Author: elliescally

EG v P [2024] EWCOP 80 (T3) – Court Rules Out Drug Debt Payment in Complex Capacity Case

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A recent ruling by the Family Division, delivered by Sir Andrew McFarlane, addressed a deeply complex and sensitive case involving a young man (“P”) in his 20s who suffered catastrophic brain injuries in a car accident at age two. Although he lives a largely autonomous life, the court oversees his significant financial assets through appointed deputies due to his limited capacity to manage complex financial decisions.

Background

P was awarded substantial compensation due to his childhood injuries. While he manages parts of his daily life independently including relationships, parenting, and routine financial matters, his finances are still overseen by deputies appointed under the Court of Protection.

A prior psychological assessment had confirmed P had capacity to sign a cohabitation agreement, but the matter recently escalated when P became embroiled in a serious criminal issue.

The Criminal Context

Over a year ago, police raided P’s property and discovered a significant quantity of class A and B drugs. P was arrested and is believed to be partly responsible for selling and storing the drugs. The matter took a darker turn when P informed his deputies that he was being threatened by an organised crime group to pay £17,000 as his “share” for the confiscated drugs.

Fearing for his safety, P requested that money be released to pay the debt. However, this placed the deputies in a legal and ethical dilemma.

Legal and Professional Risk

The deputies sought legal opinions which made it unequivocally clear: any payment toward the drug debt would likely constitute a criminal offence under the Proceeds of Crime Act 2002. Furthermore, they could face professional misconduct charges under the Solicitors Regulation Authority (SRA) code of conduct.

As a result, the case turned on a critical legal question: Does P have the mental capacity to decide to pay this drug debt?

Capacity Assessment

A detailed capacity evaluation by Dr. Geoff Hill, a consultant neuropsychologist, concluded that P lacked the mental capacity to make this complex decision. Although he understood the immediate relief he might gain from paying the debt, he could not sufficiently comprehend or weigh the longer-term risks — including legal consequences and future threats.

Dr. Hill found deficits in P’s executive function, reasoning ability, and memory retention, all linked to his original brain injury.

Court’s Decision

Sir Andrew McFarlane accepted Dr. Hill’s assessment and ruled that P lacked the capacity to make this decision. Accordingly, the court refused to authorise any payment towards the drug debt, noting that doing so would be tantamount to the court indirectly engaging in criminal conduct.

Although the Official Solicitor (representing P’s interests) urged the court to dismiss the application entirely, Sir Andrew declined, recognising the deputies’ difficult position and need for legal clarity and protection.

Conclusion

This case underscores the delicate balance the Court must strike when dealing with adults who retain partial autonomy yet require safeguarding in complex circumstances. It also highlights the serious implications of criminal involvement for individuals under protection, and the boundaries professionals must not cross, even with good intentions.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com

Understanding the Role of Court of Protection Visitors and the Release of Reports

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The Court of Protection plays a critical role in decisions related to individuals who may lack the mental capacity to make important decisions for themselves. Central to this process are Court of Protection visitors, whose work is integral to the assessment, supervision, and investigation of such individuals, including those with deputies or attorneys appointed to act on their behalf.

In this blog, we’ll delve into the responsibilities of these visitors and the complex guidelines surrounding the release of the reports they generate.

Who are Court of Protection visitors

Court of Protection visitors are appointed to assess the circumstances of individuals involved in legal matters under the Mental Capacity Act 2005. The role of these visitors is statutory.

There are two main types of Court of Protection visitors:

• Special Visitors – These are typically medical professionals with specific knowledge of mental capacity, which refers to a person’s ability to make decisions at a particular time.
• General Visitors – These individuals may not hold medical qualifications but must have experience in mental capacity assessments.

The Office of the Public Guardian administers a panel of these visitors, who are mainly contracted to carry out these duties across England and Wales, although a small number are employed directly by the Office of the Public Guardian.

What do Court of Protection visitors do?

Court of Protection visitors carry out visits to individuals as directed by the court or the Office of the Public Guardian. These visits may involve people who have a Deputy, a registered Enduring or Lasting Power of Attorney, or even individuals who are under investigation prior to Lasting Power of Attorney registration. Their visits aim to gather essential information to ensure that the decisions made on behalf of someone lacking capacity are in their best interests.

