Levels of contact in Court of Protection cases – what is reasonable?

The Case of Trudy Samler 2001 considers the level of costs incurred regarding contact and whether this is reasonable. The case looks into whether these costs are instigated by the Protected Party and whether the Deputy should be expected to be paid for them. Master O’Hare advised that part of the Deputy’s duty is to prevent such expenses being incurred as it is their responsibility to look after the Protected Party’s financial affairs. The Office of the Public Guardian and the Senior Court Costs Office advise that only one home visit per year is reasonable in routine general management costs unless there is reasonable justification for more attendances. Deputies should be prepared to give reason if several attendances have occurred during one management period.

The case concerned a young lady who suffered severe brain injuries who was subsequently awarded substantial damages. A professional Deputy was appointed by the Court to manager her property and financial affairs. The Deputy’s bill of costs was lodged on October 2000 and provisionally assessed by Costs Officer Edwards on 21 November 2000. By way of a letter dated January 2001, the Deputy did not accept the provisional assessment and set out in numbered paragraphs the reasons relied on in support of the restoration of the costs, which had been disallowed on assessment. On 13 February 2001, a hearing took place and some of the reasonable costs were restored. However, the Deputy still felt that some of the other items disallowed could be justified and restored and so by way of a letter dated 23 February 2001, sought the guidance of Mr R Stone at the Public Trust Office.

The letter included five questions to be referred to the Master of the Court of Protection. The appeal related to work done by the Deputy in relation to three interviews with the Protected Party and four meetings at St Andrews Hospital. An allowance had been made for two meetings, which in total were equal to four hours. At the hearing, the Deputy gave background to the matter and explained some of the attendance notes of the meetings that were in question.

The five numbered questions are set out below:

  1. Can the Deputy be paid for speaking to both carers and case managers to talk about the care and rehabilitation regime and the Protected Party’s well being and needs, assuming that the time spent is not excessive?

Master O’Hare advised that in his view, the Deputy can be paid if the issues discussed are substantial, if there is no alternate person to speak for the Protected Party and if the Protected Party’s estate is large enough to justify such expense.

  • Can the Deputy be paid for all contact with the Protected Party instigated by the Protected Party irrespective of the matters being raised?

Master O’Hare advised that his answer would be no. He confirmed that the Deputy should strive to minimise and avoid necessary expense. Master O’Hare further confirmed that he accepts that each case depends on its own circumstances.

  • Can the Deputy be paid for discussions with the family about the care requirements, existing care regimes, possibility for changes in the future?

Master O’Hare confirmed that the answer he gave to question one seemed to be appropriate for this question.

  • Can the Deputy be paid for discussions with the Protected Party, family, carers and case managers where there are difficulties with the care regime if the Deputy believes that the current regime is in the Protected Party’s best interests or would be subject to proper amendment?

Master O’Hare advised that his answer to question one and 3 apply equally here.

  • Can the Deputy be paid for quarterly visits to the Protected Party to deal with reporting on budgeting, asset performance, income and expenditure?

Master O’Hare advised that the practice for many years has been that it is easy for a Deputy to justify one visit to the Protected Party each year but that each succeeding visit must be separately justified. He also confirmed that the questions that usually arise in respect of this are:

  • Could the subject matter of the later visit have been dealt with at the earlier one, or postponed to a later one?
  • Could the progress made by the meeting have been achieved more economically by way of a telephone call or correspondence?
  • Was the Protected Party and his or her family if any (meaning here any adult relatives with whom he or she resides or in whose care he or she is) warned that the costs of such meeting and the costs of time spent travelling and travel expenses, will all be charged?
  • If the meeting involves time spent travelling by the Deputy, could this travel have been arranged so that the cost of it could be apportioned with other cases handled by the Deputy?

Master O’Hare advised that each case depends on its circumstances and with some Protected Party’s, the number of visits in the early months might be higher than the number of visits once a reasonable pattern has been established.

Successful appeal against a Judge’s decision in respect of the Protected Party’s Deprivation of Liberty

In the case of CB v Medway Council & Anor (Appeal) [2019] EWCOP, the Official Solicitor appealed against a decision which justified the Protected Party’s Deprivation of Liberty.

The Protected Party was a 91 year old female, who no longer lived at her own property following a fall and persistent urinary tract infections. The Protected Party resided at a care home and was provided with a care package, which ultimately was said to have not worked out. The Protected Party’s litigation friend, the Official Solicitor, made an application to enable the Protected Party to reside at her own property, however, the Judge dismissed this application using her summary power.

