THE WORKINGS OF PROCEEDINGS IN THE COURT OF …

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THE WORKINGS OF PROCEEDINGS IN THE COURT OF PROTECTION

– A VIEW FROM ALL PARTIES

September 2012

COURT OF PROTECTION PROCEEDINGS

• •

The jurisdiction of the Court Where there is a dispute as to capacity section 48 Mental Capacity Act applies

“The court may, pending the determination of an application to it in relation to a person (“P”) make an order or give directions in respect of any matter if:

there is a reason to believe that P lacks capacity in relation to the matterthe matter is one to which its powers under the Act extend, and it is in P’s best interest to make the order, or give the directions, without delay” Reason to believe has been interpreted by the Courts as meaning “sufficient evidence to

justify a reasonable belief that P may lack capacity in the relevant regard”

WHAT THE COURT CAN DO

Section 15 Power to make Declarations Section 16 Power to make decisions and appoint deputies in relation to Personal welfareProperty and affairs Section 21 Power to Determine issues relating to standard authorisations Make determinations in relation to the validity of Advanced Decisions to refuse treatment Lasting powers of Attorney

COMMON ISSUES IN DISPUTE

Residence Care Medical treatment Property and financial affairs Contact Sexual relations Marriage

WHO ARE PARTIES

• • •

Who may make an application? Automatically permitted to make an application

A person who lacks, or is alleged to lack capacity referred to as ‘P’ protected partyDonor or Donee of a lasting power of attorney to which the application related A deputy appointed by the Court for a reason to whom the application relatesA person named in an existing order of the Court, if the application relates to the order

Permission required by anyone else, when deciding the Court will have regard to

The applicant’s connection with the person whom the application relates The reason for the application The benefit to the person to whom the application relates of a proposed order or directions Whether the benefit can be achieved in another way

Individuals applying for permission to be a party need to state their case as to how they can forward a case in P’s best interest and why they need to be a party.

LITIGATION FRIEND

Conduct proceedings and forward legal arguments on behalf of P in his/her best interests

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Who can be a litigation friend ‘A person who can fairly and competently conduct proceedings on behalf of an incapacitated person and he or she has no interests adverse to those of that person’ Court has full control over the appointment and removal

Official Solicitor’s Office is litigation friend of last resortPerson appointed ‘consents to act’

GENERAL TIMETABLE OF PROCEEDINGS

• • •

Application is made First directions hearing

Practice Directions says within 5 working days for DOL challenges Approximately six weeks for Best Interests Interim orders and declarations made

Timetable thereafter depends on;

The number of issues The evidence requirednumber of expertsexpert availability whether expert evidence is accepted or contested Court timetable

TENSIONS BETWEEN THE PARTIES

Human Rights v Safeguarding

Human Rights Act 1998

Ensures that we enjoy certain freedoms;That we are protected from the state in terms of excessive interference;That we are protected by ‘the state’ from particular forms of harm.The right to self- determination by the right to be protected by the statutory authorities

ADDITIONAL EMOTIONS

Family members perspective When asked about experience in the Court of Protection wife of a husband with ABI reports:

Prior to being in Court I felt a complete lack of regard by health professionals for any

positive contribution I could make to my husbands care

I felt in the middle, as he blamed me for not taking him home. He became more aggressive

and frustrated with me.

I was then confused. I didn’t know what the right thing for him was, I changed my mind and

it was sometimes hard to answer the questions. I would say yes and no at the same time.

I worried that people thought I was going to benefit in some way, a gold digger for wanting

control his finances

I felt guilty for actually getting aspects of my own life back and enjoying that It provided an opportunity to put forward to the court another side and I felt listened to“Helped me to feel that I was doing everything I could even though it took so much time and

effort”

• • •

ADDITIONAL EMOTIONS

‘P’ perspective Not understanding ‘why’ cannot go home Uncertainty over future Assessments…

WHERE IN AN INDIVIDUAL CASE DOES THE BALANCE FALL?

Duty to Consult

With anyone named by the person as someone to be consulted Anyone engaged in caring for the person or interested in P’s welfareAny donee of an LPAAny court appointed deputy With P – ascertain wishes and feelings

THE COURT WILL APPLY A BALANCE SHEET APPROACH

Case Study - Cardiff Council v Peggy Ross (2011) COP

82 year old woman in physical good health, but with dementiaPartner of 20 years aged 81In twenty years had taken approximately 50 cruise ship holidays togetherPrior to moving into a care home they had booked a cruise togetherResident in care home during the week and cared for by partner at weekendsHe did not fully appreciate her care needs, she required prompting with daily

activities and taking medication

She would occasionally wander off She said at times she did not want to go, at other times was indifferent Partner felt she wanted to go and would benefit from it He felt he could look after her

DO YOU CONSIDER IT IN P’S BEST INTEREST TO:-

Go on the cruise? Or not?

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What did the court decide?

The judge felt that the Council’s approach to the best interests decision was too risk averse and failed to take proper account of the potential benefits to Mrs Ross: it ‘smacked of saying

that her best interests were best served by taking every precaution to avoid any possible danger without carrying out the balancing exercise of considering the benefit to Mrs Ross of what, sadly, may be her last opportunity to enjoy such a holiday with Mr Davies. This led, in my view, to trying to find reasons why Mrs Ross should not go on this holiday rather than finding reasons why she should.’

FEATURES OF BRAIN INJURY CASES

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Multi disciplinary approach to ABI cases Care packages high staff turnover ? Long term well trained care workers and family members are able to support in the home Significant problem is recruitment of support workers, particularly in rural areas Emerging evidence of the efficiency of client and family training Evidence to support the effectiveness of home programmes for adults. Study confirmed that many were as effective as programmed delivered by therapists -

Article Professor Mike Barnes on the Need for Long Term Rehabilitation After Traumatic Brain Injury

Supervision and training is required and coordination by a robust care manager

WHAT IF YOU HAVE INFORMATION BUT ARE NOT A PARTY?

Situations where you know proceedings are happening Write to the court / litigation friend ? can you disclose this information? Who instructed you? Duty to consult when making best interest decisions, including • Anyone engaged in caring for the person or interested in P’s welfare

THE COURT OF PROTECTION

The Royal Courts of Justice Thomas More Building Strand London WC2A 2LL Tel: 030 0456 4600

THE OFFICIAL SOLICITOR’S OFFICE

81 Chancery Lane London WC2A 1DD Tel: 0207 911 7127

THANK YOU

Emma Stacey Solicitor, Foot Anstey LLP