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.
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.
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:
- P being a party;
- 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;
- Specific provision for P to address (directly or indirectly) the judge determining the application; or
- 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)  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  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.