Court of Protection

Now that the Court of Protection has been established in the regions, including Birmingham, for some time, it seems apposite to review its jurisdiction and effectiveness. The central office and registry of the Court of Protection is situate at Archway in London. Under the Mental Capacity Act 2005, however, courts outside of London may be designated as additional registries. Those so designated (as Regional Hearing Centres) are Birmingham, Bristol, Cardiff, Manchester, Preston and Newcastle.

All cases and matters must be issued in London. Thereafter, however, they can be transferred to one of the regional centres for future conduct and any hearings. At the time of writing, there is still some delay in getting the cases transferred but it is hoped that this will lessen with time.

Once cases have been transferred outside of London, progress is made quickly. It is not uncommon, for example, for the court to make direct contact with one or more of the parties in advance of any hearing, in an attempt to expedite matters and/or to encourage them to focus on particular issues and so on.

The scope of the work of the Court of Protection has expanded significantly since the Mental Capacity Act came into force. It is now a superior court of record (rather than an office of the High Court, which was its previous status) and has all the powers, rights, privileges and authority of the High Court. Its rules echo those of the CPR and they are supported by several Practice Directions, the form of which will be familiar to all those engaged in civil litigation.

There are two main facets to its jurisdiction: financial and welfare. Obviously there is some overlap between the two. In either case, however, the jurisdiction of the court may be invoked only where the person concerned (P) lacks capacity. The MCA emphasises that the question of capacity is issue specific and provides that a person is unable to make a decision for himself –

“if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means)”.

If, or when, it is determined that P does lack capacity, then any decision made that affects or relates to his affairs or welfare must be made in his “best interests”. Those decisions may be made by P’s attorney appointed under a Lasting Power of Attorney, or by his deputy, appointed by the Court of Protection. An LPA may be appointed to deal with P’s welfare issues as well as his property and affairs, but in the case of the former, the power may not be used until after P has lost capacity. In the case of P’s property and affairs, however, P has a choice when creating the power to specify whether it may be used immediately or only after he has lost capacity.

In respect of matters relating to P’s property and affairs, many of the applications that are made to the Court of Protection are concerned with financial abuse. Para 7.70 Code of Practice sets out indicators of abuse, as follows:

• stopping relatives or friends contacting the donor – for example, the attorney may prevent contact or the donor may suddenly refuse visits or telephone calls from family and friends for no reason
• sudden unexplained changes in living arrangements (for example, someone moves in to care for a donor they’ve had little contact with)
• not allowing healthcare or social care staff to see the donor
• taking the donor out of hospital against medical advice, while the donor is having necessary medical treatment
• unpaid bills (for example, residential care or nursing home fees)
• an attorney opening a credit card account for the donor
• spending money on things that are not obviously related to the donor’s needs
• the attorney spending money in an unusual or extravagant way
• transferring financial assets to another country.

When the Court of Protection is considering any question relating to P it may require a report to be made to it by the Public Guardian or a Visitor, who may be whatever type of person the Court deems most appropriate to visit and interview P, the attorney or deputy, as the case may be.

Attorneys and deputies are required to co-operate with the Visitors and if they do not, the Court of Protection can cancel their appointment where it considers they have not acted in P’s best interests (section 22). This sanction may be invoked where the attorney has behaved, or is behaving, in a way that contravenes his authority or is not in P's best interests, or he proposes to behave in a way that would contravene his authority or would not be in P's best interests. In effect, so far as possible, the Visitor acts as the eyes and ears of the Court by speaking directly with P and/or those who are around him on a daily basis, and then preparing a report for the court.

So far as the welfare of P is concerned, carers (both professional and family members) may carry out certain acts in relation to his personal care. A (non-exhaustive) list of examples is provided in the Code of Practice and these include matters such as personal hygiene and mobility. The purpose of this provision is to protect the decision makers from liability.

In relation to more serious acts relating to medical treatment or welfare, for example, a change of residence or major decisions about medical treatment, the position is different. The Code of Practice provides detailed guidance to assist in making decisions that are in the person’s best interests (paragraphs 6.7 – 6.19). Where there is no family or friend to be consulted or speak up on the person’s behalf, the MCA 2005 provides for an Independent Mental Capacity Advocate to support and represent the person (ss35 – 41). Where there is disagreement, the matter will be resolved by the Court of Protection which will make a decision as to which alternative (medical treatment or place of residence and so on) is in the best interests of P. In serious cases, the Court will make a declaration (for example a decision about withholding life-sustaining treatment or non-therapeutic sterilisation).

Where the decisions are made by P’s attorney under an LPA extending to welfare, the attorney must, as afar as possible, take into account P’s views and, again if possible, consult with him. If P is capable of making the decision in question, however, then the attorney cannot act. Further, the attorney is bound by a valid consent to act or consent to a particular treatment which is entered into after the creation of the LPA.

Where there is no LPA, the Court of Protection can be asked to make a decision in respect of matters concerning a person’s personal welfare (see s16(1)(a) MCA 2005). The Court of Protection can either make a decision in respect of a decision that needs to be made or it can appoint a deputy to make decisions on a person’s behalf. Importantly, section 16(4) provides that:

When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that—

(a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and

(b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.

Following from that, it is rare that welfare only deputies are appointed and the relevant decisions relating to P’s welfare are commonly made by the Court of Protection.

Where a deputy is appointed, however, he will have the following powers (s17):

(a) deciding where P is to live;
(b) deciding what contact, if any, P is to have with any specified persons;
(c) making an order prohibiting a named person from having contact with P;
(d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;
(e) giving a direction that a person responsible for P's health care allow a different person to take over that responsibility.

These powers are finite and the Deputy does not have the power, for example, to prohibit a named person from having contact with P or to direct a person responsible for P’s health care to allow a different person to take over that responsibility. Thus in respect of these matters, any decision must be made by the Court of Protection.

Similarly, neither a deputy nor an attorney can refuse to the carrying out or continuation of life-sustaining treatment in relation to P.

The Court of Protection in Birmingham (at least) is very busy and experience has shown that the all matters are dealt with expeditiously and effectively. The Court of Protection Judges in Birmingham are very enthusiastic about their new jurisdiction. It is a welcome addition to the ambit of matters that can be dealt with outside of London, especially by those who seek the intervention of that court.