The quarterly update on the COPH website to the third edition of the Handbook is now out, bringing the book up-to-date to 1 August 2020. The next update will be due on 1 November 2020 (and if people ask very nicely, the good people at Legal Action Group and the authors may even be able to start thinking about a fourth edition of the book).
With thanks to Victoria Butler-Cole QC, upon whose excellent 2013 work we have built, a small team comprising her, Sarah Castle (the Official Solicitor), Jakki Cowley (an IMCA), and Alex Ruck Keene has produced a basic guide to the Court of Protection for lay people who may be going to court, or may be attending court. The guide is accompanied by a glossary of the terms that are regularly used. Jakki has also written a more personal guide called “You’re going to a welfare hearing at the Court of Protection – what does this mean for you?.” These documents are not official documents, but we hope that they may be of help in ensuring that those who attend court know what it does, and how it does it. All of the documents can be found here.
Alongside these documents, it also helpful to flag the guide to remote hearings produced by the Transparency Project. It is designed for those attending family proceedings, but has practical information which may be equally useful to those attending hearings before the Court of Protection.
[Even though COVID-19 may be making everyone rethink how conventional proceedings unfold in the Court of Protection, it does – or should not – detract from the importance of mediation. We are very pleased to host here a guest post by Alex Troup of St John’s Chambers, Bristol, outlining his experience as a mediator under the Court of Protection Mediation Scheme which is currently up and running on an informal pilot basis].
As one of the panel mediators on the Court of Protection Mediation Scheme, I thought that I would take the opportunity to tell you about a recent mediation which I conducted as mediator under the Scheme and which resulted in a successful settlement of a case which would otherwise have gone on to an expensive, stressful and time-consuming trial.
The case in question happened to involve a property and affairs dispute, although in principle health and welfare cases can be equally suitable for mediation under the Scheme. But I would like to focus not on the details of the case, which remains confidential, but instead on how the Scheme worked in practice.
There are 20 panel mediators on the Scheme, all of whom are experienced mediators with expertise in the field of mental capacity. You can engage a panel mediator simply by contacting them directly using the contact details available on the Scheme website. The parties in my case contacted my clerks who made the necessary arrangements. The great advantage to the parties is that each and every one of the panel mediators has agreed to act at a reduced rate of £100.80 per hour plus travel expenses, which is in line with legal aid rates. So the process is very cost effective.
What is more, we mediators are perfectly happy to travel. The mediation I was involved in took place in the far north of England. The fact that I am based in Bristol did not matter: I simply travelled up the day before and stayed overnight in a local hotel. The mediation took place in a neutral venue which had been agreed by the parties. We started at 9am prompt and we finished by 5pm. The mediation took the form of a shuttle mediation so the parties themselves did not have to meet at any stage, although we did have a number of lawyers’ meetings which proved extremely useful.
A key issue for any mediation is when it takes place. A mediation under the Scheme can only take place once proceedings have been issued in the Court of Protection. In our case, the mediation took place shortly after a directions hearing had taken place at which directions were given leading towards trial. That meant that the mediation took place before the parties had gone through the formal process of disclosure and exchange of witness statements, but it was felt – as it turned out, correctly – that there was already sufficient information and documentation available to allow the parties to negotiate a settlement. The costs of disclosure and witness statements were therefore avoided.
One of the features of the Scheme is that the parties must find a way to allow P to participate in the mediation process. In our case, the Official Solicitor had been appointed to act as P’s litigation friend and so she was able to promote P’s views and wishes. The Official Solicitor’s barrister did not attend the mediation in person but spoke by telephone to the parties at various key moments during the day and was involved in the drafting of the settlement agreement before it was signed.
Another feature of the Scheme is that there is a good deal of helpful documentation available on the Scheme website to guide the parties (and indeed the mediator!) through the process. This includes checklists, a draft proforma mediation agreement, and questionnaires for participants. Because any settlement will have to be approved by the Court of Protection as being in P’s best interests, the documentation also includes an invaluable checklist for what will need to be included in the draft order.
