After a stint since 2018 marked indelibly by the pandemic, as well as by the promulgation of no less than 60 published decisions (according to Westlaw), representing the tip of the jurisprudential iceberg, the current Vice-President, Hayden J, stepped down officially on 13 February 2023 from his role (but not as a judge hearing cases before the Court of Protection). He has been replaced by Theis J.
Month: February 2023
‘Closed hearings’ guidance issued by the Vice-President
The Vice-President of the Court of Protection, Hayden J, has issued guidance about closed hearings and closed materials. As it says in its opening paragraphs, it applies to ‘closed hearings’ and ‘closed materials,’ defined as follows:
a. “Closed hearings” are hearings from which (1) a party; and (2) (where the party is represented) the party’s representative is excluded by order of the court. For the avoidance of doubt, this is different to a “private hearing,” which is a hearing at which all the parties are present (or represented), but from which members of the public and the press are excluded;
b. “Closed material” is material which the court has determined should not be seen by the party (and/or their representative).
The practice guidance also applies to situations where an order may be made that a party (and/or their representative) is not to be told of the fact or outcome of a without notice application.
As the guidance emphasises:
In situations which are rare, but which do occur from time to time, it is necessary for the court to consider whether a hearing should be closed and/or for material be closed. Nothing in this guidance is intended to increase the number of closed hearings or applications for material to be closed. Rather, its purpose is to provide clarity as to the principles to be applied and considerations to be taken into account in the very limited circumstances under which such steps may be appropriate.
Revised certificate as to capacity to conduct proceedings form published
A revised version of the form used to address (and where the person lacks the capacity, to explain in detail why that is the case) capacity to conduct proceedings has now been published. Although it says on gov.uk that it is dated 1 September 2007, it is in fact current as to the law in 2023 (including, importantly, the proper ordering of the capacity test: starting with the functional limb). It is relevant where there is a concern in relation to the capacity to conduct proceedings in relation to an adult who is a party or intended party to proceedings in the Family Court, the High Court, a county court, the Court of Protection or the Court of Appeal. Note, however, that it does not apply in relation to ‘P,’ i.e. the subject of proceedings before the Court of Protection: analysis of their capacity to conduct proceedings (and make relevant decisions) is to be carried out on the COP3 form (itself being revised at the moment).
Joint Practice Note: Cafcass and Official Solicitor – urgent out of hours applications in relation to medical treatment concerning children
Cafcass and the Official Solicitor have published a joint practice note dated January 2023 “intended to assist the judiciary and legal representatives when dealing with urgent out of hours applications for orders in relation to medical treatment concerning children.” In particular, the Practice Note makes clear that “In medical treatment cases concerning children […], it is Cafcass and not the Official Solicitor who should be approached to provide representation for the child.”
The Practice Note can be read here.
Court of Protection Handbook 