Departure from the General Rule of Costs in the Court of Protection due to ‘Disorganised Thinking, Planning and Management’

There has been a departure from the general rules on costs within the Court of Protection in the recent case of London Borough of Lambeth v MCS (by her litigation friend) and Anor (2018).

The Official Solicitor (OS) was of the view that all of the costs incurred in respect of the proceedings should be born entirely by the London Borough of Lambeth and the CCG, as it was believed that the proceedings should never have been brought in the first place and also because of the conduct of the parties throughout the  proceedings. Taking this view point, a departure from the general rule of costs would be appropriate.

The background to the matter was that the Protected Party was originally from Columbia and collapsed in a street in the UK in 2014. Following on from the incident, the Protected Party was left with a severe cognitive impairment. She remained in hospital for a significant length of time, despite her requests to return to Columbia, and that it was also deemed in her best interests to return to there under section 4 of the Mental Capacity Act 2005.

An application was made by Lambeth Counsel which resulted in years of hearings and protracted proceedings which not only cost the tax payer in funding the Protected Party’s care and the legal fees, but it meant that the Protected Party was being kept against her wishes and for no good reason. The Judge stated ;

‘if the authority had done what it should have done in a timely professional manner, not only could they have saved themselves over £100,000 a year, and saved the cost to the taxpayer of these protracted High Court proceedings, they could have avoided P the years of misery from being kept a prisoner here, against her will.’

The Protected Party did not leave the UK until 25 January 2018.

Mr Justice Newton thereafter invited parties to submit their submissions on costs at the recent Hearing it was also reported within the Costs Judgement;

‘ The Court is deeply critical of the manner in which this case was handled both before and after the institution of proceedings. It is further troubling that even within the written submissions are many misconceived assertions or contentions as to fact. The proceedings were instigated by P’s RPR in December 2016 because no constructive progress for P was being made. P was unsettled, unable to communicate, frustrated and quite evidently deeply unhappy. A situation which could and should have been avoided.’

Furthermore, the Judge went on to say that he could not ignore the “disorganised thinking, planning and management” which resulted in the Protected Party being detained in the UK for a longer period of time than was necessary.

The Judge ruled that the costs of the proceedings were to be born by the Applicant and the Second Respondent both jointly and severally due to the circumstances of the case being ‘so poor and so extreme’.

This case highlights that even though it is rare, the Court will depart from the general rule if they have good reason to do so and the conduct of the local authority and the delays satisfied section 19.5 (1) (2) of the Court of Protection Rules 2017. It is noteworthy to consider the proceedings as a whole and to ensure that the matter is being dealt with accordingly in order to avoid any unnecessary costs consequences.

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Latest statistics show 50% annual increase in orders made under the Mental Capacity Act [2005].

The Family Court statistics bulletin relating to the final quarter of 2017 has been published, providing an overview and insight into the data relating to Court of Protection applications and orders for the year.

The latest report published by the Ministry of Justice show that the number of orders made under the Mental Capacity Act (MCA) continued to rise significantly in the last year, with a staggering 38,945 orders being made in 2017. This is an increase of almost 50% on the number of orders made in 2016. It is noted, however, that much of this increase can be attributed to the clearance of a number of preexisting and outstanding cases during the first quarter of 2017.

Around 40% of the orders made under the MCA in 2017 related to the appointment of a Deputy for property and financial affairs, continuing the consistent increase since 2009. Please see the below table for a complete breakdown of all orders made under the MCA in 2017.

 

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The upward trend relating to numbers of Deprivation of Liberty (DoLS) applications also continued in 2017. There were 3,995 DoLS applications made throughout the year, a 27% increase on 2016, showing the continued increase in awareness of DoLS and the increased impetus to have deprivations authorised. The numbers of DoLS orders made in 2017 also rose by 81%, which (when compared with the 27% increase in applications) evidences the delay between application and order.

