A dedicated multi-disciplinary group are working up a proposal for Court of Protection mediation scheme, and would very much welcome input from those willing to comment on the draft proposal as it stands, covering as it does (a) cases suitable for mediation; (b) when to mediate; (3) the mediators; (4) the scheme; (5) funding; and (6) evaluation of mediation. Please email Katie Scott (firstname.lastname@example.org) if interested. Your help would be most appreciated by 3 April.
The CoP forms have moved today (21 March) to the .Gov.uk website, and can be found here.
The Government published its response to the Law Commission’s Mental Capacity and Deprivation of Liberty report on 14 March. The headline is that the Government “agree[s] in principle that the current DoLS system should be replaced as a matter of pressing urgency,” and that it will legislate in due course. Before the introduction of any new system, the Government has said that it will “need to consider carefully the detail of these proposals carefully and ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.”
In its detailed response, the Government has accepted, or accepted in principle, all of the recommendations except (1) the recommendation relating to a statutory codification of capacity law in relation to children; and (2) four areas which it has left for the independent Mental Health Act review to consider.
In Re KT & Ors  EWCOP 1, Charles J has returned – again – to the vexed question of how Re X applications (now, strictly, COPDOL11 applications) can proceed where there is no-one can properly play the part of Rule 3A (now Rule 1.2(5)) representative. Charles J considered four test cases of the 300 or so that have now been stayed in accordance with his decision in Re JM  EWCOP 15, there being no family member or friend is available for appointment as P’s Rule 1.2(5) representative.
In early 2017, the Government Legal Department had written to local authority applicants in stayed cases to indicate that (1) the most appropriate course of action was for the local authority to identify a professional advocate; but (2) where one was not available, the local authority should liaise to take forward the process of commissioning a Court of Protection General Visitor to complete a report under s.49 MCA 2005. The GLD letters indicated that Ministers had agreed to provide funding to HMCTS to enable greater use of visitors by the COP. On the basis of these letters, two applicant local authorities sought to lift stays in four cases, which were listed before Charles J as test cases.
Charles J, it is fair to say, was unimpressed by the GLD letters, noting that they were devoid both of detail as to extra funding, and also how and why it was now said that a professional advocate had or had always had been a practically available option in a significant number of cases. Following directions made in the test cases, the Secretary of State filed submissions which asserted that local authority applicants owed a duty under s.6 Human Rights Act 1998 “to facilitate the speedy resolution of the application by (for example) ensuring that a professional advocate is appointed to represent P’s interests so far as necessary“. It was asserted that this duty: “falls into the same category as the DOLS duties which were considered in Liverpool City Council,” the unsuccessful judicial review brought by local authorities to seek to compel greater funding to discharge their DOLS obligations. As Charles J noted that, this was a radical departure from the position that had previously been taken by the Secretary of State in JM, where it had been agreed that local authority and other applicants do not owe a statutory duty to provide representation for P in the COP.
Whose obligation to provide representation for P?
Charles J expressed the preliminary view that the Secretary of State’s argument as to the obligation of local authorities under the HRA was wrong, running counter to the decision on the obligations of a local authority in Re A and C  EWHC 978 (in particular at paragraph 96) and its application in Staffordshire County Council v SRK and others  EWCOP 27 and  EWCA Civ 1317. However, even if they did owe such a duty, Charles J held that this did not assist the Secretary of State because the central, statutory, obligation lay with the Secretary of State for Justice to ensure that the COP, as a public authority, acts lawfully and so can apply a Convention compliant and fair procedure.
Visitor as Convention-compliant procedure?
Charles J agreed with the agreed position of both the applicant local authorities and the Secretary of State that the appointment of a Visitor would provide a fair and Convention compliant procedure because it would provide the essence of P’s Article 5 procedural rights, which had been identified in Re NRA & Others  EWCOP 59 as requiring an independent person to: (1) elicit P’s wishes and feelings and make them and the matters mentioned in s.4(6) MCA 2005 known to the Court without causing P any or any unnecessary distress; (2) critically examine from the perspective of P’s best interests, and with a detailed knowledge of P, the pros and cons of a care package, and whether it is the least restrictive available option; (3) keep the implementation of the care package under review and raise points relating to it and changes in P’s behaviour or health. Charles J set out draft directions which could be made in cases where a Visitor was proposed. Charles J acknowledged that there were both advantages and disadvantages to the appointment of a Visitor over a family member or friend, the advantages being the independence and expertise of the visitor, the disadvantages being the absence of a more regular review on the ground by someone who knows P and wants to promote their best interests.
