New PDs now published (and one that hasn’t been)

Accompanying the new Rules to come into effect on 1 December 2017 (assuming Parliamentary approval), a new suite of Practice Directions will also be brought into force.  A table is set out below, and the PDs can all be found here.

For the most part, the substance of the Practice Directions is the same as that contained in the existing ones, although recast to reflect the renumbering in the Rules.  Important points to note are:

1. Practice Direction 3B, consolidating into the practice of the Court the case management pilot approach to case pathways

2. Practice Direction 4C, consolidating the transparency pilot into the practice of the Court

3.  Practice Direction 17C, consolidating the s.17 pilot approach

4.  Practice Direction 24C, providing for transition arrangements in the following terms

Applications received after commencement

2. If an application under the Previous Rules or the pilot Practice Directions is received at the court on or after commencement [i.e. 1 December], it will be returned.

3. However, an application made under the Rules using the version of the relevant form which was current immediately before commencement will be accepted until close of business on 12 January 2018, or such later date as the Senior Judge may direct.

Applications received before commencement

4. The general presumption will be that any step in proceedings which were started (in accordance with rule 62 of the Previous Rules) before commencement which is to be taken on or after commencement is to be taken under the Rules.

(Rule 62 of the Previous Rules provides that proceedings are started when the court issues an application form at the request of the applicant.)

5. However, the general presumption is subject to any directions given by the court, which may at any time direct how the Rules are to apply to the proceedings.

6. Any step already taken in the proceedings before commencement in accordance with the Previous Rules or the pilot Practice Directions will remain valid on or after commencement.

Orders made before commencement

7. Where a court order has been made before commencement under the Previous Rules or the pilot Practice Directions, the order must still be complied with on or after commencement.

Finally, it should be noted that Practice Direction 9E, concerning serious medical treatment, is not carried over into these new provisions, so that it will fall away on 1 December 2017. At time of writing no replacement has been proposed.

 
Practice Direction 1A – Participation of P
Practice Direction 2A – Levels of judiciary
Practice Direction 2B – Authorised court officers
Practice Direction 2C – Application of the Civil Procedure Rules 1998 and the Family Procedure Rules 2010
Practice Direction 3A – Court’s jurisdiction to be exercised by certain judges
Practice Direction 3B – Case pathways
Practice Direction 4A – Hearings (including reporting restrictions)
Practice Direction 4B – Court bundles
Practice Direction 4C – Transparency
Practice Direction 5A – Court documents
Practice Direction 5B – Statements of truth
Practice Direction 6A – Service of documents
Practice Direction 6B – Service out of the jurisdiction
Practice Direction 7A – Notifying P
Practice Direction 8A – Permission
Practice Direction 9A – The application form
Practice Direction 9B – Notification of other persons that an application form has been issued
Practice Direction 9C – Responding to an application
Practice Direction 9D – Applications by currently appointed deputies, attorneys and donees in relation to P’s property and affairs
Practice Direction 9E – Applications relating to statutory wills, codicils, settlements and other dealings with P’s property
Practice Direction 9F – Applications to appoint or discharge a trustee
Practice Direction 9G – Applications relating to the registration of enduring powers of attorney
Practice Direction 10A – Applications within proceedings
Practice Direction 10B – Urgent and interim applications
Practice Direction 11A – Deprivation of liberty applications
Practice Direction 12A – Human Rights Act 1998
Practice Direction 13A – Procedure for disputing the court’s jurisdiction
Practice Direction 14A – Written evidence
Practice Direction 14B – Depositions
Practice Direction 14C – Fees for examiners of the court
Practice Direction 14D – Witness summons
Practice Direction 14E – Section 49 reports
Practice Direction 15A – Expert evidence
Practice Direction 17A – Litigation friend
Practice Direction 17B – Rule 1.2 representatives
Practice Direction 18A – Change of solicitor
Practice Direction 19A – Costs
Practice Direction 19B – Fixed costs in the Court of Protection
Practice Direction 20A – Appeals
Practice Direction 20B – Allocation of appeals
Practice Direction 21A – Contempt of court
Practice Direction 22A – Civil restraint orders
Practice Direction 23A – International protection of adults
Practice Direction 24A – Request for directions where notice of objection prevents Public Guardian from registering enduring power of attorney
Practice Direction 24B – Where P ceases to lack capacity or dies
Practice Direction 24C – Transitional provisions

Court of Protection Rules 2017

The Court of Protection Rules 2017 have been laid before Parliament, to come into force on 1 December.  These recast all of the Rules into the same format as the Civil Procedure and Family Procedure Rules. The new-look Court of Protection Rules will also incorporate those rules relating to case management which have, since September 2016, been implemented by way of the Case Management Pilot.  Accompanying – renumbered – Practice Directions (not yet published) will also cement into the practice of the Court the Transparency Pilot and the Section 49 Report Pilot.

