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Stress-testing Schedule 3: cross-border placements and the Court of Protection

In Re PA, PB and PC [2015] EWCOP 38, Baker J has conducted a detailed analysis of the jurisdiction of the Court of Protection to recognise and enforce foreign protective measures under Schedule 3 to the MCA 2005.    That Schedule represents the implementation in English law of obligations contained within the 2000 Hague Convention on the International Protection of Adults (‘the Convention’) ((which the United Kingdom has ratified in respect of Scotland, but not England).

The background concerns three young Irish individuals with complex mental health needs, all of whom were considered by the Irish Health Services Executive and the Irish High Court to require treatment in England because suitable treatment was not available in the Republic of Ireland.    The Irish High Court made orders under its inherent jurisdiction in relation to each of the individuals providing for their detention, care and treatment at facilities run by St Andrew’s Healthcare.   Whilst each of the individuals were, in principle, detainable under the provisions of the MHA 1983, the Irish High Court considered in each case that they wished to retain jurisdiction over the individuals so as to be able to ensure that the key decisions in relation the care planning for ‘its’ citizens could be made in Ireland, rather than in England.

All three individuals were initially placed in England under arrangements made under Council Regulation 2201/2003 (‘Brussels IIR’), which (inter alia) provides a mechanism for cross-border placements in relation to children (as to which see our comment on the case of HSE Ireland v SF [2012] EWHC 1640 (Fam)).    When they turned 18, however, this mechanism ceased to be effective, and the HSE therefore sought recognition and enforcement of further Irish High Court orders under the provisions of Schedule 3 to the MCA 2005.     Such orders have been sought and made previously, including in the reported case of Re M [2011] EWHC 3590 (COP), but never on a contested basis.    Indeed, in PC’s case, the Court of Protection had already recognised and declared enforceable the initial relevant Irish order in December 2012, and recognised and declared enforceable an order providing for his transfer from one facility run by St Andrew’s to another in early 2015.

Because the cases of PA and PB raised very similar issues (and it was recognised that the same issues of principle were engaged in PC’s case), Baker J listed all three cases to be considered at the same time.   The Official Solicitor acted as Advocate to the Court in all three cases and PA and PB were represented (directly) by solicitors and Counsel (PC was neither represented nor present).   The ‘stress-testing’ that Schedule 3 to the MCA 2005 underwent in consequence was considerable.

In a detailed judgment, Baker J made a number of key findings/observations in relation to Schedule 3, set out in the paragraphs that follow (nb, these re-order slightly the paragraphs of the judgment so as to move from the general to the specific).

Schedule 3 implements, as a matter of domestic law, obligations in respect of the recognition, enforcement and implementation of “protective measures” imposed by a foreign Court regardless of whether that Court is located in a Convention country (paragraph 39).

In consequence, it is not permissible to apply one rule for Convention states and another for non-Convention states.  In other words, the Courts of England and Wales should note automatically adopt a more cautious approach when asked to recognise and enforce an order of a non-Convention state. Each case will turn on its own facts, to which the Court of Protection must apply the provisions of the Schedule, in particular the provisions as to recognition in paragraph 19 including the grounds on which recognition may be refused. Plainly the Courts of England and Wales will have proper regard to the general principles of comity in all cases, although a greater degree of caution may be required when considering orders made by certain countries (paragraph 39).

There is an important difference between the persons who fall within the general jurisdiction of the Court of Protection under the MCA and those in respect of whom protective measures taken by a foreign Court may be recognised and enforced by the Court.   The Court of Protection’s general jurisdiction exists in respect of persons who lack capacity within the meaning of s.2(1) MCA 2005; the jurisdiction of the Court of Protection under Schedule 3 arises in relation to ‘adults’ – defined for those purposes in paragraph 4(1) as a person over 16 who, as a result of an impairment or insufficiency of his personal faculties, cannot protect his interests (and who is not subject to either the 1996 Hague Child Protection Convention or Brussels IIR).   The scheme of the Convention, reflected in the Schedule, is to focus on the factual description of the adult rather than any legal test as to capacity.   In each case, the Court must look at the order and judgment of the foreign Court – and if it thinks it necessary to do so, and insofar as it is permissible to do so under paragraph 24, the evidence before the foreign Court – to establish whether the foreign Court has made a finding which is binding or, if not, whether the individual comes within the meaning of “adult” under paragraph 4(1) of Schedule 3 (paragraphs 43-4).

The scheme of the Convention which underpins Schedule 3 is to facilitate the recognition and enforcement of protective measures taken by foreign Courts save in the circumstances set out in paragraphs 19(3) and (4). The measure “is to be recognised” if taken on the grounds that the individual was habitually resident in the country where the order containing the measure was made. The grounds on which a measure may be challenged may be procedural (paragraph 19(3) or substantive (paragraph 19 (4)). By reason of paragraph 21, however, provides that for the purposes of paragraphs 19 and 20 any finding of fact relied on when the measure was taken is conclusive, there is no power to challenge the finding made in the foreign Court that the individual is habitually resident in that country.  Accordingly, a finding of a foreign Court that the individual concerned was habitually resident in that country cannot be challenged in any process to recognise or enforce a measure in this country, although the process by which the measure was ordered may be challenged (for example, if the individual was not given an opportunity to be heard) and the measure itself may be challenged (for example, if inconsistent with a mandatory provision of law of this country) (paragraph 52).

Paragraph 19(3) of Schedule 3 gives the Court a discretionary power to refuse to recognise a protective measure if certain procedural safeguards are not met. It is plain from the way in which Schedule 3 paragraph 19(3) is drafted that the Court only has a discretion to decline to recognise a foreign order if it thinks that the case in which the measure was taken was not urgent and the adult was not given the opportunity to be heard and that omission amounted to a breach of natural justice (‘thinks’ for these purposes meaning ‘concludes on the balance of probabilities) (paragraph 55).

Paragraph 19(4) of Schedule 3 gives the Court a further discretionary power to decline to recognise a measure in a foreign order in certain circumstances spelt out in the sub-paragraph. In contrast to sub-paragraph (3), these grounds upon which an application for recognition may be refused are separate rather than cumulative. Thus, the Court may refuse recognition if it thinks that (a) recognition would be manifestly contrary to public policy; or (b) the measure would be inconsistent with a mandatory provision of the law of England and Wales; or (c) the measure is inconsistent with one subsequently taken or recognised, in England and Wales in relation to the adult.   As Mostyn J had identified in Re M 19(4) (a) and (b) appear to be two sides of the same coin (paragraph 62).

