Court of Protection Court Evidence – Statement/Report Writing

@mcadorset #mcaconference10 Court of ProtectionCourt Evidence – Statement/Report Writing

Applications thatcan be made to theCourt of Protection • Health and Welfare • Property and Finance • Section 21A Mental Capacity Act 2005 challenging a Standard Authorisation

Declarations and Decisions • The COP can make declarations and decisions as to: • P’s capacity to make decisions and/or litigate; • Residence of P including what is the appropriate residence; • Care and treatment of P including whether or not it is/will be lawful; • Contact between P and others; • Ability to consent to sexual relations; • Deprivation of liberty including standard and urgent authorisations; • Validity and/or applicability of an advance decision to refuse treatment; • Personal information of P to be disclosed to third parties; • Deputies and attorneys (e.g. appointment, cessation & replacement)

Statements/Reports in COP proceedings • S.21A Statement • Welfare Statement • Transition Plan • S.49 Report • COP3

Statements • A witness statement is a document for court, recording your evidence and facts you believe to be true. • A lot of this you will have from your own knowledge, or where you do not know you must refer to case notes and previous assessments/support plans to confirm the history and background to a case and state that you have obtained the information in such a way within your statement. • However, certain court orders may require more specific information and so where necessary that should also be covered in your statement.

Statements - s.21A and welfare • The types of areas that need to be covered are: • Background – how have we come to this position, diagnosis, DCC and other professionals involvement • Outcomes of Capacity Assessments • Details of any Best Interest meetings • Details of the most recent Care Act assessment and support needs • What options have been considered, why this option is in their best interests and why it is the less restrictive – balance checklists must be completed for each option • Transition plan, if required • Views of Family and other relevant persons • Wishes and feelings of P • Your professional opinion • NB: It is helpful for the statement to read chronologically, as it flows better for those reading it.

Statements – s.21A and welfare • A witness statement must comply with the court rules, which requires it to: • Have the case name as the heading • Be in the first person • Be on A4, with a margin of no less than 3.5 centimetres • Be fully legible and should be typed • Be at least 1.5 paragraph spacing • At least 12pt font • Must be in clearly numbered paragraphs • Must be on consecutively numbered pages • Must have all numbers expressed as figures • Must have a statement of truth “I believe that the facts stated in this witness statement are true”. You are signing to confirm the content is true to your belief, therefore if anything is not true you must say. It can be considered contempt of court if a person makes a false statement verified by a statement of truth • Must be signed • Must be dated • Within COP Proceedings you will complete a COP24 to attach to the statement. • Your Statement will be used within the court proceedings, the court and all parties to the proceedings will have a copy of it.

Witness Statement s.21A

Witness Statement - welfare

Transition Plan • Transition plans are required within COP proceedings if a person is moving :- • from hospital to a residential home • their own home to a residential home • to an alternative residential home • from hospital/residential home to their own home. • The transition plan must be agreed by the parties and approved by the court. During the move P will be deprived of his or her liberty which is why the court must approve the transition plan before the move can take place. • District Judge Avis has prepared a checklist which must be used when you are completing the transition plan. • The plan must have a lead, set out how and when the move will take place, who will be involved and when there will be a review following the move.

Court of ProtectionChecklist for Transition Plan – v.March 2018 • Stated Aim of Plan. • 2. Details of P’s current care plan and proposed plan, including full care plans for each setting (or references to those documents where it is not appropriate for full care plans to be included). • 3. How an effective handover of care will be arranged. • 4. Which named individual will take responsibility for the transition on the day and subsequently, (“the Transition Lead”). • 5. Which named individual if other than the Transition Lead, will co-ordinate communication between ward staff in respect of the discharge plans and handing over of information.

Court of ProtectionChecklist for Transition Plan – v.March 2018 • 6. Step-by-step account of how P will be moved from A to B including: • a) Timing. (Best time of day for the move taking into account P’s needs and behaviours) • b) Personnel involved. • c) Type of vehicle. (Wheelchair Taxi, Ambulance, ordinary taxi etc.) • d) What plans made for comfort breaks if journey over 25 miles. • e) Who will “meet and greet” on arrival? • f) Contingency plan. • g) When and how will P be told of the arrangements. • h) What will happen from P’s perspective (e.g. moving possessions, arrangements for meals on the day etc.)

Court of ProtectionChecklist for Transition Plan – v.March 2018 • 7. Where the care plan involves any element of sedation • a) What type of sedation, • b) Who will administer it, • c) How will it be administered, • d) When will it be administered. • 8. Where the care plan involves any element of restraint, • a) Identify the precise nature of the restraint, • b) The rationale for it, • c) Plans to minimise the need for restraint and • d) Contingency plans in case the need for restraint is escalated. • e) Initial plan if possible to state that no restraint or sedation required. If needed parties to return to court for specific order.

