Handbook Updates

Updates

This page contains updates to the Handbook, which will be done on an quarterly basis, the last having been done on 1 November 2020.  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 alex.ruckkeene@39essex.com.

Coronavirus/COVID-19

The Court of Protection, along with wider society, has gone through an extraordinarily rapid transformation to address the consequences of the pandemic.

A useful set of resources relating to the wider operation of courts (including legal aid) can be found on the Mental Health Law Online website here); the Judiciary website has also collated advice and guidance here. Key resources relating to the Court of Protection are the guidance letters from the Vice-President, Hayden J, as follows (in reverse chronological order):

The CPBA issued guidance (approved by Hayden J) on 7 April 2020 as to effective conduct of remote hearings in the Court of Protection, available here (updated 7 July 2020). Instructions as to telephone hearings at First Avenue House (28 April 2020) can be found here.

In late March 2020, Hayden J formed the HIVE group to meet (remotely) at regular intervals throughout the present public health crisis. The objective of the group is to refine the approach to dealing with the court’s business and to seek to ensure that it runs as smoothly as possible.  On 4 May 2020, Hayden J published a letter with an update as to the work done by the HIVE to that point.

An early example of a remote hearing (conducted by Skype for Business) was A Clinical Commissioning Group v AF [2020] EWCOP 16; the challenges that remote hearings pose to the perception of the administration of justice can be gauged by the blog that was written by Celia Kitzinger for the Transparency Project about it.  The challenges posed by the pandemic to obtaining evidence (including by way of remote assessment) were highlighted in the decision of Hayden J in BP v Surrey County Council [2020] EWCOP 17, reached early on in the initial lockdown phase.

In two decisions handed down on 30 April 2020, Re A (Children) (Remote Hearings) [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing : Interim Care Order) [2020] EWCA Civ 584, the Court of Appeal undertook a stock-take of the position in relation to remote hearings. Both were decided by Sir Andrew McFarlane, the President of the Family Division, and Davies and Peter Jackson LJJ.  Re B is primarily of importance for indicating how the pressures of the current situation led to a series of cumulative missteps, including by the Guardian and the judge. In Re A, the Court of Appeal to set out a number of “cardinal points and relevant factors with a view to assisting courts to make appropriate decisions in this changing landscape.” Although the cases concerned children, the principles are equally applicable to cases before the Court of Protection. The factors that the Court of Appeal indicated at paragraph 9 would be likely to influence the decision whether to proceed with a remote hearing included:

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

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

iii) Whether the parties are legally represented;

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

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

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

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

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

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

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

3.72

The potential for the court to make a best interests decision based upon altruism was reiterated in A NHS Foundation Trust v MC [2020] EWCOP 33 (Cohen J), approving stem cell donation on behalf of a young woman to her mother.

3.118

The OPG has been updating its Guidance regularly on making LPAs in the context of COVID-19, reiterating at each stage the necessity for witnessing to take place within line of sight where necessary, rather than by such means as video-conferencing.

3.121

In United Lincolnshire Hospitals NHS Trust v CD [2019] 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.

In Re R [2020] EWCOP 4, Hayden J agreed with Francis J, but held that if the result of the arrangements authorised by the declaration would be a deprivation of the person’s liberty at the point when they lack capacity, such would have to be authorised by the High Court under its inherent jurisdiction.

3.175

The DHSC issued in April 2020 guidance as to the application of DoLS during the COVID-19 pandemic, subsequently expanded and updated, most recently in October 2020.  It can be found here.   The Vice-President of the Court of Protection, Hayden J, wrote to Directors of Adult Social Services (in a letter which can be shared more widely) to highlight a number of key points relating to the operation of the MCA 2005 in the context of COVID-19 and care homes, including that:

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

3.326

The Government announced on 16 July 2020 that LPS would not be coming into force on 1 October 2020, but instead in April 2022.

