username

password

1 Garden CourtHarcourt ChambersCoram Chambersimage of 4 Paper Buildings logoHind CourtDNA LegalGarden Courtsite by Zehuti

The Court of Protection - continuing complaints

Moira Sofaer of 1 Mitre Court Buildings considers recent developments concerning the Court of Protection

Moira Soafer, barrister, 1 Mitre Court Buildings

Moira Sofaer, barrister, of 1 Mitre Court Buildings

The newly constituted Court of Protection has had a somewhat traumatic birth.

Flaws in the Court of Protection (CoP) were highlighted in a negative press campaign last autumn. The CoP and the Office of the Public Guardian (OPG) shared more than 4,000 complaints about its operations over the last two years. It is still being accused of mismanaging £2.7 billion it controls and which is held on behalf of those who no longer have capacity (Ps). Critics claim that it holds the money in a Bank of England account paying 0.5% a year rather than at High Street banks which would provide rates of three per cent. As inflation takes hold it leaves families with an income deficit needing to dig into the capital set aside for a lifetime of care.

The newspapers' campaign 
An eye catching headline in the Mail on Sunday described the CoP as "The Secret Court of Living Hell".  Case histories investigated in the newspaper's campaign included: 

There were complaints in particular about delays, expense, the long and obscure court forms, inefficiency and that the court was a remote entity serving itself. These were accelerated by the press attaching links to the articles censuring the Court.  In The Mail alone 450 further accusations of incompetence followed on from one article. Internet forums posted comments that it sent bullying letters and treated relations like criminals. Saga magazine quoted children's author Helen Bateman whose husband was in a coma after an accident: "It is an alien, intrusive, time consuming and costly institution which was completely out of tune with what we were going through".

Court of Protection Rules Committee's Review
In November the then Justice Secretary, Jack Straw, responded to the concerted attacks by the press. A General Election was on the horizon and the Court was being described as an unresponsive Labour monolith working in secret and grinding its users down.  Mr Straw asked Sir Mark Potter, the then President of the Family Division, to appoint a Rules Committee to investigate and recommend changes. The committee was chaired by Mr Justice Charles and Mrs Justice Proudman.

The committee met four times in the spring of 2010 and published a report in July 2010. There was recognition of the need for new court forms to be available as quickly as possible. They were to be custom made for the different types of application to avoid containing the lengthy screeds of unnecessary information the original universal forms require.  Better explanatory notes are recommended to be attached to the forms as the current ones have led to confusion. Clearer forms would lower the 80% refusal rate for applications received between January 2008 and December 2009 to deal with property and welfare decisions on behalf of the mentally vulnerable. Forty per cent of applications are made by people without professional support. This is a failure in communication and assists those who fear the Court is composed of civil servants and lawyers busy talking to themselves while failing to provide a simple application process. Fortunately the new forms will be road tested in pilot schemes. Their success will depend on using simple English aimed at non-professionals. 

A further recommendation is that court officers, rather than judges, should deal with applications concerning non-contentious property and affairs. Previously nominated officers were trained to deal with routine applications and there was lobbying for their return.  There is provision for judges to review those decisions and it will make running the Court easier. Other recommendations of the Rules Committee address speeding up and simplifying procedure in response to the complaints of delay.

A key recommendation is that there should be no change in the rules concerning access to proceedings by the public. When and whether the Court should sit in public or permit its proceedings to be made public will be decided in each case by the judge. In March 2010 the Court of Appeal had already handed down a judgement on the application by the press to be permitted access to a hearing concerning Derek Paravicini, described as a human iPod. He is an autistic, high earning pianist living in sheltered accommodation, needing 24 hour care and unable to manage his finances. The press had been agitating against the Court's closed hearings in a high profile campaign. It was held that article 10 of the European Court of Human Rights covered access to information at a court hearing and there could be no blanket exclusions. The Court of Appeal held that decisions on press access should be within the discretion of the judge hearing the case.  The Rules Committee followed the case law but decided against blanket open access.

Scrutiny by the public
In May 2010 an open judgment was handed down by Sir Nicholas Wall in DH NHS Foundation Trust v PS [2010] EWHC 1217 concerning a woman aged 55 who had learning difficulties and an overwhelming fear of hospitals and medical treatment. She was deemed not to have mental capacity and unable to make a decision about her treatment. The President ruled that she could be given a drug in a glass of Ribena at her home and detained afterwards on a ward for treatment of cancer of the uterus. Fair reporting in this case though did include Mencap's support for the court's life sustaining decision
This  re-opened the continuing debate in the press about the court having sweeping powers handed to it by the Labour government that were not open to scrutiny and openness. Previously decisions about life and death , sterilisations and abortions were made in public and could be reported by the media. Profound questions as to when the State can intervene in private life were aired.   Fears were voiced that paternalistic doctors would combine with judges to make vital decisions behind closed doors, thus eroding the rights of the individual. The media continue to oppose blocked access on the basis that it more appropriate for countries whose leaders do not like their authority to be questioned.  

