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Deputies, fixed costs, detailed assessment and net assets

In Penntrust Ltd v West Berkshire District Council & Anor [2020] EWCOP 48, HHJ Hilder has returned to the vexed question of Practice Direction 19B and fixed costs in the Court of Protection.  In its current iteration, PD19B provides that “where the net assets of P are below £16,000,” the option for detailed assessment of costs of the estate “will only arise if the court makes a specific order.”

The Applicant trust corporation was formerly appointed as property and affairs deputy for a woman called AH. At all times during the deputyship P’s liquid assets were less than £16,000 but her total assets, including a property in which she lived, were substantially higher. The deputyship order included authorisation to seek SCCO assessment but made no explicit reference to the size or nature of AH’s estate. The Applicant contended that it was entitled to rely on the authorisation in its deputyship order to seek SCCO assessment of its costs. In the event that the court did not agree, the Applicant sought retrospective authority to obtain SCCO assessment.  The Respondent local authority, which was now the property and affairs deputy, wanted to understand what debt AH had incurred; the Public Guardian sought no specific outcome, but to seek to assist the court.  Neither the local authority nor the Public Guardian sought a specific outcome in relation to the Applicant’s application.

Section 19(7) MCA provides that deputies are entitled (a) to be reimbursed out of P’s property for his reasonable expenses in discharging his functions, and (b) if the court so directs when appointing him, to remuneration out of P’s property for discharging them.  As Charles J identified in Re AR [2018] EWCOP 8, a decision as to remuneration is a “best interests” decision, to be determined by reference to the individual facts of a particular case.

The range of options for remuneration is set out in Rule 19.13, and amplified by a Practice Direction, PD19B.  There have been two versions (for present purposes): the old version which was effective between 1 February 2011 and 30 March 2017; and the version which has in effect since 1 April 2017.  The old version had a footnote explaining that “Net assets includes any land or property owned by P except where that land or property is occupied by P or one of P’s dependents;” the new version has no explanation.  There has been no guidance or explanation for the removal of the footnote.  Neither the versions before 2011 nor the pre-Mental Capacity Act equivalent had the footnote in.   Contrary to the arguments of the Public Guardian that the footnote definition should be carried over into the new version, Senior Judge Hilder held that the 2011-2017 version was an outlier at (paragraph 72) that:

the definition from the 2011-17 version of Practice Direction 19B does not somehow “carry over” into the current version from which it is omitted. The term “net assets” in the version of PD19B effective from 1st April 2017 falls to be interpreted according to the ordinary meaning of the phrase, as “total assets minus total liabilities.”

On the facts of the case, and in light of this interpretation, Senior Judge Hilder held that the Applicant was always authorised by the deputyship order to obtain SCCO assessment of its costs.

Going forwards, Senior Judge Hilder (at paragraph 86) held that:

to avoid the necessity for proceedings such as these, where a deputy is appointed in respect of a net estate worth – at the time of appointment – less than £16 000 (within the meaning current at the time of appointment) but with authority to seek SCCO assessment, the decision-maker (either judge or Authorised Court Officer) should make explicit reference to the nature of the estate and paragraph 12 of PD19B in the wording of the order (as has been the practice at the central registry for some time.) Additionally, the deputy should check the terms of the costs authorisation carefully on first receipt of the order. If it includes the option of SCCO assessment but does not expressly confirm that such authorisation applies even where the net estate is worth less than £16 000 for the purposes of paragraph 12 of Practice Direction 19B, the deputy should make a speedy COP9 application pursuant to Rule 13.4 of the Court of Protection Rules 2017 for reconsideration. Such an approach would be of minimal cost to P and would avoid future argument.

Professional Deputies: Hourly rates and the realities of 2020

In a judgment handed down on 30 September 2020, PLK & Ors (Court of Protection : Costs) [2020] EWHC B28, Master Whalan has considered the concerns the method of assessment of the hourly rates claimed by Deputies. The SCCO consolidated the assessments in four cases that chosen to represent the costs claimed by Deputies in different parts of England, in the management of the affairs of protected parties who had sustained significant brain or birth injuries.  The central submission of the deputies was that the court’s current approach, which, broadly speaking, relied on the application of the Guidelines Hourly Rates (‘GHR’) approved by the Costs Committee of the Civil Justice Council was, by 2020, incorrect and unjust.  Instead, they submitted, the assessment of COP work should be predicated on a more flexible exercise of the discretion conferred by CPR 44.3(3), whereby the GHR were utilised as merely a ‘starting point’ and not a ‘starting and end point’.

