Wednesday 2 August 2017

Court of Protection

Of all the courts of England and Wales, one of the least understood is the Court of Protection. It is a court empowered by Parliament to decide issues relating to those who lack mental capacity to make their own decisions.  This is a complex field.  The vast majority of people who encounter the Court of Protection will need specialist legal help but it is a regrettable fact that legal aid is not always available under current arrangements.  The absence of legal aid in many important areas can amount to a denial of access to justice and it is a national scandal.  Let's take a closer look at the court.

1.  It was created by Parliament in Part 2 of the Mental Capacity Act 2005 and came into existence on 1st October 2007 replacing earlier arrangements which were also 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 making decisions on financial or welfare matters for those who lack capacity to make such decisions.

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 is a Mental Capacity Act Code of Practice

6.   There are Court of Protection Rules and also Court of Protection Practice Directions 

7.  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.

A recent Court of Appeal judgment has highlighted the point that legal aid is not always available for proceedings in the Court of Protection.  The judgment is HERE and is considered in a short article by David Lock QC at Linked In 1st August 2017. The Court of Appeal held that it is permissible for doctors and relatives to agree between themselves whether it is in the best interests of a patient to withhold or withdraw medical treatment, including Clinically Assisted Nutrition and Hydration (“CANH”), from a patient in either a Persistent Vegetative State (“PVS”) or a Minimally Conscious State (“MCS”) without the need to apply to the Court of Protection.

With regard to legal aid, Lady Justice King said (para 10):

" ... it will undoubtedly be regarded by many as perturbing that non-means-tested legal aid is unavailable to people making an application to the court in circumstances where a dispute has arisen in respect of the withdrawal of life sustaining treatment, ...."

and this is what Lord Justice Leveson said (para 114):
  1. It is not for the court to identify how legal aid funds should be distributed but it may be appropriate to underline the difficulties that families such as the family in this case must face, addressing difficult issues at acutely traumatic times in their lives. If agreement between the authorities and the family is possible, litigation will not be necessary but, if there is disagreement, the resulting issues are likely to be complex both as to the facts and the law. Assuming that the merits of any particular proceedings can be demonstrated, consideration should be given to the public interest justification of adding financial pressures to the many others that the affected families face.
Steps for people to consider:

1.  Make a will.  The ability to make a will has existed for centuries and it is an important step for most people to take.  As this government overview states, a will lets the testator decide what will happen to his or her money, property and possessions after death.  A will may also help with taxation such as Inheritance Tax.  There are many possible legal complications with wills and I always think it best for individuals to have their will drawn up by a competent person such as a solicitor.

It is very important that a testator considers fully to whom he is to leave his property.  The old "cut off without a penny" idea no longer holds full sway since it can now be superseded by Family Provision and this is a difficult legal area - Inheritance (Provision for Family and Dependants) Act 1975.

If a person dies without a will then Intestacy Law will apply with the result that property might be distributed in a way which the individual would not have wished.

2.  Lasting Powers of Attorney - Another important change made by the Mental Capacity Act 2005 was to bring into law Lasting Powers of Attorney.  These enable a person - referred to as a "donee" - the right to make decisions on behalf of the person making the Lasting Power of Attorney (the "donor").  There are two types of Lasting Powers - Personal Welfare; Property and Affairs.  Lasting Powers of Attorney have to be registered with the Office of the Public Guardian.

3.  Under the Mental Capacity Act 2005 it is also possible for individuals to make Advance Decisions to Refuse Treatment - see the 2005 Act HERE.  Advance Decisions should not be confused with Advance Statements.  An Advance Decision has to be made in accordance with certain legal requirements.  Age UK offers a good explanation of both.  See also NHS Advance Decisions and  NHS Advance Statements.

The term "Living Will" is often used in everyday language but it has no legal meaning.

Most high street solicitors offer services for the making of wills, lasting powers of attorney and advance decisions.

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