Overall, I thought that the mediation worked extremely well. In many ways it felt like any other kind of mediation, albeit with variations to reflect the fact that it concerned an incapacitated individual whose wishes and views needed to be taken into account and that the agreed settlement would need to be approved by the court. The feedback from the parties was very positive and there is no doubt that it was a cheaper and more efficient process than litigation.
I urge those of you who have not yet tried a mediation under the Scheme to give it a go. The mediation process is flexible and can be moulded to suit your particular case. The Scheme is user friendly and far less daunting for clients than the formality of Court. Many Court of Protection cases are eminently suitable for mediation, and a speedy and cost-effective resolution at mediation is usually not only in P’s best interests but also the best interests of all of other parties involved in the dispute. Full details of the Scheme can be found on its website which can be found here: https://www.courtofprotectionmediation.uk/
Senior Judge Hilder and the Operations Manager of the Court of Protection have provided an update on the court’s performance and activities during the COVID-19 outbreak, and work being done to assist practitioners. The letter (dated 21 May 2020) can be found here.
In Re SF (Injunctions)  EWCOP 19, Keehan J was concerned with a young woman, SF, who had a diagnosis of Autism Spectrum Disorder and also had learning disabilities. She resided in a supported living establishment where she received 1:1 support 24 hours per day. In September 2019 the care and support provider became aware that SF was communicating with a number of men via social media and the internet. Further, it became apparent that some of these men were attending her placement and having sexual relations with her. Only one of those men had been identified, as VK.
On 28 January 2020 the local authority applied for an injunction against VK to prevent him from attending SF’s accommodation. On 5 February 2020 the local authority applied for an injunction in the same terms against ‘persons unknown’.
Keehan J had not, initially, been persuaded that the Court of Protection had the power to grant an injunction against either a party or a non-party. He convened a hearing on the specific point, and this judgment contains his reasons for concluding that it does have the power, in summary because:
i) s.47(1) of the 2005 Act is drafted in wide and unambiguous terms;
ii) it must follow that the Court of Protection has the power which may be exercised by the High Court pursuant to s.37(1) of the 1981 Act to grant injunctive relief;
iii) this conclusion is fortified by the terms of s.17(1)(c) of the 2005 Act which permits the court to prohibit contact between a named person and P;
iv) it is further fortified by the terms of ss. 16(2) & (5) of the 2005 Act. The provisions of s.16(5) are drafted in wide terms and enable the court to “make such further orders or give such directions…….as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order…….made by it under subsection (2)”;
v) finally, the 2017 Rules, r.21 & PD21A, make provision for the enforcement of orders made by the Court of Protection including committal to prison for proven breaches of court orders.
Whilst the judgment is a careful analysis of the position, it is (with respect) a little odd in 2020 for it even to have been a question-mark over whether the Court of Protection had such a power. The chapter in the Court of Protection Handbook addressing enforcement notes – for instance – the case of W v M in 2011, in which Baker J had observed that there was “no doubt about the power of the Court of Protection to make injunctions.” Indeed, until recently suspended by COVID-19, the entire approach of the transparency Practice Direction depended upon the making of injunctions in the transparency order in each case against identified individuals/categories of individuals.
