Handbook Updates

This page contains updates to the Handbook prepared by Alex and Sophy.   All references are to paragraph numbers in the Second Edition of the Handbook, which stated the law as at 1 November 2016.  We also welcome feedback and suggestions to alex.ruckkeene@39essex.com.

General update

The Court of Protection Rules 2017 came into force on 1 December 2017.  These recast all of the Rules into the same format as the Civil Procedure and Family Procedure Rules. The new-look Court of Protection Rules also incorporated those rules relating to case management which had been implemented by way of the Case Management Pilot.  Accompanying Practice Directions were amended to reflect the new numbering, and also cemented into the practice of the Court the Transparency Pilot and the Section 49 Report Pilot.  An explanatory memorandum prepared by the MoJ can be found here. A destination table showing how the Court of Protection Rules 2007 translate into the 2017 Rules can be found here.

A revised second edition of the CoP Handbook and supplement with the new Rules has been published, which includes an introductory text outlining key changes since the publication of the second edition.

Update to paragraphs 3.15-3.19

Substantial (£10,000) damages were approved by Sir Mark Hedley – purportedly sitting as a Court of Protection judge – in CH v A Metropolitan Council [2017] EWCOP 12 (discussed here) for breaches of the Article 8 ECHR rights of a man with learning disabilities consequent upon the failure of a local authority to provide him with the necessary educational psychologist support to enable him to gain the capacity to consent to sexual relations with his wife.   Sir Mark Hedley made clear that, in the circumstances of the case, taking such steps was required to comply with the second principle of the MCA.

Update to paragraph 3.118

In SAD and ACD v SED [2017] EWCOP 3 DJ Glentworth held that the information relevant to a decision to revoke was: (1) who the attorneys are; (2) what authority they have; (3) why it is necessary or expedient to revoke the power; (4) the foreseeable consequences of revoking the power; and (5) the reasons for the original decision to appoint the attorneys.

Update to paragraphs 3.82-3.86

For a detailed discussion of the meaning of Aintree and of the approach to best interests in the context of life-sustaining treatment, see Briggs v Briggs (No 2) [2016] EWCOP 53. In N v ACCG [2017] UKSC 22, discussed here, Lady Hale held that a conclusion as to what is in a person’s best interests “is a decision about what would be best for this particular individual, taking into account, so far as practicable, his individual characteristics, likes and dislikes, values and approach to life” (para 34).

For a thoughtful discussion of the role of religious and cultural beliefs (in this case Muslim beliefs) in the context of best interests decision-making, see Re IH (Observance of Muslim Practice) [2017] EWCOP 9, discussed here.

A good example of the “Aintree effect” and the move closer towards substituted judgment where P’s wishes are sufficiently clear, see B v D [2017] EWCOP 15, discussed here, in which Baker J provisionally concluded that it was in the best interests of a brain-injured soldier to go to Serbia for highly experimental stem cell therapy, predominantly on the basis that it was clear that this was a course of action that he deeply desired.

Update to paragraphs 3.149 to 3.158

In N v ACCG [2017] UKSC 22, discussed here, Lady Hale reviewed the background to MCA 2005 s5, and noted that:

Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court. But if there is a dispute (or if what is to be done amounts to a deprivation of liberty for which there is no authorisation under the deprivation of liberty safeguards in the 2005 Act) then it may be necessary to bring the case to court, as the authorities did in this case.

Update to paragraphs 3.197 and 3.236

The Law Commission’s Mental Capacity and Deprivation of Liberty project was completed in March 2017, with the publication of its report (Law Com No 372), which can be found here.  A recording (with slides) of Alex’s briefing on the report can be found here.   A Government Bill, introducing some, but not all, of the Law Commission’s recommendations, was introduced into Parliament on 3 July.   The Bill can be found here, where you can also see the Explanatory Notes and track its progress through Parliament; a summary of the Bill, highlighting differences from the Law Commission proposals can be found here.

Update to chapter 4

A substantial, and often critical, report upon how the Court of Protection actually addresses health welfare cases (drawing on data gathered in 2014-2015) was published by Cardiff Law School in September 2017, and is available here.

Update to paragraph 4.9

The President of the Court of Protection is now the Rt Hon Sir Andrew McFarlane.  The position of Vice-President is currently vacant.  The Senior Judge of the Court of Protection is now Senior Judge Carolyn Hilder.

Update to paragraphs 4.52 and 4.53

N v ACCG [2017] UKSC 22, discussed here, Lady Hale “respectfully agreed” with Sir James Munby P’s observations in the Court of Appeal that, unless the desired order clearly falls within the ambit of MCA 2005 s15 (i.e. a declaration as to capacity and/or lawfulness, which may have a narrower ambit than can be made in the High Court), orders are better framed in terms of relief under MCA 2005 s16. As she noted, an order under MCA 2005 s16(2)(a) simply makes the decision on behalf of the person, with no need to declare that the decision made is in P’s best interests.

