The Court of Protection mediation scheme in practice

[Even though COVID-19 may be making everyone rethink how conventional proceedings unfold in the Court of Protection, it does – or should not – detract from the importance of mediation.  We are very pleased to host here a guest post by Alex Troup of St John’s Chambers, Bristol, outlining his experience as a mediator under the Court of Protection Mediation Scheme which is currently up and running on an informal pilot basis].

As one of the panel mediators on the Court of Protection Mediation Scheme, I thought that I would take the opportunity to tell you about a recent mediation which I conducted as mediator under the Scheme and which resulted in a successful settlement of a case which would otherwise have gone on to an expensive, stressful and time-consuming trial.

The case in question happened to involve a property and affairs dispute, although in principle health and welfare cases can be equally suitable for mediation under the Scheme. But I would like to focus not on the details of the case, which remains confidential, but instead on how the Scheme worked in practice.

There are 20 panel mediators on the Scheme, all of whom are experienced mediators with expertise in the field of mental capacity. You can engage a panel mediator simply by contacting them directly using the contact details available on the Scheme website. The parties in my case contacted my clerks who made the necessary arrangements. The great advantage to the parties is that each and every one of the panel mediators has agreed to act at a reduced rate of £100.80 per hour plus travel expenses, which is in line with legal aid rates. So the process is very cost effective.

What is more, we mediators are perfectly happy to travel. The mediation I was involved in took place in the far north of England. The fact that I am based in Bristol did not matter: I simply travelled up the day before and stayed overnight in a local hotel. The mediation took place in a neutral venue which had been agreed by the parties. We started at 9am prompt and we finished by 5pm. The mediation took the form of a shuttle mediation so the parties themselves did not have to meet at any stage, although we did have a number of lawyers’ meetings which proved extremely useful.

A key issue for any mediation is when it takes place. A mediation under the Scheme can only take place once proceedings have been issued in the Court of Protection. In our case, the mediation took place shortly after a directions hearing had taken place at which directions were given leading towards trial. That meant that the mediation took place before the parties had gone through the formal process of disclosure and exchange of witness statements, but it was felt – as it turned out, correctly – that there was already sufficient information and documentation available to allow the parties to negotiate a settlement. The costs of disclosure and witness statements were therefore avoided.

One of the features of the Scheme is that the parties must find a way to allow P to participate in the mediation process. In our case, the Official Solicitor had been appointed to act as P’s litigation friend and so she was able to promote P’s views and wishes. The Official Solicitor’s barrister did not attend the mediation in person but spoke by telephone to the parties at various key moments during the day and was involved in the drafting of the settlement agreement before it was signed.

Another feature of the Scheme is that there is a good deal of helpful documentation available on the Scheme website to guide the parties (and indeed the mediator!) through the process. This includes checklists, a draft proforma mediation agreement, and questionnaires for participants. Because any settlement will have to be approved by the Court of Protection as being in P’s best interests, the documentation also includes an invaluable checklist for what will need to be included in the draft order.

Overall, I thought that the mediation worked extremely well. In many ways it felt like any other kind of mediation, albeit with variations to reflect the fact that it concerned an incapacitated individual whose wishes and views needed to be taken into account and that the agreed settlement would need to be approved by the court. The feedback from the parties was very positive and there is no doubt that it was a cheaper and more efficient process than litigation.

I urge those of you who have not yet tried a mediation under the Scheme to give it a go. The mediation process is flexible and can be moulded to suit your particular case. The Scheme is user friendly and far less daunting for clients than the formality of Court. Many Court of Protection cases are eminently suitable for mediation, and a speedy and cost-effective resolution at mediation is usually not only in P’s best interests but also the best interests of all of other parties involved in the dispute. Full details of the Scheme can be found on its website which can be found here: https://www.courtofprotectionmediation.uk/

Court of Protection update

Senior Judge Hilder and the Operations Manager of the Court of Protection have provided an update on the court’s performance and activities during the COVID-19 outbreak, and work being done to assist practitioners.   The letter (dated 21 May 2020) can be found here.

The Court of Protection, care homes, the rule of law and deprivation of liberty

The Vice-President of the Court of Protection, Hayden J, has written to Directors of Adult Social Services (in a letter which can be shared more widely) to highlight a number of key points relating to the operation of the MCA 2005 in the context of COVID-19 and care homes.

