The Court Of Protection - Recent Cases And Comments On Procedure (Part 1)

Introduction

1. This paper, which draws upon work by Victoria Butler-Cole, Alex Ruck Keene and Alexis Hearnden, all of 39 Essex Street, falls in two parts:

   an update on case-law from the past twelve months concerning best interests decisions on health and personal welfare applications in the Court of Protection. Following a relatively slow start, the Court of Protection has now developed an increasingly substantial body of case-law. However, there remains a significant problem with the dissemination of decisions, which means that important developments are, unfortunately, not always communicated as widely as they should be;1 The article also identifies, and suggests ways to avoid, common pitfalls in bringing proceedings. It is predominantly written for the aid of local authorities, but it is hoped that the points made herein are of more general application. Recent case-law

   The court's powers

2. In Re F [2009] EWHC B30 (Fam) the court clarified that its powers under s.48 MCA 2005 to make interim orders and directions can be exercised even where there is insufficient evidence to rebut the presumption of capacity. The proper test in the first instance with whether there is evidence giving good cause for concern that the individual may lack capacity in some relevant regard. Once that has been raised as a serious possibility, the court can move to the second stage of deciding what action, if any, it is in the individual's best interests to take, before a final decision about capacity can be made. Thus, where there is evidence that an individual may lack capacity but further investigation is required, it may be appropriate to bring proceedings. For example, where the individual lives with his or her family and access to carry out a formal capacity assessment has been denied, where different conclusions about capacity have been reached by different assessors, or where evidence about capacity is of insufficient quality.

3. In the matter of LD (2009) considered the scope of the court's powers to determine a case summarily. While there was jurisdiction to determine a case summarily, this was a power that should be used with restraint, as an alternative to a hearing, or in an emergency where there was little or not apparent dispute likely. It was not appropriate where the result would be to sanction a deprivation of liberty, or where one of the parties was not present and had not been warned of the proposed course of action. The court also noted that the judge had wrongly appointed a local authority as personal welfare deputy without proper consideration of the statutory and procedural requirements for making such an order. Further consideration of the welfare deputy application is expected by the High Court before the summer.

4. In The London Borough of Enfield v SA & Ors [2010] EWHC 196 (Admin), Macfarlane J had to answer the following four questions:

   Is hearsay evidence admissible in the Court of Protection? If hearsay evidence is admissible, is hearsay evidence emanating from a witness who is, by reason of mental disability, not competent as a witness admissible in the Court of Protection? Where the subject of Court of Protection proceedings has been interviewed by police in an 'Achieving Best Evidence' interview, are the fact of that interview and a copy of the DVD recording of it matters to be disclosed to the parties and to the Court? Where police propose to interview a person who is the subject of pending incapacity/best interest proceedings in the Court of Protection, are the police and/or the applicant local authority under a duty to disclose the proposal to the court and parties in the Court of Protection and how is the issue of P's capacity to consent to the interview to be addressed? 5. The judgment is lengthy and repays careful consideration. In short terms, however, the answers that Macfarlane gave were as follows:

   Yes, on a proper – and purposive – interpretation of the various statutory provisions governing the Court of Protection; Yes, again on a similar interpretation. He made it clear, however, that admissibility was one thing and that the weight to be attached to any particular hearsay evidence from P would be a matter for specific evaluation in each individual case. Within that evaluation, he continued (at paragraph 36) the fact that the individual from whom the evidence originated is not a competent witness will no doubt be an important factor, just as it is, in a different context, when the family court has to evaluate what has been said by a very young child; Yes. Macfarlane J was highly critical of the fact that this interview and the DVD of it had not been disclosed to the parties and the Court. He emphasised that, for the future, in such cases it would be justified for the Court to make an order for specific disclosure under Rule 133(3) of the Court of Protection Rules 2007 requiring all parties to give full and frank disclosure of all relevant material; in other words, to ensure that was effective equivalence in procedures between Court of Protection proceedings and family proceedings; Yes. Macfarlane J held (at paragraph 46) that, in the absence of an 'absolutely pressing emergency' (in an extreme sense given the availability of a High Court judge every day of the year), where there are extant Court of Protection proceedings relating to an individual's capacity and best interests, any question of whether or not there should be an ABE interview must be raised with the court and be subject to direction from a judge. Where the substance of the interview may relate to allegations that another party to the proceedings (or someone closely connected to a party) has harmed the interviewee, then there will be good grounds for the matter being raised, at least initially, without notice to that party, but in every case notice should be given to the Official Solicitor or any other person acting as P's litigation friend. Macfarlane J commented (strictly obiter) that for his part, where there are pending proceedings, even if the local authority and litigation friend take the view that P has capacity to consent to such an interview, if the proposal if the interview is to take place without the knowledge of another party to the proceedings, it would nevertheless 'be wise if not necessary' for the court to be informed of the situation. 6. Finally, Macfarlane J made it clear that once findings of fact have been made following a hearing before a specific judge, the case becomes part heard and that the trial (including any subsequent best interest hearing) should not resume before a different judge.

7. It is also worth noting that the High Court will next month hear a case which has been agreed raises the following issues:

   the principles to be applied in the "fact finding" process in the Court of Protection and to what extent the principles and jurisprudence on procedure and substance in the Family Division under the Children Act 1989 and the Adoption and Children Act 2002 are relevant and applicable to the Court of Protection under the Mental Capacity Act 2005; the principles and procedures to be adopted in the Court of Protection (including any interrelation with principles and procedures in the...