THE COURT OF PROTECTION – A USER’S GUIDE

ALISON GRAHAM-WELLS

WHAT’S ALL THIS ABOUT THEN?

The Mental Capacity Act (MCA) 2005 is an extraordinarily wide-reaching piece of legislation: any of us at any time could find ourselves incapable of taking decisions about our health, our welfare, or our finances. The Court of Protection, the specialist court established by the MCA 2005 as the ultimate decision-maker in relation to those lacking capacity to take those decisions, is in consequence a court with a very wide reach”

Preface to LAG’s Court of Protection Handbook

The aim of this presentation is to give you a road map to the landscape in which the practice and processes of the court take place

UNDERSTAND YOUR LEGAL OBLIGATIONS

• Everyone working with, or providing care and support for, a person over 16 years of age, who may lack capacity to make decisions for themselves, is required by law to understand and use the Mental Capacity Act 2005 (MCA)

• Providers must also demonstrate to commissioners how they are meeting their statutory obligations under MCA through their planning processes and practice

• The House of Lords Select Committee published a report in March 2014. It found:– MCA continues to be held in high regard– MCA has not met the high expectations it raised

due to• A lack of awareness and understanding• A persistent culture of paternalism in health services,

and• Aversion to risk in social care

• The Care Quality Commission’s report on the use of DOLs Safeguards in 2014 found– That the MCA was not well understood across all

sectors– In some care homes (and hospitals), people’s

freedom to make decisions for themselves was restricted without proper consideration of their ability to consent or refuse

• The Care Act 2014 statutory obligation to promote individual wellbeing sets the future direction of social care. It recognises the importance of

Beginning with the assumption that the person is best placed to judge their situation

• The MCA also places the person at the heart of decision making

WHERE TO FIND THE LAW & GUIDANCE

• Primary legislation – the Mental Capacity Act 2005• Secondary legislations – orders, rules and regs

made under the authority of the Act• Practice Directions, Practice Guidance and Codes of

Practice• Case-law decisions• European Convention on Human Rights• Textbooks and textbook opinion

MENTAL CAPACITY ACT 2005

The purpose of the MCA 2005 is to provide a structure and appropriate mechanism for making a decision on behalf of a person who lacks or now lacks the capacity necessary to exercise a citizen’s usual constitutional right to make their own decision.

This is a matter of constitutional importance. Those capable of acting are responsible for their acts and omissions and, being responsible for them, accountable to others. The counterpart of freedom and autonomy is accountability for acts freely and autonomously done.

Part 1

• Persons who lack capacity– Statutory principles (s1)– Definitions of incapacity and best interests (Ss2-4)– Legal protection for professionals and other carers in

respect of care and treatment given informally (s5-6)

– Payment for necessary goods and services (ss7-8); LPAs (ss9-14)

• Part 2– The Court of Protection and the Public Guardian

• Establishment, jurisdiction and powers of the Court of Protection and the Public Guardian

• Part 3– Miscellaneous and general

• Scope of the Act• International protection of adults• Interpretation• Making of rules, regulations and orders

The Schedules

• Sch 1 – Lasting powers of attorney: formalities• Sch 2 – Property and affairs supplementary

provisions• Sch 3 – International protection of adults• Sch 4 – Provisions applying to existing enduring

powers of attorney• Sch 5 –Transitional provisions and savings• Sch 6 – Minor and consequential amendments• Sch 7 - Repeals

More Schedules

• Sch A1 – Hospital and care home residents: deprivation of liberty

• Sch 1A – persons ineligible to be deprived of liberty by the Act.