LAG will shortly be publishing a revised second edition of the CoP Handbook and supplement with the new Rules and an introductory text outlining key changes since the publication of the second edition.

The Court of Protection gets electronic seals

In a step which will gladden the heart of all those who have had to include “This order takes effect notwithstanding the fact that it is not yet sealed” in their orders from the Court of Protection, the Court of Protection will, from 21 July, be endorsing all non-financial orders with an electronic seal.  For more details, see the letter from HMCTS here.

Best interests, available options, and case management before the Court of Protection – the Supreme Court pronounces

In N v ACCG [2017] UKSC 22, the Supreme Court has now pronounced definitively upon what the Court of Protection should do where is a dispute between the providers or funders of health or social services for a person lacking the capacity to make the decision for himself as to what services should be provided to him either between the person’s family or, by analogy, by those acting on behalf of the person.

The facts

The appeal arose from the decision taken in 2013 in relation to a young man, MN, with profound disabilities who lacked capacity to make decisions about his care. He was made the subject of a care order when he was 8 years old and placed in residential accommodation. On turning 18, he was moved to an adult residential placement and the clinical commissioning group took over funding for his placement, the local authority remaining involved in the proceedings. MN’s parents accepted that he should live at the placement for the time being, but wished to assist in providing intimate care to MN at the placement, and to have contact with MN at their home.  The CCG did not agree that intimate care should be provided, and was not willing to provide the necessary funding for additional carers to facilitate home contact. At first instance, MN’s parents contended that the court should nevertheless determine MN’s best interests in respect of both matters. The local authority and the CCG submitted that the court was only able to choose between available options.

At first instance, Eleanor King J held that the court should not embark upon a best interests analysis of hypothetical possibilities in relation to home contact and that it would be only in exceptional cases that an argument founded on the Human Rights Act 1998 would require the court to consider options that were not available. Both parents appealed to the Court of Appeal, which upheld Eleanor King’s judgment. Mr N appealed to the Supreme Court, and was supported in his appeal by Mrs N.  The CCG and the Official Solicitor, on behalf of MN, sought to uphold the decision of the Court of Appeal.

The issue

Lady Hale, giving the sole judgment of the Supreme Court, considered that the true issue was not the jurisdiction of the Court of Protection (as it had been put by both Eleanor King J and Sir James Munby P in the Court of Appeal), but rather the approach it should take in light of its limited powers.

The proper approach to the determination of the issue

As she had done in Aintree v James, Lady Hale took matters back to first principles, by reference to the legislative history of the MCA (and, indeed, its pre-history, including – in essence – a potted narrative of the development of the doctrine of necessity and its ultimate codification).   She is, of course, uniquely placed to do so, given her role at the Law Commission in the 1990s in the formulation of what ultimately became the MCA 2005.   For present purposes, the most important points to be drawn from that history are the following:

1. The jurisdiction of the Court of Protection is limited to decisions that a person is unable to take for himself. There is no such thing as a care order for adults and the jurisdiction is not to be equated with the jurisdiction of family courts under the Children Act 1989 or the wardship jurisdiction of the High Court (para 24). By reference to the wording of s.16 MCA 2005, unlike the Children Act 1989 the MCA 2005 does not contemplate the grant of “the full gamut of decision-making power, let alone parental responsibility, over an adult who lacks capacity” (para 27);

2. Lady Hale’s ‘respectful’ agreement (at para 26) with the observations of Sir James Munby P in the Court of Appeal that, unless the desired order clearly falls within the ambit of s.15 (i.e. a declaration as to capacity and/or lawfulness, which may have a narrower ambit than can be made in the High Court), orders are better framed in terms of relief under s.16 MCA 2005. As she noted, an order under s.16(2)(a) simply makes the decision on behalf of the person, with no need to declare that the decision made is in P’s best interests;

