The quarterly online update to the Court of Protection Handbook is now available, covering such cases as DP v Hillingdon on s21A applications, Re ND on the declaratory powers of the Court of Protection and Re AB on when the court will decline to recognise and enforce a foreign protective measure.
Practitioners will need to note the implications of the recent and important judgment of Hayden J in DP (by his ALR Keith Clarke) v London Borough of Hillingdon  EWCOP 45 . You can read the judgment here.
DP was 72 and had an organic personality disorder and catatonic disorder, both of which resulted from an earlier stroke. He was deprived of his liberty in a care home under a standard authorisation (SA). He challenged this under section 21A Mental cApacity Act 2005 (MCA).
The judge had provided the parties with a directions order in which she made interim declarations under section 48 MCA to the effect that DP lacked capacity to conduct the proceedings and as to whether to be accommodated in the care home for the purpose of the relevant care and treatment. The judge must have been aware that the question of capacity was contentious as she also directed the parties to identify an expert who could provide a report on DP’s capacity under section 49 MCA.
DP successfully appealed on the basis that the judge wrongly approached the question whether to make a declaration of incapacity under section 48.
The judge had provided an analysis of the only evidence of capacity which was from a section 12 psychiatrist Dr Longe. It was clear from that analysis that the judge had reservations about Dr Longe’s evidence. She was concerned that Dr Longe did not explain the purpose of the assessment to DP. Dr Longe’s conclusion that DP could not communicated his decision “did not quite make sense as DP was able to speak and communicate”. Moreover he did not address “the real question” which was whether DP could evaluate any available options as to his residence and care. Nevertheless the judge made the declarations under section 48 as to DP’s capacity. Moreover she did not address at all DP’s application that the SA should be terminated immediately.
On appeal Hayden J noted that in an application under section 21A is (as set out by Charles J in Re UF ) the Court “ is assessing the relevant qualifying requirements itself and reaching its own view on the evidence presented to it. It is almost inevitable that when doing that the Court will have to pay close attention to what will, on the evidence before it, best promote the best interests of the relevant person in the immediate, medium and long term and so carry out its own best interests assessment.” He noted that both parties agreed that that “the court should not treat Section 21A applications in the same way as a welfare application because Article 5( 4) ECHR requires the court to determine the former as, in effect, a matter of urgency.”
The judge rejected the submission that the court should never make interim orders of any kind in a section 21A case, preferring the alternative formulation that “an interim order, to gather further information, should only be made if there is a sufficiently clear evidential basis to do so.” He stated “I strongly prefer the alternative submission which, in my judgement, strikes the balance between protecting P’s autonomy and promoting his welfare.”
The judge went on to say that:
“It is the duty of the court to determine whether the mental capacity requirement is met. If, as here, the judge was uncertain, then the obligation on the court was to investigate it further and to do so “speedily”, to adopt the word used in Article 5(4). Of course, in Section 21A applications the court will always and of necessity have a capacity assessment before it. It was open to the Deputy District Judge, for example, to permit questions to be put to Dr Longe and/or, if necessary, to arrange for him to give evidence or revisit his assessment. I doubt that it was necessary to instruct a further expert on what is, when properly identified, an essentially uncomplicated issue i.e. does DP have capacity to decide to change care homes to be nearer to his friend Bill and, if not, whether it is in his best interests to do so.”
As to the quality of evidence necessary, the judge cited the ECtHR’s judgment in Sykora v The Czech Republic, 22 November 2012, para 103:
“any deprivation or limitation of legal capacity must be based on sufficiently reliable and conclusive evidence. An expert medical report should explain what kind of actions the applicant is unable to understand or control and what the consequences of his illness are for his social life, health, pecuniary interests, and so on. The degree of the applicant’s incapacity should be addressed in sufficient detail by the medical reports”.
