March 2016 – Court of Protection Handbook

JM-Time to step up

Charles J has handed down a stinging judgment in Re JM and others [2016] EWCOP 15– the latest instalment in the sequence that started with Re X [2014] EWCOP 25. (See also Re X [2014] EWCOP 37, Re X [2015] EWCA2015. and Re NRA [2015] EWCOP 59.

The case concerned the requirements of a process to authorize the deprivation of liberty of adults lacking capacity to consent to their living arrangements, where the statutory scheme set out in Schedule A1 MCA 2005 (“DOLS”) is not available, for example those living in supported living. The only “procedure prescribed by law” for the purpose of Article 5 is an application to the court. New legislation to fill the gap is anticipated in the form of the Law Commission proposals but this is some way off.

All the earlier cases have grappled with the question of the “very essence” of Article 5. What is the right balance between a proportionate and “streamlined” process and procedural safeguards for the vulnerable person at the centre of the case? In particular how can they participate in the process?

In NRA Charles J held that the appointment of a representative under Rule 3A would fulfill the requirements of Article 5, in cases that are uncontentious (and this is an important qualification). He noted that there were some case where there was literally no one available to take on this role and asked for test cases to be listed before him.

The cases of Re JM and others were duly heard on 3 and 4 December and 13 January 2016. He heard from the applicant statutory bodies, the Secretaries of State for Justice and Health and the Official Solicitor. The Law Society was given permission to file submissions.

Charles J reiterated the potential for Rule 3 A representatives – often in the form of advocacy services commissioned by local authorities- to provide the required standards of fairness which the streamlined process needs.

He held that – irrespective of the investigatory role of the COP and the duty of disclosure on applicant authorities- a fair procedure for the purpose of Article 5 and the common law must involve “someone assistance from someone on the ground who considers the care package through P’s eyes” (§140).

The problem is that of availability. He described the case as an opportunity for central government to “face up and constructively address the availability in practice of such Rule 3A representatives” (§17). He concluded that central government had failed to take this up and instead sought to pass the responsibilities to local government and criticized the “avoidant approach that prioritises budgetary considerations over responsibilities to vulnerable people” (§19).

Unsurprisingly he held that the COP should not attempt to direct local authorities to take steps to identify or provide a Rule 3 A representative (§24 and ±102-103). The primary responsibility to put the court in the position where it can meet the minimum requirements of fairness is on central government or on central government together with applicant authorities (§24).

Charles J has therefore taken the following steps in all cases bar one – VE- where a representative became available:

1. He joined the MoJ and DoH as parties;
2. Invited the parties to identify an immediately available Rule 3A representative or an alternative procedure;
3. He stayed the applications until such steps had been taken with liberty to apply.
Importantly he held that this order should be made by the COP in similar cases. (§26)

He provided a list of options that could be taken by central government to break the stalemate that will now see government departments joined in potentially hundreds of cases:

1. Enter into contracts with advocacy providers
2. Provide local authorities with resources so that they can enter into contracts
3. Set up a pool of Accredited Legal Representatives with the support of the Lord Chancellor
4. Increase resources to the Official Solicitor.
5. Make changes to legal aid
6. Provide resources to extend the range of s49 visitors.
7. Take a case to the Supreme Court and invite it to re-visit Cheshire West.

In the course of the judgment Charles J:

1. Accepted that a change to legal aid regulations to permit non-means tested legal aid in both contentious and non-contentious DOL welfare hearings could prove part of a solution (together with the creation of ALRs) (§73)
2. Criticised the Secretary of State for seeking to “pass the parcel” to local authorities without addressing the problems they identified (§85)
3. Quoted from detailed evidence from local authorities demonstrating the levels of pressure in advocacy providers (which will come as no surprise to providers) (§96).
4. Found that full and investigative legal aid is not properly available for any process that does not require a hearing (because of the requirements in the Civil Legal Aid (Merits) Regulations 2013) (§114)
5. Agreed with the Law Society that although some solicitors carry out work in streamlined cases under legal help, this does not sit easily with the underlying purpose of legal help (§120)
6. Expressed doubt over the suggestion by the LAA that the sufficient benefit test for legal help might not be met if P is already represented by an experienced Rule 3A representative (§121)
7. Expressed the view that the use of legal help is not a viable option because of the level of payments (§123)
8. Accepted the Law Society’s evidence about the difficulties in increasing the number of matter starts (§124).
9. Warned of the dangers to local authorities of relying on a welfare order that is not underpinned by a fair procedure (§133).

In a separate judgment, Re VE [2016] EWCOP 16, Charles J endorsed a useful guidance note for family members contemplating acting as Rule 3A representatives, explaining their role and responsibilities.

