Handbook Updates

Updates

This page contains updates to the Handbook, which are done on a quarterly basis (the most recent being 26 April 2023). All references are to paragraph numbers in the 4th edition, which stated the law as at June 2022. We also welcome feedback and suggestions to alex.ruckkeene@39essex.com.

3.114

The Mencap Trust Company has published a suite of guides to various aspects of the making and operation of LPAs. Some cover ground which is contained in OPG guidance but in respect of others (such as guidance to certificate providers) no OPG guidance is available. This makes the suite especially useful as it provides a one stop (free) shop aimed at lay users (but useful for professionals as aides memoire too). It is also very helpful for those wanting to support those who might be on the cusp of having capacity to make an LPA.

3.195 and 3.126

In a decision which will trouble many (for instance the Joint Committee on Human Rights: see its 2022 report on human rights in care settings), “deeply disappointed” Welsh Government, perhaps surprise almost as many, and no doubt please a few, the Government announced on 5 April 2023 that it would delay the implementation of the Mental Capacity (Amendment) Act 2019 until “beyond the life of this Parliament.” For more details, see here.

3.241

Royal Assent was granted on 18 September 2023 to the Powers of Attorney Bill – now the Powers of Attorney Act 2023. When it comes into force, it will make a number of substantial changes – in particular – to the procedure for making Lasting Powers of Attorney in England & Wales when it comes into force (the precise date for this is not yet known). Despite the helpful Explanatory Notes, the Bill is not an easy piece of legislation to read on a standalone basis. Alex has prepared an entirely unofficial version of Schedule 1 to the Mental Capacity Act 2005 (providing for formalities relating to LPAs) as it will stand in due course. For more details of the changes that it will make, and a walkthrough of the Act (recorded at an earlier stage of its life as a Bill, but in the same form, as no amendments were made as it went through Parliament), see Alex’s website here.

4.9

The Vice-President of the Court of Protection is now Theis J, Hayden J having completed his term in March 2023.

7.11

A substantially updated COP3 form is now live on the .gov.uk website. It has been overhauled (amongst other things) so as to reflect the correct ordering of the capacity test, to focus in on the need for clarity as to the relevant information, and to make clear (to paraphrase) that the primary requirement for assessing capacity is competence rather than letters before or after one’s name. Alex has done a walkthrough of it available here.

7.115

In CL v Swansea Bay University Health Board & Ors [2024] EWCOP 22 Theis J confirmed that that the Court of Protection has an unfettered discretion to remove a deputy. On appeal, she rejected the contention that the court’s powers are limited by s.16(8) MCA 2005, which talks of the court having the ability to revoke the appointment of a deputy or vary their powers “in particular” if the deputy “(a) has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P’s best interests, or (b) proposes to behave in a way that would contravene that authority or would not be in P’s best interests.” Theis J accepted that to limit the court’s powers to such circumstances would not enable it to respond appropriately to such situations as (1) P regaining capacity; (2) a deputy wishing to withdraw by reason of illness or retirement; (3) a deputy wishing because relationships have deteriorated even though they continue to act in their authority and in P’s best interests; (4) a more suitable deputy becomes available; (5) the appointment is contrary to P’s wishes and feelings; and (6) where the deputy seeks further powers.

7.23-7.28

With effect from 1 January 2023, a minor change was made to COPR 6.3 in relation to service, providing that, for purposes of Part 6, “Documents may be served by document exchange or electronic communication in accordance with the relevant practice direction,” replacing the previous provision that “A practice direction may set out how documents are to be served by document exchange, electronic communication or other means.”

7.23-7.28

For the specific considerations to be taken into account when serving a party who is living in a refuge (and hence where particular care needs to be taken to ensure that their address is not divulged), see by analogy P (Service on Parent in a Refuge) [2023] EWHC 471 (Fam).

7.36

With effect from 1 January 2023, Practice Direction 9H set out a new mechanism for applying for property and affairs deputyships. The major change is to move the notification procedure upfront. Applicants should notify 3 people who know the person affected by the application, for example, relatives, a social worker or doctor. They should then gather the responses before submitting their application. Applicants should send responses and all recordings of notifications to the court with their application. There are new forms to use for upfront notifications, the COP14PADep and COP15PADep. These forms are both notification and acknowledgement forms combined. The forms should be returned to the applicant or agent within 14 days of notification where possible. The applicant should then send/upload all acknowledgement forms whilst making the application to the court. After 14 days from notification, the court will assume agreement to the order being made if no acknowledgement form is returned to the applicant and no COP5 is filed by those notified.

HMCTS held a drop in session on Monday 19 December 2022 to explain the new process for making property and affairs deputyship applications: a recording of the session is available to watch on the HMCTS YouTube channel. A recording of a second session held on 28 February is also available.

From 1 February 2023, property and affairs deputyship applications that do not follow the new upfront notification process are returned to the applicant.

With effect from July 2023, it is possible to save and return to electronic property and affairs deputyship applications. For more details, see here.

7.95-7.96

In BH v JH [2024] EWCOP 12, DDJ Weereratne had to decide whether to dispense with service on potential beneficiaries on an application to vary a statutory will. The decision, as a decision of a Deputy District Judge, does not have precedent value, but we note it here as the first reported case where the specific issue to which it gave rise has been considered. There were 2 classes of beneficiary affected. One class were P’s carers who were potential beneficiaries under a discretionary trust. It was proposed that the size of the trust be increased so that they would stand to benefit from the changes. The other class was a residuary class benefitting under a gift to unnamed charities. The increase in the trust reduced pro rata the potential value of the residuary gift. DDJ Weereratne agreed with the Official Solicitor that there were exceptional circumstances justifying dispensing with service on the carers, but not in relation to residuary beneficiaries (which would be on the Attorney-General). In particular, the judge held that, in relation to the residuary beneficiaries, the deputy had fundamentally misunderstood the rationale behind Practice Direction 9E, namely that it is there to serve the interests of natural justice and is not in any sense dependent on P’s best interests. The deputy’s approach led to a partial departure from the general costs rule ([2024] EWCOP 9).

