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Case Management Pilot explained

The Case Management Pilot has now been published.  It is in draft form at present, and the intention is that it will come into effect in June.  Although it has not formally been published for consultation,   practitioners are strongly urged to read and review it carefully, and to send any comments upon it to Joanna Furlong at the Ministry of Justice so any glitches can be ironed out so far as possible before it goes live.

The Case Management Pilot will introduce 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.   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.

Before highlighting the key points of each, 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).

It should also be noted that the intention is that the Case Management Pilot sits alongside and does not displace the Transparency Pilot for so long as they are both in operation (which will include at least part of June and all of July 2016), 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 here, 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 follow.

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.

[Note: a version of this originally appeared in the March 2016 39 Essex Chambers Mental Capacity Law Newsletter. Alex as a member of the ad hoc Rules Committee has been involved in developing the Pilot. This note does not, however, represent an official comment on behalf of the Rules Committee.]

 

 

Section 49 Pilot explained

The section 49 Pilot Practice Direction has been published to come into effect in June 2016 (but unlike the Case Management Pilot Practice Direction, published for information only).  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 draft version of the template s.49 order in Word form is to be found here.

[Note: a version of this originally appeared in the March 2016 39 Essex Chambers Mental Capacity Law Newsletter.  Alex as a member of the ad hoc Rules Committee has been involved in developing the Pilot. This note does not, however, represent an official comment on behalf of the Rules Committee.]

 

Court of Protection Handbook Second Edition – your chance to make a difference

We are setting the wheels in motion to produce a second edition of the Court of Protection Handbook by the end of the year.   We think we know what we need to cover – not least all the exciting developments such as the Case Management Pilot – but we would very much like to hear from you with suggestions of what we need to make sure we add (or conversely, what we can lose).   All answers on an electronic postcard please to courtofprotectionhandbook@gmail.com.

Case Management Pilot Draft published

The long-awaited case management pilot has now been published in draft form for comment and consideration before it goes live in June of this year. There will be more analysis of it and of its implications in next month’s Mental Capacity Law Newsletter, but and very brief terms of pilot envisages very clear pathways for health and welfare cases, property and affairs cases, and mixed cases.

In all cases, the pilot Case Management Direction will place an obligation on applicants to provide improved analysis of the issues at the start of a case, allowing for more robust case management decisions to be taken at the outset and all issues to be identified at the earliest opportunity in proceedings. It will also seek to encourage early resolution of cases, to reduce the number and length of hearings required in contested cases and to promote judicial continuity. The pilot is expected to run for up to 12 months.

Separately, and also to start in June, a pilot has been published to tighten up the  relating to s.49 reports. The pilot aims to ensure that such reports from public bodies are attained in a proportionate, targeted and, above all, useful fashion.  

Transparency guidance on anonymisation updated

Following feedback that the procedure being adopted to ensure that parties were anonymised was perhaps a little too over-zealous, new guidance has been issued.   If further issues such as these are identified, the guidance accompanying the pilot will no doubt be subject to further amendment in due course as all those involved continue to find their feet.

[Update 25 February, this guidance is going to be further updated in light of an ambiguity brought to the attention of the relevant authorities so we have removed the link for the time being]

Transparency – it’s all go

The Transparency Pilot that we have covered previously is now finalised and will be starting on 29 January (NB, this means that the first pilot order can be made on 29 January providing for a hearing to be held in public subject to reporting restrictions, not that the first hearing will necessarily be on that date).    The Practice Direction and the standard “pilot” order can be found here, and the – helpful – guidance note for the judiciary written by the Vice-President of the Court of Protection can be found here.

The Pilot will be running for 6 months.   It is very important that practitioners understand that if they wish their case to proceed in private, it is necessary to apply at the earliest possible opportunity and before any pilot order is made – if they apply after the order has been made, then it will be necessary to give notice of any application to vary the order to the national media by using the Press Association’s Injunctions Alert service (formerly known as CoPyDirect).

