Handbook Updates

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

Update to paragraph 3.118

In SAD and ACD v SED (Unreported, Case no. 12791319 (4 November 2016) DJ Glentworth held that the information relevant to a decision to revoke was: (1) who the attorneys are; (2) what authority they have; (3) why it is necessary or expedient to revoke the power; (4)  the foreseeable consequences of revoking the power; and (5) the reasons for the original decision to appoint the attorneys.

Update to paragraphs 3.82-3.86

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

Update to paragraphs 3.149 to 3.158

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

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

Update to paragraphs 3.197 and 3.236

The Law Commission’s Mental Capacity and Deprivation of Liberty project was completed in March 2017, with the publication of its report (Law Com No 372), which can be found here.  A recording (with slides) of Alex’s briefing on the report can be found here.

Update to paragraph 4.19

The Senior Judge of the Court of Protection is now Senior Judge Carolyn Hilder.

Update to paragraphs 4.52 and 4.53

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

Update to paragraph 4.72

In SAD and ACD v SED (Unreported, Case no. 12791319 (4 November 2016) DJ Glentworth held that the information relevant to a decision to revoke was: (1) who the attorneys are; (2) what authority they have; (3) why it is necessary or expedient to revoke the power; (4)  the foreseeable consequences of revoking the power; and (5) the reasons for the original decision to appoint the attorneys.

Update to paragraph 6.62

In Briggs v Briggs [2016] EWCOP 48, Charles J  held that it is possible for the question of whether it is a person’s best interests to continue to be given clinically assisted nutrition and hydration (‘CANH’) to be determined in proceedings brought under MCA 2005 s21A.  Charles J concluded that the question was an issue to be considered in determining the existence of the best interests condition, included in the definition of the best interests requirement, which is one of the requirements for the grant of a DOLS authorisation, and hence by the Court of Protection under MCA 2005 s21A.   This means that the applicant, her husband’s RPR, was eligible for non means tested legal aid funding for representation on the issue of whether it is in her husband’s best interests to be continue to be given CANH.  The implications of this decision are wide-ranging, given that this expands the range of cases in which challenges can be brought under the auspices of MCA 2005 s21A technically to the authorisation, but in reality to underlying matters relating to the person’s best interests. It is not surprising that the Legal Aid Agency and Secretary of State for Justice are applying for permission to appeal.

Update to paragraphs 7.56 to 7.59

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

Update to paragraph 7.80

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

Update to paragraphs 7.93 to 7.101

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

Update to paragraphs 9.2 and 9.3

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

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

Update to paragraphs 10.12 and 10.13

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

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

Update to paragraph 10.19

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

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

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

Update to paragraph 11.10

The Law Society launched in March 2017 its accreditation scheme to enable legal representatives to be accredited so as to be able to be appointed ALRs.  It is anticipated that the first ALRs will be in a position to be appointed in the second half of 2017.

Update to paragraph 11.12

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

Update to paragraph 11.45

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

Update to paragraphs 11.84-11.100

The Law Society launched in March 2017 its accreditation scheme to enable legal representatives to be accredited so as to be able to be appointed ALRs.  It is anticipated that the first ALRs will be in a position to be appointed in the second half of 2017.  A Practice Note will also be produced by the Law Society to assist solicitors (and, by analogy) others acting as ALRs.

Update to paragraph 12.29

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

Update to paragraphs 13.13-13.43

The Transparency Pilot PD was updated with effect from 1 March 2017 to cater for the potential that in due course the approach to allowing public access to court under the Pilot and to Serious Medical Treatment cases will be merged.  The updated PD can be found here, and an merging would take place by way of a pilot order to be found on the Judiciary website and here.

Update to paragraph 15.7

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

Update to paragraph 15.73

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

Update to paragraph 16.12

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

Update to paragraph 16.20

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

Update to paragraph 17.15

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

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

Update to paragraph 17.21

A new Part 23 (rule 203) introduced with effect from 6 April, accompanied by PD23C, gives the court an express power to make civil restraint orders.  Part 23 can be found here, and PD23C here.

Update to paragraph 21.8

The Law Commission’s Mental Capacity and Deprivation of Liberty project was completed in March 2017, with the publication of its report (Law Com No 372), which can be found here.  A recording (with slides) of Alex’s briefing on the report can be found here.

