Tag: Case management

New COP forms – samples now available

Samples of the new COP forms which will take effect on 1 July are now available here.

The annexes that will be required are as follows:

 Deputy, proposed deputy or other:
 Appointment of deputy for property and affairs COP1A
Property and affairs (where deputy not required) COP1A
Appointment of deputy for personal welfare COP1B
Personal welfare order (where deputy not required) COP1B
Application relating to a statutory will, codicil, gift(s), deed of variation or other settlement of property COP1C
Application relating to the appointment or discharge of a trustee COP1D and COP12
Application by existing deputy COP1E
Other applications COP24
 Enduring Powers of Attorney (EPA) or Lasting Powers of Attorney (LPA):
Question of validity or operation of an EPA/LPA COP1F
Application relating to a statutory will, codicil, gift(s), deed of variation or other settlement of property COP1C
Application relating to the appointment or discharge of a trustee COP1D and COP12
Application by existing attorney COP1E
Other applications COP24

We will provide links to the ‘live’ forms as soon as they are ready.

Re X – the Court of Appeal pronounces

Summary

The vexed question as to whether P needs to be a party to proceedings for authorisation of deprivation of liberty has now been answered, although not in the fashion that we might have expected.

In a detailed and very lengthy (45 page) judgment [2015] EWCA Civ 599, the Court of Appeal has held that it did not have jurisdiction to hear the appeals brought against the decisions in Re X Nos 1 and 2 [2014] EWCOP 25 and [2014] EWCOP 37.  In essence this was because the Court of Appeal considered that the President had not in fact made any decisions against which an appeal could lie.  All the members of the Court of Appeal identified, in different ways, the difficulties with the route that the President had adopted in terms of undertaking what was “in substance a consultative exercise intended to promote the development of new rules of procedure,” which was not something that the court was entitled to undertake (paragraph 146, per Moore-Bick LJ).

Importantly, however, all three of the members of the Court of Appeal made clear, in different ways, that the President’s conclusions (at least as regards Article 5) could not, in consequence, be considered authoritative (this is expressed most clearly by Gloster LJ at paragraph 127).

Further, and equally – if not more – importantly, all three members of the Court of Appeal made clear that those conclusions were flawed.   Whilst, strictly, these conclusions are obiter, they were very strongly expressed, Black LJ making clear that her 50 paragraphs of analysis on this point were firmly what she would have decided had the court had jurisdiction.   We therefore anticipate that very considerable weight would be placed upon them by any subsequent court considering (for instance) a challenge to the ‘Re X procedure.’

All three members of the Court of Appeal were clear that, at least as the Court of Protection is currently constituted, both fundamental principles of domestic law and the requirements of the ECHR demand that P be a party to proceedings for authorisation of deprivation of liberty:

The key paragraphs from each of the judgments are set out below.

Black LJ

1. “it is generally considered indispensable in this country for the person whose liberty is at stake automatically to be a party to the proceedings in which the issue is to be decided. The President’s conclusion that it was unnecessary for this to be so in relation to an adult without capacity appears therefore to run counter to normal domestic practice. It might, therefore, be thought to require very firm foundations if it is to be regarded as acceptable” (paragraph 86);

2. “Article 5 is not, of course, drafted in terms which reflect our domestic procedure and practice and nor does the jurisprudence of the ECtHR speak in those terms. It is not surprising therefore that it is not said explicitly that a person whose liberty is the subject of proceedings must be a party to those proceedings. It is necessary to consider the substance of what is said in the Article and the decisions concerning it and to determine how the required guarantees can be delivered in the procedural framework of the domestic legal system” (paragraph 93);

3.  “What is essential is that the person concerned ‘should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation’. In so far as special procedural safeguards are required because the person is not fully capable of acting for himself, they are there to secure the right and must not impair the ‘very essence’ of it.” (paragraph 94);

4.  “I can accept that, in theory, P need not always be a party to the proceedings if his participation in them can reliably be secured by other means. The question is, however, whether this can be done and, more importantly, whether the streamlined procedure contemplated by the President could be sufficiently relied upon to achieve it. In considering this, it has to be borne in mind that the President was establishing a process which was to be universal. It would be translated into action by many who were expert and efficient but, inevitably, also by some who were lacking in time or expertise or judgment. […] I am not suggesting bad faith on the part of those involved in the process, merely acknowledging the pressures and realities of everyday practice” (paragraph 96);

5.  “The problem with the President’s scheme, in my view, is at least twofold. First, it is heavily dependent upon P conveying a wish to be joined in the proceedings or opposition to the arrangements proposed for him, or someone else who has his interests at heart taking these points on his behalf. Secondly, it depends entirely on the reliability and completeness of the information transmitted to the court by those charged with the task. In many cases, this will be the very person/organisation seeking authorisation for P to be deprived of his liberty and the possibility of a conflict of interest is clear” (paragraph 100);

6.  Especially given the limitations with the consultation process contained in Annex C to the Re X forms, and the challenges of consulting with a person of impaired capacity, “[i]t is not appropriate, in my view, for P’s participation in proceedings to turn in any way upon whether he wishes to participate or indeed upon whether he expresses an objection to the form of care that is being provided or proposed. There is too high a risk of slip ups in such a scheme. Article 5 requires a greater guarantee against arbitrariness” (paragraph 103).

