A new Vice-President for the Court of Protection

After a stint since 2018 marked indelibly by the pandemic, as well as by the promulgation of no less than 60 published decisions (according to Westlaw), representing the tip of the jurisprudential iceberg, the current Vice-President, Hayden J, stepped down officially on 13 February 2023 from his role (but not as a judge hearing cases before the Court of Protection).  He has been replaced by Theis J.

‘Closed hearings’ guidance issued by the Vice-President

The Vice-President of the Court of Protection, Hayden J, has issued guidance about closed hearings and closed materials. As it says in its opening paragraphs, it applies to ‘closed hearings’ and ‘closed materials,’ defined as follows:
a. “Closed hearings” are hearings from which (1) a party; and (2) (where the party is represented) the party’s representative is excluded by order of the court. For the avoidance of doubt, this is different to a “private hearing,” which is a hearing at which all the parties are present (or represented), but from which members of the public and the press are excluded;
b. “Closed material” is material which the court has determined should not be seen by the party (and/or their representative).

The practice guidance also applies to situations where an order may be made that a party (and/or their representative) is not to be told of the fact or outcome of a without notice application.

As the guidance emphasises:

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

Revised certificate as to capacity to conduct proceedings form published

A revised version of the form used to address (and where the person lacks the capacity, to explain in detail why that is the case) capacity to conduct proceedings has now been published.  Although it says on that it is dated 1 September 2007, it is in fact current as to the law in 2023 (including, importantly, the proper ordering of the capacity test: starting with the functional limb).   It is relevant where there is a concern in relation to the capacity to conduct proceedings in relation to an adult who is a party or intended party to proceedings in the Family Court, the High Court, a county court, the Court of Protection or the Court of Appeal.  Note, however, that it does not apply in relation to ‘P,’ i.e. the subject of proceedings before the Court of Protection: analysis of their capacity to conduct proceedings (and make relevant decisions) is to be carried out on the COP3 form (itself being revised at the moment).

Joint Practice Note: Cafcass and Official Solicitor – urgent out of hours applications in relation to medical treatment concerning children

Cafcass and the Official Solicitor have published a joint practice note dated January 2023 “intended to assist the judiciary and legal representatives when dealing with urgent out of hours applications for orders in relation to medical treatment concerning children.” In particular, the Practice Note makes clear that “In medical treatment cases concerning children […], it is Cafcass and not the Official Solicitor who should be approached to provide representation for the child.”

The Practice Note can be read here.

Section 49 MCA reports – letter from the Vice-President

The Vice-President of the Court of Protection, Hayden J, has 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.

Changes to P&A deputyship applications from 1 January 2023 – updated (and a festive puzzle)

Posted onAuthorAlex RK

As part of the move to a new notification process will become the standard process for all Property and Affairs deputyship applications from 1 January 2023 (described here), HMCTS held a  Court of Protection drop in session on Monday 19 December 2022 to explain the new process  for making  property and affairs deputyship applications.  

recording of the session is now available to watch on the HMCTS YouTube channel.

Guidance referred to during the session can be found here:

  1. Setting up a payment by account for HMCTS online services
  2. Court of Protection forms and guidance page
  3. Information about the Court of Protection on GOV.UK

The digital submission process is planned to go live from 3rd January 2023 onwards from the main CoP page that will be updated with the process changes when they come in on 1st January.

And a festive puzzle – can you identify a coincidentally appropriate phrase from the Court of Protection Handbook on this origami flower produced by my daughter from a proof page?  No prizes, I’m afraid, just a nerdy self-congratulatory warm glow.

Changes to P&A deputyship applications from 1 January 2023

From January 2023, the new upfront notification process will become the standard process for all Property and Affairs deputyship applications, following a successful pilot. A new Practice Direction and new Court of Protection forms will be available on (and on this site).

New Property and Affairs Deputyship applications received by the court after 1 January 2023 must follow the new notification process using the new forms.
HMCTS is phasing the release of the online service. This means:

  • the online service will be available for solicitors/professional users to use from 2 January 2023.
  • personal applicants will be able to pay and apply online from February 2023

From 1 February 2023, Property and Affairs Deputyship applications that do not follow the new upfront notification process will be returned to the applicant.

For more details, see the letter from HMCTS here.

Court of Protection Handbook – quarterly update

The first quarterly (1 November 2022) update to the Handbook is now out. It covers relevant case-law since the 4th edition was published, including litigation friends, prior convictions, ‘closed hearings,’ injunctions and the interaction between the Court of Protection and assessors under DoLS.

We should also mark in this update the departure from Legal Action Group of the driving force behind the Handbook, Esther Pilger, who has moved on to pastures new after 20 years. We will miss tremendously her energy, attention to detail and unflappable good cheer.

Remote observations of hearings: new framework

With effect from 28 June 2022, a new framework governing remote access by non-participants to proceedings was introduced by the Police, Crime, Sentencing and Courts Act 2022 – introducing new sections 85A and 85B into the Courts Act 2003 – and the Remote Observation and Recording  (Courts  and  Tribunals)  Regulations 2022

This framework – which applies to all courts and tribunals – is explained in the Practice Guidance issued by the Lord Chief Justice and the Senior President of Tribunals on 28 June 2022.  It applies whether the court is sitting in person, but enabling remote observation, or if the court is, itself, sitting remotely. In broad terms, its effect is to:

  • provide judges with the power to make directions to enable members of the public to observe proceedings remotely (by video or audio);
  • set down a series of considerations for judges to apply when deciding whether to make such a direction;
  • make it (by the Courts Act 2003 s85B) a criminal offence to make an unauthorised recording during any such remote observation.

In respect of the Court of Protection, the introduction of the new framework places matters on a clearer statutory footing than previously; whilst judges of the court had grappled with the problem of recording of remote observations (see Re TA (recording of hearings; communication with court office) [2021] EWCOP 3), they had been doing so in circumstances where the powers to prevent recording had to be derived somewhat indirectly.

It is likely that the Remote Hearings Guidance issued by the Vice-President, Hayden J, in March 2020 will be updated in due course to address the provisions of this new framework, not least as the provisions of the template order attached to that guidance now require updating to reflect that there is no need now to injunct observers from making unauthorised recordings, as this is covered by the offence under Courts Act s85B.

It should be noted that, in the Court of Protection, this new framework alongside, rather than replacing, the provisions of the Transparency Practice Direction.   The Transparency PD provides the mechanism by which the court decides whether the matter should be held in public, and subject to what limitations as to identification of P.    The new framework (and guidance) provides the mechanism by which non-participants may be given remote access to the hearing, whether that hearing is being held in person or online/by telephone.