By including Schedule 3 in the MCA, Parliament authorised a system of recognition and enforcement of foreign orders notwithstanding the fact that the approach of the foreign courts and laws to these issues may be different to that of the domestic court. These differences may extend not only to the way in which the individual is treated but also to questions of jurisprudence and capacity. Thus the fact that there are provisions within the Act that appear to conflict with the laws and procedures of the foreign state should not by itself lead to a refusal to recognise or enforce the foreign order. Given that Parliament has included s. 63 and Schedule 3 within the MCA, clearly intending to facilitate recognition and enforcement in such circumstances, it cannot be the case that those other provisions within the Act that seemingly conflict with the laws and procedures of the foreign state are mandatory provisions of the laws of England and Wales so as to justify the English Court refusing to recognise the foreign order on grounds of such inconsistency. In such circumstances, it is only where the Court concludes that recognition of the foreign measure would be manifestly contrary to public policy that the discretionary ground to refuse recognition will arise. Furthermore, in conducting the public policy review, the Court must always bear in mind, in the words of Munby LJ in Re L (A Child) (Recognition of Foreign Order) [2012] EWCA Civ 1157 that “the test is stringent, the bar is … set high.” (paragraph 91).

There is likely to be a wide variety in the decisions made under foreign laws that are put forward for recognition under Schedule 3.  Inevitably there may be concerns about some of the foreign jurisdictions from which orders might come. But as the Ministry of Justice observed in a letter sent to the Court, taking account of such concerns is surely the purpose of the public policy review. Although no wide ranging review as to the merits of the foreign measure is either necessary or appropriate, a limited review will always be required as indicated by the European Court in Pellegrini v Italy (2002) EHRR 2. That will be sufficient to identify any cases where the content and form of the foreign measure, and the processes by which it was taken, are objectionable. The circumstances in which Schedule 3 is likely to be invoked, and the number of countries whose orders are presented for recognition, are likely to be limited. If applications were to be made from countries such as North Korea (which are unlikely, at least in the foreseeable future), the public policy review would surely lead swiftly to identifying grounds on which recognition would be refused. It is much more likely that the orders presented for recognition will be those of foreign countries whose legal systems, laws and procedures are closely aligned to our own. Concerns of this nature can be addressed by admitting evidence of the process by which the foreign protective measures were made and general evidence relating to the legal system of the state that made the order (paragraph 92).

The Court of Protection (being bound to act compatibly with the ECHR as a mandatory provision of the law of England and Wales by its incorporation into the HRA) should on any application for recognition and enforcement conduct a limited review to satisfy itself that foreign orders presented for recognition and enforcement comply with the ECHR.  In so doing, the Court should strive to achieve a combined and harmonious application of the provisions of the ECHR and the Convention (paragraph 96).

By including Schedule 3 in the MCA, Parliament must be assumed to have permitted orders to be recognised that did not comply with other laws and procedures under the statute. As the definition of “adult” in Schedule 3 paragraph 4 plainly extends to persons who may not be incapacitated within the meaning of s.2 MCA 2005, it follows that the Court will be obliged to recognise and enforce orders of a foreign court in terms that could not be included in an order made under the domestic jurisdiction under the MCA. This is subject, however, to its discretion to refuse recognition and enforcement where that would be manifestly contrary to public policy.  Baker J agreed with and endorsed Hedley J’s conclusion in Re MN that a decision to recognise under paragraph 19(1) or to enforce under paragraph 22(2) is not a decision governed by the best interests of the individual so that those paragraphs are not disapplied by paragraph 19(4)(b) and section 1(5) of the Act. Thus it follows that the Court will be obliged to recognise and enforce a measure in a foreign court order even where applying a best interests test it would not be included in an order made under the domestic jurisdiction under the MCA. Again, however, this is subject, however, to its discretion to refuse recognition and enforcement where that would be manifestly contrary to public policy (paragraph 98).

It would not be open to the Court of Protection to refuse recognition and enforcement of a foreign order simply because the individual may have the relevant decision-making capacity and objects to the order being recognised and enforced.  Such an approach would undermine the whole purpose of Schedule 3 (paragraph 101).

Specifically in the context of a foreign order compulsorily placing an individual in a psychiatric hospital in England and Wales for treatment:

  1. The limited review required should encompass the Court being satisfied that (1) the Winterwerp criteria are met and (2) that the individual’s right to challenge the detention under Article 5(4) is effective (i.e. that they have a right to take proceedings to challenge the detention and the right to regular reviews thereafter) (paragraph 96);
  2. (Agreeing with Mostyn J in Re M), an order recognising and enforcing a foreign measure under Schedule 3 is not a welfare order as defined in section 16A(4)(b). The rules as to ineligibility in section 16A therefore do not apply. This means that the Court will be obliged to recognise and enforce orders of a foreign court depriving an individual of his liberty in circumstances in which it would not able to do so under the domestic jurisdiction under the MCA on the grounds that the individual is being treated or is treatable under the MHA as defined in Schedule 1A of the MCA. Once again, however, this is subject, however, to its discretion to refuse recognition and enforcement where that would be manifestly contrary to public policy (paragraph 98);
  3. The “conditions of implementation” provided for in paragraph 12 of Schedule 3 (which are governed by English law), are that the requirements of the ECHR are met, in particular the Winterwerp criteria and reviews of sufficient regularity to satisfy Article 5(4) (paragraph 102);
  4. Most such orders presented for recognition are likely to be of short duration, and/or in respect of persons whose capacity may fluctuate, and/or who are in receipt of a progressive form of treatment. As a result, in such cases there is likely to be repeated requests to scrutinise a succession of orders. Recognition and enforcement is likely to require close co-operation, not only between the medical and social care authorities of the two countries, but also between the Courts and legal systems. The Convention provides a mechanism using the Central Authorities but, pending ratification of the Convention, there may well be the need for direct communication between judges of the two jurisdictions (paragraph 93).