3. The fact that s.17 MCA 2005 – giving examples of the powers under s.16 as respects P’s personal welfare – did not extend to such matters as deciding that a named care home must accommodate P or that a person providing healthcare must provide a particular treatment for P was consistent with (1) the original Law Commission report in 1995, which provided that the role of the court it envisaged was to stand in the shoes of the person concerned, but that, if that person had no power under the community care legislation to demand the provision of particular services, then neither could the court on their behalf; (2) the approach then adopted in the Government’s White Paper preceding the then-Mental Incapacity Bill; and (3) the approach laid down by the Supreme Court itself in Aintree v James (paras 29-32); and

4. Courts and people taking decisions on behalf of those who lack capacity to do so have to do so in their best interests, and, following s.4 MCA 2005, a conclusion as to what is in a person’s best interests “is a decision about what would be best for this particular individual, taking into account, so far as practicable, his individual characteristics, likes and dislikes, values and approach to life” (para 34).

How, then, should the court reconcile its duty to decide what is in the best interests of the person with the fact that it only had the power to take a decision that P himself could have taken? As Lady Hale made clear (para 35) this meant that it had to choose between the available options, and its powers were (in this respect) similar to the family court’s powers in relation to children, as the House of Lords had previously explained in Holmes-Moorhouse v Richmond upon Thames Borough Council [2009] UKHL 7.   As Lady Hale outlined (at para 37), service-providing powers and duties – including those under the Care Act 2014 (not relevant in MN’s case, but relevant in many others) – have their own principles and criteria which do not depend upon what is best for the service user, although such would no doubt be a relevant consideration.  She noted, in particular, that whilst decisions on health or social care services may engage the right to respect for private (or family) life under Article 8 ECHR, decisions about the allocation of limited resources may well be justified as necessary in the interests of the economic well-being.

In light of the analysis above, and the limited powers of the court, Lady Hale noted (at para 39) that where a case is brought to court:

What may often follow such an application will be a process of independent investigation, as also happened in this case, coupled with negotiation and sometimes mediation, in which modifications are made to the care plan and areas of dispute are narrowed, again as happened in this case. But it does not follow that the court is obliged to hold a hearing to resolve every dispute where it will serve no useful purpose to do so.”

Lady Hale outlined the extensive case management powers of the Court of Protection, noting (at para 41) that the court was therefore clearly entitled to take the view that no useful purpose would be served by holding a hearing to resolve a particular issue.   She continued:

In reaching such a decision, many factors might be relevant. In a case such as this, for example: the nature of the issues; their importance for MN; the cogency of the parents’ demands; the reasons why the CCG opposed those demands and their cogency; any relevant and indisputable fact in the history; the views of MN’s litigation friend; the consequence of further investigation in terms of costs and court time; the likelihood that it might bring about further modifications to the care plan or consensus between the parties; and generally whether further investigation would serve any useful purpose.”

Lady Hale concluded that, on the facts of the case before Eleanor King J, consideration upon the lines set out immediately above would have led to the conclusion that it was unlikely that investigation would bring about further modifications or consensus and that it would have been disproportionate to devote any more of the court’s scarce resources to resolve matters. As she put it at para 44, this was “a case in which the court did not have power to order the CCG to fund what the parents wanted. Nor did it have power to order the actual care providers to do that which they were unwilling or unable to do. In those circumstances, the court was entitled to conclude that, in the exercise of its case management powers, no useful purpose would be served by continuing the hearing.” Lady Hale accepted that Eleanor King J had not put matters in quite those terms, but that was the substance of what she was doing and she was entitled in the circumstances to do so, such that the appeal fell to be dismissed.

It is important to note, however, that, as Lady Hale emphasised at para 43:

Case management along these lines does not mean that a care provider or funder can pre-empt the court’s proceedings by refusing to contemplate changes to the care plan. The court can always ask itself what useful purpose continuing the proceedings, or taking a particular step in them, will serve but that is for the court, not the parties, to decide.”

Comment

This decision put beyond doubt the limits of both the Court of Protection and, more broadly, what can be done in the name of best interests. As Lady Hale has made so starkly clear, a decision as to what is in the person’s best interests is a choice between available options.  This means in practice, and all too, often a constrained choice where a person is wholly or partially reliant upon public funding to meet their care needs.  However, Lady Hale made clear that the approach that she was setting out was one that had always been intended from the very earliest work of the Law Commission.

