Alphabetti spaghetti: Litigating in the Court of Protection

The current Court of Protection is a creature of statute (the Mental Capacity Act 2005 (MCA)). It has jurisdiction over property and welfare matters concerning incapacitated adults. It has operated since 1 October 2007. It is based in the Thomas More Building at the Royal Courts of Justice.

Its role is to:

• decide whether a person has the capacity to make a particular decision for themselves;

• make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make these decisions;

• appoint a deputy to make ongoing decisions for people lacking capacity to make those decisions;

• decide whether a lasting power of attorney (LPA) or enduring power of attorney (EPA) is valid;

• remove deputies or attorneys who fail to carry out their duties; and hear cases concerning objections to the registration of an LPA or EPA.

During 2010, the court entertained 18,360 applications relating to property and affairs, and the vast majority were to appoint a deputy (2010 Annual Report). ?It sees far more objections to applications to register EPAs than LPAs.

In 2010, it received 112 applications relating to the validity of an LPA, which it called “a drop in the ocean compared to the number of applications to register received by the OPG”.

That year it received 1,283 personal welfare applications. These generally require permission, which was refused in 70 per cent of cases.

Welfare state

Under section 15 of the MCA, the court can make declarations as to capacity, and whether an act or a proposed act is or would be lawful in relation to the person.

Section 16 empowers the court ?to take decisions on behalf of a person lacking capacity in respect of their personal welfare, or property and affairs.

Section 48 also permits it to grant interim relief, where there is reason to think that a person may lack capacity.

Under section 16, the court can also appoint deputies to take decisions on behalf of the person lacking capacity. Mr Justice Baker has indicated that the appointment of a welfare deputy should be rare (G v E [2010] EWHC 2512 (Fam)).

He said: “It was emphatically not ?part of the scheme underpinning the ?Act that there should be one individual who as a matter of course was given a special legal status to make decisions about incapacitated persons.

“Where there was disagreement about the appropriate care and treatment or the issue was a matter of particular gravity or difficulty, the Act and code provided that the issue should usually be determined by the court.”

By section 17 of the MCA, welfare issues include decisions about residence, care, contact and medical treatment. Under section 18 of the MCA, property and affairs matters include the control and management of the person’s property, and making a will. The court can hear appeals under section 21A of the MCA concerning deprivation of liberty. It can determine questions relating to the validity and operation of LPAs under sections 22-3.

The court must at all times act in ?the best interests of the incapacitated adult, and by the least restrictive means possible (section 1 (5)-(6)). The factors which a ‘best interests’ decision should take into account are set out in section 4 of the MCA.

As a court of last resort, it expects that in cases of dispute every effort should be made to resolve matters first. Consider the costs position. The general rule is that the parties’ costs are paid out of the estate of the incapacitated adult in property and affairs matters, but in welfare cases each party bears their own costs (rules 156-7).

The court has power to make costs orders against any party who has behaved unreasonably (rule 159).

What if a finance attorney wishes to make a welfare application (for example, if warring family members cannot agree where someone should live, and the attorney needs direction on where the contract for accommodation should be placed)? He could issue the application and ask the court to make a protective costs order, entitling him to claim his costs of the proceedings from the estate. An attorney in that scenario should take care not to take sides in the underlying dispute, however.

Guidance notes

If an application needs to be made, the website www.directgov.uk contains the relevant forms and guidance notes. The COP1 is the application form; COP2 is for permission; and don’t forget COP4, for deputy’s declarations.

The rules and practice directions can be found at www.justice.gov.uk, along with guidance on urgent applications and DOL applications.

In this jurisdiction, formal pleadings are not used. But it is prudent to set ?out in summary and chronological form the key facts and matters relied on, ?and to identify the specific issues the court is being asked to decide (for example, that the person lacks capacity to decide where he should live), and the precise relief being sought (such as declarations that it is lawful and in his best interests that he should be accommodated at [x] home).

It is vital to be clear, from the outset, what orders you want the court to make, and why. Otherwise litigation can drift ?in an unfocused way. I recommend asking the court for a direction at the outset that any party opposing the application should set out clearly and concisely their grounds of opposition in their acknowledgement of service filed under rule 72.