Master Whalan did not accept the primary argument of the applicants that COP firms had experienced

29. […] ‘a significant increase in hard and soft overheads’ (SA, 45).  The evidence, both in respect of time and expenditure, is inconsistent and, in my view, incomplete.  Nor am I persuaded by the submission made in the oral hearing that ‘it is clear that no other area of practice requires such a level of unrecoverable time’. So far as the datum is consistent and stable – and, as noted, the most reliable figures are probably those produced by Clarion – it suggests a comparatively modest incidence of time and expenditure.  However reliable the figures produced may be, they do not, in my view, demonstrate that the burden is one that is exclusive to COP work or that it is atypically high in comparison with that experienced by practitioners in comparable areas of practice.  Fee earners in personal injury, medical and professional negligence, for example, incur invariably time and expense that is irrecoverable, in marketing, accessing cases that are not proceeded with or, indeed, pursued and lost.  These are burdens which do not apply to Deputy’s sources of work (on a case by case basis) which is often consistent and predictable over many years.

However:

Three preliminary observations then inform my initial approach to the applicants’ secondary argument.  First, it should be emphasised from the outset that this court has no power to review or amend the GHR, either formally or informally, as this role is the exclusive preserve of the Civil Justice Council.  This reality is recognised properly by Mr Wilcock in his written and oral submissions.  Secondly, while the court has received submissions concerning the application of an inflationary uplift when applying the GHR, this is not just a ‘blunt tool’, but an approach which endorses the application of a practise which has been rejected explicitly since 2014, from which time the emphasis has been on a ‘comprehensive, evidence based review’.  Thirdly, however, it must be acknowledged that the GHR cannot be applied fairly as an index of reasonable remuneration unless these rates are subject to some form of periodic, upwards review.  O’Farrell J. in Ohpen (ibid) observed that it ‘is unsatisfactory that the guidelines are based on rates fixed in 2010’ as these ‘are not helpful in determining reasonable rates in 2019’. These observations were made in the context of an assessment of London City solicitor rates in an assessment where the court was not bound by the GHR.  It seems clear to me that the failure to review the GHR since 2010 constitutes an omission which is not simply regrettable but seriously problematic where the GHR form the ‘going rates’ applied on assessment.  I do not merely express some empathy for Deputies engaged in COP work, I recognise also the force in the submission that the failure to review the GHR since 2010 threatens the viability of work that is fundamental to the operation of the COP and the court system generally.

Against this backdrop, Master Whalan concluded that

35. I am satisfied that in 2020 the GHR cannot be applied reasonably or equitably without some form of monetary uplift that recognises the erosive effect of inflation and, no doubt, other commercial pressures since the last formal review in 2010.  I am conscious equally of the fact that I have no power to review or amend the GHR.  Accordingly my finding and, in turn, my direction to Costs Officers conducting COP assessments is that they should exercise some broad, pragmatic flexibility when applying the 2010 GHR to the hourly rates claimed.  If the hourly rates claimed fall within approximately 120% of the 2010 GHR, then they should be regarded as being prima facie reasonable.  Rates claimed above this level will be correspondingly unreasonable. To assist with the practical conduct of COP assessments, I produce a table below which demonstrates the effect of a 20% uplift of the 2010 GHR.  I stress again that I do not purport to revise the GHR, as this court has no power to do so; instead this is a practical attempt to assist Costs Officers and avoid unnecessary delay (caused by individual re-calculation) in a busy department conducting over 8000 COP assessments per annum.

Master Whalan indicated that

This approach can be adopted immediately and is applicable to all outstanding bills, regardless of whether the period is to 2018, 2019, 2020 or subsequently.  It goes without saying that this approach is subject ultimately to the recommendations of Mr Justice Stewart and his Hourly Rates Working Group and the Civil Justice Council. Ultimately the recommendations of the Working Group must be adopted in preference to my findings.

Subsequent to the decision, the Senior Costs Judge issued a Practice Note explaining some of the practical consequences.

Contempt, court orders and P’s confidentiality

In a very unusual case, P v Griffith [2020] EWCOP 46, the Court of Protection has sentenced a woman, a Ms Griffith, to 12 months imprisonment for forging a court order so as to obtain medical records in relation to P, her relation.   P was a 50 year old woman who resided at a specialist hospital on a long term care ward. She had been admitted to that hospital on 17 September 2018 having previously been at a different hospital from 28 May 2018. On 28 January 2018, P she had suffered a bilateral stroke which caused significant brain damage, with a diagnosis of a permanent disorder of consciousness of the type known as Minimally Conscious State Minus. 