On the facts of the cases before him, Baker J considered that (1) each of the individuals: was an “adult” within the meaning of Schedule 3; (2) that each was habitually resident in the Republic of Ireland; (3) in each case that the individual was given a proper opportunity to be heard for the purposes of paragraph 19(3)(b); (4)  that in each case the individual satisfies the criteria for detention under Article 5(1)(e), namely the Winterwerp criteria; (4) that the orders of the Irish Court demonstrate that each will be afforded a regular right of review of his or her detention so as to comply with the ongoing requirements of Article 5(4); (5) that as a result recognising and enforcing the orders will not contravene the ECHR; (6) that the measures in each case are not inconsistent with any other mandatory provision of the law of England and Wales; and (7) that the measures cannot be said to be manifestly contrary to public policy.  Baker J therefore made orders providing that protective measures in the Irish orders were to be recognised in England and Wales and enforced in this jurisdiction.

Baker J also used the opportunity:

  1. To express the hope that the Court of Protection Rules will in due course be amended to incorporate comprehensive rules to support Schedule 3 as soon as possible, including rules as to allocation of applications under the Schedule.
  2. To provide that, pending the introduction of such rules, any application under Schedule 3 at this stage should be listed for a full High Court Judge in the first instance, and thereafter, all further hearings in connection with that application, and any further applications under the Schedule in respect of the same individual, should be listed before the same judge (if available) unless expressly released by him or her to another judge.
  3. To note that one issue that requires clarification by the ad hoc Rules Committee is whether a litigation friend should be appointed in cases such as those before him.   Baker J expressed the preliminary view that a litigation friend should be appointed to act for individuals who are the subject of applications for recognition and enforcement under Schedule 3 (unless, of course, that individual has capacity to conduct proceedings applying the provisions of the MCA).

Comment

Although these cases are unusual, the analysis by Baker J of Schedule 3 has ramifications going far beyond the context of compulsory placements for psychiatric treatment.   Of particular importance for practitioners are the following points.

First, the confirmation that – as in cases involving children under Brussels and Hague instruments – when we come to consider cross-border cases involving recognition and enforcement of measures taken in relation to adults with impairments, the English courts are operating in a very different sphere to purely domestic cases.    In the context of recognition and enforcement, the Court of Protection:

  1. Will not be applying the test of capacity contained in s.2(1) MCA 2005 (save in considering whether the adult has litigation capacity); and
  2.  Will not be applying the best interests test contained in s.1(5) and s.4 MCA 2005 (save in relation to implementation of the measures). In other words, the Court of Protection, and those appearing before it, has mentally to undertake a very significant gear shift in such cases.   Such a gear shift is one that many family practitioners and judges still find difficult in relation to cross-border cases involving children; it will perhaps be even more difficult in relation to adults where we are still taking baby steps in the identification of common themes and common practices across borders (and where we have yet in England and Wales to ratify the Convention…).

Second, the confirmation that the ability of the Court of Protection to refuse to recognise and declare enforceable foreign protective measures is very limited.

Third, the confirmation that, for purposes of applications for recognition and enforcement, the Court of Protection is effectively bound by the decisions of the foreign court as to the habitual residence of the individual.

Finally, the confirmation that, by passing Schedule 3 in the form that it did, Parliament opened the door to applications for recognition and enforcement to be made from any country in the world, with no ‘filter’ specific to non-Convention countries (save for the limited filter in relation to cross-border placements between Convention countries in paragraphs 19(4) and 26 which will only become relevant when the Convention in ratified in respect of England and Wales).

Cross-border matters are now part of the daily reality of very many practitioners (not least because, for these purposes, Scotland is a foreign country…).    Cases with a cross-border element will, we predict, come before the Court of Protection with ever more frequency.   And, in due course, I anticipate that much the same will be said in relation to the Convention and to such cases as has been said by Sir James Munby P in relation to the earlier Hague Conventions applicable to children and their European counterparts:

“They have exposed us, often if only in translation, to what our judicial colleagues in other jurisdictions are doing in a wide range of family cases. They have taught us the sins of insularity. They have taught us that there are other equally effective ways of doing things which once upon a time we assumed could only be done as we were accustomed to doing them. They have taught us that, beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and applying the same insights and approaches as those we are familiar with. Most important of all they have taught that we can, as we must, both respect and trust our judicial colleagues abroad.” Re E (A Child) [2014] EWHC 6 (Fam)

All this, of course, suggests that everyone should:

  1. Rush out and purchase The International Protection of Adults, the only work which seeks to map out both the Convention and the frameworks for decision-making in relation to those with impairments in core jurisdictions around the world; and
  2. Identify to my co-editors and I any jurisdictions which should be included and volunteer to produce the necessary information for a chapter to be included in the next edition.

New all-singing all-dancing directions order for welfare proceedings (and other delights)

As some will have already discovered, the COP Handbook website includes a suite of (free) precedent orders.   We have recently updated a number of the precedent orders for welfare proceedings in light of case-law such as Re MN, and also taken the opportunity to add a new single ‘short order’ for authority to convey a person (for instance from home to a care home) in circumstances amounting to a deprivation of liberty.   Comments very welcome!   Alex and Sophy acknowledge with gratitude suggestions from Neil Allen, Tor Butler-Cole and Emma Stacey on these further iterations.

The Court of Protection comes of age

In the Matter of MN (Adult) [2015] EWCA Civ 411 (Court of Appeal (Sir James Munby P, Treacy and Gloster LJJ))

Summary

 As Sir James Munby P, giving the lead judgment of the Court of Appeal noted, this appeal “raise[d] fundamental questions as to the nature of the Court of Protection’s jurisdiction and, in particular, the approach it should adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient or, as here, by the patient’s family.”  The Court of Appeal also took the opportunity to give guidance as to conduct of welfare proceedings before the Court of Protection and to clarify when decisions, rather than declarations, should be sought.

The appeal was brought, separately, by both parents of a young man, MN, against the judgment of Eleanor King J (as she then was) [2013] EWHC 3859 (COP).    In very brief summary, at the final hearing of an application for declarations as to where a young man should live (and receive education and care), and for regulation of his contact with his parents and other family members, the relevant funding body, ACCG, had made it clear that it was not prepared to fund contact between P and his family at the parents’ home.  ACCG therefore submitted that this was not an option for the Court to consider when making best interests decisions; Counsel for the parents submitted that the Court should embark upon a trial in relation to home contact (and to the delivery of personal care by the man’s mother).   The jurisdictional issue to which this gave rise – i.e. as to the precise scope of the Court of Protection’s powers – arose very late in the day, but it having been fully argued, Eleanor King J  gave a full judgment upon the point.   Eleanor King J held that the Court of Protection was – in essence – bound to choose between the options that were actually available.

