The quarterly online update to the Court of Protection Handbook is now available, covering such cases as TA on recording remote hearings, AMDC v AG & Anor on expert reports on capacity and KK on non-disclosure of material on the basis of harm to P.
In TA, Re (Recording of hearings; Communication with Court office)  EWCOP 3 (22 January 2021) Cobb J was faced with a ‘troubling case” concerning GA, a woman with Alzheimer’s dementia currently being cared for at home by her son TA. “Poor progress” had been made largely because of challenges to the local authority. The judge made directions on the substantive application. These do not appear in his judgment which deals instead with two applications:
i) An application dated 17 November 2020, buttressed by a separate but similar application dated 15 January 2021, issued by TA for permission to make his own recording of this hearing and indeed all hearings in this case in the Court of Protection;
ii) An application, issued of the Court’s own motion by HHJ Anderson on 10 December 2020, for an order restricting TA’s contact with the Court of Protection Court office, given his history of communications with the court over a period of time.
Cobb J noted that the Court of Protection was not included in the list of courts in which the Coronavirus Act 2020 created an offence of making an unauthorised recording; but that the terms of the criminal prohibition are included in standard orders made since the guidance of Hayden J on remote access to the Court of Protection, so that unauthorised recordings become civil contempt of court. On the facts of this case Cobb J was far from persuaded that there was any need for TA to record hearings; moreover he considered TA was likely to publish material which would identify or run the risk of identifying GA.
The background to the second application speaks for itself:
“The Operations Manager has filed a statement (17.12.20); she records that the court received 150 e-mails from TA in 2019, 217 e-mails in 2020 (total 367 – approximately – 15 per month). Her statement goes on to reveal that the e-mail/correspondence traffic generated between TA, the judiciary, and the other parties, in a recent ‘snapshot’ of 3 months (September, October, November 2020) amounted to 392 separate pieces of mail/correspondence sent/received. This amounts to approx. 130 pieces of correspondence per month, or 4.5 per day.
The Operations Manager has further advised that TA has made 39 COP9 applications in the case over the 24-month period, 35 of these have been made in 2020 (i.e. approximately 3 per month in 2020). Pausing here, the sheer volume of applications might well suggest that consideration ought to be given, when determining any of the outstanding applications before the court, to the grounds on which the court may consider it appropriate to make a form of Civil Restraint Order under CPR 1998 rule 3.11 and PD3C. The Operations Manager goes on to report that TA telephones the court office regularly, usually when he issues an application (which he does regularly – see above), receives orders/replies from the court office or after a hearing; she estimates that the calls are made approximately twice per week and the staff report that the telephone calls average between 30 to 40 minutes in duration. The Operations Manager observes that TA routinely challenges the competence of HMCTS staff, and he is known often to accuse the staff of colluding with the Local Authority against him. She further observes, and from my reading of the material I agree, that his more abusive comments are primarily directed at the judiciary and the lawyers for the other parties to the litigation.
I have seen some of the e-mails which TA has sent to the court and the parties; his practice is to copy in many recipients of his e-mail (I counted well over 100 recipients to some of the recent e-mails sent to the Local Authority including his Member of Parliament). He signs himself off by his name, sometimes followed by an epithet including (from recent e-mails filed): “Diligent and persistent as ever”, “Not a Gentle Knight”, “WikiLeaks Wannabe”, “DPA [Data Protection Act] Pioneer”, or (in the case of his position statement – by e-mail – for the hearing before me) “Leviathan Terminator”. In e-mails sent following the 15 January 2021 hearing, “(a humble, disprivileged (sic.) persecuted informal carer. Mr Nobody)”, and in another “(UNBREAKABLE!)” (capitals in the original).“
Cobb J found that there was no justification for the tone or volume of the correspondence and quoted the judgment of King LJ in Agarwala v Agarwala
“Whilst every judge is sympathetic to the challenges faced by litigants in person, justice simply cannot be done through a torrent of informal, unfocussed emails, often sent directly to the judge and not to the other parties. Neither the judge nor the court staff can, or should, be expected to field communications of this type. In my view judges must be entitled, as part of their general case management powers, to put in place, where they feel it to be appropriate, strict directions regulating communications with the court and litigants should understand that failure to comply with such directions will mean that communications that they choose to send, notwithstanding those directions, will be neither responded to nor acted upon.”
Cobb J made use of his powers under s47 Mental Capacity Act to injunct TA from communicating with the court by email and telephone, stating that although exceptional it was proportionate to the facts of the case, and added a penal notice. The judgment concludes with the text of the order itself. Cobb did not make use of the Part 22 of the Court of Protection Rules 2017 to make a civil restraint order.
