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Bulk tenancy applications

In line with the approach to bulk applications (there in respect of deputyship) set out in the Friendly Trust’s Bulk Application [2016] EWCOP 40, practitioners should be aware that the 2012 guidance as to bulk tenancy applications has now been withdrawn.   Any applications for the same will now be met with the following response:

‘The previous guidance, which was drawn up following an approach by the Association of Public Authority Deputies and other court users, has been withdrawn. That had indicated that the court was prepared to deal with all of the adults required to sign the tenancy agreement(s) in a single bulk application.  Attention has been drawn to the fact that the Court of Protection Rules 2007 make no provision for bulk applications to be made.  It is not possible, as the rules stand at present, to entertain an application made on that basis.’

You have been warned!

Revised COPDOL 10 form to come into effect on 1 December 2016

The revised COPDOL 10 form, incorporating (in particular) the additional questions posed by Charles J in Re NRA, is to come into effect on 1 December.  A copy of the form is available here, but the ’embargo’ marking is a reminder that it cannot be used before 1 December (the current form, in PDF and unofficial Word form) is available here.

Guest Post: Facilitating participation of ‘P’ in Court of Protection proceedings

[We publish here by way of a guest post a case study  written by Nicola Mackintosh QC (Hon) as to the facilitation of P in Court of Protection proceedings.  The case study will form part of the second edition of the Court of Protection Handbook, coming soon.  Nicola acted as P’s solicitor, instructed by the Official Solicitor as his litigation friend, in A County Council v (1) AB (2) JB (3) SB [2016] EWCOP 41, the case in which the measures set out below were explored].

In the body of [this book], we set out some of the ways in which practice needs to change within the Court of Protection to ensure that the court and representation process is looked at through P’s eyes, rather than just adding P as an afterthought.   Whilst the COPR and accompanying Practice Directions may well need to be amended in due course to secure this goal, creative steps are already possible within the framework of the COPR as they stand.   As a case study, we set out here those which were implemented to facilitate P’s participation in a fact-finding hearing listed to determine allegations of abuse at the hands of his parents.

P had expressed a wish to attend Court to come to the fact finding hearing to listen to what his parents and other witnesses were saying, as well as to ‘tell his story’ to the court. This was opposed by both his parents and the local authority, but the court ruled that he should attend.   The court also ruled that, whilst P was “almost certainly not competent to give evidence [this is] is no reason not to seek with appropriate help to elicit ‘information’ from him via a skilled intermediary….using Rule 95 (e) the Court may admit the information but there is no guarantee that it would accept or act upon it….. the Court’s ability to have information provided by P is wide and flexible…”

In the light of the judgment the practical arrangements which had already been made were implemented. These steps show clearly how vital it is when securing and enhancing P’s participation that each and every detail of the arrangements is planned from P’s perspective and not simply limited to a meeting with the judge (important as that is).  This involved the following:

  1. P’s lawyers meeting with P and securing appropriate Speech and Language Therapy support to prepare for the hearing by exploring concepts such as the following:(b) ‘what is a judge, what will the judge be deciding, why is it important to you’?(d) ‘how can I tell my story’?
  2. (c) ‘what will happen at the hearing, who will speak when, how long will it take etc.’?
  3. (a)‘what is happening in court, what is a case, why is your case in court, what is the case about’?
  4. Considering which court location would best meet the needs of the case, taking into account all physical facilities, travel time for P and others etc.
  5. As the court’s video facilities did not allow for P to be in an adjacent room viewing the proceedings from a distance so as to minimise distress, an alternative facility was found nearby which could provide a video link to the court. Arrangements were made for this between the IT specialists of the court and the other facility, and for the video link to be tested in advance to ensure it was working. In the event this facility was not used as P remained in court throughout the proceedings.
  6. (With consent) taking photographs of the judge, the courtroom and all the lawyers involved in the proceedings to explain to P the physical location and the identity of all involved in advance of the hearing.
  7. Before the hearing arranging a visit by P to the courtroom when the court was not sitting to see the layout, and also to meet the court clerk who was to be allocated to the hearing days.
  8. Deciding where it was best for P to sit in his wheelchair in the courtroom to listen to the proceedings, taking into account the position of other parties and ‘lines of sight’ with others.
  9. Arranging for P to be supported by staff regarding personal care, and ensuring mobile hoists were provided for P in both locations for care.
  10. Ensuring that there was enough physical space in the court complex so that P had a separate room just next to the courtroom, with a fan (P being a wheelchair user had reduced temperature control).