Case Management Pilot explained

The Case Management Pilot has now been published. It is in draft form at present, and the intention is that it will come into effect in June. Although it has not formally been published for consultation, practitioners are strongly urged to read and review it carefully, and to send any comments upon it to Joanna Furlong at the Ministry of Justice so any glitches can be ironed out so far as possible before it goes live.

The Case Management Pilot will introduce three distinct pathways for COP proceedings: 1) a Property and Affairs pathway, 2) a Health and Welfare pathway, and 3) a hybrid pathway for cases that have elements of both. The expectations of practitioners will be different depending upon which pathway is engaged. Common to each, though, is an expectation of much greater ‘front-loading’ and cooperation to narrow the issues.

The Case Management Pilot is accompanied by a revised set of Rules which foreshadow a re-numbering of the Rules that is anticipated as part of the second tranche of rules changes (moving to the same model as in the CPR and FPR). For ease of reference, all the Rules that will apply for purposes of the Pilot are set out in an annex – with suitably highlighted amendments – to the Pilot practice direction. The intention is that practitioners (and the judiciary) will have to do the minimum of cross-referencing to the current iteration of the Rules during the life of the Pilot.

Before highlighting the key points of each, it is important to note the types of applications which the Pilot will not affect, which include: uncontested applications, applications for statutory wills and gifts, applications relating to serious medical treatment and deprivation of liberty applications (both Re X applications and s.21A applications).

It should also be noted that the intention is that the Case Management Pilot sits alongside and does not displace the Transparency Pilot for so long as they are both in operation (which will include at least part of June and all of July 2016), so the expectation will be that all of the hearings noted below, with the express exception of the Dispute Resolution Hearing provided for in the property and affairs pathway, will be listed according to the Transparency Pilot rules as regards public/media attendance.

Personal welfare pathway

The personal welfare pathway starts pre-issue, with a set of requirements designed to ensure that only those applications which actually require resolution by court proceedings come to court, and those which do, do so in circumstances where the issues are clearly delineated from the outset. The Pilot Practice Direction then specifies in some detail what must be included with or accompany the application upon issue including – importantly – a statement as to how it is proposed P will be involved in the case.

The next stage is for matters to be considered by a judge on the papers, both for gatekeeping purposes (i.e. allocating to the correct level of judiciary) and the making of initial directions including, importantly, listing a Case Management Conference within 28 days (unless the matter is urgent). The judge can also direct that there be an advocates’ meeting before the CMC.

The CMC will be the first attended hearing and a vital step in the proceedings because of the obligations placed upon the court (not just the parties) to ensure that the issues are narrowed and directions set for the proportionate resolution of those that are in dispute. Importantly, one of the matters that the court will do is to allocate a judge to the matter – judicial continuity being recognised as crucial to the success of the pilot. It is also important to note that this Pilot is running alongside the s.49 pilot discussed further here, and also includes a tightening of the rules in relation to experts (where the Pilot applies) so as to limit permission to circumstances where their evidence (1) is necessary to assist the court to resolve the issues in the proceedings; and (2) cannot otherwise be provided.

The intention is that in the ordinary run of the events there would then only be (at most) two more hearings, a Final Management Hearing and the Final Hearing. Ahead of the Final Management Hearing, whose purpose is to determine whether the case can be resolved by consent and, if not to ensure proper preparation for trial, an advocates’ meeting is to be listed at least 5 days in advance for purposes of – inter alia – preparing a draft order for the court to consider at the FMH. Matters that are likely to be covered at the FMH will include such things as the trial timetable and a witness template, as well as the contents of the trial bundle: in line with the injunction given by the Court of Appeal in Re MN, the expectation is that the trial bundle for the Final Hearing will not generally exceed 350 pages, and must not include more than one copy of the same document.

It is important to note that, unlike the Public Law Outline, there is no fixed timeframe within which proceedings must be concluded, the only fixed date being the listing of the Case Management Conference. The intention, however, is that the process set down in the Pilot is will mean dramatically shorter resolution of welfare applications.

Property and Affairs pathway

The property and affairs pathway does not start pre-issue because it is recognised that it is often only upon issue that it becomes clear that a property and affairs application is contentious. It therefore comprises four stages.

The first stage is when the application becomes contested, i.e. when the court is notified in the COP5 that the application is contested or a respondent wishes to seek a different order.

The case management stage takes place on the papers, and includes either: (1) listing for a Dispute Resolution Hearing; or (2) transfer to a suitable regional court for listing of the DRH and future case management. If the respondent has not given sufficiently clear reasons for opposing/seeking a different order, the judge will also at that stage require such reasons to be given.

The Dispute Resolution Hearing is a major innovation, and represents – in essence – judicial mediation in a form familiar to family practitioners. A DRH, which will normally take place before a District Judge, is to enable the court to determine whether the case can be resolved and avoid unnecessary litigation, and to that end the content of the hearing is not to be disclosed and everything said therein is not admissible (save in relation to a trial for contempt). The court is expressly required to give its view as to the likely outcome of the proceedings as part of the DRH. The aim is for the court to be able to endorse a consent order at the end of the DRH; if not, the court will list for directions of the management of the hearing and a Final Hearing.