3.323

The Upper Tribunal considered the interaction between conditional discharge and the operation of the MCA 2005 in MC v Cygnet Behavioural Health Ltd and SSJ [2020] UKUT 191 (AAC), confirming that the decision of the Supreme Court in MM [2018] UKSC 60 does not serve as a bar to the Mental Health Tribunal “coordinating” the discharge of a patient on conditional discharge with the provision of authority under the MCA to deprive her of her liberty.

3.237

The Supreme Court in Re D (A Child) [2019] 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.  Practical guidance as to the application of the concept of deprivation of liberty to 16/17 year olds has been published by Research in Practice, available here (written by Alex and Camilla Parker, who have also done a ‘shedinar’ about the subject, available here).

4.50

In Re ND (Court of Protection: Costs and Declarations) [2020] EWCOP 42, the Court of Protection alighted upon procedural failings by a local authority to comply with directions made to provide care plans to it during the proceedings to ground the making of declarations of unlawfulness under s15(1)(c) as to the failures of that authority to discharge its statutory obligations to the subject of proceedings.

4.55

In Cumbria County Council v A [2020] EWCOP 38, Hayden J confirmed that, once a deputy has been appointed, they can only rescind their appointment by making an application to court.  Hayden J also made clear that the application will not be granted automatically:

30. […] The decision is one for the court, acting within the parameters of reasonable discretion. Frequently, the reasons for the application will be obvious e.g. retirement or ill health. On other occasions the basis for the application will be less straightforward and the court will have to evaluate the strength of it through the prism of P’s welfare interests. Those factors identified in the passages above i.e. the complexity of P’s estate; conflicts of interests; P’s own wishes and feelings; the value of the estate etc, may be relevant considerations in any particular case. There can be no presumption of the outcome of the application, nor any fettering of the court’s discretion. The guide will always be P’s best interests, including his financial interests.

4.97-4.100

The conflicting case-law as the s48 threshold (including DA v DJ [2017] EWHC 3904 (Fam), which appeared on Bailii several years after being decided) was reviewed by Hayden J in DP v LB Hillingdon [2020] EWCOP 45. Having done so, he made clear that the words in s48 MCA 2005 require no gloss, such that the question remains throughout: is there reason to believe that P lacks capacity? That question, he observed at paragraph 62, stimulates “an evidential enquiry in which the entire canvas of the available evidence requires to be scrutinised,” and in which the presumption of capacity applies with equal force. Helpfully, he distinguished between the test in s48 and the test in s15 (paragraph 62(vi)):

The exercise required by Section 48 is different from that set out in Section 15. The former requires a focus on whether the evidence establishes reasonable grounds to believe that P may lack capacity, the latter requires an evaluation as to whether P, in fact, lacks capacity.

5.84

The inherent jurisdiction of the High Court, considered in the table, continues to evolve, with different judges taking different approaches to the circumstances under which it is appropriate to grant relief, especially relief directed against the individual who does not fall within the scope of the MCA 2005.   The case-law is summarised here.

7.23

In M and H v P [2019] 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 [2016] 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.

7.56

In Re ACC, JDJ and HPP [2020] EWCOP 9, three deputies brought applications concerning the extent to which the orders appointing them authorised expenditure of P’s estate in respect of getting legal advice and conducting proceedings on P’s behalf. Senior Judge Hilder set out detailed guidance as to the authority of deputies in this regard.

7.59

Refunds are being offered to those who were charged more than necessary for certain deputyship services for any period between 1 April 2008 and 31 March 2015. Current deputies acting for existing clients do not need to apply for the refund, as the Office of the Public Guardian for England and Wales will be in touch with them. However, where a deputyship has ended, either because the vulnerable person has died or is now able to make their own decisions either themselves or via an attorney, the refund will need to be applied for. The refund can be applied for online and there is also a dedicated refunds helpline on 0300 456 0300. The scheme will be open until 4 October 2022; the OPG estimates that most refunds will be less than £200 (together with 0.5% interest).