Ms Griffith had been the applicant in proceedings before the Court of Protection, concerning a dispute between Ms Griffith and the other parties as to P’s condition and prognosis and as to her best interests in relation to her medical treatment, her residence and care and in relation to whether she should be subject to a DNACPR notice.  Those proceedings concluded in April 2020, Ms Griffith’s application being dismissed (there is no reported judgment I can find); she sought permission to appeal to the Court of Appeal, but her application for permission to appeal was dismissed in July 2020.

In October 2019, Ms Griffith sent an email to Barts Health NHS Trust attaching what purported to be a court order made on 10 July 2019. In the body of the email, Ms Griffith informed Barts Health NHS Trust that she was “submitting the above stated form and associated proofs required” and that “she had been alerted to the fact that I needed to approach this organisation for the information myself”. The purported court order attached to Ms Griffith’s email provided for the disclosure of P’s medical records directly to Ms Griffith from Barts Health NHS Trust. Barts should, perhaps, have been alerted by the fact that “purported order bears no court seal and contains none of the recitals that characterise the third party disclosure orders made by HHJ Hilder.”  The records were sent by Barts to the solicitors instructed by Ms Griffith – the solicitor with conduct of the case did not, in fact, read the records or show them to Ms Griffith.

No such order had, in fact, been made, something which only came to light when the solicitors instructed by the Official Solicitor on behalf of P sought disclosure pursuant to orders actually made by the court, at which point Barts said that they had already received the request.

Unsurprisingly, when this came to light, matters were put in train to investigate and then by the Official Solicitor to seek permission to make an application for committal for contempt.   Ms Griffiths did not attend the hearing, but was represented; whilst she exercised her right to silence, her representative submitted that the circumstances did not prove beyond reasonable doubt that Ms Griffith falsified a court order and presented this in support of her request in order to obtain disclosure of confidential medical records of P.  

MacDonald J had little difficulty in finding that he was

39. […] satisfied beyond reasonable doubt that Dahlia Griffith forged the purported court order and sent the forged purported order to Barts Health NHS Trust with the intention of obtaining the medical confidential records of P despite the court refusing to direct this. This action constituted a very serious interference with the due administration of justice. I am further satisfied beyond reasonable doubt that Dahlia Griffith took this action with the intention of interfering with the due administration of justice, her applications for the disclosure provided for by the purported order having previously been refused by the court on a principled basis.

He adjourned sentencing for two days to give Ms Griffith an opportunity to attend court; she did not do so.  She sent an email to the clerk to MacDonald J saying that she was unwell, although not attending a medical note.  Her representative was unable to contact her, and MacDonald J declined his application to adjourn sentencing. 

The Official Solicitor made clear that (although she had no formal role as regards penalty) she had no wish to see Ms Griffith sentenced to a term of imprisonment but felt compelled to bring the conduct of Ms Griffith before the court by way of an application for committal on behalf of P given the gravity of that conduct.

MacDonald J was deeply concerned by the disclosure, noting at paragraph 47 that:

Ms Griffith’s action in forging a court order, whilst not resulting in her receiving P’s medical records, resulted in confidential medical records to which she was not entitled being disclosed to her solicitors. It was only a matter of chance that Ms Griffith actions were discovered when a legitimate order was made by the court. Within this context, P was, to a certain extent, prejudiced by Ms Griffith’s contempt, particularly in circumstances where medical records are confidential to the individual and it is crucial to respect the privacy of a patient (see Z v Finland (1997) 25 EHRR 371). These actions by Ms Griffith were undertaken in the face of repeated, principled decisions of the court that Ms Griffith should not have such disclosure. In the circumstances, a high degree of culpability must attach to Ms Griffith’s actions which, as I have noted, were deliberate in nature. Ms Griffith has shown no remorse for these actions, and indeed has failed to co-operate with the court by attending court in response to the application to commit her. There is no indication that she appreciates the gravity of her conduct.

