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Court of Protection: Friend or Foe?

About The Author

Amy Ling (Former Private Law Manager)

Amy graduated with a first in Philosophy from The University of Manchester in 2012. Following three years working within the social housing sector, Amy is currently studying for her LPC and will begin a training contract at a city firm in September 2016. Amy is an accomplished mooter, and was on the winning team in the 2015 JustCite International Mooting competition. Outside of the law, Amy is a keen runner.

In an article earlier this month entitled 'The most sinister court in Britain strikes again', journalist Christopher Brooker outlined the story of Kathleen Danby, 72, who was arrested for breaching a court order by hugging her granddaughter. This follows a particularly emotive case reported in December 2014 in which an ‘unprecedented’ decision, described as the ‘stuff of nightmares’ by Shami Chakrabarti, the director of Liberty, was made to enforce a caesarean section on an Italian woman with bipolar disorder so that the child could be taken into care.

Brooker argues that such cases raise concerns regarding the ‘extraordinary powers given to the judges in this mysterious Court of Protection’. In this he echoes comments raised by Liberal Democrat MP John Hemming, member of the All-Party Parliamentary Group on Family Law and the Court of Protection (CoP), who back in 2011 called for improved procedures and greater transparency in both the Family Courts and CoP.

So what is the Court of Protection, and do its judgments deserve to be described as ‘the shadowy workings of the most sinister and secretive court in our judicial system’?

Mental Capacity and the Court of Protection

The Court of Protection, whose powers derive from Section 45 of the Mental Capacity Act 2005 (MCA), exists to make decisions on behalf of those who lack capacity. As summarised in the MCA Code of Practice, this includes:

  • deciding whether a person has capacity to make a particular decision for themselves;
  • making declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
  • appointing deputies to make decisions for people lacking capacity to make those decisions; and
  • deciding whether a Lasting Power of Attorney or Enduring Power of Attorney is valid, and remove deputies or attorneys who fail to carry out their duties (and LPA or EPA is the mechanism by which an individual can appoint someone to make decisions regarding financial or welfare matters on their behalf).

Before going further into the workings of the CoP, it is necessary to address what is meant by a ‘lacking capacity’. According to Section 2(1) MCA, a person lacks mental capacity ‘if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’. This means that, at the time the decision is due to be made, the individual is not able to understand the information relating to the decision, retain that information, weigh up that information, or communicate their decision about that information relating to that particular decision due to an impairment or disturbance of the mind or brain. (Re AK (Adult Patient) (Medical Treatment: Consent) demonstrated that communication may be as little as simple muscle movements.) 

For example, an individual with dementia may not be able to retain the information needed to make a decision, an individual with severe learning difficulties may not understand the decision to be made, or why this must be made, and an individual in a coma may be unable to communicate any decision that they have made. Lacking capacity may be temporary or permanent (see Section 2(2) MCA), and is only judged in relation to a particular decision or type of decision. For instance, the recent case of London Borough of Islington v QR affirmed the principle established in Sheffield City Council v E that a person may lack capacity regarding the subject matter of their case (whether to terminate a council tenancy) though retain the capacity to litigate.

Given the potential loss of autonomy over one’s life, the principles outlined in Section 1 of the MCA make clear that a person should always be assumed to have capacity unless it is established otherwise and that decisions should not be made on behalf of an individual unless all steps have been taken to enable their decision making. Any decision made on behalf of a person must be made in their best interests and, any decision made should be the least restrictive possible in consideration of their individual freedoms. These principles can be seen in action in the recent case of Essex County Council v RF where it ruled that the keeping of a 91-year-old man in a secured dementia unit against his repeated wish to stay at home amounted to an unlawful deprivation of liberty, and a breach of his Article 5 (right to liberty and security) and Article 8 (right to respect for private and family life) human rights under the European Convention on Human Rights. These are vital commitments that must be upheld to ensure an individual’s autonomy. 

Further, and importantly, making an unwise decision does not mean that someone lacks the capacity to make decisions. We should not hold those we consider vulnerable to a higher standard than we would ourselves.

However, there are situations where it has been found, usually as the result of an assessment by a medical professional, that an individual lacks capacity to make a decision. In this case, questions regarding decisions relating to that person, or disputes as to what is in their best interests that cannot be resolved, may be put before the CoP.