8.32

In EG & Anor v AP & Ors [2023] EWCOP 15, Senior Judge Hilder made clear that, once a judge has engaged in dispute resolution at a DRH , whether successfully or not, that judge cannot properly engage in substantive decision-making in the case beyond what the parties agree. It would be procedurally unfair to do so because the judge has expressed views without any party having had the opportunity to give their evidence. Further, there was no provision in the Rules or Practice Direction for multiple dispute resolution hearings, and adopting such a practice would not serve the purposes for which such a hearing was devised, namely early conclusion of unnecessary litigation. The court was not a mediation service. If a dispute resolution hearing was unsuccessful, normal procedure should thereafter apply.

9.41-9.45

9.53

11.5

Mostyn J made further observations about MCA 2005 s48 in A Local Authority v LD and RD [2023] EWHC 1258 (Fam). However, we suggest that none of them alter the fundamental position set down here.

11.17

In HH v Hywel DDa University Health Board & Ors [2023] EWCOP 18, Francis J relied upon the fact that the powers available under COPR r.3.1(2) include the power to hear more than one application on the same occasion to reach the conclusion that was both empowered to, and should, hear applications relating to husband and wife at the same time, where both were ‘P’s in their own cases. As he noted:

Both husband and wife in this case, through their representatives, ask for the two applications to be heard on the same occasion by the same judge. It would, I suggest, defy common sense if different judges were to make different determinations in respect of each of them when they are and have been a couple for decades. Just because they may now have different interests does not mean that I, as the judge, cannot apply a best interests test in respect of each of them.
I accept that this may lead the judge, and if that is me, it may lead me, to making a finding that each of them has different needs and different best interests, and so their best interests may conflict. Surely the appropriate thing then that we need to do is to balance these interests, to consider the conflict and to make a proper determination in a holistic manner having regard to the needs of each of them and the best interests of each of them.

The need for the court to exercise restraint before disposing of an application summarily was reiterated by Arbuthnot J in VT v NHS Cambridgeshire & Peterborough Integrated Care Board & Cambridgeshire County Council [2024] EWHC 294(Fam). At paragraph 35, she emphasised that:

In any cases where such powers are contemplated, at a stage where the determination would dispose of the case, two matters will need to be given careful consideration:

1. Whether the court has sufficient information to make the determination (per Hayden J “curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry” paragraph 33 [CB v Medway Council & Anor (Appeal) [2019] EWCOP 5]); and
2. Whether the determination can be reached in a procedurally fair manner.

12.43

In Shirazi v Susa Holdings [2022] EWHC 2055 (Ch), Bacon J identified that a person may not be suitable to act as a litigation friend even if they are able in principle fairly and competently to conduct the litigation, if they are under sufficiently strong influence from another person that they cannot discharge their functions independently and objectively. Although decided by reference to the CPR, the same approach would apply under the COPR, as the language of the relevant provisions are identical.

12.46

See also the ‘note’ prepared by the Official Solicitor about her role and cited extensively by Francis J Gloucestershire Health & Care NHS Foundation Trust v FD & Ors [2023] EHWC 2634 (Fam) , concluding with the following: “in acting as litigation friend, the Official Solicitor must act in P’s best interests. In so doing, the Official Solicitor will have careful regard to P’s wishes and feelings, but ultimately she [the Official Solicitor] must act for P’s benefit and in P’s interests. She must consider and assess legal advice that she receives. In fulfilling her role she may sometimes have to take a position that is contrary to the wishes and feelings of P.”

12.99

The Law Society’s Guidance Note on Accredited Legal Representatives was substantially revised and updated in September 2023 to take account of practical experience since the ALR scheme came into effect. The updated version can be found here.

13.17

The prescribed statement of truth set out in Practice Direction 14A was updated with effect from 1 January 2023.

13.18

In W-A (Children: Foreign Conviction) [2022] EWCA Civ 1118, the Court of Appeal confirmed that a foreign conviction should, as a matter of principle, be admissible and given presumptive weight in proceedings under the Children Act 1989; and that there was nothing in Hollington v Hewthorn [1943] 2 All ER 35; [1943] 1 KB 587 (see fn 19) requiring a contrary decision. Peter Jackson LJ made clear that the rule in Hollington v Hewthorn was incompatible with the welfare-based and protective character of family proceedings. He further confirmed that, in family proceedings, all relevant evidence is admissible. Where previous judicial findings or convictions, whether domestic or foreign, are relevant to a person’s suitability to care for children or some other issue in the case, the court may admit them in evidence. The effect of the admission of a previous finding or conviction is that it will stand as presumptive proof of the underlying facts, but it will not be conclusive and it will be open to a party to establish on a balance of probability that it should not be relied upon. The court will have regard to all the evidence when reaching its conclusion on the issues before it. It is suggested that the same approach applies in the context of the Court of Protection, given its forensic similarities to family proceedings.

13.23

In Re G (Court of Protection: Injunction) [2022] EWCA Civ 1312, the Court of Appeal rejected an appeal against the acceptance by the first instance judge (Hayden J) of anonymous hearsay evidence from 8 nurses as to the conduct of P’s father.