The scope of the Court’s jurisdiction

 After a characteristically thorough review of the authorities, Sir James Munby P had no hesitation in concluding that Eleanor King J was correct essentially for the reasons that she had given:

 “80. The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself. The A v Liverpool principle [[1982] AC 363] applies as much to the Court of Protection as it applies to the family court or the Family Division. The analyses in A v A Health Authority and in Holmes-Moorhouse likewise apply as much in the Court of Protection as in the family court or the Family Division. The Court of Protection is thus confined to choosing between available options, including those which there is good reason to believe will be forthcoming in the foreseeable future.

81. The Court of Protection, like the family court and the Family Division, can explore the care plan being put forward by a public authority and, where appropriate, require the authority to go away and think again. Rigorous probing, searching questions and persuasion are permissible; pressure is not. And in the final analysis the Court of Protection cannot compel a public authority to agree to a care plan which the authority is unwilling to implement. I agree with the point Eleanor King J made in her judgment (para 57):

‘In my judgment, such discussions and judicial encouragement for flexibility and negotiation in respect of a care package are actively to be encouraged. Such negotiations are however a far cry from the court embarking on a ‘best interests’ trial with a view to determining whether or not an option which has been said by care provider (in the exercise of their statutory duties) not to be available, is nevertheless in the patient’s best interest.’”

The President identified four reasons why the Court of Protection should not embark upon hypothetical examinations of where an individual’s best interests lie:

  1. It is not the proper function of the Court of Protection to embark upon a factual inquiry into some abstract issue the answer to which cannot affect the outcome of the proceedings before it;
  2. It is not a proper function of the Court of Protection (nor of the family court of the Family Division) to embark upon a factual inquiry designed to create a platform or springboard for possible future proceedings in the Administrative Court.
  3. Such an exercise runs the risk of confusing the very different perspectives and principles which govern the exercise by the Court of Protection of its functions and those which govern the exercise by the public authority of its functions – and, in consequence, the very different issues which arise for determination in the Court of Protection in contrast to those which arise for determination in the Administrative Court.
  4. Such an exercise runs the risk of exposing the public authority to impermissible pressure. The President noted that Eleanor King J had rightly identified at paragraph 59 of her judgment the need to:

“avoid a situation arising where the already vastly overstretched Court of Protection would be routinely asked to make hypothetical decisions in relation to ‘best interests’, with the consequence that CCGs are driven to fund such packages or be faced with the threat of expensive and lengthy judicial review proceedings.”

Sir James Munby noted that the present case illustrated the point to perfection: “The present case, it might be thought, illustrates the point to perfection. The proposal was that the judge should spend three days, poring over more than 2,000 of pages of evidence, to come to a ‘best interests’ interest on an abstract question, and all for what?”

Human Rights

A separate issue on the appeal was as to whether the Court of Protection had jurisdiction to determine claims raising issues under the HRA 1998 and (if so) how it should proceed to determine such claims where they were pleaded during the currency of ‘substantive’ proceedings.   Sir James Munby agreed with the approach adopted by Eleanor King J, holding (at paragraph 85) that “the decision of the Court of Appeal in Re V is clear authority for the proposition that the Court of Protection (which in this respect can be in no worse position than the family court or the Family Division) has jurisdiction to determine a human rights claim brought under section 7 of the Human Rights Act 1998.”   Sir James Munby agreed with Eleanor King J that such a claim must be clearly identified and properly pleaded.    He emphasised, however, that nothing in Re V had cast doubt upon the proposition that the HRA 1998 had not collapsed the fundamental distinction between public law and private law.  As he had stated previously in R (Anton) v Secretary of State for the Home Department [2004] EWHC 2730/2731 (Admin/Fam): “[a] case which, properly analysed, is a public law case is not transformed into something different merely because Convention rights are relied upon.”

Practice and procedure: when should declarations be used?

As the President noted, there had been a certain amount of debate during the course of oral argument as to the use of declaratory orders in the Court of Protection.  Whilst he noted that this was not the occasion for any definitive pronouncement, he made three observations:

  1. The “still inveterate use of orders in the form of declaratory relief might be thought to be in significant part both anachronistic and inappropriate.” This use originated at a time when, following the decision of the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, it was believed that the inherent jurisdiction of the Family Division in relation to incapacitated adults was confined to a jurisdiction to declare something either lawful or unlawful.  This had already been shown to be unduly narrow before the MCA 2005 had come into force, and the Court of Protection has, in addition to the declaratory jurisdiction referred to in section 15 of the 2005 Act, the more extensive powers conferred by section 16.
  2. The CoP is a creature of statute, and s.15 MCA 2005 is very precise as to the power of the Court of Protection to grant declarations.  Given these very precise terms, the President noted, “it is not at all clear that the general powers conferred on the Court of Protection by section 47(1) of the 2005 Act extend to the granting of declarations in a form not provided for by section 15. Indeed, the better view is that probably they do not: consider XCC v AA and others [2012] EWHC 2183 (COP), [2012] COPLR 730, para 48.” Further, as the President emphasised: “it is to be noted that section 15(1)(c) does not confer any general power to make bare declarations as to best interests; it is very precise in defining the power in terms of declarations as to ‘lawfulness’. The distinction is important: see the analysis in St Helens Borough Council v PE [2006] EWHC 3460 (Fam), [2007] 1 FLR 1115, paras 11-18.”
  3. A declaration has no coercive effect and cannot be enforced by committal: see A v A Health Authority, paras 118-128 and, most recently, MASM v MMAM and others [2015] EWCOP 3. All in all, the President concluded,

“91.. . it might be thought that, unless the desired order clearly falls within the ambit of section 15, orders are better framed in terms of relief under section 16 and that, if non-compliance or interference with the arrangements put in place by the Court of Protection is thought to be a risk, that risk should be met by extracting appropriate undertakings or, if suitable undertakings are not forthcoming, granting an injunction.” 

Practice and procedure: identification of issues

The President reiterated the importance of the need identified by Charles J in A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166, paras 31-33, to identify, flag up and address, well before a personal welfare case comes on for hearing in the Court of Protection, (i) any jurisdictional issues and the legal arguments relating to them and, more generally, (ii) the issues, the nature of each party’s case, the facts that need to be established and the evidence to be given.    This identification had not taken place until a very late stage before Eleanor King and, as he noted “[s]teps need to be taken to ensure, as best can be, that there is no repetition of this kind of problem.”