Hayden J noted that
“45. Where a standard authorisation is in place, it remains in force until (i) its expiry date is reached; (ii) it is suspended, under sch. Al, part 6; (iii) the supervisory body terminates it; or (iv) the court terminates it, under s. 21A. For as long as the authorisation is in force, it provides the authority for the deprivation of P’s liberty. When s. 21A proceedings are brought, the court’s function is to ‘determine’ questions as to whether the qualifying requirements are met and to consider varying or terminating the authorisation in light of its determination of the questions (see para 31 above).
46. As I have emphasised above, when the court determines any question relating to the authorisation, the extant authorisation remains in force, without the need for any positive decision by the court. The court does not become responsible for authorising P’s deprivation of liberty upon the issuing of as. 21A application. The court’s only function is to provide the review of the authorisation which is in force. In every case it is for the court to determine how it should resolve the issues raised in the application. Mr Parkhill submits that these are essentially case management decisions and, I agree. Mr Parkhill recognises and accepts Ms Butler-Cole’s point that the guiding principle is the need for speedy determination of the lawfulness of detention mandated by Article5(4). This is a realistic concession recognising a significant body of European jurisprudence: Van der Leer v. the Netherlands, Appl No. 12/1988/156/210, 21 February 1990; Oldham v the United Kingdom, Appl No. 36273/97, 26 September 2000; Van Glabeke v France, Appl No. 38287/02, 7 March 2006; MH v the United Kingdom (2013) ECHR 1008, 22 October 2013; Raudevs v Latvia, Appl No. 24086/03, 17 December 2013.”
There is no need for the court to make a declaration under section 48 as to P’s lack of capacity for the purpose of Schedule A1 MCA whilst the SA remains in force.
The judge then made the following (obiter) observations as to the use of section 48 which are summarised at para 62:
- The words of the Statute in Section 48 require no gloss;
- The question for the Court remains throughout: is there reason to believe P lacks capacity?;
- That question stimulates an evidential enquiry in which the entire canvas of the available evidence requires to be scrutinised;
- Section 48 is a permissive provision in the context of an emergency jurisdiction which can only result in an order being made where it is identifiably in P’s best interests;
- The presumption of capacity applies with equal force when considering an interim order pursuant to Section 48 as in a declaration pursuant to Section 15;
- The exercise required by Section 48 is different from that set out in Section 15. The former requires a focus on whether the evidence establishes reasonable grounds to believe that P may lack capacity, the latter requires an evaluation as to whether P, in fact, lacks capacity;
- The court does not become responsible for authorising P’s Deprivation of Liberty upon issuing of a Section 21 A application, The court’s function is to review the authorisation which is in force;
- The objective of Section 48 is neither restrictive, in the sense that it requires a high level of proof, nor facilitative, in the sense that it is to be regarded as a perfunctory gateway to a protective regime, and
- There is a balancing exercise in which the Court is required to confront the tension between supporting autonomous adult decision making and to avoid imperilling the safety and well-being of those persons whom the Act and the judges are charged with protecting.
This important judgment helpfully emphasises the need for the court to ensure a “speedy” determination of an application under section 21A. In section 21A cases the courts should not make an interim declaration as to capacity in relation to the decisions concerning residence and care. There is however no suggestion that it may be inappropriate to make interim declarations under section 48 in relation to other matters such as capacity to conduct the proceedings, provided the court is satisfied as to the evidence, applying the guidance set out above.
Importantly this judgment does not prevent the court from extending a SA under section 48, which can be important for legal aid purposes. In Re UF, which Hayden J expressly approved, Charles J reasoned that:
34.It seems to me that the combination of s. 21A (2)(b) and (3)(a) and (b), s. 47 and s. 48 and paragraph 61(2) of Schedule A1 of the MCA empowers the Court of Protection to vary an existing standard authorisation by extending (or shortening) it and that if and when it exercises that power it would normally be sensible for the court to give consideration to whether it should then exercise its powers under ss. (6) and (7) or give directions concerning its future exercise of those powers.