These schedules set out the deprivation of liberty scheme inserted into the MCA 2005 by the MHA 2007

RULES,PRACTICE DIRECTIONS, PRACTICE GUIDANCE,

REGULATIONS AND ORDERS, AND CODES

Court of Protection Rules 2007 SI No 1744

(COPR)

– Rules governing the procedures of court

– Require parties to help the court in furthering the overriding objective of dealing with cases justly

– Judges required to further the overriding objective with “active case management”

– Cumbersome• 202 rules in 22 parts• Supplemented by 62 practice directions, numerous prescribed

forms and where necessary the CPR and FPR

• Practice directions– Some repeat the rules in plainer English– Others are substantive, eg:

• PD 9D – Applications by currently appointed deputies, attorneys and donees in relation to the person’s property and affairs

• PD 9E – Applications relating to serious medical treatment

• Practice guidance– Committal for Contempt of Court

• Practice Guidance issued on 4 June 2013 by Sir James Munby, President of the Court of Protection (supplements guidance issued on 3 May 2013)

– Transparency in the Court of Protection: publication of judgments

• Practice Guidance issued on 16 January 2014 by Sir James Munby, President of the Court of Protection

• Regulations and orders– Lasting Powers of Attorney, Enduring Powers of

Attorney and Public Guardian Regulations 2007• Completion and registration of enduring powers of

attorney

• Reports required of deputies

• Registers maintained by the Public Guardian

• Codes of Practice– Separate codes on MCA as originally passed and

the DOLs provisions added in 2007:

• Mental Capacity Act 2005: Code of Practice (Department for Constitutional Affairs, 2007)

• Deprivation of liberty safeguards; Code of Practice to supplement the Mental Capacity Act 2005 Code of Practice (Ministry of Justice, 2008)

JURISDICTION OF THE COP

• A creature of statute – CoP’s jurisdiction derives entirely from the MCA 2005

• Only has jurisdiction to make a decision where the person concerned lacks capacity to make the relevant decision himself.

• The exception to this is the power to make interim orders (s48)

• Consequential orders in the event of death or recovery (CoPR)

• Cannot determine general civil disputes

WHAT IT CAN’T DO

• Exempt matters– People falling outside the Act (s2(5) and (6), s18(3))

• Generally restricted to persons over the age of 16yrs

– Family matters falling outside the Act (s27)• Consenting to marriage or civil partnership• Consenting to sexual relations• Consenting to a decree in divorce proceedings based on 2 years

separation• Consenting to dissolution of civil partnership based on 2 years

separation• Consenting to a child being placed for adoption by an adoption

agency

• Consenting to the making of an adoption order• Discharging parental responsibility matters not relating to a child’s

property• Giving consent under the Human Fertilisation and Embryology Act

1990

– Mental Health Act matters (s28)• Briefly if a patient’s treatment is covered by the terms of the Mental

Health Act 1983 (MHA), that Act applies.• Treatment may fall outside the MHA because it is treatment for a

mental health problem but MHA does not authorise giving it without the person’s consent.

– Voting rights (s29)• Nothing in the MCA 2005 permits a decision on voting at an

election for any public office, or at a referendum, to be made on behalf of an incapacitated person

WHAT DOES IT DO THEN?

• MCA confers a number of diverse functions relating to property and affairs and personal welfare. Broadly by:– Making Declarations– Making Decisions– Providing Guidance– Resolving Disputes– Supervision– The Deprivation of Liberty Safeguards

S47(1) MCA

• Provides that Cop has

in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court

• However, CoP may only exercise these in connection with its statutory jurisdiction– eg. may grant an injunction preventing P from being

removed from home pending a determination of best interests

– may not grant a freezing order to support litigation P is bringing against a 3P.

APPLICATIONS & ORDERS

• Declarations (s15)

• Court orders/decisions (s16)• Appointment of Deputies (s16)• Powers in relation to Lasting Powers of Attorney (ss22 -23)• Powers in relation to Advance Decisions to Refuse Treatment

(Ss24 – 26)

• Powers in relation to Enduring Powers of Attorney (Sch 4)

• “Other powers”• Interim Orders

Declarations

• S15 MCA provides that CoP may make declarations as to:– Whether a person has or lacks capacity to make a

decision specified in the declaration– Whether a person has or lacks capacity to make

decisions on such matters as are described in the declaration

– The lawfulness of otherwise of any act done, or yet to be done, in relation to that person

Section 16

• S 16 – Applies if a person lacks capacity in relations to a matter or

matters concerning their personal welfare or property and affairs (s16(1)).

