The Court of Protection was created 10 years ago to administer a jurisdiction created by the Mental Capacity Act 2005 (MCA 2005). A team based at Cardiff University’s School of Law has been examining how the business of the court has changed over the last decade, and the Transparency Project has been assessing how well the court has dealt with attempts to increase public understanding of its work. The ICLR’s Paul Magrath summarises their findings.
Jurisdiction of the court
There is some confusion about what the Court of Protection (COP) actually does. Quite apart from the common error of confusing mental capacity under the MCA 2005 and mental health under the Mental Health Act 1983, there has been a tendency for the popular press to describe the court in crude and simplistic terms as dealing with “sick and vulnerable people” and to confuse cases about withdrawal of medical treatment from a terminally ill patient with those involving a so-called (but mythical) “right to die”.
In fact the COP has two broad areas of jurisdiction. One deals with cases involving serious medical treatment, where the person concerned (by reason of their condition) lacks mental capacity to consent, and the court is asked to approve treatment. Such cases are normally heard in public.
The other deals with issues affecting the welfare, accommodation and management of financial affairs of a person, and the conduct of another person, exercising a power of attorney, appointed to manage them. Those cases were, until last year, heard in private in the same way as many family cases involving children, and therefore attracted similar press accusations of being “secretive” and “sinister”.
However, in early 2014 the President of the Family Division and Court of Protection, Sir James Munby, issued Practice Guidance (Court of Protection: Transparency)  1 WLR 235 under which judges were to publish suitably anonymised judgments to promote greater transparency in those courts. Then in early 2016, the COP launched a transparency pilot scheme, in which most cases would instead be heard in public, but subject to stringent reporting restrictions.
The business of the court
When the COP was first established, the expectation was that most of its work would be dealing with serious medical treatment cases. A recent example is the case of Paul Briggs, who at the time was in a minimally conscious state after suffering severe brain damage in a motor crash, and the court was asked to approve the withdrawal of life-prolonging treatment (a feeding tube) which his wife no longer believed to be in her husband’s “best interests”. (See In re Briggs (Incapacitated Person) (Medical Treatment: Best Interests Decision) (No 2)  EWCOP 53;  4 WLR 37.)
But what Lucy Series, Phil Fennell, Julie Doughty and Adam Mercer at Cardiff University’s School of Law have learned from their statistical analysis is that the COP’s work now leans far more heavily towards welfare cases, involving where a person (usually referred to as “P”) should live and how they should be looked after, rather than cases involving serious medical treatment. In consequence, local authorities are now the main users of the COP’s welfare jurisdiction – they are involved more frequently in COP litigation than NHS organisations.
The key findings of their report, Welfare cases in the Court of Protection: A statistical overview also show:
- Cases about relationships – who a person has contact with, and whether they have the mental capacity to consent to sex or marriage – are among the most complex in the COP’s jurisdiction. They typically involve more parties and hearings, take longer and cost more than other kinds of cases.
- Whilst a typical welfare case in the COP can cost local authorities around £13,000, some cases cost considerably more, and this may be having a “chilling effect” on their willingness to refer disputes to court. Moreover, for “P” and families who do not qualify for legal aid, the cost of litigation may be a major barrier to accessing justice.
- They found little evidence that “P” or families were using the COP’s main personal welfare jurisdiction to challenge decisions made under the MCA; in their sample it served primarily as a vehicle for public bodies to seek authorisation for best interests decisions.
- They found few indications that “P” was routinely participating in COP welfare proceedings, but the introduction of new rules on participation might improve that position.
A major change in the volume of business has been cases involving Deprivation of Liberty Safeguards (DoLS) in the wake of the Supreme Court’s decision in Cheshire West and Chester Council v P  UKSC 19,  AC 896.
Transparency and accountability
The original transparency pilot was to have lasted a few months, but it has since been extended and will now run until the end of December 2017. Following an announcement in June this year, the court rules have been amended to align the two separate sets of procedures to be followed regarding allowing members of the public (including journalists) to attend a hearing and what they may report afterwards.
As Julie Doughty explains on the Transparency Project blog, it is not clear whether this will lead to any improvement in the quality or quantity of press reporting from the court. Part of the problem, as I explained in another post on the same blog, is that transparency pilot, designed to combat accusations of secrecy, is itself a bit of a secret!
Although the Cardiff statistical research related to the year 2014-15, which was before the court’s transparency pilot, they “found little evidence of active media efforts to attend or report on hearings, and only a small number of examples of reporting restriction orders imposed on the media.”
I have myself attended hearings under the pilot and reported on its operation for the Transparency Project. We understood that the pilot, as its purpose indicated, would be reviewed at some point, but were dismayed not to have been formally involved in its review, especially given our significantly greater engagement with the pilot than, it would seem, either the media or the public generally. We filed a Freedom of Information request to the Ministry of Justice to see if we could find out more about any internal review that had been conducted.
The reply was, as Julie Doughty writes up in another post on the Transparency Project blog (The Court of Protection pilot – taking off before a flying test?), that there had been a series of meetings early on in the scheme, in April 2016, to review it (but too early for such a review to be useful); but that since then no further attempt had been made to gather views of users or what one might call spectators.
It does seem clear that many practitioners find the additional work of anonymising paperwork to comply with the pilot practice directions and orders to be a burden, which they regard as intrusive and unnecessary, but little effort has been made to discover the views of the people whom the cases are about, usually known as “P”, or their families. (This chimes with the Cardiff researchers’ observations about a general lack of participation by “P”.)
The key question, which remains unanswered, is whether the transparency offered by the pilot scheme, while admirably compliant with the principles of open justice and judicial accountability, is actually helping promote public understanding of the work of the court. If the court is to expect better reporting of its work, not just by the press but also by academic researchers and legal commentators, it needs to be better at reporting its own internal research.