As the Vice-President, Charles J, notes in his guidance note, the aim of the pilot is to effectively reverse the existing default position of private hearings.  This means that there will have to be a good reason for not making an order that an attended hearing is to be in public including an anonymity order in terms of or based on the standard order.

 

St George’s and the powers of the court

Newton J has very recently authorised the publication of the order he made in St George’s Healthcare NHS Trust v P & Q [2015] EWCOP 42 (discussed here).  The order makes clear what we had suspected must have been the case (but was made inadvertently ambiguous in the judgment), namely that he did not order the Trust to continue providing P with renal replacement therapy; rather he declared that it was lawful (being in his best interests) for him to continue receiving it.   Had he ordered the Trust to continue providing such treatment, that would have represented a very significant step over the well-respected dividing line between the roles of the court and clinicians.

When to find facts?

The President of the Court of Protection Sir James Munby has handed down judgment in an appeal against an order of HHJ Rogers, in the case of AG.

AG had a moderate learning disability and autistic spectrum disorder.  She was removed from her home, where she held a tenancy, on 16 November 2011 in the context of a breakdown of care arrangements.  AG was supported by a package of care and the removal was preceded by allegations and counter-allegations by DG, AG’s mother and the care staff.   She was placed in residential care and an authorisation under schedule A1 MCA 2005 was granted.  on 24 November an application to the Court of Protection was made.

On 2 November 2012 HHJ Rogers approved the local authority’s plan which was to move AG from residential into semi-supported accommodation and by the time of the final hearing on 3 September 2013 AG had moved into a supported placement.  The final order followed a contested hearing with evidence from the independent social worker, DG and the allocated social worker.

The final order named the local authority as the decision-maker in respect of AG’s contact with her family, approved the proposed plan for AG’s supervised contact with DG to be increased and the level of supervision decreased, granted the local authority the power to enter and terminate a tenancy on AG’s behalf and made declarations as to AG’s capacity and best interests.  It was in AG’s best interests to reside in her current accommodation or “such other accommodation as may be identified by the local authority”, to receive a care package in accordance with her assessed needs and to have contact with her family in accordance with her wishes and feelings and the local authority’s contact plan.

DG appealed on four grounds all of which failed.   Perhaps the most significant for practitioners is the second ground- the complaint that the judge failed to make findings of fact.

DG’s position will resonate with many family members in Court of Protection proceedings where there is a background of allegations, which may or may not have been the subject of conclusions in safeguarding procedures, but which are never determined by the court.

DG argued that in the absence of a fact-finding procedure violated her rights under Article 8 ECHR.  The President’s conclusions are set out below:

  1. Further, it is said by Mr Dixon that, in failing to make findings of fact, Judge Rogers was wrong in law given: (i) the obligation under section 4(2) of the Mental Capacity Act 2005 to consider all the relevant circumstances; (ii) the presence in this case of what are said to be a multitude of factors recognised in law as justifying the need for a fact finding hearing; (iii) the fact that the issue of contact was, it is said, inextricably linked with the allegations of abuse; (iv) the inconsistency of the local authority’s stance – professing to have no need for a fact finding hearing yet relying upon the allegations; and (v) that the failure to make such findings amounted to a procedural violation of Article 8. DG, it is said, was entitled to a hearing at which she could seek to be exonerated.
  2. In support of contention (ii), Mr Dixon placed reliance on the decisions of McFarlane J in A County Council v DP, RS, BS (By the Children’s Guardian) [2005] EWHC 1593 (Fam), [2005] 2 FLR 1031, para 24, and in Re W (Care Proceedings) [2008] EWHC 1118 (Fam), [2010] 1 FLR 1176, para 72, and the decision of Cobb J in LBX v TT (By the Official Solicitor as her Litigation Friend), MJ, WT, LT [2014] EWCOP 24, paras 49-50.