Further, he noted:

48. Further, the act of forging a court order strikes at the very heart of the due administration of justice. The need for litigants and third parties to be able to have confidence in the integrity of orders made by the court is fundamental not only to the integrity of individual proceedings but to the maintenance of the rule of law. Any course that acts to undermine confidence in the integrity of court orders is accordingly highly corrosive of both the administration of justice by the courts and to the rule of law more widely (see Commissioners for Her Majesty’s Revenue and Customs v. Munir [2015] EWHC 1366 (Ch) at [9(i)]). Within this context, the counterfeiting of court documents is considered by the courts to amount to a very serious contempt of court (see for example Dryer v HSBC Bank Plc [2014] EWHC 3949 (Ch) and Patel v Patel and others).

The sentencing exercise he was carrying out, MacDonald J observed, was also in part designed to deter others from “forging orders of the court by making abundantly clear that by doing so they would place themselves at grave risk of an immediate and lengthy sentence of imprisonment” (paragraph 49).

MacDonald J therefore found that the appropriate sentence was one of 12 months imprisonment (which would have been 18 months but for the fact that Ms Griffith has not to date experienced prison, and the current impact on the nature of custody of the COVID-19 pandemic).  He did not consider appropriate to suspend the sentence of imprisonment in circumstances where the objective of the sentence is to mark the disapproval of the court of Ms Griffith’s deliberate and calculated actions and to deter others from acting in a similar fashion, rather than to ensure future compliance with orders of the court in circumstances the substantive proceedings having now concluded.

Comment

As MacDonald J observed, it was a only a matter of chance that Ms Griffith’s actions were detected, although the case should undoubtedly serve as a cautionary tale for medical bodies in receipt of orders purporting to be from the Court of Protection – if in doubt, it is always sensible to check with the court itself.   MacDonald J was also clearly – and rightly – concerned by the fact that this was not an offence which was without consequence for P, even if P herself is not a position to recognise those consequences.   It is perhaps therefore not surprising that the penalty was so harsh.  

Basic guide to the Court of Protection and glossary

With thanks to Victoria Butler-Cole QC, upon whose excellent 2013 work we have built, a small team comprising her, Sarah Castle (the Official Solicitor), Jakki Cowley (an IMCA), and Alex Ruck Keene has produced a basic guide to the Court of Protection for lay people who may be going to court, or may be attending court.  The guide is accompanied by a glossary of the terms that are regularly used.  Jakki has also written a more personal guide called “You’re going to a welfare hearing at the Court of Protection – what does this mean for you?.”    These documents are not official documents, but we hope that they may be of help in ensuring that those who attend court know what it does, and how it does it.   All of the documents can be found here

Alongside these documents, it also helpful to flag the guide to remote hearings produced by the Transparency Project.  It is designed for those attending family proceedings, but has practical information which may be equally useful to those attending hearings before the Court of Protection. 

 

The Court of Protection mediation scheme in practice

[Even though COVID-19 may be making everyone rethink how conventional proceedings unfold in the Court of Protection, it does – or should not – detract from the importance of mediation.  We are very pleased to host here a guest post by Alex Troup of St John’s Chambers, Bristol, outlining his experience as a mediator under the Court of Protection Mediation Scheme which is currently up and running on an informal pilot basis].

As one of the panel mediators on the Court of Protection Mediation Scheme, I thought that I would take the opportunity to tell you about a recent mediation which I conducted as mediator under the Scheme and which resulted in a successful settlement of a case which would otherwise have gone on to an expensive, stressful and time-consuming trial.

The case in question happened to involve a property and affairs dispute, although in principle health and welfare cases can be equally suitable for mediation under the Scheme. But I would like to focus not on the details of the case, which remains confidential, but instead on how the Scheme worked in practice.

There are 20 panel mediators on the Scheme, all of whom are experienced mediators with expertise in the field of mental capacity. You can engage a panel mediator simply by contacting them directly using the contact details available on the Scheme website. The parties in my case contacted my clerks who made the necessary arrangements. The great advantage to the parties is that each and every one of the panel mediators has agreed to act at a reduced rate of £100.80 per hour plus travel expenses, which is in line with legal aid rates. So the process is very cost effective.

What is more, we mediators are perfectly happy to travel. The mediation I was involved in took place in the far north of England. The fact that I am based in Bristol did not matter: I simply travelled up the day before and stayed overnight in a local hotel. The mediation took place in a neutral venue which had been agreed by the parties. We started at 9am prompt and we finished by 5pm. The mediation took the form of a shuttle mediation so the parties themselves did not have to meet at any stage, although we did have a number of lawyers’ meetings which proved extremely useful.

