Handbook Updates

Updates

This page contains updates to the Handbook, which are done on a quarterly basis (the most recent being 1 February 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.

7.23-7.28

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.”

7.36

With effect from 1 January 2013, Practice Direction 9H sets 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.  From 1 February 2023, property and affairs deputyship applications that do not follow the new upfront notification process will be returned to the applicant.

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

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.

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 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 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 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.

13.52

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

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.   Hayden J has established a subcommittee of the ad hoc Court of Protection Rules Committee to consider these issues.

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.

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.

17.12

From 1 November 2022 until 28 April 2023, professional 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 the pilot, see here.

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.

18.12

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.

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.

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. 59. 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.
   60. 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).)
   61. 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.

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.”