The new Court of Protection: Still more questions than answers?

In the second part of this study of the Mental Capacity Act 2005, Martin Terrell considers the operational challenges facing the new Court of Protection, given the breadth and complexity of the Act governing its functions.

Just as the seasons inexorably move from one to another, so too the deadline for the implementation of the Mental Capacity Act moves steadily closer. The holidays are over and as autumn sets in, we start to plan ahead to Christmas and the new year and, then, just a few short months takes us to that all important deadline of 1 April 2007.

The first part of this article (July/August 2006, Elderly Client Adviser) set out to explain the framework of the Act. This reflects the simple fact that the Act is itself a framework for a legal system that systematically and comprehensively deals with the law of incapacity. Thus it begins with a set of legal principles and presumptions before providing a default basis on which a third party can act on behalf of a person who lacks capacity. The Act then provides a more detailed set of solutions for situations in which a person lacks capacity: lasting powers of attorney that allow a person to delegate authority in respect of property and affairs, and welfare matters while capable; advance decisions that allow a competent adult to refuse treatment in circumstances where he lacks capacity; a Court of Protection that can make decisions on behalf of a person who lacks capacity; and the creation of a new Office of the Public Guardian.

The problem with this framework is that it sets out in detail what a person or a body can or cannot do, but it does not explain how a particular act is to be performed. And, as we shall see, there are still gaps in the statutory framework that remain to be covered.

The most pressing question, however, is that of how the Act’s core functions will be delivered in practice. A flurry of consultation documents from the Department for Constitutional Affairs provides some answers, but many questions remain unanswered, while other questions lead to further questions. These need to be answered soon. For if the Act is to be a success, lawyers, as well as health and welfare professionals, need to be able to navigate themselves as well as their clients and patients through this new framework. Any legislative framework needs clear rules and processes in order to operate effectively. This is all the more crucial for an Act that is as wide in what it covers as it is deep in the issues it affects. And not only do those rules and processes need to be in place by 1 April 2007, they need to be understood by those who will need to operate them.

It is therefore vital that the new Act will, in all its manifestations, and especially those of the Court of Protection and Public Guardian, be open for business in just over six months time. This simple hope cannot, however, be taken for granted.

The role of the Court of Protection

The principle cause for concern is the inherent breadth and consequent complexity of the Act. The Act covers the whole range of decision-making powers from short to long term, temporary to permanent, from simple to complicated. At the heart of the new framework is the Court of Protection, which needs to be able to deal with welfare matters, declarations of capacity, the appointment of deputies, decisions relating to property and affairs, as well as dealing with disputes concerning enduring powers of attorney and lasting powers of attorney.

The structure of the new court is, however, straightforward. It will be a superior court of record, whose powers can be exercised by nominated judges at the High Court, County Court and Crown Court level. To ensure that cases can be dealt with flexibly and locally, it is likely that a number of circuit judges will be nominated to sit as judges of the Court of Protection. Initially, only a handful of judges will be nominated to ensure that there is expertise to begin with and that practical experience can be built up rapidly. It is also likely that welfare decisions and declarations currently dealt with by High Court judges will continue to be dealt with at the same level.

Just as at present, there will continue to be several thousand applications each year for the appointment of deputies or for straightforward and uncontentious orders relating to a person’s property and affairs. These must also be dealt with within the same framework, therefore by qualified and impartial judges as part of a judicial process.

Merging systems

The problem for those implementing the Act is finding a single mechanism that will enable every application, of whatever nature or complexity, to be dealt with. This will need to encompass and somehow merge two very different processes. At present, Court of Protection proceedings are dealt with under their own Court of Protection Rules 2001, which are relatively informal and allow the court to deal with applications on an inquisitorial basis, where even the most bitterly divided parties are claiming to establish the best interests of the client. Welfare decisions meanwhile are dealt with under the Civil Procedure Rules 1998 and generally follow the more formal and adversarial-based approach required in High Court proceedings. Is it therefore possible for these two systems to be merged?

There are two crucial solutions to this dilemma, one structural and the other procedural. The structural solution is perhaps the simplest, but does not remain without difficulties. The procedural solution is addressed through a potential masterpiece of legal drafting, the Court of Protection Rules.

To begin with the structural solution, there is a practical and economic benefit to building on what is in place already and therefore using the existing Court of Protection in London as the principal registry for all applications. The principal registry will therefore be responsible for processing applications and allocating them to the correct level. Most welfare cases or contested cases will require a hearing at an early stage to deal with directions and may be allocated immediately to another court, especially if the hearing is attended and the parties are not close to London. Most cases that can be dealt with on the papers, especially where ongoing supervision by the Public Guardian is required, will be dealt with in London.

