Author: Stephanie Kaye

Was it correct to act against expressly made, documented wishes in attempts to preserve life? The case of Pindo Mulla v Spain (2024).

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The case of Pindo Mulla v Spain (2024) involved a decision made by the Grand Chamber of the European Court of Human Rights in relation to conducting medical treatment for Pindo Mulla (PM). PM was a Jehovah’s Witness who had expressly confirmed that she could not accept blood transfusions due to the moral stance outlined with her religious beliefs.

 

PM had been aware of her condition prior to the required surgery and drew up several documents refusing any type of blood transfusion if it was deemed by medical professionals that she required the same. In 2018, she required further emergency surgery at La Paz Hospital in Madrid, at which point medical professionals sought permission from a judge to transfuse her if necessary, whilst being aware that she had “verbally expressed her rejection of all types of treatment”. Permission was given “to treat the patient arriving from Soria, whose identity is unknown for the moment, with the medical or surgical measures necessary to safeguard her life and physical integrity”, and as a result PM was transfused during the procedure. She then attempted to sue in domestic Courts in Spain, but was unsuccessful in her action.

PM proceeded to argue that her objection to the transfusions had been overridden in contravention of Articles 8 and 9 of the European Convention on Human Rights (right to respect for private and family life, and the right to freedom of thought, conscience and religion).

Conclusion:

The Court found that the decision to proceed with the medical treatment, against PM’s wishes, had occurred due to a decision-making process affected by the omission of essential information about the documenting of these wishes. The Court was satisfied that the actions of the medical professionals had been motivated by an overriding concern to ensure that Pindo Mulla was treated effectively, but that overall it was evident that her rights under Articles 8 and 9 of the Convention had in fact been violated, and that the domestic system had not responded appropriately to PM’s complaints regarding the overruling of her documented wishes.

 

Sandwell and West Birmingham Hospitals NHS Trust v GH [2023] EWCOP 50 

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This case involves an application made by an NHS Trust, seeking a declaration that an individual lacked capacity to make decisions about treatment for breast cancer, specifically the undertaking of breast cancer surgery (a mastectomy) and associated care and treatment. 

Background: 

In March 2023 GH, a 52-year-old woman with a prior diagnosis schizoaffective disorder was diagnosed with breast cancer,  and has refused all treatment because of her described ‘delusional’ beliefs. As a response, the Trust that manages her cancer treatment applied to the Court of Protection for declarations and orders that P lacked capacity to conduct the proceedings and to make decisions about whether to agree to undergo the necessary breast cancer surgery and associated care and treatment.

Dr Aziz concluded that there were issues with regards to her mental capacity as determined by the capacity assessment. This was decided on the basis that P had been in regular contact with mental health services since 2006, and had previously been detained under Section 3 of the Mental Health Act 1983 for suffering with psychosis, which involved GH hearing voices on a regular basis. In 2012, she suffered a relapse which was thought to be due to non-compliance with her medication. This resulted in her once again being detained under the Mental Health Act from 2022 to early 2023.

Conclusion: 

Mr Justice Poole stated that he was ‘satisfied that all practicable steps to help GH have been taken without success. There have been a number of discussions with her and professionals have tried to strip down the information to the basic information she requires, using straightforward language. The problem for GH is not that she cannot understand the key concepts involved, it is that she has delusional beliefs that prevent her from understanding and therefore weighing and using relevant information, namely that she has breast cancer’.

The court subsequently concluded that it was in GH’s best interests to undergo the necessary surgery in respect of her breast cancer diagnosis. GH subsequently underwent the mastectomy surgery which she did not resist, the tumour was operable, and she has recovered well from the procedure with no adverse effects noted with regards to her mental health.

Can you charge interest on Deputyship costs?

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It is commonly questioned about whether or not interest is payable on legal fees incurred by a professional Deputy in a Court of Protection case. Interest on unpaid legal costs is governed by the Judgments Act 1838 and Section 74 of the County Courts Act 1984. It is stated that the rate applicable which a receiving party can reasonably be charging interest at is 8% on any unpaid legal costs owed by the paying party. Interest will not run on any payment of costs made on account, therefore if interim payments have been taken, interest will not accrue on those sums.