7.  “I do not go so far as to say that no scheme in relation to deprivation of liberty would comply with Article 5 unless it provided for deprivation of liberty proceedings in which P was formally a party. The Schedule A1 procedure (with the initial authorisation conferred by the local authority but with provision for a challenge under section 21A) has been accepted as providing appropriate safeguards in relation to deprivation of liberty and I entirely accept that it could be extended to cover a wider category of case. Furthermore, I accept that it might be possible to take the best of that procedure and to devise a less complex process which will still protect those whose liberty is in the balance. I cannot agree with the President, however, that the streamlined scheme he devised provides the elements required for compliance with Article 5. I stress that I am only concerned, at present, with whether P must be a party to the deprivation of liberty proceedings. Given the tools presently available in our domestic procedural law, I see no alternative to that being so in every case” (paragraph 104, emphasis added);

8.  Under the President’s scheme, “which amounts to placing an additional hurdle in the way of P participating in the proceedings – instead of being a party automatically, there is an additional process to be gone through before he is joined, namely the collection/provision of material to persuade the court that he wishes/needs to be joined… P therefore in a position which is the opposite of what the Strasbourg jurisprudence requires, namely that the essence of the Article 5 right must not be impaired and there might, in fact, need to be additional assistance provided to P to ensure that it is effective” (paragraph 107);

9. Even if the consequence were to be greater pressure on resources and delay, such were not material to a determination of whether there are adequate safeguards to satisfy Article 5. “For the reasons I have explained, had I been in a position to determine the issue in these proceedings, I would have held that in order that deprivations of liberty are reliably subjected to thorough scrutiny, and effective procedural safeguards are provided against arbitrary detention in practice, it is presently necessary for P to be a party in the relevant proceedings” (paragraph 108).

Gloster LJ

10.  “I am supported in this conclusion [that the President’s opinions are not authoritative] by the views of Lord Justice Moore-Bick and Lady Justice Black, with which I agree, that in any event the President’s conclusion – that a patient need not be made a party in order to ensure that the proceedings are properly constituted (even though he may be joined as a party at his request) – is not consistent with fundamental principles of domestic law and does not provide the degree of protection required by the Convention and the Strasbourg jurisprudence” (paragraph 127)

Moore-Bick LJ

11.  “In order to obtain a decision which binds a person of full age and sound mind it is necessary to make him a party to the proceedings and in the light of the approach adopted in Cheshire West, it is difficult to see why the same should not be true of a person who lacks capacity, despite the fact that he must act by a litigation friend, when his liberty is at stake” (paragraph 170);

12.  “The decision in Winterwerp v The Netherlands (1979) 2 E.H.R.R. 387 makes it clear that a person who lacks capacity must have access to a court and an effective opportunity to be heard, either in person or by means of representation. The fullest right to participation in proceedings is that which is enjoyed by the parties, but the streamlined procedure envisaged by the President contemplates that there will be cases in which a person lacking capacity will not be made a party because someone considers that it is unnecessary for that step to be taken. I agree with Black L.J. for the reasons she gives that a procedure under which such a person need not be made a party in order to ensure that the proceedings are properly to constituted (even though he may be joined as a party at his request) is not consistent with fundamental principles of domestic law and does not provide the degree of protection required by the Convention and the Strasbourg jurisprudence” (paragraph 171).

It is perhaps important to note that the Court of Appeal did not express any view upon the two other questions that were formally before it on the appeal, namely (1) whether in all cases an oral hearing is required; and (2) whether a litigation friend must act via a solicitor (unless they are themselves entitled to do so).     However, given the manner in which the Court of Appeal expressed themselves in relation to the President’s judgments, it can properly be said that the President’s conclusions in this regard must also be seen as the expression of opinion rather than authoritative decisions (indeed, strictly, extra-judicial opinion).

 Comment

The unusual saga that is Re X has reached a suitably unusual conclusion (as it is difficult to see how anyone could seek to take this further).

Quite where this leaves practitioners and the Court is, at present, not entirely clear.   However, it would appear very likely that the Re X procedure will have to be subject to an immediate overhaul so as to provide that P is joined in each case.   It may, however, be that this is short-lived because it might, potentially, be that other directions can be made under Rule 3A(2) (for instance the appointment of a representative or an accredited legal representative upon the creation of a panel of such representatives) who can secure P’s participation in such a way as to secure protection of their rights.   It should perhaps be noted that the draft of Rule 3A was, in fact, before the Court of Appeal, although no reference was made to it by any of the members of the court.

