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Court of Protection Update: February 2014

Sally Bradley and Michael Edwards, barristers of 4 Paper Buildings, consider the President's guidance on transparency in the Court of Protection as well as the most important recent judgments.

Sally Bradley, barrister, 4 Paper BuildingsMichael Edwards, barrister, 4 Paper Buildings








Sally Bradley
and Michael Edwards, barristers, 4 Paper Buildings

This update considers:

Practice Guidance: Transparency in the Court of Protection
On 16 January 2014, Munby P published guidance on the publication of judgments handed down in the Court of Protection, alongside and together with similar guidance for the family courts. In §1-§2 of both Practice Guidance (Transparency in the Court of Protection: Publication of Judgments) and Practice Guidance (Transparency in the Family Courts: Publication of Judgments), Munby P states:

"This Guidance… is intended to bring about an immediate and significant change in practice in relation to the publication of judgments in family courts and the Court of Protection.

2. In both courts there is need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name. The Guidance will have the effect of increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form)."

The Court of Protection Guidance takes effect from 3 February 2014 and applies to all judgments in the Court of Protection delivered by the Senior Judge, nominated circuit judges and High Court judges. The Guidance in respect of the family courts also takes effect on 3 February and expressly applies to all judgments delivered by High Court judges exercising the inherent jurisdiction to make orders in respect of incapacitated or vulnerable adults.

Both sets of Guidance distinguish between two classes of judgments:

a. those that the judge must ordinarily allow to be published;

b. those that may be published. 

Judgments that must be published
Permission to publish a judgment should always be given when the judge concludes that the publication would be in the public interest, and whether or not a request to publish has been made.

The starting point is that where a written judgment already exists in publishable form or the judge has already ordered that the judgment be transcribed, permission should be given to publish judgments arising from a wide range of specified proceedings in the Court of Protection or under the inherent jurisdiction of the High Court, including:

a.  applications for an order involving the giving or withholding of serious medical treatment;

b.any application for a declaration or order involving a deprivation, or possible deprivation, of liberty;

c. a dispute as to who should act as an attorney or deputy;

d. any application for an order that P should be moved into or out of a residential establishment or other institution;

e. any case where the sale of P's home is in issue;

f. any application for a declaration regarding capacity to marry or consent to sexual relations,

unless there are compelling reasons why the judgment should not be published.

Judgments that may be published
In all other cases, the starting point is that permission for publication may be given by the judge at his discretion, on an application by a party or an accredited member of the media. 

In both sets of Guidance, the President makes clear that the person who is the subject of proceedings and that person's family members, should not normally be named.

Regarding public authorities and expert witnesses, the Guidance provides that they should be named in the published judgments, unless there are compelling reasons why they should not be:

"(iii)  anonymity in the judgment as published should not normally extend beyond protecting the privacy of the adults who are the subject of the proceedings and other members of their families, unless there are compelling reasons to do so."

In the event that a party wishes to identify himself or herself or any other person, as a person being referred to in any published version of the judgment, they can seek an order from the court. Munby P expressly refers to situations where anonymisation may be inappropriate, including "where family members wish to discuss their experiences in public" or "where findings have been made against a person and someone else contends and/or the court concludes that it is in the public interest for that person to be identified".

TA v AA [2013] EWCA CIV 1661
Background to the Court of Appeal decision
concerned the issue: "whether, in contrast to ordinary civil proceedings, there is scope for appealing a refusal of permission to appeal in CoP cases".

The appellant TA's son AA was the subject of a standard authorisation made under Schedule A1 to the Mental Capacity Act 2005 ("the 2005 Act"), authorising the deprivation of his liberty. TA was AA's representative (pursuant to the 2005 Act Schedule A1 Part 10), and twice brought proceedings under s.21A to challenge the authorisation. The substantive appeal for which permission was sought, was against HHJ Gore QC's judgment on the second challenge that, in summary:

a. Schedule A1 Part 8 was a more suitable mechanism by which the representative father could demand, not merely request, a review by the Local Authority of the standard authorisation and address concerns about care arrangements;

b. the Part 8 process would 'avoid the need for the detailed legal representation and submissions and the costs consequence of what would be called for in a full-blown section 21A appeal'.