In Thomas v Bunn [1991], it was held that where a defendant is ordered to pay ‘damages to be assessed’, interest on the damages only ran from the date of the judgment or order assessing the damages payable and not from the date of the order establishing liability. As a result and applying that same logic, it’s widely accepted that interest will run in COP cases but only from the date of the Final Costs Certificate as this is the time that the amount payable is known. If the costs have not been assessed and no Final Costs Certificate has been made, interest cannot accrue.

Practically, it is an additional statutory entitlement so is in addition to the invoices already rendered, but not vatable. The party must be notified that interest is accruing.

Many firms take the view that it is not appropriate to charge interest on legal fees in COP cases where still acting as Deputy, as it would not be deemed in P’s best interests. That said, there are circumstances whereby the Deputy may expect not to receive payment for some time and therefore charging interest may be necessary, for example, pending the sale of a property to release cash assets. It is for the Deputy and the Deputy’s firm to decide whether to charge interest on the legal fees.

If you have any questions, please contact Stephanie Kaye at stephanie.kaye@clarionsolicitors.com

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

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The COP E-Bill has been in the pipeline for well over a year and the E-Bill pilot will start on the 1st of November 2022. Stephanie Kaye shares what practitioners need to know about the change, including when we can expect it and what it means practically for deputies.

When will it go live?

The consultation for the E-Bill concluded in May 2022. It was then necessary for the E-Bill working group to meet and discuss the comments made about the E-Bill to decide if any further changes or tweaks were required. The working group consists of Costs Judge Leonard, Costs Officer Leggett, Costs Officer Prendergast, Richard Benn from CostsMaster, Andrew McAulay from Clarion, Stephanie Kaye from Clarion and Ian Gibson from Irwin Mitchell.

Many useful observations were made during the consultation which needed to be incorporated or changed in the latest version of the COP E-Bill. This is a time-consuming process, coupled with the Costs Officer training needed at the SCCO, meaning that the final E-Bill will launch in pilot form in the autumn on the 1st of November 2022. Once live, the E-Bill will be accepted by the SCCO for assessment but will not yet be compulsory.

Electronic bills in Court of Protection cases – Pilot in the Senior Courts Costs Office | Courts and Tribunals Judiciary

What is so different about the E-Bill?

Simply put, the E-Bill is in Microsoft Excel format compared with the Microsoft Word format of the traditional COP Bill. Excel is much better for calculations and therefore provides a slicker, fresher alternative to the usual assessment whilst being equally as accessible by all. The benefits of the E-Bill include things like typed comments from the SCCO as to the reductions made, making it very straightforward to follow, and automatically recalculated Bills allowing you to instantly see what has been allowed on assessment.

There is a new requirement to tell the SCCO about the Protected Party’s asset value. This is to ensure that there are sufficient funds to meet the outcome of the assessment, but it also allows the Costs Officer to consider if the costs incurred are proportionate to the value of the estate – something that wasn’t quite so transparent before.

If it’s a general management year, you/the Draftsperson are required to input the OPG105 estimate in the Bill of Costs. Again, this is much more transparent and will allow the Costs Officer to easily see if you have exceeded your predicted costs, potentially making your costs vulnerable on assessment.

We are all familiar with some of the illegible comments of Costs Officers in the current Bills as we know them. The E-Bill provides a space for the Costs Officers to type their comments and justification regarding the reductions made and after assessment, a table of findings (Tab 15) will be populated with the relevant reductions which apply to your case. This not only means that you know what is reduced, but also why.

There are also several handy things to note about the E-Bill, too. This has been developed to be very user friendly and efficient, with many, many meetings in the background to test different functions and ensure it works. One useful tool is that there is an email address box on the front of the Bill. This is the email that the assessed Bill of Costs will be sent to at your firm and it’s up to you to choose a suitable address, meaning that there are no waiting times following the outcome, speeding up the process.

