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Court of Protection Handbook- first quarterly update and new precedent letters

The first quarterly update to the Court of Protection Handbook can now be found here.   Although it is primarily of use for those in possession of the Third Edition (and if you are not, you should be!) it is also of use as a summary of case-law relating to practice and procedure since the book was published in July 2019.

With huge thanks to Michelle Pratley, the site now also includes a fully updated and comprehensive sample letter of instruction to a psychiatrist to report upon decision-making capacity in a number of domain, together with a letter completed upon the basis of a (fictional scenario).

Court of Protection Mediation Pilot Goes Live

An important pilot to encourage and evaluate the use of mediation in the Court of Protection will go live from 1 October 2019.

You can find out more here.  Mediation can bring many benefits and we look forward to hearing more during the course of the pilot and its evaluation.

3rd edition of the Court of Protection Handbook now published!

The 3rd edition of the Court of Protection Handbook is now published, with the addition of Nicola Mackintosh QC (Hon) to the team of Kate Edwards, Professor Anselm Eldergill, and Sophy Miles.  The book addresses in detail the practice and processes of the Court of Protection – across the whole range of its work – in terms that are aimed not only at lawyers but also to the increasing numbers of people who either by choice or otherwise are involved in proceedings before the Court of Protection without legal help.

The book begins with an overview of the Mental Capacity Act 2005 and the Court of Protection, before turning to a step-by-step guide through the processes of preparing and making an application, funding and representation issues, preparing for and appearing at hearings, evidence, costs, enforcement and appeals.

The third edition has been fully updated and includes coverage of the Liberty Protection Safeguards introduced by the Mental Capacity (Amendment) Act 2019.   The accompanying website can be found here.

Fees Reduction

Practitioners are informed that from today 22 July 2019, the following fees will apply:

 

Application fee (currently £385) will reduce to £365.

Appeal fee (currently £320) reducing to £230.

Hearing fee (currently £500) reducing to £485.

You can read the order here.

Accredited Legal Representatives Pilot

The Law Society have been in discussions with HMCTS regarding the issues related to the appointment process for ALRs, which has been far from smooth.

In a response to the concerns raised, HMCTS has agreed to run a pilot as of 1 April 2019.   As of this date, where a nominated ALR is already involved within proceedings, they can seek appointment within the proceedings and be appointed by the judge. Where an ALR seeks to be nominated within application, they will need to provide reasons for their appointment to the judge.

If there is no nominated ALR within the proceedings, the judge will continue to appoint ALR’s from the ALR list.  

The pilot will run for a period of 3 months, where after HMCTS will take a view as to whether allowing direct nominations has been successful.  The Law Society  are encouraging all ALRs to put themselves forward for direct nomination during the period of the pilot, in order to demonstrate the effectiveness of the process.

The current list of ALRs can always be found on the Law Society website here.

LAG Community Care Law Conference 2018

Com Care Conf

Keynote address – Sir James Munby
Early-bird offer – Save £50 on delegate fees by booking before 28 September.
LAG is delighted to announce that our 2018 conference will take place on 12 October 2018, in London.
It has been a busy time since our last conference was held in February 2017. Local authority finances, subjected to continuing austerity measures, have continued to be squeezed with councils implementing harsh cuts in spending. The long-awaited green paper on adult social care, due to be published in the summer of 2018, was postponed until the autumn. The Mental Capacity (Amendment) Bill, which will overhaul the current Deprivation of Liberty Safeguards (DoLS), was introduced in July 2018 with an intention to simplify the process and maintain adequate safeguards whilst saving local authorities an estimated £200m a year.
The LAG Community Care Law Conference 2018 will bring together leading experts in the field (including Court of Protection Handbook author Alex Ruck Keene) to provide an overview of these legal and policy developments. It will also look forward, exploring what the next 12 months are likely to bring.
As well as keynote addresses and panel discussions, the conference will provide short, practical ‘community care masterclasses’ – highly informative and interactive, they will promote excellence in the field.
Delegates will receive a course pack with notes, including all breakout sessions.
The early-bird price for all bookings received by 28 September is:
£200 + VAT  for the public and private sectors
£150 + VAT for the voluntary, charitable and not-for-profit sectors
Book online
Download the conference flyer