The Court of Appeal has had little hesitation dismissing ( EWCA Civ 1675) the appeal by Dahlia Griffith against her conviction and sentence of imprisonment for contempt, about which Alex has written here. Having applied out of time to appeal and for a stay of the order, which had been refused, Ms Griffith did not appear – indeed, as at the day of the hearing, she had not been found and taken into custody.
Peter Jackson LJ held as follows:
14. The first matter to consider is the Appellant’s absence at this appeal hearing. I am satisfied that she has had every opportunity to be represented and that, having chosen to represent herself, there is no good reason why she could not have attended. Her absence is unfortunately of a piece with her overall attitude to the court process. There is no good reason why her appeal should not be determined today.
15. As to that, I conclude that the Judge dealt with these committal proceedings in a way that is beyond criticism. His approach is a model of the careful and balanced assessment that is necessary in a case of this kind. His finding that the Appellant is in contempt was supported by compelling reasoning, indeed the conclusion was inevitable. His approach to the sentencing exercise cannot be faulted. A sentence of this length is a long one, but it is unfortunately necessary in circumstances where the appellant has shown no acceptance, remorse or apology for the deliberate forgery of a court order.
16. I would therefore dismiss this appeal. In doing so, I draw attention – and the Appellant’s attention in particular – to the opportunity that is given to all contemnors to seek to purge their contempt by making an application to the trial court. In circumstances of this kind, the sentence of a contemnor who accepts their contempt and makes a genuine apology for their behaviour will always be carefully reviewed.
Coulson LJ, agreeing with Peter Jackson LJ, noted that, “[A]lthough the recent changes to CPR Part 81 will do much to make the contempt procedure less cumbersome and complex, there will still be many contempt cases in which a judge will have to roll up his or her sleeves and address in detail not only the facts and the law, but all the many balancing factors necessary to achieve a just outcome.” Sadly, for these purposes, CPR Part 81 does not, in fact, apply to the Court of Protection, its contempt procedures being governed by Part 21 of the Court of Protection Rules 2017, which have yet to be updated in line with the CPR changes which took effect on 1 October 2020.
In AB (Court of Protection: Police Disclosure)  EWCOP 66, a decision handed down in October 2019, but which for some reason did not appear on Bailii until December 2020, Keehan J considered an application for disclosure of psychological reports in relation to the subject of Court of Protection proceedings. The Official Solicitor on his behalf opposed the application and submitted that only very limited information should be provided to the police in relation to the reports.
The background can be described shortly. There were three reports, two relating to litigation capacity and capacity to make decisions about residence, the third addressing the issue of AB’s capacity in relation to access to the internet and social media. For purposes of preparing this report, AB underwent an education programme in relation to decision-making relating to accessing the internet and social media. After he had had undergone that programme that the psychologist prepared her third and final report in which she concluded that at that time AB had capacity to access the internet and social media. The police were undertaking an investigation into offences said to have been committed by AB in between one and two years earlier relating to category C images of children. Subject to the issue of disclosure of the report sought by the police, this investigation was concluded. Keehan J was told by Counsel for the police that if the expert had concluded that AB lacked capacity to access the internet and social media, it was likely the criminal proceedings would be discontinued against AB. Furthermore, if the court declined the police’s application for disclosure, then the police would instruct their own expert to undertake a capacity assessment of AB.
The parties were agreed on the legal principles that should be applied. Rule 5.9 of the Court of Protection Rules 2017 provides for an application to be made by a person who is or was not a party to proceedings in the Court of Protection to inspect any other documents in the court records or to obtain a copy of such documents or extracts from such documents. It was submitted by the Official Solicitor (without dissent) that there was no existing authority on the principles to be applied in relation to such a request for disclosure under Rule 5.9, but it was agreed that the test to be applied was not a best interests test, but rather the test set down in Re C (A Minor) (Care Proceedings: Disclosure)  2 WLR 322, with appropriate modifications. This test contains ten points, as follows:
1.The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor;
2. The welfare and interests of other children generally;
3. The maintenance of confidentiality in children cases;
4. The importance of encouraging frankness in children’s cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which section 98(2) applies…;
5. The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice;
6. The public interest in the prosecution of serious crime and punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor;
7. The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order;
8. The desirability of cooperation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly important in cases concerning children;
9. In the case to which Section 98(2) applies, the terms of the section itself, namely that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations;
