Court of Protection Handbook Quarterly Update – May 2021


The quarterly online update to the Court of Protection Handbook is now available, covering such cases as Re P (Discharge of Party) on when the court can discharge a party of its own motion, Re MN on the limited steps that the court will consider taking under s.48, and Re P (another one) on the ‘white leopard’ of the situation where a person is said to lack capacity to make a medical treatment decision but to have capacity to conduct proceedings about whether to undergo the procedure.

CoP e-filing for deprivation of liberty cases

HMCTS have announced that:

To further support digital working within the Court of Protection we are starting to use electronic filing of documents (aka e-filing) for all Deprivation of Liberty cases. This involves the introduction of an automated system where correspondence and attachments received by email are placed directly onto the court’s digital files (e-files).
As well as providing the many general efficiencies of increased digital working, the use of the e-filing system will enable faster allocation of information to court files to ensure that judiciary and court administrators have immediate access to information within minutes of it being received by email.
When will the changes happen?
The e-filing system is being introduced at the Court of Protection to manage Deprivation of Liberty cases submitted to First Avenue House (FAH), London on/around the end of March 2021

For more details, see the update here.

Official Solicitor Practice Notes

Two Practice Notes have been published by the Official Solicitor, Sarah Castle, setting out important practicalities relating the appointment of the Official Solicitor as litigation friend of the person concerned (“P”) in the Court of Protection and requests by the court to the Official Solicitor to act as, or appoint counsel to act as an advocate to the court. Both are dated 3 February 2021. One note deals with health and welfare proceedings, and the other with property and affairs proceedings.

This serves also as a useful opportunity to remind people of the resources available on the Court of Protection Handbook website, including the following:

A basic guide to the Court of Protection written by Victoria Butler-Cole QC, Sarah Castle, Jakki Cowley and Alex Ruck Keene, which can be found here.

A glossary of words and phrases used in the Court of Protection (by the same authors), which can be found here.

A guide by Jakki Cowley called “You’re going to a welfare hearing at the Court of Protection – what does this mean for you?,” which can be found here.

An easy read guide, focusing on participation and written by Dr Jaime Lindsey of the University of Essex, which can be found here.

guide to remote hearings has been produced by the Transparency Project.  It is designed for those attending family proceedings, but has practical information which may be equally useful to those attending hearings before the Court of Protection.

The consequences of intemperate communication

 

In TA, Re (Recording of hearings; Communication with Court office) [2021] EWCOP 3 (22 January 2021) Cobb J was faced with a ‘troubling case” concerning GA, a woman with Alzheimer’s dementia currently being cared for at home by her son TA.   “Poor progress” had been made largely because of challenges to the local authority.  The judge made directions on the substantive application.  These do not appear in his judgment which deals instead with two applications:

i) An application dated 17 November 2020, buttressed by a separate but similar application dated 15 January 2021, issued by TA for permission to make his own recording of this hearing and indeed all hearings in this case in the Court of Protection;

ii) An application, issued of the Court’s own motion by HHJ Anderson on 10 December 2020, for an order restricting TA’s contact with the Court of Protection Court office, given his history of communications with the court over a period of time.

Cobb J noted that the Court of Protection was not included in the list of courts in which the Coronavirus Act 2020 created an offence of making an unauthorised recording; but that the terms of the criminal prohibition are included in standard orders made since the guidance of Hayden J on remote access to the Court of Protection, so that unauthorised recordings become civil contempt of court.  On the facts of this case Cobb J was far from persuaded that there was any need for TA to record hearings; moreover he considered TA was likely to publish material which would identify or run the risk of identifying GA.

The background to the second application speaks for itself:

The Operations Manager has filed a statement (17.12.20); she records that the court received 150 e-mails from TA in 2019, 217 e-mails in 2020 (total 367 – approximately – 15 per month). Her statement goes on to reveal that the e-mail/correspondence traffic generated between TA, the judiciary, and the other parties, in a recent ‘snapshot’ of 3 months (September, October, November 2020) amounted to 392 separate pieces of mail/correspondence sent/received. This amounts to approx. 130 pieces of correspondence per month, or 4.5 per day.