 

24. In the first of these cases, McFarlane J, as he then was, had to consider whether to direct a fact finding hearing in the context of care proceedings where by that stage no party was seeking any public law order. He identified the relevant authorities before summarising matters thus (para 24):

“The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

(a) the interests of the child (which are relevant but not paramount);

  1. (b)  the time that the investigation will take;
  2. (c)  the likely cost to public funds;
  3. (d)  the evidential result;
  4. (e)  the necessity or otherwise of the investigation;
  5. (f)  the relevance of the potential result of the investigation

to the future care plans for the child;

(g) the impact of any fact finding process upon the other parties;

  1. (h)  the prospects of a fair trial on the issue;
  2. (i)  the justice of the case.”
  1. Proper application of these principles in the circumstances of the present case – and those circumstances were carefully analysed by reference to each of the factors identified by McFarlane J – clearly pointed, Mr Dixon says, to the need for a fact finding hearing. The argument was further bolstered by what the same judge had said in Re W (para 72):“It is important that the planning in the future for these children … is based upon as correct a view of what happened to R as possible. It is not in the children’s interests, or in the interests of justice, or in the interests of the two adults, for the finding to be based on an erroneous basis. It is also in the interests of all of the children that are before this court for the mother’s role to be fully understood and investigated.”
  2. Furthermore, as Mr Dixon pointed out, in LBX Cobb J accepted the submission (see paras 39, 49) that, suitably modified, these principles could be appropriately transported from the Family Division to the Court of Protection as providing a useful framework of issues to consider in relation to the necessity of fact finding in the jurisdiction of the Court of Protection.

 

  1. In support of contention (v), Mr Dixon prays in aid McMichael v United Kingdom (1995) 20 EHRR 205, paras 87, 91, and R (B) v Crown Court at Stafford [2006] EWHC 1645 (Admin), [2007] 1 WLR 1524, para 23. In the latter case, May LJ said this:“… the court will have regard to the decision-making process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by article 8. The process must be such as to secure that the views of those whose rights are in issue are made known and duly taken account of. What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the person whose rights are in issue has been involved in the decision making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will be a failure to respect their family life and privacy and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of article 8.”
  2. In answer to this, the local authority and the Official Solicitor make common cause. Their arguments contain five essential strands.
  3. First, as Ms Khalique points out, by reference to the decision of Wall J, as he then was, in Re S (Adult’s Lack of Capacity: Care and Residence) [2003] EWHC 1909 (Fam), [2003] 2 FLR 1235, para 13, it is important to remember that, unlike in the case of care proceedings in relation to a child, there is no requirement to establish ‘threshold’ in the case of proceedings in relation to an adult, whether the proceedings are brought in the High Court under the inherent jurisdiction or, as here, in the Court of Protection.
  4. Wall J went on to point out (para 15) that the absence of any threshold criteria equivalent to those contained in section 31 of the Children Act 1989, “raises the question as to the extent to which (if at all) it is necessary, for the purposes of exercising the jurisdiction and deciding which course of action is in the best interests of S, to make findings of fact relating in particular to disputed historical issues.” His answer was as follows (paras 18, 21):

“18 … I agree that there must be good reason for local authority intervention in a case such as the present. Equally, if there are disputed issues of fact which go to the question of Mr S’s capacity and suitability to care for S, the court may need to resolve them if their resolution is necessary to the decision as to what is in S’s best interests. Findings of fact against Mr S on the two issues identified in para [16] would plainly reflect upon his capacity properly to care for S. But it does not follow, in my judgment, that the proceedings must be dismissed simply because the factual basis upon which the local authority instituted them turns out to be mistaken, or because it cannot be established on the balance of probabilities. What matters (assuming always that mental incapacity is made out) is which outcome will be in S’s best interests. There will plainly be cases which are very fact specific. There will be others in which the principal concern is the future, and the relative suitability of the plans which each party can put forward for both the short and long-term care of the mentally incapable adult. The instant case, in my judgment, is one of the cases in the latter category.

21 Whilst I acknowledge that in a relatively untried jurisdiction there are dangers in too relaxed an approach to historical issues, I am unable to accept the proposition that the approach to best interests is fettered in any way beyond that which applies to any judicial decision, namely that it has to be evidence based; that it excludes irrelevant material; and that it includes a consideration of all relevant material. In a field as complex as care for the mentally disabled, a high degree of pragmatism seems to me inevitable. But in each case it seems to me that the four essential building blocks are the same. First, is mental incapacity established? Secondly, is there a serious, justiciable issue relating to welfare? Thirdly, what is it? Fourthly, with the welfare of the incapable adult as the court’s paramount consideration, what are the balance sheet factors which must be drawn up to decide which course of action is in his or her best interests?”