10 Any other material disclosure which has already taken place.
Keehan J agreed that he should apply those principles with the necessary changes for purposes of the Court of Protection. At paragraph 8, he noted:
and take account of the fact that AB does not wish these reports to be disclosed to the police. I take account and give considerable weight to the public interest in the administration of justice, the public interest in the prosecution of serious crime, and the public interest in convicting those who have been guilty of violent or sexual offences against children. Those are plainly important factors which ordinarily carry considerable and even determinative weight in applications for disclosure. In this case, however, I attach particular weight to issue 7:
“The gravity of the alleged offence and [more importantly] the relevance of the evidence to it…”
It was only the third report which was of interest to the police in the case, but it did not deal with the question of whether he had had capacity in the period covered by the index offences with which AB was charged. Keehan J therefore held that the report contained nothing of relevance to the police investigation other than for the police to know that: (a) prior to coming to a conclusion, the expert had arranged for AB to undergo educative work; and (b) that her assessment that, in May 2019, AB had the capacity to access the internet and social media, was limited to that time and in the context of the educative work undertaken with him.
Keehan J was fortified in coming to his conclusion by also taking into account
11. […] the singular importance in cases before the Court of Protection of those who are the subject of the proceedings being frank in their discussions and their cooperation with professionals. It is vital that those who are the subject of proceedings in the Court of Protection have confidence in the confidentiality of the proceedings and, in particular, the confidentiality of assessments undertaken of them for the purposes of determining whether or not they have capacity in the various relevant domains.
12. It is, in my judgment, supremely important that those who are the subject of the Court of Protection are as frank as they possibly can be to those who are seeking to assess them and, accordingly, I would only consider disclosing the expert’s report to the police if the weight to be given to the public interest was so great as to outweigh the consideration of frankness by AB in the Court of Protection proceedings. As it is, I have come to the conclusion that the expert’s reports are not relevant to the issue that the police have to determine for the purposes of the prosecution of AB, namely between 2017 and 2018, did AB have capacity to access the internet and social media? As I have already said, the expert does not address that issue in any of her reports. Accordingly, the application is refused.
Given the obvious irrelevance of the reports in question – even the report relating to capacity to access internet or social media – it is not surprising that Keehan J drew the conclusion that he did, although the judgment is a helpful reminder of the time-specificity of capacity.
It is, though, with respect, not entirely obvious that the importance of frankness upon which such weight was placed by Keehan J quite plays out in the same way as it does in relation to children. The C case was not concerned so much with potential incrimination by the child themselves, as by those who might potentially have committed offences against the child. There may, perhaps, be some more links required in the logical chain before the position in relation to the subject of proceedings before the Court of Protection is reached. Perhaps another, more satisfactory way, of framing this would have been to identify that the Court of Protection would be substantially hindered in its ability to discharge its inquisitorial functions if it were deprived of its ability to obtain the best information in relation to the subject of proceedings. The decision does, however, set up an interesting – and unresolved – tension as between the Court of Protection’s functions in considering the best interests of the person, and the wider societal interest in determining both whether that person has committed an offence and, if they have, their responsibility. It is not impossible to imagine a case in which this tension cannot be avoided on the basis of the irrelevance of the information being sought by the police.
In KK v Leeds City Council  EWCOP 64, Cobb J had to consider whether P’s maternal aunt should be joined to welfare proceedings. The aunt, KK, had been P’s main carer for almost all of her childhood; they had last lived together 3 years previously, and they currently had contact with each other. At first instance, HHJ Hayes QC had refused KK’s application for party status; KK sought permission to appeal this decision to Cobb J.
KK’s application had been (and continued to be) resisted by both the applicant local authority and the Official Solicitor on her niece, DK’s, behalf. At the hearing below, they presented and sought to rely upon, information which, although acknowledged to be relevant to the issue before the court, they wished to keep confidential from KK. HHJ Hayes QC received this documentary confidential material, and read it. Neither KK nor her lawyers were given access to this material. HHJ Hayes QC gave a separate shorter judgment in which he expressed his view about this confidential material, and its significance to the decision. A preliminary issue arose before Cobb J as to whether he, too, should read the material. No party argued that he should not, but Counsel for KK drew his attention to the guidance given by Lord Neuberger in Bank Mellat v HM Treasury (No.2)  UKSC 38 as to the potential difficulties that would arise. Cobb J directed himself that it was necessary for him to read the material and the supplementary judgment.
