Court of Protection Rules Committee publishes review

Court of Protection criticised on File on 4

The President of the Court of Protection, Sir Nicholas Wall, has published the Court of Protection Rules Committee's Review.

The Committee was set up in December 2009 to undertake a review of the Court of Protection Rules 2007 and the practice directions and forms which accompany them. The Rules govern the practice and procedure of the Court of Protection.

Sir Nicholas said:

"We are extremely grateful to the Committee for its hard work. We accept all the recommendations which it makes, and would support their implementation sooner rather than later. Discussions are underway on the constitution of a Committee which, in the future, will review and make recommendations relating to the procedure and practice of the Court of Protection.

"We are very pleased to see that the recommendations are directed to speeding up the process and to making non-contentious cases simpler and more user friendly. We would like to congratulate everyone associated with the court on the manner in which it has tackled the unexpected volume of work and the initial backlogs. We are confident that with the changes recommended by the Committee the Court will move forward swiftly and fulfil efficiently the important role which it has in the overall administration of justice."

The recommendations are as follows:

1 The procedure and practice of the court should reflect the differences in the nature of the following categories of its work, namely (a) non-contentious property and affairs applications, (b) contentious property and affairs applications and (c) health and welfare applications.

2. This change should be implemented by (a) the introduction of new forms, and (b) relevant changes in the rules and practice directions.

3. The distinction between serving and notifying people who are or may be interested in making representations to the court should be preserved. But it should be better explained and some amendments to the present provisions relating to this process should be made.

4. The present position relating to the notification and participation of P should be retained (with some minor amendments).

5. Strictly defined and limited non-contentious property and affairs applications should be dealt with by court officers (e.g. applications for a property and affairs deputy by local authorities and in respect of small estates that do not include defined types of property). The provisions will also have to provide for an automatic right to refer any such decision to a judge and internal monitoring and review by the judges.

6. Separate applications for permission should be abandoned and the application for permission should be incorporated into the main application form.

7. The detailed and minor changes set out in annex 1 hereto should be considered. It is recognised that on a detailed consideration some may be rejected and others added and this recommendation and annex is included to assist those who are performing that detailed exercise.

8. Issues as to whether and when the court should sit in public or permit its proceedings to be made public should be dealt with by the courts through decisions rather than any rule change.

9. The proposed new forms prepared by members of this committee should be "tested" with a range of potential users before they are finalised and the relevant rules and practice directions are altered.

10. A Committee should be established to review and make recommendations relating to the procedure and practice of the Court of Protection.

11. The terms of reference and steps taken by this ad hoc committee and its membership are set out in annexes 2 and 3 hereto. Its minutes and further information as to its work can be obtained by writing to the Secretary to the committee.

12. The review carried out by this committee was planned in 2007 and has also had regard to matters raised in the media and by individuals on the practice and procedure of the court since it inception.

13. We are reporting now because we are of the view that the changes we recommend should be implemented as soon as possible and it is not our function to draft the relevant documents, although some of us have prepared the draft application forms which have provided the benchmark for much of our deliberations and a means of checking whether our recommendations are likely to bring about significant improvement. We believe that they will.

14. Decisions as to what, if any, consultation should take place before any changes are made are outside our remit. However, through our membership we represent a wide group of users and some of us (and in particular the joint chairs) are very doubtful that the delay that consultation would trigger is warranted given the common ground on the nature and extent of the problems caused by the present practice and procedure, the nature and extent of our recommendations, which include testing the new forms of application, and the changes needed to implement the changes we recommend.

The report can be read in full here.

The Court of Protection and its work featured on this week's File on 4 on Radio 4. The programme can be heard here.

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