Visitors are authorized to:

• Interview the individual in private.
• Review and copy relevant records, such as medical, social services, and care records.
• Independently report back to the Office of the Public Guardian on matters related to the person’s welfare, and Deputy or attorney activities.

In some cases, the court may request a report from a visitor to aid in making a decision.

When can a report be released?

The release of visit reports is subject to strict rules, ensuring that only relevant individuals or parties have access to the information, and only when the law allows.

Under the Court of Protection Rules 2017, reports prepared by visitors for the court are generally made available to those directly involved in the case. This includes:

• The person making the application (the applicant).
• The person the application is against or who needs to respond (the respondent).
• Other parties involved in the case, as determined by the court.

Individuals who are not involved in the case can apply for a report, but the court may only provide an edited version. Requests can be made using form COP9, and the court may release reports without charge.

In certain circumstances, the Office of the Public Guardian can release a report to those involved in the case, including:

• Individuals interviewed during the report preparation, such as relatives, carers, or legal representatives.
• Entities included in an Office of the Public Guardian court application or during investigations, like police or local authorities.

Additionally, assurance visits may result in reports that can be accessed for transparency and oversight.

The Office of the Public Guardian has the authority to share visit reports with local authority social services, health bodies, or care providers if it is necessary for the person’s welfare, or to assist in supervising a Deputy or attorney’s actions.

If there is an ongoing investigation into potential criminal activity, reports may be shared with the police to aid their inquiry.

Individuals have the right to access personal information about themselves under the Data Protection Act 2018. This includes records held by the Public Guardian, such as visit reports. However, sensitive information not related to the subject of the request or information that could harm a third party may be redacted.

When might a report not be released?

There are specific circumstances where the Office of the Public Guardian can withhold or restrict the release of a report:

-Third-Party Data Protection: If releasing the report would infringe on another person’s privacy rights.
-Confidentiality: If a third party shared sensitive information with the visitor in confidence.                                                                                                                                                             •

Reports may also be redacted to protect the identities of certain individuals or to remove sensitive content that could pose a risk.

Publication of visit reports

The publication of Court of Protection visit reports is generally prohibited by the Office of the Public Guardian. This includes the sharing of reports or extracts in any public forum or publication. If you are considering publishing a visit report, approval from the Office of the Public Guardian is required to ensure compliance with legal standards and privacy concerns.

Conclusion

Court of Protection visitors play a vital role in protecting the interests of vulnerable individuals by providing independent assessments and reporting to the Office of the Public Guardian and the courts. The release of these reports is tightly regulated to ensure privacy, protect individuals’ rights, and safeguard sensitive information.

If you are involved in a Court of Protection matter or are considering seeking access to such a report, it is important to understand the rules governing the release of this information, and how the Office of the Public Guardian oversees these matters.

For any further information, please contact Ellie Scally at Ellie.scally@clarionsolicitors.com

COP Costs Case Law

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Following submission of a Bill of Costs, the Costs Officer will assess the same to ensure that the costs charged are fair and reasonable, and will often refer to case law to justify the decisions they make with regard to reducing/excluding entries.

Please see below some of the most common case law that is applied on a regular basis by the Costs Officers:

R v Legal Aid Board Ex Parte Bruce (1991)

This case dealt with the issue of two or more fee earners at one attendance.

It was stated that “Solicitors are not to be expected to carry knowledge of all the law in their heads… if the problem is outside the scope of their experience they will wish to discuss it with others who are more qualified… But knowledge of the law, however acquired or recalled, is their stock in trade… In so far as expense is involved in adding to this stock in trade, it is an overhead expense and not something that can be charged to the client”. 

Garylee Grimsley (1998)

This case was a continuation of the issues in R v Legal Aid Board Ex Parte Bruce (1991), in which two fee earners at one attendance was reduced on the justification of duplication. As such, it is recommended that two fee earners at an attendance are only claimed in exceptional circumstances and where reasonable to do so, such as where there is a safety risk.