The first day of the hearing was listed as a Ground Rules Hearing, as provided for in the Advocates’ Gateway. On the first day, as planned, the judge met with P in a side room next to the courtroom. P’s solicitor was present, and P’s SALT also assisted by explaining to the judge that P was able to respond ‘yes, no, happy and sad’ through different Makaton signs. P showed the judge how he communicated each of these expressions, enabling the judge better to understand how to interpret P’s wishes and reactions.

Although the fact finding hearing was listed for 9 days, after the initial part of the first day of the hearing (P being present in court with his carers and intermediary) the parties set out their updated positions which then resulted in negotiations to see if a settlement could be reached without the need for the fact finding process. This lasted the first day and the terms of an order were agreed on the second day of the hearing. P was present during all discussions between lawyers and the court, and communicated his wish to continue to be involved and to listen to the proceedings. Between updates to the court he was permitted by the judge to remain in the courtroom with his support workers, watching a DVD. This reduced the need for him to be taken in and out of the courtroom, waiting for long periods in a small stuffy side room, and was invaluable. This could not have been arranged without the court’s co-operation and flexibility of the court staff.

Once agreement had been reached in principle between the parties as to the core issues in the case, it was considered vital for P’s wish to ‘tell his story’ to be facilitated. A very careful consideration of the issues raised, and the broad themes set out in the fact finding schedule was undertaken. Questions of P were drafted by P’s legal representatives with the assistance of P’s SALT and intermediary. As P’s communication was limited to responses such as ‘yes, no’ etc, it was necessary for leading questions to be posed however these were broken down into questions so that the leading element was minimised. Examples of questions included ‘Do you want to talk about when you were living at home?’, ‘How did you feel when you were living at home?’, When you were living at home did anyone do X to you?’, and if the answer was affirmative, ‘How did it make you feel?’ These questions were devised to ensure that P’s broad wishes were communicated to the court notwithstanding the agreement between the parties, so that P felt that he had been listened to by the parties and the judge, but avoiding detailed questioning on the fact finding schedule which eventually proved to be unnecessary.

The question and answer sessions were broken down into more than one session to allow P to rest and refocus. With agreement they were filmed on a mobile phone and then played to the judge in his chambers. They were then also played to the other parties. This flexibility avoided all the delays and organisational problems associated with using the court video facilities.

By the end of the second day, agreement had been reached in the form of a detailed order. The judge held a further short hearing and again explained the outcome to P, coming into the courtroom and sitting by P to confirm what was going to happen. P was repositioned in his wheelchair to be solely in the line of sight of the judge and not the other parties.

Although this case required considerable practical arrangements to be made, forward planning was vital in ensuring that all elements of P’s participation was effective in meeting the goal of P’s enhanced involvement in the proceedings. Each case will be as different as each P is different. The more that proceedings in the Court of Protection are attended by P, or P’s participation is secured by other creative means, the more the judiciary, Court staff, lawyers and all the parties will become accustomed to putting P at the centre of the process, and making appropriate arrangements. This is the beginning of a new era in the Court of Protection. This is only right given the role of the Court in making decisions which are of such fundamental importance to P’s life.

 

No power of arrest available in the Inherent Jurisdiction

Practitioners in the Court of Protection will be interested in the judgment of HHJ Bellamy, sitting as a deputy High Court Judge in the case of FD.  A former ward of court with a mild learning disability and an emotional disorder, FD was the subject on attaining the age of 18 of proceedings firstly in the Court of Protection and subsequently when an expert report concluded her to have capacity in the relevant domains under the Inherent Jurisdiction.  Injunctions were sought against individuals considered to pose a risk to FD, and the court was originally persuaded to add a power of arrest, on the basis that Munby J as he then was had imposed such a power in Re SA.   However the judge later became aware of an older authority, Re G (Wardship:  Power of Arrest [1983] 4 FLR 538, in which the Court of Appeal held that there is no power of arrest available in wardship proceedings.  After hearing argument HHJ Bellamy held that in Re SA Munby J was exercising the power under Part IV Family Law Act 1996 to attach a power of arrest to a non-molestation injunction.  This power is no longer available following amendments in 2007.  HHJ Bellamy therefore concluded that there is no jurisdiction under the Inherent Jurisdiction to attach a power of arrest to an injunction.

