Thursday, 25 April 2013

Court of Protection ~ an overview

Update 4th May:  Committal for Contempt of Court - Practice Direction of 3rd May

The Court of Protection has been mentioned a few times on this blog - for example, here  and here.

The court is in the news again because it has come to light that Wanda Maddocks was committed to prison for contempt of the court - Daily Mail 25th April - where it is said that, when judgment against her was handed down, she was not present in court and not represented by a lawyer.  It is also said that sentencing was not made public for six months.

In this post, I do not intend to comment on the Mail's article.  I am grateful to the Small Places blog for bringing my attention to the judgment - actually published last autumn - Stoke City Council v Maddocks [2012] EWHC B31 (COP).  Let's look at a few facts about the court.

1.  Parliament established the court by enacting Part 2 of the Mental Capacity Act 2005.  It came into existence from 1st October 2007 and replaced earlier arrangements often confusingly referred to as court of protection proceedings.



2.  The court is a superior court of record which, in practice, means that it has contempt of court powers which may be used to enforce its orders as well as to deal with any disorderly behaviour in the court.

3.  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.  It is a specialist court for all issues relating to people who lack capacity to make specific decisions. The Court makes decisions and appoints deputies to make decisions in the best interests of those who lack capacity to do so.

4.  Proceedings in the Court of Protection are normally in private but the court may order an open hearing.  Furthermore, reporting restrictions can be applied.  These matters were addressed by Baker J in W v M, S, an NHS Trust and Times Newspapers [2011] EWHC 1197 (COP).  Note what the learned judge said:

'The Court of Protection is concerned with the weak and the vulnerable, not the rich and the famous. Its jurisdiction arises out of the need to make decisions on behalf of those who lack the capacity to make decisions for themselves. For understandable reasons, Parliament has therefore decided that hearings in the Court should usually be held in private.'

5.   There are Court of Protection Rules

6.  The Rules (Part 21) deal with applications to the court for a person to be held in contempt.   See also the Practice Direction on Enforcement.

7.  When a contempt application is made to the court, notice must be given to the person claimed to be in contempt though the court may dispense with notice.  Also, the person has a right to give oral evidence to the court - e.g. to show why he or she should not be committed.  The hearing should usually be in public and certain information must usually be published.  See Rules 185 to 194.

8.  Many judgments of the court are published with the parties anonymised - see Bailii Court of Protection.  The judgments amply illustrate the very difficult and sensitive issues handled by the judges and the meticulous attention to detail.

9.  See Court of Protection Deputies (i.e. someone appointed to make decisions for another who is unable to do so on their own) and Court of Protection Visitors.

Criticisms and Comments:

Calls for reform have been made - see the view of John Hemming MP in February 2011 and The Guardian November 2011 - Court of Protection: defender of the vulnerable or shadowy and unjust.

The Guardian Law pages offer several articles about the court and its operation.

There is an All-Party Parliamentary Group on Family Law and the Court of Protection.

Daily Mail 28th April 2013 - looks at the assets managed via the court

Addendum:

Please see The Small Places blog for a view on the Maddocks case.

3 comments:

  1. Hello, great on CoP, but the Maddocks case was published last year. Sorry can't link as on mobile, but there's a link in my blog. Its a bit more complex than Mail suggests.

    ReplyDelete
    Replies
    1. Thank you very much. Post updated.

      Delete
  2. Re the "see The Small Places blog for a view on the Maddocks case"


    """
    In this particular case, if Wanda's father was expressing a wish to come home, and Wanda was trying to facilitate a visit to see a solicitor to exercise his appeal rights, then that puts a very different slant on things. It makes the order of 19th May which forbade her from discussing a return home with him seem very problematic, as it essentially prevents her from assisting him in exercising his Article 5(4) (and 8 and 6) rights.
    """

    Well, yes. Any such order will have that affect at any and all times. How can she even find out whether he needs her to contest the order, without breaching the order?

    If anything this shows that such orders should never be made. (A longer comment made at that place).

    ReplyDelete