The wide-ranging letter takes in remote assessments and a protocol for managing DoLs prepared by Lorraine Currie, MCA/DoLS lead for Shropshire County Council; it notes that:

It was expressed to me, at the Hive group, that there appear to be some who believe that careful adherence to proper legal process and appropriate authorisation may now, at times, be required to give way to other pressing welfare priorities. I understand how this view might take hold in establishments battling to bring calm and reassurance to intensely distressed people, both in the Care Homes and within their wider families. It is important, however, that I signal that whilst I am sympathetic to the pressures, I am very clear that any such view is entirely misconceived. The deprivation of the liberty of any individual in a democratic society, holding fast to the rule of law, will always require appropriate authorisation. Nothing has changed. The Mental Capacity Act 2005, the Court of Protection Rules and the fundamental rights and freedoms which underpin them are indispensable safeguards to the frail and vulnerable.  (emphasis in original)

The letter also notes that:

There has been a striking and troubling drop in the number of Section 21A (MCA 2005) applications which has occurred, in some areas, alongside a significant reduction in referrals to advocacy services. It needs to be emphasised that where there has been a failure properly to authorise deprivation of liberty one of the consequences is that, in the absence of authorisation, there will be a loss of entitlement to public funding and inevitably an obstruction to the individuals absolute right to challenge the deprivation of liberty. For the present I simply highlight my concern and restate the importance of the statutory requirements.

In terms of remote assessments, this document prepared by Lorraine Currie is of considerable assistance; she also contributed to a webinar for the National Mental Capacity Forum on the subject, which can be found here.

 

Remote hearings – the Court of Appeal’s stock-take

In two decisions handed down on 30 April 2020, Re A (Children) (Remote Hearings) [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing : Interim Care Order) [2020] EWCA Civ 584, the Court of Appeal undertook a stock-take of the position in relation to remote hearings. Both were decided by Sir Andrew McFarlane, the President of the Family Division, and Davies and Peter Jackson LJJ.  Re B is primarily of importance for indicating how the pressures of the current situation led to a series of cumulative missteps, including by the Guardian and the judge. In Re A, the Court of Appeal to set out a number of “cardinal points and relevant factors with a view to assisting courts to make appropriate decisions in this changing landscape.” Although the cases concerned children, the principles are equally applicable to cases before the Court of Protection.

The key points from Re A are as follows:

Paragraph 3:

i) The decision whether to conduct a remote hearing, and the means by which each individual case may be heard, are a matter for the judge or magistrate who is to conduct the hearing. It is a case management decision over which the first instance court will have a wide discretion, based on the ordinary principles of fairness, justice and the need to promote the welfare of the subject child or children. An appeal is only likely to succeed where a particular decision falls outside the range of reasonable ways of proceeding that were open to the court and is, therefore, held to be wrong.

ii) Guidance or indications issued by the senior judiciary as to those cases which might, or might not, be suitable for a remote hearing are no more than that, namely guidance or illustrations aimed at supporting the judge or magistrates in deciding whether or not to conduct a remote hearing in a particular case.

iii) The temporary nature of any guidance, indications or even court decisions on the issue of remote hearings should always be remembered. This will become all the more apparent once the present restrictions on movement start to be gradually relaxed. From week to week the experience of the courts and the profession is developing, so that what might, or might not, have been considered appropriate at one time may come to be seen as inappropriate at a later date, or vice versa. For example, it is the common experience of many judges that remote hearings take longer to set up and undertake than normal face-to-face hearings; consequently, courts are now listing fewer cases each day than was the case some weeks ago. On the other hand, some court buildings remain fully open and have been set up for safe, socially isolated, hearings and it may now be possible to consider that a case may be heard safely in those courts when that was not the case in the early days of ‘lockdown’.

Paragraph 9:

The factors that are likely to influence the decision on whether to proceed with a remote hearing will vary from case to case, court to court and judge to judge. We consider that they will include:

i) The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?

ii) Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;

iii) Whether the parties are legally represented;

iv) The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;

v) Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;

vi) The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;

vii) The scope and scale of the proposed hearing. How long is the hearing expected to last?

viii) The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;

ix) The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;

x) Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.