There was a continued increase in the numbers of Lasting Powers of Attorney (LPAs) received in 2017; LPAs received rose by 28% between 2016 and 2017, with over 180,000 LPAs being registered in the final quarter of the year alone. This increase is a continuation of the upward trend seen since 2015, likely due to the ease of online forms and increased publicity and media coverage of Powers of Attorney. The long-term downward trend relating to the number of Enduring Powers of Attorney (EPAs) continued, with a 7% annual decrease in EPAs received in 2017.

The full report can be found here.

If you have any questions about the above, please feel free to contact Ethan Bradley at ethan.bradley@clarionsolicitors.com.

Various Incapacitated Persons, Re (Appointment of Trust Corporations As Deputies) [2018] EWCOP 3

Where concerns were raised when Trust Corporations apply as a Deputy for the Financial and Property affairs of a Protected Party.

A judgment was issued whereby the courts raised their concerns when considering an application that had been made to appoint a Trust Corporation as a Deputy, for the financial and property affairs of a Protected Party. Judge Hilder informed of the details required for the Court to be satisfied that the corporation is a fit and proper legal person to hold such appointment.

The case involved 36 applicants covering 11 different trust corporations, all of which are connected to solicitor practices.

The proposed Deputy (the Trust Corporation) is a Trust Corporation within the meaning of section 64(1) of the Mental Capacity Act 2005 and can lawfully act as such; and the Trust Corporation will inform the Office of the Public Guardian (OPG) immediately if that ceases to be the case.

The Trust Corporation will comply with the OPG’s published standards for professional deputies.

EITHER:

(i) The Trust Corporation is authorised by the SRA;

OR 

(ii) all the directors of the Trust Corporation are solicitors and it employs no one (save to the extent that it employs a company secretary); and

(iii) the Trust Corporation will retain its associated legal practice to carry out all practical work in relation to the management of the incapacitated person’s property and affairs; and

(iv) the Trust Corporation is covered by the professional indemnity insurance policy of its associated authorised legal practice on the same terms as that practice;

The Trust Corporation will notify the OPG immediately, if there is any change to any of the matters set out in paragraph 3 above.

The Trust Corporation must also ensure that it obtains and maintains insurance cover..

The Trust Corporation will lodge a copy of the insurance policy with the OPG on appointment and will inform the OPG immediately if there is any reduction in the terms or level of the insurance cover.

The note offered some explanations as to why a law firm might chose to create a Trust Corporation, these include:

  1. A Trust Corporation is designed to increase flexibility and improve services for clients. By creating a Trust Corporation, you can streamline the administration of estates and trusts to provide greater flexibility in the day-to-day administration of the files that it handles.”

From the Protected Party’s perspective, the benefits of appointing a Trust Corporation include:

1. Continuity – new trustees are never needed as a Trust Corporation never dies, goes on holiday, gets ill or retires. This can create substantial savings in professional fees: each time an individual trustee retires and a new trustee appointed, a deed needs to be created and the assets of the trust have to be transferred, whereas with a Trust Corporation, the appointment and retirement of directors will not affect the assets within particular trusts.

2. Availability – individual trustees aren’t always available due to holidays and other commitments, but a Trust Corporation will always be available.

3. Professionalism – Trust Corporation signatories will be senior members of the private client department of the firm who deal with trusts and estates every day.”

These identified benefits are procedural or financial. Whilst these are important, they are not the only aspects to consider. It was explained in the judgment that “each case will be different but Deputyships generally also require an appropriate person-to-person interaction with the protected person and often their family. Considered from that perspective, it can be seen that the benefit of continuity accrues also to the law firm – a client is retained for the long term, even if the individuals familiar with the case change firms.

Conclusion

A Trust Corporation can apply to be on the Office of the Public Guardian’s panel of deputies, but there is no ‘panel’ of Trust Corporations which have demonstrated compliance with legal requirements to act. Information necessary to satisfy the Court as to suitability must therefore be ’built into’ the application process itself.