Having conducted a detailed review of the (depressing) evidence before him, Charles J did not consider that the offer to fund Visitors by the Secretary of State was likely to offer anything but a short-term or a very partial solution to the issue. However, he held that this should not stop it being used for so long as it was available in practice.
Order of preference
In light of the matters set out above, Charles J had to resolve an issue as to whether, where no family member/friend is available to as Rule 1.2(5) representative, the second choice should be a Visitor (the local authorities’ position) or a professional representative (the Secretary of State’s position). In reality, as he noted, the dispute was based upon the budgetary battle between local and central government. In the abstract, Charles J considered, the appointment of a professional who could act independently as a Rule 1.2(5) representative and carry out regular reviews of P’s placement and care package on the ground would in most cases be likely to have advantages over the appointment of a Visitor because it would provide a better basis of and for review and equivalent expertise and independence to that provided by a Visitor.
However, given that there was no evidence that professional representatives were actually practically available in most cases, Charles J held that if he had to make a choice, he would choose a Visitor. He recorded the sensible acceptance by the Secretary of State that generally the COP can and should accept an assertion from an applicant authority that a professional Rule representative is not available for appointment at face value.
Joinder of the Crown/further stays
Charles J has no intention of letting the Government off the hook, noting at para 91 that:
In cases where a visitor is appointed (or some other available procedure is adopted to enable an application or review to proceed) there is no need to, or purpose for joining, or continuing the joinder of, the Crown. But, as soon as any such practically available process is no longer available I consider that, for the reasons given in JM and earlier in this judgment the COP should join the Crown to and stay such applications and reviews.
Charles J suggested that the Secretary of State, the Public Guardian and the COP (through the Senior Judge) try to agree a process by which the stays are lifted in the approximately 330 stayed cases on the same basis as in these cases. He indicated that in cases in which local authorities (or, presumably, other applicants) have not sought to lift the stay, an appropriate course would be for the Secretary of State to apply to lift the stay in a manner that ensures that a visitor will be available for appointment in each case. However, he left the ultimate decision as to how best to clear the backlog to the triumvirate set out above.
The decision in Cheshire West has caused huge resource implications. The Law Commission has estimated the cost of full compliance at £2.155 billion per year. One of the local authorities before the court, Wolverhampton, had brought 24 applications over the past 3 years, and estimated that that three times the present number should have been brought, the numbers being likely to increase with service users moving to supported living. The Law Commission had estimated that around 53,000 people are deprived of liberty outside hospitals and care homes, and calculated that this would cost local authorities and the NHS £609.5 million per year to authorise by obtaining welfare orders from the COP. Only a very small fraction of these applications are being made, although between January and March 2017, there were 969 applications relating to deprivation of liberty, up 43% on the equivalent quarter in 2016 (678). Of these, 600 were Re X applications.
In the circumstances, it is hardly surprising that Charles J considered that funding to provide an additional 200 Visitor reports a year hardly scratched the surface of the problem. As he recognised, his analysis of the position represents, in essence, the re-arranging of deckchairs on the legal Titanic. LPS – and/or or a radical rethinking of the law relating to deprivation of liberty – cannot come soon enough.
Remember that 1 December sees the coming into force of the new look CoP Rules and accompanying Practice Directions. All of these can be found most easily on the Court of Protection Handbook website here, together with a handy destination table to show where the old Rules have gone. The changes and their background are discussed in the November 39 Essex Chambers Mental Capacity Report here.
The revised second edition of the Court of Protection Handbook is now out, including an update on key developments over the past year, and a copy of the new Court of Protection Rules 2017. Those kindly people at Legal Action Group have also prepared a supplement with the update and the Rules. This will be sent out automatically (for free) to people who bought the second edition directly from LAG but can be requested (by email to email@example.com) for free by those who bought from other outlets. It can also be found as a PDF here, and will shortly be available (again for free) as an eBook from Amazon.
Accompanying the new Rules to come into effect on 1 December 2017 (assuming Parliamentary approval), a new suite of Practice Directions will also be brought into force. A table is set out below, and the PDs can all be found here.