Trudy Samler (2001)

This case dealt with attendances upon the Protected Party and reductions due to an excessive amount of contact.

In the case of Trudy Samler 2001, it was stated “The practice…. is easy for a receiver to justify one visit to the patient each year but that each succeeding visit must be justified…. Could the progress made by the meeting have been achieved more economically by way of a telephone call or correspondence?”.

The case also looks into the costs incurred when contact is instigated by the Protected Party and whether the Deputy should be expected to be paid for such contact. 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 and to manage contact with clients as best as possible, so expect reductions to excessive contact with the Protected Party or other parties to reflect this decision. If there are high levels of contact with P, this should be justified and explained as best as possible within the narrative of the bill of costs to set out why and what steps were taken by the Deputy to best manage this.

Jamie Walker (2002)

This case dealt with incoming correspondence.

Master O’Hare applied the following provision for time spent perusing incoming correspondence: “Routine letter out and routine telephone calls will in general be allowed on a unit basis of 6 minutes each… The unit charge for letters out will include perusing and considering the relevant letters in and no separate charge should be made for incoming letters”.

This decision also impacted time claimed for arranging payments and considering invoices which are routinely reduced to 3 minutes at Grade D rate on assessment.

Leighanne Radcliffe (2004)

This case dealt with enclosure letters whereby 6-minute claims for letters enclosing invoices were reduced to 3 minutes.

Costs Officer Sainthouse referred to Master O’Hare’s decision which had been made in the matter of Jamie Walker in that the time spent checking the invoice, arranging payment and preparing the appropriate letter/cheque was non-fee earner work.

Smith & Others (2007)

This case dealt with hourly rates and determined what Deputies should be charging hourly.

Master Haworth ruled that Court of Protection work should be allowed in accordance with the guideline hourly rates published by the SCCO.

Yazid Yahiaoui (2014)

This case dealt with the introduction of blended rates and stated that “…where work is being carried out either as a team or by an individual that spans work that would normally be dealt with by a Grade B, C or D fee earner, a blended or enhanced rate may be appropriate…”

Philpott (2015 – unwritten)

This case dealt with record keeping.

In the case of Philpott (2015- unwritten), Master Haworth commented in respect of updating the Protected Party’s financial records, stating “It seems to me that the inputting of data into P’s ledger is not fee earning work. At most it is bookkeeping which, to my mind, is an overhead of a solicitor’s practice. This work has to be distinguished from for example, reviewing or perusing the data to come to a decision as to what then needs to be done with a P’s funds. To my mind that may well amount to fee earning work for which the solicitors can charge separately at the appropriate rate.”

Therefore, we recommend avoiding the word ‘updating’ within your work.

Staffordshire v SRK [2016]

This case dealt with welfare work, in particular, work relating to the application for the Deprivation of Liberty Safeguards.

The case stated: “A deputy who agrees to pay for care and treatment of P or for a property for P could not properly ignore the issues (a) whether P was being deprived of his liberty or restrained, and (b) whether that was lawful or needed authorisation under the DOLS or by the making of a welfare order”. As such, this time is always included in the bill of costs. Other welfare work is likely to be reduced or disallowed on assessment.

Tina Jayne Cloughton (1999) and Fuseon Limited (2020)

These cases dealt with delegation of work to a lower grade fee earner.

It was stated that a professional Deputy should delegate suitable tasks to colleagues and employees. The Deputy must be careful not to increase his/her claim for costs by duplicating work done by colleagues.

In 2020, a decision was made in the case of Fuseon Limited which stated that time spend delegating should be fully recoverable. This was a civil decision, and therefore it’s not known whether this same approach will be taken in COP matters. Where delegation has occurred in a COP case which progresses the matter and ultimately saves P money, attempts should be made to recover this time.

The time claimed should be proportionate to the money saved to P, and any work that is delegated should then not require extensive supervision, as this would be considered duplicative.

Understanding the e-bill

If the Costs Officer has applied case law to the Bill of Costs on assessment, they will outline this in Tab Z. Solicitors should be aware of the case law to ensure that they’re not charging the Protected Party unfairly and to understand the reductions applied and whether these are justified.

