A 71-year-old grandmother has been sent to a maximum security prison for six months by the secretive Court of Protection after she defied a council’s demands over care arrangements for her elderly brother.
Court of Protection Veil of Secrecy Lifted.
At least, they are trialing extended access to the public and press as a pilot until August 2017. The scheme to make the CoP more open and continues the trial which has allowed both public and media to gain greater access to Court of Protection hearings.
The specialist Court makes decisions where individual have not been able to put sound legal planning in place in advance. This often comes as a shock to family and friends whose views may be ignored in the face of professional advice from doctors and social workers. The decisions the Court of Protection makes for folk who lack capacity to make them themselves, applying a best interests test concern two areas:
- The personal welfare of an individual – for example, where they live, who they see, medical matters etc etc.
- Property and financial affairs.
With rare exceptions, such as serious medical cases, hearings have previously been in private with only those directly involved in the case attending. This has led to a great deal of criticism and accusations of “Star Chamber” tactics. The pilot started in January 2016, has changed this so that the Court will usually allow its hearings will be in public and make an anonymity order to protect the people involved.
The extended pilot will continue to provide evidence to assess whether the Court should in future hold its hearings in private or in public and whether access should be given to the media but not the public.
Her Majesty’s Courts and Tribunals Service have changed how court lists are displayed, to provide an idea of what the case is about. This allows the media and members of the public to make an informed decision on whether to attend the hearing.
The Court of Protection’s main base is in London but it also sits throughout England and Wales. The pilot is expected to run in all regions until August 2017 to allow for the changes to be fully tested.
To access the extended pilot practice direction and latest pilot order, click here.
Court of Protection Veil of Secrecy – lifted, but for how long?
Deprivation of liberty court cases triple but fall short of Cheshire West predictions
Ministry of Justice figures reveal 1,499 deprivation of liberty cases reached Court of Protection last year, up from 525 in 2014
The number of deprivation of liberty cases handled by the Court of Protection rose from 525 in 2014 to 1,499 in 2015 figures published by the Ministry of Justice show. The figures included applications to the court from Local Authorities to authorise deprivation of liberty in community settings, such as supported living or shared lives schemes as well as appeals against Deprivation of Liberty Safeguards orders. These commonly concern care placements in care homes or hospitals.
68% were to authorise deprivation of liberty in the community, and mainly through a streamlined process (Re X) introduced in November 2014 to allow uncontentious applications to processed without an oral hearing.
Impact of Cheshire West ruling on Deprivation of Liberty Court Cases.
The streamlined process was introduced to help the court handle an anticipated tsunami of deprivation of liberty court cases in the wake of the Supreme Court’s Cheshire West ruling. The ruling, in March 2014, effectively lowered the threshold for what constitutes deprivation of liberty in care and requires authorisation.
Following the ruling, the Association of Directors of Adult Social Service (ADASS) predicted around 30,000 court applications a year would be needed to comply with the Cheshire West ruling. In many cases, this meant that what had been normal practice was now illegal with Court of Protection authority. Such applications have increased, but to well short of expected levels, which may mean that many situations are still not regularised. One wonders whether under pressure Local Authorities actually have the time and staff to sort out these issues. Time will tell! As ever the situation is not as straightforward as it might be as the Court of Appeal has raised further issues in cases in particular about looking after the interest of the person who may have been deprived of liberty to a greater or lesser extent.
The Mental Capacity Act 2005 Update.
This is an extract from a Government update on the workings of the Mental Capacity Act in April 2016.
The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. The Act makes it clear who can take decisions, in which situations, and how they should go about this. It enables people to plan ahead for a time when they may lose capacity.
When the Mental Capacity Act 2005 came into force on 1 October 2007, the role and function of the Court of Protection (CoP) changed, and in addition, the Office of the Public Guardian (OPG) was established. The OPG, an executive agency of the Ministry of Justice, supports the Public Guardian in registering Enduring Powers of Attorney (EPA), Lasting Powers of Attorney (LPA) and supervising Court of Protection appointed Deputies.