Update to paragraphs 21.21 and 21.51

In Briggs v Briggs [2016] EWCOP 48, Charles J  held that it is possible for the question of whether it is a person’s best interests to continue to be given clinically assisted nutrition and hydration (‘CANH’) to be determined in proceedings brought under MCA 2005 s21A.  Charles J concluded that the question was an issue to be considered in determining the existence of the best interests condition, included in the definition of the best interests requirement, which is one of the requirements for the grant of a DOLS authorisation, and hence by the Court of Protection under MCA 2005 s21A.   This means that the applicant, her husband’s RPR, was eligible for non means tested legal aid funding for representation on the issue of whether it is in her husband’s best interests to be continue to be given CANH (see also paragraph 6.62 in relation to funding).  The implications of this decision are wide-ranging, given that this expands the range of cases in which challenges can be brought under the auspices of MCA 2005 s21A technically to the authorisation, but in reality to underlying matters relating to the person’s best interests. It is not surprising that the Legal Aid Agency and Secretary of State for Justice are applying for permission to appeal.

Update to paragraph 21.23

The decision by Baker J anticipated here relating to when RPRs and IMCAs should bring applications under MCA s21A has now been handed down: Re RD (Duties and Powers of Relevant Person’s Representatives and Section 39D IMCAs) [2016] EWCOP 49. A flowchart summarising the decision (prepared by Tor Butler-Cole of 39 Essex Chambers and reproduced by permission) can be found here.

Baker J found that there is an important difference between the role of the s39D IMCA and that of the RPR.  This derives from the different language used to set out their roles and responsibilities in the MCA, Schedule A1 and the DOLS Code.  Materially the s39D IMCA has an obligation to help P or the RPR apply to the court, but this is triggered only when it “appears” that they wish to do so (s39D(7) and s39D(8)).  The obligations of the RPR are expressed in broader terms and include proactively assessing whether P wishes to apply to the court, or to exercise the right to review in Part 8, Schedule A1.  He commented that “where possible, concerns about the deprivation of liberty should be resolved informally, including under the review process of Part 8.  The aim is to limit applications to the court to cases that genuinely need to be referred to it” (at [73]).

He gave the following guidance:

[86] I therefore suggest the following approach be adopted by RPRs and IMCAs in these cases.  In setting this out I am drawing substantially on the guidance proposed by Ms Butler-Cole and Miss Leonard to whom I am very grateful.

(1)      The RPR must consider whether P wishes, or would wish, to apply to the Court of Protection.  This involves the following steps:

(a)   Consider whether P has capacity to ask to issue proceedings.  This simply requires P to understand that the court has the power to decide that he/she should not be subject to his/her current care arrangements.  It is a lower threshold than the capacity to conduct proceedings.

(b)   If P does not have such capacity, consider whether P is objecting to the arrangements for his/her care, either verbally or by behaviour, or both, in a way that indicates that he would wish to apply to the Court of Protection if he had the capacity to ask.

(2)      In considering P’s stated preferences, regard should be had to:

(a)   any statements made by P about his/her wishes and feelings in relation to issuing proceedings,

(b)   any statements made by P about his/her residence in care,

(c)    P’s expressions of his/her emotional state,

(d)   the frequency with which he/she objects to the placement or asks to leave,

(e)   the consistency of his/her express wishes or emotional state; and

(f)    the potential alternative reasons for his/her express wishes for emotional state.

(3)      In considering whether P’s behaviour constitutes an objection, regard should be had to:

(a)    the possible reasons for P’s behaviour,

(b)   whether P is being medicated for depression or being sedated,

(c)    whether P actively tries to leave the care home,

(d)   whether P takes preparatory steps to leave, e.g. packing bags,

(e)   P’s demeanour and relationship with staff,

(f)    any records of challenging behaviour and the triggers for such behaviour.

(g)   whether P’s behaviour is a response to particular aspects of the care arrangements or to the entirety of those arrangements.

(4)   In carrying out this assessment, it should be recognised that there could be reason to think that P would wish to make an application even if P says that he/she does not wish to do so or, conversely, reason to think that P would not wish to make an application even though he/she says that she does wish to, since his/her understanding of the purpose of an application may be very poor.

(5)   When P does not express a wish to start proceedings, the RPR, in carrying out his duty to represent and support P in matters relating to or connected with the Schedule, may apply to the Court of Protection to determine any of the four questions identified in s.21A(2) i.e. on the grounds that P does not meet one or more of the qualifying requirements for an authorisation under Schedule A1; or that the period of the standard authorisation or the conditions subject to which the standard authorisation is given are contrary to P’s best interests; or that the purpose of the standard authorisation could be as effectively achieved in a way that is less restrictive of P’s rights and freedom of action.

