reasonably required” to resolve the proceedings. This is in contrast to s.13(6) Children and Families Act 2014, which dictates that expert evidence can only be adduced if it is necessary to assist the court to resolve the proceedings justly.  It is likely that this this change will be introduced in due course in the COP.  It would therefore be wise for COP practitioners to take heed of the three principles identified by Peter Jackson J when considering whether to seek to adduce expert evidence going to veracity.   Indeed, it is only like ever to be required where there are real doubts (for instance) as to whether a person has the mental capacity to understand the import of what they saying.  An example from the experience of the editors where this has arisen is where a person with a severe learning disability placed in a care home made allegations of sexual abuse but where there were doubts as to whether the words that they are using reflected their own experience or words that they had picked up from contact with other service users or from the media.   In that case, the assistance of an expert psychologist was undoubtedly necessary, but these cases are likely to be rare.

[A version of this note appeared in the March 2015 39 Essex Chambers Mental Capacity Law Newsletter]

Extreme Product Champions and their effect on P

In a decision from October 2014 which was only very recently placed on Bailii (and which we are very grateful for to Caroline Hurst of Switalskis for bringing to our attention), District Judge Mainwaring-Taylor made a heartfelt plea to an ‘extreme product champion’ to reflect upon the consequences of his actions.  In Re MW [2014] EWCOP B27, proceedings concerning an elderly lady, MW, had been concluded with a decision that she should continue living in a care home rather than being cared for by her son at home.   A significant factor in that decision had been the fact that he had taken, and posted on a private section of YouTube, a video of his mother in an extremely distressed state at home.

Some two years later, the matter came back to court, it appears because of the son’s continued conduct and – in particular his continued practice of videoing.    In a description that may ring bells, District Judge Mainwaring-Taylor noted that “[Mr W] is entirely convinced that in all the circumstances he is always right and he produces what he says are justifications.  Unfortunately, Mr W’s justifications really centre on his needs, rather than on his mother’s needs. I quite accept and believe that Mr W is entirely genuine in thinking and having a perception that what he is doing and wants is in his mother’s best interests, but, sadly, that is simply not the case.

In maintaining the status quo, namely that Mrs W should continue to reside in the care home, the judge made a plea that:

“Perhaps in his future dealings and thoughts, Mr W might think that, every time he does something which provokes the need for court proceedings, he is directly diminishing his mother’s resources. Because it always seems to get to the stage where the matter has to come before the court and, as soon as that happens, Mrs W needs representation; that representation has to be through the Official Solicitor and it has to be funded. As long as Mrs W has financial resources, it will be she who funds it, rather than the monies being there for her care and comfort.”

Comment

Cases such as this (and that of A Local Authority v M & Ors [2014] EWCOP 33 and Re A and B (Costs and Delay) [2014] EWCOP 48 will no doubt be considered carefully by the ad hoc Rules Committee when in due course in the course of their deliberations as to how to seek to enshrine into the Rules mechanisms to ensure that the resources of the court – and, significantly, the resources of privately paying Ps – are deployed proportionately.

[A version of this note appeared in the March 2015 39 Essex Chambers Mental Capacity Law Newsletter]