It is necessary to submit some evidence of lack of capacity: without it, the court has no jurisdiction. This could come from a doctor, or from a social worker who knows the person well. Rule 66 onwards sets out who is to be served.

Also think what other evidence you need; for example, in a statutory will application, the court is assisted by knowing as much as possible about the person’s background, personality, family and other relationships, finances, the relative worth of other family members.

Rule 77(3) permits urgent relief to be granted ahead of issuing an application in cases of real emergency, ?for example if an incapacitated person may be taken out of the jurisdiction. Rule 81 describes the procedure to be followed for ‘without notice’ applications.

Be careful (as with any ex parte application) that proper reasons exist for not notifying the opposing party against whom relief is sought; that nothing material is kept from the court; that a careful note is taken of what is said; and that all the evidence sought to be relied on is confirmed formally in a statement promptly thereafter.

An out-of-hours application can be made to the duty judge contactable via the RCJ switchboard, by telephone if need be. If time is running out, for example someone may not have long to live and a will needs executing, or there is concern about a ‘DNR’ order, cases can be fast-tracked.

Rule 82 deals with the granting ?of interim declarations and injunctions. ?But interim hearings should be short, not days and days, so focus on the issue to be determined.

The court should be asked to attach a penal notice to any injunction under rule 192, as one is not attached routinely, and without it an injunction may not be enforced by committal.

In welfare applications, as indicated, an applicant needs permission from the court to make an application, unless she/he is the official solicitor or the Public Guardian. Permission is not usually required in cases involving property and affairs, or EPAs/LPAs.

Rule 52 provides certain exceptions to the general rule in property and affairs applications, for example certain applications under section 54(2) of the Trustee Act 1925. So check.

Paper mountain

The court is over-worked, and delays are common. Its work is spread over nominated district judges, circuit judges and Family Division judges, who must combine it with their other caseload. Usually, initial paper directions are given after a judge has reviewed the file, which may include transfer to a regional court.

Certain cases, such as those involving serious medical treatment decisions, have to be heard by a High Court judge, as do claims for a declaration of incompatibility under the Human Rights Act 1998.

The court’s listing policy is on the MOJ website. When preparing for any hearing, make sure practice direction 13B on bundles is complied with.

If the person alleged to lack capacity wishes to contest the court’s jurisdiction, they must follow the procedure set out in rule 87. If parties wish to instruct an expert to give evidence under part 15 of the rules, for example on the issue of capacity, they will need a direction from the court under rule 123, including permission for the expert to see records of care and medical records relating to the person concerned.

Note that under section 49 of the MCA, the court can direct a report by a Court of Protection Visitor (usually a consultant psychiatrist) or the Public Guardian, who can visit the person alleged to lack capacity in private, and to inspect records relating to them. A visitor may carry out a medical, psychological or psychiatric examination of their capacity and condition. Section 49 also enables the court to direct a local authority or NHS trust to provide a report, and the parties may submit written questions following such a report to the author (Court of Protection rule 118).

Consideration also needs to be given to disclosure under part 16 of the rules. These cases can turn into paper mountains, so think what disclosure is really needed.

I recently had a case where my client, a defendant, was not allowed to see the vast majority of the evidence and documents relied on by an applicant local authority, which had got an injunction against her. It took considerable persistence, a number of applications, and repeated invocations of the Supreme Court’s ruling in Al-Rawi [2011] before the authority gave in, and we got the bundle some eight months later.

If serious allegations of fraud or abuse are made, the court should be asked to hold a fact-finding hearing early on. The parties should do a Scott Schedule setting out the key facts alleged, and the others’ response, so the court knows what it is being asked to decide. Be realistic: no judge has time to deal with 142 allegations.

As my earlier anecdote shows, the litigation culture of the Court of Protection is somewhat alien to those used to civil litigation other than family work. There is a lot of standing around outside court hearings, debating possible orders. Skeleton arguments are often called ‘position statements’.

In cases involving warring family members, suggest a roundtable meeting or attempt mediation early on, before parties become hopelessly entrenched. The court normally sits in private (rule 90) but can admit the press or sit in public (rules 91-3). It can also take evidence by videolink (rule 98).

Good luck!

Barbara Hewson is a barrister at Hardwicke

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