Many people may regret this decision as the “hollowing out” of the concept of best interests, as Beverley Clough memorably put it in a post prior to the hearing. Further, some may contend that the result is inconsistent with the CRPD, which had a cameo role in the hearing.  However, for our part, we would suggest that our energies should be devoted more to ensuring that those mechanisms which exist to facilitate the involvement of those with impaired capacity in service provision decisions made for them under the relevant legislation (for instance advocacy under the Care Act) are made meaningful.  This is an area where real supports are required for the exercise of legal capacity under Article 12 CRPD (and also to make real the right to independent living under Article 19).

As regards the role of the Court of Protection, it is now clear beyond peradventure that the court should be in the driving seat as regards the management of cases that come before it, and we hope also that this judgment fortifies the court in taking the robust case management steps set down in the Case Management Pilot. We will certainly not be changing our advice that any person, and in particular any public body, appearing before the court can expect to have their decision-making probed robustly, especially where the consequences of those decisions are such as to remove from the table options which it is clear P would wish to be able to choose.

The Supreme Court did not comment upon whether the Court of Protection is able to hear claims brought under s.7 Human Rights Act 1998; both Eleanor King J and the Court of Appeal had held that, exceptionally, the court is able to consider a claim that a public body is acting unlawfully in the steps that it is taking towards P by reference to the ECHR, and we suggest that the Supreme Court’s silence on this point should be taken as endorsement of this position. We note that this is different to the question of whether the Court of Protection should be able to make declarations and/or damages to reflect a public body’s past actions breach the ECHR – there is no doubt that the court has the jurisdiction to do this, but, as is becoming increasingly clear the approach of the LAA, in particular, would seem to suggest that the much better course of action will normally be to bring separate proceedings in the county or High Courts.

We note, finally, Lady Hale’s observations at para 38 as to the limits of s.5 MCA 2005. It is no little interest in light of the rumbling issue Alex has discussed elsewhere as to when judicial sanction is required before steps can be taken by public authorities that Lady Hale clearly takes an expansive view of s.5.

Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court. But if there is a dispute (or if what is to be done amounts to a deprivation of liberty for which there is no authorisation under the deprivation of liberty safeguards in the 2005 Act) then it may be necessary to bring the case to court, as the authorities did in this case.”

If the Law Commission recommendations are taken forward, then this “general authority” (a phrase which harks very much back to the wording of the original 1995 report) would be significantly constrained in any case involving significant interference with the Article 8 rights of the individual. For our part, though, we consider that the issues at the heart of MN’s case would always require resolution by the court – albeit we would sincerely hope at very much greater speed.

This post was written by Alex Ruck Keene, Sophy Miles and Neil Allen, respectively junior counsel for the Official Solicitor, Mrs N and Mr N before the Supreme Court.

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

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

Guest Post: Facilitating participation of ‘P’ in Court of Protection proceedings

[We publish here by way of a guest post a case study  written by Nicola Mackintosh QC (Hon) as to the facilitation of P in Court of Protection proceedings.  The case study will form part of the second edition of the Court of Protection Handbook, coming soon.  Nicola acted as P’s solicitor, instructed by the Official Solicitor as his litigation friend, in A County Council v (1) AB (2) JB (3) SB [2016] EWCOP 41, the case in which the measures set out below were explored].

In the body of [this book], we set out some of the ways in which practice needs to change within the Court of Protection to ensure that the court and representation process is looked at through P’s eyes, rather than just adding P as an afterthought.   Whilst the COPR and accompanying Practice Directions may well need to be amended in due course to secure this goal, creative steps are already possible within the framework of the COPR as they stand.   As a case study, we set out here those which were implemented to facilitate P’s participation in a fact-finding hearing listed to determine allegations of abuse at the hands of his parents.