The facts of Re A illustrate the challenges faced at the moment, in the context of an individual (the child’s father) with “limited abilities, and some disabilities, which render him less able to take part in a remote hearing. He has been diagnosed as dyslexic. He is unused to reading. He has a short attention span, is emotionally fragile and brittle and quickly becomes exasperated.” The Court of Appeal emphasised that “[t]he concept of fairness and the need for a lay party to ‘engage’ in the process includes the ability of that person to follow and to understand what transpires at a court hearing at least to an adequate degree and then to be able to instruct their lawyers adequately and in a timely manner.”  The Court of Appeal also considered problematic the approach proposed by the judge a hybrid one which would have seen the parents giving evidence before him in person in court, but in the absence of their representatives (who would attend by video):

58. […] Recently, in the judgment given in Re P (A Child: Remote Hearings) [2020] EWFC 32 at paragraph 26 the President stressed the importance of the court being able to see all the parties in the court room. Although that case was specifically directed to the hearing of allegations of Factitious or Induced Illness, the more general point that a judge will be in a better position to assess the evidence of a witness who gives evidence live from a witness box than one who speaks over a video link is plainly right. There is, however, a need for caution when the only witness(es) required to attend court are the lay parties when others, for example the key social worker, are not. When a lay party is required to attend court, but his or her advocate is not, the cause for concern at the imbalance in the process must be heightened. Consideration must be given to the potentially exposed position of a witness giving live evidence in front of a judge in the absence of his or her lawyers or any of the other parties and in response to questions asked over a video link. The judge does not appear to have considered whether in this particular case it was reasonable to expect these parents to be placed in that potentially daunting position. When this is placed in the balance alongside the other factors which establish a lack of a fair process it gives them additional weight.

HIVE update and email address

The HIVE mailbox (hive@justice.gov.uk) is now live, and can be used as the first point of contact to raise specific issues relating to the operation of the Court of Protection during the pandemic.  It is not to be used for issues relating to specific cases (for instance case progression or appeals).

The members of the HIVE group are:

  • Hayden J
  • HHJ Carolyn Hilder
  • Sarah Castle (the Official Solicitor)
  • Vikram Sachdeva QC
  • Lorraine Cavanagh QC
  • Nicola Mackintosh QC (Hon)
  • Alex Ruck Keene
  • Joan Goulbourn (Ministry of Justice)
  • Mary MacGregor (Office of Public Guardian)
  • Kate Edwards

 

Court of Protection and COPDOL 11 applications

Senior Judge Hilder has approved the circulation of the following update (17 April 2020) in terms of the approach being taken to COPDOL11 applications during the period of Covid-19 restrictions: 

The DoLS team is now accepting COPDOL11 applications by e-mail. Each application received will be added to the current list of matters awaiting determination, so that cases will be considered in order of receipt unless the patient is awaiting discharge from hospital (referral to the resident urgent business judge) or has a planned imminent move date (referral to the next available DoLS judge).

All applications must be complete including medical evidence as without this the court does not have jurisdiction.

The documents must be a separate PDF and clearly identified i.e. DOL11, COP3, Best interest etc.

As a temporary measure whilst the pandemic is restricting normal working, documents will be accepted with an electronic signature. Photographs of any documents provided by the Rule 1.2 Representative are acceptable provided they are fully legible.

Orders are now being sent to Local Authorities and CCGs by e-mail. The care plan (which often runs to 50 or so pages) will not be appended to the e-mail.  As the date of the care plan is referred to in the order and Local Authorities/CCGs have their own original copy, hard copies will be sent by post to Local Authority/CCG offices as normal.

Stayed applications are not being progressed during the pandemic because General Visitors are not available. Orders which have already been made lifting a stay will have a longer period for submission of updated documents when the order is issued.

If it is apparent that you are unable to comply with deadlines for filing documents, please inform the DOLS team by e-mail of the proposed date for filing, and we will diarise the matter accordingly. If the progress of the case is affected, the matter will be referred to a judge for consideration.

Please try not to chase us for updates on applications unless there is specific urgency. We are now a team of only 4 staff working hard to assist every LA and CCG in the country.

[For further guidance about the COPDOL11 process more generally, see the 39 Essex Chambers guide here].

Progress report- remote working in the Civil and Family Courts

Practitioners may be interested to read the letter to District and Circuit judges, sitting in civil and family cases, from the Lord Chief Justice, Master of the Rolls and President of the Family Division.  You can read the letter here.

