Mental Capacity Bill

House of Commons

Session 2003 - 04
Internet Publications
Other Bills before Parliament

Mental Capacity Bill

Mental Capacity Bill
Part 2 — The Court of Protection and the Public Guardian
24

44
The judges of the Court of Protection
(1)
Subject to Court of Protection Rules under section 49(2)(d), the jurisdiction of
the court is exercisable by a judge nominated for that purpose by—
(a)
the Lord Chancellor, or
(b)
a person acting on the Lord Chancellor’s behalf.
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(2)
To be nominated, a judge must be—
(a)
the President of the Family Division,
(b)
the Vice-Chancellor,
(c)
a puisne judge of the High Court,
(d)
a circuit judge, or
10
(e)
a district judge.
(3)
The Lord Chancellor must—
(a)
appoint one of the judges nominated by virtue of subsection (2)(a) to (c)
to be President of the Court of Protection, and
(b)
appoint another of those judges to be Vice-President of the Court of
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Protection.
(4)
The Lord Chancellor must appoint one of the judges nominated by virtue of
subsection (2)(d) or (e) to be Senior Judge of the Court of Protection, having
such administrative functions in relation to the court as the Lord Chancellor
may direct.
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Supplementary powers
45
General powers and effect of orders etc.
(1)
The court has in connection with its jurisdiction the same powers, rights,
privileges and authority as the High Court.
(2)
Section 204 of the Law of Property Act 1925 (c. 20) (orders of High Court
25
conclusive in favour of purchasers) applies in relation to orders and directions
of the court as it applies to orders of the High Court.
(3)
Office copies of orders made, directions given or other instruments issued by
the court and sealed with its official seal are admissible in all legal proceedings
as evidence of the originals without any further proof.
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46
Interim orders and directions
The court may, pending the determination of an application to it in relation to
a person (“P”), make an order or give directions in respect of any matter if—
(a)
there is reason to believe that P lacks capacity in relation to the matter,
(b)
the matter is one to which its powers under this Act extend, and
35
(c)
it is in P’s best interests to make the order, or give the directions,
without delay.
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Power to call for reports
(1)
This section applies where, in proceedings brought in respect of a person (“P”)
under Part 1, the court is considering a question relating to P.
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Mental Capacity Bill
Part 2 — The Court of Protection and the Public Guardian
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(2)
The court may require a report to be made to it by the Public Guardian or by a
Court of Protection Visitor.
(3)
The court may require a local authority, or an NHS body, to arrange for a
report to be made—
(a)
by one of its officers or employees, or
5
(b)
by such other person (other than the Public Guardian or a Court of
Protection Visitor) as the authority, or the NHS body, considers
appropriate.
(4)
The report must deal with such matters relating to P as the court may direct.
(5)
Court of Protection Rules may specify matters which, unless the court directs
10
otherwise, must also be dealt with in the report.
(6)
The report may be made in writing or orally, as the court may direct.
(7)
In complying with a requirement, the Public Guardian or a Court of Protection
Visitor may, at all reasonable times, examine and take copies of—
(a)
any health record, and
15
(b)
any record of, or held by, a local authority and compiled in connection
with a social services function,

so far as the record relates to P.
(8)
If the Public Guardian or a Court of Protection Visitor is making a visit in the
course of complying with a requirement, he may interview P in private.
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(9)
If a Court of Protection Visitor who is a Special Visitor is making a visit in the
course of complying with a requirement, he may if the court so directs carry
out in private a medical, psychiatric or psychological examination of P’s
capacity and condition.
(10)
“NHS body” has the meaning given in section 148 of the Health and Social Care
25
(Community Health and Standards) Act 2003 (c. 43).
(11)
“Requirement” means a requirement imposed under subsection (2) or (3).
Practice and procedure
48
Applications to the Court of Protection
(1)
No permission is required for an application to the court for the exercise of any
30
of its powers under this Act—
(a)
by a person who lacks, or is alleged to lack, capacity,
(b)
if such a person has not reached 18, by anyone with parental
responsibility for him,
(c)
by the donor or a donee of a lasting power of attorney to which the
35
application relates,
(d)
by a deputy appointed by the court for a person to whom the
application relates, or
(e)
by a person named in an existing order of the court, if the application
relates to the order.
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(2)
But, subject to Court of Protection Rules and to paragraph 21(2) of Schedule 3
(declarations relating to private international law), permission is required for
any other application to the court.

