Senior Judge Hilder and the Operations Manager of the Court of Protection have provided an update on the court’s performance and activities during the COVID-19 outbreak, and work being done to assist practitioners. The letter (dated 21 May 2020) can be found here.
The Vice-President of the Court of Protection, Hayden J, has written to Directors of Adult Social Services (in a letter which can be shared more widely) to highlight a number of key points relating to the operation of the MCA 2005 in the context of COVID-19 and care homes.
The wide-ranging letter takes in remote assessments and a protocol for managing DoLs prepared by Lorraine Currie, MCA/DoLS lead for Shropshire County Council; it notes that:
It was expressed to me, at the Hive group, that there appear to be some who believe that careful adherence to proper legal process and appropriate authorisation may now, at times, be required to give way to other pressing welfare priorities. I understand how this view might take hold in establishments battling to bring calm and reassurance to intensely distressed people, both in the Care Homes and within their wider families. It is important, however, that I signal that whilst I am sympathetic to the pressures, I am very clear that any such view is entirely misconceived. The deprivation of the liberty of any individual in a democratic society, holding fast to the rule of law, will always require appropriate authorisation. Nothing has changed. The Mental Capacity Act 2005, the Court of Protection Rules and the fundamental rights and freedoms which underpin them are indispensable safeguards to the frail and vulnerable. (emphasis in original)
The letter also notes that:
There has been a striking and troubling drop in the number of Section 21A (MCA 2005) applications which has occurred, in some areas, alongside a significant reduction in referrals to advocacy services. It needs to be emphasised that where there has been a failure properly to authorise deprivation of liberty one of the consequences is that, in the absence of authorisation, there will be a loss of entitlement to public funding and inevitably an obstruction to the individuals absolute right to challenge the deprivation of liberty. For the present I simply highlight my concern and restate the importance of the statutory requirements.
In terms of remote assessments, this document prepared by Lorraine Currie is of considerable assistance; she also contributed to a webinar for the National Mental Capacity Forum on the subject, which can be found here.
Hayden J has published a letter (4 May) providing an update upon the steps taken by the Court of Protection to respond to the pandemic, and, in particular, the work of the Hive group since its establishment in late March 2020 across the full spectrum of the Court’s work.
In two decisions handed down on 30 April 2020, Re A (Children) (Remote Hearings)  EWCA Civ 583 and Re B (Children) (Remote Hearing : Interim Care Order)  EWCA Civ 584, the Court of Appeal undertook a stock-take of the position in relation to remote hearings. Both were decided by Sir Andrew McFarlane, the President of the Family Division, and Davies and Peter Jackson LJJ. Re B is primarily of importance for indicating how the pressures of the current situation led to a series of cumulative missteps, including by the Guardian and the judge. In Re A, the Court of Appeal to set out a number of “cardinal points and relevant factors with a view to assisting courts to make appropriate decisions in this changing landscape.” Although the cases concerned children, the principles are equally applicable to cases before the Court of Protection.
The key points from Re A are as follows:
i) The decision whether to conduct a remote hearing, and the means by which each individual case may be heard, are a matter for the judge or magistrate who is to conduct the hearing. It is a case management decision over which the first instance court will have a wide discretion, based on the ordinary principles of fairness, justice and the need to promote the welfare of the subject child or children. An appeal is only likely to succeed where a particular decision falls outside the range of reasonable ways of proceeding that were open to the court and is, therefore, held to be wrong.
ii) Guidance or indications issued by the senior judiciary as to those cases which might, or might not, be suitable for a remote hearing are no more than that, namely guidance or illustrations aimed at supporting the judge or magistrates in deciding whether or not to conduct a remote hearing in a particular case.
iii) The temporary nature of any guidance, indications or even court decisions on the issue of remote hearings should always be remembered. This will become all the more apparent once the present restrictions on movement start to be gradually relaxed. From week to week the experience of the courts and the profession is developing, so that what might, or might not, have been considered appropriate at one time may come to be seen as inappropriate at a later date, or vice versa. For example, it is the common experience of many judges that remote hearings take longer to set up and undertake than normal face-to-face hearings; consequently, courts are now listing fewer cases each day than was the case some weeks ago. On the other hand, some court buildings remain fully open and have been set up for safe, socially isolated, hearings and it may now be possible to consider that a case may be heard safely in those courts when that was not the case in the early days of ‘lockdown’.
The factors that are likely to influence the decision on whether to proceed with a remote hearing will vary from case to case, court to court and judge to judge. We consider that they will include:
i) The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?
ii) Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;
iii) Whether the parties are legally represented;
iv) The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;
v) Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;
vi) The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;
vii) The scope and scale of the proposed hearing. How long is the hearing expected to last?
viii) The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;
ix) The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;
x) Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.