– Enables CoP by order to make the necessary decisions on their behalf or to appoint a deputy to make those decisions for the person.

– Powers of CoP are subject to the provisions of MCA, in particular Ss1 (the principles) and 4 (best interests) (s16(3)).

– Any order of CoP may be varied or discharged by a subsequent order (s16(7))

Section 16 and personal welfare matters

• CoPs s16 powers extend in particular to (s17):– Deciding where a person is to live– Deciding what contact, if any the person is to have with

specified persons– Making an order prohibiting a named person from having

contact with the person

– Giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for that person

– Giving a direction that a person responsible for a person’s health care all a different person to take over that responsibility

Section 16 and property and financial matters

• CoP powers extend in particular to (s18):– Control and management of their property– The sale, exchange, charging, gift or other disposition of

their property– The acquisition of property in their name or on their behalf

– The carrying on of any profession, trade or business

– The taking of a decision which will have the effect of dissolving a partnership

– The carrying out of any contract

– Discharge of the person’s debts and any of their obligations, whether legally enforceable or not

– The settlement of any of their property, whether for their benefit or for the benefit of others

– The execution for them of a will (although no will may be made under this power when the person has not reached 18yrs of age)

– The exercise of any power (including a power of consent) vested in the person whether beneficially or as a trustee or otherwise

– The conduct of legal proceedings in the person’s name or on their behalf.

Section 16 and the appointment of deputies

• Who?

• 2 or more

• Successors

• Property and affairs

• Restrictions

• Security, reports and the Public Guardian

• Reimbursement and remuneration

• Revocation of appointment.

LPAs

MCA 2005 ss22 – 23 set out the court’s powers where a person has:

•Executed or purported to execute an instrument with a view to creating an LPA; or

•Such a document has been registered as an LPA by the Public Guardian

• An LPA is not created unless s10 is complied with, the prescribed document is registered, the person creating it is an adult who had capacity to execute it.

• What can the CoP do?– Determine whether an LPA exists or still exists– Examine and rule on impropriety or failure to act in

P’s best interests– Interpret to LPA– Authorise gifts

ADVANCE DECISIONS

• The CoP may make a declaration as to whether an advance decision:– Exists– Is valid– Or is applicable to a treatment

Nothing in an apparent advance decision stops a person from providing life-sustaining treatment, or from doing any act they reasonably believe to be necessary to prevent serious deterioration in the relevant person's condition, while a decision in respect of any relevant issue is sought from the court (s26(5))

ENDURING POWER OF ATTORNEY

• Available in England and Wales since 10/03/86

• From 01/10/07 replaced by LPAs

• As at 30/09/12 there were, approximately, 265,000 register EPAs

• Sch 4 MCA incorporates the Enduring Powers of Attorney Act 1985

Inherent jurisdiction of the High Court??

• Inherent jurisdiction of the HC continues to play an important role in relation a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either:– Under constraint or

– Subject to undue influence or

– For some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent

• May not be used to impose a decision on a capacitous adult• Used to facilitate “the process of unencumbered decision-

making by those determined to have capacity free from external pressure or physical restraint in making those decisions”

• Cop cannot exercise this jurisdiction

– Must be listed before a judge capable of exercising this jurisdiction

• Puisne HC judge• President of the Family Division• The Chancellor• Another holder of senior judicial office who is a member of the HC

per s4 SCA or sitting as an HC per s9 SCA

PROCEDURE

Jurisdiction

• Defined by MCA 2005 and only exercisable over people who lack (or on, an interim basis, appear to lack) capacity

• Remember the assumption in favour of capacity must be displaced

• Remember the exemptions• COPR r87 and PD 12B contain provisions for

disputing CoP’s jurisdiction

Legal Necessity

• In various situations an application is a legal necessity, eg:– In personal welfare