Professional Deputies who are appointed by the Court of Protection are required to submit estimates of costs and bills for assessment at the end of a reporting period.  From Monday 20 January 2020, deputies have been required to send a Bill of Costs, N258 and authority to assess (deputyship order) through the e-filing system in PDF Format.  For more details, see here.

7.90

In Re Various Lasting Powers of Attorney [2019] 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.

9.15

In A North East Local Authority v AC & Anor [2019] 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 permission threshold was analysed by Mostyn J in Re D (A young man) [2020] EWCOP 1.  He considered that the threshold was the same as that applicable in the field of judicial review: i.e. that the applicant must demonstrate that there is a good arguable case.

9.48

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 [2019] 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) [2018] 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. Hayden J reiterated the importance of coming to court in a timely fashion in Re R [2020] EWCOP 4, Sherwood Forest Hospitals NHS Foundation Trust v H [2020] EWCOP 5 and Cardiff & Vale University Health Board v P [2020] EWCOP 8.

11.6

The conflicting case-law as the s48 threshold (including DA v DJ [2017] EWHC 3904 (Fam), which appeared on Bailii several years after being decided) was reviewed by Hayden J in DP v LB Hillingdon [2020] EWCOP 45. Having done so, he made clear that the words in s48 MCA 2005 require no gloss, such that the question remains throughout: is there reason to believe that P lacks capacity? That question, he observed at paragraph 62, stimulates “an evidential enquiry in which the entire canvas of the available evidence requires to be scrutinised,” and in which the presumption of capacity applies with equal force. Helpfully, he distinguished between the test in s48 and the test in s15 (paragraph 62(vi)):

The exercise required by Section 48 is different from that set out in Section 15. The former requires a focus on whether the evidence establishes reasonable grounds to believe that P may lack capacity, the latter requires an evaluation as to whether P, in fact, lacks capacity.

11.10

In London Borough of Southwark v NP & Ors [2019] 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 [2019] 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;

11.20

In A North East Local Authority v AC & Anor [2018] 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 [[2008] 1 FLR 1645] and Sir James Munby P in Re R [[2014] EWCA Civ 1625]. I have followed the guidance of the Court of Appeal in Re B-S [[2013] 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.  

11.66-11.73

In Bagguley v E [2019] EWCOP 49, Hayden J took the opportunity to make observations as to the obligations upon parties in the case of urgent applications, which merit reproduction in full. Although, in fact, the case did not require the urgent decision that it appeared it did at first sight:

43. […] Had the facts been as presented, it would have created a challenge in securing representation for E. This same dilemma can occur when an urgent application e.g. relating to urgent medical procedure, is made to the out of hours emergency judge. In those circumstances there may not be time to contact the Official Solicitor. Certainly, she will not have the opportunity to conduct independent investigations. Thus, she will not be able to contribute to the decision anything that is not already available to a judge. Nonetheless, the experience, the unique professional obligations to P and the accumulated welfare and legal knowledge of the Official Solicitor may provide an important contribution even where the OS has no greater, possibly even a lesser factual knowledge of the available evidence. The problem has not arisen here, nor do I think I should go further than to say that in situations which are a true emergency it will have to be a matter of judicial discretion as to whether it is necessary or whether time is available to contact the Official Solicitor. It is quite impossible to be prescriptive.

44. What does, however, require to be signalled, in clear and entirely unambiguous terms, is that where an application is brought before the Court of Protection, on what is said to be ‘an urgent basis’, evidence of urgency must be presented which is both clear and cogent. This is to be regarded as a professional obligation on all the professionals involved but most particularly on the lawyers who bring the application. To this I would add the obvious and related point, an application which becomes urgent in consequence of professional delay in decision making is, equally, a professional failure which always militates against the interests of the protected person. An urgent hearing puts everybody concerned under very great pressure. Where such hearings are capable of being listed in circumstances which enable the parties to be appropriately represented and permit all involved the opportunity to consider and reflect upon the issues, they must be. This I emphasise is a facet of the Article 6 Rights of all involved but most particularly P’s rights.