For more information on the roles of these specialised courts please see A Guide to Family Court Statistics that is published alongside this publication.
Court of Protection In October to December 2015, there were 6,821 applications made under the Mental Capacity Act 2005, up 7% on the equivalent quarter in 2014.
The majority of these (54%) related to applications for appointment of a property and affairs deputy (Table 17). Following the introduction of new forms in July 2015, applicants must make separate applications for ‘property and affairs’ and ‘personal welfare’. This is why there were fewer hybrid applications compared to previous years. There were 7,508 orders made, an increase of 11% on October to December 2014: most (55%) of the orders related to the appointment of a deputy for property and affairs (Table 18). The trend in orders made mirrors that of applications and has been steadily increasing since 2010 albeit at a faster rate, as Figure 15 below illustrates.
An LPA is a legal document that someone (the Donor) makes using a special form. It allows that person to choose someone in the present time, called the “Attorney”, that they trust to make decisions on their behalf, at a time in the future when they either lack the mental capacity or no longer wish to make those decisions themselves
Applications relating to deprivation of liberty increased from 109 in 2013 to 525 in 2014 to 1,499 in 2015. There were 489 applications made in the latest quarter October to December 2015. The overall increase follows the Supreme Court decision on 19 March 2014 whereby it was considered a person could be deprived of their liberty in their own home, sheltered accommodation etc, and not just the nursing homes and hospitals which were previously covered.
Of the 489 applications made in October to December 2015, 317 (65%) came from a Local Authority, 147 (30%) from solicitors and 25 (5%) from others including clinical commission groups, other professionals or applicants in person. Over a third (39%) of the applications were made under the streamlined process set out in Re X and others  EWCOP25. The Health and Social Care Information Centre (HSCIC) collects data from councils with social services responsibilities on deprivation of liberty at a case level on an annual4 and quarterly basis.
Section 16 of the Mental Capacity Act (MCA) and Re X cases are new and considered by the court but not by Local Authorities first. Those cases which come under section 21A of the MCA 2005 are seen as appeals to the court of those who have already been assessed for deprivation of liberty and are likely to have been included in HSCIC figures.
3 P v Cheshire West and Chester Council and P and Q v Surrey County Council  UKSC 19 4 http://www.hscic.gov.uk/catalogue/PUB14825 Mandatory collection 5 http://www.hscic.gov.uk/catalogue/PUB17509 Voluntary collection of number of DoLs applications, the number granted and the number not granted.
Mental Capacity Act 2005 update.
CRIMINAL JUSTICE AND COURTS ACT 2015 CIRCULAR 2015/01 as relevant to the Court of Protection.
Section 62: Appeals from the Court of Protection 188.
Section 62 of the Act amends section 53 of the Mental Capacity Act 2005, rectifying an omission in relation to appeals from decisions at lower levels in the Court of Protection which was not addressed when the range of judicial office holders able to sit as judges of the Court of Protection was expanded in the Crime and Courts Act 2013. The need for the amendment does not arise from, but has been starkly highlighted by, the decision of the Supreme Court in what has become known as the ‘Cheshire West’ case.
That decision required a radical reassessment of cases in which it may now be considered that a person who lacks mental capacity to consent to care arrangements is deprived of liberty as a result of those arrangements, so that the authorisation of the court is required.
189. As a result, it is predicted that there will be a significant increase in the number of cases coming before the Court of Protection for declarations authorising deprivation of liberty.
190. To deal with the anticipated increase in workload, deputy district judges and judges from other jurisdictions are being deployed to the Court of Protection. However, the route of appeal in such cases would be directly to the Court of Appeal, thereby increasing workload in the appeal court also.