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

 

The Hospital Trust v V & Ors [2017] EWCOP 20 (20 October 2017)

The Protected Party is 21 and suffers from a severe learning disability. She has an ‘understanding‘ age of about 3-5 years. She conceived a child in late 2015, by means which in all probability amounted to rape. The perpetrator of the sexual assault remains unknown by neither the family or the Protected Party. In 2016, she gave birth to a child that was placed in foster care.

At 28 weeks pregnant, the Health Authority sought the authority of the Court of Protection to arrange the delivery of the baby by caesarean section; Newton J made the relevant order in August 2016, and the baby was born on the following day.

The father of the baby is unknown. The circumstances of the conception were undetermined although it is believed that the father may be a friend of one of the Protected Party’s brothers. There is professional agreement that the Protected Party did not have the capacity to consent to sexual intercourse.

The Protected Party was confused and distressed at the pregnancy and confinement, and immensely distressed when her baby was removed from her care, pursuant to emergency orders obtained under Part IV Children Act 1989. Professionals speak of an extreme reaction to these events: a “significant physical and psychological trauma“.

An Application was made to the Court of Protection in 2016 for best interests determinations relevant to ante-natal care, and the delivery of the baby. The issues before the Court now are:

  1. i) Whether the Protected Party has the capacity to consent to sexual relations:
  2. ii) Whether she has the capacity to agree to the administration of non-therapeutic contraception;

iii) Whether it is in the Protected Party’s best interests that she receives non-therapeutic contraception.

All parties shared a strong common objective to protect the Protected Party from further harm, and specifically from sexual exploitation and pregnancy. However, they differ as to the means by which this can, or should, be achieved.

The Applicant, The Hospital Trust (“the Health Authority“), supported by the community learning disabilities team of the relevant Local Authority (“the Local Authority”) contend that it is in the Protected Party’s best interests that she should be provided with contraception as part of a wider safeguarding package, that should be trialled for a number of months.

Any medical intervention she found traumatising and she was scared. Though physically she healed well after the baby, the removal of the baby had a devastating effect on her emotional and psychological welfare. She could not understand where the baby was and was constantly asking for her baby. She was physically lashing out at her mother, self-harming, not sleeping, not eating, throwing herself on the floor and the community care officer took her to the GP and she got anti-depressants.

Following the delivery of the baby, professional attention swiftly turned to the formulation of a plan to prevent a recurrence of the pregnancy. Attentions turned to educating the Protected Party about sexual health. The Official Solicitor acting on the Protected Party’s behalf indicated that contraception was not necessary, and that the safeguarding package is sufficient to protect her.

The safeguarding plan appears to have been broadly successful, however, there have been a number of lapses of the safeguarding plan over the last 12 months. These lapses are admitted by the parents. They included leaving the Protected Party alone with her male siblings, on a number of occasions, which was against the safeguarding policy that had been decided upon.

Best interests

There is disagreement between the advocates as to the correct approach to the best interests of the Protected Party and a number of questions were raised:

i) Is it in the Protected Party’s best interests that she receives contraceptive protection?

ii) If so, what form of contraception is in her best interests, as the less restrictive option?

iii) If contraception is in her best interests, is it in her interests that such contraception is first trialled?

iv) Would the benefits of the contraceptive outweigh the negatives with regards to the best interests of the Protected Party?

It was decided that the Health and Local Authorities say that the safeguarding plan has been robust, but that contraception offers an important additional level of safeguard in the event that the plan fails.

The authorities argue that contraception will materially reduce the risk of pregnancy yet further. The social worker summarised the position in her oral evidence thus:

Even though I believe that the plan is robust and the family are working with us, breaches are still happening, and the last two breaches, the parents did not even know of the Protected Party’s whereabouts.”

They continued, “this will give us an extra layer of protection, in the event that anything goes wrong, or not within the family’s control. However, it was agreed by all that the Protected Party would need assistance in administering the contraception and charts would be created monitoring the menstrual cycle of the Protected Party.”