This led on to wider observations by the President as to the conduct of welfare proceedings before the Court of Protection:

  1. Whilst he was “very conscious” that one must not push too far the analogy between personal welfare proceedings in the Court of Protection and care proceedings in the family court, the President noted that they do share a number of common forensic characteristics. “Even allowing for the fact – not that it arose in this particular case – that cases in the Court of Protection may involve disputes about capacity which, in the nature of things, do not feature in care cases, there is a striking contrast between the time some personal welfare cases in the Court of Protection take to reach finality and the six-month time limit applicable in care proceedings by virtue of section 32(1)(a)(ii) of the 1989 Act. The present case, it might be thought, is a bad example of what I fear is still an all-too prevalent problem.”
  2. The delays in the instant case, the President held, were not caused by any one party nor by any one factor. “The truth is that this case, like too many other ‘heavy’ personal welfare cases in the Court of Protection, demonstrates systemic failures which have contributed to a culture in which unacceptable delay is far too readily tolerated.”The President emphasised the nature of the “cultural revolution” that had taken place in the family court with the introduction of the Public Law Outline; he considered (and noted that others had also noted in judgments), that the Court of Protection needed to learn from this, stressing in particular (1) the harm that can be caused by the search for an ideal solution, leading to decent but imperfect solutions being rejected; and (2) the need to concentrate on the issues that really need to be resolved, rather than every conceivable legal or factual issue.   He therefore endorsed the call made by Peter Jackson J in Re A and B (Court of Protection: Delay and Costs) [2014] EWCOP 48 for the same disciplines to be introduced into the CoP as now apply in the family court, noting in this regard the work of the ad hoc Court of Protection Rules Committee;
  3. The President deprecated in particular the quantity of material before the court, noting that he confessed to being surprised “and that is a pretty anaemic word” upon learning that the evidence ran to 2,029 pages of evidence. He noted that it might be thought that PD13B should be amended to bring it into line with PD27A in the Family Court, providing that the bundle must not exceed one lever arch containing no more than 350 pages unless a larger bundle has been specifically authorised by a judge.
  4. Finally, the President considered that “early consideration needs to be given” to the amendment of COPR r.121 to bring into line with s.13(6) Children and Families Act 2014, so as to limit expert evidence to that “necessary to assist the court to resolve the proceedings justly.”

Comment

Jurisdiction

In many ways, the judgment of the President (with whom Treacy and Gloster LJJ agreed) as to the jurisdiction of the Court of Protection should have come as no surprise, reflecting as it did the application of a long line of authorities (dating back over 25 years).  However, this does not diminish its importance or the clarity of mind that it then requires all those concerned with the MCA 2005 to bring to decision-making in relation to those who lack capacity in one or more domains related to their care arrangements.    Indeed, the judgment is perhaps as if not more important for those concerned with the MCA outside the court arena, reinforcing as it does the need always to be clear what decision is being taken in relation to a person who may lack capacity in one or more domains:

  1. There are some decisions where the person’s decision-making capacity is irrelevant. A stark example is the decision of a doctor not to offer a particular treatment to a person because they consider it is futile.   This decision does not depend upon the person’s ability to consent or refuse it.   Even if they demanded it they could not compel the doctor to provide it: see Aintree v James;
  2. There are some decisions where the person’s capacity is vitally important and, if they lack the capacity, a best interests decision must be taken on their behalf.   For instance, a decision must be taken about whether a person should go into care home A or care home B, either of which is available.   They cannot decide and a decision must be taken on their behalf;
  3. Most decisions regarding care and treatment are taken informally in reliance upon s.5 MCA 2005.   This provides a defence to liability in respect of acts in connection with care or treatment where the person or body carrying out the care or treatment reasonably believes that the person lacks the capacity to take the decision and the steps taken are in their best interests; This was emphasised by Baker in G v E [2010] EWCOP 2512: “the vast majority of decisions are taken informally and collaboratively by individuals or groups of people consulting and working together;”
  4. But it is vitally important to remember that the MCA 2005 only provides that a best interests decision is taken where the individual would take or participate in the taking of a decision;
  5. This means that not all decisions taken by a public body about care provision – i.e. how to meet the assessed needs of the individual – are best interests decisions. As Nicholas Paines QC the Deputy Judge said in R (Chatting) v (1) Viridian Housing (2) London Borough of Wandsworth [2012] EWHC 3595 (Admin) “the fact that Miss Chatting is mentally incapacitated does not import the test of ‘what is in her best interests?’ as the yardstick by which all care decisions are to be made” (a passage specifically endorsed by Sir James Munby P in ACCG);
  6. That does not mean that such decisions are not to be taken without reference to the individual’s welfare or their views, but they are decisions which are, ultimately, decisions that are taken by the public bodies in discharge of their public law obligations, not decisions taken on behalf of the individual in question. They are therefore not best interests decisions, and (1) any meetings which are convened to discuss them should not be labelled best interests meetings; and (2) any challenge to them lies not in the Court of Protection but in the Administrative Court.

None of the points set out above are – or should be – surprising, but in and out of the court arena we do continue to find that confusion creeps in, leading – where it is not checked – both to (inadvertently) misleading conversations with families and in some cases to expensive and misguided legislation.   One particular area that we find where this happens with considerable regularity is in relation to discharge planning from hospital: it is absolutely vital that the relevant statutory bodies are clear with themselves in advance of any meeting with the patient/family members precisely which options are on the table, and which (in proper discharge of their public law functions) they are not prepared to fund.

It is perhaps helpful by analogy to have in mind the One Chance to Get It Right guidance on care-planning at the end of life and the very clear distinctions drawn there between several types of conversations that clinicians may have.   In other words, is the conversation that the public body employee would wish to have with the person whose capacity is in issue a conversation to:

  1. Inform them about a decision;
  2. Consult them about a decision;
  3. Involve them about a decision; or
  4. Seek that they take that decision?

The first type of conversation can never lead to a best interests decision being taken where P lacks the capacity formally to engage in it; the second may not, even the third may (in some circumstances), and it is only in respect of the fourth type of conversation that it will be clear that a best interests decision will be made.    Put another way, it is only if the decision-maker is standing in the shoes of P that we can properly say that a best interests decision is being made.