35. In my view if the court so extends a standard authorisation it, unlike the supervisory body (see paragraph 51(2) of Schedule A1), is not limited to the period stated in the best interests assessment upon which it was based if that period is less than the one year referred to in paragraph 42(2)(b) of Schedule A1. This is because the Court is exercising its discretion and powers, and so is in effect carrying out its own (interim) best interests assessment.”
Moreover it should be remembered that the fact that a case begins as a challenge under section 21A does not prevent the court from exercising its jurisdiction under sections 15 and 16 MCA. This was reiterated by the Court of Appeal in Director of Legal Aid Casework v Briggs. Briggs is important too for the recognition of the breadth of issues that may arise in Section 21A cases.
In Penntrust Ltd v West Berkshire District Council & Anor  EWCOP 48, HHJ Hilder has returned to the vexed question of Practice Direction 19B and fixed costs in the Court of Protection. In its current iteration, PD19B provides that “where the net assets of P are below £16,000,” the option for detailed assessment of costs of the estate “will only arise if the court makes a specific order.”
The Applicant trust corporation was formerly appointed as property and affairs deputy for a woman called AH. At all times during the deputyship P’s liquid assets were less than £16,000 but her total assets, including a property in which she lived, were substantially higher. The deputyship order included authorisation to seek SCCO assessment but made no explicit reference to the size or nature of AH’s estate. The Applicant contended that it was entitled to rely on the authorisation in its deputyship order to seek SCCO assessment of its costs. In the event that the court did not agree, the Applicant sought retrospective authority to obtain SCCO assessment. The Respondent local authority, which was now the property and affairs deputy, wanted to understand what debt AH had incurred; the Public Guardian sought no specific outcome, but to seek to assist the court. Neither the local authority nor the Public Guardian sought a specific outcome in relation to the Applicant’s application.
Section 19(7) MCA provides that deputies are entitled (a) to be reimbursed out of P’s property for his reasonable expenses in discharging his functions, and (b) if the court so directs when appointing him, to remuneration out of P’s property for discharging them. As Charles J identified in Re AR  EWCOP 8, a decision as to remuneration is a “best interests” decision, to be determined by reference to the individual facts of a particular case.
The range of options for remuneration is set out in Rule 19.13, and amplified by a Practice Direction, PD19B. There have been two versions (for present purposes): the old version which was effective between 1 February 2011 and 30 March 2017; and the version which has in effect since 1 April 2017. The old version had a footnote explaining that “Net assets includes any land or property owned by P except where that land or property is occupied by P or one of P’s dependents;” the new version has no explanation. There has been no guidance or explanation for the removal of the footnote. Neither the versions before 2011 nor the pre-Mental Capacity Act equivalent had the footnote in. Contrary to the arguments of the Public Guardian that the footnote definition should be carried over into the new version, Senior Judge Hilder held that the 2011-2017 version was an outlier at (paragraph 72) that:
the definition from the 2011-17 version of Practice Direction 19B does not somehow “carry over” into the current version from which it is omitted. The term “net assets” in the version of PD19B effective from 1st April 2017 falls to be interpreted according to the ordinary meaning of the phrase, as “total assets minus total liabilities.”
On the facts of the case, and in light of this interpretation, Senior Judge Hilder held that the Applicant was always authorised by the deputyship order to obtain SCCO assessment of its costs.
Going forwards, Senior Judge Hilder (at paragraph 86) held that:
to avoid the necessity for proceedings such as these, where a deputy is appointed in respect of a net estate worth – at the time of appointment – less than £16 000 (within the meaning current at the time of appointment) but with authority to seek SCCO assessment, the decision-maker (either judge or Authorised Court Officer) should make explicit reference to the nature of the estate and paragraph 12 of PD19B in the wording of the order (as has been the practice at the central registry for some time.) Additionally, the deputy should check the terms of the costs authorisation carefully on first receipt of the order. If it includes the option of SCCO assessment but does not expressly confirm that such authorisation applies even where the net estate is worth less than £16 000 for the purposes of paragraph 12 of Practice Direction 19B, the deputy should make a speedy COP9 application pursuant to Rule 13.4 of the Court of Protection Rules 2017 for reconsideration. Such an approach would be of minimal cost to P and would avoid future argument.
