Practitioners should note the judgment of Poole J in Re AB (Disclosure of Position Statements) EWCOP 25 (T3). In summary, Poole J has ruled that position statements are documents “put before” the Court within the terms of the usual Transparency order and are also documents “in the court records” for the purpose of rule 5.9 Court of Protection Rules 2017 (COPR). The key guidance for practitioners appears at paragraph 36 of the judgment and is set out below (emphasis added):
This should provide clarity to judges, practitioners and observers. Those drafting position statements from now on are strongly advised to include the wording suggested by the judge on the face of the position statement.
Practitioners may find it helpful to to refer to the short ex tempore ruling by John McKendrick KC, sitting as a Deputy High Court Judge and Tier 3 judge in the Court of Protection.
The judgment, which you can read here, describes an urgent application to secure the return of A, a young man lacking capacity to decide about residence and care, to a supported placement. A had been placed there by orders of a Tier 1 judge (a District Judge) in the Court of Protection, but had been removed by his mother and her partner, who were respondents. Orders were made by the Tier 1 judge requiring A’s return but it was not possible to serve the respondents because their -and A’s- whereabouts was not known.
In summary, John McKendrick KC was persuaded on the facts of the case that it was proportionate to make location and collection orders, and third party orders against two telephone companies to assist in locating A. These were to be enforced by the Tipstaff. The judge noted that there was clear authority from the judgment of Munby LJ in PM v KH that these orders, more commonly used in cases where the Family Division was trying to locate and retrieve abducted or missing children, could be made under the inherent jurisdiction in relation to adults lacking capacity. He set out his reasons for concluding that he had the power as a judge in the Court of Protection to make such orders under section 16(5) Mental Capacity Act 2005 (exercising the powers under section 47 MCA), following the judgment of the Court of Appeal in Re G. However, for the avoidance of any doubt, he made parallel orders under the inherent jurisdiction.
With effect from 1 May 2024, the fee for making an application in the Court of Protection will rise from £371 to £408, and the appeal fee from £234 to £257.
Paragraph 14(3)(b) in Schedule 2 to the Court of Protection Fees Order 2007 deals with the calculation of a party’s disposable capital and gross monthly income for the purposes of calculating entitlement to fee remissions. Mistakenly, paragraph 14(3)(b) fails to specify that the gross monthly income of ‘P’ (the protected party) is to be treated as the gross monthly income of the party, in proceedings brought concerning the property and affairs of a P. This amendment will correct this oversight.
Amendments to three Practice Directions supplementing the Court of Protection Rules 2017 have been made. In summary the changes are:
Practice Direction 2A is amended to make provision for circumstances in which circuit judges and recorders may act as Tier 3 Judges.
Practice Direction 19B is substituted to reflect updates to fixed costs that may be claimed by deputies, and to make other consequential amendments to reflect recent case law.
Practice Direction 20B is amended to clarify the circumstances in which appeals from a Tier 2 Judge may be heard by the Court of Appeal.
The amendments to the Practice Directions come into force on 1 April 2024.
In Re Esper v NHS NW London ICB (Appeal : Anonymity in Committal Proceedings)[2023] EWCOP 29, Poole J addressed the complexities of the (not entirely seamless) interaction between the Court of Protection Rules and the Lord Chief Justice’s March 2015 Practice Direction: Committal for Contempt of Court – Open Court. We will cover this in full in the September Mental Capacity Report, but for present purposes set out here Poole J’s ‘suggestions’ from paragraph 54 in relation to committal proceedings within the Court of Protection, to be followed until such time as the CoP Rules Committee (and potentially the Family Procedure Rules Committee) have had the chance to act:
i) Open justice is a fundamental principle and the general rule is that hearings should be carried out and judgments and orders made in public. Derogations from the general principle can only be justified in exceptional circumstances when strictly necessary as measures to secure the proper administration of justice.
ii) Committal hearings may be heard in private but if the court is considering doing so it must follow the procedures set out at paragraphs 8 to 12 of PD 2015.
iii) Immediately upon issue committal applications in the Court of Protection should be referred to a judge to consider prior to the first hearing:
a) Whether COPR r21.8(5) requires that the defendant’s name should not appear in the court list. In the absence of any such order, committal proceedings should be listed with the full name of the defendant appearing, in accordance with paragraphs 5 or 11 of PD 2015 depending on whether they are to be heard in public or in private. Anonymisation of the defendant on the court list would be a derogation from open justice. Notice of any such decision should be given to the press and the continuation of any r21.8(5) order considered at the first hearing.
