Tag: Capacity in Court of Protection

No Costs Recovery in Failed Deputyship Case Where P Had Capacity

maidiedeightonLeave a comment

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.

CT v London Borough of Lambeth & North Central London ICB ([2025] EWCOP 6)

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In the recent case of CT v London Borough of Lambeth & North Central London ICB ([2025] EWCOP 6), the Court of Protection addressed issues concerning mental capacity assessments, particularly the role of ‘insight’ into one’s mental health conditions.

Background

CT, a man in his 50s, sustained a head injury at age 12, leading to epilepsy and cognitive impairments. Despite being medically fit for discharge from the hospital, he faced potential homelessness due to a lack of suitable placements. On September 5 2024, a Judge concluded that CT lacked the capacity to make decisions regarding his residence and care, resulting in his continued detention in the hospital under a Deprivation of Liberty authorisation. This decision was challenged, leading to the appeal.

Legal Issues

The appeal focused on whether the initial capacity assessment inappropriately conflated CT’s mental impairments with his decision-making abilities. Specifically, it questioned the inclusion of CT’s lack of ‘insight’ into his psychiatric diagnoses as a factor in determining his capacity. The Court examined whether the Statutory criteria under the Mental Capacity Act 2005 were correctly applied, emphasizing that ‘insight’ is a clinical concept separate from the legal assessment of capacity.

Judgment

Mrs. Justice Theis allowed the appeal, finding that the lower Court had set an excessively high standard by requiring CT to have insight into his mental impairments as part of the capacity assessment. The Judgement highlighted that capacity assessments must adhere strictly to the Statutory framework of the Mental Capacity Act, avoiding the conflation of clinical insight with legal capacity.

Implications

This case reinforces the necessity for precise application of the Mental Capacity Act in capacity assessments, ensuring that individuals are not unjustly deprived of their decision-making rights based on their mental impairments. It highlights the importance of distinguishing between clinical insight and legal capacity.

The Judgement also provides a checklist to assist in conducting proper capacity assessments, emphasizing adherence to Statutory criteria without additional considerations of clinical insight.

This ruling serves as a reminder of the legal principles governing capacity assessments and the need for meticulous application to uphold the rights of those with mental impairments.

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

Can the police gain access to the psychological report undertaken on the protected party?

Casey McGregorLeave a comment

In the case of AB (Court of Protection: Police Disclosure) [2019] EWCOP 66, an application was put forward by the police force in order to gain access to a psychological report, which was undertaken on the protected party, who is the subject of proceedings in the Court of Protection. The purpose of this report was to inform the police about the protected party’s capacity to access internet and social media. The Official Solicitor acted as the protected party’s litigation friend and opposed the application by the police force for disclosure of the reports.

The protected party was assessed by a psychologist on various occasions. Three reports were prepared dated 16 July 2018, 8 January 2019, and 23 May 2019. The first two reports related solely to the protected party’s capacity to conduct litigation and to make decisions about his residence. The third report addressed the issue of the protected party’s capacity to access the internet and social media. Within this report, the psychologist advised that the protected party did in fact have capacity to access the internet and social media.

The police force have been investigating alleged offences committed by the protected party in 2017 and 2018. The offences related to category C images of children.

It was noted that the third report did not deal with the question of whether the protected party had capacity on this issue in 2017 and 2018. As a result, the judge concluded that the third report contained nothing of relevance to the police investigation.

The judgement confirmed that the judge would only consider disclosing the report to the police force if the weight to be given to the public interest was so great as to outweigh the consideration of honesty by the protected party in the Court of Protection proceedings and therefore the application was refused.

Please contact Casey McGregor in our Court of Protection Costs team for more information at casey.mcgregor@clarionsolicitors.com

To what extent should the Court consider the Protected Party’s capacity (and wishes) to consent to sexual relations and contraception?

Stephanie KayeLeave a comment

The Protected Party is a young woman with learning disabilities. She previously lived with her family but took part in a number of social and community activities. Concerns were raised, by reason, of her learning difficulties. She was vulnerable to sexual exploitation, pregnancy and sexually transmitted diseases. There is evidence that she was sexually assaulted, and it was reported that the police expressed concern that the Protected Party should not be unsupervised as she appeared to be a target for sexual exploitation.

The Protected Party has two children, who are in the care of her family. A few years ago, an application was made to the court for an order that the Protected Party be sterilised. This application was aborted and the decision was made to consider a long term method of contraception instead. The other main issue was the concerns regarding the Protected Party’s protection against sexual exploitation.