In a judgment handed down on 30 September 2020, PLK & Ors (Court of Protection : Costs)  EWHC B28, Master Whalan has considered the concerns the method of assessment of the hourly rates claimed by Deputies. The SCCO consolidated the assessments in four cases that chosen to represent the costs claimed by Deputies in different parts of England, in the management of the affairs of protected parties who had sustained significant brain or birth injuries. The central submission of the deputies was that the court’s current approach, which, broadly speaking, relied on the application of the Guidelines Hourly Rates (‘GHR’) approved by the Costs Committee of the Civil Justice Council was, by 2020, incorrect and unjust. Instead, they submitted, the assessment of COP work should be predicated on a more flexible exercise of the discretion conferred by CPR 44.3(3), whereby the GHR were utilised as merely a ‘starting point’ and not a ‘starting and end point’.
Master Whalan did not accept the primary argument of the applicants that COP firms had experienced
29. […] ‘a significant increase in hard and soft overheads’ (SA, 45). The evidence, both in respect of time and expenditure, is inconsistent and, in my view, incomplete. Nor am I persuaded by the submission made in the oral hearing that ‘it is clear that no other area of practice requires such a level of unrecoverable time’. So far as the datum is consistent and stable – and, as noted, the most reliable figures are probably those produced by Clarion – it suggests a comparatively modest incidence of time and expenditure. However reliable the figures produced may be, they do not, in my view, demonstrate that the burden is one that is exclusive to COP work or that it is atypically high in comparison with that experienced by practitioners in comparable areas of practice. Fee earners in personal injury, medical and professional negligence, for example, incur invariably time and expense that is irrecoverable, in marketing, accessing cases that are not proceeded with or, indeed, pursued and lost. These are burdens which do not apply to Deputy’s sources of work (on a case by case basis) which is often consistent and predictable over many years.
Three preliminary observations then inform my initial approach to the applicants’ secondary argument. First, it should be emphasised from the outset that this court has no power to review or amend the GHR, either formally or informally, as this role is the exclusive preserve of the Civil Justice Council. This reality is recognised properly by Mr Wilcock in his written and oral submissions. Secondly, while the court has received submissions concerning the application of an inflationary uplift when applying the GHR, this is not just a ‘blunt tool’, but an approach which endorses the application of a practise which has been rejected explicitly since 2014, from which time the emphasis has been on a ‘comprehensive, evidence based review’. Thirdly, however, it must be acknowledged that the GHR cannot be applied fairly as an index of reasonable remuneration unless these rates are subject to some form of periodic, upwards review. O’Farrell J. in Ohpen (ibid) observed that it ‘is unsatisfactory that the guidelines are based on rates fixed in 2010’ as these ‘are not helpful in determining reasonable rates in 2019’. These observations were made in the context of an assessment of London City solicitor rates in an assessment where the court was not bound by the GHR. It seems clear to me that the failure to review the GHR since 2010 constitutes an omission which is not simply regrettable but seriously problematic where the GHR form the ‘going rates’ applied on assessment. I do not merely express some empathy for Deputies engaged in COP work, I recognise also the force in the submission that the failure to review the GHR since 2010 threatens the viability of work that is fundamental to the operation of the COP and the court system generally.
