C of P Pilots. Get them wrong and it could cost!
Salil Kumar, Mental Health Executive
Court of Protection Pilots – Salil Kumar
Get them wrong and you could be penalised in costs!
The Transparency Pilot
The new Court of Protection was established by the Mental Capacity Act 2005 and is part of the Family Court system. Traditionally the hearings in Family Court and Court of Protection have been held in private but the Family Court issued new Guidance on transparency in 2014.
The Court of Protection is still seen to be very secretive by the general public. In order to change this perception and to inform the public as to what the Court does, it decided to follow the changes introduced in Family Courts and become more transparent. The Pilot started in January 2016.
Under the new system, all hearings will now be held in public, unless the court makes an Order to restrict attendance. In other words, there is now a presumption of openness unless the Court rules to the contrary.
Despite this openness, the court will continue guard the privacy of vulnerable individuals involved in court proceedings. It is unlikely that journalists will be able to identify those involved by name.
It is a common practice of the Court that the reporting restrictions in serious medical treatment cases usually last until death but the Court can extend the period of reporting restrictions beyond the death of the person if requested to do so.
In determining this, the Court has to balance the right to respect for privacy of the family under Article 8 against the importance of free press reporting under Article 10 (freedom of speech).
In the case of King’s College Hospital NHS Trust v C  EWCOP 80, the Court of Protection had made reporting restrictions until the death of C. Following her death, her daughter applied to the Court to extend the period of reporting restrictions beyond her death. This application was opposed by the press (V v Associated Newspapers Ltd  EWCOP 21). In this case the Court found that the press had been very intrusive about the past private life of C and so it decided that C’s family’s right to privacy under Article 8 outweighed the freedom of the press under Article 10.
On the other hand, in the case of University College London Hospitals NHS Trust v G  EWCOP 28, the Court found that there was no undue public interest in Miss G or her family and hence no need to extend the reporting restrictions beyond one month of her death.
The Case Management Pilot.
Cases before the Court of Protection largely fall into two categories – Personal Welfare and Property and Affairs. Over the past 10 years the Court has observed that in some contested cases, court proceedings may drag on for far too long which also incurs very high legal costs. In order to ensure that cases are run smoothly and in time, the Court has started a Case Management Pilot from 1 September 2016. This pilot will run for a period of 12 months in conjunction with other pilots.
However, not all applications coming before the Court are subject to this pilot. Uncontested applications, applications for statutory wills and gifts, serious medical treatment applications and deprivation of liberty appeals are excluded.
If the application relates to Personal Welfare, the Case Management Pilot should ensure that only those applications which require a resolution by court actually come to court. To help ensure this, applicants are required to engage with all the other parties to try to resolve matters before starting proceedings. The Court will require evidence of this.
The focus is on much more assertive judicial case management. Once the application is made, the papers are placed before a judge who will allocate it to an appropriate level of judge and make initial directions to manage the case. An important direction is to list for a Case Management Conference (CMC) within 28 days and the court may also order an advocates meeting before the CMC.
At the CMC, the main emphasis is on narrowing the issues and setting directions so that the dispute can be resolved at (or before) the Final Hearing. The intention of the Pilot is to have no more than two hearings- a Final Management Hearing and a Final Hearing.
For applications relating to Property and Affairs, case management only starts when it is known that the matter is to be contested. The case management involves the case being listed for a Dispute Resolution Hearing (DRH), before the Final hearing.
This is a concept derived from the Family Courts and provides an opportunity for the parties to informally put their case frankly to a Judge. At the end of a DRH, the Judge is required to give their views on the likely outcome. If matters are not agreed at DRH the full hearing would be before a different Judge. Any judicial conclusions from the DRH are not admissible at the final hearing but the parties may have had a clear steer as to the likely outcome of their case. If they proceed, where there is little merit, they are more likely to be penalised in costs. Hopefully this will enable the court to determine whether the case can be resolved without unnecessary litigation.
The Section 49 Reports Pilot
In conjunction with the Case Management Pilot, the Court has also introduced a pilot on section 49 reports. Section 49 reports are usually provided by public bodies such as NHS and local authorities to provide information to the Court on issues of capacity and/or what is in the best interests of the individual.
Where a party is seeking a section 49 report from a NHS body or a local authority, the party must, in advance of making the application, have made contact with the public body and identified an appropriate person who is able to receive the court order. They must also have discussed the reasonableness and time scales for such a report.
This preparatory work to be done by the party seeking the report is very important as this will minimise any delay in submitting the report when the Court finally makes an order. However in practice, the requesting party may come across barriers created by the NHS Trust or local authority, if they are unwilling to utilise their resources to assist the court, since they will not be paid for producing this report. There can be friction.
In the case of RS v LCC and Others  EWCOP 56, the responsible NHS Trust declined to provide a section 49 report ordered by the court on the basis of a lack of time and resources. Judge Bellamy dismissed this argument and ordered that the report be provided by the NHS Trust. The Judge highlighted that if the Trust was having difficulties preparing the report, due to time and resource problems, the Trust should promptly apply to the Court to extend the time for its preparation. However the Trust was required to prepare the report.
It is arguable that with suitable thought and preparation, section 49 reports can be very effective in providing very useful information to the court on the issues in question. The alternative is the use of independent reports which, though often very thorough, tend to take many months and at significant cost.
The Court clearly hopes that in implementing these pilots they will change the culture of the Court of Protection, increasing transparency, reducing costs and speeding up resolutions. We all wish the pilots well.
Trainee Solicitor Peter Edwards Law
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