45. There is no absolute requirement that P should be joined as a party in every case. Indeed, the imposition of such a requirement would be unworkable. It is a fact, for example, that P will not be made a party in the vast majority of Property and Affairs applications. Even where the Court is considering a deprivation of liberty it may not be possible to join P as a party where a crisis situation has developed. This is notwithstanding the obiter dicta comments in Re: X (Court of Protection Practice) [2015] EWCA Civ 599. In an emergency the judge will have to evaluate the proportionality of the arrangements in the context of the crisis and, if an order is made, it is likely to be tightly time limited with an expeditious return to Court.

46. Court of Protection Rules 2017 rule 1.2 and Practice Direction 1A place a duty on the Court to consider the participation of P and as to whether or not to join P as a party to the proceedings. In doing so the Court is directed to have regard to a number of matters including the nature and extent of the information before the Court; the issues raised by the case; whether a matter is contentious; and whether P has been notified. Where P is joined as a party, the joinder will only have effect once a litigation friend has been appointed (r1.2(4)). Where the Official Solicitor is appointed to act as litigation friend for P it is her usual practice to ensure that her criteria for accepting appointment are met and that arrangements are in place to meet her costs before she will act.

47. I am aware that the OS is investigating the possibility of providing an out of hours service in the kind of circumstances I have highlighted. This has not been available in the past or at least not for the last decade. If it does become possible it will require to be used sparingly and probably regarded as ‘exceptional’. That, in any event, is for the future.

12.29

When medical evidence is required to support an application for the appointment of a litigation friend for a protected party was considered in the context of the CPR in Hinduja v Hinduja & Ors [2020] EWHC 1533 (Ch).   Falk J observed that the CPR (as with the COPR) does not require medical evidence, making clear that the question will always be fact-specific.

If further investigation is required as to whether a (potential) protected party lacks capacity to conduct the proceedings, a declaration can be made on an interim basis so as to enable those investigations to be carried out: see CS v FB [2020] EWHC 1474 (Fam).

12.42

In Re D (Appointment of Litigation Friend) [2016] EWCOP 67, which appeared on Baillii in July 2019, Baker J held that the principles identified by Charles J in Re UF [2013] EWHC 4289 (COP) applied “in all cases where the court is considering whether a family member can act as a litigation friend.” 

The authorities in relation to when it might be appropriate to remove a litigation friend (in that case, the aunt of the 5 year old the subject of serious medical treatment proceedings) were reviewed in R (Raqeeb) v Barts Health NHS Trust et al [2019] EWHC 2976 (Admin).   He further noted that “a solicitor who is acting for child or protected party is likely under an obligation to inform the court of any concern that the litigation friend is not acting properly. In such circumstances, the court must be entitled to rely on the assessment of the legal team when considering the extent to which it can be established that the litigation friend has or is pursuing an interest adverse to that of the child.”

The case of Hinduja v Hinduja & Ors [2020] EWHC 1533 (Ch) (and the observations made there in relation to Raqeeb above suggests that there may be a difference in approach between the criteria for appointment of a litigation friend in adversarial civil proceedings and inquisitorial Court of Protection Proceedings, so it is suggested that caution should be placed upon reliance upon authorities on this issue determined in the civil context.

13.50

In DL v LB Enfield [2019] 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.

13.68

In London Borough of Southwark v NP & Ors [2019] 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) [2018] 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 [2004] 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 [2005] 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 DP v LB Hillingdon [2020] EWCOP 45, the observation made by Hayden J that on a s21 application it would be possible to resolve doubts about capacity arising from the DOLS authorisation by asking further questions of the individual who had conducted the capacity assessment (rather than by seeking a further view) may well serve as an indication that there will be less willingness to grant permission to instruct an expert.

14.1

The practicalities of the Court of Protection conducting hearings subject to the transparency provisions discussed in this chapter in the circumstances of the COVID-19 pandemic was addressed in the 31 March 2020 Guidance on remote access to the Court of Protection, issued by the Vice-President of the Court of Protection.

