Little is known by the general public about the Court of Protection. It was created, from 1st October 2007, by the Mental Capacity Act 2005 s45. It has the same powers, rights, privileges and authority as the High Court. A general description of the court's work is available via the Judiciary website. Court of Protection Rules provide that the court usually sits in private (Rule 90). The court may authorise publication of information about proceedings but, in doing so, is entitled to insist on the parties remaining anonymous. In fact, quite a number of judgments have been published. Where the proceedings concern a person's personal welfare the general rule is that there will be no order as to the costs of the proceedings or of that part of the proceedings that concerns P’s personal welfare (Rule 157) but, under Rule 159, the court may depart from the general rule if circumstances justify.
Court of Protection Report for 2010
Two cases of particular interest arose in June. First, was the very disturbing Steven Neary case which Law and Lawyers followed earlier. The court's full judgment (of Peter Jackson J) is available.
The second case is that of Cheshire West and Chester Council v P and another  EWHC 1330 (COP) - Baker J. This case is of particular interest for three reasons. The main reason is the consideration by Baker J of the distinction between deprivation of liberty and restraint. It may be that, in the course of dealing with a person, the professional staff involved have to exercise restraint to some extent. When does that amount to deprivation of liberty? The case is also of interest because
Baker J ordered that the local authority in question be named and also that they pay an element of the costs. Underlying this was the fact that an employee of the local authority (referred to as "A") had altered records relating to the management of a man who lacked mental capacity - referred to as "P"
"P" required a considerable level of care and that included the need, from time to time, for staff to check his mouth and, if necessary, to remove material which he had a habit of eating. The full details of the case are clearly set out in the judgment.
The factors to be considered when deciding whether there is deprivation of liberty are at para 46 of the judgment which refers to the Court of Appeal decision in P v Surrey County Council  EWCA Civ 190 (Wilson LJ). The tests, as set out by Baker J, are worth setting out in full:-
So far as "P" was concerned, Baker J held that he was deprived of his liberty. This was principally on the basis of 2a (the objective element) in the tests.
This question was raised and was dealt with deftly by Baker J at paras 50 to 52. The short answer is NO. The court acts on inquisitorial lines and has the task of assessing whether an adult lacks capacity. The court is not just a disinterested party tasked with deciding a dispute brought by parties.
The professionals are obliged to keep "P"s condition under review and ensure that measures taken are the least interventionist possible. There will also be on-going reviews by the court.
Baker J added a postscript to his judgment which pointed out the excellent work done week in, week out, by people caring for others such as "P." Many such people have profound and challenging disabilities. "The excellent work of professionals in this field deserves greater public recognition."