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Objections, DOLS and the Court of Protection

The long-awaited judgment from Baker J following up on AJ has just been published.  A full report will appear in the next 39 Essex Chambers Mental Capacity Law Newsletter, but in brief Baker J had to address the question of: “When, if at all, does the requirement under Article 5(4) to assist P to exercise his or her right of appeal to the Court of Protection under s.21A of the MCA arise in cases other than those in which P expresses a clear and consistent objection to the arrangements for his/her care and treatment?”

Having answered the question in characteristically erudite fashion, Baker J then very helpfully gave (at para 86) general guidance for the future, reproduced below.

(1) The RPR must consider whether P wishes, or would wish, to apply to the Court of Protection. This involves the following steps:

(a)   Consider whether P has capacity to ask to issue proceedings.  This simply requires P to understand that the court has the power to decide that he/she should not be subject to his/her current care arrangements.  It is a lower threshold than the capacity to conduct proceedings.

(b)   If P does not have such capacity, consider whether P is objecting to the arrangements for his/her care, either verbally or by behaviour, or both, in a way that indicates that he would wish to apply to the Court of Protection if he had the capacity to ask.

(2)    In considering P’s stated preferences, regard should be had to:

(a)   any statements made by P about his/her wishes and feelings in relation to issuing proceedings,

(b)   any statements made by P about his/her residence in care,

(c)   P’s expressions of his/her emotional state,

(d)   the frequency with which he/she objects to the placement or asks to leave,

(e)   the consistency of his/her express wishes or emotional state; and

(f)    the potential alternative reasons for his/her express wishes for emotional state.

(3)     In considering whether P’s behaviour constitutes an objection, regard should be had to:

(a)   the possible reasons for P’s behaviour,

(b)   whether P is being medicated for depression or being sedated,

(c)   whether P actively tries to leave the care home,

(d)   whether P takes preparatory steps to leave, e.g. packing bags,

(e)   P’s demeanour and relationship with staff,

(f)    any records of challenging behaviour and the triggers for such behaviour.

(g)   whether P’s behaviour is a response to particular aspects of the care arrangements or to the entirety of those arrangements.

(4)   In carrying out this assessment, it should be recognised that there could be reason to think that P would wish to make an application even if P says that he/she does not wish to do so or, conversely, reason to think that P would not wish to make an application even though he/she says that she does wish to, since his/her understanding of the purpose of an application may be very poor.

(5)   When P does not express a wish to start proceedings, the RPR, in carrying out his duty to represent and support P in matters relating to or connected with the Schedule, may apply to the Court of Protection to determine any of the four questions identified in s.21A(2) i.e. on the grounds that P does not meet one or more of the qualifying requirements for an authorisation under Schedule A1; or that the period of the standard authorisation or the conditions subject to which the standard authorisation is given are contrary to P’s best interests; or that the purpose of the standard authorisation could be as effectively achieved in a way that is less restrictive of P’s rights and freedom of action.

(6)   Consideration of P’s circumstances must be holistic and usually based on more than one meeting with P, together with discussions with care staff familiar with P and his/her family and friends.   It is likely to be appropriate to visit P on more than one occasion in order to form a view about whether proceedings should be started.

(7)   By way of an alternative to proceedings, it may be appropriate to instigate a Part 8 review, or to seek to work collaboratively with the family and the commissioning authority to see whether alternate arrangements can be put in place. Such measures should not, however, prevent an application to the court being made where it appears that P would wish to exercise a right of appeal.

(8)   The role of the IMCA appointed under s.39D is to take such steps as are practicable to help P and the RPR understand matters relating to the authorisation set out in s.39D(7)(a) to (e), and the rights to apply the Court of Protection and for a Part 8 review, and how to exercise those rights.  Where it appears to the IMCA that P or the RPR wishes to exercise the right, the IMCA must take all practical steps to assist them to do so.  In considering P’s apparent wishes, the IMCA should follow the guidance set out above so far as relevant.

 

 

DOLS reform delayed

The Law Commission has announced today that the next stage in the reform of DOLS – namely the publication of the Commission’s final report and draft legislation- will now be in March 2017, rather than before the end of the year.

In an email to stakeholders, Tim Spencer-Lane, who leads the project wrote:

“The reason for the delay is the complexity of the task of drafting legislation on such an important issue. It is vitally important to get the law right here. Badly drafted, over-complicated law is a big part of the problem with the current DoLS, and we do not want to fall into the same trap again.