191. The section therefore harmonises the appeals process, enabling appeals from decisions of judges of equivalent level to district judges to go to a higher tier of judge within the Court of Protection and for the detailed arrangements to be set out in Court of Protection Rules. The approach prevents the Court of Appeal from being unnecessarily burdened by a significant increase in cases and allows the Court of Protection the flexibility to deal with resources efficiently. This, in turn, will reduce delays and the need for cases to be transferred to a different court, also providing greater consistency with how appeals are managed across other jurisdictions. Commencement Arrangements
192. Section 62 came into force on 12 February 2015 (by virtue of section 95 of the Act). Extent 193. These provisions will extend to England and Wales only.
The Office of the Public Guardian are well aware that the job of a Deputy is not an easy one?They commissioned a review in late 2015 into what could be done to at least make the paperwork a little easier. Here are some notes on their findings.
Making Deputyship Easier: what they learned part 1 – research findings.
Four rounds of user research showed many ways to improve the deputy forms. Some things sound obvious, but it’s good to prove them through testing rather than acting on a hunch. Some of the suggestions were rather basic.
- Giving people more space to write answers.
- Using plain English not legalease.
- Including helpful guidance within the forms rather than in a separate booklet.
- Giving examples with the questions to make it clearer what the form was trying to discover.
Based on the findings the research recommended completely changed the structure and order of some parts of the deputy forms. A natural flow of questions makes for easier completion (and lower fees where we are acting as professional deputies.) The studies also showed that the placing prompts had a big impact on whether they helped or not.
Making Deputyship Easier: what they learned part 2 – user research is hard
One thing the researchers were not expecting was how upsetting some of the sessions would be. Being a deputy can be tough, especially if it is a friend or family member who has lost mental capacity. Being a deputy is an emotional job for friends and family. The researchers felt that many deputies needed emotional support themselves.
One of the biggest challenges was for the researchers to stay completely neutral. It’s hard not to nod and smile encouragingly when someone’s talking to you and asking questions. The research project was not about giving advice. but working towards making the role of deputy a bit less stressful by reducing the strain of form filling.
New forms for Deputies from 1st March 2016…
The new deputy forms are now ready for deputies to use and the Office of the Public Guardian will be publishing them on 1 March 2016. They learned a lot from the research process.
Transparency Pilot in Court of Protection.
The Court of Protection was set up to deal with very personal and sensitive matters. But that has created a reputation for secrecy and great suspicion. Even though the initial intention was to protect the privacy of those individuals the Court was set up to protect.
Therefore the Court of Protection Rule Committee has formulated a practice direction for the operation of a pilot transparency scheme. This will allow both the risks and benefits of relaxing the rules governing the press and public attendance at hearings in the Court of Protection to be tested. Currently, nearly all hearings take place with only those directly involved in the case attending. The Press and public have no access, breeding suspicion. Whilst the national press can glean useful information from anonymised reports. However there is no mechanism for local press to discover and publicise issues which might be of more local interest (we’re not commenting on whether that is god or bad!)
The pilot transparency project will allow members of the press or public to attend in most cases. But the CoP may make a specific court order prohibiting this in individual cases. The pilot will mean the court making, as standard (unless inappropriate in a particular case), an order allowing for a public hearing but imposing restrictions on identifying in any report or other publication the person who is the subject of proceedings (they will be known as ‘P’).
Her Majesty’s Courts and Tribunals Service will also change the way in which court lists are published. During the pilot, they will provide a short description of what the case is about. This will help the press decide if a particular case may be of general interest and worth reporting.
Transparency Pilot in Court of Protection Test Period.
The transparency pilot will run in all regions of England and Wales, from January 2016 for at least six months. It may be extended to allow for the changes to be fully and carefully considered. A proper benefit and disadvanatage report will be made before permanent changes are made. There may be issues of accomodation (Court room too small) in cases of general interest, and also with press complying with the spirit of the pilot.