There was no dispute between the parties (and Cobb J was satisfied) that HHJ Hayes QC had identified and applied the relevant test on joinder and party status, set out in COPR 2017 rr. 9.13 and 9.15. Cobb J noted at paragraph 31 that endorsed his approach that in considering the desirability” test in COPR r.9.13(2), the “sufficient interest” of the applicant for party status is likely to be relevant. Crucially, HHJ Hayes QC had reached the conclusion that (1) revealing to KK what the confidential evidence was would mean that DK would be likely to disengage from her engagement both with professionals and with these proceedings; (2) joining KK to the proceedings notwithstanding that written evidence would lead to the same consequences; and (3) this would undermine the process of ensuring DK’s participation in the proceedings. HHJ Hayes QC found that he could not resolve the problem by joining KK as a party and then exercising the court’s power to limit or redact disclosure, as the very fact of joinder would be to bring about the adverse consequences he was seeking to avoid.
As Cobb J identified, therefore, the real dispute in this appeal focused on HHJ Hayes QC’s management and deployment of the confidential material and its impact on his decision.
There was “an appropriately accepted premise by all counsel in this case that it is contrary to the principle of open justice for a judge to read or hear evidence, or receive argument, in private; they rightly and unanimously accept that open justice is fundamental to the dispensation of justice in a modern, democratic society (per Lord Neuberger in Bank Mellat v HMT at §2/§3). It follows that generally, every party has a right to know the full case against him, and the right to test and challenge that case fully. I say ‘generally’ because there are, as counsel in this case properly recognised, exceptions to this.”
There is, however, nothing in the MCA 2005 nor in the COPR 2017 which specifically govern the correct approach to managing sensitive material which is the subject of an application for non-disclosure. After a careful analysis both of the underlying judgment of HHJ Hayes QC and the competing arguments put before him on appeal, Cobb J drew the threads together as follows at paragraph 41:
it seems to me that a judge faced with the situation faced by HHJ Hayes QC at the hearing of the application for party status should consider the following points:
i) The general obligation of open justice applies in the Court of Protection as in other jurisdictions […];
ii) A judge faced with a request to withhold relevant but sensitive information/evidence from an aspirant for party status, must satisfy him/herself that the request is validlymade […];
iii) The best interests of P, alternatively the “interests and position” of P, should occupy a central place in any decision to provide or withhold sensitive information/evidence to an applicant (section 4 MCA 2005 when read with rule 1.1(3)(b) COPR 2017); the greater the risk of harm or adverse consequences to P (and/or the legal process, and specifically P’s participation in that process) by disclosure of the sensitive information, the stronger the imperative for withholding the same […];
iv) The expectation of an “equal footing” (rule 1.1(3)(d) COPR 2017) for the parties should be considered as one of the factors […];
v) While the principles of natural justice are always engaged, the obligation to give full disclosure of all information (including sensitive information) to someone who is not a partyis unlikely to be as great as it would be to an existing party[…];
vi) Any decision to withhold information from an aspirant for party status can only be justified on the grounds of necessity[…];
vii) In such a situation the Article 6 and Article 8 rights of P and the aspirant for party status are engaged; where they conflict, the rights of P must prevail […];
viii) The judge should always consider whether a step can be taken (one of the ‘procedural mitigations’ referred to at  above) to acquaint the aspirant with the essence of sensitive/withheld material; by providing a ‘gist’ of the material, or disclosing it to the applicant’s lawyers; I suggest that a closed material hearing would rarely be appropriate in these circumstances.
On the facts of the case, Cobb J was satisfied that HHJ Hayes QC rightly prioritised (so far as was reasonably practicable), the need to permit and encourage DK to participate in the proceedings which concern her, and/or to improve her ability to participate, as fully as possible in any act done for her and any decision affecting her (MCA 2005, s.4(4)). On the specific facts of the case, HHJ Hayes QC was not wrong to conclude that the very act of joining K would be to bring about adverse consequences for DK and to defeat the very purpose of the proceedings. Although unusual, the process by which HHJ Hayes QC had reached this conclusion was not fundamentally unjust. Cobb J also held that he had been correct to prepare a short supplementary judgment setting out his conclusions relevant to the confidential material, if for no reason because it enabled the appellate court to assess the extent to which, if at all, the confidential material has had a bearing on the overall outcome.
At paragraph 48, Cobb J concluded with two short points in dismissing the appeal.
i) It will, I suspect, be relatively uncommon for someone in the position of KK – a former primary carer of P (particularly where P is still a young adult) who wishes party status in proceedings under the MCA 2005– to be denied joinder to the proceedings, and be denied the chance to contribute to the decision-making in this welfare-based jurisdiction. That said, and adopting Bodey J’s comments from Re SK […]) for this case, it will always be necessary to balance “the pros and cons of the particular joinder sought in the particular circumstances of the case”;
ii) The Judge’s decision, and the dismissal of this appeal, does not detract from the obligation on the Local Authority to consult with KK (section 4(7) MCA 2005) as practicable and appropriate on welfare-based issues concerning DK.
