Delays In Bringing Applications in the Court of Protection

The issue of delays in bringing applications on behalf of P within the Court of Protection was recently outlined in the case Cardiff & Vale University Health Board v P [2020] EWCOP 8

The focus of the case was in reference to the dental treatment for P. P was a severely autistic 17 year old with very little ability to communicate directly.

P was required to undergo a CT scan in January 2019 to ascertain if he required any dental treatment. The CT scan shown that P had sustained decay which had impacted on his wisdom teeth.

Following on from this, P’s parents observed that P began banging his head against a wall in October 2019. They believed this to be a response to the dental pain he was suffering, however P was unable to communicate this directly. As P’s behaviour deteriorated, P’s parents were concerned that P could have been suffering with concussion, or sustained a head injury such as a fractured skull as a result of him banging his head against walls.

A main issue with the case was that the application to Court in respect of P’s requirement of dental treatment was only made on 20th February 2020. In his judgement, Hayden J expressed his concerns at the delays in bringing the application. He stated:

‘This is the second time in the last few months when I have heard a case which reveals that a vulnerable person has fallen through the net the system tries to provide. Here, P has been permitted to suffer avoidably for many months. His needs, it requires to be said, have simply not been met. The philosophy of the Mental Capacity Act 2005 is to enable those who are vulnerable in consequence of incapacity to have equality of opportunity with their capacious co-evals. Here, P’s capacity, his inability to communicate his distress, led to a failure to provide him with appropriate medical treatment’.

P should not have been made to wait several months for an application to be made, particularly given the significant pain he was clearly in, and his inability to communicate the same to anyone.

 

Court of Protection Costs – What happens after the death of P?

Upon the death of the Protected Party, the Deputy’s authority under the First General Order seizes with immediate effect. Once the matter is transferred to the Executors of the Estate, the Deputy can agree their costs directly without a need for assessment, if possible, which will generally save the Protected Party money overall, without the need for the assessment process. If this is not possible, it may be necessary to apply to the Court for the costs to be assessed.

The interim work and the costs of the Deputy bringing the matter to a conclusion following the death of the Protected Party have been questioned over the years, as there has been very little guidance on this issue. In many cases, there is reasonable and necessary work involved in preparing the case for the Executor to thereafter deal with the Estate, however, what is a reasonable sum for this work?

Following correspondence with the Senior Courts Costs Office (SCCO), the following change has been made to the assessment procedure with immediate effect. The SCCO may now allow ‘reasonable costs’ (post death of the Protected Party) in order that the Deputy can finalise his/her involvement in the matter. The SCCO have indicated that such costs should not be expected to exceed £1,500.00 +VAT.

As a result, where it appears that the post-death profit costs exceed £1,500.00 +VAT, the Deputy will require the authority to assess that part of the Bill of Costs. Costs below this amount are likely to be deemed reasonable on assessment but are, of course, subject to the usual assessment process and will be allowed based on what was reasonable, necessary and proportionate in the circumstances.

If you have any queries relating to post-death costs in Court of Protection cases, please do not hesitate to contact Stephanie Kaye.

The Application for permission to Deprive the Protected Party (a minor) of his Liberty in circumstances where there was no secure accommodation available.

This was an application by a Local Authority in relation to a young boy; the Protected Party, who is now 13. He previously lived with his grandmother under a Special Guardianship Order, but became the subject of a full care Order in December 2015. The Protected Party had displayed a desperate history and a catalogue of very seriously uncontrolled behaviour, damaging to both himself and others. As a result, he had been placed in no less than six different residential settings. Each setting ultimately broke down, sometimes very rapidly, as the staff there were simply unable to manage his behaviour and keep him safe.

The Local Authority would have wished by June 2017 to place the Protected Party in an approved secure accommodation placement. Such placements are very scarce and they were unable to find one. So, they hoped to place him in a unit which was not an approved secure accommodation at X. Their plan was, however, that within X he should, if necessary, be subject to considerable restraint, including physical restraint, in order to keep him safe and prevent him from absconding, as he had done on occasions in the past.

Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as Secure Accommodation Orders. Such Orders may be made and, indeed, frequently are made by Courts, including Courts composed of lay magistrates. It is not necessary to apply to the High Court for a Secure Accommodation Order, however, as no approved secure accommodation was available, the Local Authority required the authorisation of a Court for the inevitable Deprivation of Liberty of the Protected Party. Mr Justice Holman expressed his concern over the way in which Applications of this sort were handled, saying that “the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children. This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.” The Judge Ordered that the child now be joined as a party to these proceedings and Cafcass must allocate a Guardian to act on his behalf. A further hearing was ordered to be fixed in one month. It was stated that the Guardian must file and serve an interim report shortly before that hearing. Further, in view of the gravity of the subject matter and the age of the child, the Judge Ordered that he must be enabled to attend the hearing if he expresses a wish to do so unless the Guardian thought it would be damaging to the health, wellbeing or emotional stability of the child to do so. In his view it was very important that in these situations, which in plain language involve a child being ‘locked up’, the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so.

If you have any queries, please do not hesitate to contact Georgia Clarke (georgia.clarke@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.