Slides to key note address

1. 2014 ANNUAL ‘TAKING STOCK’
CONFERENCE
THE COURT OF PROTECTION &
THE MENTAL CAPACITY ACT —
CAPACITY TO CHANGE?
Anselm Eldergill

2. Contents
1 Introduction
2 Issues
A. The Capacity Model
B. The 2007 DOLs Model
C. The X Model
D. Drafting Issues
E. Issues of Culture and Approach
F. Other Issues
3 Possible Reforms

3. §1 — INTRODUCTION

4. The MCA: Above and below the line
ADVANCE DECISION
LPA DONEE
COURT OR DEPUTY
USE OF SECTION 5
Require
Capacity
+ Adult
ABOVE
THE LINE
BELOW
THE LINE

5. The 5 Section 5 Conditions
1 The act is one undertaken ‘in connection with’ another’ person’s care or
2 The person doing it takes reasonable steps to establish whether the
recipient has capacity;
3 S/he reasonably believes that the recipient lacks capacity;
4 S/he reasonably believes that it is in their best interests for act to be
5 If s/he uses restraint, s/he reasonably believes BOTH that it is
necessary to do the act in order to prevent harm to the person and that
the act is a proportionate response to the likelihood of their suffering
harm and the seriousness of that harm.
DEFINITION OF RESTRAINT
treatment;
done;
For these purposes, a person restrains another person if he (a) uses, or threatens to use, force to secure the
doing of an act which s/he resists, or (b) restricts their liberty of movement, whether or not they resist.

6. §2 — ISSUES

7. Successes
Remember how it was Progress is always slow
 A mental capacity court
 A PW jurisdiction
 The court is used
 A noticeable change of
culture
 The success of LPAs
 DOLs
7

8. INHERENT:
THE
CAPACITY
MODEL
ISSUES
INHERENT:
THE 2007
DOLs
MODEL
INHERENT:
X MODEL
DRAFTING
ISSUES
OTHER
ISSUES
ISSUES OF
CULTURE/
APPROACH

9. A. The Capacity Model
9

10. The capacity model
THE PERSON CANNOT
UNDERSTAND OR WEIGH
RELEVANT INFORMATION
ABOUT THEIR PERSONAL
WELFARE
THEREFORE THE PERSON IS
UNABLE TO DECIDE OR DO THE
THING IN QUESTION
THEREFORE I MUST DECIDE OR
DO IT FOR THEM AND DO WHAT
IS BEST FOR THEM
We are not interfering at all with their freedom to
do anything they can do and wish to do. They
remain just as free as before to do everything they
can and wish to do.
INHERENT:
THE
CAPACITY
MODEL

11. 1111
Examples
Mark is given
medication covertly
because he resists
having the medication
when it is presented to
him by his carer.
4 S/he reasonably believes
that it is in their best
interests for act to be
done;
5 If s/he uses restraint, s/he
reasonably believes BOTH
that it is necessary to do
the act in order to prevent
harm to the person and
that the act is a
proportionate response to
the likelihood of their
suffering harm and the
seriousness of that harm.

12. 1122
Examples
Sam Masters is a 42-year old man with
a profound learning disability who also
has a diagnosis of schizophrenia. He
has lived in residential care
throughout his adult life. He lacks
capacity to consent to medication for
his mental illness and sometimes resists
its administration.
He is subject to guardianship under the
MHA 1983. The social worker tells staff
at the home that they have statutory
authority to administer the
medication, using reasonable force
when necessary. ‘It’s a community
treatment order through the back
door,’ she adds, so there will be no need
to use section 3 in future.
4 S/he reasonably believes
that it is in their best
interests for act to be
done;
5 If s/he uses restraint, s/he
reasonably believes BOTH
that it is necessary to do
the act in order to prevent
harm to the person and
that the act is a
proportionate response to
the likelihood of their
suffering harm and the
seriousness of that harm.

13. The totalitarian ideal
 ‘even though men suffer ... in the
process, they are lifted by it to a
height to which they could never
have risen without my coercive —
but creative — violation of their
lives. This is the argument used by
every dictator, inquisitor, and bully
who seeks some moral, and even
aesthetic, justification for his
conduct. I must do for men (or
with them) what they cannot do for
themselves, and I cannot ask their
permission or consent, because
they are in no condition to know
what is best for them.’
This image cannot currently be displayed.