In our judgment, there is no merit in Mr McKendrick’s criticisms of the judge’s treatment of the anonymous hearsay evidence. Very properly, Mr McKendrick had made similar submissions at first instance both on the interpretation and application of s.4 of the [Civil Evidence Act 1995] and on the case law, including the Moat Housing decision. It is evident that the judge accepted those submissions and applied the guidance in the statute and case law when considering the hearsay evidence given by the anonymous nurses. The judge plainly recognised that he had to proceed with caution when assessing the weight to be attached to the evidence and took conspicuous pains to explain his approach and analysis. There was clear evidence from Nurse T and Dr B, accepted by the judge, demonstrating, as suggested by Brooke LJ in the Moat Housing case, the route by which the anonymous evidence had emerged and why it was neither reasonable nor practicable to identify and adduce direct evidence from the nurses. The fact that they are professionally qualified, trained and supported within the Trust, and accustomed to working with the families of patients did not obviate the need for anonymity in this case, given the evidence about the father’s attitude provided by Nurse T, Dr B and the father himself.

13.49

The then Vice-President of the Court of Protection, Hayden J, published a letter (dated 16 December 2022) in relation to s.49 reports, following a meeting between him, Senior Judge Hilder and NHS Mental Health Directors. In relevant part, it reads as follows:

Concern had been expressed about the scope and ambit of Section 49 reports. There was a strong feeling that some of the Section 49 requests are disproportionate, overly burdensome, and wrongly authorised. There are obvious reasons (i.e., costs) why a Section 49 report might be preferred where what is truly required is an independent expert report.

Section 49 reports are, paradigmatically, appropriate where the NHS body (typically a Mental Health Trust) has a patient within their care, who is known to them. This ought to enable the clinician to draw quickly on his knowledge of the patient and respond concisely to the identified questions, which will be directed to the issues clearly set out in the Practice Direction. Importantly, it avoids the patient having to meet with a further professional with whom, he or she, has no existing relationship.

Instructions under Section 49 should be clearly focused with tight identification of the issues. It should be expected that the reports will be concise and will not require extensive analysis across a wider range of questions than those contemplated in the Practice Direction. Reports requiring that kind of response should be addressed to an independent expert.

I have taken this opportunity to re-circulate the Practice Direction which requires no gloss or embellishment. However, I have highlighted those paragraphs which I consider need to be restated.

Hayden J made further observations about s.49 reports in Cheshire and Wirral Partnership NHS Foundation Trust v JMC & Anor Ors [2023] EWCOP 14, clarifying that:

22. In my December 2022 Guidance […], I identified the circumstances in which a section 49 request would ‘paradigmatically’ be made. It would be a misreading of that guidance to interpret a paradigm as if it were a rigid and unchanging template. That is not what is contemplated by the wording of section 49 nor, of course, is it what the word means (i.e., a pattern or a model).

He also rejected an order under s.49 effectively triggers a direction to an NHS Trust (or by analogy, a local authority) to provide services, as “[s]ection 49 is a route by which information is acquired, it has nothing at all to do with the provision of NHS services. That would be to distort the plain words of the statute.” However, it is worth noting that it is not beyond the bounds of possibility that a direction to file a s.49 report could serve as a trigger for either a health body or a local authority to consider whether it is required to provide services to a person about whom they have been previously unaware. That the direction may have been for one purpose would not mean that the public body was not put on notice of its need to consider the person’s needs for another reason (in the same fashion – albeit not often enough recognised – that a request for a DoLS authorisation in respect of a self-funder should alert a local authority to the potential need to carrying out a needs assessment under s.9 Care Act / s.19 Social Services and Well-Being Act (Wales) 2014).

13.52

The British Medical Association (BMA) published in 2022 a guidance note for doctors who are called on to complete s.49 MCA reports.

The prescribed statement of truth set out in Practice Direction 14E was updated with effect from 1 January 2023.

13.84

The prescribed statement of truth set out in Practice Direction 15A was updated with effect from 1 January 2023.

14.8

The case of A (Covert Medication: Closed Proceedings) [2022] EWCOP 44 has shed a spotlight on so-called ‘closed hearings,’ i.e. hearings in which a party is not present and (potentially) of which they have no knowledge. The Court of Protection undoubtedly has the power to conduct such hearings: see the decision of the Court of Appeal in Re P (Discharge of Party) [2021] EWCA Civ 512 at paragraphs 28-30 (see also, in relation to without notice hearings paragraph 11.77 of the Handbook; and, in relation to the situation where information is withheld, paragraphs 13.106-13.115). They undoubtedly give rise to very difficult balancing exercises in relation to Articles 6 and 8 ECHR in particular. They also give rise to particular complexities where members of the public or bloggers are present in court for the open hearing and will, in consequence, be equally unaware that there may be elements of the proceedings taking place behind closed doors. In one of his last acts as Vice-President of the Court of Protection, Hayden J issued on 8 February 2032 guidance about closed hearings and closed materials, emphassing that:

In situations which are rare, but which do occur from time to time, it is necessary for the court to consider whether a hearing should be closed and/or for material be closed. Nothing in this guidance is intended to increase the number of closed hearings or applications for material to be closed. Rather, its purpose is to provide clarity as to the principles to be applied and considerations to be taken into account in the very limited circumstances under which such steps may be appropriate.

14.24

In Re EM [2022] EWCOP 31, Mostyn J expressed a number of concerns about the transparency order made in the case before him by Keehan J, in ‘broadly standard’ terms. In particular, he expressed the concern (at paragraph 41) that the order might be technically unsound for two separate reasons namely (i) the order was made in the absence of a Re S-type balancing exercise, weighing the Article 8 ECHR rights of P with the Article 10 ECHR rights of the public at large, exercised via the press; and (ii) notice of the intention to seek the order had not been given to the press pursuant to s12(2) HRA 1998. Mostyn J’s observations were made without submissions having been made to him, and are obiter. This blog post responds to the observations: the short point being that the approach that he would appear to wish for would be practically unworkable under the current legislative framework, and the only alternative would be for the court to sit purely in private. It is, though, to be hoped that the Law Commission’s project on reforming the law of contempt can include consideration of the primary legislation under which the Court of Protection operates, and hence a new framework which would not require transparency orders to be made on each occasion.