It is expected that the E-Bill will be signed electronically as it is not possible to add a wet signature to an E-Bill. Tab 11 is the traditional certificates page that we are all familiar with.

Practically, how does it work?

As for the content of the Bill, this remains largely unchanged, however it is presented in a different way. Tab 6 of the Bill shows all work undertaken collectively in various columns, collating the previous documents schedule and party work that we are used to seeing separately. This can look quite overwhelming, particularly if it’s a bigger case, but the filter options will assist the Costs Officer in narrowing down what exactly they are looking for. One addition within the E-Bill is the requirement for an activity code to be selected for each entry of time by the Draftsperson, allowing the Costs Officer to filter by that activity on assessment to see alternative filters of the work undertaken (for example, they may wish to filter by ‘travel’ allowing them to see the overall cost of travel incurred, regardless of which party it is accrued against). A table of what these activities are is in Tab 16. The E-Bill is much more flexible than the previous Bill in this regard, as there are multiple categories which could be used to filter specific work types or parties, allowing the Costs Officer to undertake a more robust assessment.

The E-Bill is colour coded in columns, separating the columns of the work as claimed and which columns are exclusively for the Costs Officer’s use. The blue columns (time allowed, fee earner allowed and fee earner rate allowed) can be edited by the Costs Officer as they see fit. Again, the transparent nature of the E-Bill will then clearly show what was previously claimed against what was allowed by the Costs Officer in those different columns. Any cells edited by the Costs Officer are then highlighted in yellow, clearly showing where the Bill has been reduced or changed.

Once the Costs Officer has undertaken their assessment, this auto-populates a Bill breakdown in Tab 7 showing what was claimed and what was allowed as a whole. There is also space here for the Costs Officer to give any directions, which are easily missed in the current Bill of Costs as they are not always legible.

The E-Bill then goes on to provide various summaries, mainly to allow other ways of filtering depending on what the Costs Officer wants to review and/or what the firm wants to see has been allowed. It provides an activity summary (Tab 8), a communications summary which is similar to the traditional layout of the standard Bill of Costs broken down by parties (Tab 9), and a fee earner grade summary (Tab 10) which may assist some firms with Billing after assessment.

Tab 12 of the E-Bill is the traditional Bill summary required by the SCCO after assessment when requesting the Final Costs Certificate. Again, this is auto-populated with the costs allowed following assessment, avoiding the usual administrative work.

Tab 13 is the traditional Final Costs Certificate and again, this is auto-populated with the costs.

How will this impact COP practitioners?

The E-Bill will make life easier for the Deputy and their team. The assessment will be returned quicker, the comments will be legible and the assessment is automatically recalculated, dramatically reducing the administrative burden. It will take more time for the Draftsperson to prepare the Bill as a result of the activity breakdown required.

Deputies must be mindful of their OPG105 estimates (if a general management case) as the Costs Officer will have greater visibility of the costs incurred compared with what was predicted, which could potentially result in sizeable reductions to the Bill if the estimate was incorrect and not revised during the year.

Ultimately, the introduction of the COP E-Bill will be positive for professional Deputies and the change should be embraced by all. If you have any further questions regarding this article or the E-Bill, please contact Stephanie Kaye directly.

Summary of the updates from the SCCO regarding COP Assessment Delays

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Yesterday, the SCCO have released a further notice in relation to the ongoing delays with COP assessments.

In summary, turnaround is as follows at present:

  • Bills received at the beginning of March are currently being assessed
  • The Admin Team are processing the return of assessed bills received back from the Costs Officers in the first week of August
  • New filings for assessment received from the second week of August are being considered for acceptance/rejection
  • Certificate request filings received in the second week of August are currently being reviewed and actioned

Please see the link below for the full notice released:

Notice-to-COP-Customers-22-August-2022Download

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

NEW update from the SCCO on COP assessment delays

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Yesterday, the SCCO have released a further notice in relation to the ongoing delays with COP assessments.

