This page contains updates to the Handbook, which will be done on an quarterly basis, the first being 1 November 2019. All references are to paragraph numbers in the Third Edition, which stated the law as at June 2019 and hyperlinks are to case summaries in the 39 Essex Chambers case-law database (unless the case has yet to be summarised there, in which case it will be to the transcript of the judgment on Bailii). We also welcome feedback and suggestions to email@example.com.
In United Lincolnshire Hospitals NHS Trust v CD  EWCOP 24, a case concerning birth arrangements for a woman with schizophrenia, Francis J confirmed that it is possible for the Court of Protection to make declarations under s.15(1)(c) in relation to a person who currently has capacity to make a relevant decision but where it is sufficiently clear that under specific circumstances they will lack capacity to make that decision.
The Supreme Court in Re D (A Child)  UKSC 42 confirmed that a parent cannot authorise the confinement of their 16/17 year old child. If the child lacks capacity to consent to confinement, applying the ‘acid test’ set down by the Supreme Court in Cheshire West, then, until the Liberty Protection Safeguards come into force, an application will be required to court to authorise the deprivation of liberty to which they are subject (unless it is appropriate for an application to made to admit them to hospital under the Mental Health Act 1983). See further Chapter 22.
In M and H v P  EWCOP 42, HHJ Hilder dispensed with notification to P’s son in a statutory will case. P’s son was not likely to be materially or adversely affected by the proposed statutory will, and HHJ Hilder observed at paragraph 38 that:
Where a person is not likely to be materially or adversely affected by an application, the balancing exercise of procedural fairness in excluding him from the proceedings is differently weighted [to that concerning the position where someone’s interests may be affected, considered in I v D  EWCOP 35):
a. Against such exclusion there is still the disadvantage that the court may have to determine the substantive application without all relevant material – X’s account will not be available. There is too the ultimate risk that, after P’s death when the fact of the statutory will inevitably becomes known to X, his exclusion from proceedings will foster a sense of resentment which actually aggravates the risk of the Applicants’ fears being realised.
b. However in favour of such an approach, it is more likely that an application which those with responsibility for managing P’s financial affairs consider to be appropriate will be heard at all; and P’s own representatives in the substantive application support this approach. In so far as X may feel aggrieved at having been deprived of opportunity to contribute to proceedings, the opportunity will have been lost because of his own (unlawful) actions.
In Re Various Lasting Powers of Attorney  EWCOP 40, HHJ Hilder – departing from the approach taken previously by former Senior Judge Lush – held that: (1) a donor cannot authorise a gift within the meaning of s.12 MCA 2005 so as to extend the attorney’s powers to make gifts in circumstances covered by that section; (2) provisions that authorise the benefitting of another are not rendered valid simply by reason of the fact that the donor owes a legal obligation towards that other for that other’s maintenance; (3) a provision that provides for the donee to use the donor’s funds to benefit another person may be valid so long as it is a precatory provision. If it is mandatory, it is ineffective; (4) a provision that authorises the benefitting of the donee is not invalid simply because the donee is in a fiduciary position viz a viz the donor; (5) such a provision is also not invalid simply because of a conflict of interests as such has been authorised by the donor and in any event the donee is obliged to act in the donor’s best interests.
In A North East Local Authority v AC & Anor  EWCOP 44, Cobb J emphasised the importance of the permission requirement in s.50 MCA 2005 in the context of ongoing proceedings involving a litigant in person whom it was clear was coming close to being a vexatious litigant (see 18.22 ff), noting that this section “provides, as we discussed at the hearing, that any new applications on a subject other than previous orders will require the court’s permission to be issued. That is a provision which will now be strictly monitored and enforced going forward.”