The Operations Manager has further advised that TA has made 39 COP9 applications in the case over the 24-month period, 35 of these have been made in 2020 (i.e. approximately 3 per month in 2020). Pausing here, the sheer volume of applications might well suggest that consideration ought to be given, when determining any of the outstanding applications before the court, to the grounds on which the court may consider it appropriate to make a form of Civil Restraint Order under CPR 1998 rule 3.11 and PD3C. The Operations Manager goes on to report that TA telephones the court office regularly, usually when he issues an application (which he does regularly – see above), receives orders/replies from the court office or after a hearing; she estimates that the calls are made approximately twice per week and the staff report that the telephone calls average between 30 to 40 minutes in duration. The Operations Manager observes that TA routinely challenges the competence of HMCTS staff, and he is known often to accuse the staff of colluding with the Local Authority against him. She further observes, and from my reading of the material I agree, that his more abusive comments are primarily directed at the judiciary and the lawyers for the other parties to the litigation. 

I have seen some of the e-mails which TA has sent to the court and the parties; his practice is to copy in many recipients of his e-mail (I counted well over 100 recipients to some of the recent e-mails sent to the Local Authority including his Member of Parliament). He signs himself off by his name, sometimes followed by an epithet including (from recent e-mails filed): “Diligent and persistent as ever”, “Not a Gentle Knight”, “WikiLeaks Wannabe”, “DPA [Data Protection Act] Pioneer”, or (in the case of his position statement – by e-mail – for the hearing before me) “Leviathan Terminator”. In e-mails sent following the 15 January 2021 hearing, “(a humble, disprivileged (sic.) persecuted informal carer. Mr Nobody)”, and in another “(UNBREAKABLE!)” (capitals in the original).

 Cobb J found that there was no justification for the tone or volume of the correspondence and quoted the judgment of King LJ in Agarwala v Agarwala

“Whilst every judge is sympathetic to the challenges faced by litigants in person, justice simply cannot be done through a torrent of informal, unfocussed emails, often sent directly to the judge and not to the other parties. Neither the judge nor the court staff can, or should, be expected to field communications of this type. In my view judges must be entitled, as part of their general case management powers, to put in place, where they feel it to be appropriate, strict directions regulating communications with the court and litigants should understand that failure to comply with such directions will mean that communications that they choose to send, notwithstanding those directions, will be neither responded to nor acted upon.”

Cobb J made use of his powers under s47 Mental Capacity Act to injunct TA from communicating with the court by email and telephone, stating that although exceptional it was proportionate to the facts of the case, and added a penal notice.    The judgment concludes with the text of the order itself.    Cobb did not make use of the Part 22 of the Court of Protection Rules 2017 to make a civil restraint order.

Contempt, court orders and P’s confidentiality – an update

The Court of Appeal has had little hesitation dismissing ([2020] EWCA Civ 1675) the appeal by Dahlia Griffith against her conviction and sentence of imprisonment for contempt, about which Alex has written here.  Having applied out of time to appeal and for a stay of the order, which had been refused, Ms Griffith did not appear – indeed, as at the day of the hearing, she had not been found and taken into custody.

Peter Jackson LJ held as follows:

14. The first matter to consider is the Appellant’s absence at this appeal hearing. I am satisfied that she has had every opportunity to be represented and that, having chosen to represent herself, there is no good reason why she could not have attended. Her absence is unfortunately of a piece with her overall attitude to the court process. There is no good reason why her appeal should not be determined today.

15. As to that, I conclude that the Judge dealt with these committal proceedings in a way that is beyond criticism. His approach is a model of the careful and balanced assessment that is necessary in a case of this kind. His finding that the Appellant is in contempt was supported by compelling reasoning, indeed the conclusion was inevitable. His approach to the sentencing exercise cannot be faulted. A sentence of this length is a long one, but it is unfortunately necessary in circumstances where the appellant has shown no acceptance, remorse or apology for the deliberate forgery of a court order.

16. I would therefore dismiss this appeal. In doing so, I draw attention – and the Appellant’s attention in particular – to the opportunity that is given to all contemnors to seek to purge their contempt by making an application to the trial court. In circumstances of this kind, the sentence of a contemnor who accepts their contempt and makes a genuine apology for their behaviour will always be carefully reviewed.

Coulson LJ, agreeing with Peter Jackson LJ, noted that, “[A]lthough the recent changes to CPR Part 81 will do much to make the contempt procedure less cumbersome and complex, there will still be many contempt cases in which a judge will have to roll up his or her sleeves and address in detail not only the facts and the law, but all the many balancing factors necessary to achieve a just outcome.”   Sadly, for these purposes, CPR Part 81 does not, in fact, apply to the Court of Protection, its contempt procedures being governed by Part 21 of the Court of Protection Rules 2017, which have yet to be updated in line with the CPR changes which took effect on 1 October 2020.