The appellant father's proposed ground of appeal was that HHJ Gore QC's judgment denied AA's ECHR rights under Article 5(4), by failing to determine the lawfulness of AA's detention. The application for permission came approximately two weeks outside of the 21 day time limit, delay which Peter Jackson J found was without good reason, and in any event he found that the grounds of appeal demonstrated no real prospect of success as HHJ Gore QC had respected AA's Article 5(4) rights and was not compelled to carry out a full inquiry regardless of the merits. Peter Jackson J refused permission to appeal.

The Court of Appeal judgment
The Court of Appeal addressed the issue of their jurisdiction to hear an appeal against Peter Jackson J's refusal of permission to appeal. Their judgment usefully sets out the relevant statutory provisions relating to jurisdiction on appeals and applications for permission to appeal:

a. Access to Justice Act 1999;

b. Senior Courts Act 1981;

c. Mental Capacity Act 2005; and

d. Court of Protection Rules 2007.

Gloster LJ's judgment of the Court, with which Black and Moses LJJ agreed, was that there was no jurisdiction to hear the appeal. Gloster LJ pointed out that this was an application for permission to appeal to the Court of Appeal, whereas the effect of the decision of Peter Jackson J was to refuse permission to appeal to Peter Jackson J (or another similarly nominated judge of the Court of Protection). There was no application made to Peter Jackson J for permission to appeal to the Court of Appeal, which the parties had incorrectly assumed would be a second appeal, and for which permission of the Court of Appeal would be required. Gloster LJ explained that the permission decision of Peter Jackson J was not a decision on appeal; it was a decision refusing to entertain any appeal.

Gloster LJ held that AJA s.54(4) would apply in appropriate circumstances and that the 2005 Act did not create a self-contained regime. Given that the Court of Protection Rules 2007 are rules of the type envisaged by AJA, and despite that the Court of Protection is not one of the courts expressly listed in AJA s.54(1) as a court to which a right of appeal may be exercised, there is a prima facie case that AJA s.54(4) applies to appeals from the Court of Protection. As a result of s.54(4), no appeal would lie against the grant or refusal of permission to appeal to the Court of Appeal, had Peter Jackson J so ordered. Gloster LJ did add that a renewed application for permission to appeal could be made to the Court of Appeal pursuant to CPR r.52.3(3), as applied by CoP Rules r.9.

The Court also refused to entertain an application for permission to appeal directly against HHJ Gore QC's first instance decision. To appeal against the first instance judge, the permission of HHJ Gore QC or a judge nominated under the 2005 Act s.46(2)(a) to (c) is required, pursuant to CoP Rules r.172(7). CoP Rules r.172(6) and (7) make clear that the Court of Appeal does not have jurisdiction to grant permission to appeal against a circuit judge's first instance decision. Note however that if the President, the Vice-Chancellor, or a puisne judge of the High Court made the first instance decision, appeal lies only to the Court of Appeal, see r.181.

On an appeal from a first instance district or circuit judge, permission to appeal to the President, Vice-Chancellor, High Court judge (or a circuit judge if the appeal is from a district judge) is required from the first instance judge or the appeal judge. In the event that the first instance judge refuses to grant permission, a renewed application for permission can be made to a nominated judge: Court of Protection Rules r.172(5). However, if that appeal judge refuses permission to appeal, there is no appeal from that refusal of permission. The Court of Appeal does not have jurisdiction to grant permission to appeal a first instance district or circuit judge's decision and has only its residual jurisdiction to hear appeals in those rare instances when it can be said there has been no decision at all.

On an appeal to the Court of Appeal from a first instance decision of the President, Vice-Chancellor, or High Court judge, permission to appeal is required. Such permission may be granted by the first instance judge or the Court of Appeal, and on refusal of permission by the first instance judge a renewed application for permission may be made to the Court of Appeal; CoP Rules r.181(2) and CPR r.52.3(2), (3) applied by CoP Rules r.9.

On a second appeal to the Court of Appeal, permission to appeal is required and can only be granted by the Court of Appeal: CoP Rules r.182(2).