The Official Solicitor disagreed with the decision of the Judge and therefore appealed the same. The Official Solicitor argued that the Judge did not abide by her duty to ensure that the Protected Party’s best interests were considered as the Judge had failed to allow the Official Solicitor to gather further evidence to support the argument in relation to the feasibility of the Protected Party returning to live at her property. The Court allowed the appeal as the Protected Party’s Deprivation of Liberty should have been considered and thoroughly explored, rather than the Judge dismissing the application based on speculation and general experience within similar cases.

If you have any queries, please do not hesitate to contact Casey McGregor or the team at COPCosts@clarionsolicitors.com

Could breaching a transparency Order ultimately lead to an application for imprisonment?

In the case of Office of the Public Guardian v Stalter [2018] EWCOP 27, an application was made by the Office of the Public Guardian to commit the Protected Party’s partner to prison due to him disclosing information that was in breach of a transparency Order.

The Protected Party had been diagnosed with dementia in March 2016, from October 2016 to January 2018, the Protected Party’s partner, named Mr Stalter, had communicated with a number of different people in a certain way which lead to a breach of the transparency Order. The transparency Order stated that ‘proceedings were not to be published, nor were the identities of other parties to be published, nor was any information tending to identify those individuals as a patient or parties to be published, nor were their addresses or contact details to be published.’ During this communication to various individuals, Mr Stalter advised that the Protected Party was in fact subject to the Court of Protection proceedings and further advised on the individuals that were parties to the proceedings, which included himself. Mr Stalter further disclosed personal details, which was in fact prohibited by the transparency Order, therefore the Protected Party’s partner had breached the Order. The Office of the Public Guardian therefore wished to bring a committal Order.

Mr Stalter was found to be in contempt of Court, however the Court determined that no Order for his committal needed to be made having regard to the fact that he did confirm that he would abide by the Order. The Courts were of the opinion that no punishment would be appropriate for this case due to the fact that Mr Stalter had already suffered as a result of the situation.

If you have any queries, please do not hesitate to contact Casey McGregor or the team at COPCosts@clarionsolicitors.com

The Local Authority seeks orders to restrict the Husband’s contact with the Protected Party.

The case of SR v A Local Authority & Anor (2018), involves the Protected Party (SR), who was an 83-year-old woman who suffered from late onset Alzheimer’s, which was of moderate to severe intensity.

The Protected Party resides at a care home and lacks capacity to decide who she has contact with and to decide on any arrangements for such contact. The Local Authority raised awareness that the Protected Party may be at risk of harm in her husband’s sole care, due to his expressed views on euthanasia, which involved reference to throwing himself and his wife into a river and supplying her with tablets. The Protected Party’s husband also had restrictions placed on the care that he could provide to the Protected Party, such as having to be accompanied if he took her out of the care home. The Protected Party’s family wished for her to return home and the Protected Party has allegedly stated her wishes to be with her husband as she becomes distressed when he leaves her.

In determining whether the Protected Party would be at risk, the court reached the conclusion that the restriction sought by the Local Authority was neither justifiable, proportionate or necessary. They therefore declined to make the Order sought. It was believed that the Protected Party’s husband would most likely not harm the Protected Party, as he had been previously been with her many times unaccompanied. The Protected Party’s daughter also stated that her mother and her father were a happy and loving couple with no allegations of domestic violence ever having been made between them.

Impersonating a Protected Party grounds for imprisonment – Dudley v Hill

Court of Protection orders imprisonment of a Respondent for falsely impersonating the Protected Party and breaching an injunction.

In the case of Dudley Metropolitan Borough Council v Hill (2018), the Court of Protection made an Order for committal to prison after the Respondent was found guilty of impersonating the Protected Party and incurring costs on the Protected Party’s behalf without the authority to do so.

The Court of Protection were concerned for the Protected Party, both in relation to his health and welfare and also his property and financial affairs. There had been a provisional declaration made within the proceedings that the Protected Party lacked capacity. The Protected Party resided in his own home with his support workers, and the Local Authority were heavily involved in the matter.

The Protected Party was an 82-year-old man who suffered from dementia and the Respondent had been impersonating the Protected Party for a significant amount of time. The Respondent was served an injunction which forbid him to directly or indirectly contact the Protected Party or come within 100 meters of his property. The Respondent breached the injunction by attending the Protected Party’s property on 25th November 2017 and in January 2018, the Respondent fraudulently arranged for the installation of BT equipment without the required authority. Furthermore, the Respondent made a large number of telephone calls from the Protected Party’s property, which incurred unnecessary charges and proved that he had entered the Protected Party’s property.

The Respondent was required to attend a hearing, which was to determine whether he had breached the Order for injunction. The Respondent failed to attend the hearing and the Court then found him guilty as a result of the breach of the Order of injunction. The Respondent was sentenced to 4 months imprisonment, to be served concurrently.

If you have any queries, please do not hesitate to contact Casey McGregor or the team at COPCosts@clarionsolicitors.com