14. B. The 2007 DOLs Model
14

15. Cheshire West
CONSEQUENCE OF CHESHIRE WEST
A reduction in the number and range of acts of care which previously it was
claimed were protected by section 5 without the need for express
authorisation (whether a standard authorisation or court order).
More care acts involve a deprivation of liberty and cannot be justified as
mere restrictions on liberty. The judgment restores the classical
interpretation of what is a deprivation of liberty.
15
Section 5 and deprivation of liberty
 The person doing the act does more than
merely restrain the other person if s/he
deprives that person of his liberty within
the meaning of Article 5(1) of the Human
Rights Convention, whether or not D is a
public authority.
Restriction
of liberty
√
Deprivation of
liberty
X

16. The 2007 DOLs model
INHERENT:
THE DOLs
MODEL
SECTIONABLE
NOT SECTIONABLE
The detention
threshold
DOLs DOES NOT
APPLY
(ELIGIBILITY
REQUIREMENT)
DETENTION UNDER DOLs
MENTAL HEALTH ACT MODEL MCA DOLs MODEL

17. Positive and potential negative
IT’S ALL POSITIVE!
 No new or extra population is
being detained.
 We were always detaining
these people — but doing it
without any legal authority.
 Correctly interpreted, the
DOLs scheme (inelegantly)
plugged the Bournewood gap
for care homes and hospitals.
A proper legal authority or
order is required for all
deprivations of liberty.
POTENTIAL NEGATIVE
 The order not only protects
the vulnerable — it empowers
those in whose power the
incapacitated person is.
 The care home and hospital
now have, or think they have,
legal authority to deprive the
person of liberty in every and
all areas of their daily life.
 Interference with liberty is no
longer occasional, guilty,
tentative or furtive but
confidently asserted against a
person incapable of resisting.

18. 1188
Examples
John Smith has dementia and
is in a care home. He has not
objected to residing there but
would be prevented from
leaving if he tried to leave. He
is disorientated and confused
most of the time and therefore
what he does and where he goes
are continually supervised by
care home staff.
Acting on guidance, the staff
obtain a ‘DOLs order’
authorising them to deprive Mr
Smith of his liberty for the next
12 months.
Jane Jones has a learning
disability and lives in
supported accommodation.
He enjoys living there. What
he does and where he goes
are subject to continual and
control by care home staff. He
would be prevented from
moving if he tried to leave.
Acting on guidance, staff
obtain a ‘DOLs order’
authorising them to deprive
Ms Jones of her liberty for the
next 12 months.
Who are we empowering?

19. C. The X Model
19

20. 20
X Cases — Proposed Procedure
Application
+ Evidence
• COPDL10: Application Form + attachments sent to DOLs team at CoP in London for issue
• COPDL11: Witness statement
• COPDL12: Evidence of persons notified and consulted and their views (s4(7))
• COPDL13: Evidence of ‘notification’ of P and their wishes and feelings
• Evidence that P has been diagnosed as being ‘of unsound mind’
• COP3 medical certificate that P lacks capacity to consent to proposed arrangements
• Possibly a draft order (duration of authorisation, directions for automatic reviews, r.89)
Single
Judge
• The paper application is referred to a single judge to ‘triage’ as ‘box work’
• Proposed to use part-time tribunal judges from the Social Entitlement Chamber (one year
ticket initially) as well as existing CoP judges in London and the regions
• The role of the judge at this stage is to decide whether the case is suitable for
consideration without an oral hearing. This will be done by reference to the presence or
absence of the ‘triggers’ referred to by the President in para. 13 of his judgment in Re X
Order or
Directions
• If there are no such ‘triggers’ the expectation is that the judge will authorise the
deprivation of liberty on the papers. It is envisaged that the majority of the applications
can be dealt with in this way (without any breach of Article 5 of the ECHR).
• If one or more triggers is present, the judge will give case management directions (or
possibly refer the matter to a full-time CoP judge) with a view to the holding of a
hearing.
INHERENT:
X MODEL

21. 21
P’s involvement
Notifying P, etc (COPDL13)
§K Notification of the person to whom the application relates must take place
before the application form is lodged with the court. The applicant must
arrange for that person to be notified of the following matters:
(a) that the applicant is making an application to court …
(b) that the person is entitled to express his views, wishes and feelings in relation
to the proposed arrangements and the application and that the person
effecting notification will ensure that these are communicated to the court;
(c) that the person is entitled to seek to be joined as a party to the proceedings,
what that means, and that the person effecting notification will ensure that
any such request is notified to the court;
(d) that the person effecting notification can help them to obtain advice and
assistance if they do not agree with the proposed arrangements in the
application.
Source: Draft Practice Direction

