The CoP forms have moved today (21 March) to the .Gov.uk website, and can be found here.
Remember that 1 December sees the coming into force of the new look CoP Rules and accompanying Practice Directions. All of these can be found most easily on the Court of Protection Handbook website here, together with a handy destination table to show where the old Rules have gone. The changes and their background are discussed in the November 39 Essex Chambers Mental Capacity Report here.
The revised second edition of the Court of Protection Handbook is now out, including an update on key developments over the past year, and a copy of the new Court of Protection Rules 2017. Those kindly people at Legal Action Group have also prepared a supplement with the update and the Rules. This will be sent out automatically (for free) to people who bought the second edition directly from LAG but can be requested (by email to email@example.com) for free by those who bought from other outlets. It can also be found as a PDF here, and will shortly be available (again for free) as an eBook from Amazon.
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|
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.
Charles J has today (25 September) handed down the judgment in Re NRA  EWCOP 59, sometimes described as Re X (2).
The case concerned welfare orders sought in respect of ten individuals whose care arrangements involved deprivation of their liberty. He described it as part of the “fall out” from the majority judgment in P v Cheshire West.
The case considered the procedural safeguards needed and at the heart of the case was the question as to whether P should be joined as a party. The Re X litigation had thrown up contradictory obiter views in respect of applications (which were referred to as “judicial detention” cases) that were seen as uncontentious. The President of the Court of Protection had delivered two judgments (Re X (1) and Re X (2)). The Court of Appeal judgment had concluded that the initial Re X judgments had been ultra vires. Therefore the Court of Appeal did not have jurisdiction to consider the appeal, but had strongly indicated what they would have done had they been able to do so, and all three judges considered that P should be a party. The Court of Appeal had not considered ancillary issues such as, if P is always a party, who should act as litigation friend and whether there should be an oral hearing.
The cases were described as examples of “benevolent” arrangements that “many find difficult to characterize as a deprivation of liberty” (taken from the comments of Baroness Hale at para 10 in P v Cheshire West).
Charles J noted that in Cheshire West Baroness Hale referred to the need for “periodic checks” and suggested that these should not be stigmatizing. He cast doubt on whether this reflected the experience of family carers and noted that any simplified solution should recognize the central role of families and carers [para 12].
His approach was to consider what was required to satisfy requirements of common law and Convention rights, which he grouped under the heading “the safeguards” [para 24] and then what procedural steps would satisfy these in a practical effective and speedy way in cases of deprivation of liberty. Identifying the Safeguards entailed considering alternative ways of guaranteeing procedural fairness (“the requirements”) and whether these were likely to work (“the Effects”) [para 25].
Charles J acknowledged that the instinctive reaction of lawyers in England and wales would be that P should be a party in all cases in the Court of Protection because he will be affected and bound by them [para 34]; but that consideration of the fact that the overwhelming majority of cases relate to property and affairs and are uncontentious indicates that fairness does not always require this. He applied to the Court of Protection the comment in Re R (Care; Disclosure; Nature of Proceedings)  1 FLR 755 that family cases have both adversarial and investigatory aspects [para 36]. The requirements of fairness will be different depending on whether a case is or is not contentious. An independent check on each of the property and affairs cases – and deputyship applications- would be disproportionate; hence the presumption that P need not be a party in such cases.
The purpose of ss5 and 6 MCA was again to allow day to day decisions to be made by those involved in caring for P [para 40]. The test for such interventions (ie, is the intervention the least restrictive and in P’s best interests) is not different in substance from the test to be applied in Article 5 cases [para 41].
Moreover some adults with capacity are objectively deprived of their liberty by their care packages but have no alternative but to accept this as they lack the resources to bring judicial review proceedings [para 42].
Charles J accepted that a balance needed to be struck in order to acknowledge the risk that an apparently uncontentious package in P’s best interests may not in fact be either; and acknowledged the advantage for P of an outside check [para 44].
In many cases the appointment of a family member or friend, or the Official Solicitor will add little value other than to confirm the accuracy of information provided (and in some cases to uncover inaccuracies) [para 51].
Reviewing the statutory scheme under the MCA and DOLS Charles J noted that the Court does not determine whether P should or should not be deprived of his liberty but makes a determination of his best interests the corollary of which may be a deprivation of his liberty and thus require additional safeguards eg reviews and whether P should be a party [para 73]. The existence of a deprivation of liberty may further have relevance to the question of damages for breach of Article 5.
Although the Official Solicitor had agreed to accept an appointment to act under specific funding arrangements in 8 of the 10 cases (whereby some solicitors had agreed to carry out some preliminary work pro bono) the Official Solicitor had indicated that he would reach saturation point in the future absent additional funding.