14.64-14.65

The Court of Appeal allowed the conjoined appeals in Abbasi and Haastrup [2023] EWCA Civ 331, (permission to appeal to the Supreme Court was granted to the Trusts in August 2023; the Supreme Court heard the case in April 2024). For more detail, see here, but in headline terms, the implications of the judgment are as follows:

(1) as ‘refined’ a focus as possible is required by both the relevant parties and the court upon those individuals most clearly requiring protection;

(2) that the protection may be required to ensure the continued anonymity of the subject of the proceedings / their family; to maintain the integrity of the proceedings; or to secure against a risk of harm to a professional;

(3) that the focus may need to be refined as matters continue to unfold (and, in particular, in light of any relevant social media activity of concern);

(4) any application to continue an order restricting the identification of professionals after the end of the proceedings on the basis of continuing risk must be based upon clear evidence as to the nature of that risk; and

(5) indefinite orders restricting identification (at least in respect of securing the anonymity of professionals, rather than the person or their family) will very much be the exception rather than the norm.

Abbasi has been applied in the Court of Protection, most extensively by Peel J in University Hospitals Birmingham NHS Foundation Trust v Thirumalesh & Ors [2023] EWCOP 43), in which he ordered a ‘cooling-off’ period of 8 weeks before the clinicians involved could be named. He also rejected the suggestion that “each individual member of staff should apply separately to be anonymised by a Transparency Order or, at the very least, put in their own statement justifying being included within the Transparency Order. It is acceptable for a statement to be adduced in evidence which encompasses the views of all those affected. […]. To require dozens of members of staff to set out their own cases would be impractical” (paragraph 42).

15.3-15.10

In Hinduja v Hinduja, Hinduja, Hinduja and Hine [2022] EWCA Civ 1492, the submission was made that the first instance judge’s order in relation to the publication of proceedings was in error because it relied on facts that had not been found in contested proceedings. However, the Court of Appeal held (at paragraph 46) the court was not limited in its consideration to matters about which findings of facts have been and was entitled to make his assessment of the proceedings as a whole and to take a view of the parties’ conduct. It went on to observe that “[i]t is possible to envisage a case where it might be unfair for unresolved allegations to be published, but in this case it was the fact of the allegations and not their validity that mattered.”

15.9

Mostyn J in Barnsley Metropolitan Borough Council v VW & Ors [2022] EWFC 83 considered the position where a number of admissions had been made in family proceedings (such that the bar for making a care order had been crossed), and the question arose as to whether the court should nonetheless try further allegations. He emphasised that, above all that the court must be satisfied that a fact-finding hearing is necessary: “[t]his means that the court must be satisfied that the findings, if made, would produce something of importance for the welfare decision.” It is suggested that the same approach should apply by analogy in the Court of Protection.

15.11

A detailed analysis of the steps required where it may be necessary to enlist police assistance to extract mobile phone data for purposes of fact-finding can be found in the decision of the Court of Appeal in P, H-L (Children) (Mobile Phone Extraction) [2023] EWCA Civ 206.

16.45

In Wareham v Betsi Cadwaladar University Health Board & Ors [2024] EWCOP 15, John McKendrick KC, sitting as a Tier 3 Judge of the Court of Protection, explained why he declined the invitation to visit P in advance of the hearing at which the court was going to determine her decision-making ability in a number of domains.

8, I was concerned that there was no directly meaningful purpose to meeting with Laura in advance of the hearing. It would not be to elicit her wishes and feelings, in a section 4 MCA sense for obvious reasons and I am aware her view is that she has capacity to make the decisions with which this application is concerned. Nor am I carrying out an assessment, formally or informally, of Laura’s capacity. Instead I am required to read and hear the written and oral evidence on these issues and the apply the law to the evidence to reach determinations.

9. Not only was there no obvious reason to meet with Laura in advance, I was concerned a judicial visit with Laura may influence my decision making one way or another, based upon my own observations which could not necessarily be fully communicated in her solicitor’s written note of the meeting. The non-verbal communication and observation undertaken may have provided additional information that would be incapable of being communicated in a written note. Not only is there a risk of unconscious bias; a visit may cause an unfairness to the parties who are deprived of the context and non-verbal communication. Whilst judges are used to hearing evidence and then excluding it, my experience is that a judicial visit can leave a lasting impression.

10. In terms of the law, I note that section 4 (4) of the MCA places a duty on the court: “so far as reasonably practicable, [to]permit and encourage [Laura]to participate, or to improve her ability to participate, as fully as possible in any act done for her and any decision affecting her.” However this must be interpreted consistently with the language and purpose of the MCA. Section 4 (4) is set out within section 4 which is concerned with best interests. The heading to section 4 is ‘best Interests’. I consider the qualified duty on the court to ensure Laura’s participation in these proceedings is principally directed at best interests decision making. Sections 2 and 3 which deal with capacity do not provide for a similar qualified duty. Whilst I accept that the court’s determination of the capacity issues is a “decision affecting [Laura]” the common sense reading of this duty is that it relates to best interests. The Practice Note on Judicial Visits does not envisage judges conducting remote visits to P in respect of contested capacity. That is not to say such visits are prohibited. They are not. However, the decision whether or not, or how, and when, a judicial visit to P should be carried out is a case management decision which should be undertaken consistently with the Court of Protection Rules and in particular in compliance with Rule 1.1 (the over-riding objective) which requires decisions to be made inter alia ‘justly’ and by ‘having regard to the principles contained in the Act’ which of course includes the qualified section 4 (4) MCA duty). Regard must also be had to Rule 1.2 which deals with the participation of P in the proceedings. This issue was largely dealt with by Cobb J in the normal way at the outset of the proceedings, but I have kept that matter under review.