 

 

 

 

Case Management, s.49 and Transparency Pilot updates

Case Management Pilot

The Case Management Pilot will start on 1 September, to run until 31 August 2017 (alongside the s.49 Pilot and the extended Transparency Pilot, both discussed further below).[1]

The Case Management Pilot can be found here. It introduces three distinct pathways for COP proceedings: 1) a Property and Affairs pathway, 2) a Health and Welfare pathway, and 3) a hybrid pathway for cases that have elements of both. The expectations of practitioners will be different depending upon which pathway is engaged.     Common to each, though, is an expectation of much greater ‘front-loading’ and cooperation to narrow the issues.

The Case Management Pilot is accompanied by a revised set of Rules which foreshadow a re-numbering of the Rules that is anticipated as part of the second tranche of rules changes (moving to the same model as in the CPR and FPR).   For ease of reference, all the Rules that will apply for purposes of the Pilot are set out in an annex – with suitably highlighted amendments – to the Pilot practice direction.   They are also found collected together on the Court of Protection Handbook website here.   There are six Pilot Parts:

  • Pilot Part 1: the overriding objective, including the participation of P, heightened duties upon the court and upon parties, and new duties upon both legal representatives and litigants in person;
  • Pilot Part 2: interpretation and general provisions;
  • Pilot Part 3: managing the case;
  • Pilot Part 4: hearings;
  • Pilot Part 5: court documents;
  • Pilot Part 15: experts.

As these parts cover the majority of relevant matters that arise during the life of an application, the intention is that practitioners (and the judiciary) will have to do the minimum of cross-referencing to the current iteration of the Rules during the life of the Pilot.    However, an unfortunate consequence of the fact that for reasons beyond the control of the ad hoc Rules Committee the renumbering of the Rules cannot take place at present is that there will be parallel Rules for the life of the Pilot depending on whether cases are within or outside the Pilot.   This means, for instance, that Rule 3A representatives are actually Pilot Rule 1.2A representatives in cases on the Case Management Pilot.

Before highlighting the key points of the three pathways, it is important to note the types of applications which the Pilot will not affect, which include: uncontested applications, applications for statutory wills and gifts, applications relating to serious medical treatment and deprivation of liberty applications (both Re X applications and s.21A applications).   However, even for such cases, we strongly suggest that it is prudent to proceed in any case on the basis of any stricter obligation/test that would apply if the case were on the Pilot.   If the Case Management Pilot achieves its aim of changing the culture of the Court of Protection, then it is likely that the judiciary will seek to follow its spirit even where its letter does not apply.

It should also be noted that the intention is that the Case Management Pilot sits alongside and does not displace the Transparency Pilot, so the expectation will be that all of the hearings noted below, with the express exception of the Dispute Resolution Hearing provided for in the property and affairs pathway, will be listed according to the Transparency Pilot rules as regards public/media attendance.

Personal welfare pathway

The personal welfare pathway starts pre-issue, with a set of requirements designed to ensure that only those applications which actually require resolution by court proceedings come to court, and those which do, do so in circumstances where the issues are clearly delineated from the outset.   The Pilot Practice Direction then specifies in some detail what must be included with or accompany the application upon issue including – importantly – a statement as to how it is proposed P will be involved in the case.

The next stage is for matters to be considered by a judge on the papers both for gatekeeping purposes (i.e. allocating to the correct level of judiciary) and the making of initial directions including, importantly, listing a Case Management Conference within 28 days (unless the matter is urgent).      The judge can also direct that there be an advocates’ meeting before the CMC.

