Supreme Court news

The Supreme Court has granted permission to the Official Solicitor to appeal against the decision of the Court of Appeal in Re D [2017] EWCA Civ 1695.  The hearing has been expedited and listed for 3 and 4 October.  Anyone who wants to understand how the MCA 2005 is intended to interact with the Children Act 1989 will be well advised to keep a careful eye out for the judgment in due course.

The Supreme Court will hear the appeal in MM (concerning conditional discharge and confinement) on 26 July.  It has also very recently been confirmed will hear the appeal in PJ (concerning the jurisdiction of the Mental Health Tribunal over human rights issues, as well as CTOs and deprivation of liberty) on 22 October.

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CoP Application and appeal fees reduced (a bit)

The snappily named Court of Protection, Civil Proceedings and Magistrates’ Courts Fees (Amendment) Order 2018, coming into force on 25 July, will reduce the fees for applications from £400 to £385, and for appeals from £400 to £320.

The reduction to these fees follows, according to Parliamentary Under Secretary of State for Justice Lucy Frazer QC MP “a thorough and detailed review undertaken by officials in the Ministry of Justice into the cost of these proceedings. Our review has identified a number of cases where the fees charged were above full cost recovery levels.”   It is not clear at this stage whether those who have been charged the higher sums in the CoP will also benefit from the refund scheme that is being applied in relation to excess fees identified in other areas.

 

 

Foreign powers of attorney – an unfortunate judicial wrong turn

Re JMK [2018] EWCOP 5, HHJ Hilder, faced with two litigants in person, has taken an unfortunate wrong turn as regards the basis upon which ‘foreign’ (i.e. non English & Welsh) powers have effect in England and Wales.

Two litigants in persons (the daughter and son-in-law of the donor) sought recognition and enforcement of a Canadian “Continuing Power of Attorney for Property” as a “protective measure” pursuant to paragraph 19 of Schedule 3 to the MCA 2005.  It is not entirely clear from the judgment why they did so, although there is mention of a family legal battle, presumably in Canada.   It is likely that there must have been some property in England and Wales that the holders wanted to administer and it can perhaps be assumed that they were having difficulty doing so without a court order.

Although the judgment does not say where power was made, it notes that the power was headed “[m]ade in accordance with the Substitute Decisions Act 1992.”  This suggests that the power was made in Ontario where, although it appears that this was not brought to the judge’s attention, a Continuing Power of Attorney for Property does not need to be registered before it takes effect, either with a court or with an administrative body the equivalent of the Office of the Public Guardian in either England & Wales or Scotland.  There was no evidence of the donor’s capacity at the date the power was executed although there was evidence from the care home where she lived in Canada that she lacked capacity thereafter.

The two parties before SJ Hilder were unrepresented, and she noted that she did not have the benefit of legal submissions.  The only authority that she found on Schedule 3 was the decision of Hedley J in Re MN (Recognition & Enforcement of Foreign Protective Measures) [2010] EWHC 1926, concerning a protective measure in the form of an order made by a California court.

SJ Hilder, upholding (on reconsideration) the refusal of the District Judge to recognise and enforce the power of attorney as a protective measure, noted that:

17. […] reference to ‘protective measures’ in Schedule 3 is intended, and generally understood, to refer to arrangements that have been made or approved by a foreign court. It may not be spelled out explicitly but the language of paragraph 19(3) in particular confirms that intention and understanding: each of the circumstances in which the mandatory requirement can be disapplied clearly envisages court proceedings. I have not found any authority which casts doubt on that understanding. JMK’s Power of Attorney has been through no court process at all. It is not even subject to a system of registration. It therefore does not fall within the general understanding of the term ‘protective measure’ for the purposes of recognition by this Court pursuant to Schedule 3.

18. More widely, it seems to me that PH’s understanding of the Power of Attorney at the time when it was granted (as set out in paragraph 16(a) above [“at the time of issuance, the POA was not a protective measure other than [JMK] was not used to managing household finances… we offered to help but, in order to do this properly, we needed her authority which was deemed to be a Power of Attorney”] captures a more accurate understanding of the nature of the instrument executed by JMK. If validly executed, a Power of Attorney is better characterised as an exercise of autonomy (even if it provides for a time when the donor is no longer capable of autonomous decision-making) than as a “protective measure.”