11. I also remind myself that in the context of the Family Court^[3], there is an increasing focus on the concept that a meeting between a child and a judge is a visit for the child to meet the judge; and not for the judge to meet the child. There is something of a read-across of this concept into this adult welfare jurisdiction. For the avoidance of doubt, I did not meet Laura (or hear from her in open court) for the purposes of my need to meet her to consider her capacity, or otherwise.

17.12

Following a successful pilot started in November 2022, deputies appointed by the Court of Protection, their legal representatives and other legal professionals involved in Court of Protection cases may file their bills in respect of general management and other applications where the relevant authority has been obtained from the Court of Protection in electronic spreadsheet form. For more details of what is required, see here.

With effect from 1 April 2024, Practice Direction 19B has been substituted to reflect updates to fixed costs that may be claimed by deputies, and to make other consequential amendments to reflect recent case law.

17.39

In Re VA (Medical Treatment) [2023] EWCA Civ 1190, the Court of Appeal made clear that, “save in exceptional circumstances, there will usually be no order for costs of an appeal against a decision relating to P’s personal welfare” (paragraph 55, per Baker LJ).

17.43

A helpful summary of the case-law relating to costs in serious medical treatment cases can be found in West Hertfordshire Hospitals NHS Trust v AX [2023] EWCOP 11, in which Vikram Sachdeva KC (sitting as a Deputy High Court Judge) observed (at paragraph 74) that:

it is incorrect that the only way a court can express its disapproval of a party’s conduct of a case is by making a costs order: it can be expressed in a judgment, and the court’s views of the Applicant’s actions in this case should be tolerably clear. Lieven J similarly voiced criticisms of the Trusts’ conduct in University Hospitals Dorset NHS Foundation Trust v Miss K [2021] EWCOP 40 but there was no application for costs, or suggestion that one might have been justified.

A different approach was taken by Poole J in Re GH (Mastectomy: Best Interests: Costs) [2023] EWCOP 50, in which he found it was appropriate to deviate from the general rule on costs where the Trust’s “pre-issue conduct undermined the role of the OS and prevented pre-issue work which may or may not have helped to resolve some of the issues which the making of the application required the court to determine. Just as an unreasonable failure to mediate can justify a departure from an order that costs follow the event in civil proceedings, even if the costs incurred may have been incurred had mediation taken place, so, in my judgment, a failure to issue an application in the Court of Protection in relation to a question of serious medical treatment within a reasonable time, may justify a departure from the general rule as to costs even if another party’s costs may not have been avoided had the application been brought timeously” (paragraph 67). Poole J considered that the Trust’s conduct had also been unreasonable in “exposing [P], whose interests the OS represents, to a risk of harm” (paragraph 68). He ordered the Trust to pay 80% of the OS’s costs of and occasioned by the application to be assessed on the standard basis if not agreed.

18.5

Hayden J’s decision in An NHS Foundation Trust v G [2022] EWCOP 25 was appealed to the Court of Appeal. In Re G (Court of Protection: Injunction) [2022] EWCA Civ 1312, the Court of Appeal held (at paragraph 82) that:

The Court of Protection does have power to grant injunctions under s.16(5) of the 2005 Act, both in the case where a deputy has been appointed under s.16(2)(b) and in the case where the Court has made an order taking a decision for P under s.16(2)(a). In doing so, it is exercising the power conferred on it by s.47(1) and such an injunction can therefore only be granted when it is just and convenient to do so. This requirement is now to be understood in line with the majority judgment in Broad Idea as being satisfied where there is an interest which merits protection and a legal or equitable principle which justifies exercising the power to order the defendant to do or not do something. In the present case [where the injunction was granted in support of a best interests decision in relation to contact between P and family members], as is likely to be the case wherever an injunction is granted to prevent the Court’s decision under s.16(2)(a) from being frustrated or undermined, those requirements are satisfied because [P’s] interest in the December order being given effect to is an interest that merits protection, and the principle that the Court may make ancillary orders to prevent its orders being frustrated is ample justification for the grant of injunctive relief if the facts merit it.

18.7

In EG & Anor v AP & Ors [2023] EWCOP 15, Senior Judge Hilder held that it would stretch the s.47 MCA 2005 concept of giving the Court of Protection the powers of the High Court “in connection with” the s.22 MCA 2005 jurisdiction beyond what it could bear to suggest that the Court of Protection could grant a freezing injunction prohibiting capacitous persons from disposing of assets in which others alleged that P had an interest, but where that interest had not been determined. Note, however, that we suggest that this does not apply where the nature of P’s interests are clear, and it is a question of protecting them, or where there is no dispute as P’s interests in assets, but steps are being taken by a third party to disperse those assets. At that point, the underlying s.16 decision would be a decision on P’s behalf not to agree to those steps, and the freezing injunction would be in support of that decision.

18.12

With effect from 1 January 2023, Part 21 was wholly replaced by a new Part, substituted by the Court of Protection (Amendment) Rules 2022 (SI 2022/1192). The rationale for so doing was to enable for a consistent approach in relation to contempt proceedings in civil, family and Court of Protection proceedings. The new Part 21 was considered by Poole J in Sunderland City Council v Macpherson [2023] EWCOP 3, in which he identified at paragraph 38 that:

The new r 21.8(5) allows the court to restrict the disclosure of the identity of P (here, FP) if necessary to secure the administration of justice and to protect the interest of P. It does not appear to allow the court to restrict the disclosure of the identity of the Defendant if necessary to secure the administration of justice and to protect the interest of P (here FP). I can envisage cases in which it might be considered that the only way effectively to protect the interest of P is to restrict the disclosure of the identity of another party – the defendant to committal proceedings. However, the new rules do not appear to allow the court to act on that basis.