In summary, turnaround is as follows at present:

  • Bills received at the mid-December 2021 are currently being assessed
  • The Admin Team are processing the return of assessed bills received back from the Costs Officers in the first week of June
  • New filings for assessment received from the first week of May are being considered for acceptance/rejection
  • Certificate request filings received in the last week of May are currently being reviewed and actioned

Please see the link below for the full notice released:

Notice-to-COP-customers-13-June-2022Download

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

Further notice from the SCCO on COP assessment delays is now available

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On 22 March, the SCCO released a further notice in relation to the ongoing delays with assessments.

In summary, turnaround at present is as follows:

  • Costs Officers are currently being assigned bills of costs received in or after late September.
  • The Admin Team are processing the return of assessed bills received back from the Cost Officers in the last week of February.
  • New filings for assessment received in late January are being considered.
  • Certificate request filings received in mid-March are being received and actioned as acknowledgement of the requests to receive payment before the end of the financial year.

The SCCO have requested that enquiries about the progress of bills which supported paperwork was submitted around or after late September and any e-filings that have not been accepted/rejected that were submitted after late January are limited to aid in the efforts to focus on the reduction of the backlog.

Please see the link below for the full notice released:

Notice-to-COP-customers-21-March-2022-SCCODownload

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

The Indemnity Principle in Court of Protection Costs – Why It Is So Crucial

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Introduction

To be defined, the indemnity principle states that, “[…] a successful party cannot recover from an unsuccessful party more by way of costs than the successful party is liable to pay his or her legal representatives.” (The Senior Courts Cost Office Guide, 2021, pg. 21.) When this principle is applied to Court of Protection costs, it posits that a Deputy cannot claim costs higher than that which they have stated in their client care letter or retainer letter.

The Protected Party is not liable to pay costs higher than those that have been stated in such documents, unless evidence is shown that the Deputy has authority to claim higher rates. The earliest form of the indemnity principle can be seen in the judgement from the case of Harold v Smith [1860] 5 H & N 381.

Over recent years, the hourly guideline rates have been in flux, as we have now landed in the era of 2021 Guideline Hourly Rates. In a climate of changing rates, it is crucial for solicitors to evidence that they have not breached the indemnity principle and it is key for Cost Officer’s to ensure the principle is being maintained. Upon having costs assessed, it is extremely common to see Cost Officer’s requesting evidence the principle has not been breached.

This blog aims to outline why this is so important for a Protected Party and to give a brief overview of the key aspects of the indemnity principle in relation to the Court of Protection.

Standard Basis/Indemnity Basis

Costs in Court of Protection are assessed on the Standard Basis, or Deputies may take fixed costs as outlined in Practice Direction 19B – a supplementary material for the Court of Protection Rules 2017. The Standard Basis simply means that in such instances, a costs judge will permit costs to be recovered that are crucially, proportionate, as well as being both reasonable in amount and reasonably incurred. (See the Court of Protection Rules Section 44.3 for further information.) This basis ensures that costs incurred for a Protected Party’s management period will always be appropriate and justified.

If costs were assessed on the indemnity basis (where the notion of proportionality is absent), Protected Parties would be at risk of being taken advantage of, since they would lack the capacity to argue the costs claimed for work carried out were unreasonable. However, the Mental Capacity Act 2005 negates this possibility, as after it was enacted all Court of Protection Costs were assessed on the standard basis.

Breaching the Indemnity Principle

As already alluded to, the common way the indemnity principle may be breached is through the absence of a Client Care Letter or Retainer Letter. A Client Care Letter is typically the first correspondence a client or Protected Party may receive from the Solicitors once the Court has appointed a Deputy. The letter will outline information regarding the services being provided and perhaps most importantly, the cost of legal services in the form of hourly rates. A retainer letter will function the same way, declaring the costs of the Solicitor’s services set out as hourly rates.