Update to paragraphs 4.94-4.99

Doubt was cast upon the Re F test by Hayden J in LB Wandsworth v M & Ors [2017] EWHC 2435 (Fam), discussed here.  He took the view that the Re F test had been framed too low, holding that:

“65. There can be no doubt that the cogency and quality of evidence required to justify a declaration of incapacity, pursuant to Section 15, will be greater than that required to establish the interim test. However, it is important to emphasise that the presumption of capacity is omnipresent in the framework of this legislation and there must be reason to believe that it has been rebutted, even at the interim stage. I do not consider, as the authors of the ‘Mental Capacity Assessment’ did that a ‘possibility‘, even aserious one that P might lack capacity does justification to the rigour of the interim test. Neither do I consider ‘an unclear situation‘ which might be thought to ‘suggest a serious possibility that P lacks capacity‘ meets that which is contemplated either by Section 48 itself or the underpinning philosophy of the Act. In exchanges with Counsel the test has been referred to as ‘a low one’ or ‘a much lower threshold test at the interim stage’. Additionally, when I look, for example, at the words of the Judge in Re FM [a decision of King LJ on permission to appeal] I am left with a real sense of unease, particularly as the facts in that case appear to have some similarity to those here.

[…]

  1. Ultimately whilst I recognise that, for a variety of reasons, it will rarely be possible at the outset of proceedings to elicit evidence of the cogency and weight required by Section 15, I think it is important to emphasise that Section 48 is a different test with a different and interim objective rather than a lesser one. ‘Reason to believe’ that P lacks capacity must be predicated on solid and well reasoned assessment in which P’s voice can be heard clearly and in circumstances where his own powers of reasoning have been given the most propitious opportunity to assert themselves.

Hayden J did not have drawn to his attention that the test has been endorsed by (inter alia) the Vice-President of the Court of Protection, Charles J in   Re UF [2013] EWHC 4289 (COP); [2014] COPLR 93 (at para 18).

Update to paragraph 4.72

In SAD and ACD v SED [2017] EWCOP 3 DJ Glentworth held that the information relevant to a decision to revoke was: (1) who the attorneys are; (2) what authority they have; (3) why it is necessary or expedient to revoke the power; (4)  the foreseeable consequences of revoking the power; and (5) the reasons for the original decision to appoint the attorneys.

Update to paragraph 6.62

Whilst the range of issues which can arise on a section 21A application can in theory be very wide, the Court of Appeal in Director of Legal Aid Casework v Briggs [2017] EWCA Civ 1169, discussed here, made clear that it is not infinite.  In particular, questions concerning medical treatment should normally be brought to court by way of applications for declarations and/or decisions under sections 15/16 (which will not attract non-means-tested legal aid).  The Court of Appeal noted as follows in response to the argument for a very narrow definition to be given to section 21A:

93. Having said that, in my judgment. Mr Nicholls [for the Legal Aid Agency] has sought to place too narrow a scope on Sch. A1. There are many issues which relate to a deprivation of liberty which need appropriately to be considered by the assessor and which may be reflected in recommendations for conditions in the assessor’s report and which may even be determinative of whether a standard authorisation is made.

94.Where a dispute is referred to the court under s.21A, the issue is often in relation to P and the family’s wish for P to go home, set against the assessor’s view that it is in P’s best interests to be placed in a care home and consequently deprived of his or her liberty. Miss Richards has helpfully provided the court with a table of cases where applications have appropriately been made under s.21A; on closer examination, each of them has involved a dispute as to whether P should reside in some form of care home or return to either his home or to live with a family member in the community. Such cases are focused specifically on the issue as to whether P should be detained and are properly brought under s21A. Proper consideration of those cases by the assessor in compliance with the guidance in the DOLS Code, requires far more of an extensive consideration of the relevant circumstances than that which is suggested by Mr Nicholls, namely simply ensuring a care plan and needs assessment is in place without further consideration as to the content.

95.Contact, for example, is an issue capable of going to the heart of whether being detained is in a person’s best interests; it may be that in an ideal world P’s best interests would be served by a deprivation of liberty in the form of her living in a care home properly looked after, where the appropriate medication regime will be adhered to and P will have a proper balanced diet. Desirable as that may be, and such a regime may well provide the optimum care outcome for P, but it may also be the case that unless, regular contact can be facilitated to a particular family member, the distress and confusion caused to P would be such that it would be no longer in her best interests to be detained, and that what might amount to sub optimum physical care would ultimately be preferable to no, or insufficient contact. The weighing up of such options are part of the best interests assessment process in relation to which the professionals who are eligible to be assessors are peculiarly qualified to conduct.”