Re PO [2013] EWHC 3932 (COP)
Background to Munby P's decision
concerned an application in respect of an 88 year-old woman, PO. GO, PO's son, had moved PO from her own home in Worcestershire to his home in Scotland in April 2012, and quite shortly afterwards to a care home within the responsibility of Inverclyde Council ("the council"). In July 2012 the Scottish Court made an interim welfare guardianship order under the Adults with Incapacity (Scotland) Act 2000, and appointed the council's chief social worker as PO's welfare guardian, with powers in relation to PO's personal welfare. At the full hearing in November 2012, the Sheriff giving judgment confirmed the interim order and extended it for three years. The Scottish court accepted jurisdiction on the basis that PO, though not habitually resident in Scotland, was present in Scotland and it was urgent that the application be dealt with; the analogous English provision is in the 2005 Act, Schedule 3, para 7(1)(c).

JO, PO's daughter and GO's sister, made an application for permission to bring an application to the Court of Protection, prior to the Scottish court's full hearing in November 2012. She sought an order for the return of PO to this jurisdiction. The council made an application for a declaration that the Court of Protection had no jurisdiction, PO no longer being habitually resident in England and Wales, alternatively declining to exercise any jurisdiction it might have. GO, RO, and MP, all being children of PO and siblings of JO, supported the council.

The matter was before Munby P for directions in March 2013, and both JO and the council's applications were before the same judge for the hearing at the end of July 2013.

Munby P's decision
The President noted that r.87 of the Court of Protection Rules contemplated two conceptually distinct powers of the Court of Protection: firstly to determine it has no jurisdiction; and secondly to determine, involving the exercise of judicial discretion, that it should not or will not exercise its jurisdiction. The first fundamental question for the President was whether PO was habitually resident in England and Wales, the second was whether to exercise that jurisdiction or not and he dealt with those questions in turn.

PO's habitual residence
Munby P noted that habitual residence is left undefined by both the 2005 Act and the un-ratified Hague Convention on the International Protection of Adults 2000; a Convention that forms the legal backdrop to the English statutory provisions.

Munby P considered Re MN (Recognition and Enforcement of Foreign Protective Measures) [2010] EWHC 1926 (Fam) and agreed with Hedley J's comments from Re MN [22]-[23], that removal of an incapacitated adult from a jurisdiction, if wrongful, should not be effective to change habitual residence, analogous to the same well-established position regarding the wrongful removal of children from a jurisdiction.

Munby P then outlined that, as with other decisions, where an incapacitated person should live is subject to the doctrine of necessity – in short that decisions taken by relatives or carers must be reasonable, arrived at in good faith, and taken in the best interests of the assisted person: In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 per Lord Goff at 75.

Munby P found that GO, RO and MP acted "reasonably and sensibly" in removing PO to Scotland, and that they had "the authority conferred on them by the doctrine of necessity" to act as they did. That JO was differently minded did not affect that authority, and neither did the siblings need the involvement of either council – the English county council does not exercise control over the carers it assists (see Re A and C (Equality and Human Rights Commission Intervening) [2010] EWHC 978 (Fam) per Munby J at [51]-[53]). Munby P concluded that PO was not habitually resident in England and Wales.

The court's discretion to decline to exercise jurisdiction
The court did have jurisdiction in respect of PO's home in Worcestershire pursuant to the 2005 Act, Schedule 3, para 7(1)(b), it being property within the jurisdiction.

Munby P considered the discretion to decline jurisdiction and noted that there is nothing which expressly or implicitly circumscribes the ability of the Court of Protection to apply the doctrine of forum non conveniens.

He then considered whether PO's best interests would be determinative in the court's decision about how to exercise its discretion as to jurisdiction. The provision governing when best interests of PO would be determinative is the 2005 Act s.1(5), which refers to decisions "for or on behalf of a person". Munby P referred to and agreed with Hedley J's judgment (Re MN at [31]) that decisions whether to recognise or enforce Californian orders, were not "for and on behalf of" P – such decisions being in respect of orders, not P.

Munby P added that his preferred position regarding the relevance of the welfare of the child in similar decisions regarding proceedings in respect of children, is the same; the child's welfare is a relevant consideration, but not paramount.