In considering all the issues raised, the views of the Protected Party were taken into consideration. The Protected Party demonstrated a “clear ability to learn“, and had an understanding of certain forms of contraception, is able to identify these and is “able to demonstrate the part of the body where each contraceptive is used.” The following were considered:

i) She does not wish to become pregnant again, or to have further children;

ii) She wishes to avoid surgery;

iii) She does not want intrauterine contraception;

iv) She would favour the patch (the view formed by the community matron.)

Following a number of reviews, it was concluded that the Protected Party had limited understanding of the “patch” and the link to pregnancy.

Judgment

By noting that the Protected Party is not sexually active, had no boyfriend, and that the proposed administration of contraception is non-therapeutic. It was judged against making a decision that is unfavourable and is one that respects the Protected Party’s Article 8 rights, and maintains clear focus on what is best for the Protected Party’s, striking the balance between protection and empowerment.

I return to the point I made at the outset of this judgment: the combined objective of the parties to ensure that the Protected Party is protected from further harm. The Local Authority considers that the safeguarding plan is “as robust as it can be”. Although The Protected Party’s mother has deposed in her signed statement to the fact that her daughter “… is never alone, she comes everywhere with me”, this has been shown – even very recently – not to be true.

The fact that the protection plan would remain unaltered whether contraception is administered or not does not mean, that there are not real advantages to the Protected Party receiving contraception. The safeguarding plan is designed to reduce the risk of sexual exploitation particularly outside of the home; contraception is proposed to reduce the risk of pregnancy in the event that the plan fails. If this additional safeguard can be introduced without undue side effects, and is a safeguard which the Protected Party is not unwilling to accept, then the best interests balance tilts in favour of its use.”

The prospect of any medical intervention, even the simple task of being weighed and measured in a clinic, and of blood pressure being taken, has left the Protected Party “petrified” in the recent past. It is vital for the court to reduce the need for such medical interventions.

It was decided that it may be that the side-effects of the patch are uncomfortable to the Protected Party in that regard and that the disbenefits of the contraceptive patch outweigh the benefits. This will only be known after a trial of the patch. At the conclusion of the trial period, or at an earlier time, should it become clear that the contraceptive patch is not appropriate, a best interests’ meeting will be held, at which a decision will be taken as to whether it is right to continue with the patch or whether an alternative method of contraception should be attempted, or whether the likely disbenefits of continuation or of any other form of contraception outweigh the benefits.

It was declared that it was in the Protected Party’s best interests that a contraceptive patch be administered for a trial period of up to six months. I shall list the case for review to coincide with the end of the trial, when further decisions can be taken.

I wish to make clear that this decision is about the Protected Party, and her best interests; the decision is taken in the context of her unique situation. I wholly reject the submission on behalf of the Official Solicitor that by declaring contraception in the Protected Party’s best interests I would in one way or another be setting a precedent for all incapacitous and vulnerable women.”

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

Can a family member or care worker be appointed as a Representative or Litigation Friend if they are partly responsible for constituting a Deprivation of Liberty?

SCC v MSA & Another (2017) EWCOP 18

This case looked at the issues of where a Protected Party’s mother should act as his Rule 3A representative, in light of the fact that she was the person responsible for implementing a restrictive care regime that constituted a deprivation of liberty.

Background

The SCCG commissioned a care package to MSA who was a young adult with severe learning disabilities and was deprived of his liberty at his family home. The Court had previously authorised that it was in MSA’s best interests to reside at home and receive the  care package. MSA was recorded as;

“unable to communicate or mobilise independently, is frequently strapped into his wheelchair, is kept for some of the time in a padded room at his home with a closed door that he cannot open, is highly resistive to personal care interventions so that physical restraint is required, and does not have external carers in the home.”

