Instructing a Draftsman – what we need

Court of Protection solicitors rely upon Court Assessment for their cashflow, so it is important that the assessment process is completed speedily. Follow these tips on what to send to your Draftsman to keep your turnaround times as low as possible.

Joshua Sidding is a Paralegal in the Clarion Costs Department. You can contact him on 0113 222 3245 or by email to Joshua.Sidding@clarionsolicitors.com.

Best Practice for file keeping in the Court of Protection

File keeping can have a big impact on the assessment of a Deputy’s file by the Senior Courts Costs Office (SCCO). Stephanie Kaye looks at 5 key points about file keeping in the Court of Protection and how to maximise costs recovery.

Stephanie Kaye is a Senior Associate in the Clarion Costs Department, and heads the Court of Protection Costs team. You can contact her on 0113 336 3402 or by email at stephanie.kaye@clarionsolicitors.com. 

COVID-19 – Court of Protection

The latest guidance from the government on how to respond to COVID-19 will clearly have an impact on the operation of all Courts in every jurisdiction. It is not realistic to assume that it will be business as usual in any jurisdiction, but it is of vital importance that the administration of justice does not grind to a halt. The global position of COVID-19 is changing on a daily basis. Following this guidance, it is said that there is likely to be an increase in remote hearings as an alternative to visiting the Court itself.

What the guidance says

Mr Justice Hayden, the Vice President of the Court of Protection, has issued two sets of guidance considering the operational situation of the Court of Protection and suggesting practical solutions to some current issues arising as a result of Covid-19:
• Visits to P by Judges and Legal Advisers – published on 13 March 2020
• Additional Guidance for Judges and practitioners arising from Covid-19 – published on 18 March 2020.

First Skype Hearing in the Court of Protection

An entire trial is being conducted over Skype to ensure the legal system continues through the uncertain times of COVID-19 Coronavirus. The Lord Chief Justice provided a statement outlining that “In both the civil and family Courts, there could be the possible move to telephone and video hearings to tackle the current COVID-19 outbreak. Any legal impediments will be dealt with”.

Visits to P

On Tuesday 17 March 2020, Mr Justice Hayden, Vice President of the Court of Protection, issued guidance on visits to P. The guidance provides that “visits should only be made to P where that is assessed as absolutely necessary”. Further, “alternative arrangements should always be considered first, such as telephone, FaceTime and Skype conferencing”. In addition, “Visits to care homes are to be strongly discouraged”. The guidance has been widely published, with the assistance of the Judicial Office, ad has been made available both to the Court of Protection Bar Association and the Court of Protection Practitioners Association.

Attendance at Court

This Court is charged with responsibility for a cohort of people who are in the eye of the storm. In order to properly protect them, there will be a number of issues which will require urgent resolution and in circumstances where a range of P’s fundamental rights and freedoms risk being compromised. In light of the updated government advice from PHE, it is likely that, for the foreseeable future, some hearings will need to be adjourned or to take place remotely.

• Hearings with time estimates of 2 hours or less will be conducted by telephone. The applicant should make the necessary arrangements as set out in the COPGN5;
• Hearings with time estimate of more than 2 hours will, in principle, proceed unless and until further guidance or specific application in the case. This will be decided by the judge hearing the case, by way of a case-by-case judgement;
• It is likely that there will be an increase in the number of hearings being conducted remotely either in whole or in part.
• Where hearings are to be conducted by telephone or by skype, the court listings will be published in advance as usual and any updated guidance will be made public.

Common Questions relating to the Court of Protection:

Q) How should practitioners proceed in respect of documents which require a signature by the Deputy, when they are in self isolation?
A) Until further notice, the Court of Protection can accept electronic signatures. Alternatively, where documents are submitted vis email, a photo of the Deputy’s signature could be attached.

Q) The Mental Capacity Act 2005 and Court of Protection require P to be personally notified on various matters. How can this be substituted in circumstances, for example when P is in lockdown?
A) Arrangements could be made by the applicant by way of an application for notification “by a duly appointed person by an applicant”, (Rule 7.2(1(c)) such as, care home staff. Alternatively, a COP9 application may be appropriate.

Q) Can capacity assessments be undertaken by way of a video, when P is happy to do so and can be seen alone?
A) The assessor will need to make clear the basis of the assessment, whether such evidence is sufficient would be determined on a day-to-day basis. There would need to be careful consideration given to P being adequately supported. Consideration is essential and needs to be addressed in the best interests of P.

Q) Will the Court accept electronic bundles?
A) Currently the Court do not have the computer software to accept any electronic bundles. The Court are able to accept documentation by email. It would be extremely helpful if documents could be scanned separately, as large bundles would slow the system down.

Q) In relation to the property and financial affairs appointment of a Professional Deputy, who has filed a COP4, would it be possible to issue an emergency interim Order to enable financial management work to be undertaken pending the Court’s determination of appointment on a long-term basis?
A) Interim orders of short duration would indeed be possible, but the Court would still need to be satisfied for the purposes of section 48 MCA that there is “reason to believe” that P lacks capacity, and the range of authorities will be more limited. If applicants really are not able to meet the usual requirements by other means, it would be helpful if they specifically identify any issues which really need to be addressed on an interim basis.