Against this backdrop, Master Whalan concluded that
35. I am satisfied that in 2020 the GHR cannot be applied reasonably or equitably without some form of monetary uplift that recognises the erosive effect of inflation and, no doubt, other commercial pressures since the last formal review in 2010. I am conscious equally of the fact that I have no power to review or amend the GHR. Accordingly my finding and, in turn, my direction to Costs Officers conducting COP assessments is that they should exercise some broad, pragmatic flexibility when applying the 2010 GHR to the hourly rates claimed. If the hourly rates claimed fall within approximately 120% of the 2010 GHR, then they should be regarded as being prima facie reasonable. Rates claimed above this level will be correspondingly unreasonable. To assist with the practical conduct of COP assessments, I produce a table below which demonstrates the effect of a 20% uplift of the 2010 GHR. I stress again that I do not purport to revise the GHR, as this court has no power to do so; instead this is a practical attempt to assist Costs Officers and avoid unnecessary delay (caused by individual re-calculation) in a busy department conducting over 8000 COP assessments per annum.
Master Whalan indicated that
This approach can be adopted immediately and is applicable to all outstanding bills, regardless of whether the period is to 2018, 2019, 2020 or subsequently. It goes without saying that this approach is subject ultimately to the recommendations of Mr Justice Stewart and his Hourly Rates Working Group and the Civil Justice Council. Ultimately the recommendations of the Working Group must be adopted in preference to my findings.
Subsequent to the decision, the Senior Costs Judge issued a Practice Note explaining some of the practical consequences.
In a very unusual case, P v Griffith  EWCOP 46, the Court of Protection has sentenced a woman, a Ms Griffith, to 12 months imprisonment for forging a court order so as to obtain medical records in relation to P, her relation. P was a 50 year old woman who resided at a specialist hospital on a long term care ward. She had been admitted to that hospital on 17 September 2018 having previously been at a different hospital from 28 May 2018. On 28 January 2018, P she had suffered a bilateral stroke which caused significant brain damage, with a diagnosis of a permanent disorder of consciousness of the type known as Minimally Conscious State Minus.
Ms Griffith had been the applicant in proceedings before the Court of Protection, concerning a dispute between Ms Griffith and the other parties as to P’s condition and prognosis and as to her best interests in relation to her medical treatment, her residence and care and in relation to whether she should be subject to a DNACPR notice. Those proceedings concluded in April 2020, Ms Griffith’s application being dismissed (there is no reported judgment I can find); she sought permission to appeal to the Court of Appeal, but her application for permission to appeal was dismissed in July 2020.
In October 2019, Ms Griffith sent an email to Barts Health NHS Trust attaching what purported to be a court order made on 10 July 2019. In the body of the email, Ms Griffith informed Barts Health NHS Trust that she was “submitting the above stated form and associated proofs required” and that “she had been alerted to the fact that I needed to approach this organisation for the information myself”. The purported court order attached to Ms Griffith’s email provided for the disclosure of P’s medical records directly to Ms Griffith from Barts Health NHS Trust. Barts should, perhaps, have been alerted by the fact that “purported order bears no court seal and contains none of the recitals that characterise the third party disclosure orders made by HHJ Hilder.” The records were sent by Barts to the solicitors instructed by Ms Griffith – the solicitor with conduct of the case did not, in fact, read the records or show them to Ms Griffith.
No such order had, in fact, been made, something which only came to light when the solicitors instructed by the Official Solicitor on behalf of P sought disclosure pursuant to orders actually made by the court, at which point Barts said that they had already received the request.
Unsurprisingly, when this came to light, matters were put in train to investigate and then by the Official Solicitor to seek permission to make an application for committal for contempt. Ms Griffiths did not attend the hearing, but was represented; whilst she exercised her right to silence, her representative submitted that the circumstances did not prove beyond reasonable doubt that Ms Griffith falsified a court order and presented this in support of her request in order to obtain disclosure of confidential medical records of P.
MacDonald J had little difficulty in finding that he was
39. […] satisfied beyond reasonable doubt that Dahlia Griffith forged the purported court order and sent the forged purported order to Barts Health NHS Trust with the intention of obtaining the medical confidential records of P despite the court refusing to direct this. This action constituted a very serious interference with the due administration of justice. I am further satisfied beyond reasonable doubt that Dahlia Griffith took this action with the intention of interfering with the due administration of justice, her applications for the disclosure provided for by the purported order having previously been refused by the court on a principled basis.