The daily Court of Protection list is displayed here:
Advice on Deputyship
For professional advice on Deputyship, contact us on 01323 406299.
Our correspondant is a professional Will Writer trying to help a friend with advice on Deputyship for her disabled daughter. She would not wish to claim any expertise, but clearly knows far more than the man in the street.
She says: “The process is intensive, time consuming and incredibly intrusive. It is also incredibly long. The Court of Protection takes 21 weeks from submission of the application before they formally even consider your petition. That assumes you have been able to supply all the required information to get past the initial checking stage and only then get onto the 21 week waiting list.
If you fail at the initial check stage then your documents will be sent back to you and you will have to start all over again. What joy!
Accepting the role of Court of Protection Deputy is, in my opinion, a risky affair. You will be accountable to the Court of Protection and open to challenge by your friend’s family. They may be keen to protect their inheritance, even if they can’t be bothered to look after their relative. You will have to be able to fully justify with documentary proof every decision.
The Court of Protection can appoint a deputy if a family member or frioedn won’t accept the role. Social Services can apply themselves, in cases of last resort. Maybe that could that be a better option for you?
My father is in care, with severe dementia. My mother (who is his attorney under an EPA, as opposed to his deputy) sees him on a regular basis, but that is only part of the story. She has to deal with Social Services correspondence, attend meetings, and more. Looking after dad’s affairs takes up much more time than we expected.
Finally, can I ask, how well did you know your friend? How confident are you that you can make the ‘right’ decisions for her? Have you read the Mental Capacity Act 2005, and its Code of Practice? Please do!
I hope the above gives you additional ‘food for thought’ that helps you make the right decision.”
Prevention is always better than cure, so if it isn’t already too late, get Lasting Powers of Attorney organised before a Deputyship is the only answer.
Advice from a family deputy:
I am a joint deputy for a relative. The costs involved are an application to the court and insurance (in case you run off with the person’s money) plus professional fees if you want help. These costs come from the money belonging to the person to whom the application relates. There are 2 forms of Deputy one is for financial affairs and the other is for health and welfare.
The application form is quite daunting and we found solicitors weren’t interested in helping (and not many know about it). (Contact us – we are interested and we do know! Ed.) One important issue is that you must include in the application everything that you might wish to do. So if you decide her house needs to be sold you must include it. If you think there may be insurance policies to claim from you need to include it.
Anything not included may require another application at £450 Court fee or whatever it is, and they can soon add up.
In my opinion, the Court Of Protection are useless. They work at a snails pace and don’t keep their notes up to date. Once appointed you have to produce annual accounts and justify why and how you made decisions. the idea is to protect the person, but it is a lot of extra hard work. And I dread to think what would happen if they thought I had done the wrong thing.
Certainly for us it has been a lot of work but then the case my joint deputy and I have taken on is more complicated than most because there is a business involved as well.
Please only take it on if you have the free time to deal with all the paperwork. Additionally you must visit the individual in the care home regularly to update her on what you are doing and ask if she has opinions. I know she has dementia but to the COP that doesn’t make a difference. as a deputy, you are never fully in charge, you have to look over your should all the time and make sure you can justify every single decision.
I hope my info helps.
On being a Court of Protection Deputy
My Mother has been appointed as a Deputy (through the Court of Protection) to my father who has advanced Alzheimers Disease.
It is a very long drawn out and quite intrusive procedure and all actual relatives do have to be contacted for their agreement (or otherwise). It wasn’t any fun at all.
It’s also quite expensive and my Mother will have to pay a substantial yearly insurance premium too.
I just wish that we’d managed to get Lasting Power of Attorney instead, when Dad was more capable…..he got ill very fast and it was suddenly too late.
(This lady did not have our help, but the clear lesson is that everyone should get Lasting Powers of Attorney in place at the earliest possible moment, just in case. Ed.
If you do need help with a Court of Protection Deputyship application etc, contact us, our fees are relatively reasonable.)