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THE WORKINGS OF PROCEEDINGS IN THE COURT OF PROTECTION

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Title: THE WORKINGS OF PROCEEDINGS IN THE COURT OF PROTECTION


1
THE WORKINGS OF PROCEEDINGS IN THE COURT OF
PROTECTION
  • A VIEW FROM ALL PARTIES
  • September 2012

2
COURT OF PROTECTION PROCEEDINGS
  • The jurisdiction of the Court
  • Where there is a dispute as to capacity section
    48 Mental Capacity Act applies
  • The court may, pending the determination of an
    application to it in relation to a person (P)
    make an order or give directions in respect of
    any matter if
  • there is a reason to believe that P lacks
    capacity in relation to the matter
  • the matter is one to which its powers under the
    Act extend, and
  • it is in Ps best interest to make the order, or
    give the directions, without delay
  • Reason to believe has been interpreted by the
    Courts as meaning sufficient evidence to justify
    a reasonable belief that P may lack capacity in
    the relevant regard

3
WHAT THE COURT CAN DO
  • Section 15 Power to make Declarations
  • Section 16 Power to make decisions and appoint
    deputies in relation to
  • Personal welfare
  • Property and affairs
  • Section 21 Power to Determine issues relating to
    standard authorisations
  • Make determinations in relation to the validity
    of
  • Advanced Decisions to refuse treatment
  • Lasting powers of Attorney

4
COMMON ISSUES IN DISPUTE
  • Residence
  • Care
  • Medical treatment
  • Property and financial affairs
  • Contact
  • Sexual relations
  • Marriage

5
WHO ARE PARTIES
  • Who may make an application?
  • Automatically permitted to make an application
  • A person who lacks, or is alleged to lack
    capacity referred to as P protected party
  • Donor or Donee of a lasting power of attorney to
    which the application related
  • A deputy appointed by the Court for a reason to
    whom the application relates
  • A person named in an existing order of the Court,
    if the application relates to the order
  • Permission required by anyone else, when deciding
    the Court will have regard to
  • The applicants connection with the person whom
    the application relates
  • The reason for the application
  • The benefit to the person to whom the application
    relates of a proposed order or directions
  • Whether the benefit can be achieved in another
    way
  • Individuals applying for permission to be a party
    need to state their case as to how they can
    forward a case in Ps best interest and why they
    need to be a party.

6
LITIGATION FRIEND
  • Conduct proceedings and forward legal arguments
    on behalf of P in his/her best interests
  • Who can be a litigation friend
  • A person who can fairly and competently conduct
    proceedings on behalf of an incapacitated person
    and he or she has no interests adverse to those
    of that person
  • Court has full control over the appointment and
    removal
  • Official Solicitors Office is litigation friend
    of last resort
  • Person appointed consents to act

7
GENERAL TIMETABLE OF PROCEEDINGS
  • Application is made
  • First directions hearing
  • Practice Directions says within 5 working days
    for DOL challenges
  • Approximately six weeks for Best Interests
  • Interim orders and declarations made
  • Timetable thereafter depends on
  • The number of issues
  • The evidence required
  • number of experts
  • expert availability
  • whether expert evidence is accepted or contested
  • Court timetable

8
TENSIONS BETWEEN THE PARTIES
  • Human Rights v Safeguarding
  • Human Rights Act 1998
  • Ensures that we enjoy certain freedoms
  • That we are protected from the state in terms of
    excessive interference
  • That we are protected by the state from
    particular forms of harm.
  • The right to self- determination by the right to
    be protected by the statutory authorities

9
ADDITIONAL EMOTIONS
  • Family members perspective
  • When asked about experience in the Court of
    Protection wife of a husband with ABI reports
  • Prior to being in Court I felt a complete lack of
    regard by health professionals for any positive
    contribution I could make to my husbands care
  • I felt in the middle, as he blamed me for not
    taking him home. He became more aggressive and
    frustrated with me.
  • I was then confused. I didnt know what the right
    thing for him was, I changed my mind and it was
    sometimes hard to answer the questions. I would
    say yes and no at the same time.
  • I worried that people thought I was going to
    benefit in some way, a gold digger for wanting
    control his finances
  • I felt guilty for actually getting aspects of my
    own life back and enjoying that
  • It provided an opportunity to put forward to the
    court another side and I felt listened to
  • Helped me to feel that I was doing everything I
    could even though it took so much time and
    effort

10
ADDITIONAL EMOTIONS
  • P perspective
  • Not understanding why cannot go home
  • Uncertainty over future
  • Assessments

11
WHERE IN AN INDIVIDUAL CASE DOES THE BALANCE FALL?
  • Duty to Consult
  • With anyone named by the person as someone to be
    consulted
  • Anyone engaged in caring for the person or
    interested in Ps welfare
  • Any donee of an LPA
  • Any court appointed deputy
  • With P ascertain wishes and feelings

12
THE COURT WILL APPLY A BALANCE SHEET APPROACH
  • Case Study - Cardiff Council v Peggy Ross (2011)
    COP
  • 82 year old woman in physical good health, but
    with dementia
  • Partner of 20 years aged 81
  • In twenty years had taken approximately 50 cruise
    ship holidays together
  • Prior to moving into a care home they had booked
    a cruise together
  • Resident in care home during the week and cared
    for by partner at weekends
  • He did not fully appreciate her care needs, she
    required prompting with daily activities and
    taking medication
  • She would occasionally wander off
  • She said at times she did not want to go, at
    other times was indifferent
  • Partner felt she wanted to go and would benefit
    from it
  • He felt he could look after her

13
DO YOU CONSIDER IT IN PS BEST INTEREST TO-
  • Go on the cruise? Or not?
  • What did the court decide?
  • The judge felt that the Councils approach to
    the best interests decision was too risk averse
    and failed to take proper account of the
    potential benefits to Mrs Ross it smacked of
    saying that her best interests were best served
    by taking every precaution to avoid any possible
    danger without carrying out the balancing
    exercise of considering the benefit to Mrs Ross
    of what, sadly, may be her last opportunity to
    enjoy such a holiday with Mr Davies. This led, in
    my view, to trying to find reasons why Mrs Ross
    should not go on this holiday rather than finding
    reasons why she should.

14
FEATURES OF BRAIN INJURY CASES
  • Multi disciplinary approach to ABI cases
  • Care packages high staff turnover
  • ? Long term well trained care workers and family
    members are able to support in the home
  • Significant problem is recruitment of support
    workers, particularly in rural areas
  • Emerging evidence of the efficiency of client and
    family training
  • Evidence to support the effectiveness of home
    programmes for adults. Study confirmed that many
    were as effective as programmed delivered by
    therapists - Article Professor Mike Barnes on the
    Need for Long Term Rehabilitation After Traumatic
    Brain Injury
  • Supervision and training is required and
    coordination by a robust care manager

15
WHAT IF YOU HAVE INFORMATION BUT ARE NOT A PARTY?
  • Situations where you know proceedings are
    happening
  • Write to the court / litigation friend
  • ? can you disclose this information? Who
    instructed you?
  • Duty to consult when making best interest
    decisions, including
  • Anyone engaged in caring for the person or
    interested in Ps welfare

16
THE COURT OF PROTECTION
  • The Royal Courts of Justice
  • Thomas More Building
  • Strand
  • London
  • WC2A 2LL
  • Tel 030 0456 4600

17
THE OFFICIAL SOLICITORS OFFICE
  • 81 Chancery Lane
  • London
  • WC2A 1DD
  • Tel 0207 911 7127

18
THANK YOU
  • Emma Stacey
  • Solicitor, Foot Anstey LLP
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