The issue that arose during the proceedings, was whether MSA’s mother, JA could or should act as his 3A Representative. The Official Solicitor (OS) submitted at a hearing on 23 March 2017, that it would be inappropriate for MSA’s representative in these proceedings and any future proceedings to be the person responsible for implementing a restrictive care regime that constituted a deprivation of liberty, where the arrangements surpassed 24 hour supervision.

Written submissions were filed by both parties and the Court agreed to consider the appropriateness of JA acting as his litigation friend. It is worth noting here, that JA did not wish to be appointed, the OS had raised the issue and guidance on the matter was sought.

Court of Protection Rules 2007

Rule 3A, requires the Court to consider in each case how best to ensure the Protected Party’s participation in proceedings was assured.

Rule 3A(2)(c) ” P’s participation should be secured by the appointment of a representative whose function shall provide the Court with information as to the matters set out in s4(6) of the Act and discharge functions as the Court may direct.

Rule 147 states “A person may act as an accredited legal representative or representative for P, if that person can fairly and competently discharge his or her functions on behalf of P.”

Rule 148B provides the Court with the power to prevent a person from acting  or terminate an appointment of a person as a litigation friend

Rule 140(1) states that a person may act as a litigation friend for P if that person,

  1. A) fairly and competently conduct proceedings on behalf of that person, and
  2. B) has no interests adverse to those of that person

The OS stated that it would not be appropriate to appoint a family member who who supported the deprivation of the Protected Party’s liberty as being in his best interests, as it would be difficult for them to challenge the deprivation due to a conflict of interest. Especially in this case, as the Protected Party was locked in a padded room at times and had to be physically restrained in a wheelchair.

The CCG argued that JA could undertake the role as she was engaged with statutory services and care providers and had a history of acting as the Protected Party’s advocate. They also stated, that there was no rule which prohibited a family member from acting.

District Judge Bellamy stated the following would need to be considered;

  1. a) Whether or not a family member or friend who is responsible in part for implementing a restrictive care arrangement is appropriate to be representative or litigation friend is fact and case specific
  2. b)The Court will have close regard to the relationship between the family member and the Protected Party
  3. c)The conduct, if any of the family member and any available evidence that he or she has acted otherwise in accordance with Rule 140(1) or Rule 147
  4. d)The Court must consider the nature of the restrictive care package and the role that the family member would play in the regime

An agreement with the OS in terms of where a family member is responsible for providing care that includes restrictive physical interventions, the Court should take great care in exercising its discretion as regard to the Protected Party’s representation in proceedings pursuant to Rule 3A. However, it would go no further than that and if a family member who was so involved put themselves forward to act as a representative or litigation friend, providing that all circumstances were scrutinised, there could be no blanket objection in principle, to undertake the role.

The Court must be satisfied that the representative can,

1.i) Elicit P’s wishes and feelings in accordance with s4(6) of the MCA known to the Court without causing any unnecessary distress to the Protected Party

2. ii) Critically examine from the Protected Party’s perspective their best interests, the pros and cons of the care package and whether it was the least restrictive option

3.iii) Review the implementation of the care package

Therefore, it was determined that providing the Protected Party’s Rights under Article 5 were adequately protected and the Court were satisfied, the role could be undertaken by a family member. In my opinion, this appears reasonable, as the family member may actually be the best person to represent the Protected Party as they have a personal connection and will more often than not understand from the Protected Party’s point of view as to what would be in their best interests.

In this case, as JA did not want to act as litigation friend, the OS would continue with the appointment.

If you require any further information, please contact; Danielle.walker@clarionsolicitors.com

 

The Liberty Protection Safeguards and the repeal of DoLS

The Deprivation of Liberty Safeguards (DoLS), the framework which provides authorisation of restrictions of an individual’s freedom, look set to be repealed and replaced by a new scheme called the ‘Liberty Protection Safeguards’.