The police and the Court of Protection – whose interests?

In AB (Court of Protection: Police Disclosure) [2019] EWCOP 66, a decision handed down in October 2019, but which for some reason did not appear on Bailii until December 2020, Keehan J considered an application for disclosure of psychological reports in relation to the subject of Court of Protection proceedings.   The Official Solicitor on his behalf opposed the application and submitted that only very limited information should be provided to the police in relation to the reports.

The background can be described shortly.  There were three reports, two relating to litigation capacity and capacity to make decisions about residence, the third addressing the issue of AB’s capacity in relation to access to the internet and social media.  For purposes of preparing this report, AB underwent an education programme in relation to decision-making relating to accessing the internet and social media.  After he had had undergone that programme that the psychologist prepared her third and final report in which she concluded that at that time AB had capacity to access the internet and social media.   The police were undertaking an investigation into offences said to have been committed by AB in between one and two years earlier relating to category C images of children. Subject to the issue of disclosure of the report sought by the police, this investigation was concluded.  Keehan J was told by Counsel for the police that if the expert had concluded that AB lacked capacity to access the internet and social media, it was likely the criminal proceedings would be discontinued against AB. Furthermore, if the court declined the police’s application for disclosure, then the police would instruct their own expert to undertake a capacity assessment of AB.

The parties were agreed on the legal principles that should be applied.  Rule 5.9 of the Court of Protection Rules 2017 provides for an application to be made by a person who is or was not a party to proceedings in the Court of Protection to inspect any other documents in the court records or to obtain a copy of such documents or extracts from such documents. It was submitted by the Official Solicitor (without dissent) that there was no existing authority on the principles to be applied in relation to such a request for disclosure under Rule 5.9, but it was agreed that the test to be applied was not a best interests test, but rather the test set down in Re C (A Minor) (Care Proceedings: Disclosure) [1997] 2 WLR 322, with appropriate modifications.  This test contains ten points, as follows:

1.The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor;

2. The welfare and interests of other children generally;

3. The maintenance of confidentiality in children cases;

4. The importance of encouraging frankness in children’s cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which section 98(2) applies…;

5. The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice;

6. The public interest in the prosecution of serious crime and punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor;

7. The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order;

8. The desirability of cooperation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly important in cases concerning children;

9. In the case to which Section 98(2) applies, the terms of the section itself, namely that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations;

10 Any other material disclosure which has already taken place.

Keehan J agreed that he should apply those principles with the necessary changes for purposes of the Court of Protection.  At paragraph 8, he noted:

and take account of the fact that AB does not wish these reports to be disclosed to the police. I take account and give considerable weight to the public interest in the administration of justice, the public interest in the prosecution of serious crime, and the public interest in convicting those who have been guilty of violent or sexual offences against children. Those are plainly important factors which ordinarily carry considerable and even determinative weight in applications for disclosure. In this case, however, I attach particular weight to issue 7:

“The gravity of the alleged offence and [more importantly] the relevance of the evidence to it…”

It was only the third report which was of interest to the police in the case, but it did not deal with the question of whether he had had capacity in the period covered by the index offences with which AB was charged.  Keehan J therefore held that the report contained nothing of relevance to the police investigation other than for the police to know that: (a) prior to coming to a conclusion, the expert had arranged for AB to undergo educative work; and (b) that her assessment that, in May 2019, AB had the capacity to access the internet and social media, was limited to that time and in the context of the educative work undertaken with him.

Keehan J was fortified in coming to his conclusion by also taking into account

11. […] the singular importance in cases before the Court of Protection of those who are the subject of the proceedings being frank in their discussions and their cooperation with professionals. It is vital that those who are the subject of proceedings in the Court of Protection have confidence in the confidentiality of the proceedings and, in particular, the confidentiality of assessments undertaken of them for the purposes of determining whether or not they have capacity in the various relevant domains.