Under the heading “legal aid” Charles J noted that the Lord Chancellor had been reviewing the impact of Cheshire West and the House of Lords recommendations to end the disparity between those detained under DOLS and those detained under the MCA for some time [para 95]. He noted that full representation would only be granted if there was to be or was likely to be a hearing [99 onwards] and rejected the suggestion that an oral hearing was always necessary and should not be listed simply to access legal representation.
He took the view that legal help would not be available once proceedings were issued and P was represented by a litigation friend  and even if this were incorrect the means requirements precluded this as a source of funding in most cases.
He concluded (correctly) that legal aid will only be a solution if the case proves contentious and requires a hearing.
He did not agree that a rule 3A representative would resolve the issue  as this did not provide P with the status of a party. He rejected the Law Society’s submission that an ALR could never be appointed in a case involving deprivation of liberty .
He noted the impact on resources of the Court of Protection of the joinder of P in all cases, as well as on the resources of litigation friends .
He concluded that a litigation friend need not always act through a solicitor. A litigation friend is not a party . In comments which emphasise the rapprochement between the Court of Protection and the Mental Health Tribunal worlds, he referred to his judgment in YA v CNWL, where he likened the role of the appointed representative under TPR 11(7)(b) to a litigation friend who may sometimes have to over-ride P’s wishes. He returns to this analogy when considering the role of the RPR.
At paragraphs 158 onwards Charles J considered the availability of family or friends as potential litigation friends to P. This can be replete with difficulties where there is family conflict (as in Re UF) or a dissonance between the views of P and of his family (as in Re AJ).
In a comment which sits uncomfortably with the judgement of Baker J in Re AJ, Charles J does not agree that the RPR should challenge a standard authorization whenever P objects; but instead should decide whether to issue at all and then should only advance arguable points (again analogous to his views about the role of the Tribunal representative in YA): para 171-2.
Part 3 of the judgment contains the discussion on the question whether the Requirements and the Effects mean that P must be a party to ALL applications for welfare orders seeking a deprivation of liberty. He concludes that the answer is “no” and that he prefers the obiter reasoning of the President to the Court of Appeal: para 177.
This is because:
- what fairness requires will depend on the context [para 187] where Charles J noted that in para 57 of the judgment in Winterwerp the court concluded that an Article 5(4) compliant process must “have a judicial character and gives the individual concerned guarantees appropriate to the kind of detention in question” [para 187 (iii)].
- The comments in RP vUK about the margin of appreciation, which takes into account “all relevant factors” including the nature and complexity of the issue and what was at stake for P” [para 187 (v)].
He acknowledged the need to protect “the very essence” of Article 5 rights which will vary with each case [para 190].
The heart of the judgment is Charles J’s conclusions as to the “essence” of the rights guaranteed by Article 5.
These are set out below:
“The combination of the requirements of Article 5(1) and 5(4) to the initial decision making and the challenge of the decision made (see paragraph 182 above) shows that, when in reliance of Article 5(1)(e) there is or is going to be an objective deprivation of liberty, the essence of Article 5 is to provide safeguards that put a person who lacks the relevant capacity in a sufficiently equivalent position to a person who has that capacity and so who could himself:
- consider, test and decide between competing provisions for his care or treatment,
- consent to one of them, and
- keep under review and challenge the arrangements put in place.
This gives rise to the need for a process that is directed to ensuring that the steps referred to in paragraph 164 (i) to (iii) above are adequately carried out or that their subject matter is adequately investigated by the court. Namely:
- the elicitation and communication to the court of P’s wishes and feelings and the matters referred to in s. 4(6) of the MCA without causing P any or any unnecessary distress,
- the critical examination from the perspective of P’s best interests, and with a detailed knowledge of P, the pros and cons of a care package, and whether it is the least restrictive available option, and
- the review of the implementation of the care package and changes in P’s behaviour or health.
and in his view require
- elicitation of P’s wishes and feelings and the matters referred to in s4(6) MCA “without causing P any or any unnecessary distress”;
- critical examination of the pros and cons of the care plan from the perspective of P’s best interests and in the context of the least restructive alternative and
- the review of its implementation and changes in P’s behaviour and health.”
The minimum standards required of procedural safeguards will vary from case to case and within the exceptions to Article 5, and within the issues which arise in each case [para 193]. He considers this consistent with Baroness Hale’s comments about the possibility of simplifying the safeguards in Cheshire West [para 195] which support the proposition that the COP rules can be applied flexibly.