A House of Commons Library briefing paper has raised the actions recommended by the Law Commission’s report, published in March 2017, advocating the urgent repeal of the controversial rules that were introduced into the Mental Capacity Act in 2009.

DoLS provide a six-tiered statutory framework for the approval of a deprivation in situations where a person lacks mental capacity to consent to their care arrangements, and it is deemed that it is in the best interests of the patient to restrict their freedom.

A Supreme Court judgement in the case of P V Cheshire West & Cheshire Council [2014] changed the definition of a deprivation of liberty, thus increasing the volume of individuals determined to have their liberty deprived. As a consequence of this judgement, the number of DoLS applications has increased ten-fold, the implications and repercussions of which have been significant for social care practitioners and local authorities.

The new Liberty Protection Safeguards intend to ‘streamline the process for assessing whether a deprivation of liberty is necessary’ as well as increasing the efficiency of the authorisation process. The new safeguards would also apply to a broader group of people than those currently covered by DoLS, which only apply to deprivations in care homes and hospitals. Furthermore, 16 and 17-year-olds will now be protected under the new legislation.

Best Interests Assessors are expected to be replaced by an ‘Approved Mental Capacity Professional’ (AMCP) and the requirement for a best interests assessment in every case will be removed, with the focus of the thorough assessments shifted to only the more ‘serious’ cases whereby the care arrangements are contrary to the wishes of the patient.

When a possible deprivation is identified, the responsible body (usually the local authority) will be required to arrange a medical and capacity assessment, before considering whether the proposed care placement is necessary and proportionate. The case will be then considered by an ‘independent reviewer’, who is not involved in the patient’s care. If the conditions are considered to be met, the deprivation will be approved; if there are concerns regarding the placement however, the case will be referred to an AMCP.

The Law Commission report states that the new scheme will offer ‘further protection to people who object to their proposed placement’, while increasing the efficiency of the process and striking a ‘proportionate balance between responding efficiently to the volume of cases requiring authorisation since Cheshire West and giving proper safeguards to people whose objections are too easily over-ruled under the current law.’

The Government is due to publish its response to the recommendations.

If you have any queries, please do not hesitate to contact Ethan Bradley (ethan.bradley@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.

 

Deprivation of Liberty Proceedings on behalf of a minor [2017] EWHC 2458 (Fam)

The Local Authority made an Application for permission to deprive the Protected Party (a minor) where there was no secure accommodation available.

The Protected Party was a 13 year old child and had a background of very serious uncontrollable behaviour which had resulted in damage to himself and others. As a result, he had been placed in over six different accommodations for his own and others’ safety. There were a number of occasions where the staff were unable to manage his behaviour or keep themselves and the Protected Party safe.

The Local Authority had repeatedly expressed their wishes to place the Protected Party in an approved secure placement, however these were rare and they were unable to find a suitable home. As a result, they had hoped it would have been possible to place him in a unit which was not deemed an approved secure accommodation. A plan was put in place that meant the Protected Party would stay at the accommodation and if necessary, be subject to considerable restraint, including physical restraint, solely for the purpose of keeping him safe.

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. It is not necessary to apply to the High Court for a Secure Accommodation Order, however, as there was no approved secure accommodation available, the Local Authority required the authorisation from a Court for the Deprivation of Liberty that the Protected Party would be subjected to.

Mr Justice Holman delivered his concern over the way in which applications of this kind 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 a guardian must be appointed to act on his behalf. A further hearing was fixed for a months time, as the Judge was concerned the Protected Party had been deprived of his liberty for the past 3 months. The Judge advised further “in view of the gravity of the subject matter and the age of the child, I propose to order that he must be enabled to attend the hearing if he expresses a wish to do so unless the guardian states that in his opinion it would be damaging to the health, wellbeing or emotional stability of the child to do so. In my view it is very important that ordinarily 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. But subject to that exception, if a child of sufficient age, which includes a child of this or any older age, wishes to attend a hearing of this kind, then in my view he must be enabled to do so.”

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