The CMC will be the first attended hearing and a vital step in the proceedings because of the obligations placed upon the court (not just the parties) to ensure that the issues are narrowed and directions set for the proportionate resolution of those that are in dispute. Importantly, one of the matters that the court will do is to allocate a judge to the matter – judicial continuity being recognised as crucial to the success of the pilot.    It is also important to note that this Pilot is running alongside the s.49 pilot discussed further below, and also includes a tightening of the rules in relation to experts (where the Pilot applies) so as to limit permission to circumstances where their evidence (1) is necessary to assist the court to resolve the issues in the proceedings; and (2) cannot otherwise be provided.

The intention is that in the ordinary run of the events there would then only be (at most) two more hearings, a Final Management Hearing and the Final Hearing. Ahead of the Final Management Hearing, whose purpose is to determine whether the case can be resolved by consent and, if not to ensure proper preparation for trial, an advocates’ meeting is to be listed at least 5 days in advance for purposes of – inter alia – preparing a draft order for the court to consider at the FMH.    Matters that are likely to be covered at the FMH will include such things as the trial timetable and a witness template, as well as the contents of the trial bundle: in line with the injunction given by the Court of Appeal in Re MN, the expectation is that the trial bundle for the Final Hearing will not generally exceed 350 pages, and must not include more than one copy of the same document.

It is important to note that, unlike the Public Law Outline, there is no fixed timeframe within which proceedings must be concluded, the only fixed date being the listing of the Case Management Conference.   The intention, however, is that the process set down in the Pilot is will mean dramatically shorter resolution of welfare applications.

Property and Affairs pathway

The property and affairs pathway does not start pre-issue because it is recognised that it is often only upon issue that it becomes clear that a property and affairs application is contentious.   It therefore comprises four stages.

The first stage is when the application becomes contested, i.e. when the court is notified in the COP5 that the application is contested or a respondent wishes to seek a different order.

The case management stage takes place on the papers, and includes either: (1) listing for a Dispute Resolution Hearing; or (2) transfer to a suitable regional court for listing of the DRH and future case management.   If the respondent has not given sufficiently clear reasons for opposing/seeking a different order, the judge will also at that stage require such reasons to be given.

The Dispute Resolution Hearing is a major innovation, and represents – in essence – judicial mediation in a form familiar to family practitioners.   A DRH, which will normally take place before a District Judge, is to enable the court to determine whether the case can be resolved and avoid unnecessary litigation, and to that end the content of the hearing is not to be disclosed and everything said therein is not admissible (save in relation to a trial for contempt).    The court is expressly required to give its view as to the likely outcome of the proceedings as part of the DRH.   The aim is for the court to be able to endorse a consent order at the end of the DRH; if not, the court will list for directions of the management of the hearing and a Final Hearing.

The last stage – the Final Hearing – will take place in accordance with directions made at the DRH (there being no Final Management Hearing as with the welfare pathway).

As with the welfare pathway, there is no fixed timeframe for the determination of the application.   Nor, in this instance, is there a specific timeframe for listing of the first attended hearing – the DRH.   This recognises that there is merit to flexibility because there will be some cases in which allowing longer for a DRH is more likely to bring about a quicker resolution overall; conversely, in some cases, the sooner that judicial banging of heads takes place the better.

Mixed pathway

If an application comprises elements of both welfare and property and affairs, prospective parties are directed at the pre-issue stage to identify which pathway is most effective and to comply with the requirements of that pathway so far as possible.   At point of issue, they must file a list of issues to allow the court to identify which pathway or mixture of elements is most appropriate.

The court will then, on the papers, either allocate the case to one of the two pathways set out above, or give directions as to the elements of each pathway are to apply and the particular procedure the case will follows.

Urgent applications

In all cases there is express provision for urgent applications, requiring the parties in particular to specify why the matter is urgent and any particular deadline by which the issue(s) need to be resolved as well, as well as directing compliance (insofar as possible) with any necessary pre-issue steps.

