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Feature

posted 25 Sep 2001 in Volume 6 Issue 6

The future of the Court of Protection

The Court of Protection depends heavily upon the support that it receives from its administrative arm and for many years this has been the Public Trust Office. While writing in this journal last year of controversy over its future following a Quinquennial Review I stated: “The PTO will cease to exist as such from April 2001. The Court Funds Office is to be transferred to the Court Service and the Public Trustee’s trust function will pass to the Official Solicitor. … The real advance is that a new core body is to be established to carry out the PTO’s mental incapacity services. The choice of name is appaling - the Mental Incapacity Support Unit - but that is not set in stone and I shall be suggesting the Protection and Support Service unless we can have what we really need: a Public Guardian. … I would like any new body to remain under the control and supervision of the LCD until it has settled down.”

That proved to be prophetic, as following the further Report Making Changes (December 2000), we now have the Public Guardianship Office run by the LCD although executive agency status may ultimately be conferred. I also then commented that there seemed to be emerging a realisation that both receivers and patients needed supportive services, rather than simply being required to conform to bureaucratic procedures. The Lord Chancellor stated the policy as follows: “I am seeking to create a centre of excellence in service provision for the mentally incapacitated in this area. My prime concern is to protect the vulnerable, while avoiding intrusive State intervention where it is not necessary”. What has happened since then?

The (new) Public Guardianship Office

From 1st April 2001 (hopefully not a significant date), it was goodbye to the PTO and hello to the PGO. There was a high profile Public Briefing at Centre Point on 20 March 2001, attended by the Lord Chancellor and his Parliamentary Secretary, and different letterheading with a new logo now emerges from Stewart House. Does this mean anything, or is it merely the same old wine in a new bottle?

The ‘change programme’ has led to an implant of new management and ideas which is now bearing fruit including:

• a new focus on the needs of clients with an early needs assessment;
• the office to be more accessible and properly organised;
• visiting services extending to receivers as well as patients with more visits;
• a series of regional open days for receivers providing support and information;
• a newsletter for receivers called Reaching Out;
• a new website: www.guardianship.gov.uk;
• a strategic investment board to oversee all clients funds.

A change in the fee structure last year avoids the cross subsidy between protection and receivership clients that had been so unfair for years.

The consultative forum

One of the new initiatives is the formation of a Consultative Forum, a body whose role is to advise on the change programme. It has regular meetings and members include representatives of Action on Elder Abuse, Age Concern, Alzheimers Disease Society, Carers National Association, Headway, MENCAP, MIND, The Royal College of Psychiatrists, and The Law Society. When I was invited to represent the Association of District Judges Nick Smedley, then the Acting Chief Executive, wrote to me in the following terms: “The PTO [now the PGO] is, of course, responsible for the financial affairs of some of the most vulnerable people in society, and I am committed to providing the best possible service to them. But to be successful in this objective, we need to work closely with all the key groups that represent all our clients’ interests.”

I recalled this phrase from the Quinquennial Review that had provoked all these changes: “Specialist client services should not be provided by the PTO staff but by appropriate private, not-for-profit and public sector organisations under contract.” The process of change is indeed ever changeable – but we can influence it!

The future

I started off being angry at the prospect of years of neglect of the PTO being used as justification to abolish it. Developments since then have largely won me round but only because they represented what I had always wanted – a ‘centre of excellence’ for those who lack capacity. But good intentions do not always solve problems and I still have concerns for the future:

• Will the move from Stewart House to Archway Towers in North London further marginalise the Public Guardianship Office and the Court of Protection?
• Is the money really to be made available for investment in modern technology and systems to achieve greater efficiency?
• The staff are receiving training in politeness, but what will be their training in law and ethics? On what bases will they make decisions, bearing in mind that their decision could have a great impact on the lives of vulnerable people?
• Where will the people come from to fill the new roles of professional receivers and visitors? Who will train them, what qualifications will they need and how will they be assessed and recruited?