As Cobb J notes, it is very unusual for a person who has played – and appeared to play – so important a part in P’s life not to be joined as a party to proceedings where they wish to be joined. A function of the nature of the proceedings is that, whilst two judges were clear that KK should not have been on the facts of the case, others cannot know why this was the case. Any case in which reliance has to be made upon confidential material arises deep concern, as was clearly caused to both HHJ Hayes QC and Cobb J, and the outcome can never feel entirely satisfactory. Nonetheless, it is clear that both judges, applying, in turn, a line of case-law which emphasised the rigour with which any limitation upon disclosure of information to either a party or putative party has to be considered, gave the position very anxious scrutiny.
It is unlikely that the position that HHJ Hayes QC encountered will crop again often in the future, but at least there is now a clear route-map for parties / putative parties and the court to follow.
In An NHS Trust v AF & Anor  EWCOP 55, Poole J has answered an important question that has – oddly – not been definitely determined previously: when does a decision of the Court of Protection stop being binding? The question is important, given that the court has to make decisions about capacity and best interests on the facts as they are at the point of its decision, but we know that it is entirely possible for those facts to change.
The case is the follow up to the decision of Mostyn J in March 2020 A CCG v AF  EWCOP 16, in which it had been held that it was in the best interests of a man called AF, a man in his mid-seventies who following a stroke in May 2016, to continue receive Clinically Assisted Nutrition and Hydration (‘CANH’) via a PEG. That decision was not appealed by his daughter, who had argued strongly that he would not have wished to continue to be fed.
At that point, the PEG tube had been in place since 2016 and they usually last for two to four years before requiring replacement. Therefore, in March 2020 it could have been expected that re-insertion would soon be required. However, the court in March 2020 was not made aware of that expectation and therefore the order made did not expressly cover the need for reinsertion of the PEG tube.
After the judgment of Mostyn J, AF continued to live at his care home receiving CANH via his PEG without incident until on 28 August 2020 the PEG tube became blocked. After an overnight admission to hospital the blockage resolved and he was discharged back to the care home. On 9 October 2020 the PEG tube fell out. It is likely that the bumper which helped to keep the tube in place, failed due to wear and tear. AF was taken to the Emergency Department of the Applicant Trust’s hospital and was admitted under the care of the gastroenterology team. A feeding tube was inserted, not for the purpose of administering hydration and nutrition, but to maintain the patency of the PEG tract. AF was able to consume food orally and sometimes does so, but with no gastrostomy in place he was not receiving sufficient nutrition to sustain life. By order of Williams J on 16 October 2020, the feeding tube was removed and a balloon gastrostomy (‘BG’) inserted. AF was discharged back to the care home on 20 October 2020. A BG will typically last for about three months before having to be replaced.
AF was then admitted to hospital again on 28 October when very unwell with pneumonia. The evidence before the court was, however, that he was a good condition nutritionally and was physiologically robust such that when he recovered from his pneumonia, it was likely that he would be fully restored to his pre-pneumonia condition. The consultant gastroenterologist’s evidence was that she would expect, other things being equal, that with continued CANH he could live for a few more years yet.
Poole J was asked to declare that it was lawful (when AF was medically sufficiently fit) to undergo insertion of a PEG.
AF’s daughter argued that was that it was not in AF’s best interests to have the PEG re-inserted or to continue to have CANH. She went further, contending that it was not in AF’s interests to receive any active treatment, including antibiotics, or blood tests for the purpose of monitoring and investigation, and that it was in his best interests to be placed back on an end of life pathway as had briefly been overnight on 28th and 29th October 2020. She told that the court she thought that the BG should now be removed.
Poole J outlined the decision that Mostyn J had reached, and the evidence that had been before him in March 2020. At paragraph 19, he noted that:
The judgment was not appealed. The question now arises as to the extent to which, if at all, my evaluation of AF’s best interests should be circumscribed by the findings made by Mostyn J seven months ago.
The three parties before him (the Trust, the Official Solicitor, and AF’s daughter) proposed slightly different formulations of the approach that should be adopted. At paragraph 22, Poole J set out that:
both principle and good practice point to the same approach to this application in which the court is being asked to make a best interests evaluation only a few months after another court has made a determination of best interests in respect of a similar decision, concerning the same P, and after a full hearing.
(a) There is no strict rule of issue estoppel binding on the court.
(b) Nevertheless, the court should give effect loyally to a previous judicial finding or decision that is relevant to the determinations it has to make, and should avoid re-opening earlier findings that cannot be undermined by subsequent changes in circumstances. An example would be a finding that P lacked capacity at a particular point in time. Such findings, if not successfully appealed, should generally only be re-opened if new evidence emerges that might reasonably have led the earlier court to reach a different conclusion.