Update to paragraphs 7.56 to 7.59

The fixed fees for deputies were increased from 1st April 2017. They apply when the deputy is a solicitor or office holder of a public authority and the court can apply them to other deputies as well. The fees are fixed by PD19B.

Update to paragraph 7.80

The Secretary of State’s appeal against the decision of Charles J in Re SRK was dismissed by the Court of Appeal in December 2016 [2016] EWCA Civ 1137, discussed here.

Update to paragraph 7.84

In ADS v DMS [2017] EWCOP 8, discussed here, Charles J gave important guidance as to the approach that practitioners, and the court, should take in relation to statutory wills – in particular in identifying when there is a dispute as central facts (for instance as to P’s actual wishes) which requires resolution.

Update to paragraphs 7.93 to 7.101

The OPG has published a good practice guide (3 March 2017) for acting as a professional attorney.

Update to paragraph 7.99

For an indication that the Court of Protection is now likely to take a more pragmatic view about the severance of provisions in powers of attorney where the intention of the donor is clear but has not effectively been translated into the instrument, see The Public Guardian’s Severance Applications [2017] EWCOP 10, discussed here.  The case also outlines a more pragmatic approach to the making of gifts by donors for the purposes of meeting the needs of others.

Update to paragraph 8.26

In ADS v DMS [2017] EWCOP 8, discussed here, Charles J gave important guidance as to the approach that practitioners, and the court, should take in relation to statutory wills – in particular in identifying when there is a dispute as central facts (for instance as to P’s actual wishes) which requires resolution.

Update to paragraphs 9.2 and 9.3

In N v ACCG [2017] UKSC 22, discussed here, Lady Hale reviewed the background to MCA 2005 s5, and noted that:

Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court. But if there is a dispute (or if what is to be done amounts to a deprivation of liberty for which there is no authorisation under the deprivation of liberty safeguards in the 2005 Act) then it may be necessary to bring the case to court, as the authorities did in this case. (emphasis added)

Update to paragraph 10.6

Doubt was cast upon the Re F test by Hayden J in LB Wandsworth v M & Ors [2017] EWHC 2435 (Fam), discussed here.  He took the view that the Re F test had been framed too low, holding that:

“65. There can be no doubt that the cogency and quality of evidence required to justify a declaration of incapacity, pursuant to Section 15, will be greater than that required to establish the interim test. However, it is important to emphasise that the presumption of capacity is omnipresent in the framework of this legislation and there must be reason to believe that it has been rebutted, even at the interim stage. I do not consider, as the authors of the ‘Mental Capacity Assessment’ did that a ‘possibility‘, even a ‘serious one‘ that P might lack capacity does justification to the rigour of the interim test. Neither do I consider ‘an unclear situation‘ which might be thought to ‘suggest a serious possibility that P lacks capacity‘ meets that which is contemplated either by Section 48 itself or the underpinning philosophy of the Act. In exchanges with Counsel the test has been referred to as ‘a low one’ or ‘a much lower threshold test at the interim stage’. Additionally, when I look, for example, at the words of the Judge in Re FM [a decision of King LJ on permission to appeal] I am left with a real sense of unease, particularly as the facts in that case appear to have some similarity to those here.

[…]

  1. Ultimately whilst I recognise that, for a variety of reasons, it will rarely be possible at the outset of proceedings to elicit evidence of the cogency and weight required by Section 15, I think it is important to emphasise that Section 48 is a different test with a different and interim objective rather than a lesser one. ‘Reason to believe’ that P lacks capacity must be predicated on solid and well reasoned assessment in which P’s voice can be heard clearly and in circumstances where his own powers of reasoning have been given the most propitious opportunity to assert themselves.

Hayden J did not have drawn to his attention that the test has been endorsed by (inter alia) the Vice-President of the Court of Protection, Charles J in  Re UF [2013] EWHC 4289 (COP); [2014] COPLR 93 (at para 18).