The expert evidence of a consultant psychiatrist was that the Protected Party lacked mental capacity to consent to sexual relations, to consent to contraceptive treatment and to litigate. It was also recommended that the Protected Party should be supervised at all times when in the presence of sexually active men. She received further education about sexual matters and the Protected Party was to undergo the insertion under general anaesthetic of a copper inter-uterine device (IUD). It was advised that the Protected Party would be sedated, and the IUD would be inserted without her knowledge. This contraception would last for 10 years.

During a lengthy hearing in 2012, Parker J made an order in which, having declared that the Protected Party lacked capacity to litigate and to make decisions with regard to contraceptive treatment, she further declared that it was lawful for the Protected Party (with or without her agreement) to undergo the insertion of a copper coil IUD, to receive a Depo-Provera contraceptive injection, to undergo a full sexual health screen, and to be subject to proportionate restraint if necessary, including sedation. Following the hearing, the Protected Party underwent the operation for the insertion of the IUD. No reasoned judgment was given at the hearing in 2012 and, in the event, no further hearing took place for several years.

In 2016, the Local Authority made an application to restore the proceedings, to revisit the question of the Protected Party’s capacity to engage in sexual relations. The proceedings were to assess and evaluate the clinical risks to the Protected Party’s health presented to her by any further pregnancy; to revisit the Protected Party’s capacity to consent to contraceptive treatment; to re-evaluate the options for Protected Party’s contraceptive treatment in view of the fact that the IUD inserted in 2012 has a life of approximately ten years; to reassess the best interests decision not to inform her of the fact of the insertion of the IUD in the light of any improvement of her understanding; and to authorise her Deprivation of her Liberty at her placement.

Following the preparation of a report on future care support by the CHT, it was agreed that the IUD should remain in situ until the end of its natural life. A statement from the social worker set out four options:

(1) option A(i) – the IUD remains in place, the Protected Party is not informed of its existence, and care and supervision remains at its current level;

(2) option A (ii) – the IUD remains in place, the Protected Party is not informed of its existence, but the level of care and supervision is reduced;

(3) option B – the IUD is removed without informing the Protected Party and the risk of sexual exploitation is managed “through social means” with the current level of care and supervision;

(4) option C – the IUD remains in place and the Protected Party is informed of this.

Having analysed the benefits and disadvantages of these options, the social worker decided option 2 was in the Protected Party’s best interests.

At the hearing in 2017, the three principal issues between the parties were as follows:

(1) Does the Protected Party have capacity to consent to sexual relations?

(2) If she does, what steps should be authorised to facilitate the relationship between the Protected Party and her boyfriend, or between her and any other person with whom she wished to have a sexual relationship?

(3) Is the proposed relaxation in supervision in her best interests? In addition, however, it was thought appropriate for the court to review wider issues concerning her treatment, including the question of whether it should continue to be covert or whether the Protected Party should be informed about it.

In addition, however, it was thought appropriate for the court to review wider issues concerning her treatment, including the question of whether it should continue to be covert or whether the Protected Party should be informed about it. As there remain a number of details within the draft order which the parties have been unable to agree, it was necessary for the judge to make an order outlining the best interests of the Protected Party in relation to her capacity – general principles, capacity other than sexual relations, her capacity to consent to sexual relations, contraception, covert treatment and her sexual relationships and supervision.

In this case, there are a number of arguments against retaining the IUD. It is a clear infringement of the Protected Party’s human rights and freedom. Furthermore, this infringement has been brought about without her knowledge and without providing her with any opportunity to express her wishes and feelings. In her oral evidence, the Care Agency manager said that she thought that the Protected Party would not want to keep the IUD if asked. Secondly, although the Protected has not been expressly asked about her wishes and feelings concerning contraception, she has consistently said that she does not want to have a baby at this stage. It was necessary to consider the psychological harm that the Protected Party may encounter if; the IUD was removed and she became pregnant again or if the IUD was removed without sedation. In this instance, it was decided that it is in the Protected Party’s best interests for the IUD to remain in place until the end of its normal ten-year span. At that point, further careful consideration will have to be given as to what contraceptive treatment.

It was directed for the level of sexual supervision of the Protected Party and her boyfriend should be relaxed slightly and reviewed at a further hearing once this has been considered in more depth. Finally, the provisions of the order relating to the IUD plainly involve a Deprivation of Liberty. A clause was included within the order that such a deprivation is lawful.

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