31.   I respectfully agree with that analysis.

 

  1. Accordingly, it is submitted, the analyses of McFarlane J and Cobb J relied upon by Mr Dixon, have to be read in the context of the overarching principles articulated by Wall J, which, it is submitted, fully justified the approach adopted by Judge Rogers in the present case. I agree.
  2. Secondly, as both Ms Lattimer and Ms Khalique emphasise, Judge Rogers was careful to spell out, and accurately, both in the order of 23 July 2012 and in the passage from his judgment of 2 November 2012 which I have set out in paragraph 19 above, the legal consequences of there having been no fact finding hearing. It is worth repeating, and emphasising, part of what he said:“I bear in mind, however, that those allegations … are strongly denied by DG and, applying a normal approach to the forensic fact finding enquiry, in the absence of the specific findings. I do not hold them in the background as it were by way of a suspicion lurking over DG.”Moreover, there is, they say, nothing whatever to show that this was not in fact the approach adopted by Judge Rogers, both in November 2012 and subsequently in September 2013. Again, I agree.
  1. Thirdly, as Ms Lattimer correctly observes, the decision of Judge Rogers not to have a fact finding hearing must be viewed in context – a context in which, not least in the light of DG’s own stated position, matters had by July 2012 moved on significantly since November 2011. As Ms Khalique puts it, although the proceedings had been issued against the background of the safeguarding concerns arising out of the various allegations, matters had progressed and the court was faced with a different landscape. Judge Rogers correctly recognised that he was looking at the present position and looking to the future. Given how matters then stood, the degree of enquiry undertaken by Judge Rogers during the hearing in October / November 2012 was, says Ms Lattimer, entirely sufficient to inform the decisions in respect of future planning for AG that the court was tasked with making. A lengthy and costly finding of fact hearing would, she submits, have been entirely disproportionate. I agree.
  2. Fourthly, there is, Ms Lattimer submits, and I agree, nothing to suggest that Mr M’s analyses and recommendations were adversely influenced by the allegations.
  3. Finally, as both Ms Lattimer and Ms Khalique point out, DG never sought to challenge on appeal either the order of 23 July 2013 or the order of 2 November 2012. It is far too late to be taking the point now.
  4. In my judgment, Judge Rogers was fully entitled to proceed as he did and for the reasons he gave. I accept Ms Lattimer and Ms Khalique’s submissions.
  5. This ground of appeal fails.

The President rejected DG’s argument that by the time of the final hearing AG’s residence was a fait accompli.  He further rejected the argument that the contact arrangements breached DG’s Article 8 rights, and commented that the judge’s measured findings on this issue were founded in the evidence before him and demonstrated that he had put aside the unresolved allegations against DG.  The President found that DJ Rogers had been appropriately sensitive to balancing AG’s needs and wishes against her mother’s understandable wish to increase contact with her daughter.

He concluded with an important final observation

  1. Ms Khalique submits, and I am inclined to agree, that the local authority acted unlawfully in removing AG from OG in November 2011 and placing her at HH without having first obtained judicial sanction. Local authorities must seek and obtain appropriate judicial authority before moving an incapacitous adult from their home into other accommodation. Local authorities do not themselves have power to do this.

Comment:

This is a clear judgment which builds on the comments made in LBX v TT. The President’s conclusions are not surprising in light of the authorities.  His underlining of the distinction between COP cases and care cases- where there is a threshold- may lead to fewer cases in the COP sphere involving fact-finding hearings.  It is hard however not to sympathise with the desire of those like DG to be able to clear their name in these cases.

The clear statement that local authorities “do not have the power” to remove an incapacitous adult from “their home into other accommodation” is important and may raise the question as to when somewhere becomes “home” for an adult lacking capacity.