• A case involving non-therapeutic sterilisation or organ donation• In cases where there is a dispute about whether a particular

treatment will be in P’s best interests

– In financial sphere• Situations where there is a need for someone with capacity to

manage P’s property

See Code of Practice and PDs

Appropriateness

• Even if an application is not necessary, it may still be appropriate to apply to CoP because it is reasonably believed to be in P’s best interests.– The Code of Practice sets out when the CoP should be

accessed, eg• When there is a major disagreement regarding a serious decision

which cannot be settled any other way – including where P should live (CP 6.12 and 8.28)

• A family carer or a solicitor asks for personal information about P to consent to be revealed (eg where there have bee allegations of abuse in a care home) (8.28)

• It is suspected that P is at risk of harm or abuse from a named individual (8.28

• Very fact specific and depends on many factors, eg:– Whether what is required can be done lawfully without the courts

involvement– P’s wishes etc– The likely benefit for P

• Ask in what way the application will benefit him

– The likely cost/harm to P –financially, emotionally• Ask in what ways the application could harm P

– Affordability/risk of litigation costs• Do not assume whatever the merits of the application that each party will bear own

costs or they will come from P’s estate• The rules allow the court to look conduct before as well as during the proceedings

and whether it was reasonable for them to raise, pursue or contest a particular issue

– Evidence and the chances of success• Is there sufficient cogent and admissible evidence to support the application?• Is the court likely to be persuaded to exercise its powers?

– The availability of more appropriate alternative procedures and remedies

• Can the matter wait until P recovers capacity?• Does P still have capacity to complete an LPA?• Can what is proposed lawfully and appropriately be done in P’s best interest under

MCA s5?• Can you proceed under a different statute – MHA?• Mediation?• Appointment of an IMCA or other independent person?

Permission

• S50 MCA and COPR rr50 -52– When deciding whether to grant permission CoP is

required to consider:• Applicant’s connection with P• The reasons for asking for the appointment of a deputy to make

personal welfare decisions for P• In what ways P will benefit from having a deputy appointed• Whether those benefits can be achieved in any other way

– This is a filtering stage to prevent frivolous, vexatious, abusive or otherwise illegitimate interference with P’s interests and rights

WHO APPLIES?

• In cases of legal necessity– The relevant NHS body or LA (CP 8.8)– Therefor if anyone considers an application should be

made• They should first remind the NHS/LA of their responsibilities under

the MCA

• Where NHS/LA fails to make an application, it can be made by another party– P– The Official Solicitor as litigation friend of last resort– The Public Guardian– AN Other – family and IMCAs

SOME IMPORTANT BITSIN MORE DEPTH

THE PRINCIPLESS1 MCA 2005

The following principles apply for the purposes of the Act

•The presumption of capacity (s1(2))

•Duty to help the person to make their own decision where possible (s1(3))

•Unwise decision making does not = lack of capacity (s1(4))•Duty to act in the person’s best interests (s1(5))•Duty to consider less restrictive options (s1(6))

Presumption of Capacity

S1(2) – A person must be assumed to have capacity unless it is established that he lacks capacity.

•Starting point is always that a person has capacity to make a particular decision.

•That remains the legal position until it is established that he lacks capacity.

•Balance of probabilities – it is more likely than not that the person lacks capacity.•The evidence if often quite finely balanced and in such cases the presumption may be decisive.

Assistance with Decision Making

• S1(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success– What is practicable depends on the circumstances at the

time– Urgent vs non-urgent

– Time and discussion of options with friends, family, advocates

The section 3 Test

Just cognition and capacity to reason?

• No, – may be able to understand relevant information, to

be able to retain it and intellectually able to acknowledge significance, but

– due to overwhelming phobia, obsessive thoughts, compulsive or abnormally impulsive behaviour or some other disturbance, be unable to give it weight

Unwise Decisions

• S1(4) – A person is not to be treated as unable to make a decision merely because he makes unwise decisions

• In other words– A person is not to be treated as unable to make their own

decision merely because the decision they make or propose to make is considered by some person or persons to be unwise

• An unwise or irrational decision may raise doubts as to capacity and so trigger assessment

Best Interests

• S1(5) An act done, or decision made, under this Act for, or on behalf of a person who lacks capacity must be done, or made, in his best interests– Part of the old common law test– Avoid analysis of best interest which disregards or

downplays P’s wishes, feelings, values and beliefs

– The law requires objective analysis of a subject – P, not an object.