Expert evidence

An important change that is introduced by the Case Management Pilot is a revised Part 15 on expert evidence.   Crucially, the test for permission has been revised in COPR Pr121 to make it more stringent.   The court’s duty is now to restrict expert evidence to that which is necessary to assist the court to resolve the issues in the proceedings, and by COPR Pr 121(2) the court may only give permission to file or adduce expert evidence if it is satisfied that it is both necessary and cannot otherwise be provided.   Further, the court must now in deciding whether to give permission to file or adduce expert evidence have specific regard by COPR Pr123(2A) to (a) the issues to which the expert evidence would relate; (b) the questions which the expert would answer; (c) the impact which giving permission would be likely to have on the timetable, duration and conduct of the proceedings; (d) any failure to comply with any direction of the court about expert evidence; and (e) the cost of the expert evidence. Additionally, by para 4.5(m), the Case Management Pilot Practice Direction provides that for cases on the welfare pathway, the court must at the case management hearing actively consider whether a section 49 report (or a report from a Rule 3A/PR r1.2 representative) could achieve a better result than the use of an expert.

Section 49 Pilot

The s.49 Pilot also starts on 1 September, to run until 31 August 2017.   The Practice Direction applies both to orders made under s.49 MCA by the COP of its own motion and – more importantly – to orders sought by parties. The Practice Direction is accompanied by a draft order.   It recognises, in essence, that s.49 reports are an extremely important part of the COP’s armoury when it comes to information gathering, but that they must be deployed:

  1. Carefully, so as to ensure that they are targeted to public bodies actually able to provide useful information;
  2. With suitable thought and preparation on the basis that, to be effective, they are best approached as if they were expert reports.

An important innovation is the requirement, where possible, for a party seeking a s.49 report from a NHS body or local authority to have made contact prior to the application being heard by the court to identify an appropriate person (“a senior officer”) able to receive the order, and to have discussed with the body the reasonableness and time scales for providing the report.   Although it does not prescribe when a court will and will not order one, the Practice Direction set out (at paragraph 3) common factors that the court may consider when deciding whether to order a s.49 report, including:

  • where P objects to the substantive application or wishes to be heard by the court and does not qualify for legal aid;
  • where it has not been possible to appoint a litigation friend or [under the new numbering] rule 1.2 representative, including where the court has made a direction under rule 1.2(5);
  • where a party is a litigant in person and does not qualify for legal aid;
  • where the public body has recent knowledge of P; or it is reasonably expected that they have recent knowledge of P; or should have knowledge due to their statutory responsibilities under housing, social and/or health care legislation;
  • the role of the public body is likely to be relevant to the decisions which the court will be asked to make;
  • the application relates to an attorney or deputy and involves the exercise of the functions of the Public Guardian; and
  • evidence before the court does not adequately confirm the position regarding P’s capacity or where it is borderline; or if information is required to inform any best interests decision to be made in relation to P by the court.

An unofficial version of the template s.49 order in Word form is to be found here.

Transparency Pilot

The Transparency Pilot has been extended to run until 31 August 2017. We hope in due course that a formal report as to the reasoning will be published, but for present purposes practitioners – and indeed the judiciary – should note the following changes to the Pilot Order (which is available here, including in unofficial Word form):

  • An addition to paragraph 5A (i.e. those bound by the order) to make express that it binds “all persons who are provided with or by any means obtain documents and information arising from this application;”
  •  An addition to paragraph 6 (concerning anonymisation of the transcript of hearings/judgments/orders), making clear that a confidential schedule should be provided with the necessary identification (and a copy of the order) to any person who needs to know the identity of P and/or others anonymised, for instance for purposes of complying with an order for disclosure of documents/information relating to P;
  • A considerable simplification of the requirements relating to anonymisation of documents.  Because – so far – very few hearings have been attended by anyone other than the parties, the initially cautious approach, which required all core documents to be anonymised, has been relaxed.   There is now no requirement that this is to be done; rather the court, by new paragraph 7, may at any time give such directions as it thinks fit (including directions relating to anonymisation, payment, use, copying, return and the means by which a copy of a document or information may be provided) concerning the provision of information or copies of documents put before the court and the terms on which they are to be provided to any person who attends an attended hearing (and who is not already allowed to be given a copy of a document under PD13A – i.e. for such purposes as receiving advice or making complaints to relevant bodies).