SJ Hilder concluded by noting that it remained open to the applicants to apply to be appointed as property and affairs deputies in this jurisdiction.

Comment

It is very unfortunate that SJ Hilder did not have benefit of legal submissions on this important issue, because she did not have her attention drawn to the fact that she was being asked the wrong question by the applicants, and that she should have been analysing the position not by reference to whether or not the power of attorney was a protective measure for purposes of Part 4 of Schedule 3, but rather by reference to the provisions of Part 3.   As explained in more detail in a discussion paper I prepared some years ago here (paragraphs 31ff), the general rule is that powers of attorney which are valid according to the law of the habitual residence of the donor are directly effective in England & Wales.

It is irrelevant, therefore, whether or not ‘foreign’ powers are also capable of being protective measures for purposes of Part 4 of Schedule 3, which was the focus of SJ Hilder’s analysis.  The question was whether the Ontario power was valid according to the terms of Ontario law (assuming that JMK had been habitually resident there at the point of granting the power.

 I should perhaps also note, however, that whilst it is undoubtedly correct that a foreign power that has not been registered with an administrative body or a court cannot be considered a protective measure, the position is now more nuanced than it was at the time I drafted the note set out above in 2014.    In a very unusual step that we reported upon in the October 2017 Mental Capacity Report, the Explanatory Report to the 2000 Hague Convention on the International Protection of Adults (which underpins Schedule 3 to the MCA 2005) was issued in a new and revised edition, available here.   In addition to the correction of a few typos, the new and revised edition includes in particular a modification to paragraph 146 made by the Rapporteur, Professor Paul Lagarde relating to the confirmation of powers of representation (powers of the attorney and the like).   The new paragraph reads thus:

The concept of the confirmation of powers must give every guarantee of  reliability and be seen in the light of legal systems which make provision for this confirmation and place it in the hands of a particular authority, judicial in Quebec, administrative elsewhere. The first version of this report, which was based on a reading of the Convention text, set forth that this confirmation is not a measure of protection within the meaning of the Convention. If this indeed were the case, there would be no need to mention it alongside the measures of protection in Article 38. However, some delegations have since asserted that this analysis is not one which, according to them, flows from the discussion, difficult as it was. […] According to this view, a confirmation could constitute a measure of protection within the meaning of Article 3 and it could only be given by the competent authority under the Convention. A consequence of this might be that, if the adult has, in accordance with Article 15, paragraph 2, submitted the conferred power to an applicable law other than that under which the authorities have jurisdiction under the Convention, the representative risks being deprived of the possibility of having his or her powers confirmed, for instance, by the competent authority of the State whose law is applicable to the power of representation.

In other words, the Explanatory Note makes clear that the intention underpinning the Convention – and hence Schedule 3 – is that registered power (for instance a Scottish power registered with the Office of the Public Guardian) may well be capable of an application for recognition and enforcement.   That could never have benefited an attorney under an Ontario power, but the position may well be different in relation to many other types of powers.

Importantly, however, it is equally – if not more – unfortunate that SJ Hilder did not have drawn to her attention the provisions of (at the time Part 24, but now Part 23) of the Court of Protection Rules, which provide in Rule 23.6 for a standalone application to be made in any case where there is doubt as to the basis upon which the attorney under a foreign power is operating.  This is what the applicants in this case should have been seeking and the court considering, and it is the course of action I would strongly advise that any attorney under a ‘foreign’ power takes in future in the case of recalcitrant institutions in England and Wales.  I would hope, further, that the opportunity arises swiftly for either SJ Hilder or another judge of equivalent or greater seniority to clarify the position with the benefit of submissions based upon the matters set out above.

Court of Protection mediation scheme proposal – help wanted

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 (ks@39essex.com) if interested.   Your help would be most appreciated by 3 April.

Law Commission Deprivation of Liberty report – the Government responds

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.

Deckchairs on the legal Titanic? The Re X saga continues

In Re KT & Ors [2018] 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 [2016] EWCOP 15, there being no family member or friend is available for appointment as P’s Rule 1.2(5) representative.

Background

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 [2010] EWHC 978 (in particular at paragraph 96) and its application in Staffordshire County Council v SRK and others [2016] EWCOP 27 and [2016] 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 [2015] 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.

Way ahead

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.

Comment

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.