Protecting incapacity

Section 45 of the Mental Capacity Act 2005, which comes into force on 1 October 2007, abolishes the existing office of the Supreme Court known as the Court of Protection, and replaces it with a new superior court of record, also called the Court of Protection.

The reconstituted court will deal with all areas of decision-making for people who lack capacity, thereby combining the personal welfare jurisdiction, which the High Court judges in the Family Division have developed over the past two decades, with the property and financial jurisdiction of the existing Court of Protection. The new court will have regional venues for attended hearings before district judges, circuit judges and High Court judges in Birmingham, Bristol, Cardiff, Manchester, Newcastle-upon-Tyne and Preston, as well as in London. All the paperwork and non-contentious business will be handled by the central office and registry of the court in London.

The Court of Protection Rules 2007 (SI 2007 No. 1744 (L.12)) were laid before Parliament on 4 July, and will come into force on 1 October 2007. The Rules set out the practice and procedure to be followed in the new Court of Protection. The Department for Constitutional Affairs (DCA) conducted a public consultation on the rules between July and October 2006, and published a response, CP(R) 10/06, in February 2007. An Informal Rules Group, chaired by Mr Justice Charles, consisting of members of the legal profession and judiciary with experience of the existing procedures in the Court of Protection and Family Division, first met on 3 July 2006 and thereafter on a monthly basis, and provided the DCA with advice and assistance on drafting the rules and practice directions.

The power to make rules for the new Court of Protection was originally conferred on the Lord Chancellor by section 51(1) of the Mental Capacity Act 2005. This was subsequently amended by the Constitutional Reform Act 2005, and the Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No.2) Order 2006.

The Court of Protection Rules 2007 were, in fact, made by the president of the Family Division (who was nominated for that purpose by the Lord Chief Justice), with the agreement of the Lord Chancellor.

The president, Sir Mark Potter, will become the president of the new Court of Protection on 1 October 2007, and will then give a number of practice directions, pursuant to s52 of the Act, which will supplement the court rules. It is anticipated that, initially, he will issue 35 practice directions.

Summary of the Rules

• Part 1 of the Rules revokes the present Court of Protection Rules 2001, and Court of Protection (Enduring Powers of Attorney) Rules 2001.
• Part 2 sets out the overriding objective enabling the court to deal with a case justly, having regard to the principles contained in the Act, when it exercises any power under the Rules, or interprets any rule or practice direction.
• Part 3 contains provisions for interpreting the Rules, and for the Civil Procedure Rules 1998 to be applied in default (rule 9).
• Part 4 makes provision as to court documents, including the requirement for certain documents to be verified by a statement of truth (rule 11).
• Part 5 sets out the court's general case management powers, and includes the power to dispense with the requirement of any rule (rule 26).
• Part 6 deals with the service of documents generally.
• Part 7 sets out the procedure for notifying 'P', the person who lacks, or is alleged to lack, capacity.
• Part 8 relates to cases where the court's permission is required before proceedings can be started.
• Part 9 describes how to start proceedings; how to file an application; the steps to be taken following the issue of an application; responding to an application; and who the parties to the proceedings are.
• Part 10 is about applications within proceedings, and Part 11 contains a single rule (rule 83), which applies whenever anyone seeks to invoke the Human Rights Act 1998.
• Part 12 describes how the court will deal with applications, including the allocation of cases (rule 86), and Part 13 is about hearings.
• Parts 14, 15 and 16 set out the procedure in relation to evidence, experts, and disclosure respectively.
• Parts 17 and 18 deal with the appointment of litigation friends, and change of solicitor.
• Parts 19, 20 and 21 relate to costs, appeals, and the enforcement of orders.
• Part 22 covers transitory and transitional matters, the detail of most of which will be provided in separate practice directions; and
• Part 23, the final part, contains some miscellaneous provisions, including one (rule 201) relating to objections to the registration of an enduring power of attorney.

Problems in drafting the Rules

The main difficulty in drafting the rules was attempting to combine the existing practice and procedure of two courts, with different cultures, which were sometimes incompatible with one another.