Update to paragraphs 10.12 and 10.13

The case management powers of the court were reviewed by Lady Hale N v ACCG [2017] UKSC 22, discussed here, at para 40, thus:

The Court of Protection has extensive case management powers. The Court of Protection Rules do not include an express power to strike out a statement of case or to give summary judgment, but such powers are provided for in the Civil Procedure Rules, which apply in any case not provided for so far as necessary to further the overriding objective. The overriding objective is to deal with a case justly having regard to the principles contained in the 2005 Act (Court of Protection Rules 2007, rule 3(1)). Dealing with a case justly includes dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues and allocating to it an appropriate share of the court’s resources (rule 3(3)(c) and (f)). The Court will further the overriding objective by actively managing cases (rule 5(1)). This includes encouraging the parties to co-operate with one another in the conduct of the proceedings, identifying the issues at an early stage, deciding promptly which issues need a full investigation and hearing and which do not, and encouraging the parties to use an alternative dispute resolution procedure if appropriate (rule 5(2)(a), (b)(i), (c)(i), and (e)). The court’s general powers of case management include a power to exclude any issue from consideration and to take any step or give any direction for the purpose of managing the case and furthering the overriding objective (rule 25(j) and (m)). It was held in KD and LD v Havering London Borough Council [2010] 1 FLR 1393 that the court may determine a case summarily of its own motion, but their power “must be exercised appropriately and with a modicum of restraint”.

Update to paragraph 10.19

In N v ACCG [2017] UKSC 22, discussed here, Lady Hale noted that:

The court is clearly entitled to take the view that no useful purpose will be served by holding a hearing to resolve a particular issue. In reaching such a decision, many factors might be relevant. In a case such as this, for example: the nature of the issues; their importance for MN; the cogency of the parents’ demands; the reasons why the CCG opposed those demands and their cogency; any relevant and indisputable fact in the history; the views of MN’s litigation friend; the consequence of further investigation in terms of costs and court time; the likelihood that it might bring about further modifications to the care plan or consensus between the parties; and generally whether further investigation would serve any useful purpose.

It is suggested that this approach is more generally applicable, not just to cases (such as Re N) where there was a dispute between the public bodies and family members about service provision, and that identifying “the useful purpose” to any hearing on a particular matter is the critical task for the parties and court at the case management hearing.

Update to paragraph 11.10

The Law Society launched in March 2017 its accreditation scheme to enable legal representatives to be accredited so as to be able to be appointed ALRs.  ALRs have now been accredited, and a limited number of appointments have been made, although the Court of Protection has to date (July 2018) signally failed to develop proper processes to  allow them to be appointed on a routine basis. A Practice Note has been produced by the Law Society to assist solicitors (and, by analogy) others acting as ALRs.

Update to paragraph 11.12

The case of Re RD (Duties and Powers of Relevant Person’s Representatives and Section 39D IMCAs) [2016] EWCOP 49 (discussed further under paragraph 21.23) reinforces the point made in the third bullet point that capacity to bring an appeal is different to capacity to conduct proceedings.

Update to paragraph 11.45

The article referred to – Litigation Friend or Foe? Representation of P before the Court of Protection – has now been published (Med Law Rev (2016) 24 (3): 333-359)  and is available (free) here.

Update to paragraphs 11.84-11.100

The Law Society launched in March 2017 its accreditation scheme to enable legal representatives to be accredited so as to be able to be appointed ALRs.  ALRs have now been accredited, and a limited number of appointments have been made, although the Court of Protection has to date (July 2018) signally failed to develop proper processes to  allow them to be appointed on a routine basis. A Practice Note has been produced by the Law Society to assist solicitors (and, by analogy) others acting as ALRs.

Update to paragraph 12.29

The Court of Appeal considered the question of when parties should be responsible for funding of the translation of documents in Re Z (A Child) [2017] EWCA Civ 157, discussed in the April 2017 39 Essex Chambers Mental Capacity Law Report.  The court noted, in reasoning applicable by analogy, that there may be situations in which documents are produced by a party against their own interest but in the public interest of disclosure in proceedings concerning the welfare of a child. There may also be some documents which support one party (for instance the public authority) in one respect but another in one, and hence in which both have a “shared forensic interest” as identified in Calderdale Metropolitan Borough Council v S and the Legal Services Commission [2005] 1 FLR 751.  As with the costs of expert evidence, the Court of Appeal held, there should be a discretion to be exercised as to who should bear the costs of translating documents.

Update to paragraphs 13.13-13.43

All cases are now treated the same as regards transparency: see Practice Direction 4C, together with the model order can be found here, with an accompanying note from the Vice-President.  An unofficial Word version can be found here.

Update to paragraphs 14.24-14.24

In Re R (Children) [2018] EWCA Civ 198, the Court of Appeal made important observations about the approach to take to fact-finding in relation to circumstances that had previously been considered in criminal proceedings. McFarlane LJ emphasised that, as a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts. It is suggested that the same equally applies to judges of the Court of Protection.

Update to paragraph 15.7

See further in relation to Rule 87A A Local Authority v X (2) [2016] EWCOP 50 , in which Holman J considered the interaction between this Rule and the court’s power (by declaring P to have the requisite decision-making capacity) to bring proceedings to an end.