A breach of the indemnity principle may occur where a Deputy has claimed rates for work undertaken that they have not outlined to the client. For example, if one were to charge £200.00 an hour in the bill of costs, but initially informed the Protected Party the hourly rate was £100.00, this a breach of the indemnity principle – the Protected Party is liable to pay an hourly rate of £100.00, but the Deputy is attempting to recover higher costs of £200.00 which were not disclosed to the Protected Party.

Where a Deputy chooses to have their costs assessed, a Cost Officer will review the bill of costs to assess the costs that are recoverable for the Deputy. The Client Care Letter or Retainer Letter must be provided to the Senior Courts Cost Office alongside the bill of costs to evidence that the Deputy has authority to claim such rates. If a Cost Officer cannot locate such evidence, they will subsequently reduce the hourly rate of the work undertaken to that which may have previously been claimed, or assess the bill on the basis that the Deputy will provide such evidence upon applying for a Final Costs Certificate.

It is highly unlikely to see Deputies breaching the indemnity principle intentionally. To effectively comply with the SRA Code of Conduct, Solicitors will always prepare a Client Care Letter outlining their work and rates. The problem arises when this is not presented to the Cost Officer along with the bill and thus upon assessment, the Cost Officer does not know the rates at which the Deputy can claim and consequently reduces them.

Problems in Changing Rates

If the hourly rates for Court of Protection Costs were fixed, evidencing that the indemnity principle has not been breached would be much simpler. However, considering we are now into the third set of hourly rates Solicitors can claim, this complicates matters. For a Deputy to claim new rates that come into force, they have an obligation to inform the Protected Party that the rates have changed; by way of updating their Client Care Letter.

It can often be seen on assessment that Solicitors fail to amend the Client Care Letter before the change in rates comes into action, in which case it becomes difficult to claim the higher rates from when they may have commenced.

To illustrate, if hypothetical higher rates came into effect on 30 September 2022, but a Client Care Letter was not updated until 30 October 2022, it would be a breach of the indemnity principle to claim these higher rates from 30 September 2022, because the Protected Party is only liable to pay the costs that have been stated, which up until 30 October 2022, were different rates. Regardless of when the new rates may have came in, if the Protected Party was not aware of such rates, they are not required to pay costs higher than those which have been stated. Therefore, it is essential for Solicitors to amend their Client Care Letters in a timely manner, to ensure they can maximise new rates when they come into force.

Final Remarks – Protecting the Client

From what I have explained in this blog, it should be clear that the indemnity principle serves to Protect a Protected Party. The principle ensures the costs incurred by Deputy’s are always fair and balanced. Recovering costs in Court of Protection work may seem complicated at times, especially when there has been several changes to the hourly rates. However, it is important that the necessary measures remain in place to ensure Protected Party’s pay costs that are fair and proportionate to the work carried out.

For more information on what has been discussed, I invite you to consider the following resources:

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

Protecting The Vulnerable Whilst Promoting Autonomy – The Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527

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Background

The case was brought forward to the Court of Appeal from the Court of Protection after Mr Justice Hayden sitting in the Court of Protection made the decision that care workers would not commit a criminal offence under section 39 of the Sexual Offences Act 2003, were they to arrange for a man aged 27 (hereafter known as “C”) to visit a sex worker in circumstances where he had capacity to consent to sexual relations and to also decide to have contact with a sex worker; with the arrangements not being made by himself. 

Preliminaries

C had been diagnosed with Klinefelter Syndrome (XXY syndrome). This resulted in developmental delays and social communication difficulties. As such, C required a large amount of assistance with independent living. C spoke with his Care Act advocate about having sexual activity with a sex worker, who then liaised with C’s social worker. In turn, the social worker raised this matter with the Local Authority and proceedings commenced addressing the lawfulness of such contact. 

The key distinction was that the concern was not whether the care workers were acting within the best interests of C and acting to make C’s wishes come to fruition, but rather whether the care workers would “cause” C to engage in sexual activity. This would directly breach Section 39 of the Sexual Offences Act 2003 and the care workers would be committing an offence were this the case. However, in brief, the judge concluded the care workers would not be doing so.