There was also a systemic failure to appreciate the distinction between an adversarial and inquisitorial approach. Since time immemorial, Court of Protection proceedings have been inquisitorial.

Particular problems arose in relation to:

• the permission stage;
• whether P should always be a party;
• whether the court should sit in public or in private; and
• costs.

Permission stage

Section 50 of the Mental Capacity Act 2005 imposes a general requirement to obtain the court's permission before making an application to the Court of Protection, but exempts certain people from the need to do so, namely:

• P, or, if he is under 18, anyone who has parental responsibility for him;
• the donor or attorney of a lasting power of attorney (LPA) '“ though not an enduring power of attorney (EPA);
• a deputy appointed by the court; or
• anyone named in an existing court order, if the application relates to that order.

In its consultation paper the DCA proposed that other potential applicants should also be exempt and, in response to the views expressed, rule 51 provides that the court's permission is not required where an application:

• is made by the Official Solicitor or the Public Guardian;
• concerns P's property and affairs;
• involves an LPA or EPA; or
• is made within proceedings, in accordance with Part 10 of the Rules.

As the need to obtain permission became confined to personal welfare cases, the question arose as to whether local authorities and NHS trusts should also be exempt from the requirement to obtain permission. The government decided not to exempt them.

Because of the broad enabling provisions of section 5 of the Act (the general authority to act in connection with care or treatment), any application to the court is likely to be the last resort, and the requirements of section 50 provide a check to ensure that such applications are necessary and well founded.

Whether P should always be a party

The DCA consultation paper invited comments on how P should be involved if he is the subject of the proceedings. Some respondents felt strongly that he should be joined as a party in all cases, but the majority of respondents favoured a more flexible approach.

Part 6 of the Rules governs the service of documents generally, and Part 7 deals with notifying P. The rules state that:

• if P becomes a party, Part 6 applies, rather than Part 7 (rule 40(2));
• where Part 7 applies, P must be notified when an application form or a notice of appeal has been issued, or when it has been withdrawn, and the date on which a hearing is to be held (rules 42 and 43), and he must also be notified of any final order of the court (rule 44); and
• the court may, in any case, either on its own initiative or on application, direct that P must not be notified of any matter or document (rule 40(3)).

Public or private hearings

Whether the new Court of Protection should sit in public or in private is part of a wider debate affecting family proceedings generally.

In July 2006 the DCA issued a consultation paper, CP 11/06, Confidence and confidentiality: Improving transparency and privacy in family courts, in which it proposed to allow the media, as proxy for the general public, to attend proceedings as of right, though allowing the court to exclude media access, where appropriate, and to place restrictions on the reporting of evidence.

These issues were further considered by Mr Justice Munby in Re Brandon Webster (a child) [2006] EWHC 2733 (Fam).

Part 13 of the Court of Protection Rules 2007 provides that:

• the general rule is that a hearing is to be held in private '“ which is defined as a hearing in which the only persons entitled to attend are the parties, P (whether or not he is a party), litigation friends, legal representatives, and court officers (rule 90);
• information relating to proceedings held in private may be published, if the court authorises publication (rule 91); and
• the court may order that a hearing, or part of it, be held in public, and may exclude any person or class of persons from attending a public hearing (rule 92).

Cost

The DCA consultation paper asked whether the rules should start with the principle that each party bears his own costs, as usually happens in personal welfare proceedings in the Family Division, or whether the costs should be paid from P's estate, as has generally been the tradition in property and financial proceedings in the existing Court of Protection since the decision of the Court of Appeal in Re Cathcart [1893] 1 Ch 466.

In the end there was a compromise preserving the status quo in both types of proceedings:

• where the proceedings concern P's property and affairs, the general rule is that the cost of the proceedings will be paid by P or charged to his estate (rule 156);
• where the proceedings concern P's personal welfare, the general rules is that there will be no order as to the costs of the proceedings (rule 157);
• where the proceedings concern both property and affairs and personal welfare, the court will apportion the costs between the respective issues, so far as is practicable (rule 158); and
• the court may depart from either of the general rules, if the circumstances so justify (rule 159). For this purpose, 'the circumstances' include the conduct of the parties, and the outcome of the case.

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