The courts have repeatedly emphasised the need for applications in relation to serious medical treatment to be made at the earliest possible opportunity. In NHS Trust v JP  EWCOP 23, a case about capacity and best interests in relation to birth arrangements, the Trust in question did not make the application for declarations as to JP’s capacity and best interests until 31 May, by which time JP was roughly 33 weeks pregnant. Williams J was unclear why this was the case, and noted that: “[t]he listing of the final hearing on a date between the 36th and 37th weeks of her pregnancy introduced unnecessary pressure into the process. Unless it is unavoidable because of late awareness of a pregnancy, I see no reason why it should not be possible for these applications to be issued and heard before they become time critical” (paragraph 7). In Re SE (Serious Medical Treatment)  EWCOP 45 (which did not appear on Baillii until September 2019), Theis J criticised the applicant’s failures to follow the correct steps to bring the application before the court in a timely manner and on proper notice to the person’s family. So concerned was Theis J about the applicant’s conduct that she directed that a letter be sent to Mr Justice Hayden (Vice President of the Court of Protection) setting out what the court was told were the concrete changes that had been made as a result of the case to ensure that those on the front line are not without effective legal advice in relation to applications that should be made in a timely way in the future. Those steps were set out at the conclusion of the judgment and make essential reading for all Trusts as stress-testing to ensure that they have a sufficient framework in place.
In London Borough of Southwark v NP & Ors  EWCOP 48, the Vice-President, Hayden J, considering in particular questions of evidence (see Chapter 13) observed at paragraph 31 that:
i. Though the avoidance of delay is not prescribed by the Mental Capacity Act 2005, the precept should be read in to the proceedings as a facet of Article 6 ECHR (see: Imperial College Healthcare An NHS Trust v MB & Ors  EWCOP 29). Any avoidable delay is likely to be inimical to P’s best interests;
ii. Effective case management is intrinsic to the avoidance of delay. Though the Court of Protection, particularly at Tier 3, will frequently be addressing complex issues in circumstances of urgency, thought should always be given to whether, when and if so in what circumstances, the case should return to court. This will require evaluation of the evidence the Court is likely to need and when the case should be heard. This should be driven by an unswerving focus both on P’s best interests and the ongoing obligation to promote a return to capacity where that is potentially achievable.
iii. Where, at any hearing and due to the circumstances of the case, it is not possible prospectively to anticipate what future evidence may be required, the parties and particularly the Applicant and the Official Solicitor (where instructed) should regard it as an ongoing obligation vigilantly to monitor the development of the case and to return to the Court for a Directions Hearing when it appears that further evidence is required which necessitates case management;
In A North East Local Authority v AC & Anor  EWCOP 34, Cobb J applied case-law from proceedings concerning children to hold that it was legitimate for the court to rule out a possible outcome or option before reaching a firm conclusion on best interests. In eliminating one significant option for the future care of the person before him, AC, he noted that he had:
followed the essential reasoning of Black J in North Yorkshire CC v B [ 1 FLR 1645] and Sir James Munby P in Re R [ EWCA Civ 1625]. I have followed the guidance of the Court of Appeal in Re B-S [ EWCA Civ 1146] in focussing on the realistic options for AC: given that, on the evidence, placement with BC is not a realistic option, then I am entitled to that conclusion and rule her out. In short, I have been driven to the conclusion that rehabilitation would not be a realistic option for AC now or in the relevant future.
In Re D (Appointment of Litigation Friend)  EWCOP 67, which appeared on Baillii in July 2019, Baker J held that the principles identified by Charles J in Re UF  EWHC 4289 (COP) applied in all cases where the court is considering whether a family member can act as a litigation friend.
In DL v LB Enfield  EWCOP B1, HHJ Hilder considered it important that she made clear that:
in my judgment, section 49 powers are a vital tool in the armoury of the Court of Protection but the court is also aware that the very usefulness of that tool comes as a burden to other public services, in this case the NHS. Practice Direction 14E sets out the circumstances to consider when the court is being invited to make a section 49 order and I emphasise that it is important that the court and the parties follows those requirements.
In London Borough of Southwark v NP & Ors  EWCOP 48, the Vice-President, Hayden J, was concerned at the fact that the treating psychiatrist, giving, in effect, expert evidence, was doing so on the basis of incomplete information and incomplete information-sharing. At paragraph 30, he noted that he had:
enquired of the very experienced counsel in this case whether in Court of Protection proceedings, they have ever had experience of an Expert’s Meeting being conducted. 1Only Ms Paterson had and then only on two occasions. For my part, I do not remember a document reflecting such a meeting being filed in any proceedings that I have heard. In a court arena where conflicts of expert evidence arise regularly and in which such evidence is commonplace this is, to my mind, very unusual. Additionally, I note that I am rarely called on to make Disclosure Orders and have frequently been concerned by blockages in channels of communication which ought otherwise to have been regarded as integral to informed decision taking. […] What requires to be considered, to my mind, is whether the Court and the lawyers can improve case management more generally. I am convinced that we can.