The Open Justice Court of Protection Project was founded during the pandemic, capitalising on the ironic fact that proceeding remotely has made it easier for members of the public to attend hearings.

14.74

The provisions of COPR r.5.9 were considered in Re Z [2019] EWCOP 55, in which Morgan J confirmed a decision whether to disclose a document to a non-party is not governed by s.1(5) MCA 2005, but that the legitimate interests of P and any need they may have to be have to be protected from any consequences of the order sought are relevant considerations.  Morgan J also confirmed that the court was required by COPR r.1.1(3)(b), so far as practicable, to ensure that P’s interests and position are properly considered.

Chapter 16

At present, most hearings are conducted remotely, either by video or telephone. The Court of Protection Bar Association issued guidance (approved by Hayden J) on 7 April 2020 as to effective conduct of remote hearings in the Court of Protection, available here (updated 7 July 2020). Instructions as to telephone hearings at First Avenue House (28 April 2020) can be found here.

16.27

In Re M (Children) (Disclosure to the Police) [2019] 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 [2019] 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 is required to consider disclosure beyond that provided for in the rules.

The Dring case then returned to the High Court ([2020] EWHC 1873 (QB)), which gave consideration to the question of how to apply the principles set down by the Supreme Court to the question of whether access should be granted. As Picken J held (at paragraph 81):

the Court should engage in the balancing exercise described by Lady Hale (as well as Lord Reed and Lord Toulson) and, in so doing, accord appropriate weight to the various different factors. The fact that a third party is seeking documents for collateral purposes which have only a limited connection with advancing the open justice principle will not, therefore, operate as a bar to the ordering of production but will be a factor which will weigh less heavily in the appropriate balancing exercise than if the position were otherwise and the documents sought would more significantly advance the open justice principle.

16.45

In Re C (Female Genital Mutilation and Forced Marriage: Fact Finding) [2019] EWHC 3449 (Fam), Gwynneth Knowles J made some important observations about the weight to be placed upon the evidence given by a vulnerable witness. Although given in the context of family proceedings (and hence by reference to the specific rules and Practice Direction) which cover the position in those proceedings, the central thrust of her observations are equally applicable in cases before the Court of Protection. In particular, she noted (at paragraph 16) that:

many vulnerable witnesses are just as likely as anyone else either to tell the truth or to lie deliberately or misunderstand events. It would be unfair and discriminatory to discount a witness’s evidence because of their inherent vulnerabilities (including mental and cognitive disabilities) and it would be equally wrong in principle not to apply a rigorous analysis to a witness’s evidence merely because they suffer from mental, cognitive or emotional difficulties. To do otherwise would, in effect, attenuate the standard of proof when applied to witnesses of fact with such vulnerabilities.

The Court of Appeal in S (Vulnerable Parent: Intermediary) [2020] EWCA Civ 763 made clear the problems that can be caused by the remote examination of a person with learning disabilities, on the basis that: “[b]eing questioned by someone whose face appears on a screen is not the same as face-to-face conversation and the demands of following a hearing in more than one medium inevitably adds to any existing difficulties in understanding what is being said” (paragraph 28).

17.9

In Redcar & Cleveland Borough Council v PR (No 2) [2019] EWHC 2800 (Fam), Cobb J confirmed that, if the case is brought under the inherent jurisdiction, the governing rules are those contained in the Civil Procedure Rules 1998 (rather than the Family Procedure Rules 2010).

17.20

In Re JBN [2019] EWCOP 62, HHJ Marin departed from the general rule to require the Public Guardian to pay half of the costs of an attorney after an application to remove him had been refused. HHJ Marin was critical of the fact that the proceedings were commenced “solely on the basis of the desk-top evaluation of the case carried out by an investigator. I am clear that this led to proceedings being issued which went beyond what was necessary and reasonable.”  He was particularly concerned also that the Public Guardian sought without notice orders of a very serious nature, namely the suspension of the LPA and the appointment of an interim deputy, which completed ignored the fact that the attorney was cooperating.   HHJ Marin was also troubled by the fact the Public Guardian had not responded to attempts by the attorney to settle; he observed that “the rules of court apply equally to all court users including the Public Guardian. Rule 1.4 COPR 2017 imposes a duty on litigants to help further the overriding objective and this includes co-operating with the other party.”  It appeared at the time of the hearing that the OPG might have a policy of not negotiating in cases brought before the court; the OPG confirmed subsequently to the court that this was not the case.