(c) Where there has been no material change of circumstances subsequent to a previous judgment, no new evidence that calls for a re-opening of the earlier findings, and the earlier evaluation of best interests clearly covers the decision that the new court is being asked to consider, appropriate case management might involve the court summarily determining the new application.
(d) Determinations of capacity and best interests are sensitive to specific decisions and circumstances, therefore the court will exercise appropriate restraint before making any summary determination.
(e) f the decision or circumstances that the new court is being asked to consider are not clearly covered by the earlier judgment, or there has been a material change of circumstances or new evidence that calls into question the previous findings, the court should manage the case in a way that is proportionate having regard to the earlier judicial findings and decisions.
(f) In dealing with the new application proportionately, the court’s focus will be on what has changed since the previous ruling, and any new evidence. It should usually avoid re-hearing evidence that has already been given and scrutinised in the earlier proceedings.
Applying that approach to the facts of the case, all parties “pragmatically agreed that the failure of the PEG on 9 October 2020 was a material change in circumstances that had not been expressly contemplated by the court in March 2020, and that therefore the decision to re-insert the PEG was a new decision for the Court to consider. Similarly, there was no argument against approaching AF’s recent hospital admission for pneumonia as a change in circumstances that required a best interests evaluation, in particular given SJ’s position that treatment for it should cease” (para 23). Poole J observed that “[i]t might have been contended, but was not, that it was implicit in Mostyn J’s determination that re-insertion of the PEG was in AF’s best interests because it was necessary to ensure the continuation of CANH. The focus of the evidence before me was therefore on developments since Mostyn J’s judgment.”
That having been said, Poole J held that:
24. Nevertheless, Mostyn J’s conclusions are highly material to my evaluation of best interests in relation to these new decisions. Indeed, it would be wrong in my judgment to re-open his findings that (i) AF had lacked capacity in 2016 when he made statements indicating that he wanted to die; (ii) as of March 2020 AF derived “pleasure and satisfaction” from his life; and (iii) AF’s statements before his stroke, that he would not want to be kept alive as a “body in a bed”, were not applicable to his condition in March 2020. Those findings cannot be altered by subsequent events and there is no new evidence to demonstrate they could now be challenged. I also give significant weight to Mostyn J’s very firm conclusion that at the time of his judgment it was in AF’s best interests to receive continuing CANH through his PEG.
Having considered the further evidence as to developments since March 2020, Poole J was “quite satisfied” (paragraph 28) that it was in AF’s best interests to undergo re-insertion of the PEG.
Importantly, and no doubt reflecting on what had happened since March 2020, Poole J concluded at paragraph 30 by observing that:
The court cannot predict every treatment decision that may have to be made over the remainder of AF’s life. However, all parties agree that there ought to be an ongoing care plan, in accordance with guidance from the BMA at section 2.7 of its document, “CANH and adults who lack the capacity to consent – guidance for decision-making in England and Wales.” The Trust has agreed to write to the GP and CCG to inform them of this judgment and to ask them to use their best endeavours to ensure advance care planning now takes place, the CCG will be asked to put advance care planning on the agenda for the forthcoming best interests meeting that has been convened to determine whether AF should change GPs.
Strong views have been expressed both about the original decision of Mostyn J (including the process of the hearing itself, one of the very first to be held remotely during the pandemic) and about the merits of the judgment reached by Poole J. I do not comment upon those views here, although I do note that the judgment of Poole J makes very clear the potential consequences for a person who does not agree with the outcome of a decision but does not seek to appeal it.
For present purposes, I focus upon the approach taken to Poole J to how to answer the question of what to do where the Court of Protection has previously considered an issue. Now that the Court of Protection has been ‘in business’ in its current form for 13 years, there are a substantial number of cases where decisions made both as to capacity and best interests on the evidence available at the time simply do not now fit. It had never been entirely clear what was to happen in such circumstances, and this decision very helpfully resolves this ambiguity.
Although strictly only relating to the position where the court, itself, is being asked to revisit an earlier decision, the logic of this judgment applies equally outside the courtroom. If anyone does not agree with the decision when it is made, they should appeal. Otherwise, and in the same fashion as applies in the mental health setting, then unless there has been a material change of circumstances or new material that could not have been known to the court at the point when it had made its decision (whether as to capacity or best interests), those concerned should loyally follow the decision. In legal terms, their belief as to the individual’s capacity and best interests will only be “reasonable” (and hence enable them to be protected from liability by s.5 MCA 2005) if it is what the court has decided. If there has been such a change of circumstances or new material, they may conclude that they may now reasonably be able to come to a different conclusion about either the person’s capacity or best interests. However, especially if the conclusions of the court were reached after it had had to resolve a dispute about capacity or best interests, it would always be sensible to consider obtaining legal advice as to whether they can simply proceed on the basis that the facts have now changed, or whether it is necessary to go back to court to ask for the original decision(s) to be revisited.