22. Re X (DoL)(No. 2)
Does P need to be joined as a party to
any application seeking authorisation
of a DoL?
If P is a party should there be a
requirement that s/he must have a
litigation friend?
Where P or a detained resident
requires a litigation friend can an
unqualified litigation friend conduct
the litigation?
Where P or a detained resident
requires a litigation friend can an
unqualified litigation friend provide
advocacy services?
No
No
Yes
Require
Perm
In this respect, no distinction
to be drawn between children
and adults who lack capacity.
Court’s function is not to
determine a dispute brought
to it by the parties but to
assess capacity and make
welfare decisions. P must be
enabled to present their case
‘properly and satisfactorily’.
May require legal assistance
... ‘Typically P will also need
some form of representation,
professional not necessarily
always legal’. P is bound by
the order.
No fundamental principle
that P must have a litigation
friend if a party. See e.g.
MHT form of representation.
It is a practice issue.

23. 1 Interrelationship with DOLs scheme: respite;
admission to hospital; deregistration, etc.
2 Interrelationship with MHA 1983: admission to hospital,
community-based orders.
3 Interrelationship with Children Act 1989.
4 Unsound mind vs mental health requirement for DOLs
5 Best interests requirement for DOLs
6 Who is under a duty to apply, e.g. in respect of DoL in
a private household?
7 Liability for unlawful DoL: individuals/LA?
8 Any duty on NHS to provide a medical opinion?
9 Interplay with LPAs, deputy orders, advance decisions
10 Legal aid and representation/Megyeri
23
X Procedure: Some issues

24. 11 Non-cooperation of private households
12 Applicability of best interests requirement in DOLs
13 Imposition of conditions on the authorisation
14 Renewal procedure
15 Appeals procedure
16 Responsibilities of hospitals discharging people to home
or family care.
24
X Procedure: Some issues

25. Three streams
Usual COP1 Application
25
Appeal to CoP Standard Authorisation
New supported living
Own home form
Personal welfare dispute
PW Application
Residence
Contact
Removal
e.g.
PW

26. Anomalies
26
Standard Authorisation
PW
PW Application
DOLs element
Residence
Contact
Removal
Personal welfare dispute
X
e.g.
Supported living
Own home
Non-means
Tested legal aid
IMCAs
Litigation Friend
RPR
CQC supervision
Part 8 reviews
Suspension
X DOLs Procedure
Means-tested
legal aid
No RPR
Problems re OS
as litigation
friend
Means-tested
legal aid?
Party status?
Litig friends?
Paper orders
No RPR, IMCA
Support?

27. Re X (DoL)(No. 2)
OBSERVATIONS RE LITIGATION FRIENDS & LEGAL AID
36. ‘…. To speak plainly, the Committee will have to consider how best to craft a
process which, while it meets the demanding requirement of the law, also
has regard to the realities consequent upon (a) the legal aid regime and (b)
the exposure of a litigation friend to a costs risk. There is no point in a
system which requires there to be a litigation friend, let alone which requires
the litigation friend to instruct lawyers, if the reality is that there is, because
of an absence of legal aid and possible exposure to an adverse costs order,
no-one willing and able to accept appointment as litigation friend. Indeed,
such a system would be self-defeating. And in this connection it needs to be
remembered that the Official Solicitor can never be compelled to accept
appointment. Moreover, as I understand it, he is not funded to act as a
litigation friend in deprivation of liberty cases, so he is dependent on
external funding which in many cases will not be available in the absence of
legal aid.’

28. D. Drafting Issues
28

29. Drafting
Some of the drafting of the Act would benefit from being reviewed.
Possible amendments
Section 16: ‘The court may make … decisions on P’s behalf in relation to [P’s personal
welfare’.
‘An act done, or decision made, under the Act for or on behalf of a person who lacks
capacity must be done, or made, in his best interests.’ Too ambiguous.
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. Introduce a reference to autonomy.
Introduce a more explicit reference to risk, e.g. No decision shall be made under this Act on
behalf of a person who objects to it unless that person is likely to suffer significant harm if
the decision is not made and the degree of harm they are likely to suffer justifies overriding
their wishes and feelings or the decision which they wish to make.
Introduce a principle of service. We are servants not masters.