What is more interesting, but tantalisingly not addressed in detail in SF’s case, is the power to make an injunction against persons unknown. This power has not to date been addressed in a reported case, although in EXB v FDZ  EWHC 3456 (QB), Foskett J, sitting both as a High Court judge and a judge of the Court of Protection, was asked in the context of a case as to whether an individual should be told the size of their personal injury award to consider making “an order – effectively in the form of an injunction – preventing any person who knows of the size of the award from disclosing that information to the Claimant. It would be akin to an order for possession against ‘persons unknown’ in possession proceedings.” Foskett J declined to do so, because whilst he could “see the attractions of a mandatory order such as that suggested […], I am not at all sure how such an order could be policed and how anyone in breach of it could be dealt with. An order with a penal notice attached seems somewhat disproportionate and draconian in the circumstances and an order without teeth is arguably an order that should not be made” (paragraph 42). Foskett J made an order (under both s.16 and s.15(1)(c) MCA 2005) to the effect that “[i]t shall be unlawful for any person (whether the Claimant’s deputy or any other person who has knowledge of the amount of the Settlement) to convey by any means to the Claimant information about the amount of the Settlement, save that this declaration does not make unlawful the conveyance of descriptive information to the Claimant to the effect that the Settlement is sufficient to meet his reasonable needs for life.” However, because of his previous analysis, what Foskett J did not then do was then go one stage further and consider whether he could, in fact, seek to back such an order by way of an injunction.
The order against VK could clearly be made as a step required to enforce the decision of the Court of Protection (permitted by s.17(1)(c) MCA 2005) to permit contact between VK – as a named individual – and SF. That would not apply in relation to the injunction against ‘persons unknown.’ However, as a matter of logic, if the Court of Protection has the same ‘powers, rights and privileges’ as the High Court, it is necessarily to look back up the line to the High Court for the answer. The Supreme Court has relatively recently considered the position – by reference to civil litigation – in Cameron v Liverpool Victoria Insurance Co Ltd  UKSC 6. Lord Sumption, on behalf of the Supreme Court, identified that that there are conceptual difficulties in relation to the bringing of a claim in relation to those who are not only anonymous but cannot even be identified. However, where, as in a case such as the present, 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, proceedings can be brought, and injunctions then granted to enforce the relief granted in those proceedings (see also Canada Goose UK Retail Ltd & Anor v Persons Unknown & Anor  EWHC 2459 (QB)).
The Vice-President of the Court of Protection, Hayden J, has written 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.
The wide-ranging letter takes in remote assessments and a protocol for managing DoLs prepared by Lorraine Currie, MCA/DoLS lead for Shropshire County Council; it notes that:
It was expressed to me, at the Hive group, 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)
The letter also notes that:
There has been a striking and troubling drop in the number of Section 21A (MCA 2005) applications which has occurred, in some areas, alongside a significant reduction in referrals to advocacy services. It needs to be emphasised that where there has been a failure properly to authorise deprivation of liberty one of the consequences is that, in the absence of authorisation, there will be a loss of entitlement to public funding and inevitably an obstruction to the individuals absolute right to challenge the deprivation of liberty. For the present I simply highlight my concern and restate the importance of the statutory requirements.
In terms of remote assessments, this document prepared by Lorraine Currie is of considerable assistance; she also contributed to a webinar for the National Mental Capacity Forum on the subject, which can be found here.
Hayden J has published a letter (4 May) providing an update upon the steps taken by the Court of Protection to respond to the pandemic, and, in particular, the work of the Hive group since its establishment in late March 2020 across the full spectrum of the Court’s work.
The quarterly update to the Court of Protection Handbook (1 May 2020) is now online, available here. It builds on the previous update (1 February 2020) to provide a comprehensive updating to the text of the third edition of the book, and includes both the key materials relating to the impact of COVID-19 on the functioning of the Court, and significant cases on practice and procedure in the last 6 months.
In two decisions handed down on 30 April 2020, Re A (Children) (Remote Hearings)  EWCA Civ 583 and Re B (Children) (Remote Hearing : Interim Care Order)  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 key points from Re A are as follows:
i) The decision whether to conduct a remote hearing, and the means by which each individual case may be heard, are a matter for the judge or magistrate who is to conduct the hearing. It is a case management decision over which the first instance court will have a wide discretion, based on the ordinary principles of fairness, justice and the need to promote the welfare of the subject child or children. An appeal is only likely to succeed where a particular decision falls outside the range of reasonable ways of proceeding that were open to the court and is, therefore, held to be wrong.