 Note, this is not the same as the situation where the court is aware at the time that the case is before it that the person’s capacity to make the relevant decision(s) may fluctuate and expressly sets out contingency planning. This position has now helpfully been considered and resolved in GSTT & SLAM v R  EWCOP 4.
The quarterly online update to the Court of Protection Handbook is now available, covering such cases as DP v Hillingdon on s21A applications, Re ND on the declaratory powers of the Court of Protection and Re AB on when the court will decline to recognise and enforce a foreign protective measure.
Practitioners will need to note the implications of the recent and important judgment of Hayden J in DP (by his ALR Keith Clarke) v London Borough of Hillingdon  EWCOP 45 . You can read the judgment here.
DP was 72 and had an organic personality disorder and catatonic disorder, both of which resulted from an earlier stroke. He was deprived of his liberty in a care home under a standard authorisation (SA). He challenged this under section 21A Mental cApacity Act 2005 (MCA).
The judge had provided the parties with a directions order in which she made interim declarations under section 48 MCA to the effect that DP lacked capacity to conduct the proceedings and as to whether to be accommodated in the care home for the purpose of the relevant care and treatment. The judge must have been aware that the question of capacity was contentious as she also directed the parties to identify an expert who could provide a report on DP’s capacity under section 49 MCA.
DP successfully appealed on the basis that the judge wrongly approached the question whether to make a declaration of incapacity under section 48.
The judge had provided an analysis of the only evidence of capacity which was from a section 12 psychiatrist Dr Longe. It was clear from that analysis that the judge had reservations about Dr Longe’s evidence. She was concerned that Dr Longe did not explain the purpose of the assessment to DP. Dr Longe’s conclusion that DP could not communicated his decision “did not quite make sense as DP was able to speak and communicate”. Moreover he did not address “the real question” which was whether DP could evaluate any available options as to his residence and care. Nevertheless the judge made the declarations under section 48 as to DP’s capacity. Moreover she did not address at all DP’s application that the SA should be terminated immediately.
On appeal Hayden J noted that in an application under section 21A is (as set out by Charles J in Re UF ) the Court “ is assessing the relevant qualifying requirements itself and reaching its own view on the evidence presented to it. It is almost inevitable that when doing that the Court will have to pay close attention to what will, on the evidence before it, best promote the best interests of the relevant person in the immediate, medium and long term and so carry out its own best interests assessment.” He noted that both parties agreed that that “the court should not treat Section 21A applications in the same way as a welfare application because Article 5( 4) ECHR requires the court to determine the former as, in effect, a matter of urgency.”
The judge rejected the submission that the court should never make interim orders of any kind in a section 21A case, preferring the alternative formulation that “an interim order, to gather further information, should only be made if there is a sufficiently clear evidential basis to do so.” He stated “I strongly prefer the alternative submission which, in my judgement, strikes the balance between protecting P’s autonomy and promoting his welfare.”
The judge went on to say that:
“It is the duty of the court to determine whether the mental capacity requirement is met. If, as here, the judge was uncertain, then the obligation on the court was to investigate it further and to do so “speedily”, to adopt the word used in Article 5(4). Of course, in Section 21A applications the court will always and of necessity have a capacity assessment before it. It was open to the Deputy District Judge, for example, to permit questions to be put to Dr Longe and/or, if necessary, to arrange for him to give evidence or revisit his assessment. I doubt that it was necessary to instruct a further expert on what is, when properly identified, an essentially uncomplicated issue i.e. does DP have capacity to decide to change care homes to be nearer to his friend Bill and, if not, whether it is in his best interests to do so.”
As to the quality of evidence necessary, the judge cited the ECtHR’s judgment in Sykora v The Czech Republic, 22 November 2012, para 103:
“any deprivation or limitation of legal capacity must be based on sufficiently reliable and conclusive evidence. An expert medical report should explain what kind of actions the applicant is unable to understand or control and what the consequences of his illness are for his social life, health, pecuniary interests, and so on. The degree of the applicant’s incapacity should be addressed in sufficient detail by the medical reports”.