Accordingly, Hayden J set down a set of “general principles” at paragraph 31:
iv. Practice Direction 15A, Court of Protection Rules 2017 is intended to limit the use of expert evidence to that which is necessary to assist the court to resolve the issues in the proceedings;
v. The Practice Direction sets out the general duties of the expert, the key elements of which require to be emphasised:
1.It is the duty of an expert to help the court on matters within the expert’s own expertise.
2.Expert evidence should be the independent product of the expert uninfluenced by the pressures of the proceedings.
3.An expert should assist the court by providing objective, unbiased opinion on matters within the expert’s expertise, and should not assume the role of an advocate.
4.An expert should consider all material facts, including those which might detract from the expert’s opinion.
5.An expert should make it clear—(a) when a question or issue falls outside the expert’s expertise; and(b) when the expert is not able to reach a definite opinion, for example because the expert has insufficient information.
6.If, after producing a report, an expert changes his or her view on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.
vi. In Court of Protection proceedings, the Court will frequently be asked to take evidence from treating clinicians. Invariably, (again especially at Tier 3) these will be individuals of experience and expertise who in other cases might easily find themselves instructed independently as experts. Treating clinicians have precisely the same obligations and duties upon them, when preparing reports and giving evidence as those independently instructed. Further, it is the obligation of the lawyers to ensure that these witnesses are furnished with all relevant material which is likely to have an impact on their views, conclusions and recommendations. (see: Re C Interim Judgment: Expert Evidence)  EWFC B9 ). This should not merely be regarded as good litigation practice but as indivisible from the effective protection of P’s welfare and autonomy;
vii. Evidence of clinicians, experts, social workers, care specialists etc is always to be regarded as individual features of a broader forensic landscape in to which must be factored the lay evidence. One expert or clinician is unlikely ever to provide the entire answer to the case (see: Re T  2 FLR 838 ). It follows that Experts meetings or Professionals meetings should always be considered as a useful tool to share information and to identify areas of agreement and / or disagreement;
viii. When evaluating the significance of expert evidence and particularly when the issues being considered are, as has regularly been the case in the Court of Protection, at the parameters or frontier of medical or expert knowledge, this should be properly identified and acknowledged. In considering the evidence, it is always helpful to reflect that yesterday’s orthodoxies may become today’s heresies. (see: R v Harris and Others  EWCA Crim 1980);
ix. Witnesses from whatever disciplines may be susceptible to ‘confirmation bias’. This is to say they may reach for evidence that supports their proffered conclusion without properly engaging with the evidence that may weaken it. ((see: Cleveland Report (report of the enquiry in to Child Abuse in Cleveland 1987 Cm 412 London: HMSO 010/1041225));
x. Consideration must always be given to relevant, proportionate written questions to an independently instructed expert.
In Re M (Children) (Disclosure to the Police)  EWCA Civ 1364, the Court of Appeal considered the position where the police have sought disclosure of witness evidence in proceedings under the Children Act 1989. Although not directly applicable in the context of Court of Protection proceedings, because witnesses in Court of Protection proceedings are able to invoke the privilege against self-incrimination as codified in s. 14 Civil Evidence Act 1968, the decision makes clear what will happen if incriminating evidence is given in the proceedings, and an application is made for disclosure of it to a third party. If this is the case, the court will consider it against the following legal background:
(i) If the proceedings are in private, COPR rr.4.2 and 5.7 give the court the power to determine what material related to the proceedings can be communicated or published to non-parties.