Update to paragraph 15.73

A huge – and hugely impressive – report on the participation of P was published in February 2017 by Cardiff University’s team (Lucy Series, Phil Fennell and Julie Doughty) looking into welfare cases at the Court of Protection. The report makes uncomfortable reading as regards the approach of a system which has as its focus an individual said to be of impaired capacity, but which is, in essence, designed around the needs of the professionals.

Update to paragraph 16.12

For an unusual departure from the general rule in a case concerning serious medical treatment, see MR v SR & Anor [2016] EWCOP 54.

Update to paragraph 16.20

The Court of Protection has the power to order costs on an indemnity basis (including against a litigant in person): see Re A (A Patient) [2016] EWCOP 38.

Update to paragraph 16.20

For an example of a case in which the court departed from the general rule in a property and affairs case (concerning wide-scale misfeasance by a professional deputy company), notwithstanding that the case (or to be precise cases) were settled rather than fought through to a conclusion, see The Public Guardian v Matrix Deputies Ltd & Anor [2017] EWCOP 14, discussed here.

Update to paragraph 17.15

In overturning a six month prison sentence for contempt of court, the Court of Appeal held in Devon County Council v Kirk [2016] EWCA Civ 1221 that Newton J had been wrong to determine a committal application in circumstances where the defendant’s alleged contempt arose from her failure to comply with a welfare order made by the Court of Protection requiring her to return the subject of the proceedings, MM, from Portugal, but where she was seeking permission to appeal that order. In granting permission to the defendant, Ms Kirk, to appeal the welfare order, McFarlane LJ observed that:

Where Mrs Kirk may have an arguable appeal is in relation to the order that followed on from the overall welfare determination insofar as it made her subject to mandatory orders to sign documents which were backed up by a penal notice and an express warning of potential committal proceedings. It is certainly possible to argue that any determination of MM’s welfare should have included consideration of how any move from Portugal to Devon could be achieved. Where, as was apparently taken to be the case before Baker J, it is said that the move could only be secured by placing Mrs Kirk under threat of the sanction of imprisonment, it is arguable that the very question of whether Mrs Kirk should be put in that position and face the prospect of a prison sentence for non-compliance should have been addressed by the COP in the context of MM’s welfare. In short terms, that question might be ‘is the move to Devon still in MM’s best interests if it may only be achieved by sending to prison someone whose interests he could be expected to have at heart, had he the capacity?’.

Update to paragraph 17.21

A new Part 22, accompanied by PD22A, gives the court an express power to make civil restraint orders.

Update to paragraph 21.1

The Supreme Court will hear on 3 and 4 October the Official Solicitor’s appeal against the decision of the Court of Appeal in Re D [2017] EWCA Civ 1695 that a ‘true’ parent can consent to the confinement of a 16/17 year old with impaired capacity where such involves no more than ‘ordinary acceptable parental restrictions.’   The deprivation of liberty of any such young person could otherwise only be authorised by way of an order of the Court of Protection or the High Court (Family Division).

Update to paragraph 21.8

The Law Commission’s Mental Capacity and Deprivation of Liberty project was completed in March 2017, with the publication of its report (Law Com No 372), which can be found here.  A recording (with slides) of Alex’s briefing on the report can be found here.   A Government Bill, introducing some, but not all, of the Law Commission’s recommendations, was introduced into Parliament on 3 July.   The Bill can be found here, where you can also see the Explanatory Notes and track its progress through Parliament; a summary of the Bill, highlighting differences from the Law Commission proposals can be found here.

Update to paragraphs 21.21 and 21.51

Whilst the range of issues which can arise on a section 21A application can in theory be very wide, the Court of Appeal in Director of Legal Aid Casework v Briggs [2017] EWCA Civ 1169, discussed here, made clear that it is not infinite.  In particular, questions concerning medical treatment should normally be brought to court by way of applications for declarations and/or decisions under sections 15/16 (which will not attract non-means-tested legal aid).  The Court of Appeal noted as follows in response to the argument for a very narrow definition to be given to section 21A:

93. Having said that, in my judgment. Mr Nicholls [for the Legal Aid Agency] has sought to place too narrow a scope on Sch. A1. There are many issues which relate to a deprivation of liberty which need appropriately to be considered by the assessor and which may be reflected in recommendations for conditions in the assessor’s report and which may even be determinative of whether a standard authorisation is made.