The facts of Re A illustrate the challenges faced at the moment, in the context of an individual (the child’s father) with “limited abilities, and some disabilities, which render him less able to take part in a remote hearing. He has been diagnosed as dyslexic. He is unused to reading. He has a short attention span, is emotionally fragile and brittle and quickly becomes exasperated.” The Court of Appeal emphasised that “[t]he concept of fairness and the need for a lay party to ‘engage’ in the process includes the ability of that person to follow and to understand what transpires at a court hearing at least to an adequate degree and then to be able to instruct their lawyers adequately and in a timely manner.” The Court of Appeal also considered problematic the approach proposed by the judge a hybrid one which would have seen the parents giving evidence before him in person in court, but in the absence of their representatives (who would attend by video):
58. […] Recently, in the judgment given in Re P (A Child: Remote Hearings)  EWFC 32 at paragraph 26 the President stressed the importance of the court being able to see all the parties in the court room. Although that case was specifically directed to the hearing of allegations of Factitious or Induced Illness, the more general point that a judge will be in a better position to assess the evidence of a witness who gives evidence live from a witness box than one who speaks over a video link is plainly right. There is, however, a need for caution when the only witness(es) required to attend court are the lay parties when others, for example the key social worker, are not. When a lay party is required to attend court, but his or her advocate is not, the cause for concern at the imbalance in the process must be heightened. Consideration must be given to the potentially exposed position of a witness giving live evidence in front of a judge in the absence of his or her lawyers or any of the other parties and in response to questions asked over a video link. The judge does not appear to have considered whether in this particular case it was reasonable to expect these parents to be placed in that potentially daunting position. When this is placed in the balance alongside the other factors which establish a lack of a fair process it gives them additional weight.
The HIVE mailbox (email@example.com) is now live, and can be used as the first point of contact to raise specific issues relating to the operation of the Court of Protection during the pandemic. It is not to be used for issues relating to specific cases (for instance case progression or appeals).
The members of the HIVE group are:
- Hayden J
- HHJ Carolyn Hilder
- Sarah Castle (the Official Solicitor)
- Vikram Sachdeva QC
- Lorraine Cavanagh QC
- Nicola Mackintosh QC (Hon)
- Alex Ruck Keene
- Joan Goulbourn (Ministry of Justice)
- Mary MacGregor (Office of Public Guardian)
- Kate Edwards
Senior Judge Hilder has approved the circulation of the following update (17 April 2020) in terms of the approach being taken to COPDOL11 applications during the period of Covid-19 restrictions:
The DoLS team is now accepting COPDOL11 applications by e-mail. Each application received will be added to the current list of matters awaiting determination, so that cases will be considered in order of receipt unless the patient is awaiting discharge from hospital (referral to the resident urgent business judge) or has a planned imminent move date (referral to the next available DoLS judge).
All applications must be complete including medical evidence as without this the court does not have jurisdiction.
The documents must be a separate PDF and clearly identified i.e. DOL11, COP3, Best interest etc.
As a temporary measure whilst the pandemic is restricting normal working, documents will be accepted with an electronic signature. Photographs of any documents provided by the Rule 1.2 Representative are acceptable provided they are fully legible.
Orders are now being sent to Local Authorities and CCGs by e-mail. The care plan (which often runs to 50 or so pages) will not be appended to the e-mail. As the date of the care plan is referred to in the order and Local Authorities/CCGs have their own original copy, hard copies will be sent by post to Local Authority/CCG offices as normal.
Stayed applications are not being progressed during the pandemic because General Visitors are not available. Orders which have already been made lifting a stay will have a longer period for submission of updated documents when the order is issued.
If it is apparent that you are unable to comply with deadlines for filing documents, please inform the DOLS team by e-mail of the proposed date for filing, and we will diarise the matter accordingly. If the progress of the case is affected, the matter will be referred to a judge for consideration.
Please try not to chase us for updates on applications unless there is specific urgency. We are now a team of only 4 staff working hard to assist every LA and CCG in the country.
[For further guidance about the COPDOL11 process more generally, see the 39 Essex Chambers guide here].
HMCTS has issued its family business priorities for April 2020, i.e. what work must be done, what work will be done, and what work HMCTS will do its best to do. In relation to the Court of Protection, they are divided as follows:
Must be done
- Urgent applications
- Applications under Mental Capacity Act 2005, s 16A and s 21A
- Serious medical treatment cases
- Deprivation of Liberty
- Form COP1 Statutory Wills – where person is near end of life.
- Safeguarding applications via the Office of the Public Guardians
Work that will be done
- Gatekeeping and allocation referrals –care
- Gatekeeping and allocation referrals – private
- Other family care orders/documents/emails
- Court of Protection – welfare cases
Work that “we will do our best to do”
- Court of Protection –property and affairs
The Court of Protection Bar Association has issued guidance (approved by Hayden J) as to the effective conduct of remote hearings, dated 7 April 2020. It is available here.
The Vice-President, Hayden J, has issued on 31 March detailed guidance about remote access to the Court of Protection, including a detailed protocol for remote hearings, consideration of how to secure the principles of transparency before the Court of Protection, and a draft order.