Another press campaign led to the naming of a local authority which had treated a vulnerable person and their relations in a high handed manner without authority. The latest judgement released to the press concerned "birth control by force". Mr Jusice Bodey in August 2010 criticised a Midlands council who wanted a married woman aged 29 with an IQ of 53 to be sedated, taken from her home and have birth control imposed on her against her will. The plan to prevent her having children he held had shades of social engineering. There would need to be police involvement and contraception under restraint which he could not authorise under the circumstances
 The Court does not have to handle these types of cases often. Public decision making should be encouraged. Ethical life changing decisions ought to reflect current social, rather than legal, values. Keeping people informed reassures them that judges are in tune with the current moral climate and not remote elderly beings living in a world of their own.

Court of Protection's First Report
In June 2010 the Court published its first report, covering its performance between October 2007 and January 2010. The target for an oral hearing within 6 weeks was met in 53% of applications compared with the target of 75%. The Senior Judge explains the shortfall in performance by insufficient Judges. He hoped the appointment of three full time judges in 2010 would help meet targets. The Mental Capacity Act 2005 which created the new Court of Protection did not provide for deputies (part time judges).  Full time judges had to be brought in from the regions to cover the London work.  The five regional centres were designed to take the hearing centres to the client .This had an impact of the regions that deal with 60% of the work. A more flexible system would be to amend the statute to provide for deputies.  They could be drafted in to help with the work flow and be a pool of experienced potential permanent judges.   

Applications were analysed. There were 40,000 applications concerning property and affairs and 95% of them did not require court attendance. Forms to apply for a power of attorney had been reduced from 25 pages to 12. There were 2,800 personal and welfare applications with a refusal rate of 80%. There were 13 Deprivation of liberty applications over an eight month period. The general rate of applications was averaging at 1600 per month.  

Complaints were addressed. There were 1,672 complaints made about the Court (excluding ones about the OPG taking combined complaints to 4000). These divided into 25% about judicial decisions, 15% about the cost of proceedings, 15% about administrative errors, and 30% about the length of the process and delays. The rate of complaints reduced in the last 6 months and the Senior Judge credits the Court being integrated into HMCS in April 2009 as having had a positive effect.

Performance indicators were divided into three periods of time. There was an improvement in the proportion of applicants contacted within 20 days of receipt of the application (92%), and of those applications meeting the target for paper directions within 16 weeks (77%) but for those within 20 weeks underperforming by 14%.  59% of applications were heard within 6 weeks, a poor performance the Senior Judge hopes will be improved upon. Replies to correspondence within 10 working days were off target by 20% and down to 75%.

Continuing criticisms
The report did not stem criticism. BBC's File on Four, broadcast on 27th of July, focused on new complaints. Parents of disabled children who became 18 had to apply at great expense to be deputies to manage their children's meagre finances and thought their particular situation had been overlooked.  A compensation award invested at 0.5% interest instead of 4.5%, the Halifax rate of interest at the time, was bitterly attacked by an accident victim who estimated he had lost £50,000. Another accident victim was awarded £1.5 million and wanted to know the number of hours charged for by her deputy and after 3 months had not been told. The charity Elder Abuse was receiving constant calls to its helpline about fees for unnecessary work and the Court approving too many bills in excess of the £1100 capped rate. Delay in preventing financial abuse was highlighted. The niece of a hospital patient with dementia had taken £300,000 out of P's accounts and conveyed P's home into joint names.  It took 3 months to cut off the niece's access to the accounts and no sanctions were taken against her. The Court was attacked for being slow and lenient. The programme concluded that lobbyists like the Court and the public do not.

It is worth remembering the previous Court was also vilified.  A Parliamentary Ombudsman Report in 2005 noted poor staff training, high staff turnover, and serious mistakes in managing clients' money.  There were poor investments and lost cash leading to compensation claims.  Staff often never replied to letters and took months to sort anything out. When complaints mounted up internal memos were written which were "staggering in their arrogance".
Overall the Court is trying to improve. It does have a challenging client base and a large volume of work. Some of the delays maybe due to lawyers not using its emergency provisions (see Urgent Applications in the Court of Protection, Pierce and Jackson (Jordans)). It is admitting shortcomings and attempting to adapt quickly.  There are now 2,000 applications per month. Previously the four judges based at Archway could not keep up with the volume of work. Although three new judges were appointed in Spring 2010 none of them had sat as judges before their appointment. Meanwhile two experienced Judges will be leaving by spring 2011. It is likely the Senior Judges optimism for future efficiency is misplaced and there will be more delay. 

The media have a grievance about removing its right of access, at time when the culture is towards more open justice and will continue with criticism campaigning to get into the hearings.  The pressure group Families Against Court of Protection Theft  set up by relations who were unhappy with the CoP is also a vocal critic but has a limited ability to solve the problems of others.  Website content such as the OPG's pledge to acknowledge a complaint within two working days, unless it does so, will fuel the flames. 

It is hoped the new forms, produced with the benefit of the HMCS's drafting experience, will be an improvement on the OPG's previous efforts and will be comprehensible and user friendly. It has been a very bumpy start.  The basement interest rates need to be addressed.   The tenor of past complaints has been of faceless bureaucrats making incomprehensible decisions, then failing to communicate about them.  Focus should be on running an efficient, responsive, problem solving service for the most vulnerable. For many, the Court is still not serving the most vulnerable but adding to their problems.