The key messages to be taken from the current situation are:

• Hearings of less than 2 hours estimate will proceed by telephone, to be arranged by the applicant and hearings of a longer period will proceed, subject to any application in the particular case. This approach will be reviewed frequently.
• All practitioners must consider the range of options open by use of Skype, telephone conferencing etc.
• There should be an invigorated determination to move forward at directions hearings by agreement wherever possible, but without compromising the interests of the client. Where this is not possible, the parties should seek a telephone or Skype hearing.
• The pressure on Court staff is barely sustainable. The guidance emphasises that, however committed and creative the judges and lawyers may be, the Court process relies very heavily on the availability of a very small team of administrative support.
• The Court is presently only able to use Skype in limited circumstances, but this is being considered further. Separate practical guidance will be issued shortly for use of Skype/Business Skype in the Court where possible.

This is clearly a fast-moving situation and the guidance will be reviewed as circumstances develop. Justice Hayden plans to provide regular updates which we will circulate as soon as they are issued.

For further information or guidance regarding this situation, please contact Ellie Howard-Taylor.

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.

 

Levels of contact in Court of Protection cases – what is reasonable?

The Case of Trudy Samler 2001 considers the level of costs incurred regarding contact and whether this is reasonable. The case looks into whether these costs are instigated by the Protected Party and whether the Deputy should be expected to be paid for them. 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. The Office of the Public Guardian and the Senior Court Costs Office advise that only one home visit per year is reasonable in routine general management costs unless there is reasonable justification for more attendances. Deputies should be prepared to give reason if several attendances have occurred during one management period.

The case concerned a young lady who suffered severe brain injuries who was subsequently awarded substantial damages. A professional Deputy was appointed by the Court to manager her property and financial affairs. The Deputy’s bill of costs was lodged on October 2000 and provisionally assessed by Costs Officer Edwards on 21 November 2000. By way of a letter dated January 2001, the Deputy did not accept the provisional assessment and set out in numbered paragraphs the reasons relied on in support of the restoration of the costs, which had been disallowed on assessment. On 13 February 2001, a hearing took place and some of the reasonable costs were restored. However, the Deputy still felt that some of the other items disallowed could be justified and restored and so by way of a letter dated 23 February 2001, sought the guidance of Mr R Stone at the Public Trust Office.

The letter included five questions to be referred to the Master of the Court of Protection. The appeal related to work done by the Deputy in relation to three interviews with the Protected Party and four meetings at St Andrews Hospital. An allowance had been made for two meetings, which in total were equal to four hours. At the hearing, the Deputy gave background to the matter and explained some of the attendance notes of the meetings that were in question.

The five numbered questions are set out below:

  1. Can the Deputy be paid for speaking to both carers and case managers to talk about the care and rehabilitation regime and the Protected Party’s well being and needs, assuming that the time spent is not excessive?

Master O’Hare advised that in his view, the Deputy can be paid if the issues discussed are substantial, if there is no alternate person to speak for the Protected Party and if the Protected Party’s estate is large enough to justify such expense.

  • Can the Deputy be paid for all contact with the Protected Party instigated by the Protected Party irrespective of the matters being raised?

Master O’Hare advised that his answer would be no. He confirmed that the Deputy should strive to minimise and avoid necessary expense. Master O’Hare further confirmed that he accepts that each case depends on its own circumstances.

  • Can the Deputy be paid for discussions with the family about the care requirements, existing care regimes, possibility for changes in the future?

Master O’Hare confirmed that the answer he gave to question one seemed to be appropriate for this question.

  • Can the Deputy be paid for discussions with the Protected Party, family, carers and case managers where there are difficulties with the care regime if the Deputy believes that the current regime is in the Protected Party’s best interests or would be subject to proper amendment?

Master O’Hare advised that his answer to question one and 3 apply equally here.

  • Can the Deputy be paid for quarterly visits to the Protected Party to deal with reporting on budgeting, asset performance, income and expenditure?

Master O’Hare advised that the practice for many years has been that it is easy for a Deputy to justify one visit to the Protected Party each year but that each succeeding visit must be separately justified. He also confirmed that the questions that usually arise in respect of this are:

  • Could the subject matter of the later visit have been dealt with at the earlier one, or postponed to a later one?
  • Could the progress made by the meeting have been achieved more economically by way of a telephone call or correspondence?
  • Was the Protected Party and his or her family if any (meaning here any adult relatives with whom he or she resides or in whose care he or she is) warned that the costs of such meeting and the costs of time spent travelling and travel expenses, will all be charged?
  • If the meeting involves time spent travelling by the Deputy, could this travel have been arranged so that the cost of it could be apportioned with other cases handled by the Deputy?

Master O’Hare advised that each case depends on its circumstances and with some Protected Party’s, the number of visits in the early months might be higher than the number of visits once a reasonable pattern has been established.

Electronic Filing – Court of Protection Cases

As of today, the pilot begins for voluntary electronic filing at the Senior Courts Costs Office. To request an assessment, the bill of costs, the N258B and the authority to assess are to be forwarded through e-filing. The papers are to be sent as normal in the post/DX for the current time. This process becomes mandatory on 20 January 2020.

This is a big change in costs and particularly regarding COP costs, whereby it was expected that electronic filing would not apply. We have had confirmation from the SCCO that this does apply to COP cases and we recommend that all practitioners begin doing this going forward before the process becomes mandatory.

 The portal link can be found here: https://efile.cefile-app.com/login

 Information about existing FAQ’s following the E-Filing in other Courts can be found here: https://leedslawsociety.org.uk/wp-content/uploads/2019/04/E-Filing-Frequently-Asked-Questions.pdf

The link to the government website regarding CE-Filing which includes step by step guides can be found here: https://www.gov.uk/guidance/ce-file-system-information-and-support-advice

 If you have any queries, please contact Stephanie Kaye on 0113 336 3402 or stephanie.kaye@clarionsolicitors.com