We suggest that this decision is likely:

1. To give an immediate impetus to development of the scheme for Accredited Legal Representatives so as to widen the pool of representation available where P is joined as a party;

2.  To add to the pressure to ensure that a suitable regime is put in place sooner rather than later that provides for the administrative authorisation of deprivation of liberty in settings outside hospitals and care homes.   The time-frame of 2017 for the Law Commission’s report is looking increasingly problematic in this regard, we would suggest.

We should perhaps emphasise three final points:

1.  no party to what (in fact was not) the appeal against (what in fact were not) the decisions of the President challenged his conclusions as to the evidential requirements that must be satisfied before a judge can authorise a deprivation of liberty. Nor did the Court of Appeal cast any doubt upon his conclusions that, for instance, there must be objective medical evidence that the individual is ‘of unsound mind.’ Given how robust they were in their conclusions as to the We would therefore suggest that it is clear that whatever procedure is enacted by the court (and in due course whatever replacement is proposed by the Law Commission) can properly proceed on the basis that the President properly identified the ‘irreducible matters’ that must be addressed in evidence to comply with Article 5(1)(e) ECHR.

2.  Linked to this, we would strongly advise that local authorities and CCGs who are responsible for care arrangements that give rise to deprivations of liberty outside hospitals and care homes do not delay in making applications until the Court of Protection has put in place a replacement for the Re X procedure.   This decision does not alter the obligation on such bodies to seek authorisation from the Court where such is necessary, nor does it alter the nature of the evidence that must be put before the Court – what it alters is what the Court must then do in order to ensure compliance with Article 5(1)(e) ECHR.

3.  Lastly practitioners must be alert to any ongoing welfare cases where P may not have been joined, or where P has been joined but no litigation friend has been appointed – perhaps for funding reasons – which involve P’s residence, where P’s living arrangements may satisfy the “acid test” in Cheshire West. In such cases there must be a question as to whether P has the ability to participate effectively (for a very recent example, see Bournemouth Borough Council v PS [2015] EWCOP 39).

Experts, litigants in person and compulsory examinations: a further shot across the bows

The Court of Appeal has delivered a highly critical judgment on the failure of the Family Court to comply with the law and FPRs on expert evidence: see Re C [2015] EWCA Civ 539.

The judgment makes important comments about:

– the control of expert evidence

– how litigants in person should receive a fair hearing and

– the basic principle that a capacitous adult cannot be compelled to submit to a medical examination.

Its relevance extends beyond the family sphere and should be borne in mind by those practicing in the COP.  Lord Justice Aitkens comments at paragraph 50 that:

The problem of unnecessary expert reports has not been confined to family cases. The result of a proliferation of unnecessary expert reports (in whatever type of case) is that courts are all too often swamped with materials that are either not relevant to the issues in the case or are not specifically focused on the relevant issues. Unnecessary expert reports cause delays and, inevitably, costs are increased. In family cases where public funding is often involved this had meant that taxpayers’ money has sometimes been wasted. Section 13 of the Children and Families Act 2014 and part 25 of the FPR now lay down firm statutory and procedural rules that must be applied in respect of expert evidence in family proceedings. It is the duty of all family law practitioners and the courts to learn, mark and digest these provisions and ensure that they are applied rigorously.

The case involved a dispute between two separated parents of a young child.  The mother was represented and the father, who had limited English and was supported by an interpreter.  The child was not represented but a Cafcass Family Court Advisor (FCA) was present.

The mother did not agree to the father having unsupervised contact and believed he had a personality disorder.

Counsel for the mother asked in the course of oral submissions for a psychological assessment of the father.  This was not supported by a written application as required by Part 25 of the Family Procedure Rules, although counsel offered to ensure such an application was made.  In fact no written application was made.

The FCA considered some of the mother’s comments about the father’s supervised contact to be unfair and was not persuaded of the need for a psychological assessment.

Lord Justice Ryder quoted the following exchange with concern:

Q “The mother is making an allegation that she believes she cannot agree to contact because she believes you may have a psychological problem that needs addressing”.


A “But that is wrong”.


Q “Well, that has yet to be proved. What I would like you to do, yes, it is to address the court as to why you think that is not necessary…………”.  

Ryder LJ noted the recommendations by the Judicial College as to how to ensure that litigants in person are treated fairly by the court:

13. The obligation was placed on the father to demonstrate that a report was unnecessary. That was simply wrong. In the subsequent exchanges between the parties and the legal advisor there is regrettably an inference that because the mother has made her allegations then without anything further, let alone any evidence, the father must justify his position. There is no reference to any evidence by anyone and no consideration in that context of a proper and fair process.