Importantly, if a public body brings a matter to the Court of Protection for determination as to where an individual’s best interests lie, then it lies in the court’s power to direct the public body to file evidence (including care plans), even though the plan’s contents may not or do not reflect its formal position, “for it is not for the local authority (or indeed any other party) to decide whether it is going to restrict or limit the evidence that it presents: see Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 2 FLR 431” (ACCG at paragraph 37).   The analogy between child care proceedings and welfare proceedings will be further strengthened in this regard come 1st July 2015, when Rule 87A comes into effect, requiring the permission of the court before proceedings may be withdrawn.   In other words, there will be times when public authorities either may or must seek the assistance of the Court of Protection in discharging their obligations towards those for whom they have responsibility; when they do – and for forensically similar reasons to those which apply in relation to child care proceedings – they must work in partnership with the court.

Decisions/declarations

As a significant amount of the debate before the Court of Appeal as regards the proper place to use decisions involved Alex, it is perhaps not entirely surprising that he entirely endorses the observations of the President!   More seriously, it is perhaps obvious when we raise our heads above the parapets (1) that is appropriate to make clear when the CoP is deciding on behalf of an individual as to a matter that they cannot determine because they lack capacity so to do; and (2) the easiest way for the Court to do this is for the Court simply say that it is by making an order under s.16(2)(a).   A side-benefit of this is that this makes it considerably easier to identify when it is, in fact, a decision that the individual can take, and hence – hopefully – avoiding the elephant traps into which those concerned fell in ACCG.

Case management

The President’s observations as to case management are noteworthy primarily for their trenchancy – they are otherwise entirely consistent with a rising drum-beat of judicial observations that the time has come to get the Court under control.    Precisely how this is to be done is a matter that will be exercising the ad hoc Rules Committee significantly over the coming few months.

New Practice Directions out now!

The Practice Directions supporting the new Court of Protection Rules have been published now.  You can read them here.

The following are in force now:

PD3A- authorised court officers

PD3B- levels of judiciary

PD11A- Human Rights

PD12A-Jurisdiction to be exercised by certain judges

PD 20A-appeals

PD21A- allocation of appeals

The remainder will come into effect on 1st July 2015.

Practitioners’ attention is drawn in particular to the following:

PD 2A– supporting new Rule 3A (participation of P), and setting out the approach the court may take in deciding whether to appoint a Rule 3A representative.  Paragraph 11 describes the factors which the court will consider when deciding how P’s interests will best be furthered.  These will include for example where expert evidence is needed on P’s behalf which might be a trigger to joining P and appointing a litigation friend). Paragraph 12 makes suggestions as to who might properly be appointed a representative for P where P is not joined- for example a family member, friend, IMCA or Care Act advocate).

PD 3B- explaining the new “tiering” of judges.

PD3C- application of the CPR or FPR where there is a lacuna.

PD13A.  Rule 91(2A) now allows communication of information in accordance with Rule 13A, subject to a direction of the court.  Paragraphs 34 onwards set out the criteria for such communications, and for what purpose communication can be made.

PD19A– Costs.

COPR: what do the new rules actually do (and mean)?

In part because the Court of Protection Amendment Rules are written in typically impenetrable statutory instrument style, and in part to give commentary to explain more as to the reasoning behind them, you can find here an unofficial consolidation of the Rules as they will be from 1st July 2015 with the changes incorporated, and here a version of the consolidated Rules with unofficial explanatory notes prepared by Alex.   We will be providing further updates in due course specifically tied to the relevant paragraphs in the book, and will also publish the new/amended Practice Directions when they become available.

All change at the COP (part 1)

The Court of Protection (Amendment) Rules 2015 were laid before Parliament on 9th March. Unless (which is very unlikely) the negative resolution procedure is invoked, the first part of the rules come into force in part on 6th April and the second, larger, part on 1st July.

They represent the first tranche of rule changes that will bring about the most fundamental reform of the Court’s processes since it came into being in 2007, reflecting the experiences of the first seven years of its life.

We will be covering the rule changes in more detail in due course and highlighting here precisely how they impact upon the current rules, as well as covering the suite of amendments to the accompanying Practice Directions.

This post serves as an overview.

The most important rule change – and the rule that we think it is proper to say most exercised the brain cells of the members of the ad hoc Rule Committee (including Alex and Sophy) – is the new Rule 3A, coming into force on 1st July 2015.   This rule fundamentally refocuses the approach of the Court of Protection to the participation of P.   It requires in each case the Court to consider, either on its own initiative or on the application of any person, consider whether it should make one or more of one of a ‘menu’ of directions relating to P’s participation.   That menu includes:

  1. P being a party;
  2. P’s participation being secured by the appointment of a representative whose primary function is to give P a ‘voice’ by relaying information as to P’s wishes and feelings;
  3. Specific provision for P to address (directly or indirectly) the judge determining the application; or
  4. No direction or an alternative direction (meeting the overriding objective) if P’s interests and position can properly be secured.

Equally importantly, assuming that the necessary steps are taken to enable this to happen by way of the creation of a panel of such representatives, Rule 3A provides that a direction may be made appointing an accredited legal representative (‘ALR’) to represent P. This can be done whether or not P is a party; importantly, if P is a party, then an ALR may be appointed without a litigation friend being appointed to act for P.   This innovation, drawn from Rule 11(7) of the Mental Health Tribunal Rules, is designed to supplement, not supplant, the role of litigation friends; the intention (as spelled out in the accompanying Practice Direction, 2A) is that ALRs can provide assistance where urgent orders are required and it is not possible to appoint a litigation friend.   They may also play an important role in ‘narrow’ applications such as applications under s.21A MCA 2005, thereby allowing the resources of litigation friends – whether the OS or otherwise – to be reserved for more complex cases where, for instance, expert evidence will be required.