Hayden J noted that
“45. Where a standard authorisation is in place, it remains in force until (i) its expiry date is reached; (ii) it is suspended, under sch. Al, part 6; (iii) the supervisory body terminates it; or (iv) the court terminates it, under s. 21A. For as long as the authorisation is in force, it provides the authority for the deprivation of P’s liberty. When s. 21A proceedings are brought, the court’s function is to ‘determine’ questions as to whether the qualifying requirements are met and to consider varying or terminating the authorisation in light of its determination of the questions (see para 31 above).
46. As I have emphasised above, when the court determines any question relating to the authorisation, the extant authorisation remains in force, without the need for any positive decision by the court. The court does not become responsible for authorising P’s deprivation of liberty upon the issuing of as. 21A application. The court’s only function is to provide the review of the authorisation which is in force. In every case it is for the court to determine how it should resolve the issues raised in the application. Mr Parkhill submits that these are essentially case management decisions and, I agree. Mr Parkhill recognises and accepts Ms Butler-Cole’s point that the guiding principle is the need for speedy determination of the lawfulness of detention mandated by Article5(4). This is a realistic concession recognising a significant body of European jurisprudence: Van der Leer v. the Netherlands, Appl No. 12/1988/156/210, 21 February 1990; Oldham v the United Kingdom, Appl No. 36273/97, 26 September 2000; Van Glabeke v France, Appl No. 38287/02, 7 March 2006; MH v the United Kingdom (2013) ECHR 1008, 22 October 2013; Raudevs v Latvia, Appl No. 24086/03, 17 December 2013.”
There is no need for the court to make a declaration under section 48 as to P’s lack of capacity for the purpose of Schedule A1 MCA whilst the SA remains in force.
The judge then made the following (obiter) observations as to the use of section 48 which are summarised at para 62:
- The words of the Statute in Section 48 require no gloss;
- The question for the Court remains throughout: is there reason to believe P lacks capacity?;
- That question stimulates an evidential enquiry in which the entire canvas of the available evidence requires to be scrutinised;
- Section 48 is a permissive provision in the context of an emergency jurisdiction which can only result in an order being made where it is identifiably in P’s best interests;
- The presumption of capacity applies with equal force when considering an interim order pursuant to Section 48 as in a declaration pursuant to Section 15;
- The exercise required by Section 48 is different from that set out in Section 15. The former requires a focus on whether the evidence establishes reasonable grounds to believe that P may lack capacity, the latter requires an evaluation as to whether P, in fact, lacks capacity;
- The court does not become responsible for authorising P’s Deprivation of Liberty upon issuing of a Section 21 A application, The court’s function is to review the authorisation which is in force;
- The objective of Section 48 is neither restrictive, in the sense that it requires a high level of proof, nor facilitative, in the sense that it is to be regarded as a perfunctory gateway to a protective regime, and
- There is a balancing exercise in which the Court is required to confront the tension between supporting autonomous adult decision making and to avoid imperilling the safety and well-being of those persons whom the Act and the judges are charged with protecting.
This important judgment helpfully emphasises the need for the court to ensure a “speedy” determination of an application under section 21A. In section 21A cases the courts should not make an interim declaration as to capacity in relation to the decisions concerning residence and care. There is however no suggestion that it may be inappropriate to make interim declarations under section 48 in relation to other matters such as capacity to conduct the proceedings, provided the court is satisfied as to the evidence, applying the guidance set out above.
Importantly this judgment does not prevent the court from extending a SA under section 48, which can be important for legal aid purposes. In Re UF, which Hayden J expressly approved, Charles J reasoned that:
34.It seems to me that the combination of s. 21A (2)(b) and (3)(a) and (b), s. 47 and s. 48 and paragraph 61(2) of Schedule A1 of the MCA empowers the Court of Protection to vary an existing standard authorisation by extending (or shortening) it and that if and when it exercises that power it would normally be sensible for the court to give consideration to whether it should then exercise its powers under ss. (6) and (7) or give directions concerning its future exercise of those powers.
35. In my view if the court so extends a standard authorisation it, unlike the supervisory body (see paragraph 51(2) of Schedule A1), is not limited to the period stated in the best interests assessment upon which it was based if that period is less than the one year referred to in paragraph 42(2)(b) of Schedule A1. This is because the Court is exercising its discretion and powers, and so is in effect carrying out its own (interim) best interests assessment.”
Moreover it should be remembered that the fact that a case begins as a challenge under section 21A does not prevent the court from exercising its jurisdiction under sections 15 and 16 MCA. This was reiterated by the Court of Appeal in Director of Legal Aid Casework v Briggs. Briggs is important too for the recognition of the breadth of issues that may arise in Section 21A cases.
In Penntrust Ltd v West Berkshire District Council & Anor  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  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.
In a judgment handed down on 30 September 2020, PLK & Ors (Court of Protection : Costs)  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.
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.