12. It is, in my judgment, supremely important that those who are the subject of the Court of Protection are as frank as they possibly can be to those who are seeking to assess them and, accordingly, I would only consider disclosing the expert’s report to the police if the weight to be given to the public interest was so great as to outweigh the consideration of frankness by AB in the Court of Protection proceedings. As it is, I have come to the conclusion that the expert’s reports are not relevant to the issue that the police have to determine for the purposes of the prosecution of AB, namely between 2017 and 2018, did AB have capacity to access the internet and social media? As I have already said, the expert does not address that issue in any of her reports. Accordingly, the application is refused.

Comment

Given the obvious irrelevance of the reports in question – even the report relating to capacity to access internet or social media – it is not surprising that Keehan J drew the conclusion that he did, although the judgment is a helpful reminder of the time-specificity of capacity.

It is, though, with respect, not entirely obvious that the importance of frankness upon which such weight was placed by Keehan J quite plays out in the same way as it does in relation to children.  The C case was not concerned so much with potential incrimination by the child themselves, as by those who might potentially have committed offences against the child.  There may, perhaps, be some more links required in the logical chain before the position in relation to the subject of proceedings before the Court of Protection is reached.  Perhaps another, more satisfactory way, of framing this would have been to identify that the Court of Protection would be substantially hindered in its ability to discharge its inquisitorial functions if it were deprived of its ability to obtain the best information in relation to the subject of proceedings.   The decision does, however, set up an interesting – and unresolved – tension as between the Court of Protection’s functions in considering the best interests of the person, and the wider societal interest in determining both whether that person has committed an offence and, if they have, their responsibility.   It is not impossible to imagine a case in which this tension cannot be avoided on the basis of the irrelevance of the information being sought by the police.

Confidential material and when you cannot be a party (even if you want to be)

In KK v Leeds City Council [2020] EWCOP 64, Cobb J had to consider whether P’s maternal aunt should be joined to welfare proceedings.  The aunt, KK, had been P’s main carer for almost all of her childhood; they had last lived together 3 years previously, and they currently had contact with each other.  At first instance, HHJ Hayes QC had refused KK’s application for party status; KK sought permission to appeal this decision to Cobb J.

KK’s application had been (and continued to be) resisted by both the applicant local authority and the Official Solicitor on her niece, DK’s, behalf.  At the hearing below, they presented and sought to rely upon, information which, although acknowledged to be relevant to the issue before the court, they wished to keep confidential from KK.  HHJ Hayes QC received this documentary confidential material, and read it. Neither KK nor her lawyers were given access to this material. HHJ Hayes QC gave a separate shorter judgment in which he expressed his view about this confidential material, and its significance to the decision.   A preliminary issue arose before Cobb J as to whether he, too, should read the material.  No party argued that he should not, but Counsel for KK drew his attention to the guidance given by Lord Neuberger in Bank Mellat v HM Treasury (No.2) [2013] UKSC 38 as to the potential difficulties that would arise.  Cobb J directed himself that it was necessary for him to read the material and the supplementary judgment.

There was no dispute between the parties (and Cobb J was satisfied) that HHJ Hayes QC had identified and applied the relevant test on joinder and party status, set out in COPR 2017 rr. 9.13 and 9.15.  Cobb J noted at paragraph 31 that endorsed his approach that in considering the desirability” test in COPR r.9.13(2), the “sufficient interest” of the applicant for party status is likely to be relevant. Crucially, HHJ Hayes QC had reached the conclusion that (1) revealing to KK what the confidential evidence was would mean that DK would be likely to disengage from her engagement both with professionals and with these proceedings; (2) joining KK to the proceedings notwithstanding that written evidence would lead to the same consequences; and (3) this would undermine the process of ensuring DK’s participation in the proceedings.  HHJ Hayes QC found that he could not resolve the problem by joining KK as a party and then exercising the court’s power to limit or redact disclosure, as the very fact of joinder would be to bring about the adverse consequences he was seeking to avoid.

As Cobb J identified, therefore, the real dispute in this appeal focused on HHJ Hayes QC’s management and deployment of the confidential material and its impact on his decision.

There was “an appropriately accepted premise by all counsel in this case that it is contrary to the principle of open justice for a judge to read or hear evidence, or receive argument, in private; they rightly and unanimously accept that open justice is fundamental to the dispensation of justice in a modern, democratic society (per Lord Neuberger in Bank Mellat v HMT at §2/§3). It follows that generally, every party has a right to know the full case against him, and the right to test and challenge that case fully. I say ‘generally’ because there are, as counsel in this case properly recognised, exceptions to this.”