30. E. Issues of Culture & Approach:
Central Government
30

31. In Re L (25 June 1998)
The impact of the Court of Appeal's judgment
There can be no doubt that the decision of the Court of Appeal
has caused grave concern … As a result, three parties applied
for, and were granted, leave to intervene in the appeal before
this House. They were the Secretary of State for Health ….
Enquiries by the Commission suggest that "there will be an
additional 22,000 detained patients resident on any one day as
a consequence of the Court of Appeal judgment … The
Commission considered … that, if the judgment is held to apply
to patients receiving medical treatment for mental disorder in
mental nursing homes not registered to receive detained
patients, the above estimates were likely to be very much
higher. It is obvious that there would in the result be a
substantial impact on the available resources …
31

32. DoH Consultation: March 2005
 3.3 In 1998, when the Court of Appeal gave a
similar (though not identical) judgment, the Mental
Health Act Commission (MHAC) undertook a survey
… etc
 3.4 In 2003-04 there were 78,000 permanent
admissions of older people to care homes.
Research suggests that two thirds of that number
might have had a cognitive impairment. In the same
year there were 7,000 admissions of younger adults
to care homes, of whom nearly two thirds had
mental health problems or learning disabilities.
Overall there might therefore be around 50,000
permanent admissions to care homes who could be
affected by the Bournewood judgment. If temporary
admissions were included, the potential population
would be even greater.
The ECHR gave its Bournewood judgment on 5 October 2004 32

33. Mental Health Bill Notes: May 2006
 The “Bournewood Gap” can happen when someone who
lacks capacity to consent to care – such as people with
autism or dementia – needs to be cared for in
circumstances that amount to a deprivation of liberty but
are not detained under the Mental Health Act 1983.
 Currently, such people are cared for under common law
and … do not have sufficient legal safeguards or
protection.
 This rare situation was identified by the European Court
of Human Rights (ECtHR) in its 5 October 2004
judgement in the Bournewood case. The planned
Bournewood provisions are a response to this legislative
shortcoming.
33

34. DoH Briefing Sheet: June 2006
34
‘The Government does not consider
that deprivation of liberty would be
justified in large numbers of cases but
recognises that such circumstances
may arise …’
‘The Government … takes the view
that deprivation of liberty of such
people in other settings will be rare
and should be authorised by the Court
of Protection.’

35. Legal aid
 No more than 1,250 people at any one time are
likely to be justifiably deprived of liberty.
 The cases of 2.5 per cent of those people (31
individuals) might result in a Court of Protection
hearing …

36. Issues of Culture & Approach:
Judicial & Professional
36

37. 37
Judicial and professional culture
 It is probably true that a risk-based or a capacity-based approach
can lead to greater or less autonomy depending on the culture and
approach of the professionals and families applying the particular
model. Culture is important.
 The development of an adult safeguarding agenda against a
background of limited resources has possibly skewed approaches.
However, it raises the question: safeguarding the person against
what …? Loss of liberty, physical harm, neglect, lack of optimum
treatment, interference with family life. Section 4 does not say
health or safety is the primary consideration.
 There is a perception that some judges have never overridden the
Official Solicitor’s recommendation in PW cases, and never
overridden the professional case (local authority/NHS) unless the
Official Solicitor takes a contrary view. Hence, it is submitted, the
judge adds ‘little value’ to the process from the viewpoint of the
incapacitated person and their family.
 Research is necessary to establish the facts.

38. The amount of relevant information
38

39. F. Other Issues
39
Rules and Procedures
Court Structures
Legal aid and representation
Access, publicity and privacy
Miscellaneous

40. Rules and Procedures
CURRENT SITUATION
 Court of Protection Rules 2007: 202 rules in 22 parts,
supplemented by 62 practice directions, numerous
prescribed forms and where necessary the Civil
Procedure Rules 1998 and Family Procedure Rules 2010
 Practice Guidance
 Orders and regulations, e.g. Lasting Powers of
Attorney, Enduring Powers of Attorney and Public
Guardian Regulations 2007
 Codes of Practice
 The CoP rules are modelled on the rules devised for the
High Court.
 There is no fast-track procedure for simple cases and
no formalised short/single order process as an
alternative to deputyship.
What kind of court and procedures are required?