Other important rule changes include (this summary being drawn in part from the Explanatory Note):

  • Amending rule 4 to reinforce the duty of the parties to co-operate so as to further the overriding objective of dealing with cases justly having regard to the principles in the MCA 2005, and making express that a failure to cooperate (and to be full and frank in the disclosure of information and evidence to the court) can sound in costs.   This is a precursor to what we anticipate will be more detailed consideration to be given in the second tranche of rules to the question of how case management in the COP can be reinforced as to ensure that limited public monies and judicial time are deployed in a way properly calibrated to the nature of the issues at stake (i.e. picking up concerns voiced by Peter Jackson J in Re A and B (Costs and Delay) [2015] EWCOP 48).
  • Substituting a new Rule 9, which allows for the COP – in the case of a lacuna – to choose whether rules contained in the CPR or the FPR most appropriately fit the problem to be addressed. There is also provision to enable the version of the CPR or FPR to be applied to be specified – thereby getting round the problem which at exists at present in light of the mismatch between the CPR post-Jackson and the COPR as regards costs provisions;
  • Making amendments to Parts 8, 9 and 12 to remove the need for a separate application where permission is required, removing the requirement for permission in certain cases (most obviously Re X type applications where authority is sought by way of an order under s.16(2)(a) MCA 2005 to deprive a person of their liberty), and making it easier for the requirement for permission to be removed in other cases;
  • Introducing a requirement (in Rule 87A) that permission is required to withdraw proceedings (mirroring the provision in FPR r.29.4(2));
  • In Part 12 (dealing with applications), making amendments in relation to allocation of types of cases to levels of judge, reflecting the introduction of Tier 1, Tier 2 and Tier 3 categories of judge following widening of the pool of judges who may be judges of the Court of Protection by virtue of changes made by the Crime and Courts Act 2013;
  • In Part 13 (hearings), making amendments to allow communication of information about proceedings to third parties for specified purposes (for example, research), and for the court to be able to do this on its own initiative.   There is also an important amendment to Rule 95 clarifying that the court can admit, accept and act upon such information, whether oral or written, from P, any protected party or any person who lacks competence to give evidence, as the court considers sufficient, although not given on oath and whether or not it would be admissible in a court of law apart from this rule. This amendment picks up – belatedly – the decision of McFarlane J (as he then was) in Enfield LBC v SA [2010] EWHC 196 (Admin) and the ‘work around’ he gave there as to the admissibility of evidence from P.
  • Replacing Part 17, with details of how litigation friends and ‘Rule 3A’ representatives are to be appointed and how their appointment is to be brought to an end. It should be noted here that the new rule 144 ends the anomaly in the rules that existed previously that required P, in essence, to prove that they had litigation capacity: all P has to do now is to make an application
  • in Part 19 (costs), making amendments to ensure that where provisions of the Civil Procedure Rules are incorporated by reference, they do not include the Jackson reforms insofar as they relate (e.g.) to costs budgeting;
  • in Part 20 (appeals), which will come into force on 6th April, making provision for appeals within the Court of Protection between the different tiers of judge, and revised provision about appeals to the Court of Appeal; and
  • in Part 21 (enforcement), making amendments to ensure that where provisions of the Civil Procedure Rules are incorporated by reference, they are the provisions following recent amendment.

New forms are in train to pick up these changes, and we will provide updates as and when we can.

The ad hoc Committee very deliberately did not seek in this tranche to tackle some of the other thorny questions that face the Court, for instance relating to transparency, expert evidence and the extent to which a regime akin to the Public Law Outline should be imported.   This first tranche, however, will start the Court of Protection on a new trajectory that is, we believe, orientated more clearly around P.

Who decides as to death?

In an unusual and tragic case, Re A (A Child) [2015] EWHC 443 (Fam), brought by an NHS Trust seeking declarations as the fact that a child was brain dead and that the ventilator providing them with life support could be turned off, Hayden J has confirmed what should happen where there is doubt as to whether brain steam death has occurred in a child.  Although a Coroner has concurrent jurisdiction and the High Court has jurisdiction over a body, Hayden J referred with approval to the passage in Jervis on Coroners (13th Edition) at paragraph 5-14, which provides that:

“The coroner may also be faced with the difficult task of deciding whether a body in his area is actually dead, for instance when it is connected to a life support machine in an irreversible coma… it appears that once a person has suffered brain stem death which no medical treatment is able to reverse, the person is ‘dead’ for the purposes of the coroner acquiring jurisdiction even whilst a machine ventilates the body.”

Hayden J continued:

“21. […] That proposition is said to be supported by Mail Newspapers v Express Newspapers [1987] FSR 90; Airedale NHS Trust v Bland [1993] AC 789. The footnote also refers to Thurston’s Coronership: 3rd Edition 1985, which sets out the view that I have just recorded but also the opposing one, that while the heart beats and the blood circulates, there is no “dead” body i.e. for the purposes of establishing the Coroner’s jurisdiction. I note that the distinguished authors also make the following observation which, in tone, seems to imply that they regard it as self evident:

‘Of course, in practice no Coroner would insist on taking possession of the body were it was still connected to a life support system.’

 22.  I associate myself entirely with those observations. I cannot conceive of any circumstances in which the Coroner should seek to intervene, where a body remains ventilated, beyond those circumstances concerning the removal of organs where the family are consenting. Any other approach I regard as likely to generate immense distress and contribute to an atmosphere where sound judgment may be jeopardised.”

Exactly the same propositions must hold true in relation to adults and, as with a child, the proper forum for resolution of the questions that follow upon brain death must be the Court (in that case, the Court of Protection).

[A version of this note appeared in the March 2015 39 Essex Chambers Mental Capacity Law Newsletter]

What place morality (as compared to forensic rigour)?

Summary

In In the matter of A (A Child) [2015] EWFC 11 (Family Court (Sir James Munby P)), the President of the Family Division, Sir James Munby P, was extremely critical of the local authority’s analysis, handling of the case and conduct of the litigation in what he described it as “an object lesson, in almost a textbook example of, how not to embark upon and pursue a care case.”

This case concerned an application for a care order and placement order.  The child in question had been born while his mother was serving a prison sentence. He was accommodated in local authority foster care and the care application was not issued until some 8 months after his birth.

As well as proceeding on assumptions with no evidential basis, the local authority made repeated reference to the “immoral” nature of the father’s behaviour. The father’s immoral behaviour included having had sex with a 13 year old girl when he was 17 years old, and being a former member of the English Defence League (EDL).  Sir James Munby P made clear that the “morality” of the father’s character was neither appropriate nor relevant and that these aspects should never have featured as part of the local authority’s case. He was also at pains to emphasise that it was for the local authority to prove, on a balance of probabilities, the fact upon which it seeks to rely.