It is a helpful progress report on the experience of remote working, by both telephone and video-link.   It notes:

“Across all jurisdictions, around 40% of all hearings have continued, some in the traditional way, others using phone, video or the internet. It is easier to continue in this way with some types of court and tribunal cases than others. The overwhelming majority of those have not been long hearings involving difficult evidence or high emotion, and for obvious reasons.”

 

The letter does not refer to the experience of the Court of Protection, or to cases involving deprivation of liberty.

What’s the permission threshold?

In Re D (A young man) [2019] EWCOP 1, Mostyn J had to consider a question that had previously been the subject of only very limited judicial consideration, namely the test for permission under s.50 MCA 2005. The case concerned a young man, D, aged 20, with autism. He had been looked after by his father and his stepmother, C, since the age of 3.

D’s mother, who was subject to a civil restraint order, applied for permission to make a substantive application concerning the nature and quantum of her contact with D. Mostyn J granted her leave under the terms of the civil restraint order to make the application for permission to make the application itself.

Under the terms of ss.50(1) and (2) MCA 2005, the mother needed permission to make a substantive application as she did not fall into one of the categories where permission is not required set out in section 50(1). Section 50(3) provides:

In deciding whether to grant permission the court must, in particular, have regard to –

(a) the applicant’s connection with the person to whom the application relates,

(b) the reasons for the application,

(c) the benefit to the person to whom the application relates of a proposed order or directions, and

(d) whether the benefit can be achieved in any other way.

Mostyn J noted that:

4.  A permission requirement is a not uncommon feature of our legal procedure. For example, permission is needed to make an application for judicial review. Permission is needed to mount an appeal. Permission is needed to make a claim under Part III of the Matrimonial and Family Proceedings Act 1984. In the field of judicial review, the permission requirement is not merely there to weed out applications which are abusive or nonsensical: to gain permission the claimant has to demonstrate a good arguable case. Permission to appeal will only be granted where the court is satisfied that the appellant has shown a real prospect of success or some other good reason why an appeal should be heard. Under Part III of the 1984 Act permission will only be granted if the applicant demonstrates solid grounds for making the substantive application: see Agbaje v Akinnoye-Agbaje [2010] UKSC 13 at [33] per Lord Collins. This is said to set the threshold higher than the judicial review threshold of a good arguable case.

5. There is no authority under section 50 giving guidance as to what the threshold is in proceedings under the 2005 Act. In my judgment the appropriate threshold is the same as that applicable in the field of judicial review. The applicant must demonstrate that there is a good arguable case for her to be allowed to apply for review of the present contact arrangements.

The case had had a very lengthy and unhappy history, contact arrangements between D (at that stage a child) and his mother having been fixed some seven years previously. Having rehearsed the history, the possible scope of proceedings before the Court of Protection and (in his view) the irrelevance of the fact that D had turned 18, Mostyn J held that he applied:

13. […] the same standards to this application as I would if I were hearing an oral inter partes application for permission to seek judicial review. I cannot say that I am satisfied that the mother has shown a good arguable case that a substantive application would succeed if permission were granted. Fundamentally, I am not satisfied that circumstances have changed to any material extent since the contact regime was fixed seven years ago and confirmed by me two years ago. I cannot discern any material benefit that would accrue to D if this permission application were granted. On the contrary, I can see the potential for much stress and unhappiness not only for D but also for his family members if the application were to be allowed to proceed.

Mostyn J therefore refused the mother’s application for permission.

Comment

Being pedantic, Mostyn J was not correct to say that there was no authority on s.50.   In 2010, Macur J had in NK v v VW [2012] COPLR 105 had refused permission on the basis that she considered that “section 50(3) and the associated Rules require the Court to prevent not only the frivolous and abusive applications but those which have no realistic prospect of success or bear any sense of proportional response to the problem that is envisaged by NK in this case.” Fortunately, not least for procedural enthusiasts, that approach is consistent with the more detailed analysis now given by Mostyn J.

Serious Medical Treatment – Practice Guidance

The Vice-President of the Court of Protection, Hayden J, has published guidance on serious medical treatment applications in the Court of Protection.   It covers (1) situations in which consideration must be given as to whether an application should be made and (2) the court’s expectations in relation to the making and progress of an application.  It is expressly designed to operate until such time as it is superseded by the revised Code of Practice to the Mental Capacity Act.