We are very aware that the project deadline was brought forward at the request of the Department of Health and for a good reason: there is an urgent need for the system to be improved. We know too that many stakeholders are waiting for our report and draft Bill and will be disappointed with any delay.  For this we apologise.

But we are convinced that it is far more important to deliver a fully completed draft Bill that can deliver effective safeguards to those being deprived of liberty. We are also confident that our  new publication date will not delay the introduction of legislation into Parliament, should the Government wish to do so.   It will be for Government to decide how to take forward the recommendations and draft Bill.”

We will continue to update readers as soon as there is further news.

 

 

LAG publishes new book on adult social care law

 

Adult Social Care Law

Stephen Knafler QC,  Landmark Chambers

adult-social-care

‘An incredibly useful resource for anyone practising in the area … Across 29 chapters, covering the gamut of adult social care law …the author has provided the relevant materials to allow safe navigation through the ever more complex and choppy waters of this area … Throughout the book, the fruits of careful editorial decisions shine through and reflect Stephen Knafler’s huge expertise in the area.’ Alex Ruck Keene, Mental Capacity Law and Policy. (See full review here )

‘[This] is an excellent book  … whilst good for people coming new to the subject is also of use to seasoned  practitioners. Someone with a basic grasp could spend a day with a chapter in this book and come over almost expert on the subject … The chapter on consultation is so valuable to me … For most LAs the book would be worth buying for that  subject alone.’ Local authority solicitor

This comprehensive new book guides all those advising people needing care and support through the complex and constantly moving web of legislation, guidance and case-law that is adult social care law.

 In recent years, due to ‘financial austerity’, social and health care bodies have increasingly made decisions involving increases in charges or reduction in services that have been subject to challenge. Adult Social Care Law brings together all the significant domestic and European cases that form the basis of adult social care law and many other cases in overlapping areas such as the NHS, mental health and support for asylum-seekers and persons from abroad.

 Over 500 case summaries, selected by one of the leading practitioners in this area of law, are presented with a succinct headnote, a clear outline of facts and a summary of the judgment – often with extensive citations – to aid the busy practitioner to quickly and efficiently identify the most relevant cases. Arranges thematically, each chapter is introduces with an overarching summary of the legal framework and the cases cross-referenced with the relevant legislation and statutory guidance, making this an essential reference guide.

 Adult social care law is essential reading for lawyers, advisers, carers, health and social care professionals, local authorities and regulators

Read the Introduction here 

Read the Contents here

Read chapter 8 on  Community Care Assessments

Pb  978 1 908407 78 8  982pp October 2016 £65

Order online  or telephone the order line: 01235 465 577

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Also available as an ebook. Read information on LAG ebooks here.

*terms and conditions apply – see LAG website

s21A MCA can be used to bring SMT case

In Re Briggs [2016] EWCOP 48, Charles J  has held that it is possible for the question of whether it is a person’s best interests to continue to be given clinically assisted nutrition and hydration (‘CANH’) to be determined in proceedings brought under s.21A MCA 2005.  Charles J concluded that the question was an issue to be considered in determining the existence of the best interests condition, included in the definition of the best interests requirement, which is one of the requirements for the grant of a DOLS authorisation, and hence by the Court of Protection under s.21A MCA 2005.   Although an apparently technical question, a great deal turned upon his conclusion because it meant that the applicant – Lindsey Briggs – is eligible for non means tested legal aid funding for representation on the issue of whether it is in her husband’s best interests to be continue to be given CANH that is to be determined by the COP at a hearing presently fixed to take place at the end of November.

The case is also of some considerable interest for Charles J’s analysis of what precisely DOLS involves, and his confirmation (at paragraph 87) that they go beyond what is required to meet Article 5 and effectively include the best interests test that is applied whenever a decision has to be made pursuant to the MCA for a person who lacks capacity to make that decision himself.

We will have further analysis of this case in the December issue of the 39 Essex Chambers Mental Capacity Law Newsletter.

New guidance issued on facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings

Charles J has recently issued guidance on facilitating participation of ‘P’ and vulnerable persons.   It is intended to allow sharing of good practice in the creative development of ways in which P can in fact be put at the heart of proceedings, and draws upon the important work done by the Advocates Gateway and also Nicola Mackintosh QC.   Importantly, perhaps, it shows that there are many steps which can be which do not necessarily require the expenditure of money; instead they require thinking outside the conventional framework within which P is expected to bend to the will of the court.

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.