If you require further information in respect of Court of Protection costs, post-assessment advice or case law, please do not hesitate to contact Ellie Scally.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

Understanding the E-bill once assessed

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At Clarion, we prepare over 2500 Court of Protection bills of costs each year to be assessed by the Senior Court Costs Office. We also review the bills once they have been assessed, monitor the common reductions and give advice to our clients on the outcomes of their assessment.

With the introduction of the e-bill, it can be more difficult to understand what has been reduced and the total costs allowed upon assessment. Below is a quick guide on how to understand the Costs Officer’s reductions.

Time allowed

Column K on Tab 6 of the e-bill which is labelled “Time Allowed” shows the amount of units allowed by the Costs Officer for each respective entry. If the amount of units have been changed from the original amount, the box will be highlighted as yellow and the new amount allowed will have been entered by the Costs Officer.

Fee earner allowed

Column M on Tab 6 of the e-bill labelled “FE Allowed” shows the fee earner/grade of fee earner. Again, if the fee earner has been changed by the Costs Officer, the box will be highlighted as yellow. The Costs Officer will use “A” for a Grade A fee earner, “B” for a Grade B fee earner, “C” for a Grade C fee earner and “D” for a Grade D fee earner. Please review Tab 4 which is where the fee earners are shown to ascertain whether all the rates have been allowed as claimed in the original bill. If a fee earners rate has been changed, the box will be highlighted as yellow and the new rate will have been entered by the Costs Officer, which will subsequently apply to all work entries shown on Tab 6. If you scroll down on this page, the Grades used and created by the Costs Officer will be shown.

The Costs Officer’s Comments

Column Z called “Finding text” shows the reasons as to why the Costs Officer has reduced the entry. Tab 17 deciphers the codes the Costs Officer may use and are shown below. These codes cover the most common reasons for reductions seen across COP assessments:

Total allowed

Tab 12 is now a pre-populated bill summary document based on the changes made in the earlier tabs, and shows clearly how much the profit costs were originally, and how much has been allowed on assessment, as well as the allowed VAT amount and whether the Costs Draftsman’s fee has been allowed or reduced.

Please get in touch with us at Costs.Support@Clarionsolicitors.com if you require any assistance to understand the e-bill once assessed. We can help provide you with advice in relation to whether we think you should appeal the reductions, what you can appeal and what you cannot appeal. We can also assist with drafting a request for reassessment letter. It is very important that you understand the reductions made to ensure that you’re happy with the outcome of the assessment.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com

Did P have capacity to make decisions surrounding his residence, care, sexual relations and access to social media given his diagnosis?

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The case of DY & A council & A NHS Trust [2022] EWCOP 51 concerned whether DY had capacity to make decisions surrounding his care and support arrangements, given the threat posed by his sexual behaviour to the public. The application also dealt with the upcoming expiry of the standard DOLS authorisation in place for DY.

Background

Shortly after DY was born, he was the subject of care proceedings and has been throughout most of his life. As a result, a Care Order was granted on the basis that he would return home to live with his parents. At the age of 10 years old, DY began demonstrating sexualised behaviour and was self-harming. As a result of having a stoma bag fitted when DY was a teenager, he suffered from ill health.

In DY’s mid-teens, he suffered from serious mental health issues which included exacerbated self-harming and more frequent suicide attempts. In 2011, DY was diagnosed with Autistic Spectrum Disorder and Generalised Anxiety Disorder and Paedophilia. As a result, in 2016, DY was detained under Section 3 of the Mental Health Act and this meant that he was placed at a hospital unit. A year after, in 2017, it was determined that DY lacked capacity to consent to his detention and treatment under the Mental Capacity Act. Also, in 2017, DY pleased guilty to two offences of sexual assault of a girl aged under 13. As a consequence, he received a 26-month Youth Rehabilitation Order, was placed on the Sex Offenders Register and was prohibited from having contact with children under 16. He was also determined to pose a risk to his mother.