There is, however, nothing in the MCA 2005 nor in the COPR 2017 which specifically govern the correct approach to managing sensitive material which is the subject of an application for non-disclosure.   After a careful analysis both of the underlying judgment of HHJ Hayes QC and the competing arguments put before him on appeal, Cobb J drew the threads together as follows at paragraph 41:

it seems to me that a judge faced with the situation faced by HHJ Hayes QC at the hearing of the application for party status should consider the following points:

i) The general obligation of open justice applies in the Court of Protection as in other jurisdictions […];

ii) A judge faced with a request to withhold relevant but sensitive information/evidence from an aspirant for party status, must satisfy him/herself that the request is validlymade […];

iii) The best interests of P, alternatively the “interests and position” of P, should occupy a central place in any decision to provide or withhold sensitive information/evidence to an applicant (section 4 MCA 2005 when read with rule 1.1(3)(b) COPR 2017); the greater the risk of harm or adverse consequences to P (and/or the legal process, and specifically P’s participation in that process) by disclosure of the sensitive information, the stronger the imperative for withholding the same […];

iv) The expectation of an “equal footing” (rule 1.1(3)(d) COPR 2017) for the parties should be considered as one of the factors […];

v) While the principles of natural justice are always engaged, the obligation to give full disclosure of all information (including sensitive information) to someone who is not a partyis unlikely to be as great as it would be to an existing party[…];

vi) Any decision to withhold information from an aspirant for party status can only be justified on the grounds of necessity[…];

vii) In such a situation the Article 6 and Article 8 rights of P and the aspirant for party status are engaged; where they conflict, the rights of P must prevail […];

viii) The judge should always consider whether a step can be taken (one of the ‘procedural mitigations’ referred to at [26] above) to acquaint the aspirant with the essence of sensitive/withheld material; by providing a ‘gist’ of the material, or disclosing it to the applicant’s lawyers; I suggest that a closed material hearing would rarely be appropriate in these circumstances.

On the facts of the case, Cobb J was satisfied that HHJ Hayes QC rightly prioritised (so far as was reasonably practicable), the need to permit and encourage DK to participate in the proceedings which concern her, and/or to improve her ability to participate, as fully as possible in any act done for her and any decision affecting her (MCA 2005, s.4(4)).   On the specific facts of the case, HHJ Hayes QC was not wrong to conclude that the very act of joining K would be to bring about adverse consequences for DK and to defeat the very purpose of the proceedings.  Although unusual, the process by which HHJ Hayes QC had reached this conclusion was not fundamentally unjust.   Cobb J also held that he had been correct to prepare a short supplementary judgment setting out his conclusions relevant to the confidential material, if for no reason because it enabled the appellate court to assess the extent to which, if at all, the confidential material has had a bearing on the overall outcome.

At paragraph 48, Cobb J concluded with two short points in dismissing the appeal.

i) It will, I suspect, be relatively uncommon for someone in the position of KK – a former primary carer of P (particularly where P is still a young adult) who wishes party status in proceedings under the MCA 2005– to be denied joinder to the proceedings, and be denied the chance to contribute to the decision-making in this welfare-based jurisdiction. That said, and adopting Bodey J’s comments from Re SK […]) for this case, it will always be necessary to balance “the pros and cons of the particular joinder sought in the particular circumstances of the case”;

ii) The Judge’s decision, and the dismissal of this appeal, does not detract from the obligation on the Local Authority to consult with KK (section 4(7) MCA 2005) as practicable and appropriate on welfare-based issues concerning DK.

Comment

As Cobb J notes, it is very unusual for a person who has played – and appeared to play – so important a part in P’s life not to be joined as a party to proceedings where they wish to be joined.  A function of the nature of the proceedings is that, whilst two judges were clear that KK should not have been on the facts of the case, others cannot know why this was the case.  Any case in which reliance has to be made upon confidential material arises deep concern, as was clearly caused to both HHJ Hayes QC and Cobb J, and the outcome can never feel entirely satisfactory.  Nonetheless, it is clear that both judges, applying, in turn, a line of case-law which emphasised the rigour with which any limitation upon disclosure of information to either a party or putative party has to be considered, gave the position very anxious scrutiny.

It is unlikely that the position that HHJ Hayes QC encountered will crop again often in the future, but at least there is now a clear route-map for parties / putative parties and the court to follow.