P had expressed a wish to attend Court to come to the fact finding hearing to listen to what his parents and other witnesses were saying, as well as to ‘tell his story’ to the court. This was opposed by both his parents and the local authority, but the court ruled that he should attend.   The court also ruled that, whilst P was “almost certainly not competent to give evidence [this is] is no reason not to seek with appropriate help to elicit ‘information’ from him via a skilled intermediary….using Rule 95 (e) the Court may admit the information but there is no guarantee that it would accept or act upon it….. the Court’s ability to have information provided by P is wide and flexible…”

In the light of the judgment the practical arrangements which had already been made were implemented. These steps show clearly how vital it is when securing and enhancing P’s participation that each and every detail of the arrangements is planned from P’s perspective and not simply limited to a meeting with the judge (important as that is).  This involved the following:

  1. P’s lawyers meeting with P and securing appropriate Speech and Language Therapy support to prepare for the hearing by exploring concepts such as the following:(b) ‘what is a judge, what will the judge be deciding, why is it important to you’?(d) ‘how can I tell my story’?
  2. (c) ‘what will happen at the hearing, who will speak when, how long will it take etc.’?
  3. (a)‘what is happening in court, what is a case, why is your case in court, what is the case about’?
  4. Considering which court location would best meet the needs of the case, taking into account all physical facilities, travel time for P and others etc.
  5. As the court’s video facilities did not allow for P to be in an adjacent room viewing the proceedings from a distance so as to minimise distress, an alternative facility was found nearby which could provide a video link to the court. Arrangements were made for this between the IT specialists of the court and the other facility, and for the video link to be tested in advance to ensure it was working. In the event this facility was not used as P remained in court throughout the proceedings.
  6. (With consent) taking photographs of the judge, the courtroom and all the lawyers involved in the proceedings to explain to P the physical location and the identity of all involved in advance of the hearing.
  7. Before the hearing arranging a visit by P to the courtroom when the court was not sitting to see the layout, and also to meet the court clerk who was to be allocated to the hearing days.
  8. Deciding where it was best for P to sit in his wheelchair in the courtroom to listen to the proceedings, taking into account the position of other parties and ‘lines of sight’ with others.
  9. Arranging for P to be supported by staff regarding personal care, and ensuring mobile hoists were provided for P in both locations for care.
  10. Ensuring that there was enough physical space in the court complex so that P had a separate room just next to the courtroom, with a fan (P being a wheelchair user had reduced temperature control).

The first day of the hearing was listed as a Ground Rules Hearing, as provided for in the Advocates’ Gateway. On the first day, as planned, the judge met with P in a side room next to the courtroom. P’s solicitor was present, and P’s SALT also assisted by explaining to the judge that P was able to respond ‘yes, no, happy and sad’ through different Makaton signs. P showed the judge how he communicated each of these expressions, enabling the judge better to understand how to interpret P’s wishes and reactions.

Although the fact finding hearing was listed for 9 days, after the initial part of the first day of the hearing (P being present in court with his carers and intermediary) the parties set out their updated positions which then resulted in negotiations to see if a settlement could be reached without the need for the fact finding process. This lasted the first day and the terms of an order were agreed on the second day of the hearing. P was present during all discussions between lawyers and the court, and communicated his wish to continue to be involved and to listen to the proceedings. Between updates to the court he was permitted by the judge to remain in the courtroom with his support workers, watching a DVD. This reduced the need for him to be taken in and out of the courtroom, waiting for long periods in a small stuffy side room, and was invaluable. This could not have been arranged without the court’s co-operation and flexibility of the court staff.

Once agreement had been reached in principle between the parties as to the core issues in the case, it was considered vital for P’s wish to ‘tell his story’ to be facilitated. A very careful consideration of the issues raised, and the broad themes set out in the fact finding schedule was undertaken. Questions of P were drafted by P’s legal representatives with the assistance of P’s SALT and intermediary. As P’s communication was limited to responses such as ‘yes, no’ etc, it was necessary for leading questions to be posed however these were broken down into questions so that the leading element was minimised. Examples of questions included ‘Do you want to talk about when you were living at home?’, ‘How did you feel when you were living at home?’, When you were living at home did anyone do X to you?’, and if the answer was affirmative, ‘How did it make you feel?’ These questions were devised to ensure that P’s broad wishes were communicated to the court notwithstanding the agreement between the parties, so that P felt that he had been listened to by the parties and the judge, but avoiding detailed questioning on the fact finding schedule which eventually proved to be unnecessary.

The question and answer sessions were broken down into more than one session to allow P to rest and refocus. With agreement they were filmed on a mobile phone and then played to the judge in his chambers. They were then also played to the other parties. This flexibility avoided all the delays and organisational problems associated with using the court video facilities.

By the end of the second day, agreement had been reached in the form of a detailed order. The judge held a further short hearing and again explained the outcome to P, coming into the courtroom and sitting by P to confirm what was going to happen. P was repositioned in his wheelchair to be solely in the line of sight of the judge and not the other parties.