18.5

The authorities relating to the power of the Court of Protection to grant an injunction were reviewed by Keehan J in Re SF (Injunctions) [2020] EWCOP 19, who confirmed (perhaps unsurprisingly) that it does have such a power, and also touched upon – but did not address in terms – the power of the court to make an injunction against persons unknown.   It is suggested that, applying the ratio of the decision of the Supreme Court in Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6, it is likely that there is no power to grant an injunction in respect of people who are not only anonymous but cannot even be identified.  However, where the potential respondents are potentially identifiable (and could also, in principle, be served with the application form – by a person waiting at the placement and giving it to them), these difficulties do not arise (see also Canada Goose UK Retail Ltd & Anor v Persons Unknown & Anor [2019] EWHC 2459 (QB)).

18.5

In The Public Guardian v XR & Ors [2019] EWCOP 65, DJ Geddes held that the Court of Protection had the power to order a person to remove “any video, audio, still photography of [P] or any other person and any other written material of whatever sort, which includes content relating to the [Court of Protection] proceedings posted on social media, YouTube, or any other platform accessible to third parties forthwith.”

18.19

When the Court of Protection will commit a person to prison for contempt was considered in detail in the unusual case of P v Griffith [2020] EWCOP 46, in which the contemnor had forged a court order to seek to obtain medical records relating to P.   MacDonald J also found that the contemnor’s actions in forging a court order, resulted in confidential medical records to which she was not entitled being disclosed to her solicitors, such that P was, to a certain extent, prejudiced by her contempt, particularly in circumstances where medical records are confidential to the individual and it is crucial to respect the privacy of a patient (see Z v Finland (1997) 25 EHRR 371).

19.15

In McDonald v Rose & Ors [2019] EWCA Civ 4, the Court of Appeal helpfully reminded practitioners of the rules that apply where a party wishes to seek permission to appeal from the lower court (which is good practice, but not mandatory). Although given by reference to the CPR, the rules are equally applicable to the position under the COPR.

(1) The date of the decision for the purposes of CPR 52.12 is the date of the hearing at which the decision is given, which may be ex tempore or by the formal hand-down of a reserved judgment: see Sayers v Clarke and Owusu v Jackson. We call this the decision hearing.

(2) A party who wishes to apply to the lower court for permission to appeal should normally do so at the decision hearing itself. In the case of a formal hand-down where counsel have been excused from attendance that can be done by applying in writing prior to the hearing. The judge will usually be able to give his or her decision at the hearing, but there may be occasions where further submissions and/or time for reflection are required, in which case the permission decision may post-date the decision hearing.

(3) If a party is not ready to make an application at the decision hearing it is necessary to ask for the hearing to be formally adjourned in order to give them more time to do so: Jackson v Marina Homes. The judge, if he or she agrees to the adjournment, will no doubt set a timetable for written submissions and will normally decide the question on the papers without the need for a further hearing. As long as the decision hearing has been formally adjourned, any such application can be treated as having been made “at” it for the purpose of CPR 52.3 (2) (a). We wish to say, however, that we do not believe that such adjournments should in the generality of cases be necessary. Where a reserved judgment has been pre-circulated in draft in sufficient time parties should normally be in a position to decide prior to the hand-down hearing whether they wish to seek permission to appeal, and to formulate grounds and such supporting submissions as may be necessary; and that will often be so even where there has been an ex tempore judgment. Putting off the application will increase delay and create a risk of procedural complications. But we accept that it will nevertheless sometimes be justified.

(4) If no permission application is made at the original decision hearing, and there has been no adjournment, the lower court is no longer seized of the matter and cannot consider any retrospective application for permission to appeal: Lisle-Mainwaring.