In 2019, he moved to his current placement and was still deemed as lacking capacity to make decisions about accommodation and care. Several provisions were put in place due to his sexualised behaviour.

Proceedings

On 25 May 2021, in line with Section 21 of the Mental Capacity Act 2005, proceedings were issued that challenged DY’s deprivation of liberty at his placement. The grounds of the challenge were that the mental capacity qualifying requirement in paragraph 15 Schedule A1 and the best interests requirement in paragraph 16 Schedule A1 were not met.

Dr Christopher Ince, who was a Consultant Psychiatrist currently working in Forensic Learning Disability and Autism Services at Northgate Hospital in Northumberland, was instructed to prepare a detailed report on the DY’s capacity to take part in the proceedings and whether he had capacity to make decisions regarding his residence, care, contact, sexual relations and access to social media. The report was produced on 14 April 2022. He concluded that DY had capacity in relation to all the domains set out.

Discussions and conclusions

The Judge decided that DY had capacity to make decisions as to his care and support. He stated that “In arguing otherwise, it seems to me that the respondents are setting the bar of capacity at too high a level”.

The Judge deemed that DY understood the risks he posed and he expressed his fear of what would happen to him if another offence was committed. The Judge expressed that he understood why the parties were concerned, but that any further offending by DY was a matter to be dealt with under the criminal justice system.

Conclusion

The standard authorisation was terminated in accordance with paragraphs 15 and 16 of Schedule A1 Mental Capacity Act which meant that DY would no longer be subject to a Deprivation of Liberty Authorisation.

DY would continue to be offered the same care package which included help with his daily living and medication, and he was strongly encouraged to continue to be accompanied by at least one care worker whenever he went out.

DY remained on the sex offenders register and was offered the psychological help and therapy that he so clearly needed as a matter of urgency, for his own benefit and of course the protection of the public.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com

Gloucestershire County Council and AB (By Her Litigation Friend, The Official Solicitor), SB and NHS Gloucestershire Integrated Care Board

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This recent case concerned the care plans in place for an individual, AB, given the risk of her self-harming. Further points surrounding her capacity to access the internet and social media were also considered within the case, as well as her ability to access implements that could be used to inflict self-harm.

History:

In September 2022, a standard authorisation was granted by the Local Authority (Gloucestershire County Council) in respect of AB’s care and support arrangements within Placement A, following her reaching the age of 18. 

The same was challenged by the Official Solicitor who, on behalf of AB, challenged several matters such as whether the mental capacity requirements had been met, whether the best interests requirements had been met, and asked the Court to consider the period during which the standard authorisation was to be in force and the conditions subject to which the standard authorisation was given. Observations were also made regarding the relevance of Article 2 European Convention on Human Rights, and a duty which had arisen for the Local Authority that would require them to take reasonable steps to provide protection to AB from a real and immediate risk to life.

A hearing was listed for 28 and 29 September 2022, and the parties and the Court had identified the issues for determination as follows: whether AB had capacity to access the internet, and if AB did lack capacity, what was in her best interests in this regard and was the best interests qualifying requirement met in respect of AB’s care and support arrangements.

Whilst preparing for the hearing, it was revealed that the AB was self-harming. AB was subject to significant levels of restraint when her self-harm was of concern to her care staff. There was an incident on 18 August 2022, whereby AB self-harmed by cutting her neck region. This resulted in a “Safe Self Harm Care Plan (Cutting)” being prepared by the care provider.

Hearing

On 28 September 2022, the Court heard evidence from a registered mental health nurse who had implemented the care plan and an independent expert, Dt Ty Glover.

On 29 September 2022, the Senior Judge attend upon AB via Microsoft Teams, and it was noted that AB expressed confusion about the “lack of consistency in how she was permitted to self-harm and when she was not, and a feeling that she was not properly supported whilst at the same time overly restricted.”

Following various pieces of evidence provided by several parties, it was agreed that a risk assessment, an immediate review of practices, and consideration in relation to whether tolerating a degree of self-harm from AB was clinically appropriate and in her best interests needed to be undertaken urgently.