Although this case required considerable practical arrangements to be made, forward planning was vital in ensuring that all elements of P’s participation was effective in meeting the goal of P’s enhanced involvement in the proceedings. Each case will be as different as each P is different. The more that proceedings in the Court of Protection are attended by P, or P’s participation is secured by other creative means, the more the judiciary, Court staff, lawyers and all the parties will become accustomed to putting P at the centre of the process, and making appropriate arrangements. This is the beginning of a new era in the Court of Protection. This is only right given the role of the Court in making decisions which are of such fundamental importance to P’s life.

 

Case Management, s.49 and Transparency Pilot updates

Case Management Pilot

The Case Management Pilot will start on 1 September, to run until 31 August 2017 (alongside the s.49 Pilot and the extended Transparency Pilot, both discussed further below).[1]

The Case Management Pilot can be found here. It introduces three distinct pathways for COP proceedings: 1) a Property and Affairs pathway, 2) a Health and Welfare pathway, and 3) a hybrid pathway for cases that have elements of both. The expectations of practitioners will be different depending upon which pathway is engaged.     Common to each, though, is an expectation of much greater ‘front-loading’ and cooperation to narrow the issues.

The Case Management Pilot is accompanied by a revised set of Rules which foreshadow a re-numbering of the Rules that is anticipated as part of the second tranche of rules changes (moving to the same model as in the CPR and FPR).   For ease of reference, all the Rules that will apply for purposes of the Pilot are set out in an annex – with suitably highlighted amendments – to the Pilot practice direction.   They are also found collected together on the Court of Protection Handbook website here.   There are six Pilot Parts:

  • Pilot Part 1: the overriding objective, including the participation of P, heightened duties upon the court and upon parties, and new duties upon both legal representatives and litigants in person;
  • Pilot Part 2: interpretation and general provisions;
  • Pilot Part 3: managing the case;
  • Pilot Part 4: hearings;
  • Pilot Part 5: court documents;
  • Pilot Part 15: experts.

As these parts cover the majority of relevant matters that arise during the life of an application, the intention is that practitioners (and the judiciary) will have to do the minimum of cross-referencing to the current iteration of the Rules during the life of the Pilot.    However, an unfortunate consequence of the fact that for reasons beyond the control of the ad hoc Rules Committee the renumbering of the Rules cannot take place at present is that there will be parallel Rules for the life of the Pilot depending on whether cases are within or outside the Pilot.   This means, for instance, that Rule 3A representatives are actually Pilot Rule 1.2A representatives in cases on the Case Management Pilot.

Before highlighting the key points of the three pathways, it is important to note the types of applications which the Pilot will not affect, which include: uncontested applications, applications for statutory wills and gifts, applications relating to serious medical treatment and deprivation of liberty applications (both Re X applications and s.21A applications).   However, even for such cases, we strongly suggest that it is prudent to proceed in any case on the basis of any stricter obligation/test that would apply if the case were on the Pilot.   If the Case Management Pilot achieves its aim of changing the culture of the Court of Protection, then it is likely that the judiciary will seek to follow its spirit even where its letter does not apply.

It should also be noted that the intention is that the Case Management Pilot sits alongside and does not displace the Transparency Pilot, so the expectation will be that all of the hearings noted below, with the express exception of the Dispute Resolution Hearing provided for in the property and affairs pathway, will be listed according to the Transparency Pilot rules as regards public/media attendance.

Personal welfare pathway

The personal welfare pathway starts pre-issue, with a set of requirements designed to ensure that only those applications which actually require resolution by court proceedings come to court, and those which do, do so in circumstances where the issues are clearly delineated from the outset.   The Pilot Practice Direction then specifies in some detail what must be included with or accompany the application upon issue including – importantly – a statement as to how it is proposed P will be involved in the case.

The next stage is for matters to be considered by a judge on the papers both for gatekeeping purposes (i.e. allocating to the correct level of judiciary) and the making of initial directions including, importantly, listing a Case Management Conference within 28 days (unless the matter is urgent).      The judge can also direct that there be an advocates’ meeting before the CMC.