Tor Butler-Cole of 39 Essex Chambers had previously prepared an unofficial easy read version of the Pilot Order, and we understand that an updated version to reflect the provisions of the amended Order will be forthcoming.

It should be noted, finally, that the PD extending the Transparency Pilot did so in such a fashion that it is now easier to update the Pilot Order, and practitioners should therefore make sure to ensure that they are using the current version, which will always be found here.

[1] What follows is an updated version of the note that appeared in the March 2016 39 Essex Chambers newsletter, and originally appeared in the August 2016 Newsletter. Alex as a member of the ad hoc Rules Committee has been involved in developing the Pilot.  As before, this note does not represent an official comment upon behalf of the Rules Committee.

 

Transparency Pilot extended

The Pilot has been extended until August 2017.  You can read the relevant PD and draft order here.

The order has been modified somewhat to make it clear that P’s initials should be used.

We will bring further news about this development as it emerges, including – we hope- more about the findings of the Pilot.

Anonymisation: a departure

Hayden J has lifted reporting restrictions and named Mrs N and her daughter, following his seminal judgment that it was not in the best interests of Mrs N, who was in a minimally conscious state, to receive life sustaining treatment.  Mrs N has been named as Susan Rosenbaum and her daughter as Miranda Rosenbaum.  After Ms Rosenbaum died,  her daughter applied to extend the reporting restrictions which had prevented her being named.

Hayden J applied the test set out by Charles J in Re C.  He contrasted the what was described as the prurient reporting in Re C with the reporting in the instant case,which had focussed on the issues rather than titillating gossip.

He noted the argument that an inquest into Ms Rosenbaum’s death would not be held in private.

Carrying out the “balancing act”, Hayden J held:

 

    1. The experience of grief is one unique to the individual, it takes on many forms. I am sure that this family began to grieve for Mrs N some considerable time ago. I am equally confident that their present grief is none the weaker for being in some way already familiar. I have no doubt that having brought this application M, in particular, requires both peace and privacy. I feel bound to say that she falls securely within those individuals contemplated within the Editor’s Code of Practice (see para 19 above). Though there is of course no guarantee against press intrusion, there is no evidence at all of any having occurred in the last few months, as there might have been, notwithstanding the existence of the interim order. Nor does a dispassionate analysis of the facts point to any significant intrusion in the future.
    2. Judges of this Court are not inured to the day to day realities in these cases. I have no doubt that those closest to M and her family, those who matter to the family the most, will have identified Mrs N from the facts of the case. For those beyond that circle, the name of the individual serves only to make her story more real and the issues it raises more acute. Therein lies the public interest. By contrast the introduction of both Mrs N’s and M’s name into the public domain has relatively limited impact on M’s privacy or Article 8 rights more generally. Certainly there is no real evidence to that effect.
    3. In Re Guardian News and Media Limited [2010] UKSC 1; [2010] 2 AC 697 Lord Rodger’s addresses this issue in paragraphs which, for obvious reasons, have become well-known:

“63. What’s in a name? “A lot”, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European Court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH & Co KG v Austria (2000) 31 EHRR 246, 256, para 39, quoted at para 35 above. More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457, 474, para 59, “judges are not newspaper editors.” See also Lord Hope of Craighead in In re British Broadcasting Corpn [2009] 3 WLR 142, 152, para 25. This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.

64. Lord Steyn put the point succinctly in In re S [2005] 1 AC 593, 608, para 34, when he stressed the importance of bearing in mind that

“from a newspaper’s point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.”

Mutatis mutandis, the same applies in the present cases. A report of the proceedings challenging the freezing orders which did not reveal the identities of the appellants would be disembodied. Certainly, readers would be less interested and, realising that, editors would tend to give the report a lower priority. In that way informed debate about freezing orders would suffer.

    1. I am acutely conscious of M’s deep seated wish to preserve her mother’s anonymity in this case, as well of course, as her own. For the reasons I have analysed above I have come to the firm conclusion that the balance here weighs more heavily in favour of freedom of expression. It may well be that Charles J contemplated a situation not dissimilar to that which has arisen here in V when he said (at para 150):

“I also accept that in contrast to many cases covered by the Transparency Pilot, a number of serious medical treatment cases focus on the pros and cons of particular medical treatments and so do not engage wider issues relating to P’s private life or that or P’s family. And it may be that this will lead to a number of injunctions in such cases being limited to P’s lifetime. But, in my view, this should not be a presumption or default position.”