94.Where a dispute is referred to the court under s.21A, the issue is often in relation to P and the family’s wish for P to go home, set against the assessor’s view that it is in P’s best interests to be placed in a care home and consequently deprived of his or her liberty. Miss Richards has helpfully provided the court with a table of cases where applications have appropriately been made under s.21A; on closer examination, each of them has involved a dispute as to whether P should reside in some form of care home or return to either his home or to live with a family member in the community. Such cases are focused specifically on the issue as to whether P should be detained and are properly brought under s21A. Proper consideration of those cases by the assessor in compliance with the guidance in the DOLS Code, requires far more of an extensive consideration of the relevant circumstances than that which is suggested by Mr Nicholls, namely simply ensuring a care plan and needs assessment is in place without further consideration as to the content.

95.Contact, for example, is an issue capable of going to the heart of whether being detained is in a person’s best interests; it may be that in an ideal world P’s best interests would be served by a deprivation of liberty in the form of her living in a care home properly looked after, where the appropriate medication regime will be adhered to and P will have a proper balanced diet. Desirable as that may be, and such a regime may well provide the optimum care outcome for P, but it may also be the case that unless, regular contact can be facilitated to a particular family member, the distress and confusion caused to P would be such that it would be no longer in her best interests to be detained, and that what might amount to sub optimum physical care would ultimately be preferable to no, or insufficient contact. The weighing up of such options are part of the best interests assessment process in relation to which the professionals who are eligible to be assessors are peculiarly qualified to conduct.”

Update to paragraph 21.23

The decision by Baker J anticipated here relating to when RPRs and IMCAs should bring applications under MCA s21A has now been handed down: Re RD (Duties and Powers of Relevant Person’s Representatives and Section 39D IMCAs) [2016] EWCOP 49. A flowchart summarising the decision (prepared by Tor Butler-Cole of 39 Essex Chambers and reproduced by permission) can be found here. The decision is discussed further here, but in summary, Baker J found that there is an important difference between the role of the s39D IMCA and that of the RPR.  This derives from the different language used to set out their roles and responsibilities in the MCA, Schedule A1 and the DOLS Code.  Materially the s39D IMCA has an obligation to help P or the RPR apply to the court, but this is triggered only when it “appears” that they wish to do so (s39D(7) and s39D(8)).  The obligations of the RPR are expressed in broader terms and include proactively assessing whether P wishes to apply to the court, or to exercise the right to review in Part 8, Schedule A1.  He commented that “where possible, concerns about the deprivation of liberty should be resolved informally, including under the review process of Part 8.  The aim is to limit applications to the court to cases that genuinely need to be referred to it” (at [73]).

The decision in P v A Local Authority (unreported, 21 December 2015, made available via the solicitor for P) in the view of the authors strengthens the case for RPRs/IMCAs to bring applications to challenge authorisations which appear to be founded upon “public protection” – i.e. the risk of harm to others, rather than to the person.   Whilst there is case-law to the effect that the Court of Protection may take into account the risk of harm that P may cause to others (so long as that harm in some way rebounds upon P), we suggest that this is not something that can easily be accommodated by the statutory language of DOLS.

Update to paragraph 21.44

It is very important that representatives involved in MCA 2005, section 21A applications ensure that the supervisory body either extends or takes steps to bring about a fresh authorisation so as to ensure that there is in place a ‘live’ authorisation throughout the period of the section 21A application.  If not, then the Legal Aid Agency is very likely to take the view that (a) only means-tested public funding should be allowed for any periods when there is no authorisation is in place; and (b) that funding will be pulled for any expert who had been instructed at the point when the authorisation expired.

Representatives should also note that it is doubtful that the court has the power to extend an authorisation under MCA 2005, s21A beyond the maximum period (1 year) which can be authorised under Schedule A1 (see in this regard the comments of Peter Jackson J in N v A Local Authority [2016] EWCOP 47 at paragraph 22).   This means particular caution should be exercised where it appears that the section 21A application will not be determined within a year of the initial authorisation having been granted.

Update to paragraph 21.51

Whilst the range of issues which can arise on a section 21A application can in theory be very wide, the Court of Appeal in Director of Legal Aid Casework v Briggs [2017] EWCA Civ 1169, discussed here, made clear that it is not infinite.  In particular, questions concerning medical treatment should normally be brought to court by way of applications for declarations and/or decisions under sections 15/16 (which will not attract non-means-tested legal aid).  The Court of Appeal noted as follows in response to the argument for a very narrow definition to be given to section 21A:

93. Having said that, in my judgment. Mr Nicholls [for the Legal Aid Agency] has sought to place too narrow a scope on Sch. A1. There are many issues which relate to a deprivation of liberty which need appropriately to be considered by the assessor and which may be reflected in recommendations for conditions in the assessor’s report and which may even be determinative of whether a standard authorisation is made.

