The name ‘Court of Protection’ has been in use for centuries, but the old Court of Protection was an office of the Supreme Court and its remit was limited to the financial affairs of people who lacked capacity to make their own decisions. The Mental Capacity Act (MCA) 2005 established, in its place, a superior court of record, with a range of powers extending across financial and welfare (including medical treatment and deprivation of liberty) matters.
The MCA was innovative in many ways, one of them being that it begins with a statement of five principles which underpin the jurisdiction of the modern Court of Protection:
The import of the principles is clear: the Court of Protection is concerned with people who lack capacity to make decisions for themselves; and those people are placed at the very centre of every stage of its decision-making processes.
It is estimated that around two million adults in England and Wales may be living with issues concerning their mental capacity. Not all of them will fall within the jurisdiction of the Court.
For the purposes of the MCA, a person lacks capacity to decide a particular matter if he has an impairment of, or a disturbance in the functioning of, his mind or brain which causes the inability to make the decision in question. Mental impairments and disturbances occur in many shades: an acquired brain injury may be devastating or relatively mild; dementia may be in its early stages or well advanced; a learning disability may be moderate or severe.
The... MCA... established... [the modern Court of Protection] a superior court of record, with a range of powers extending across ÿnancial and welfare (including medical treatment and deprivation of liberty) matters
A person with mental impairment or disturbance may have capacity to do some things, but not others: she may have capacity to manage day-to-day financial matters, but not to make a will, or he may have capacity to decide whether he wishes to have contact with his children, but not to decide where he lives and how he is cared for. The Court’s jurisdiction is only engaged where the impairment or disturbance causes this particular person to be unable to make this particular decision at this particular time.
Even if it is lacking at the moment, a person may achieve capacity if given appropriate support. It may be as simple as explaining relevant information in appropriate terms and at particular times, or it may be more extensive. In Re DE (Vasectomy) [2013] EWHC 2562 (Fam), the Court required a programme of one-hour sessions of sex education to be carried out by a clinical psychologist and a community learning disability nurse to support DE to acquire capacity to consent to sexual relations. And if all practicable steps to help someone acquire capacity are not taken, an award of damages may follow (CH v A Metropolitan Council [2017] EWCOP 12).
If the assumption of capacity is rebutted, then any decision made on behalf of a person lacking capacity must be made in the person’s best interests. It is not every such decision which requires the involvement of the Court. Generally, those carrying out day-to-day acts of care or treatment for people without capacity may rely on section 5 of the MCA, which protects them from liability for such acts as long as they are reasonably undertaken in that person’s best interests. In matters of welfare, therefore, Court involvement may be required: for example, where there is a dispute about which steps would be in a person’s bests interests; or where express authorisation is needed for arrangements amounting to deprivation of liberty. There is no equivalent provision in respect of property and affairs, so all decisions must be made by the Court, a deputy appointed by the Court, or an Attorney under an enduring or a lasting power of attorney. The Court may be asked, for example, to appoint or discharge such a deputy, to resolve concerns about the conduct of an attorney, to ratify gifts or to approve the making of a statutory will.
It is an objective test, but whenever it makes a best interests decision, the Court ‘stands in the shoes’ of the person with whom it is concerned, at least in the sense that ‘best interests’ must be considered from their perspective, and informed by their wishes and feelings, values and beliefs (Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67).
The Court has, however, no magic wand. It may question and probe the range of possible solutions put before it, but it has no greater power to oblige others to do what is best for a person lacking capacity than that person would have for himself. The Court can only choose between options which are actually available to the person. So, where the relevant public body had decided that it would not fund contact in a particular setting, the Court did not have power to order it (N v ACCG and others [2017] UKSC 22).
In its first decade, the number of applications received by the Court has increased every year. In the last 12 months, there have been almost 30,000 applications issued.
Reading the law reports and newspapers may give the impression that the Court spends most of its time deliberating complex disputes about welfare or deprivation of liberty, but in fact the bulk of the Court’s work – currently around 24,000 applications a year – is property and affairs applications. Roughly 57% of such applications seek the appointment of a deputy and are non-contentious. Such applications are typically determined by authorised court oÿcers without any oral hearing.
The largest increase of work has been seen in applications relating to deprivations of liberty in the light of the decision of the Supreme Court in P v Cheshire West and Chester Council and another; P and Q v Surrey CC [2014] UKSC 19, known almost universally as ‘Cheshire West’. There are approximately 100 applications received each month to challenge an authorisation granted by the Supervisory Body in respect of living arrangements in a hospital or care home. Deprivation of liberty in living arrangements in other settings requires direct authorisation by the Court.
Many community arrangements are of course noncontentious, commonly agreed by all relevant persons and bodies to be in the best interests of a person, and necessary and proportionate. Applications of that kind are considered under a streamlined, paper-based procedure named after a string of hearings before the President in Re X (Deprivation of Liberty) [2014] EWCOP 25 and 37. There are currently around 200 Re X applications made each month, and they are determined by specially nominated judges; however, those numbers are expected to rise as the law continues to develop.
At present, all applications to the Court of Protection are issued from the central registry at First Avenue House, High Holborn in London, where there is a cohort of permanently seconded judges, supplemented by visiting judges who also sit in other jurisdictions.
There is an ongoing process of regionalisation, with now seven ‘hub’ courts in Manchester, Bristol, Cardiff, Birmingham, Newcastle, Leeds and Reading respectively. Each regional ‘hub’ court has a regional lead judge, dedicated administrative staff and a cohort of nominated judges sitting in various court centres throughout the region.
Applications relating to welfare or challenges to deprivation of liberty authorisations are transferred immediately upon issue by e-mail from the central registry to the appropriate regional hub court, and from there to the hearing judge in the appropriate local court. Property and affairs applications are transferred only when a hearing is required.
December 2017 will see the implementation of a new set of Rules for the Court of Protection, and 2018 will probably see the piloting of regional issues of certain welfare matters. Beyond that … well, a decade is a long time in mental capacity law.