Munby P applied the forum non conveniens principles to this case and found that the case should not proceed in this jurisdiction. Munby P accepted:

a. that it was unrealistic to consider litigation would proceed in both England and Scotland, regardless of whether he accepted or declined jurisdiction;

b. questions relating to PO's welfare have been before the Scottish court for some time and the court continues to exercise jurisdiction;

c. there is no English public authority which currently considers it has responsibility for PO's welfare;

d. most of the witnesses whose evidence would be relevant to the issues are in Scotland;

e. the matters in dispute have the most real and substantial connection with Scotland and there are no special circumstances for the English court to nevertheless exercise jurisdiction.

Re M (Best Interests: Deprivation of Liberty) [2013] EWHC 3456 (COP)
Re M
concerned M, a 67-year-old in respect of whom there was a Deprivation of Liberty Standard Authorisation, the effect of which was to prevent M from leaving the care home she had been housed in since June 2012. M brought proceedings to challenge the authorisation, as she wanted to return to her own home, which she had shared for much of the time with her partner of 30 years.

M's application was opposed by the Care Commissioning Group ("CCG") responsible for providing the services M undoubtedly required, be they provided in the care home or her own home. The CCG relied on the assessments of its multi-disciplinary team. Against this, M was assessed by a consultant psychiatrist, Dr Ian Leonard, who recommended a return home.

Capacity was not in dispute – Peter Jackson J finding that M lacked capacity to decide where she would live. This was because a central component of the decision of where to live was an understanding of the risks to M of her diabetes and the level of professional supervision in respect of that illness. M had an inflexible but mistaken belief that she could manage her own diabetes.

M's best interests were in dispute, and there were two options available: a continuation of the status quo; or a return home with a standard care package. 24-hour in-home medical care would be prohibitively expensive and in any event rejected by M.

Factual background
In 2011, M's diabetes became unstable and she had five acute admissions to hospital, having become very ill with diabetes ketoacidosis (DKA), a potentially fatal condition. In 2012 there were two further admissions to hospital, and by April 2012 M was bedbound, incontinent and confused. In June 2012 she was admitted to the care home, where there had been a marked improvement in her health. However, M repeatedly and consistently insisted that she wished to return home, and would take her own life if this did not happen.

The case was unusual as M lacked capacity on the crucial issue, but in other respects had a clear understanding of her environment. M's negative views of her circumstances in the home were eloquently expressed and both Dr Leonard and Peter Jackson J considered M's self-harm threats to be serious. The district judge previously involved in the case had visited M in the care home, who had said in parting "I want to be out of here quick or be dead."

A residential rehabilitation unit was unable to assess M's ability to return home as she was uncooperative and the unit did not feel able to manage M's medial needs. Further, Dr Leonard and Peter Jackson J considered that M had an unrealistically optimistic view of her situation were she to return home.

Peter Jackson J's decision on best interests
Peter Jackson J found it to be in M's best interests to return home. He did not consider that M would ever recover capacity in relation to the matter in question, and further, he considered that the administration of M's diabetes treatment might be regarded as life-sustaining treatment.

Peter Jackson J placed substantial weight upon the judgment of M's partner, A, who described M as a private and independent person, determined to the point of being habitually inflexible. He accepted that there were many uncertainties, including a possible deterioration in M's physical and mental health, which could be gradual, sudden, or even instantly life-threatening. However, Peter Jackson J agreed with Dr Leonard that such failure is not inevitable.

In his judgment Peter Jackson J makes some general comments, including at [38]:

"if M remains confined in a home she is entitled to ask 'What for?' The only answer that could be provided at the moment is 'To keep you alive as long as possible.' In my view that is not a sufficient answer. The right to life and the state's obligation to protect it is not absolute and the court must surely have regard to the person's own assessment of her quality of life."

Peter Jackson J was clear that his decision was in no way a criticism of CCG or the witnesses of the LA or CCG, and accepted that it would be difficult for them to have taken a different view, saying that "responsibility for the outcome should fall on the shoulders of the court and not on the shoulders of the parties."

He also commended as an approach to be taken in other cases, the visit made by the district judge to M, of which a careful written record was taken and placed with the papers. It served the valuable purposes of informing the court of M's views and making M feel connected to the proceedings, without the stress of having to come to court in person.