14. […] The practice that is recommended is that litigants in person are sworn at the outset of the hearing so that their representations can be used as evidence. They should each be asked to set out their case (preferably without interruption and in a fixed time window) and they should be encouraged by the court to answer any relevant propositions put by the other party. The court should identify the key issues for them and put the same issues to each of them at the beginning or end of the statements they are invited to make.

He suggested that the time may have come for this process to be formalised into practice guidance.

The court’s written reasons were criticised for being nothing more than a recital of the mother’s case without analysis and did not address why the expert evidence was “necessary to assist the court to resolve the proceedings justly” (s 13(6) Children and Families Ac 2014).

Instead the whole statutory scheme and procedural scheme had simply been ignored.   There had furthermore been an assumption that the Legal Aid Agency would meet the mother’s costs.

Ryder LJ commented

It should by now be obvious that on any reading of the process undertaken by the family court there was no compliance with the statutory scheme and the procedural code. That had the effect of putting a weapon into the hand of the mother without good reason. The father was placed under an obligation to do something that was not reasoned on the evidence and in respect of which, if he failed to comply, adverse inferences could be drawn which could affect the welfare determination. That was not a fair process. Only if the evidence justifies the necessity should permission be given to adduce expert evidence. Only in that circumstance should a party be at risk of a negative inference being drawn from a failure to comply. It is good practice to include the risk of a negative inference being drawn from non-compliance as a recital to an order giving permission.

35.  The order made by the magistrates also fell into error in two other respects a) in the way in which it was worded so as to direct the father to undertake what was a medical assessment and b) in the manner in which the costs of the expert were to be provided for. I can take the first error shortly. It is an elementary principle that a competent adult cannot be ordered to have a medical procedure. A psychological assessment of the kind anticipated by the direction made in this case is a medical procedure. If psychological expert evidence is necessary and, as is likely if it is going to have any weight, it involves one or more of the adults or children in the family, the direction should be that the parties concerned ‘have permission to instruct ….. etc’. That should be accompanied by a warning explained to the parties in court about the negative inferences that the court can draw if a party fails to co-operate or comply. That warning should be included in the record that forms part of the court’s order i.e. as a recital.

36.  The costs of the expert were expressed to be apportioned equally between the parties with the expectation that the mother’s costs would be provided for by the Legal Aid Agency (LAA). No attempt was made to ascertain father’s financial position with the consequence that his ability to pay was unknown. One must also observe that because part 25 was not complied with the court did not know whether the report would cost £4,000 or £10,000. One might think that was a matter of some importance. Likewise, it was an unwarranted assumption that the LAA would pay half the costs. There was no indication from them by way of prior authority or otherwise to that effect and the reasons given by the magistrates came nowhere near that which would ordinarily be required to satisfy their guidance (not least because neither part 25 of the Rules nor the statutory criteria in section 13 had been complied with).

Ryder LJ said that the magistrates’ order could not stand and noted that the circuit judge’s decision on appeal had merely considered the matter from the point of view of the magistrates and had been a superficial approach to an important question of procedural justice.  It also could not stand.  The appeal was allowed and the matter remitted to the Family Division Liason Judge.

Comment

Although the test in the Court of Protection Rules (COPR 121) is for expert evidence to be limited to that which is reasonably required to resolve the proceedings it has been clear for some time that this provision is on borrowed time and the likelihood is that a similar test to that set out in s13 CFA 2014 will be adopted.

In the meantime the comments about expert evidence here are entirely consistent with those of the Court of Appeal in Re MN [2015] EWCA Civ 411.

The reference to the advice of the Judicial College regarding litigants in person is useful and we agree with his Lordship that formal practice guidance on this issue would be of benefit.

Lastly practitioners in the COP frequently have to grapple with the difficult question of parties other than P whose conduct may suggest they that they have an undiagnosed disorder or may lack litigation capacity.  This case is a firm reminder that a capacitous adult cannot be compelled to have a medical examination, but suggests that a recital should warn of the possibility of an inference being drawn if a party does not co-operate.

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

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

The Court of Protection comes of age

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

Summary

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

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

The scope of the Court’s jurisdiction

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

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

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

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

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

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

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

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

Human Rights

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

Practice and procedure: when should declarations be used?

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

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

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

Practice and procedure: identification of issues

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

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

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

Comment

Jurisdiction

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

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

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

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

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

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

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

Decisions/declarations

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

Case management

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

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

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

All change at the COP (part 1)

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

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

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

This post serves as an overview.

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

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

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

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

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

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

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

What place morality (as compared to forensic rigour)?

Summary

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

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

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

Comment

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

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

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

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

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

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

Summary

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

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

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

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

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

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

Comment

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

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

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

Extreme Product Champions and their effect on P

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

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

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

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

Comment

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

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