Comment

Although not a COP case, COP practitioners should take note of the President’s warning that:

“…the father may not be the best of parents, he may be a less than suitable role model, but that is not enough to justify a care order let alone adoption. We must guard against the risk of social engineering, and that, in my judgment is what, in truth, I would be doing if I was to remove A permanently from his father’s care.”

The same concerns hold true in cases relating to adults particularly where there are safeguarding concerns.

The tone of Sir James Munby P’s approach also chimes with the key principles governing the MCA.  One principle is that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. The fact that others, including the court, think that a decision is unwise or unsavoury, is an insufficient basis upon which to displace their decision. Another principle is that the best interests requirement should take into account the particular wishes and feelings of the incapacitated person, again, even where others, or the court, would not necessarily agree.

[A version of this note appeared in the March 2015 39 Essex Chambers Mental Capacity Law Newsletter]

When does the court need an expert to assist as to veracity?

Summary

in Wigan Council v M, C, P, GM, G, B and CC [2015] EWFC 8, Peter Jackson had to consider whether expert evidence was required in family proceedings in relation to (1) the capacity of a witness to give evidence and (2) the witness’s veracity.  As materially similar principles apply by analogy in COP proceedings, the conclusions reached by Peter Jackson J are equally applicable to judges of and practitioners appearing in that court.

Two children, aged 15 and 16, alleged that they had been sexually abused by their stepfather. At a case management hearing, the stepfather applied for a ‘veracity assessment’ and an assessment of the children’s ability to give evidence. The application was supported by the other parties and granted by the court.

An experienced clinical psychologist with special experience in the analysis of forensic interviews was instructed. The expert concluded that there was nothing in what the children said that required the interpretation of an expert. The children were articulate teenagers who were capable of giving evidence.

Peter Jackson J, whilst acknowledging that an assessment of capacity to give evidence, and the arrangements that should be made to assist a witness to do so fairly is a proper subject for expert advice where necessary, it is not necessary in every case. He identified three principles:

  1. As a matter of law, there is no bar on the admission of expert evidence about whether evidence is or is not likely to be true.
  2. Expert evidence can only be adduced if it is necessary to assist the court to resolve the proceedings. The fact that expert evidence is admissible and might be relevant or even helpful in a general way is not enough.
  3. Cases in which it will be necessary to seek expert evidence will nowadays be rare. Judges have been trained in and are expected to be familiar with the assessment of evidence. The court is only likely to be persuaded that it needs expert advice if it concludes that its ability to interpret the evidence might otherwise be inadequate.

Peter Jackson J also expressly agreed with what was said by Baker J in A London Borough Council v K [2009] EWHC 850 (Fam) that veracity or validity assessments have a limited role to play in family proceedings. The ultimate judge of veracity, i.e. where the truth lies, is the judge and the judge alone.

Comment

In the COP, as in the Family Court, an expert may give evidence on questions going to factual matters, such as the veracity or truthfulness of a witness but the final decision upon those matters remains for the judge. Indeed, the ultimate questions of whether P has capacity and what is in their best interests are matters for the court.

The equivalent to Part 25 of the Family Procedure Rules 2010 is COPR Part 15 accompanied by PD 15A. Pursuant to rule 121, the COP is under a specific duty to limit expert evidence to that which is “reasonably required” to resolve the proceedings. This is in contrast to s.13(6) Children and Families Act 2014, which dictates that expert evidence can only be adduced if it is necessary to assist the court to resolve the proceedings justly.  It is likely that this this change will be introduced in due course in the COP.  It would therefore be wise for COP practitioners to take heed of the three principles identified by Peter Jackson J when considering whether to seek to adduce expert evidence going to veracity.   Indeed, it is only like ever to be required where there are real doubts (for instance) as to whether a person has the mental capacity to understand the import of what they saying.  An example from the experience of the editors where this has arisen is where a person with a severe learning disability placed in a care home made allegations of sexual abuse but where there were doubts as to whether the words that they are using reflected their own experience or words that they had picked up from contact with other service users or from the media.   In that case, the assistance of an expert psychologist was undoubtedly necessary, but these cases are likely to be rare.

[A version of this note appeared in the March 2015 39 Essex Chambers Mental Capacity Law Newsletter]

Extreme Product Champions and their effect on P

In a decision from October 2014 which was only very recently placed on Bailii (and which we are very grateful for to Caroline Hurst of Switalskis for bringing to our attention), District Judge Mainwaring-Taylor made a heartfelt plea to an ‘extreme product champion’ to reflect upon the consequences of his actions.  In Re MW [2014] EWCOP B27, proceedings concerning an elderly lady, MW, had been concluded with a decision that she should continue living in a care home rather than being cared for by her son at home.   A significant factor in that decision had been the fact that he had taken, and posted on a private section of YouTube, a video of his mother in an extremely distressed state at home.

Some two years later, the matter came back to court, it appears because of the son’s continued conduct and – in particular his continued practice of videoing.    In a description that may ring bells, District Judge Mainwaring-Taylor noted that “[Mr W] is entirely convinced that in all the circumstances he is always right and he produces what he says are justifications.  Unfortunately, Mr W’s justifications really centre on his needs, rather than on his mother’s needs. I quite accept and believe that Mr W is entirely genuine in thinking and having a perception that what he is doing and wants is in his mother’s best interests, but, sadly, that is simply not the case.”

In maintaining the status quo, namely that Mrs W should continue to reside in the care home, the judge made a plea that:

“Perhaps in his future dealings and thoughts, Mr W might think that, every time he does something which provokes the need for court proceedings, he is directly diminishing his mother’s resources. Because it always seems to get to the stage where the matter has to come before the court and, as soon as that happens, Mrs W needs representation; that representation has to be through the Official Solicitor and it has to be funded. As long as Mrs W has financial resources, it will be she who funds it, rather than the monies being there for her care and comfort.”

Comment

Cases such as this (and that of A Local Authority v M & Ors [2014] EWCOP 33 and Re A and B (Costs and Delay) [2014] EWCOP 48 will no doubt be considered carefully by the ad hoc Rules Committee when in due course in the course of their deliberations as to how to seek to enshrine into the Rules mechanisms to ensure that the resources of the court – and, significantly, the resources of privately paying Ps – are deployed proportionately.

[A version of this note appeared in the March 2015 39 Essex Chambers Mental Capacity Law Newsletter]