The Court of Protection and human rights

The question is bound to be asked whether Court of Protection is ‘human rights compliant’ (this being the benchmark test now applied by lawyers to our institutions). Nothing can be taken for granted and the following concerns may arise:

1.             The Court is not accessible to many of those who need its services because it only sits in London;

2.             Hearings always take place behind closed doors and judgments are not made public;

3.             The assistant masters do not constitute an independent and impartial tribunal by reason of their dual functions, background and terms of appointment (they are ‘nominated officers’ and the only ‘true’ judge is the master);

4.             Hearings may not be within a reasonable time if the master is not supported by a team of deputies’;

5.             Here is a blurring of the distinction between judicial and administrative functions, and discretion may be delegated to officers and exercised without relevant findings of fact;

6.             Hearings may not be seen as fair where there are contested issues (the Court of Protection Rules do not contain procedures for the joining of parties, statements of case, advance disclosure of documents and exchange of witness evidence, etc).

The official response appears to be that Article 6 (the right to a fair trial) is relevant only to the decision to invoke the jurisdiction of the Court, and not to decisions made thereafter in handling the patient’s affairs. This approach concentrates on the rights of the patient and ignores Article 8 (right to respect for family life). In reality it is not only the rights of the patient that are affected by the manner in which his or her financial affairs are managed. He who holds the purse tends to control the person, so a decision to appoint the son in Exeter as receiver may result in mother being placed in a nursing home in that area and thereby deprive the daughter in Carlisle of effective contact. She is surely entitled to be heard in a way that is human rights compliant?

I have case-managed adult contact cases in the High Court, and the Civil Procedure Rules 1998 then applied in full, leading, if necessary, to a full trial. Should the procedures be different when the same outcome is achieved, albeit indirectly, through the Court of Protection? The master has a wide discretion to decide what procedure to adopt, but should not our new Civil Procedure Rules, including the overriding objective, be incorporated into the rules that apply to contested cases in the Court of Protection?

The (changing) Court of Protection

The Court of Protection is not immune from the process of change and the Lord Chancellor does listen to constructive comment. The Court is, for the first time in its history, to sit outside London in an effort to promote easier access to justice for people with mental incapacity. I am to be appointed a Deputy Master for six months from 1 October 2001, and will hear any case where it is more convenient for the parties to go to Preston (where I am based), or elsewhere on the Northern Circuit if circumstances so dictate. This does not even need to be at a county court, I have sat in a residential care home before and would do so again if this were necessary for the attainment of justice.

If this pilot is successful, the government’s aim is to have appropriate judges hear Court of Protection cases in every court circuit in England and Wales. Who knows, this may lead to a cross-fertilisation of ideas between the civil/family courts on the one hand and this specialised jurisdiction on the other. Many of my concerns may then be alleviated without the need for legislation, especially if anonymised judgments are made public and a consistent appeal structure established (I have never been comfortable with appeals from full-time judges being heard by deputy, ie part-time, judges). These changes may also lead to more practitioners becoming familiar with the work of the specialised, but nonetheless essential jurisdiction of the Court of Protection that would surely be a worthwhile development.

The future

Any changes should also look to the future. Despite Terms of Reference extending to ‘the possible impact on the Agency of the Government’s conclusion on the response to the consultation paper Who Decides?’ there was no attempt in the Quinquennial review to anticipate future needs. When the new decision-making jurisdiction is introduced, there will be the need for an administrative and supervisory body and this could develop from the Public Guardianship Office. In all this process of change, I have seen no preparation for a new mental incapacity jurisdiction but that must be the next stage and a regionalised Court of Protection would be well placed to cope with the additional workload. Managing people’s money, without authority to make any other decisions for them, is nonsense but no-one seems to appreciate the impact that this new jurisdiction will have on the Court of Protection and its administrative arm, the new Public Guardianship Office.

In a few years time we can expect a new incapacity jurisdiction exercised by a reconstituted Court of Protection with a regional presence and fully supported by the Public Guardianship Office. There will be nominated judges at all levels who will look after this work, incapacity welfare officers and trained decision-makers. At least that is my dream! Will it all turn into a nightmare? Are funding concerns dominating the Government’s thinking? I have never seen any analysis of the cost to society of not having procedures for decision-making, but if cost is to influence the shape of the reforms both sides of the balance sheet must be taken into account. At present we fudge the issue by providing procedures for financial decisions to be made and ignoring the fact that life is not always controlled by money.