The CMC will be the first attended hearing and a vital step in the proceedings because of the obligations placed upon the court (not just the parties) to ensure that the issues are narrowed and directions set for the proportionate resolution of those that are in dispute. Importantly, one of the matters that the court will do is to allocate a judge to the matter – judicial continuity being recognised as crucial to the success of the pilot.    It is also important to note that this Pilot is running alongside the s.49 pilot discussed further below, and also includes a tightening of the rules in relation to experts (where the Pilot applies) so as to limit permission to circumstances where their evidence (1) is necessary to assist the court to resolve the issues in the proceedings; and (2) cannot otherwise be provided.

The intention is that in the ordinary run of the events there would then only be (at most) two more hearings, a Final Management Hearing and the Final Hearing. Ahead of the Final Management Hearing, whose purpose is to determine whether the case can be resolved by consent and, if not to ensure proper preparation for trial, an advocates’ meeting is to be listed at least 5 days in advance for purposes of – inter alia – preparing a draft order for the court to consider at the FMH.    Matters that are likely to be covered at the FMH will include such things as the trial timetable and a witness template, as well as the contents of the trial bundle: in line with the injunction given by the Court of Appeal in Re MN, the expectation is that the trial bundle for the Final Hearing will not generally exceed 350 pages, and must not include more than one copy of the same document.

It is important to note that, unlike the Public Law Outline, there is no fixed timeframe within which proceedings must be concluded, the only fixed date being the listing of the Case Management Conference.   The intention, however, is that the process set down in the Pilot is will mean dramatically shorter resolution of welfare applications.

Property and Affairs pathway

The property and affairs pathway does not start pre-issue because it is recognised that it is often only upon issue that it becomes clear that a property and affairs application is contentious.   It therefore comprises four stages.

The first stage is when the application becomes contested, i.e. when the court is notified in the COP5 that the application is contested or a respondent wishes to seek a different order.

The case management stage takes place on the papers, and includes either: (1) listing for a Dispute Resolution Hearing; or (2) transfer to a suitable regional court for listing of the DRH and future case management.   If the respondent has not given sufficiently clear reasons for opposing/seeking a different order, the judge will also at that stage require such reasons to be given.

The Dispute Resolution Hearing is a major innovation, and represents – in essence – judicial mediation in a form familiar to family practitioners.   A DRH, which will normally take place before a District Judge, is to enable the court to determine whether the case can be resolved and avoid unnecessary litigation, and to that end the content of the hearing is not to be disclosed and everything said therein is not admissible (save in relation to a trial for contempt).    The court is expressly required to give its view as to the likely outcome of the proceedings as part of the DRH.   The aim is for the court to be able to endorse a consent order at the end of the DRH; if not, the court will list for directions of the management of the hearing and a Final Hearing.

The last stage – the Final Hearing – will take place in accordance with directions made at the DRH (there being no Final Management Hearing as with the welfare pathway).

As with the welfare pathway, there is no fixed timeframe for the determination of the application.   Nor, in this instance, is there a specific timeframe for listing of the first attended hearing – the DRH.   This recognises that there is merit to flexibility because there will be some cases in which allowing longer for a DRH is more likely to bring about a quicker resolution overall; conversely, in some cases, the sooner that judicial banging of heads takes place the better.

Mixed pathway

If an application comprises elements of both welfare and property and affairs, prospective parties are directed at the pre-issue stage to identify which pathway is most effective and to comply with the requirements of that pathway so far as possible.   At point of issue, they must file a list of issues to allow the court to identify which pathway or mixture of elements is most appropriate.

The court will then, on the papers, either allocate the case to one of the two pathways set out above, or give directions as to the elements of each pathway are to apply and the particular procedure the case will follows.

Urgent applications

In all cases there is express provision for urgent applications, requiring the parties in particular to specify why the matter is urgent and any particular deadline by which the issue(s) need to be resolved as well, as well as directing compliance (insofar as possible) with any necessary pre-issue steps.

Expert evidence

An important change that is introduced by the Case Management Pilot is a revised Part 15 on expert evidence.   Crucially, the test for permission has been revised in COPR Pr121 to make it more stringent.   The court’s duty is now to restrict expert evidence to that which is necessary to assist the court to resolve the issues in the proceedings, and by COPR Pr 121(2) the court may only give permission to file or adduce expert evidence if it is satisfied that it is both necessary and cannot otherwise be provided.   Further, the court must now in deciding whether to give permission to file or adduce expert evidence have specific regard by COPR Pr123(2A) to (a) the issues to which the expert evidence would relate; (b) the questions which the expert would answer; (c) the impact which giving permission would be likely to have on the timetable, duration and conduct of the proceedings; (d) any failure to comply with any direction of the court about expert evidence; and (e) the cost of the expert evidence. Additionally, by para 4.5(m), the Case Management Pilot Practice Direction provides that for cases on the welfare pathway, the court must at the case management hearing actively consider whether a section 49 report (or a report from a Rule 3A/PR r1.2 representative) could achieve a better result than the use of an expert.