Decisions made by the CoP: Danby’s Injunction

The CoP may be asked to make declarations on a wide range of topics, from day-to-day financial matters, living and care arrangements, to questions on serious medical care. As such it is an ‘inquisitorial’ rather than adversarial court, a principle established in Cheshire West and Chester Council v P. The CoP’s orders, which set a precedent, have the same standing as those of the High Court. Appeals can be made along the same channels as the High Court, ensuring accountability in such decisions. For instance, in Aintree University Hospitals v James, the Supreme Court considered and affirmed key principles regarding end-of-life care and whether removal of life-sustaining treatment can be in the best interests of a patient.   

Taking the case of Danby, the court made decisions regarding the care of her granddaughter, known as B, who has an attachment disorder and learning difficulties. These arrangements have included orders relating to the nature of contact B has with her father (who has also been subject to proceedings for breaching orders relating to B), and Danby. This is because, as described by Cardinal J in Derbyshire County Council v Kathleen Darby both father and grandmother ‘have a very adverse effect upon B’ and whose resulting behaviour has caused the CoP ‘very considerable concern’. 

Danby was therefore restricted in February 2014 from ‘approaching or attempting to approach B personally or through instructing and/or encouraging any other person to do so’. Later that month, Danby was then seen on CCTV meeting with B, handing her a package and giving the hug central to the headlines. This was in clear breach of the requirements of the injunction, representing contempt of court and resulting in the sentence of three months’ imprisonment.

Given the context, it seems hard to present the finding of contempt of court, based on clear CCTV evidence, in a public hearing, as anything close to sinister.

Issues of Secrecy

In his article, Brooker’s contention appeared to be that the CoP made its decision regarding Danby in secret, and that she was not aware of this. However, as Danby was given notice of the hearings, and, as commented by Cardinal J in relation to that particular hearing, it was ‘a public hearing to which all could have attended and a proper notice has been placed outside this court and downstairs in the court's reception area complying with the Practice Guidance of 4th of June of last year. Anyone who wanted to could have attended this hearing if they wished.’

On the other hand, it is fair to say that both the CoP and Family Courts have operated with a very high degree of secrecy until last year, hence Humming’s concerns. The increased accessibility and transparency can in large part be attributed to Munby LJ, who argued that ‘there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system.’ As a result, in September 2014 guidance was issued on what types of cases should ordinarily be published and those that are at the discretion of the judge.

Importantly, alongside requirements such as orders relating to the deprivation of liberty or the giving or withholding of serious medical treatment, the guidance specifies at paragraph 16 that permission to publish a judgment ‘should always be given whenever the judge concludes that publication would be in the public interest, and whether or not a request has been made by a party or the media’. This appears to provide the required ‘back-stop’ whereby those cases covering the most crucial decisions or fundamental principles would not hide behind a veil of secrecy.

The issue of transparency deserves more detailed analysis than is possible in just this article, however for further discussion on this issue please see a previous article regarding ‘The Dangers of Transparency in the Family Courts’.

Responsible Reporting

In my opinion, it is fair to call for transparency in the CoP’s dealings so far as the confidentiality and future prospects of the court can allow, and to argue for improved procedures to ensure that the full context of each case is taken into account. It is right that decisions receive a high degree of scrutiny, given the huge impact on the lives of those involved. Given the power that the CoP has to alter the core fabric of people’s lives, and it is also right that the media and charities should challenge such decisions where they appear to violate fundamental rights. 

It must be remembered that the media can play a valuable role in both identifying and campaigning against miscarriages of justice, and in increasing public understanding of the workings of both the courts and the police. For example, Mark Neary, who disputed the placement of his son into a care home, attributed the successful return of his child to The Independent: ‘campaigning from The Independent made an enormous difference. If it had just been families, I’m not sure we’d have got here. Families don’t have the same clout as a newspaper pushing and pushing’.

However, poor or overly sensationalist reporting of cases dealt with by the CoP, whilst more likely to appeal to the public imagination, do risk distorting the public’s understanding of the workings of this vital court. If we are to debate reform or transparency of the approach to mental capacity of the Court of Protection, this should be firmly based on accurate reporting of the facts and legal frameworks at hand and not on Orwellian-esque caricatures.  

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Tagged: Family Law, Medical Law & Ethics

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