  1. Where a dispute is referred to the court under s.21A, the issue is often in relation to P and the family’s wish for P to go home, set against the assessor’s view that it is in P’s best interests to be placed in a care home and consequently deprived of his or her liberty. Miss Richards has helpfully provided the court with a table of cases where applications have appropriately been made under s.21A; on closer examination, each of them has involved a dispute as to whether P should reside in some form of care home or return to either his home or to live with a family member in the community. Such cases are focused specifically on the issue as to whether P should be detained and are properly brought under s21A. Proper consideration of those cases by the assessor in compliance with the guidance in the DOLS Code, requires far more of an extensive consideration of the relevant circumstances than that which is suggested by Mr Nicholls, namely simply ensuring a care plan and needs assessment is in place without further consideration as to the content.
  2. Contact, for example, is an issue capable of going to the heart of whether being detained is in a person’s best interests; it may be that in an ideal world P’s best interests would be served by a deprivation of liberty in the form of her living in a care home properly looked after, where the appropriate medication regime will be adhered to and P will have a proper balanced diet. Desirable as that may be, and such a regime may well provide the optimum care outcome for P, but it may also be the case that unless, regular contact can be facilitated to a particular family member, the distress and confusion caused to P would be such that it would be no longer in her best interests to be detained, and that what might amount to sub optimum physical care would ultimately be preferable to no, or insufficient contact. The weighing up of such options are part of the best interests assessment process in relation to which the professionals who are eligible to be assessors are peculiarly qualified to conduct.”

Update to paragraph 21.60

The Secretary of State’s appeal against the decision of Charles J in Re SRK was dismissed by the Court of Appeal in December 2016 [2016] EWCA Civ 1137, discussed here.

Update to paragraph 21.64

COPDOL10 is now renumbered COPDOL11. The form can be found here.

Update to paragraph 21.69

In CCG v MSA [2017] EWCOP 18, discussed here, District Judge Bellamy confirmed that a family member who is involved in implementing arrangements amounting to a deprivation of liberty may, in principle, act as the person’s Rule 3A representative, albeit that the court should “take great care in exercising its discretion” to appoint such a family member.

Update to paragraph 21.70

In Re KT & Ors [2018] EWCOP 1, discussed here, Charles J considered further the position in relation to stayed cases in light of the proposal by the MOJ to provide some limited further funding to enable visitors to be used to report upon cases where there was no family member/friend/advocate.

Update to chapter 22

Practice and procedure in this area has changed dramatically in this area since the second edition was published. Practice Direction 9E was withdrawn on 1 December 2017.  The Supreme Court confirmed in Re Y [2018] UKSC 46 that where the provisions of the MCA 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, life-sustaining treatment can be withdrawn (or withheld) without needing to make an application to the court.  If at the end of the process of decision-making the way forward is finely balanced, or there is a difference of medical opinion, or a lack of agreement to a proposed course of action from those with an interest in the patient’s welfare, a court application can and should be made – so that the court can be asked to make this crucial decision on behalf of the patient.

It is suggested that this approach applies equally to other categories of serious medical treatment, although anxious scrutiny will always be required as to whether any of the following require the sanction of the court:

  • the categories of case previously set out in Practice Direction 9E;
  • termination of pregnancy cases where there is a dispute over capacity or the patient may regain capacity during her pregnancy, any lack of unanimity, where the procedures under the Abortion Act 1967, s.1 have not been followed, where the patient or members of her immediate family have opposed a termination, or where there are other exceptional circumstances (including that this may be the patient’s last chance to bear a child, following Coleridge J’s decision in D v An NHS Trust (Medical Treatment: Consent) [2003] EWHC 2793 (Fam)). Specific and detailed guidance as to when and how applications should made where a treating Trust is concerned that pregnant woman lacks, or may lack, the capacity to take decisions about her antenatal, perinatal and post natal care as a result of an impairment of, or a disturbance in, the functioning of her mind or brain resulting from a diagnosed psychiatric illness is set out by Keehan J in NHS Trust & Ors v FG [2014] EWCOP 30, [2015] 1 WLR 1984.
  • Other medical treatment for the purpose of a donation to someone else;
  • Treatment which requires a degree of force to restrain the person concerned;
  • Treatment which is experimental or innovative; and
  • Cases involving an ethical dilemma in an untested area.

Although the withdrawal of PD9E means that serious medical treatment cases will fall under the personal welfare case management pathway, it is likely that the following will remain the case:

  • The expectation is that the applicant in an SMT case should usually be the body providing clinical care to the patient or responsible for commissioning such care if the patient is not in hospital. If they are not the applicant then they should be a respondent;
  • The presumption is that P will be joined as a party;
  • There is a strong likelihood that the Official Solicitor will be appointed to act as P’s litigation friend, even if it no longer the case that he will almost invariably be so appointed. The Official Solicitor in SMT cases will consent to act even if there are potential alternative litigation friends as he does not apply ‘the last resort’ criteria which form part of his acceptance criteria in other personal welfare cases.
  • It is likely that the case will be allocated to be heard by a Tier 3 judge.