He adjourned sentencing for two days to give Ms Griffith an opportunity to attend court; she did not do so. She sent an email to the clerk to MacDonald J saying that she was unwell, although not attending a medical note. Her representative was unable to contact her, and MacDonald J declined his application to adjourn sentencing.
The Official Solicitor made clear that (although she had no formal role as regards penalty) she had no wish to see Ms Griffith sentenced to a term of imprisonment but felt compelled to bring the conduct of Ms Griffith before the court by way of an application for committal on behalf of P given the gravity of that conduct.
MacDonald J was deeply concerned by the disclosure, noting at paragraph 47 that:
Ms Griffith’s action in forging a court order, whilst not resulting in her receiving P’s medical records, resulted in confidential medical records to which she was not entitled being disclosed to her solicitors. It was only a matter of chance that Ms Griffith actions were discovered when a legitimate order was made by the court. Within this context, P was, to a certain extent, prejudiced by Ms Griffith’s contempt, particularly in circumstances where medical records are confidential to the individual and it is crucial to respect the privacy of a patient (see Z v Finland (1997) 25 EHRR 371). These actions by Ms Griffith were undertaken in the face of repeated, principled decisions of the court that Ms Griffith should not have such disclosure. In the circumstances, a high degree of culpability must attach to Ms Griffith’s actions which, as I have noted, were deliberate in nature. Ms Griffith has shown no remorse for these actions, and indeed has failed to co-operate with the court by attending court in response to the application to commit her. There is no indication that she appreciates the gravity of her conduct.
Further, he noted:
48. Further, the act of forging a court order strikes at the very heart of the due administration of justice. The need for litigants and third parties to be able to have confidence in the integrity of orders made by the court is fundamental not only to the integrity of individual proceedings but to the maintenance of the rule of law. Any course that acts to undermine confidence in the integrity of court orders is accordingly highly corrosive of both the administration of justice by the courts and to the rule of law more widely (see Commissioners for Her Majesty’s Revenue and Customs v. Munir  EWHC 1366 (Ch) at [9(i)]). Within this context, the counterfeiting of court documents is considered by the courts to amount to a very serious contempt of court (see for example Dryer v HSBC Bank Plc  EWHC 3949 (Ch) and Patel v Patel and others).
The sentencing exercise he was carrying out, MacDonald J observed, was also in part designed to deter others from “forging orders of the court by making abundantly clear that by doing so they would place themselves at grave risk of an immediate and lengthy sentence of imprisonment” (paragraph 49).
MacDonald J therefore found that the appropriate sentence was one of 12 months imprisonment (which would have been 18 months but for the fact that Ms Griffith has not to date experienced prison, and the current impact on the nature of custody of the COVID-19 pandemic). He did not consider appropriate to suspend the sentence of imprisonment in circumstances where the objective of the sentence is to mark the disapproval of the court of Ms Griffith’s deliberate and calculated actions and to deter others from acting in a similar fashion, rather than to ensure future compliance with orders of the court in circumstances the substantive proceedings having now concluded.
As MacDonald J observed, it was a only a matter of chance that Ms Griffith’s actions were detected, although the case should undoubtedly serve as a cautionary tale for medical bodies in receipt of orders purporting to be from the Court of Protection – if in doubt, it is always sensible to check with the court itself. MacDonald J was also clearly – and rightly – concerned by the fact that this was not an offence which was without consequence for P, even if P herself is not a position to recognise those consequences. It is perhaps therefore not surprising that the penalty was so harsh.
[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/
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 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.
In two decisions handed down on 30 April 2020, Re A (Children) (Remote Hearings)  EWCA Civ 583 and Re B (Children) (Remote Hearing : Interim Care Order)  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:
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’.
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)  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.
The HIVE mailbox (email@example.com) 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