The Official Solicitor stated that the practice in which the carers were able to implement their own care plans was “clinically, ethically and legally unsustainable”. Also, the Official Solicitor questioned the legality with regard to whether a self-harm arrangement could be authorised by way of a schedule one.

Following this, an applicant at the Local Authority submitted that a social worker would be appointed for AB urgently. In addition, it was noted that the Deprivation of Liberty Safeguards Assessor and best interests assessor were not aware of the support arrangements around restraining AB and wider support provisions in place.

It was discussed and considered between the parties whether AB’s care arrangements should revert to how they were previously or whether a new approach should be implemented. The Senior Judge invited the parties to consider a hybrid approach.

In relation to whether AB had capacity to access the internet and social media, it was put forward by the Official Solicitor and the other parties that in the particular circumstances of AB, it was unknown whether AN would be subject to self-harm videos and encouragement of the same.

Outcome

At the outcome of the hearing, it was ordered that the standard authorisation dated 26 September 2022 was terminated.

It was ordered and directed in the interim that:

  • AB would reside in Placement A conforming to the arrangements set out by the Local Authority and under the care plans made in September 2022.
  • AB’s access to social media and the internet may be restricted when in distress
  • AB’s access to items in which she could use for self-harm would be limited in her best interests
  • Any changes to make AB’s care plan more restrictive must be brought before the Court
  • That the restrictions in place pursuant to the care plan in place for AB amounted to a deprivation of her liberty, authorised as being in her best interests and as necessary to prevent harm to her

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

MB v PB [2022] EWCOP 14 – Should the Protected Party continue to have contact with her husband?

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Background 

In 2018, the Protected Party suffered from a severe brain haemorrhage. She had been assessed as lacking capacity to make decisions regarding her residence and care. The Protected Party relied completely on others for her care and had resided in a care home since 2019.  

There were safeguarding issues surrounding whether the Protected Party should have contact with her husband due to his conduct towards her, and there had been significant concerns about his combative approach towards the medical professionals involved in the Protected Party’s care.  This meant that in February 2019, his contact with the Protected Party was reduced to 2 hours a day, and the visits had to be supervised.

Proceedings thereafter resulted from the Protected Party’s husband challenging the contact restrictions that had been put in place. The proceedings had been brought to challenge S21A of the Mental Capacity Act 2005. The Court had the power pursuant to S16 of the Mental Capacity Act to make decisions on behalf of Protected Party as an incapacitated adult.

The care home had served notice to remove the Protected Party from their premises, due to the husband’s inappropriate behaviour. In June 2020, the Protected Party’s husband began proceedings to obtain an Order for the Protected Party to return to the family home and reside with him. He was adamant that the contact restrictions placed upon the Protected Party were not in her best interests.

The Protected Party’s husband denied the allegations he was accused of, and so matters progressed to a hearing. At this hearing, the Protected Party was represented by the Official Solicitor.

The Hearing

The Judge found that there was a pattern of controlling and coercive behaviour by the Protected Party’s husband before the Protected Party was admitted into full time care, and that the same continued after. The Protected Party’s husband had also been accused of touching the Protected Party inappropriately.

It was also noted that the Protected Party’s husband was controlling and had an overbearing attitude towards the care staff in order to control and limit the contact the Protected Party had with family members. The staff members advised that they noticed a change In the Protected Party’s behaviour when the husband arrived to visit. It was noted that the Protected Party found contact with her husband to be upsetting and unwelcoming, however on occasion did appear happy following the visits. 

The Protected Party’s sister reported that the Protected Party was on edge most of the time he visited the care home, and when she resided at home, that she was not allowed to leave the property without his permission. She further reported that the Protected Party had been let go from several jobs due to her husband loitering outside and making colleagues feel uncomfortable. In addition, she alleged that the husband did not let the Protected Party have contact with any men.

Outcome

A conclusion was reached that it was not in the best interests of the Protected Party to stop her husband from visiting at the care home and from maintaining contact with her, with the Judge stating that: 

“I am not making at this stage a best interests judgment that contact should take place, but I am expressing a strong desire that its practicality should be explored with a hope that a trial might take place in which P’s reaction may be observed.”

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.