Guidance from Court of Protection Rules

A procedural solution to these difficulties will be looked for in new Court of Protection Rules. As is clear from the draft Rules already published, these are ambitious in attempting to provide a clear procedural framework for all types of application. Thus, all applications will begin in the same way, and will be set down for a directions hearing at an early stage. However, where the application relates to a person’s property and affairs, an attended directions hearing is not required, and the court will give its own directions dealing with matters such as the joinder of parties, notices, disclosure of evidence and a date for a final hearing. In welfare cases, it is expected that directions will be given at an attended hearing.

Although this single process allows for welfare and property affairs to be dealt with in different ways appropriate to the case, a single set of rules does bring with it its own complications, especially where applications, notices and evidence are concerned. Certainly where evidence is concerned, there is perhaps some benefit to the rules being more tightly drawn (and applied) than at present. This may present a welcome opportunity for the litigious relative to concentrate his thoughts before giving vent to a handwritten stream of consciousness and invective (especially in green ink). Instead, he or she will have to file a witness statement (containing a statement of truth), which can be subject to cross-examination. On the other hand, will this deprive the concerned relative of the ability to write informally, drawing the court’s attention to an abusive situation?

There is perhaps greater ambiguity where applications are made and notices given. The draft Court of Protection Rules assume and require that each application must be dealt with on its own terms. Partly this is because many applications will be unique to the matter and just because a deputy was appointed several years ago does not mean that an application for a welfare decision should not be considered afresh. It may, in any event, require being dealt with in a different court in a different location. However, it is also a guiding principle of the Act that a person must be assumed to have capacity and that the court’s intervention is only required to the extent and for the purpose that a person lacks capacity. Thus, although a person may lack capacity to manage his property and affairs, the court cannot assume that the same person lacks capacity to decide on where he lives or how he is treated. Each application will therefore need to be supported by medical evidence that justifies the court’s intervention in that matter. The court should not be prejudiced by any earlier decision made for the same person. On the same principle, the person concerned needs to be given notice of the application.

While the need for such requirements is obvious, there are practical difficulties that need to be addressed concerning the majority of day-to-day cases involving the Court of Protection. There are thousands of day-to-day receiverships, which will be converted to deputyships, where routine orders are made on the basis of written applications, by nominated officers. These may relate to straightforward and uncontentious matters such as the sale or purchase of a property, approval of a contract or loan, a small gift, the issue of proceedings, the sale of investments, custody of a will or valuables, release of information or the release of funds for a new car or family holiday. In these cases, it is very rare for the court to direct a hearing, issue directions or require medical evidence. It is therefore likely that from April 2007 such cases will have to be dealt with in two ways:

1. By the court giving deputies as much discretion as possible; and

2. Where an act is beyond the scope of the deputy’s discretion, through a formal application.

Many receivers already have wide discretion to act under extended general orders. Generally, professional receivers and local authorities have discretion to act as though they are attorneys acting under an enduring power of attorney, where the principal difference is that the receiver must file an account and lodge security.

However, discretion is still limited and an empowered receiver still needs authority to sell a property or make a gift over a relatively modest prescribed limit. The question remains therefore whether all deputies will be treated in the same way? Can they be empowered to deal with matters such as the sale of a property or access to funds? Unless the new Court of Protection is to be overwhelmed with formal applications in straightforward cases, it seems that the only way in which the new regime will be able to cope is by devolving as much power as possible to deputies. This approach is also endorsed in the consultation paper on fees, which proposes a two-tier supervision system where supervision is ‘light touch’ or ‘close’.

While the autonomy and flexibility this will give to deputies may be an advantage, there are also disadvantages if this proposal is implemented. There will be less protection for vulnerable clients who may be at risk of exploitation by an unscrupulous or inefficient deputy; and in many cases, the more autonomy or discretion vested in the deputy, the less authority is reserved to the client himself. At the heart of the Act is the principle that the client should be able to do as much as possible for himself. Therefore the appointment of a deputy should be as tightly tailored as possible around the needs and abilities of the client. Whether this aim can be compromised with the reality of the patient being protected by a ‘light touch’ regime backed by very modest resources, remains a further question that needs to be answered.

This article has only addressed difficulties anticipated in the operation of the new Court of Protection. There are further difficulties that will be anticipated by other parts of the Act, not least where lasting powers of attorney and welfare decisions are concerned, which will be addressed in a further article.

Martin Terrell is a partner with Rix & Kay Solicitors. He can be contacted at martinterrell@rixandkay.co.uk