(5) Whenever a party seeks an adjournment of the decision hearing as per (3) above they should also seek an extension of time for filing the appellant’s notice, otherwise they risk running out of time before the permission decision is made. The 21 days continue to run from the decision date, and an adjournment of the decision hearing does not automatically extend time: Hysaj. It is worth noting that an application by a party for more time to make a permission application is not the only situation where an extension of time for filing the appellant’s notice may be required. It will be required in any situation where a permission decision is not made at the decision hearing. In particular, it may be that the judge wants more time to consider (see (2) above): unless it is clear that he or she will give their decision comfortably within the 21 days an extension will be required so as to ensure that time does not expire before they have done so. In such a case it is important that the judge, as well as the parties, is alert to the problem.

(6) As to the length of any extension, Brooke LJ says in Jackson v Marina Homes (para. 8) that it should normally be until 21 days after the permission decision. However, the judge should consider whether a period of that length is really necessary in the particular case: it may be reasonable to expect the party to be able to file their notice more promptly once they know whether they have permission.

We should add for completeness that the authorities summarised above do not cover a third situation, namely where the judge announces his or her decision, with reasons to follow. That too will start time running, but it should be standard practice, unless there are very unusual circumstances, for the Court to adjourn the decision hearing and extend time under CPR 52.12 (2) (a) until a specified period, normally 21 days, after the reasons are promulgated.

20.26

The Court of Protection informal Mediation Pilot started on 1 October 2019, and details can be found here.  A guest post can be found here by Alex Troup of St John’s Chambers, Bristol, outlining his experience as a mediator under the scheme.

21.39

In Re JBN [2019] EWCOP 62, HHJ Marin departed from the general rule to require the Public Guardian to pay half of the costs of an attorney after an application to remove him following an investigation had been refused.  HHJ Marin was critical of the fact that the proceedings were commenced “solely on the basis of the desk-top evaluation of the case carried out by an investigator. I am clear that this led to proceedings being issued which went beyond what was necessary and reasonable.”  He was particularly concerned also that the Public Guardian sought without notice orders of a very serious nature, namely the suspension of the LPA and the appointment of an interim deputy, which completed ignored the fact that the attorney was cooperating.   HHJ Marin was also troubled by the fact the Public Guardian had not responded to attempts by the attorney to settle; he observed that “the rules of court apply equally to all court users including the Public Guardian. Rule 1.4 COPR 2017 imposes a duty on litigants to help further the overriding objective and this includes co-operating with the other party.”  It appeared at the time of the hearing that the OPG might have a policy of not negotiating in cases brought before the court; the OPG confirmed subsequently to the court that this was not the case. 

In Re A (fact-finding) [2019] EWCOP 58, HHJ Clayton made a costs order against the relevant public bodies for resisting an application made by former professional carer of P to be appointed as their welfare deputy, which had only been made “as a result of P’s rights being violated and her despair at the failings of the system.”  

22.54

Hayden J reviewed the approach of the court to s21A applications in DP v LB Hillingdon [2020] EWCOP 45, holding that the court should not make use of s48 where the position in relation to capacity is governed by the extant DOLS authorisation under challenge, and also emphasising the need for speed in determining s21A applications.   The observation that he made that it would be possible to resolve doubts about capacity arising from the DOLS authorisation by asking further questions of the individual who had conducted the capacity assessment (rather than by seeking a further view) may well be of wider application, and the thought that the capacity assessor might routinely be expected to stand behind their assessment in court may help concentrate minds in the underlying authorisation process.   The decision is discussed by 39 Essex Chambers here, and by Sophy  here.

22.78 

The Government announced on 16 July 2020 that LPS would not be coming into force on 1 October 2020, but instead in April 2022.

22.54

In DL v LB Enfield [2019] 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 [2017] 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 [2019] 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.”

22.61

In Re JDO (authorisation of deprivation of liberty) [2019] 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.”