In Re Esper v NHS NW London ICB (Appeal : Anonymity in Committal Proceedings) [2023] EWCOP 29, Poole J addressed the complexities of the (not entirely seamless) interaction between the Court of Protection Rules and the Lord Chief Justice’s March 2015 Practice Direction: Committal for Contempt of Court – Open Court. Poole J’s made a number of ‘suggestions’ aparagraph 54 in relation to committal proceedings within the Court of Protection, to be followed until such time as the CoP Rules Committee (and potentially the Family Procedure Rules Committee) have had the chance to act:

i) Open justice is a fundamental principle and the general rule is that hearings should be carried out and judgments and orders made in public. Derogations from the general principle can only be justified in exceptional circumstances when strictly necessary as measures to secure the proper administration of justice.

ii) Committal hearings may be heard in private but if the court is considering doing so it must follow the procedures set out at paragraphs 8 to 12 of PD 2015.

iii) Immediately upon issue committal applications in the Court of Protection should be referred to a judge to consider prior to the first hearing:

a) Whether COPR r21.8(5) requires that the defendant’s name should not appear in the court list. In the absence of any such order, committal proceedings should be listed with the full name of the defendant appearing, in accordance with paragraphs 5 or 11 of PD 2015 depending on whether they are to be heard in public or in private. Anonymisation of the defendant on the court list would be a derogation from open justice. Notice of any such decision should be given to the press and the continuation of any r21.8(5) order considered at the first hearing.

b) Whether the existing Transparency Order may need to be extended to cover the non-disclosure of the identity of any party or witness in the committal proceedings. A Transparency Order made in Court of Protection proceedings will not extend to committal proceedings unless there is an express order of the court to that effect. COP PD 4C does not apply to committal proceedings. COP PD 4A only applies if a hearing in public is the result of a court order under COP R r4.3 and so does not apply to committal hearings which are heard in public unless otherwise ordered. The court in committal proceedings in the Court of Protection cannot therefore rely on an existing Transparency Order or use COP PD 4A to restrict reporting. COPR r21.8(5) appears to be the only basis for ordering non-disclosure of the identity of the defendant, other party, or witness in a committal application. It applies at all stages of a committal application in the Court of Protection. If the court is considering making a r21.8(5) order, other than in relation to the anonymisation of the defendant in the public list for the first hearing, it should adopt the procedure at paragraphs 3, 4, 8, 9, 10 and 12 of PD 2015.

iv) Unless ordered otherwise, the parties in the Court of Protection proceedings are the parties to the committal application within those proceedings. Accordingly, COPR r21.8(5) applies to those parties as well as to any witness in the committal proceedings. Unlike CPR r39.2(4), COPR r21.8(5) does not apply to someone who is neither a party nor a witness.

v) COPR r 21.8(5) requires the court to order the non-disclosure of the identity of a party or witness if the two necessity conditions within the rule are met. The Contempt of Court Act 1981 s11 applies to allow ancillary directions to be given if a r21.8(5) order is made. Such ancillary directions may include restrictions on publishing or communicating specific identifying information to prevent the disclosure of the identity of the particular party or witness to whom the r21.8(5) order applies.

vi) The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness – COPR r21.8(5). Therefore the non-disclosure of the name of the defendant, or any other party or witness, must be ordered if it meets both those requirements but cannot be ordered if it does not meet them. If a lesser order will suffice, then the order for non-disclosure may not be made. The wording of COPR r21.8(5) reflects paragraphs 3 and 4 of PD 2015, namely that open justice is a fundamental principle, derogations from which can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. It adds a second requirement to be met before the court may order non-disclosure of the name of a party or witness, namely that non-disclosure is necessary to protect the interests of that party or witness. The procedural requirements at paragraphs 3, 4, 8, 9, 10 and 12 of the PD 2015 apply.

vii) The court must consider the application of the tests in COPR r21.8(5) separately in respect of P, the defendant, and other parties or witnesses in the committal proceedings. Where P is a party, the court may readily find that the necessity tests in r21.8(5) are met so that it must direct the non-disclosure of the identity of P. In such a case the court may make ancillary orders under s 11 of the Contempt of Court Act 1981 to protect P’s identity.

viii) If the conditions in COPR r21.8(5) are met in respect of the defendant, then the court must anonymise the defendant in any published judgment and must direct that disclosure of the defendant’s identity shall be prohibited. The court may make ancillary orders under Contempt of Court Act s11. A convenient mechanism for making these orders would be by extending the relevant parts of the Transparency Order to the committal proceedings.

ix) COPR r21.8(5) is not triggered to prevent the disclosure of the identity of the defendant if the sole purpose is to protect the interests of P. It must be the interests of the defendant that need protecting. In the event of a committal order it will be exceptionally rare for the court to find that the r 21.8(5) conditions are met in respect of the defendant. In the event of a finding of no contempt of court, it will be relatively more likely that the court will find that the r 21.8(5) conditions are met in respect of the defendant, but it will still be an exception for the identity of a defendant to committal proceedings not to be disclosed.

x) Subject to an order for non-disclosure of the identity of the defendant being made under COPR r21.8(5), in which case the defendant must be anonymised in any published judgment and reporting of their identity prohibited, the following practice should be adopted in relation to giving judgment and naming the defendant in committal proceedings:

a) If the court finds the defendant not guilty of contempt of court, then COPR r21.8(11) requires the court to give a reasoned judgment in public but there is no requirement for that judgment to be published on the judiciary website, nor would the requirements of PD 2015 paragraph 13 apply so as to require the defendant to be named and his name to be published on the judiciary website. Nevertheless, the court may decide to name the defendant and to publish their name by inclusion in a published judgment or otherwise.

b) If the court finds the defendant in contempt of court but does not make a committal order, then a reasoned judgment must be given in public and the defendant must be named in court and their name published on the judiciary website, but there is no requirement for a transcript of the judgment to be published on the judiciary website, although the court may choose to do so.

c) If the court finds the defendant in contempt of court and imposes a defendant must be named in court and their name and the judgment must be published on the judiciary website. The requirement to publish the defendant’s name will be met by naming them in the published judgment.