b) Whether the existing Transparency Order may need to be extended to cover the non-disclosure of the identity of any party or witness in the committal proceedings. A Transparency Order made in Court of Protection proceedings will not extend to committal proceedings unless there is an express order of the court to that effect. COP PD 4C does not apply to committal proceedings. COP PD 4A only applies if a hearing in public is the result of a court order under COP R r4.3 and so does not apply to committal hearings which are heard in public unless otherwise ordered. The court in committal proceedings in the Court of Protection cannot therefore rely on an existing Transparency Order or use COP PD 4A to restrict reporting. COPR r21.8(5) appears to be the only basis for ordering non-disclosure of the identity of the defendant, other party, or witness in a committal application. It applies at all stages of a committal application in the Court of Protection. If the court is considering making a r21.8(5) order, other than in relation to the anonymisation of the defendant in the public list for the first hearing, it should adopt the procedure at paragraphs 3, 4, 8, 9, 10 and 12 of PD 2015.
iv) Unless ordered otherwise, the parties in the Court of Protection proceedings are the parties to the committal application within those proceedings. Accordingly, COPR r21.8(5) applies to those parties as well as to any witness in the committal proceedings. Unlike CPR r39.2(4), COPR r21.8(5) does not apply to someone who is neither a party nor a witness.
v) COPR r 21.8(5) requires the court to order the non-disclosure of the identity of a party or witness if the two necessity conditions within the rule are met. The Contempt of Court Act 1981 s11 applies to allow ancillary directions to be given if a r21.8(5) order is made. Such ancillary directions may include restrictions on publishing or communicating specific identifying information to prevent the disclosure of the identity of the particular party or witness to whom the r21.8(5) order applies.
vi) The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice andin order to protect the interests of thatparty or witness – COPR r21.8(5). Therefore the non-disclosure of the name of the defendant, or any other party or witness, must be ordered if it meets both those requirements but cannot be ordered if it does not meet them. If a lesser order will suffice, then the order for non-disclosure may not be made. The wording of COPR r21.8(5) reflects paragraphs 3 and 4 of PD 2015, namely that open justice is a fundamental principle, derogations from which can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. It adds a second requirement to be met before the court may order non-disclosure of the name of a party or witness, namely that non-disclosure is necessary to protect the interests of that party or witness. The procedural requirements at paragraphs 3, 4, 8, 9, 10 and 12 of the PD 2015 apply.
vii) The court must consider the application of the tests in COPR r21.8(5) separately in respect of P, the defendant, and other parties or witnesses in the committal proceedings. Where P is a party, the court may readily find that the necessity tests in r21.8(5) are met so that it must direct the non-disclosure of the identity of P. In such a case the court may make ancillary orders under s 11 of the Contempt of Court Act 1981 to protect P’s identity.
viii) If the conditions in COPR r21.8(5) are met in respect of the defendant, then the court must anonymise the defendant in any published judgment and must direct that disclosure of the defendant’s identity shall be prohibited. The court may make ancillary orders under Contempt of Court Act s11. A convenient mechanism for making these orders would be by extending the relevant parts of the Transparency Order to the committal proceedings.
ix) COPR r21.8(5) is not triggered to prevent the disclosure of the identity of the defendant if the sole purpose is to protect the interests of P. It must be the interests of the defendant that need protecting. In the event of a committal order it will be exceptionally rare for the court to find that the r 21.8(5) conditions are met in respect of the defendant. In the event of a finding of no contempt of court, it will be relatively more likely that the court will find that the r 21.8(5) conditions are met in respect of the defendant, but it will still be an exception for the identity of a defendant to committal proceedings not to be disclosed.
x) Subject to an order for non-disclosure of the identity of the defendant being made under COPR r21.8(5), in which case the defendant must be anonymised in any published judgment and reporting of their identity prohibited, the following practice should be adopted in relation to giving judgment and naming the defendant in committal proceedings:
a) If the court finds the defendant not guilty of contempt of court, then COPR r21.8(11) requires the court to give a reasoned judgment in public but there is no requirement for that judgment to be published on the judiciary website, nor would the requirements of PD 2015 paragraph 13 apply so as to require the defendant to be named and his name to be published on the judiciary website. Nevertheless, the court may decide to name the defendant and to publish their name by inclusion in a published judgment or otherwise.
b) If the court finds the defendant in contempt of court but does not make a committal order, then a reasoned judgment must be given in public and the defendant must be named in court and their name published on the judiciary website, but there is no requirement for a transcript of the judgment to be published on the judiciary website, although the court may choose to do so.
c) If the court finds the defendant in contempt of court and imposes a committal order then a reasoned judgment must be given in public, the defendant must be named in court and their name and the judgment must be published on the judiciary website. The requirement to publish the defendant’s name will be met by naming them in the published judgment.