ii) Guidance or indications issued by the senior judiciary as to those cases which might, or might not, be suitable for a remote hearing are no more than that, namely guidance or illustrations aimed at supporting the judge or magistrates in deciding whether or not to conduct a remote hearing in a particular case.
iii) The temporary nature of any guidance, indications or even court decisions on the issue of remote hearings should always be remembered. This will become all the more apparent once the present restrictions on movement start to be gradually relaxed. From week to week the experience of the courts and the profession is developing, so that what might, or might not, have been considered appropriate at one time may come to be seen as inappropriate at a later date, or vice versa. For example, it is the common experience of many judges that remote hearings take longer to set up and undertake than normal face-to-face hearings; consequently, courts are now listing fewer cases each day than was the case some weeks ago. On the other hand, some court buildings remain fully open and have been set up for safe, socially isolated, hearings and it may now be possible to consider that a case may be heard safely in those courts when that was not the case in the early days of ‘lockdown’.
The factors that are likely to influence the decision on whether to proceed with a remote hearing will vary from case to case, court to court and judge to judge. We consider that they will include:
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 the child or the other parties;
iii) Whether the parties are legally represented;
iv) The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) 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.
The facts of Re A illustrate the challenges faced at the moment, in the context of an individual (the child’s father) with “limited abilities, and some disabilities, which render him less able to take part in a remote hearing. He has been diagnosed as dyslexic. He is unused to reading. He has a short attention span, is emotionally fragile and brittle and quickly becomes exasperated.” The Court of Appeal emphasised that “[t]he concept of fairness and the need for a lay party to ‘engage’ in the process includes the ability of that person to follow and to understand what transpires at a court hearing at least to an adequate degree and then to be able to instruct their lawyers adequately and in a timely manner.” The Court of Appeal also considered problematic the approach proposed by the judge a hybrid one which would have seen the parents giving evidence before him in person in court, but in the absence of their representatives (who would attend by video):
58. […] Recently, in the judgment given in Re P (A Child: Remote Hearings)  EWFC 32 at paragraph 26 the President stressed the importance of the court being able to see all the parties in the court room. Although that case was specifically directed to the hearing of allegations of Factitious or Induced Illness, the more general point that a judge will be in a better position to assess the evidence of a witness who gives evidence live from a witness box than one who speaks over a video link is plainly right. There is, however, a need for caution when the only witness(es) required to attend court are the lay parties when others, for example the key social worker, are not. When a lay party is required to attend court, but his or her advocate is not, the cause for concern at the imbalance in the process must be heightened. Consideration must be given to the potentially exposed position of a witness giving live evidence in front of a judge in the absence of his or her lawyers or any of the other parties and in response to questions asked over a video link. The judge does not appear to have considered whether in this particular case it was reasonable to expect these parents to be placed in that potentially daunting position. When this is placed in the balance alongside the other factors which establish a lack of a fair process it gives them additional weight.
The Court of Protection will be giving the following instructions in relation to telephone hearings at First Avenue House, responding to uncertainties as to responsibilities and costs. They are to be read with the Guidance on Remote Hearings published by the Vice-President on 31 March 2020.
Please find below dial in details for the telephone hearing listed before judge xyz on date at time.
JOIN USING YOUR PHONE
- Choose the correct phone number to dial:
– Freephone 0800 917 1956
– United Kingdom Direct: 0203 463 9741
– International dial in +44203 463 9741
- At the phone prompt, provide the participant passcode: 5########## followed by #
The charge for the connection to your remote hearing is paid for by HMCTS. However, charges may be applied by your service provider and may vary depending on what contract you currently have with them. It is your responsibility to check whether you will be charged for this connection with your network provider
The participant passcode is for one time use only.
[Note, the reference to ‘charges’ in the passage in bold is a reference to the fact that, if the right number is not used, the call will not be free – on some networks, 0800 will be the Freephone number; on others the 0203 number].