Author: maidiedeighton

No Costs Recovery in Failed Deputyship Case Where P Had Capacity

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The Court of Protection has determined that it should not make a costs order against a Protected Party (P) who was the subject of a failed application by a professional Deputy to be appointed to handle his affairs.

This decision offers some important guidance on costs in Deputyship Applications, particularly when an application ultimately fails because the person concerned is found to have capacity.

Background

  • A professional Deputy applied to be appointed as property and affairs Deputy for a vulnerable adult. However, a section 49 report later confirmed that P did, in fact, have capacity.
  • P sustained frontal lobe damage more than 20 years ago following an assault, which has a mild impact on his executive functioning, compounded by excessive alcohol use. The Deputy made a COP1 application seeking appointment as a professional deputy for P after a referral by City of York Council, who believed P lacked capacity to manage his affairs. But a later medical report found he had the capacity to manage his property and affairs.
  • The Deputy appealed against the decision made by the District Judge who dismissed the application and made no order for costs, meaning the Deputy could not recover any of their expenses.

The Appeal

Harris J allowed the appeal in part, finding that the District Judge had misapplied the law on costs. Harris J found that the District Judge had made a mistake on costs by failing to apply the general rule that in property and affairs Deputyship applications costs shall be paid by P or charged to P’s estate (rule 19.2, Court of Protection Rules 2017) (SI 2017/1035)) (COP 2017). The District Judge had also failed to consider the grounds for departing from this with reference to the factors set out in rule 19.5 of the COP 2017.

Reassessing the Costs Position

  • Harris J reconsidered the matter from the start. While confirming that the general rule should be the initial benchmark, the Judge stressed that it is not absolute. There is a strong public interest in bringing appropriate applications before the Court of Protection, but that alone does not guarantee cost recovery for applicants.
  • Harris J concluded that as a matter of natural justice, “it may appear perverse that P should pay the costs of the Deputy – who is a complete stranger to him – for an application he did not invite, always opposed, had no choice but to respond to, and ultimately was successful in defending.

In reaching the decision, the judge focused on two key factors:

1.    P having no choice but to respond to litigation he did not invite but being successful in defending the application and, as a vulnerable adult, having no way to protect himself against any costs exposure.

2.    The professional Deputy choosing to bring and pursue the application and being in a position to assess litigation risks.

Outcome

  • Balancing these elements, the court concluded it was fair and just to depart from the general rule.
  • Harris J concluded that the application to be appointed as Deputy ultimately failed and it was the responsibility of the professional Deputy to mitigate any costs exposure.
  • Where an application has been made by a professional Deputy on referral from a local authority, the court suggested that the local authority could consider assuming the costs burden through a contractual arrangement with the Deputy, instead of imposing the burden on vulnerable adults.
  • This costs decision shows that courts are prepared to depart from the general rule on costs where there is good reason to do so.

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

CD, Re (Treatment: Haemodialysis) [2024]

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Application for declarations that it was not in CD’s best interests to have new haemodialysis catheter fitted and that he should instead receive palliative care.

CD is a 66 year old originally from Bangladesh and has end-stage renal disease and other conditions. Problems arose with his catheter and attempts to insert a long-term tunnelled catheter were unsuccessful due to his agitation, leading him to repeatedly try to pull it out. While there was consensus that the temporary catheter needed to be removed, the NHS Trust proposed that CD should receive palliative care instead.

Professional evidence indicated that without dialysis, CD might have only two weeks to live, but with treatment, he could potentially survive for an additional three to six months.

However, Judge Poole ultimately rejected this proposal. He recognized the complexities of the situation but emphasized the importance of preserving life.

He states at [29] “The presumption that steps should be taken to preserve life, the family’s views, evidence as to CD’s beliefs and values and his past wishes and feelings, and the evidence of the pleasures that he still derives from interactions with his family and others and from good food, weigh in favour of his undergoing the procedure and continuing with dialysis. I am cautious about finding that it is in his best interests to undergo a procedure the purpose of which he might unknowingly frustrate by pulling out a catheter, but without the insertion of a catheter his life cannot be preserved, and his life, if preserved, will continue to bring him real benefits alongside its burdens. There is no advanced decision to consider but the evidence is that CD is a man who, if he still had capacity, would not want his life to end prematurely unless its burdens became wholly overwhelming.”

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

Sandwell and West Birmingham Hospitals NHS Trust v GH [2023]

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This case involved GH who is a 52 year old woman with a diagnosis of schizoaffective disorder. GH was diagnosed with breast cancer in March 2023 however she does not believe the diagnosis and refuses all treatment.  

The problem was not that GH could not understand the key concepts involved, it was that she had delusional beliefs that prevented her from understanding that she has cancer and weighing this information up. 

Due to the refusal of treatment, the NHS Trust (who were responsible for managing her treatment) applied to the Court for declarations and orders that GH lacked capacity to conduct these proceedings. GH also was unable to make decisions on whether or not to undergo breast cancer surgery therefore the Trust applied that it was lawful and in her best interests for the Applicant to deliver care and treatment in accordance with her care plan. This involved sedation, anaesthesia and a right mastectomy. 