For the most part, the substance of the Practice Directions is the same as that contained in the existing ones, although recast to reflect the renumbering in the Rules. Important points to note are:
1. Practice Direction 3B, consolidating into the practice of the Court the case management pilot approach to case pathways
2. Practice Direction 4C, consolidating the transparency pilot into the practice of the Court
3. Practice Direction 17C, consolidating the s.17 pilot approach
4. Practice Direction 24C, providing for transition arrangements in the following terms
Applications received after commencement
2. If an application under the Previous Rules or the pilot Practice Directions is received at the court on or after commencement [i.e. 1 December], it will be returned.
3. However, an application made under the Rules using the version of the relevant form which was current immediately before commencement will be accepted until close of business on 12 January 2018, or such later date as the Senior Judge may direct.
Applications received before commencement
4. The general presumption will be that any step in proceedings which were started (in accordance with rule 62 of the Previous Rules) before commencement which is to be taken on or after commencement is to be taken under the Rules.
(Rule 62 of the Previous Rules provides that proceedings are started when the court issues an application form at the request of the applicant.)
5. However, the general presumption is subject to any directions given by the court, which may at any time direct how the Rules are to apply to the proceedings.
6. Any step already taken in the proceedings before commencement in accordance with the Previous Rules or the pilot Practice Directions will remain valid on or after commencement.
Orders made before commencement
7. Where a court order has been made before commencement under the Previous Rules or the pilot Practice Directions, the order must still be complied with on or after commencement.
Finally, it should be noted that Practice Direction 9E, concerning serious medical treatment, is not carried over into these new provisions, so that it will fall away on 1 December 2017. At time of writing no replacement has been proposed.
|Practice Direction 1A – Participation of P|
|Practice Direction 2A – Levels of judiciary|
|Practice Direction 2B – Authorised court officers|
|Practice Direction 2C – Application of the Civil Procedure Rules 1998 and the Family Procedure Rules 2010|
|Practice Direction 3A – Court’s jurisdiction to be exercised by certain judges|
|Practice Direction 3B – Case pathways|
|Practice Direction 4A – Hearings (including reporting restrictions)|
|Practice Direction 4B – Court bundles|
|Practice Direction 4C – Transparency|
|Practice Direction 5A – Court documents|
|Practice Direction 5B – Statements of truth|
|Practice Direction 6A – Service of documents|
|Practice Direction 6B – Service out of the jurisdiction|
|Practice Direction 7A – Notifying P|
|Practice Direction 8A – Permission|
|Practice Direction 9A – The application form|
|Practice Direction 9B – Notification of other persons that an application form has been issued|
|Practice Direction 9C – Responding to an application|
|Practice Direction 9D – Applications by currently appointed deputies, attorneys and donees in relation to P’s property and affairs|
|Practice Direction 9E – Applications relating to statutory wills, codicils, settlements and other dealings with P’s property|
|Practice Direction 9F – Applications to appoint or discharge a trustee|
|Practice Direction 9G – Applications relating to the registration of enduring powers of attorney|
|Practice Direction 10A – Applications within proceedings|
|Practice Direction 10B – Urgent and interim applications|
|Practice Direction 11A – Deprivation of liberty applications|
|Practice Direction 12A – Human Rights Act 1998|
|Practice Direction 13A – Procedure for disputing the court’s jurisdiction|
|Practice Direction 14A – Written evidence|
|Practice Direction 14B – Depositions|
|Practice Direction 14C – Fees for examiners of the court|
|Practice Direction 14D – Witness summons|
|Practice Direction 14E – Section 49 reports|
|Practice Direction 15A – Expert evidence|
|Practice Direction 17A – Litigation friend|
|Practice Direction 17B – Rule 1.2 representatives|
|Practice Direction 18A – Change of solicitor|
|Practice Direction 19A – Costs|
|Practice Direction 19B – Fixed costs in the Court of Protection|
|Practice Direction 20A – Appeals|
|Practice Direction 20B – Allocation of appeals|
|Practice Direction 21A – Contempt of court|
|Practice Direction 22A – Civil restraint orders|
|Practice Direction 23A – International protection of adults|
|Practice Direction 24A – Request for directions where notice of objection prevents Public Guardian from registering enduring power of attorney|
|Practice Direction 24B – Where P ceases to lack capacity or dies|
|Practice Direction 24C – Transitional provisions|