(6)   Consideration of P’s circumstances must be holistic and usually based on more than one meeting with P, together with discussions with care staff familiar with P and his/her family and friends.   It is likely to be appropriate to visit P on more than one occasion in order to form a view about whether proceedings should be started.

(7)   By way of an alternative to proceedings, it may be appropriate to instigate a Part 8 review, or to seek to work collaboratively with the family and the commissioning authority to see whether alternate arrangements can be put in place. Such measures should not, however, prevent an application to the court being made where it appears that P would wish to exercise a right of appeal.

(8)   The role of the IMCA appointed under s.39D is to take such steps as are practicable to help P and the RPR understand matters relating to the authorisation set out in s.39D(7)(a) to (e), and the rights to apply the Court of Protection and for a Part 8 review, and how to exercise those rights.  Where it appears to the IMCA that P or the RPR wishes to exercise the right, the IMCA must take all practical steps to assist them to do so.  In considering P’s apparent wishes, the IMCA should follow the guidance set out above so far as relevant.

[87] Finally, on the general issues arising, although I have in these proceedings considered, as a preliminary issue, the question whether applications in these proceedings are properly brought, this question should not normally be raised as a preliminary issue in every case, either on an application by the respondents to strike out the application or by some other process.  Such a course would lead to unnecessary satellite litigation and would only add to the delays in, and burdens on, the Court of Protection”

IMCAs and RPRs should find the above guidance helpful, and it is hoped that it will give them confidence in deciding which cases to bring before the court.  The structured list probably reflects “best practice” by paid RPRs, and it is of benefit to have this recognised by the court.    The fact that the judge discourages satellite litigation about whether or not am application has been properly brought is also likely to assist.

The reminder that capacity to decide to apply to the court is not the same as capacity to conduct the hearing is important and is consistent with the position in relation to applications to the Mental Health Tribunal (R(H) v Secretary of State for Health [2005] UKHL 60).  In the cases where P lacks such capacity the RPR is to consider whether P is objecting, either verbally or by his behaviour, “in a way that indicates that he would wish to apply to the Court of Protection if he had the capacity”.  It is this interpretation of P’s behaviour that is likely to continue to challenge RPRs.

The reference to the RPR’s power under MCA 2005 s50 to bring an application to the court even absent an indication that P would wish an application to be made, but where the RPR considers the court should determine any or all of the questions in MCA 2005 s21A(2)  is extremely welcome and is a protection for those least able to express a view about their circumstances.   At [79] Baker J encourages RPRs who hold concerns about the qualifying requirements to try to resolve these by using the review process in Part 8; and explains that a decision by the RPR to exercise that power should be made on the basis of P’s best interests.

The emphasis on the need for a holistic consideration of P’s situation by the RPR, and for discussions with carers, family and friends is again welcome.

The reminder to consider the use of Part 8 reviews as an alternative to court proceedings is unsurprising, and may result in the resolution of issues and thus obviate the need for an application in some cases.   It is worth noting however that the right of P and the RPR to non-means tested legal aid arises only in proceedings under s21A, and not in connection with “contemplated proceedings” (see reg 5, Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013).  Thus although legal help may be provided to advise P or the RPR in the course of a Part 8 review, this will be subject to a means test.

______________________________________________________________

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

Update to paragraph 21.60

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

Update to paragraphs 22.19 and 22.25

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

Update to paragraph 23.18

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

Update to Chapter 4

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

Update to paragraph 25.3

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

Update to paragraphs 25.6-25.14

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

In light of the case-law discussed in the March 2017 39 Essex Chambers Mental Capacity Law Report and Re SW & Re TW [2017] EWHC 450 (Fam), it is now increasingly obvious that it will only rarely be appropriate for claims for HRA declarations/damages to be brought in the Court of Protection as opposed to the county or High Courts.

Update to paragraphs 25.19-25.20

The Law Commission’s Mental Capacity and Deprivation of Liberty project was completed in March 2017, with the publication of its report (Law Com No 372), which can be found here.  A recording (with slides) of Alex’s briefing on the report can be found here.

Update to paragraph 26.4

The procedural rules anticipated here have now been published (in a new Part 24) and available here, with a new Practice Direction 24C here.

 

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