41. Court structures
Into court
Litigation friend for P
See learned person
Present the facts
Present expert evidence
Present the law
Make findings
Apply the law
Grant remedies
Tribunal goes to person
P instructs own lawyer
Expert membership
More inquisitorial
Fewer legal rules
Make findings of fact
Simpler laws
Simpler remedies
Usually no costs awarded
HYBRID FAMILY
COURT
HYBRID COURT AND
MH TRIBUNAL
DELEGATES
 Guardians
 Deputies
 Appointees
 Litigation friends
 Court officers (ACOs)
COMMISSIONS
 Mental Health
Commission
 Public Guardian

42. Contentious work
President, Vice President, HCJ: Full CoP Rules, Serious Medical Trt, etc
Or to OPG,
as with LPA
and EPA
Applications
+ Objections
to CoP
Non-contentious work
& Case management
A MENTAL HEALTH COURT
Solicitor to the Court of Protection
Solicitor
Team Ldr
Solicitor
Team Ldr
Solicitor
Team Ldr
Exec Off
Admin
Exec Off
Admin
Exec Off
Admin
CoP Judges
Circuit Judges, DJs
MHTs,
MHT Judges
Other ticketed
Judges
Allocation

43. 43
Legal aid & Megyeri Case
 Detained patients are entitled to take court proceedings ‘at
reasonable intervals’
 The procedure must have a judicial character and provide
guarantees appropriate to the deprivation
 They should have access to a court and the opportunity to be
heard in person or, where necessary, by representation.
 They cannot be required to take the initiative in
obtaining legal representation before having recourse to
a court.
 They should receive legal assistance.

44. The Secret Court
Justice Secretary asks for review of Court of
Protection's powers
Mr Grayling has written to Sir James Munby, president
of the family division of the High Court of England and
Wales, urging him to widen a review that he is carrying
out into the working of family courts to include courts of
protection. Mr Grayling wrote: “As you will be aware, the
issue of transparency in the Court of Protection has
recently attracted media attention. While we want to
ensure that we balance the interests of safeguarding
vulnerable adults with those of increasing the
transparency of proceedings, I would welcome your
views on how we might best achieve this.”
2 May 2013

45. Interference with family life
Neil has an IQ of 125 and runs his own
business. So why won't a secret court
let him spend his own money?

46. Access and accountability
PRINCIPLES
 There seems to be no good general reason for
not permitting accredited members of the
press to attend hearings in the Court of
Protection.
 In particular cases, it may (relatively rarely)
be desirable in the interests of justice to
require the press to be absent from part of the
hearing. For example, where the presence of
the press (and other people) would inhibit a
person from giving their evidence on a
sensitive personal matter, for example a
sexual matter.
 In other cases, where no one is inhibited from
giving their evidence, the public interest in
enabling the press (on behalf of the public) to
observe the way in which the proceedings are
conducted and the issues resolved outweighs
the public and private interest in strict privacy
and confidentiality of information.
PRACTICALITIES
Listing
 Not: ‘Before Judge A: The Case of P’
 Something more informative: Before
Judge A: Case of P1 (Personal
welfare case, local authority
application to remove an older
person to care home, for directions).
Website
 Development of a CoP website
 Restricted access part of the website
for accredited press representatives,
with named party listing
information, orders, press notices re
injunctions in force, etc.
Press Reporting
 Default position: Anonymised.

47. Some current issues
Personal welfare
 PW Costs: each party
bears their own costs
 Limited use made of
advance decisions (?)
 Restrictive views as to
personal welfare LPAs
 Litigation Friend vs Legal
Representative
 Litigation friend/Official
Solicitor waiting list
Property & Affairs
 Security levels (initially set
too high)
 Tax avoidance applications
 Last-minute Statutory Will
applications
 PW orders by the back
door/sale of P’s home
 PoA dishonesty and
mismanagement
 Lack of clarity re security
47

48. “Challenges”!
 Public finances, staff cuts and losses, morale issues
 Loss of courts, over-used courts, moving and merging courts
 Resources, even down to basics
 LCJ/LC+HMCTS split
 Legal aid cuts and number of Litigants in Person
 Cost of applications and CoP proceedings
 Uncertainty over the Court of Protection’s future
 Contempt of court procedures
48

49. 3 — POSSIBLE REFORMS

50. Pointers
1. Legally-qualified Solicitor to the Court and team leaders to improve
case and file management techniques (OS model)
2. Simpler rules + fast-track procedure
3. Appoint more specialist judges with relevant experience in the area
4. Consider transferring non-contentious work to the Public Guardian
5. Consider dove-tailing CoP and MHT into a single Mental Health
Court or provide transfer regulations.
6. Improve personal attendance and involvement
7. Utilise the Mental Health Panel of Solicitors
8. Default position of press access
9. Mental Health Commission in place of CQC
10. Review issues of race and culture 50