23.2

As anticipated in this paragraph, the Vice-President of the Court of Protection, Hayden J, published (on 17 January 2020) guidance on serious medical treatment applications in the Court of Protection. It covers (1) situations in which consideration must be given as to whether an application should be made and (2) the court’s expectations in relation to the making and progress of an application.  It is expressly designed to operate until such time as it is superseded by the revised Code of Practice to the Mental Capacity Act.   In Sherwood Forest Hospitals NHS Foundation Trust & Anor v H [2020] EWCOP 5, the Vice-President annexed the guidance to a judgment so as to ‘read it’ into the record of judicial decisions.

The guidance has been referred to in several cases decided by the Vice-President subsequently, who has also sought to identify cases exemplifying good practice (see, for instance, Hull University Teaching Hospitals NHS Trust v KD [2020] EWCOP 35 and University Hospital Coventry and Warwickshire NHS Trust v K and Mrs W [2020] EWCOP 31).

In Re GTI  [2020] EWCOP 28, Williams J observed in the context of a medical treatment decision going against the wishes of P (where his mother had not wished to take a position which went against those wishes):

61. The Court of Protection exists to take decisions such as this. It not the decision of the hospital or any of the members of staff, nor that of GTI or his family or of the Official Solicitor. Ultimately the state has delegated the making of decisions such as this to the judges of the Court of Protection and it is we who bear responsibility for these decisions.

25.5 

In Re JB (Costs) [2020] EWCOP 49, costs were awarded against a local authority which had sought (but withdrawn) an application for an injunction seeking to require a care provider to continue accommodating P in circumstances where it had given valid notice.  Keehan J agreed with the submission that the application was doomed because the placement was simply not an available option, and also described the application as being misconceived and totally without merit.

Chapter 27

In April 2020, the Law Society published updated guidance on the international aspects of mental capacity for solicitors who do not regularly give advice to clients who are: moving or retiring abroad; returning from living abroad; owners of property or other assets overseas.

27.7

The case-law relating to habitual residence was reviewed in detail in The Health Service Executive of Ireland v IM & Anor [2020] EWCOP 51 .

27.9

In The Health Service Executive of Ireland v Moorgate [2020] EWCOP 12, Hayden J considered in some detail the operation of the regime under Schedule 3 MCA 2005 for recognition and enforcement, in the context of a placement of a young Irish woman at an English psychiatric facility for treatment of anorexia nervosa. His judgment provides an updated route-map for navigating the complexities of Schedule 3 and also (as an appendix) an endorsed and detailed comparison of the domestic regimes (MHA and MCA) that would apply were a person placed under a foreign order were, in fact, to be treated under the frameworks that would apply if they were habitually resident in England & Wales.

27.15

In Re AB [2020] EWCOP 47, Senior Judge Hilder declined to recognise and enforce a foreign order authorising the mother of the subject of the proceedings to act as the equivalent of a deputy.   On very unusual facts of the case, she found that to do so would be to frustrate the American court in the completion of investigations as to whether the mother should be removed from her position.   Senior Judge Hilder also examined the interaction between foreign deputyship equivalents and the operation of the ‘no refusals’ requirement under DOLS (as to which, see 3.183).

27.19

In Re Various applications concerning foreign representative powers [2019] EWCOP 52, Senior Judge Hilder analysed what should be done in respect of situations where the Court of Protection is asked to make orders to give effect in England and Wales to representative powers originating in a foreign jurisdiction.

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.

In January 2020, the Ministry of Justice introduced a refund scheme relating to court fees, including the Court of Protection, for fees paid between 1 April 2016 and 31 March 2018.  For more details, see here.

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.

Appendix  G – useful addresses

With effect from 24 August 2020, the Official Solicitor and Public Trustee moved. The address / DX details are now:
The Official Solicitor & Public Trustee Office
Post Point 0.53
102 Petty France
London
SW1H 9AJ
(DX 152380 Westminster 8)

As staff will continue to work remotely, the Office asks that where practitioners are able to send post / documents electronically that you continue to do so.

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