“Finally, a happy ending to a tragic story”

In two excoriating judgments  (London Borough of Lambeth v MCS (by her litigation friend the Official Solicitor) (1) Lambeth CCG (2) [2018] EWCOP 14;  and London Borough of Lambeth v MCS (by her litigation friend the Official Solicitor) (1); and Lambeth CCG (2)[2018] EWCOP 20), Newton J has underlined the disastrous- and costly- consequences of “disorganised, muddled and unfocused decision-making”.  He was highly critical of the the failure of two statutory bodies concerned to make progress in repatriating MCS, a Colombian woman who suffered hypoxic brain injury as a result of a cardiac arrest in 2014. There was no dispute that MCS, as a result of her brain injury, lacked capacity to make decisions about her residence and care, nor was there any dispute that it was in MCS’ best interests to be repatriated to Colombia in accordance with what had been absolutely consistent wishes.

Although proceedings were commenced by MCS’ RPR in 2016 (as a result of the RPR’s frustration with the delay since 2014 to make the repatriation arrangements), it was not until January 2018 that the judge was able to sign off a plan for MCS’ return to her home, which went smoothly and  provided what the judge described as a “happy ending to a tragic story”.

Newton J used uncompromising language in describing the failings of the local authority: “shocking”, “astonishing”, efforts that were “facile.. ineffective” and documentation that was “depressingly scant…unedifying”.  The impact of all of this is graphically summarised at [9] in the first judgment:

“Having now had several hearings (in an application that itself was, or should have been, as I have said, unnecessary), I can only begin to imagine P’s sense of frustration and loss at being kept here for years against her wishes, and for no good reason. As even the proceedings have demonstrated so fully, the arrangements could and should have been established and implemented long ago, years ago, but because of disorganised, muddled and unfocused decision making, and what has at times verged on an arrogance, P has just had to wait. It should be remembered that P had been kept here against her wishes, at a cost to the taxpayer of over £2,000 per week. If the authority had done what it should have done in a timely professional manner, not only could they have saved themselves over £100,000 a year, and saved the cost to the taxpayer of these protracted High Court proceedings, they could have avoided P the years of misery from being kept a prisoner here, against her will.”

Perhaps unsurprisingly, this was followed by an adverse costs order in the second judgment. Newton J commented at [2]:

“Proceedings brought in the Court of Protection almost never attract an enquiry into the issue of costs, essentially since they are inquisitional in nature, the general costs principles do not sit easily within the parameters of the Court’s considerations. However, as the President recognised in Re G [2014] EW COP 5, there will occasionally be cases but there must be good reason before the Court will contemplate departing from the general rule. For example an order for costs was made in Re SW [2017] EW COP 7 where the application was “scarcely coherent … totally without merit … misconceived and vexatious”. These proceedings would not necessarily be categorised in that way, but what if they were or should have been fundamentally unnecessary, that is to say they should never have been brought? Or what if the conduct of the proceedings been so poor, so incompetent that not only did they take much longer than they should (thus unnecessarily necessitating P remaining for so very much longer in difficult circumstances) and requiring many extra unnecessary hearings? In those circumstances is the Court not able to mark its disapproval by the consideration and award of costs.”

The judge did not accept that the statutory bodies had been (as they submitted) “assiduous” in trying to arrange MCS’ repatriation.  He did accept that the operation to return MCS to Colombia was novel for those concerned with making the arrangements.  Despite this he was highly critical of the failure to make “basic common-sense enquiries” with the Colombian Embassy and to apply sufficient professional focus.  The judge commented at [4] that

“It should not be thought that I overlook the care that was provided to P, nor, ultimately her successful repatriation, but what is impossible to ignore is the disorganised thinking, planning and management which resulted in her detention here for so very much longer than necessary.”

The judge ordered “without hesitation” that the local authority and CCG should fund the costs of the proceedings.  This is an important reminder that simply bringing a case before the court, and achieving the right outcome in the end, will not avoid the penalty of a costs order if there are failings of the magnitude that occurred in this case. The fact that the case involves an issue which may well be novel and operationally complex does not negate the obligation to bring sufficient professional focus to bear in order to draw the case to a timely conclusion.