The Application was considered and discussed as long ago as May 2023. This raised concerns as it was made nearly seven months after diagnosis and so shortly before the listed surgery. 

Following the application, the Court made the declarations and concluded that it was in GH’s best interests to undergo the proposed surgery. The Trust was also ordered to pay 80% of the costs of the Official Solicitor because of the unreasonable delay in the Trust making the application. 

You can find out more about our services here or you can contact Maidie Deighton at Maidie.Deighton@clarionsolicitors.com for further information.

Update from the SCCO on the COP-E Bill

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Please see below an update released by the SCCO on the extension to the cut-off period to accepting version 1 of the COP-E Bill.

Following the publication of COP-E Bill version 2.0, a minor error was detected in the filtering functions on the summary sheets and print detail sheet where information from the ‘example data’ COP-E Bill was still visible in the filter dropdowns. The SCCO have advised that this does not affect the workability of the previously published Version 2. The SCCO will continue to accept any bills where the earlier copy of Version 2 was used.

The cut-off date for when Version 1 will no longer be accepted has been extended to 6th November 2023. From this date, only V2.0 and V2.1 of the COP-E Bill will be accepted.

Any version 1 electronic bills must be submitted prior to 6 November 2023. The SCCO have confirmed that only V2.0 and V2.1 of the COP-E Bill will be accepted after the extension date.

Impact for You

The changes outlined in the update are minimal and they are more for the attention of the costs draftsman when preparing E-Bills. The team at Clarion are aware of all of these changes and these will all be implemented going forwards.

The main changes that you should be aware of are outlined below:

  • Front Sheet – there is now a box to include the DX address of the firm. This can be added in if applicable to you, however if you do not have a DX address, this can be left blank.
  • Bill Detail – The activity name for Letters/Emails out on Tab 6 has been amended to be grouped together.
  • Activity Summary – Tab 8 shows a collective summary of how much work has been done by each fee earner grade. 
  • Certification – Tab 11 now shows two titles which are ‘Pre-Assessment Certificate’ and ‘Post-Assessment Certificate’. Please note that the pre-assessment certificate should be completed prior to filing and the post assessment certificate is only to be completed when applying for the Final Costs Certificate.

The version of the bill can be seen in cell A1 on Tab 1 of the bill.  At Clarion, we are now producing V2 of the bill in anticipation of the new deadline, so any bills received from us will have V.2 in this cell.  

It is essential that bills follow the template and guidance notes in force at the time, as any which do not will be rejected. We have ensured that all updates have been carried out and so all of our bills prepared will be prepared under the new format.

How to access the approved template?

The updated copy of the template (Version2.1) is now available on the Judiciary website.

Electronic bills in Court of Protection cases – Pilot in the Senior Courts Costs Office

You can find out more about our services here or you can contact Maidie Deighton at Maidie.Deighton@clarionsolicitors.com for further information.

The use of electronic bills in Court of Protection cases

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Senior Costs Judge Andrew Gordon-Saker has now give some feedback on the use of the COP electronic bill which was implemented on 1 November 2022. The conclusion of the pilot is that electronic bills in this format should continue, which is great news for solicitors.

30-40% of Court of Protection bills were received in the electronic form and these have been a success in terms of the efficiency in undertaking assessments. The turnaround of the electronic bill of costs has been approximately 6 weeks, compared with a 6 month turnaround of the traditional bill.

The pilot is due to end on 28 April 2023 for all involved in Court of Protection cases following 5 months of review and this now means that Deputies, legal representatives and other legal professionals will file their bill in the electronic spreadsheet form using the approved template.

New bills and existing cases (with a CE File reference number) can be submitted to the Court using this method for assessment.

The SCCO has emphasised the importance of the filing the bill with the options beginning with “COP-E” however a previous blog prepared answers many common questions:

E-Bill FAQs – How does the new Court of Protection E-Bill work?

Please see the judiciary website for the approved template, under Guidance and Resources.

There will be some minor changes to the templates which will be uploaded on the judiciary website so please ensure that this template is used. Bills not compatible with the format will be rejected.

The best method of uploading the documents relating to the bill is as a single PDF with a chronological index via the Document Upload Centre. E-bundles are encouraged and are incredibly useful for those Deputies who work on a paperless or paper-light basis.

Requests for a link to upload files should be sent to: scco@justice.gov.uk.

As a team at Clarion, we were heavily involved in this pilot and we are pleased to see this change being implemented on a permanent basis. It is a great development for Deputies and their teams, speeding up turnaround times for assessment and simplifying the administration involved in the process. Clarion will continue to prepare all bills of costs in E-Bill format.