– The principle of beneficence which asserts an obligation to help others to further their important and legitimate interests, not one’s own

Least Restrictive Option

• S1(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action– This is not a requirement to take “the least restrictive

option”

– Why and act or decision is now needed and the the effectiveness of less restrictive approaches must be considered – and documented.

ACTS IN CONNECTION WITH CARE OR TREATMENT

• S5 provides that if a person (D) does an act in connection with the care or treatment of P and– Before doing the act has taken reasonable steps to

establish whether P lack capacity, and

– When doing the act reasonably believes• That P lacks capacity in relation to the matter, and• It will be in P’s best interest for the act to be done

• D does not incur any liability in relation to the act that he would not have incurred if P– Had had capacity to consent in relation to the matter, and

– Had consented to D’s act

• S6 sets out limitations to s5 acts:– S6(1) – application of s5 in respect of acts intended to

restrain P• Reasonably believes it is necessary to prevent harm to P• It is a proportionate response to• The likelihood of P suffering harm, and• The seriousness of the harm

– S6(4) D restrains P if he• Uses, or threatens to use, force to secure the doing of an act which

P resists, or• Restricts P’s liberty of movement, whether or not P resists

• S6(6) – S5 does not authorise D to do an act which conflicts with a decision made, within the scope of his authority and in accordance with MCA Part 1, by– A donee with a lasting power of attorney granted by P, or

– A deputy appointed for P by the court

• S7 and 8 – permit the reimbursement of expenditure incurred in the purchase of necessary goods and services for P and involved in any s5 act respectively.

INDEPENDENT MENTAL CAPACITY ADVOCATE SERVICE

• Ss 35 – 36– Who are IMCAs?

• People approved by the LA to act on behalf of those who lack capacity

• Independent people of integrity and good character with appropriate experience and training

• NHS and LAs must take account of an IMCA’s views when making decisions that affect people who lack capacity

IMCA

– An IMCA must be appointed for a person lacking capacity who has no close family member or unpaid carer to support them if:

• A LA is deciding on the person’s long term living arrangement in a hospital or care home (S39 MCA)

• In some cases where DOLs Safeguards are used under Sch A1 (standard and urgent authorisations)

IMCA

– An IMCA will not be appointed where a person:• has nominated someone to be consulted about matter

that affect them or has a close family member or an unpaid carer who can support them in the decision making process

• has made an LPA or EPA to deal with such decisions (eg advance decision as to medical care)

• The CoP has appointed a deputy to deal with such decisions

IMCA

– An IMCA may be appointed for a person lacking capacity who has no close family member or unpaid carer to support them, if

• A LA is reviewing or planning to review a person’s accommodation

• If it would be of particular benefit to a person without capacity when there is an allegation that they have been abused

IMCA

• What does an IMCA do?– Has the right to visit and privately consult with a person who

lacks capacity

– When appointed the IMCA should:• Interview P• Examine P’s records

• Gather relevant information about the decisions to be made• Where appropriate, consult with the professionals providing care

and treatment to P

• Where appropriate, consult others who may be able to comment on Ps wishes, feelings, beliefs and values

IMCA

• Once the IMCA has all this information, the next step is to:– Ascertain the support that P needs to participate in the decision

– Identify what P’s wishes, feelings, beliefs and values would be likely to be if he had capacity to make the decision

– Identify what other courses of action are available

– If the decision relates to medical treatment, give an opinion whether P would benefit from further medical opinion

– Take into account COPR, ensuring that the guiding principles are followed, that the least restrictive options have been considered and the best interests checklist complied with