  1. Of course, as has now been analysed in a number of cases in the Court of Protection, evaluating P’s best interests will invariably involve the Judge considering the wider canvas of P’s life, often via the conduit of evidence from family members. Inevitably, that involves an inquiry into the private sphere which will usually engage facets of the rights protected by Article 8. It is unlikely, in my view, that many cases will be confined solely to assessing the advantages or disadvantages of a particular course of treatment without considering some of the circumstances of the individual patient. In this case whilst I have undoubtedly considered features of Mrs N’s life, character and personality, the issue of withdrawal of hydration and nutrition from a patient in MCS is plainly the predominant one. Indeed, I think it can properly be characterised as one of the major issues in contemporary life.
  2. The challenge, in the parallel analysis of the competing rights and interests in play, is that the rights in contemplation are of wholly different complexion. The exercise involves the juxtaposition of the intensely personal (grief, loss, privacy) alongside the conceptual (the public interest, the freedom of the press, the effective dissemination of information, the administration of justice). In a jurisdiction where there is a human, and inevitable pull to the protection of the vulnerable, (this is after all the Court of Protection), it is easy to overlook how some of the wider, abstract concepts also protect society more generally and in doing so embrace the vulnerable.
  3. Mrs N, Susan Rosenbaum as she may now be known and her daughter M, Miranda Rosenbaum, have, whilst unnamed, already gained the respect and sympathy of the vast majority who read about them. The case, brought by Ms Miranda Rosenbaum, has also added significantly to the public knowledge and understanding of issues that any one of us might have to confront. As I have already commented, there are echoes of her mother’s own courage and determination, from that legal action 40 years ago, reverberating through this application. Ms Miranda Rosenbaum has shown enormous strength in bringing this application. I hope that this family will be allowed peace and privacy to heal from their long ordeal.”

Hayden J noted that intrusion by the media on the family’s grief would breach the IPSO Code of Conduct and took the unusual step in his judgment of providing details of IPSO’s website: https://www.ipso.co.uk/IPSO/harassment.html.

 

 

Legal aid for historic human rights breaches in the CoP

Thank you to Charlotte Haworth-Hird of Bindmans for the following report and attached order which clears up an important point about funding in the CoP.

We have recently acted in a judicial review regarding the availability of funding to bring Human Rights Act claims within the Court of Protection. The claim has now successfully settled but unfortunately, the Legal Aid Agency refused to publicise its concession so the Official Solicitor considered it would be helpful to do so for other practitioners.

The LAA has conceded that legal aid funding is available to P to bring a claim for damages under the Human Rights Act, within the Court of Protection, for both ongoing and historic breaches. As with funding for other HRA claims, the grant of funding would be subject to application of paragraph 22 of Part 1 of Schedule 1 of LASPO.

The background to the claim is that an application for funding was made to enable P to bring an HRA claim within existing Court of Protection proceedings in respect of breaches of her Article 5 and 8 rights. Those breaches were historic. The LAA argued that funding for such claims within the Court of Protection was outside the scope of LASPO as the wording of LASPO meant that funding was only available to bring an HRA claim within the Court of Protection for an ongoing breach. The LAA argued that P could apply for funding to bring the claim in the High Court (or County Court) but that funding would not be available to pursue the claim in the Court of Protection. This decision was upheld by the LAA on review and following the issue of proceedings, the LAA served a defence maintaining the same. However, after permission was granted by the Administrative Court , the LAA conceded that its statutory interpretation was incorrect and funding is in fact available to bring historic HRA claims in the Court of Protection.

This is a very helpful clarification given the increased costs that would be incurred if P were required in every case to issue a claim in the High Court or County Court. There will, of course, still be cases in which it would be appropriate to issue a separate claim in the County Court or High Court and funding is also available for that, subject to the appropriate means and merits tests being satisfied.