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 P’s 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 applicant’s 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 P’s 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 Solicitor’s 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 didn’t 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 P’s 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 P’S BEST INTEREST TO:- • Go on the cruise? Or not? • What did the court decide? • The judge felt that the Council’s 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 P’s 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 SOLICITOR’S OFFICE 81 Chancery Lane London WC2A 1DD Tel: 0207 911 7127

18. THANK YOU Emma Stacey Solicitor, Foot Anstey LLP