18.13

The importance of complying with the procedural provisions relating to contempt applications was emphasised (by reference to the Family Procedure Rules) by Mostyn J in Ahmed v Khan [2022] EWHC 1748 (Fam), identifying that they provide two sets of safeguards, those that protect the defendant prior to the contempt hearing and those that protect the defendant at the contempt hearing.

18.18

In Lincolnshire County Council v X & Ors [2023] EWCOP 52, HHJ Tucker acceded to an application to deviate from the norm of hearing the contempt application in public, on the basis that it was necessary to sit in private to protect the interests of X as set out in COPR 2017 r.21.8(4)(d), and to secure the proper administration of justice pursuant to r.21(8). HHJ Tucker considered that, on the facts of the case, “[i]f the proceedings are not held in private I consider that part of the harm the proceedings before the Court seek to prevent would, in fact, be caused by proceedings themselves” (paragraph 60).

18.20

The Court of Appeal in MacPherson v Sunderland City Council [2023] EWCA Civ 574 concerned an appeal by a litigant in person. The Court of Appeal set out a number of broad principles of law, the two key principles relating to contempt being:

15. As some of the Appellant’s submissions appear to be directed to showing that she should not be found guilty of contempt of court even though the breaches were admitted, the case of R v Tredget [2022] EWCA Crim 108; [2022] 4 WLR 62 provides some assistance by way of analogy. In that case the Court of Appeal Criminal Division reviewed the basis on which an appellant might appeal against conviction after a plea of guilty. Three main categories were identified. These were: (1) the guilty plea was vitiated either because the plea was equivocal or because impermissible pressure had been exerted on the appellant; (2) there was an abuse of process because there had been entrapment, for example; and (3) where it could be shown that the appellant had not as a matter of fact committed the offence. The court made it clear that the categories were not closed.

16. In Her Majesty’s Attorney General v Timothy Crosland [2021] UKSC 15; [2021] 4 WLR 103 [44] the court set out the proper approach to sentencing for contempt of court. The court should adopt an approach similar to that in criminal cases and assess the seriousness of the conduct and the harm caused, intended or likely to be caused. The court should consider whether a fine would be a sufficient penalty. If the contempt were so serious that only a custodial sentence would suffice, the court should impose the shortest period of imprisonment which reflects the seriousness of the contempt. Weight should be given to mitigation, including any genuine remorse and previous good character. There should be a reduction for an early admission of contempt. Once the appropriate term has been decided, consideration should be given to suspending the term of imprisonment.

19.11

With effect from 1 April 2024, Practice Direction 20B has been amended to clarify the circumstances in which appeals from a Tier 2 judge may be heard by the Court of Appeal, rather than having to go first to a Tier 3 judge.

19.50

The difficulty of persuading an appellate court to overturn a first instance judge’s evaluation of best interests was reiterated in J v Luton Borough Council and Others [2024] EWCA Civ 3 , a challenge to a decision not to allow an Afghan refugee (now a British national) with learning disabilities to visit Afghanistan.

19.58

In Re VA (Medical Treatment) [2023] EWCA Civ 1190, the Court of Appeal took a rather different approach to that set out in Cheshire West (which was not cited in the judgment in VA), namely that: “save in exceptional circumstances, there will usually be no order for costs of an appeal against a decision relating to P’s personal welfare” (paragraph 55, per Baker LJ).

22.1

In March 2024, the Law Society of England and Wales published updated guidance on understanding and applying the concept of deprivation of liberty in different settings.

20.29

The formal evaluation of the informal mediation pilot anticipated in this paragraph was published in September 2022. Dr Jaime Lindsey and Gillian Loomes-Quinn evaluated 6 cases that were mediated under a practitioner designed mediation scheme over a period of 21 months. The cases covered property and financial affairs, deputyship, and welfare matters. No medical treatment cases were mediated under the Scheme. In all six cases, full or partial agreement was reached at the mediation. Overall, the authors concluded that CoP mediation has the potential to save costs, time and enhance working relationships between participants. Furthermore, satisfaction with the Scheme itself was very high. The authors go on to make a series of recommendations, most importantly (1) that the CoP ought to develop a mediation information scheme, based on the MIAM approach in the family courts or the MIAS approach in SEND, with a specific timeframe in which information about mediation should be provided, and a requirement for parties to consider the use of mediation in specific types of cases; and (2) a court-authorised mediation scheme should be piloted with authorisation from the CoP.

22.55

In Lancashire & South Cumbria NHS Foundation & Anor v AH [2022] EWCOP 45, HHJ Burrows made a number of observations concerning the interaction between the assessors for Schedule A1 of the MCA and expert evidence before the Court of Protection. He identified (at paragraph 57) that “[i]t seems clear to me that where a court appointed expert reports on a case in which capacity is in dispute, and that expert concludes that capacity to make decisions as to residence and care are absent, that should be sufficient for the mental capacity requirement of Schedule A1 to be met without more.” However, he identified that there was, in fact, no way for the court to enforce such a conclusion.