The last stage – the Final Hearing – will take place in accordance with directions made at the DRH (there being no Final Management Hearing as with the welfare pathway).

As with the welfare pathway, there is no fixed timeframe for the determination of the application. Nor, in this instance, is there a specific timeframe for listing of the first attended hearing – the DRH. This recognises that there is merit to flexibility because there will be some cases in which allowing longer for a DRH is more likely to bring about a quicker resolution overall; conversely, in some cases, the sooner that judicial banging of heads takes place the better.

Mixed pathway

If an application comprises elements of both welfare and property and affairs, prospective parties are directed at the pre-issue stage to identify which pathway is most effective and to comply with the requirements of that pathway so far as possible. At point of issue, they must file a list of issues to allow the court to identify which pathway or mixture of elements is most appropriate.

The court will then, on the papers, either allocate the case to one of the two pathways set out above, or give directions as to the elements of each pathway are to apply and the particular procedure the case will follow.

Urgent applications

In all cases there is express provision for urgent applications, requiring the parties in particular to specify why the matter is urgent and any particular deadline by which the issue(s) need to be resolved as well, as well as directing compliance (insofar as possible) with any necessary pre-issue steps.

[Note: a version of this originally appeared in the March 2016 39 Essex Chambers Mental Capacity Law Newsletter. Alex as a member of the ad hoc Rules Committee has been involved in developing the Pilot. This note does not, however, represent an official comment on behalf of the Rules Committee.]

Section 49 Pilot explained

The section 49 Pilot Practice Direction has been published to come into effect in June 2016 (but unlike the Case Management Pilot Practice Direction, published for information only). The Practice Direction applies both to orders made under s.49 MCA by the COP of its own motion and – more importantly – to orders sought by parties. The Practice Direction is accompanied by a draft order. It recognises, in essence, that s.49 reports are an extremely important part of the COP’s armoury when it comes to information gathering, but that they must be deployed:

Carefully, so as to ensure that they are targeted to public bodies actually able to provide useful information;
With suitable thought and preparation on the basis that, to be effective, they are best approached as if they were expert reports.

An important innovation is the requirement, where possible, for a party seeking a s.49 report from a NHS body or local authority to have made contact prior to the application being heard by the court to identify an appropriate person (“a senior officer”) able to receive the order, and to have discussed with the body the reasonableness and time scales for providing the report. Although it does not prescribe when a court will and will not order one, the Practice Direction set out (at paragraph 3) common factors that the court may consider when deciding whether to order a s.49 report, including:

where P objects to the substantive application or wishes to be heard by the court and does not qualify for legal aid;
where it has not been possible to appoint a litigation friend or [under the new numbering] rule 1.2 representative, including where the court has made a direction under rule 1.2(5);
where a party is a litigant in person and does not qualify for legal aid;
where the public body has recent knowledge of P; or it is reasonably expected that they have recent knowledge of P; or should have knowledge due to their statutory responsibilities under housing, social and/or health care legislation;
the role of the public body is likely to be relevant to the decisions which the court will be asked to make;
the application relates to an attorney or deputy and involves the exercise of the functions of the Public Guardian; and
evidence before the court does not adequately confirm the position regarding P’s capacity or where it is borderline; or if information is required to inform any best interests decision to be made in relation to P by the court.
An unofficial draft version of the template s.49 order in Word form is to be found here.

Court of Protection Handbook Second Edition – your chance to make a difference

We are setting the wheels in motion to produce a second edition of the Court of Protection Handbook by the end of the year. We think we know what we need to cover – not least all the exciting developments such as the Case Management Pilot – but we would very much like to hear from you with suggestions of what we need to make sure we add (or conversely, what we can lose). All answers on an electronic postcard please to courtofprotectionhandbook@gmail.com.

Case Management Pilot Draft published

The long-awaited case management pilot has now been published in draft form for comment and consideration before it goes live in June of this year. There will be more analysis of it and of its implications in next month’s Mental Capacity Law Newsletter, but and very brief terms of pilot envisages very clear pathways for health and welfare cases, property and affairs cases, and mixed cases.

In all cases, the pilot Case Management Direction will place an obligation on applicants to provide improved analysis of the issues at the start of a case, allowing for more robust case management decisions to be taken at the outset and all issues to be identified at the earliest opportunity in proceedings. It will also seek to encourage early resolution of cases, to reduce the number and length of hearings required in contested cases and to promote judicial continuity. The pilot is expected to run for up to 12 months.

Separately, and also to start in June, a pilot has been published to tighten up the relating to s.49 reports. The pilot aims to ensure that such reports from public bodies are attained in a proportionate, targeted and, above all, useful fashion.