Under the heading “Flaws and gaps in the reasoning of the Court of Appeal” [para 197 onwards] he criticizes the reasoning of Black LJ for treating “all deprivations of liberty as being effectively the same for the purpose of the application of the procedural safeguards” [para 205]. He distinguishes cases where deprivation of liberty is authorized purely because of P’s best interests from secure accommodation cases relating to children and these involve factors other than the paramountcy principle (such as risk to others, which also features in decisions to detain under the MHA); and this is relevant to the minimum standards question.
Nor does the Court of Appeal recognize that the relevant comparator is with an adult with capacity who consents to the deprivation of liberty because this is the role of the court under s16 (circular!- possibly an argument for reduced safeguards on review).
At para 215 Charles J refers to his conclusion in YA at paras 39-41 that legal representation is not a minimum requirement in all cases. He considered that in many cases family members will be best placed to act as litigation friends and provides examples from the 10 cases before him.[219-224].
At paragraphs 223- 229 Charles J considers the information provided in the streamlined procedure and how this could be improved. He recommends additional information, such as- importantly- details of when supervision is provided; use of sedation or assistive technology; what would happen if P tried to leave, and statements from those providing care to P .
He suggested that information should also be provided about any tenancy agreement; the participation of family and friends; and why it is considered that the case can be dealt with on the papers.
As litigation friends do not need to instruct solicitors; and as a hearing is not needed in all cases, there is very little benefit in making P a party and appointing a family member as a litigation friend rather than as a Rule 3A representative and where this is an available option this will provide P with the requisite safeguards [231-2]. There should be a direction to keep the care package under review. He considers that this can reliably secure P’s participation without making P a party and thus falls within the exceptions to the need for party status identified by Black LJ in the Re X judgment.
Where there is not a family member or friend who can be appointed this should not require joinder of P but instead the court should consider the use of s49 reports and summonses; and the “much better solution” of the Secretary of State for justice of appointing “Rule 3A representatives identified by the local authority”. He urged the Secretary of State and local authorities to consider “urgently” how this solution can be provided on the ground and recognized that it this not available this will need to be addressed [265-7].
He expresses the view that his conclusions do not discriminate for the purposes of Article 14 [para 268].
His conclusions are summarized in 269:
“A brief summary of my conclusions is that:
- P does not have to be a party to all applications for welfare orders sought to authorise, and which when they are made will authorise, a deprivation of P’s liberty caused by the implementation of the care package on which the welfare order is based.
- In two of the test cases before me I have made orders that reflect that conclusion and my conclusion that the procedural safeguards required by Article 5 are (and are best) provided in those cases by appointing a parent of P as P’s Rule 3A representative. As such, that parent as a continuation of the dedicated and devoted support given by P’s family to P and directed to promoting P’s best interests, in a balanced way, can best provide (a) the court with the information it requires about the care package and P, and (b) P’s participation in the proceedings. Also, that parent can and in my view will monitor the implementation of the care plan and so initiate any challenge to it or review of it that the parent considers should be made in P’s best interests.
- I do not have a test case before me in which (a) P has not been joined as a party and the Official Solicitor has not agreed to act as P’s litigation friend, and (b) the appointment of a family member or friend as P’s Rule 3A representative without joining P as a party is not an available option. Such a test case or cases should be listed for hearing.
- In contrast to the Court of Appeal in Re X and subject to further argument in such a test case or cases, I consider that the way in which the Court of Protection can at present best obtain further information and P’s participation in such cases is for it to exercise its investigatory jurisdiction to obtain information through obtaining s. 49 reports or through the issue of a witness summonses. This keeps the matter under the control of the court rather than invoking the necessity of appointing a litigation friend with the problems and delays that history tells us this entails and will entail and I have concluded is, or shortly will be, not fit for purpose.
- I do not for a moment suggest that absent further resources being provided there will not be problems and delays in taking the course referred to in paragraph (4). Also, and importantly, I recognise that it would be focused on Article 5(1) and would not provide for monitoring on the ground until it is repeated from time to time for that purpose. But, the appointment of a litigation friend will also not provide that monitoring.
- In such cases the argument advanced by the Secretary of State before me that a Rule 3A representative identified by the local authority be appointed shows that if this was a practically available option it would replicate the input that I have decided can be provided by an appropriate family member or friend and so satisfy the procedural safeguards required by Article 5 and common law fairness in non-controversial cases without joining P as a party.
- That replication is an obvious solution that will provide the necessary safeguards more efficiently and at less expense than either
- the making of orders for s. 49 reports and the issuing of witness summonses perhaps coupled with more frequent reviews, or
- joining P as a party.
- So I urge the Secretary of State and local authorities to consider urgently, and in any event before a test case or cases of this type are before the court, how this solution can be provided on the ground.”