(ii) If the hearing is in public, third parties can obtain from the court records a copy of any judgment or order given or made in public. If any other documents are sought, an application must be made to the court. The court can only make an order in respect of documents in the court records (COPR r.5.9). This is not defined in the rules. However, the Supreme Court had cause to consider this phrase in the case of Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK  UKSC 38, in which it held that:
The “records of the court” must therefore refer to those documents and records which the court itself keeps for its own purposes. It cannot refer to every single document generated in connection with a case and filed, lodged or kept for the time being at court. It cannot depend upon how much of the material lodged at court happens still to be there when the request is made.
In both public and private hearings, the court has an inherent jurisdiction to uphold the constitutional principle of open justice. As the Supreme Court held: ‘It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question.’ Thus, if the disclosure is required in pursuit of this principle, the court beyond that provided for in the rules.
The Court of Protection Mediation Pilot started on 1 October 2019, and details can be found here.
In DL v LB Enfield  EWCOP B1, a local authority respondent sought to challenge the jurisdiction of the Court of Protection in relation to s.21A applications, “to challenge what might colloquially be called ‘a gravy train’. Mr Holbrook said today, ‘I am challenging the accepted wisdom of what goes on in the Court of Protection.’” It appears that the local authority sought, in essence, to limit the circumstances under which an application could be brought and the case management directions that the Court of Protection should make before determining it. The argument was based upon a partial selection of passages from the judgment of King LJ in Director of Legal Aid Casework & Ors v Briggs  EWCA Civ 1169 (concerning the scope of legal aid in s.21A proceedings). HHJ Hilder rejected the arguments advanced by the local authority, and observed that:
39. However large the numbers of a local authority caseload of persons being provided with care in the circumstances of their liberty being deprived it is imperative that those responsible for such conditions are never allowed to become cavalier about the significance of deprivation of liberty to the individual concerned and to society as a whole. In my judgment Article 5 rights do not become less precious because of the administrative burden of cases reliant on them.
40. Mr McKendrick QC has reminded the court of the generous ambit of Article 5.4 which entitles a person to speedy consideration by a court and in particular has referred to the case of Waite v the United Kingdom ECHR 2002. Article 5.4 is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention. An applicant is not required as a precondition to enjoying that protection to show that on the facts of his case he stands any particular chance of success in obtaining his release. When I put that to Mr Holbrook he also, and I quote, “entirely endorsed this” proposition.
41. Closer to home, the Court of Protection’s own Vice-President has recently had cause to restate this approach in the case of CB v Medway Council  EWCOP 5 at paragraph 33. He said:
“What is involved here is nothing less than CB’s liberty. Curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry. I cannot envisage any circumstances where it would be right to determine such issues on the basis of speculation and general experience in other cases.”
42. So, bearing in mind that these proceedings are brought pursuant to section 21A and that it is very clear from the paperwork that the qualifying requirements being scrutinised may include capacity and definitely include best interests, I have no doubt that it is appropriate for the court to go on to consider now […] what are the appropriate case management decisions to progress this matter.
HHJ Hilder departed from the general rule in welfare cases (see 17.8), to order that all the costs incurred by the applicant detained person should be paid by the local authority to reflect that they had been incurred because the local authority had failed to take a “sensible and appropriate approach to these proceedings.”
In Re JDO (authorisation of deprivation of liberty)  EWCOP 47, HHJ Hilder highlighted key obligations upon applicants seeking judicial authorisation of deprivation of liberty under the Re X procedure, in particular in relation to the duty of full and frank disclosure. She also strongly criticised the local authority for seeking artificially to limit those to be consulted, and for preparing a statement for the proposed COPR r1.2 representative to sign so as to “put words into her mouth [and] persuade her to adopt the Applicant’s views.”
Appendix B – the Court of Protection Fees Order 2007
With effect from 22 July, and via The Court Fees (Miscellaneous Amendments) Order 2019 (SI 2019/1063), Court of Protection fees were reduced. Application fees are now £365; appeal fees £230 and hearing fees £485.
Appendix F – Costs proceedings
With effect from 22 July 2019, the Civil Proceedings Fee Order 2008 was amended to introduce a new filing fee for filing a request for detailed assessment with the Supreme Court Costs Office of £85, replacing the previous £115 for short form, and £225 for a full bill.