Additional information on E-Bills can be found here: https://www.judiciary.uk/guidance-and-resources/electronic-bills-in-court-of-protection-cases-pilot-in-the-senior-courts-costs-office/

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

The Electronic Bill Pilot in the Senior Courts Costs Office

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From 1 November 2022 until 28 April 2023, professional Deputies appointed by the Court of Protection, their legal representatives and other legal professionals involved in Court of Protection cases are able to submit bills in respect of general management and other applications where the relevant authority has been obtained from the Court of Protection in electronic spreadsheet form, known as the E-Bill.

Approved templates for use are available via the judiciary website, https://www.judiciary.uk/guidance-and-resources/electronic-bills-in-court-of-protection-cases-pilot-in-the-senior-courts-costs-office/ and E-bills are to be filed using CE File. When filing an E-Bill, the options titled ‘COP-E’ in CE File should be selected, and once assessed by the Costs Officers, the bills will be returned electronically.

In accordance with the start of the pilot scheme due to commence on 1 November 2022, the Costs Team at Clarion will be fully prepared for this change and will proceed with drafting E-Bills on behalf of our clients. 

Please read Stephanie Kaye’s blog ‘The COP E-Bill – the good, the bad and the technical’ for further information regarding how the E-Bill will work, how to prepare the bill and the impact on COP practitioners.

The COP E-Bill – the good, the bad and the technical

If you have any questions, please do not hesitate to contact Maidie Deighton at maidie.deighton@clarionsolicitors.com.

What would be in the best interests of P in terms of her residence, care and support, and contact with her children?

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The best interests of an 84-year old woman (RP) with Alzheimer’s disease was considered in the case of DA v EP & Ors (COP – Deprivation of Liberty/Welfare) [2020] EWCOP 74.

This case looked at RP’s best interests in terms of her residence, care and support, and contact with her children.

By way of background, RP suffers from Alzheimer’s disease and lives in the flat above her daughter, EP. RP has regular contact with her son also, JP. RP has received private care packages since 2017 however this initially broke down on 22 September 2019 following an allegation which was made by EP. EP claimed that a carer had bitten RP. A later care package also broke down on 28 November 2019 due to an allegation that EP had prevented the carers from carrying out their role for RP.

The Court of Protection were presented with the following issues to consider:

  • What was in RP’s best interests in terms of her residence in the short term, up to nine months
  • What was in RP’s best interests with regard to her residence in the medium term, beyond nine months
  • What was in RP’s best interests regarding the care and support she should receive
  • What was in RP’s best interests with regard to her contact with EP and JP
  • How should any deprivation of liberty ordered by the Court be supervised going forward

EP suggested that RP would like to return to Scotland where her sister resided, and in the long-term, to live in a bungalow. This was opposed by JP and the Local Authority who agreed that Extra Care Housing should be arranged with a live-in carer. It was also suggested that the current restrictions regarding EP’s contact with RP should continue. It was agreed that RP should remain in the flat on a short-term basis and should  continue to receive care from the current care agency.

It was held by the Court of Protection that RP should remain in the flat with the current care providers and for her to be transferred later to Extra Care Housing. The restrictions upon EP were to undoubtedly continue to ensure that future care packages did not break down.  It was, however, agreed, that EP would have unsupervised contact with RP and that her daughter was to be able to provide emergency care if required. A contact plan was to be organised to set out the same.

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

Does P have litigation capacity?

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The issue of whether P had litigation capacity was considered in the recent case of P, Re [2021] EWCOP 27.

P, a 60 year old woman, has diabetes, paranoid schizophrenia and HIV. A hearing was held to ascertain whether she had litigation capacity after proceedings were brought by an NHS Trust on 28 January 2021. An Application was made by the NHS Trust, as P had refused to take her medication prescribed to treat her HIV since 2018. P suffers with fixed delusional beliefs and ongoing hallucinations, resulting in her hearing God telling her not to take the medication, and her also seeing snakes arise from her HIV medication.

The NHS Trust sought orders and declarations that P lacked the capacity to decide whether or not to take the medication and explained that it was in her best interests to take the medication and that therefore she should be made to do so.

In a capacity assessment in December 2020, P’s consultant psychiatrist concluded that P had litigation capacity, however, did not have subject matter capacity.

Following a hearing in February 2021, an Order was made confirming that it was in P’s best interests for her to take the daily oral medication, however it had no effect and P still refused to take the HIV medication.

In March 2021, this changed as following a capacity assessment, P’s care coordinator concluded that she no longer had litigation capacity. The consultant psychiatrist was asked to undertake a further assessment and agreed that P now lacked litigation capacity.

The matter was reviewed again on 28 April 2021. At the hearing, the question was whether P had litigation capacity to conduct the proceedings, and this was not an issue. It was concluded that P did not in fact have litigation capacity and that the decision by the consultant psychiatric on subject-matter capacity, should have led to a decision made in respect of the capacity to conduct litigation about that very subject matter. The Judge confirmed that he disagreed with the initial assessment undertaken by the consultant psychiatrist, and the finding that P had capacity to conduct the litigation. Following this decision, the Official Solicitor agreed to act as Litigation Friend for P in the ongoing proceedings.

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