IMCA

• After that:– Prepare a report including conclusions on all these

matter and giving an opinion on how the relevant decision should be made in P’s best interest

– If there is unresolvable disagreement amongst the professionals as to P’s best interest or the IMCA feels that his/her opinion has not been taken into account

• May make a complaint to the LA• Or refer the issue to CoP

IN THE CONTEXT OF THE WORK OF LOCAL AUTHORITIES

AND PRIVATE REGISTERED PROVIDERS

Care Planning

• Assume capacity– Decision specific (may be able to make some decisions

and not others)– Care providers must obtain consent to each element of a

care plan – Ask: does P have the capacity to make the specific

decision at the time it needs to be made

– Asking this question protects the those providing care and support from blanket assumptions of a lack of capacity

– Evidence consent or evidence why P was assessed as lacking capacity to consent

• Assist in decision making– Unlawful to say P lacks capacity of you have not tried to

support him in making a decision

– Convey information is a way that P can understand it it– Do all that can reasonably be done to help P understand

the choices he has about his care and support– In care and support plans and other reports look for:

• A description of any special communication needs• How P is supported to understand and be involved in decisions

• The right to make unwise decisions– Do not impose your values on the people for whom you

provide care and support– Everyone has a right to pursue choices that others

consider unwise• Eating unhealthy food• Playing the lottery• Extreme fishing with Robson Green

– What to look for:• Information about what is important to P, their wishes and

preferences• What P wants to achieve from his care and support• Social history, key events and achievements• Remember, assessment as to capacity is decision specific

• Act in P’s best interests– Best Interest only applies if P is unable to make the

decision after being given support to do so– Do not make a best interests decision until lack of capacity

is establish BoP• To do so is unlawful and deprives P of his basic human rights to

freedom and autonomy

– Follow the best interests checklist in s4 MCA– Do not confuse your “duty of care” with P’s “best interests”

– Demonstrate you “best interest” decision making

– What to look for:• How P’s liberty and choices about care/support are promoted• Information about P’s views and how he has been supported in

decisions

• Look for the least restrictive option– Consider all options

• Then choose the one that meets the need and is least restrictive of P’s rights and freedoms

• Challenge yourself to consider whether there is an alternative less restrictive option which nonetheless meets the need identified

– What to look for/record• Details of the options considered together with the associated risks

and benefits of each• A clear explanation of why a particular option was decided upon• When a review of restrictions (if any) will take place and how

A GENERAL FRAMEWORKPERSONAL WELFARE DECISIONS

RESOURCES

• Social Care Institute for Excellence – www.scie.org.uk– Report 70 – The Mental Capacity Act (MCA) and Care

Planning (Oct 2014)– Guide 42 – Good practice guidance on accessing the

Court of Protection– eLearning resource for all areas – helping with decision

making, best Interest decisions, assessing capacity, handling disagreements, DOLs etc

RESOURCES

• Empowerment Matters - www.empowermentmatters.co.uk– Information Sheets – No 1 – Best Interests Checklist– Making Financial Decisions – Guidance for Assessing,

Supporting and Empowering Specific Decision Making (commissioned by the Department of Health)

RESOURCES

• Court of Protection Handbook, LAG supported and supplemented by – www.courtofprotectionhandbook.com

• Codes of Practice - www.judiciary.gov.uk/downloads/protecting-the-vulnerable/mca/mca-code-practice-0509.pdf

• PDs - www.judiciary.gov.uk/publications-and-reports/practice-directions/cop-practice-directions

RESOURCES

• Committal – www.judiciary.gov.uk/publications-and-reports/guidance/2013/family-division-practice-direction-committal-contempt-of-court-june-2013

• Transparency in CoP – www.judiciary.gov.uk/publications-and-reports/guidance/2014/index

RESOURCES

• MIND – www.mind.org.uk/information-support/legal-rights/mental-capacity-act-2005/

ALISON GRAHAM-WELLSgrahamwells@exchangechambers.co.uk

0161 833 2722

201 Deansgate

Manchester M3 3NW