A key issue for any mediation is when it takes place. A mediation under the Scheme can only take place once proceedings have been issued in the Court of Protection. In our case, the mediation took place shortly after a directions hearing had taken place at which directions were given leading towards trial. That meant that the mediation took place before the parties had gone through the formal process of disclosure and exchange of witness statements, but it was felt – as it turned out, correctly – that there was already sufficient information and documentation available to allow the parties to negotiate a settlement. The costs of disclosure and witness statements were therefore avoided.

One of the features of the Scheme is that the parties must find a way to allow P to participate in the mediation process. In our case, the Official Solicitor had been appointed to act as P’s litigation friend and so she was able to promote P’s views and wishes. The Official Solicitor’s barrister did not attend the mediation in person but spoke by telephone to the parties at various key moments during the day and was involved in the drafting of the settlement agreement before it was signed.

Another feature of the Scheme is that there is a good deal of helpful documentation available on the Scheme website to guide the parties (and indeed the mediator!) through the process. This includes checklists, a draft proforma mediation agreement, and questionnaires for participants. Because any settlement will have to be approved by the Court of Protection as being in P’s best interests, the documentation also includes an invaluable checklist for what will need to be included in the draft order.

Overall, I thought that the mediation worked extremely well. In many ways it felt like any other kind of mediation, albeit with variations to reflect the fact that it concerned an incapacitated individual whose wishes and views needed to be taken into account and that the agreed settlement would need to be approved by the court. The feedback from the parties was very positive and there is no doubt that it was a cheaper and more efficient process than litigation.

I urge those of you who have not yet tried a mediation under the Scheme to give it a go. The mediation process is flexible and can be moulded to suit your particular case. The Scheme is user friendly and far less daunting for clients than the formality of Court. Many Court of Protection cases are eminently suitable for mediation, and a speedy and cost-effective resolution at mediation is usually not only in P’s best interests but also the best interests of all of other parties involved in the dispute. Full details of the Scheme can be found on its website which can be found here: https://www.courtofprotectionmediation.uk/

Court of Protection update

Senior Judge Hilder and the Operations Manager of the Court of Protection have provided an update on the court’s performance and activities during the COVID-19 outbreak, and work being done to assist practitioners.   The letter (dated 21 May 2020) can be found here.

The Court of Protection, injunctions and persons unknown

In Re SF (Injunctions) [2020] EWCOP 19, Keehan J was concerned with a young woman, SF, who had a diagnosis of Autism Spectrum Disorder and also had learning disabilities. She resided in a supported living establishment where she received 1:1 support 24 hours per day. In September 2019 the care and support provider became aware that SF was communicating with a number of men via social media and the internet. Further, it became apparent that some of these men were attending her placement and having sexual relations with her. Only one of those men had been identified, as VK.

On 28 January 2020 the local authority applied for an injunction against VK to prevent him from attending SF’s accommodation. On 5 February 2020 the local authority applied for an injunction in the same terms against ‘persons unknown’.

Keehan J had not, initially, been persuaded that the Court of Protection had the power to grant an injunction against either a party or a non-party. He convened a hearing on the specific point, and this judgment contains his reasons for concluding that it does have the power, in summary because:

i) s.47(1) of the 2005 Act is drafted in wide and unambiguous terms;

ii) it must follow that the Court of Protection has the power which may be exercised by the High Court pursuant to s.37(1) of the 1981 Act to grant injunctive relief;

iii) this conclusion is fortified by the terms of s.17(1)(c) of the 2005 Act which permits the court to prohibit contact between a named person and P;

iv) it is further fortified by the terms of ss. 16(2) & (5) of the 2005 Act. The provisions of s.16(5) are drafted in wide terms and enable the court to “make such further orders or give such directions…….as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order…….made by it under subsection (2)”;

v) finally, the 2017 Rules, r.21 & PD21A, make provision for the enforcement of orders made by the Court of Protection including committal to prison for proven breaches of court orders.

Whilst the judgment is a careful analysis of the position, it is (with respect) a little odd in 2020 for it even to have been a question-mark over whether the Court of Protection had such a power. The chapter in the Court of Protection Handbook addressing enforcement notes – for instance – the case of W v M in 2011, in which Baker J had observed that there was “no doubt about the power of the Court of Protection to make injunctions.” Indeed, until recently suspended by COVID-19, the entire approach of the transparency Practice Direction depended upon the making of injunctions in the transparency order in each case against identified individuals/categories of individuals.