Update to paragraphs 22.19 and 22.25

In N v ACCG [2017] UKSC 22, discussed here, Lady Hale outlined the proper ambit of the Court of Protection’s jurisdiction and case management powers and also agreed (at para 26) with the observations of Sir James Munby P in the Court of Appeal that, unless the desired order clearly falls within the ambit of s.15 (i.e. a declaration as to capacity and/or lawfulness, which may have a narrower ambit than can be made in the High Court), orders are better framed in terms of relief under s.16 MCA 2005. As she noted, an order under s.16(2)(a) simply makes the decision on behalf of the person, with no need to declare that the decision made is in P’s best interests.

Update to paragraph 23.18

See further in relation to Rule 87A A Local Authority v X (2) [2016] EWCOP 50 , in which Holman J considered the interaction between this Rule and the court’s power (by declaring P to have the requisite decision-making capacity) to bring proceedings to an end.

Update to chapter 24

In N v ACCG [2017] UKSC 22, discussed here, Lady Hale outlined the proper ambit of the Court of Protection’s jurisdiction vis-à-vis public authorities and case management powers.

Update to paragraph 25.3

The Supreme Court in N v ACCG did not address the question of whether the Court of Protection can hear a claim brought under HRA 1998 s7.  It is suggested here that the approach of the Court of Appeal set out here was therefore endorsed by implication.

Update to paragraphs 25.6-25.14

The fact that a person may lack litigation capacity does not mean that the standard 1 year time limit to bring a claim under the Human Rights Act 1998 does not apply.  It is important therefore to bring a claim within that time or as shortly thereafter as possible: see the decision in AP v Tameside MBC [2017] EWHC 65 (QB), refusing an application to bring an HRA claim in relation to alleged unlawful deprivation of liberty some 18 months out of time; discussed here.

Publicly funded claims for HRA declarations/damages arising out of welfare proceedings in the Court of Protection should be brought in the county or High Courts, rather than in the Court of Protection itself.  See the case-law discussed in the March 2017 39 Essex Chambers Mental Capacity Law Report and Re SW & Re TW [2017] EWHC 450 (Fam), as well as the letter from the LAA of 20 July 2018 discussed here.

Substantial (£10,000) damages were approved by Sir Mark Hedley – purportedly sitting as a Court of Protection judge – in CH v A Metropolitan Council [2017] EWCOP 12 for breaches of the Article 8 ECHR rights of a man with learning disabilities consequent upon the failure of a local authority to provide him with the necessary educational psychologist support to enable him to gain the capacity to consent to sexual relations with his wife.   For the reasons discussed here, it is suggested that Sir Mark Hedley in fact could not have approved the damages as a Court of Protection judge, but was rather approving them as a judge of the High Court.

Updates to paragraphs 25.15-25.21

The Committee on the Rights of Persons with Disabilities published in October 2017 their concluding observations on the compatibility of legislation and practice in the United Kingdom with the Convention on the Rights of Persons with Disabilities. In material part, the Committee recommended in essence abolishing the MCA 2005 (and the Mental Health Act 1983). These observations and their problematic implications are discussed in the September 2017 issue of the 39 Essex Chambers Mental Capacity Report (note, that these concerned the draft observations, which were – surprisingly – watered down somewhat upon publication to remove the very hardline observations about the right to life commented upon in the report).

The Law Commission’s Mental Capacity and Deprivation of Liberty project was completed in March 2017, with the publication of its report (Law Com No 372), which can be found here.  A recording (with slides) of Alex’s briefing on the report can be found here.   A Government Bill, introducing some, but not all, of the Law Commission’s recommendations, was introduced into Parliament on 3 July.   The Bill can be found here, where you can also see the Explanatory Notes and track its progress through Parliament; a summary of the Bill, highlighting differences from the Law Commission proposals can be found here.

Update to paragraph 26.4

The procedural rules anticipated here now form Part 23 of the Court of Protection Rules 2017, accompanied by a Practice Direction 23A.

Update to paragraphs 26.12-26.14

In Re JMK [2018] EWCOP 5, HHJ Hilder held that it was necessary for the attorney under a foreign power to apply for deputyship in England and Wales in order to be able discharge functions under the power.  Her judgment was reached without considering the matters set out here and as discussed further here, it is respectfully suggested is incorrect.

Appendix F

The Court of Protection, Civil Proceedings and Magistrates’ Courts Fees (Amendment) Order 2018 reduced the fees for issuing applications from £400 to £385, and for appeals from £400 to £320.

 

 

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