After a stint since 2018 marked indelibly by the pandemic, as well as by the promulgation of no less than 60 published decisions (according to Westlaw), representing the tip of the jurisprudential iceberg, the current Vice-President, Hayden J, stepped down officially on 13 February 2023 from his role (but not as a judge hearing cases before the Court of Protection). He has been replaced by Theis J.
The Vice-President of the Court of Protection, Hayden J, has issued guidance about closed hearings and closed materials. As it says in its opening paragraphs, it applies to ‘closed hearings’ and ‘closed materials,’ defined as follows: a. “Closed hearings” are hearings from which (1) a party; and (2) (where the party is represented) the party’s representative is excluded by order of the court. For the avoidance of doubt, this is different to a “private hearing,” which is a hearing at which all the parties are present (or represented), but from which members of the public and the press are excluded; b. “Closed material” is material which the court has determined should not be seen by the party (and/or their representative).
The practice guidance also applies to situations where an order may be made that a party (and/or their representative) is not to be told of the fact or outcome of a without notice application.
As the guidance emphasises:
In situations which are rare, but which do occur from time to time, it is necessary for the court to consider whether a hearing should be closed and/or for material be closed. Nothing in this guidance is intended to increase the number of closed hearings or applications for material to be closed. Rather, its purpose is to provide clarity as to the principles to be applied and considerations to be taken into account in the very limited circumstances under which such steps may be appropriate.
A revised version of the form used to address (and where the person lacks the capacity, to explain in detail why that is the case) capacity to conduct proceedings has now been published. Although it says on gov.uk that it is dated 1 September 2007, it is in fact current as to the law in 2023 (including, importantly, the proper ordering of the capacity test: starting with the functional limb). It is relevant where there is a concern in relation to the capacity to conduct proceedings in relation to an adult who is a party or intended party to proceedings in the Family Court, the High Court, a county court, the Court of Protection or the Court of Appeal. Note, however, that it does not apply in relation to ‘P,’ i.e. the subject of proceedings before the Court of Protection: analysis of their capacity to conduct proceedings (and make relevant decisions) is to be carried out on the COP3 form (itself being revised at the moment).
Cafcass and the Official Solicitor have published a joint practice note dated January 2023 “intended to assist the judiciary and legal representatives when dealing with urgent out of hours applications for orders in relation to medical treatment concerning children.” In particular, the Practice Note makes clear that “In medical treatment cases concerning children […], it is Cafcass and not the Official Solicitor who should be approached to provide representation for the child.”
The Vice-President of the Court of Protection, Hayden J, has published a letter (dated 16 December 2022) in relation to s.49 reports, following a meeting between him, Senior Judge Hilder and NHS Mental Health Directors. In relevant part, it reads as follows:
Concern had been expressed about the scope and ambit of Section 49 reports. There was a strong feeling that some of the Section 49 requests are disproportionate, overly burdensome, and wrongly authorised. There are obvious reasons (i.e., costs) why a Section 49 report might be preferred where what is truly required is an independent expert report.
Section 49 reports are, paradigmatically, appropriate where the NHS body (typically a Mental Health Trust) has a patient within their care, who is known to them. This ought to enable the clinician to draw quickly on his knowledge of the patient and respond concisely to the identified questions, which will be directed to the issues clearly set out in the Practice Direction. Importantly, it avoids the patient having to meet with a further professional with whom, he or she, has no existing relationship.
Instructions under Section 49 should be clearly focused with tight identification of the issues. It should be expected that the reports will be concise and will not require extensive analysis across a wider range of questions than those contemplated in the Practice Direction. Reports requiring that kind of response should be addressed to an independent expert.
I have taken this opportunity to re-circulate the Practice Direction which requires no gloss or embellishment. However, I have highlighted those paragraphs which I consider need to be restated.
Court of Protection Handbook 