This is a decision focussed on practical solutions. It is of note however that much reliance is placed on the availability of resources – the Rule 3A representatives. There will of course be cases where family members and friends are able and willing to step into this role. There will be many other cases where P is unbefriended. In these cases, the court has two options. The first is to make use of s49 reports and the power to issue witness summonses to elicit the required information. This appears quite onerous, and can also be contentious- see the recent decision in RS. The second is the solution identified by the Secretary of State which is to appoint Rule 3A representatives “identified by the local authority.”
There must be some doubt as to the ability of local authorities- already struggling to meet their obligations to provide IMCA and Care Act advocacy- to conjure up another group of individuals who will step in and provide the safeguards needed. Nor is there any consideration given as to how these representatives will be funded.
The comments on YA and Re AJ can be seen as obiter as both judgments related to quite different scenarios. However it is noteable that in paragraph 145 Charles J appears to go further than he went in the YA judgment by expressly referring to the need for litigation friends (and by analogy Rule 11(7) representatives) to over-ride the wishes and feelings of patients without capacity.
It is worth remembering that those appointed as “Rule 3A” representatives may ask for directions under COPR 148A, which could include a request for P to be joined and a litigation friend appointed.
The possible use of “accredited legal representatives” (ALRs) if they become available was dealt with quickly at paragraph 117. There is currently no such panel of ALRs (although there is also no cohort of rule 3A representatives to be called on by local authorities). This would have been a practical solution at least in cases where P is entitled to legal aid. It is noted that in Re PD Baker J encouraged the possible use of ALRs in Schedule 3 cases. ALRs appointed in Re X types cases would have been well placed quickly to scrutinise and identify which cases require contested hearings and which really are uncontentious.
A reminder that today, 1 July, is a big day at COP Towers because:
(1) The remainder of the first round of COPR rule changes come into force today: an unofficial compilation of the amendments with a commentary by Alex can be found here;
(2) New Practice Directions are in force to accompany the Rules, available here;
(3) New forms are available here (do not misled by the fact some of them suggest that they are the old versions on the link – they are the new forms as can been seen in the top left hand corner of each: check it has 07.15 below the relevant COP1 etc number); and
(4) New LPA forms are available here.
We are hard at work providing updates here as to how the changes affect the text of the Handbook, so keep checking back over the next week or so for more.
In advance of the COP Rule changes coming into force on 1 July, we have updated the legislative materials page of the Handbook website to give you the updated (or new) Practice Directions. We will be providing updates to the book on the website pending further rules changes being made (hopefully) later this year and a second edition next year.
In the Matter of MN (Adult)  EWCA Civ 411 (Court of Appeal (Sir James Munby P, Treacy and Gloster LJJ))
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)  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 [ 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:
- 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;
- 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.
- 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.
- 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?”
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  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:
- 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)  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.
- 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  EWHC 2183 (COP),  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  EWHC 3460 (Fam),  1 FLR 1115, paras 11-18.”
- 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  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  EWHC 502 (COP),  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:
- 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.”
- 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)  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;
- 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.
- 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.”
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:
- 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;
- 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;
- 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  EWCOP 2512: “the vast majority of decisions are taken informally and collaboratively by individuals or groups of people consulting and working together;”
- 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;
- 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  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);
- 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:
- Inform them about a decision;
- Consult them about a decision;
- Involve them about a decision; or
- 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)  EWCA Civ 1227,  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.
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.
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.
The Practice Directions supporting the new Court of Protection Rules have been published now. You can read them here.
The following are in force now:
PD3A- authorised court officers
PD3B- levels of judiciary
PD11A- Human Rights
PD12A-Jurisdiction to be exercised by certain judges
PD21A- allocation of appeals
The remainder will come into effect on 1st July 2015.
Practitioners’ attention is drawn in particular to the following:
PD 2A– supporting new Rule 3A (participation of P), and setting out the approach the court may take in deciding whether to appoint a Rule 3A representative. Paragraph 11 describes the factors which the court will consider when deciding how P’s interests will best be furthered. These will include for example where expert evidence is needed on P’s behalf which might be a trigger to joining P and appointing a litigation friend). Paragraph 12 makes suggestions as to who might properly be appointed a representative for P where P is not joined- for example a family member, friend, IMCA or Care Act advocate).
PD 3B- explaining the new “tiering” of judges.
PD3C- application of the CPR or FPR where there is a lacuna.
PD13A. Rule 91(2A) now allows communication of information in accordance with Rule 13A, subject to a direction of the court. Paragraphs 34 onwards set out the criteria for such communications, and for what purpose communication can be made.