Hayden J dealt with this question and made decision which is the subject of appeal by the Secretary of State for Justice who had been added as a respondent.

Conclusions on Section 39 of the 2003 Act

Hayden J accepted the submission that the care workers arranging for the Protected Party to visit a sex worker would not amount to “causing the Protected Party” to engage in sexual activity. His reasoning being that the central Philosophy of the 2003 Act as being to “protect those where the relationship itself elevates vulnerability” along with one of the aims of the 2003 Act being “to empower, liberate and promote the autonomy of those with mental disorders.”

Most notably, the activity was desired by the Protected Party who did have capacity to decide whether to have sex or not. Section 39 aims to protect those whose autonomy could be oppressed, but importantly, not to protect them from themselves – this would contradict the aim of promoting autonomy in those with mental disorders. There would be no abuse by the care worker who had facilitated C’s choice because the actions would have been calculated to voice C’s autonomy within the sphere of sexual relations.

The proceedings of this case were regarded as a steppingstone for a further envisaged care plan regarding C’s wishes. However, the position of the Clinical Commission Group remains to be that the risks to both C and the sex worker may be too great to warrant the potential care plan facilitating this.

Grounds of Appeal

The Secretary of State advanced three grounds of appeal. (1) The judge misinterpreted section 39 of the 2003 act. (2) To sanction the use of a sex worker is contrary to public policy and (3) the judge failed to conclude that articles 8 and 14 of the Convention required his favoured interpretation.

Final Judgements and Conclusions

It was declared that despite The Secretary of State advancing grounds of appeal, the proceedings would be appealed on the basis that arranging the services of a sex worker would place the care workers in considerable risk of committing an offence under section 39 of the 2003 Act.

Lady Justice King reasoned in line with this, drawing on the Mental Capacity Act 2005: “achieving autonomy for an incapacitated adult lies at the heart of the Mental Capacity Act 2005”. It is not the role of the Court of Protection to endorse an act that would be unlawful, yet under a reading of the statute without interpretation this would be the case.

Moreover, Lord Justice Baker agreed and recommended that an appeal be allowed, stating that the powers to decide whether a proposed course of action would be criminal does not exist within the scope of the Court of Protection. Lord Justice Baker went on to highlight the risk it would place the care worker sin if this course of action were followed, in line with Lord Chief Justice.

Remarks:

Overall, this case serves to highlight the scope of law for the Court of Protection as well as raise an interesting discussion into the limits of best interests decisions for Protected Parties. Furthermore, the case highlights the core aims of both the Sexual Offences Act 2003 and the Mental Capacity Act 2005, that being, to protect the vulnerable whilst at the same time allowing for empowerment and the promotion of autonomy.

The full detail of this judgement can be found here.

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

Will COP hearings continue remotely in a post-Covid world?

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Following the announcement on the 10 June 2021 from the President of the Family Division, Sir Andrew McFarlane, a two-week rapid consultation on remote, hybrid and in-person hearings within the family and Court of Protection (COP) systems has taken place and ended on 27 June 2021.

This was the third survey looking into the impact on hearings following the change of location and format. Unlike the previous two, this was a shorter survey and focused questions on which parts of working remotely should be retained, any further issues that occurred and what best actions could be taken to avoid these. Following the relaxation of some lockdown rules, this survey also looked at the experience of attending court in person.

The survey was completed by the Nuffield Family Justice Observatory (NFJO), an independent organisation which is committed to improving life for children and families by putting data and evidence at the heart of family justice system. The NFJO has gathered evidence from families with children and all professionals working in the family justice system, including judges, barristers, solicitors, Cafcass workers, court staff and social workers and the findings of this will be available for the President’s Conference in July.

We will report sooner on the topic as soon as more information is available about in-person hearings in the future.

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

Joshua Sidding is a Paralegal in the Court of Protection Team of the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at Joshua.sidding@clarionsolicitors.com and 0113 222 3245