Section 49 Pilot

The s.49 Pilot also starts on 1 September, to run until 31 August 2017.   The Practice Direction applies both to orders made under s.49 MCA by the COP of its own motion and – more importantly – to orders sought by parties. The Practice Direction is accompanied by a draft order.   It recognises, in essence, that s.49 reports are an extremely important part of the COP’s armoury when it comes to information gathering, but that they must be deployed:

  1. Carefully, so as to ensure that they are targeted to public bodies actually able to provide useful information;
  2. With suitable thought and preparation on the basis that, to be effective, they are best approached as if they were expert reports.

An important innovation is the requirement, where possible, for a party seeking a s.49 report from a NHS body or local authority to have made contact prior to the application being heard by the court to identify an appropriate person (“a senior officer”) able to receive the order, and to have discussed with the body the reasonableness and time scales for providing the report.   Although it does not prescribe when a court will and will not order one, the Practice Direction set out (at paragraph 3) common factors that the court may consider when deciding whether to order a s.49 report, including:

  • where P objects to the substantive application or wishes to be heard by the court and does not qualify for legal aid;
  • where it has not been possible to appoint a litigation friend or [under the new numbering] rule 1.2 representative, including where the court has made a direction under rule 1.2(5);
  • where a party is a litigant in person and does not qualify for legal aid;
  • where the public body has recent knowledge of P; or it is reasonably expected that they have recent knowledge of P; or should have knowledge due to their statutory responsibilities under housing, social and/or health care legislation;
  • the role of the public body is likely to be relevant to the decisions which the court will be asked to make;
  • the application relates to an attorney or deputy and involves the exercise of the functions of the Public Guardian; and
  • evidence before the court does not adequately confirm the position regarding P’s capacity or where it is borderline; or if information is required to inform any best interests decision to be made in relation to P by the court.

An unofficial version of the template s.49 order in Word form is to be found here.

Transparency Pilot

The Transparency Pilot has been extended to run until 31 August 2017. We hope in due course that a formal report as to the reasoning will be published, but for present purposes practitioners – and indeed the judiciary – should note the following changes to the Pilot Order (which is available here, including in unofficial Word form):

  • An addition to paragraph 5A (i.e. those bound by the order) to make express that it binds “all persons who are provided with or by any means obtain documents and information arising from this application;”
  •  An addition to paragraph 6 (concerning anonymisation of the transcript of hearings/judgments/orders), making clear that a confidential schedule should be provided with the necessary identification (and a copy of the order) to any person who needs to know the identity of P and/or others anonymised, for instance for purposes of complying with an order for disclosure of documents/information relating to P;
  • A considerable simplification of the requirements relating to anonymisation of documents.  Because – so far – very few hearings have been attended by anyone other than the parties, the initially cautious approach, which required all core documents to be anonymised, has been relaxed.   There is now no requirement that this is to be done; rather the court, by new paragraph 7, may at any time give such directions as it thinks fit (including directions relating to anonymisation, payment, use, copying, return and the means by which a copy of a document or information may be provided) concerning the provision of information or copies of documents put before the court and the terms on which they are to be provided to any person who attends an attended hearing (and who is not already allowed to be given a copy of a document under PD13A – i.e. for such purposes as receiving advice or making complaints to relevant bodies).

Tor Butler-Cole of 39 Essex Chambers had previously prepared an unofficial easy read version of the Pilot Order, and we understand that an updated version to reflect the provisions of the amended Order will be forthcoming.

It should be noted, finally, that the PD extending the Transparency Pilot did so in such a fashion that it is now easier to update the Pilot Order, and practitioners should therefore make sure to ensure that they are using the current version, which will always be found here.

[1] What follows is an updated version of the note that appeared in the March 2016 39 Essex Chambers newsletter, and originally appeared in the August 2016 Newsletter. Alex as a member of the ad hoc Rules Committee has been involved in developing the Pilot.  As before, this note does not represent an official comment upon behalf of the Rules Committee.