Court of ProtectionChecklist for Transition Plan – v.March 2018 • f) Whether police will be present and if so, details of their involvement. If police are involved, ensure the transition plan includes sufficient to satisfy Coleridge J’s guidance in Re MP, LBH v GP [2009] FD08P01058 • 9. Monitoring in the days/weeks immediately following the move. • 10. All parties, Hospital, Care Home, Social Worker and transport agency must confirm that they have signed off on the Plan.

What is a COP3? • The COP3 form provides the court with an assessment of P’s mental capacity in relation to the specific decision to be made by the court. • It is completed by a suitably qualified medical practitioner e.g. GP of P, psychiatrist, AMHP, social worker, psychologist, nurse or occupational therapist. • The COP’s jurisdiction applies only when there is evidence that on a balance of probabilities it is more likely than not that a person is not capable of making certain decisions for themselves because of lack of capacity. • Part A of the form MUST identify the issue(s) of which P’s decision making capabilities need to be assessed.

COP3 continued • Most COP3’s are completed by a Consultant Psychiatrist. • If the court is not satisfied with the medical evidence with regards to P’s capacity or if it has been difficult to assess the court is able to order under the MCA 2005 s49 that a Special Visitor meets with P to assess his/her capacity. • A Special Visitor is medically qualified and has knowledge of and experience in cases of impairment of or disturbance in the functioning of the mind or brain. • Medical evidence that you intend to rely upon MUST have been obtained within the last 6 months

What is a s49 report? • The court has the power under s49 MCA 2005 to request a report in respect of matters relating to P from: • Public Guardian • Court of Protection Visitor • A LA or NHS body • The author of a s49 report is not permitted to charge for this report.

s.49 report • Rule 14 and Practice Direction 14E of the Court of Protection Rules apply • 18. The person required to prepare a section 49 report must— • (a) prepare it having regard to the provisions of rule 14.24; • (b) produce it in the manner specified in this Practice Direction (subject to any directions given by the court); and • (c) produce it in accordance with the timetable set out in the court’s directions. • 19. The report should contain four main sections. These are— • (a) the details of the person who prepared the report; • (b) the details of P; • (c) the matters and material considered in preparing the report; and • (d) the conclusions reached.

s.49 report • 20. In the first section (details of the person who prepared the report), the report should— • (a) state the full name of the person who prepared the report; • (b) state whether that person was appointed under section 49(2) or (3) of the Act; • (c) state whether that person is— • (i) the Public Guardian; • (ii) a General Visitor; • (iii) a Special Visitor; • (iv) an officer, employee or other person nominated by a local authority; or • (v) an officer, employee, or other person nominated by an NHS body; • (d) state that person’s occupation or employment (for example, social worker employed by a local authority or general practitioner in private practice); and • (e) list that person’s qualifications and experience.

s.49 report • 21. In the second section (P’s details), the report should (unless an order to the contrary pursuant to rule 5.11 has been made)— • (a) state P’s full name, date of birth and present place of residence; • (b) state P’s nationality, racial origin, cultural background and religious persuasion (if appropriate); • (c) identify P’s immediate family (specifying their relationship to P and contact details; • (d) identify any other person who has a significant role in P’s life (for example, a close friend or a carer) specifying their role and contact details; and • (e) give a summary of P’s medical history • 22. In the third section (matters and material considered), the report should— • (a) list any interview conducted with P (specifying time and place); • (b) list any interview conducted with one or more persons other than P (specifying time and place)

s.49 report • (c) state— • (i) whether any examination of P was conducted by a Special Visitor under section 49(9) of the Act; and • (ii) the name and qualifications of any person who assisted with any such examination; • (d) give a summary of any key events in P’s life which appear to have a direct bearing on the matters to be dealt with in the report; • (e) set out the details of any of the following material which was relied on in the preparation of the report— • (i) any literature or other material; • (ii) any records obtained under section 49(7) of the Act; • (f) set out the details of facts and opinions relied on in the preparation of the report (ensuring that there is a clear distinction between the two); • (g) where there is a range of opinion on an issue addressed in the report— • (i) summarise the range of opinion, • (ii) state the views held by the person who prepared the report and give reasons for them; and • (h) indicate which of the facts are within the knowledge of the person who prepared the report.

s.49 report • 23. In the fourth section (conclusions), the report should— • (a) identify any issues or questions which were specified in the directions given by the court as being matters in which the court had a particular interest; • (b) address clearly such issues or questions; • (c) state clearly all conclusions reached by the person who prepared the report; • (d) state clearly the recommendations made by the person who prepared the report; and • (e) contain a statement of truth in the following terms— • “I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are, and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion.”

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Court of Protection Court Evidence – Statement/Report Writing