1. Clearly, where any of the assessments are challenged by way of s.21A, the Court has the express power to vary or terminate the standard or urgent authorisation. However, that power is predicated on there being such an authorisation in place. What the Court cannot do is hear a challenge to DOLS capacity assessment which concludes that P has capacity, because then there will be no standard or urgent authorisation to challenge/vary/ terminate.
2. There was a discussion as to what a supervisory body (in this case Lancashire County Council) can do, if anything, where the assessor concludes that P has capacity. The assessors are, of course, independent of the supervisory body. That is necessary in order to make the process compliant with Article 5 of the ECHR. It would be unfortunate as well as very costly, if the supervisory body had to judicially review one of their assessors because that assessor reached a view that conflicted with a decision of the Court (see analogously, albeit within the context of the Mental Health Act where a Responsible Clinician challenged his own Hospital Managers in respect of the discharge of a patient: South Staffordshire and Shropshire Healthcare NHS Foundation Trust & Whitworth v The Hospital Managers of St Georges Hospital [2016] EWHC 1196 (Admin).)
3. It would be sensible, it seems to me, if the Local Authority as supervisory body agrees that P lacks capacity, that the author of the report ought to carry out the assessment for the purposes of the DOLS, if that is possible. Alternatively, I would expect any mental health or mental capacity assessor to have access to the report and any judgment such as this that has dealt with the issue of capacity.

22.70

At paragraph 2(1) of his judgment in Stockport MBC v KB [2023] EWCOP 58 HHJ Burrows made clear (in the context of Re X applications) that:

the Court must be satisfied that P suffers from unsoundness of mind. However, these words have no mystical powers; they are not an “open sesame” giving access to the Article 5 cave. They refer to a mental disorder. It is for the court to be satisfied that P is of unsound mind on the basis of the evidence before it. Provided that evidence satisfies the Court that P has a mental disorder, and subject of course to the other essential requirements also being satisfied, the Court may authorise detention.

HHJ Burrows declined to decide whether the medical evidence that Strasbourg has made clear is required could come “in appropriate circumstances” from a psychologist, mental health nurse, or other similar specialist clinical expert, identifying that “this may be a moot point” (paragraph 2).

22.80-22.85

23.7

The Serious Medical Treatment Guidance is drafted on the basis that it applies to situations where there is, in principle, more than one option on the table, and therefore that the Court of Protection is being invited to discharge its conventional best interests jurisdiction. In GUP v EUP and UCLH NHS Foundation Trust [2024] EWCOP 3, however, Hayden J appeared to approach it on the basis that it also covered the situation where the treating Trust had considered that it was not necessary to bring an application because they considered there was no clinically appropriate method to provide nutrition to the person. It is respectfully suggested, for reasons developed here, that this is wrong.

23.19

27.7

For a recent review of the case-law relating to habitual residence, see Aberdeenshire Council v SF & Ors [2023] EWCOP 28.

27.9

In Re SV; Health Service Executive of Ireland v Florence Nightingale Hospitals Limited [2022] EWCOP 52, Mostyn J set out a checklist of factors for judges to consider – and hence for applicants to address – in respect of applications seeking recognition and enforcement of foreign protective measures, especially those involving deprivation of liberty. In any case involving deprivation of liberty, Mostyn J observed that the order should only be made by a Tier 3 judge, following an attended hearing. He also observed that it was “perilous” for such applications to be heard in open court subject to the transparency provision, as this would be an “example of us applying our own insular domestic standards to this stand-alone piece of legislation which incorporates an International Convention.”

In The Health Service Executive of Ireland v A Hospital Provider [2023] EWCOP 55, the Vice-President, Theis J, rejected the proposition that there might be cases involving deprivation of liberty under cover of a foreign order put forward for recognition and enforcement which could be determined on the papers. She also noted that, for purposes of such applications:

28. The core bundle should contain the following: (i) the application; (ii) the skeleton argument; (iii) the draft order; (iv) the consents (if applicable); (v) the order of the [foreign court]; (vi) the transcript of the judgment and, in cases where this is necessary, the transcript of the hearing. This is to cover situations, such as here, where the ex-tempore judgment refers to exchanges during the hearing. Where the transcript is lengthy relevant passages should be marked up and linked to the skeleton argument.

29. In addition to the core bundle, there should be a separate bundle which includes the other relevant material from the proceedings in [the other jurisdiction], so they can be referred to if required.

27.19

In Aberdeenshire Council v SF (No 2) [2024] EWCOP 10, Poole J took the very unusual step of declining to recognise and enforce a foreign order under Schedule 3 to the MCA 2005. It was particularly unusual because the order in question was not ‘foreign’ in a conventional sense, but emanated from Scotland, in the form of a guardianship order. The particular concerns grounding Poole J’s refusal to recognise and enforce the order stemmed from the extent to which the process for making the order in Scotland appeared not to give effect to SF’s rights under Article 5 ECHR. Although he was at pains to emphasise that the case was fact-specific, it is suggested that caution is required in any case involving deprivation of liberty apparently justified by reference to Scottish guardianship orders.

Appendix F

As of 1 July 2023, the Court of Protection is no longer accepting cheques and card payments from local authority applicants. Instead, payments will have to be made via Payment by Accounts portal. More information can be found here.

With effect from 1 May 2024, the fee for making an application in the Court of Protection will rise from £371 to £408, and the appeal fee from £234 to £257.

The Court and Tribunal Fees (Miscellaneous Amendments) Order 2024 also corrects some errors, including in the Court of Protection Fees Order 2007. As the Explanatory Memorandum notes:

Paragraph 14(3)(b) in Schedule 2 to the Court of Protection Fees Order 2007 deals with the calculation of a party’s disposable capital and gross monthly income for the purposes of calculating entitlement to fee remissions. Mistakenly, paragraph 14(3)(b) fails to specify that the gross monthly income of ‘P’ (the protected party) is to be treated as the gross monthly income of the party, in proceedings brought concerning the property and affairs of a P. This amendment will correct this oversight.

A revised COP44A Help with fees application, and COP44B guidance notes have been published. Any applications received whether digitally or in paper form on the old form received by the Court from Friday 1st March onwards will be rejected, and returned to the sender for the new version of the form to be completed.

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