What is more interesting, but tantalisingly not addressed in detail in SF’s case, is the power to make an injunction against persons unknown. This power has not to date been addressed in a reported case, although in EXB v FDZ [2018] EWHC 3456 (QB), Foskett J, sitting both as a High Court judge and a judge of the Court of Protection, was asked in the context of a case as to whether an individual should be told the size of their personal injury award to consider making “an order – effectively in the form of an injunction – preventing any person who knows of the size of the award from disclosing that information to the Claimant. It would be akin to an order for possession against ‘persons unknown’ in possession proceedings.” Foskett J declined to do so, because whilst he could “see the attractions of a mandatory order such as that suggested […], I am not at all sure how such an order could be policed and how anyone in breach of it could be dealt with. An order with a penal notice attached seems somewhat disproportionate and draconian in the circumstances and an order without teeth is arguably an order that should not be made” (paragraph 42).   Foskett J made an order (under both s.16 and s.15(1)(c) MCA 2005) to the effect that “[i]t shall be unlawful for any person (whether the Claimant’s deputy or any other person who has knowledge of the amount of the Settlement) to convey by any means to the Claimant information about the amount of the Settlement, save that this declaration does not make unlawful the conveyance of descriptive information to the Claimant to the effect that the Settlement is sufficient to meet his reasonable needs for life.” However, because of his previous analysis, what Foskett J did not then do was then go one stage further and consider whether he could, in fact, seek to back such an order by way of an injunction.

The order against VK could clearly be made as a step required to enforce the decision of the Court of Protection (permitted by s.17(1)(c) MCA 2005) to permit contact between VK – as a named individual – and SF. That would not apply in relation to the injunction against ‘persons unknown.’ However, as a matter of logic, if the Court of Protection has the same ‘powers, rights and privileges’ as the High Court, it is necessarily to look back up the line to the High Court for the answer.  The Supreme Court has relatively recently considered the position – by reference to civil litigation – in Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6. Lord Sumption, on behalf of the Supreme Court, identified that that there are conceptual difficulties in relation to the bringing of a claim in relation to those who are not only anonymous but cannot even be identified. However, where, as in a case such as the present, the potential respondents are potentially identifiable (and could also, in principle, be served with the application form – by a person waiting at the placement and giving it to them), these difficulties do not arise, proceedings can be brought, and injunctions then granted to enforce the relief granted in those proceedings (see also Canada Goose UK Retail Ltd & Anor v Persons Unknown & Anor [2019] EWHC 2459 (QB)).

The Court of Protection, care homes, the rule of law and deprivation of liberty

The Vice-President of the Court of Protection, Hayden J, has written to Directors of Adult Social Services (in a letter which can be shared more widely) to highlight a number of key points relating to the operation of the MCA 2005 in the context of COVID-19 and care homes.

The wide-ranging letter takes in remote assessments and a protocol for managing DoLs prepared by Lorraine Currie, MCA/DoLS lead for Shropshire County Council; it notes that:

It was expressed to me, at the Hive group, that there appear to be some who believe that careful adherence to proper legal process and appropriate authorisation may now, at times, be required to give way to other pressing welfare priorities. I understand how this view might take hold in establishments battling to bring calm and reassurance to intensely distressed people, both in the Care Homes and within their wider families. It is important, however, that I signal that whilst I am sympathetic to the pressures, I am very clear that any such view is entirely misconceived. The deprivation of the liberty of any individual in a democratic society, holding fast to the rule of law, will always require appropriate authorisation. Nothing has changed. The Mental Capacity Act 2005, the Court of Protection Rules and the fundamental rights and freedoms which underpin them are indispensable safeguards to the frail and vulnerable.  (emphasis in original)

The letter also notes that:

There has been a striking and troubling drop in the number of Section 21A (MCA 2005) applications which has occurred, in some areas, alongside a significant reduction in referrals to advocacy services. It needs to be emphasised that where there has been a failure properly to authorise deprivation of liberty one of the consequences is that, in the absence of authorisation, there will be a loss of entitlement to public funding and inevitably an obstruction to the individuals absolute right to challenge the deprivation of liberty. For the present I simply highlight my concern and restate the importance of the statutory requirements.

In terms of remote assessments, this document prepared by Lorraine Currie is of considerable assistance; she also contributed to a webinar for the National Mental Capacity Forum on the subject, which can be found here.