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Part 2 — The Court of Protection and the Public Guardian
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(3)
In deciding whether to grant permission the court must, in particular, have
regard to—
(a)
the applicant’s connection with the person to whom the application
relates,
(b)
the reasons for the application,
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(c)
the benefit to the person to whom the application relates of a proposed
order or directions, and
(d)
whether the benefit can be achieved in any other way.
(4)
“Parental responsibility” has the same meaning as in the Children Act 1989
(c. 41).
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49
Court of Protection Rules
(1)
The Lord Chancellor may make rules of court (to be called “Court of Protection
Rules”) with respect to the practice and procedure of the court.
(2)
Court of Protection Rules may, in particular, make provision—
(a)
as to the manner and form in which proceedings are to be commenced;
15
(b)
as to the persons entitled to be notified of, and be made parties to, the
proceedings;
(c)
for the allocation, in such circumstances as may be specified, of any
specified description of proceedings to a specified judge or to specified
descriptions of judges;
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(d)
for the exercise of the jurisdiction of the court, in such circumstances as
may be specified, by its officers or other staff;
(e)
for enabling the court to appoint a suitable person (who may, with his
consent, be the Official Solicitor) to act in the name of, or on behalf of,
or to represent the person to whom the proceedings relate;
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(f)
for enabling an application to the court to be disposed of without a
hearing;
(g)
for enabling the court to proceed with, or with any part of, a hearing in
the absence of the person to whom the proceedings relate;
(h)
for enabling or requiring the proceedings or any part of them to be
30
conducted in private and for enabling the court to determine who is to
be admitted when the court sits in private and to exclude specified
persons when it sits in public;
(i)
as to what may be received as evidence (whether or not admissible
apart from the rules) and the manner in which it is to be presented;
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(j)
for the enforcement of orders made and directions given in the
proceedings.
(3)
Court of Protection Rules may, instead of providing for any matter, refer to
provision made or to be made about that matter by directions.
(4)
Court of Protection Rules may make different provision for different areas.
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50
Practice directions
(1)
The President of the Court of Protection may, with the concurrence of the Lord
Chancellor, give directions as to the practice and procedure of the court.

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Part 2 — The Court of Protection and the Public Guardian
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(2)
Directions as to the practice and procedure of the court may not be given by
anyone other than the President of the Court of Protection without the
approval of the President of the Court of Protection and the Lord Chancellor.
(3)
Nothing in this section prevents the President of the Court of Protection,
without the concurrence of the Lord Chancellor, giving directions which
5
contain guidance as to law or making judicial decisions.
51
Rights of appeal
(1)
Subject to the provisions of this section, an appeal lies to the Court of Appeal
from any decision of the court.
(2)
Court of Protection Rules may provide that where a decision of the court is
10
made by—
(a)
a person exercising the jurisdiction of the court by virtue of rules made
under section 49(2)(d),
(b)
a district judge, or
(c)
a circuit judge,
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an appeal from that decision lies to a prescribed higher judge of the court and
not to the Court of Appeal.
(3)
For the purposes of this section the higher judges of the court are—
(a)
in relation to a person mentioned in subsection (2)(a), a circuit judge or
a district judge;
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(b)
in relation to a person mentioned in subsection (2)(b), a circuit judge;
(c)
in relation to any person mentioned in subsection (2), one of the judges
nominated by virtue of section 44(2)(a) to (c).
(4)
Court of Protection Rules may make provision—
(a)
that, in such cases as may be specified, an appeal from a decision of the
25
court may not be made without permission;
(b)
as to the person or persons entitled to grant permission to appeal;
(c)
as to any requirements to be satisfied before permission is granted;
(d)
that where a higher judge of the court makes a decision on an appeal,
no appeal may be made to the Court of Appeal from that decision
30
unless the Court of Appeal considers that—
(i)
the appeal would raise an important point of principle or
practice, or
(ii)
there is some other compelling reason for the Court of Appeal
to hear it;
35
(e)
as to any considerations to be taken into account in relation to granting
or refusing permission to appeal.
Fees and costs
52
Fees
(1)
The Lord Chancellor may with the consent of the Treasury by order prescribe
40
fees payable in respect of anything dealt with by the court.
(2)
An order under this section may in particular contain provision as to—
(a)
scales or rates of fees;

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Part 2 — The Court of Protection and the Public Guardian
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(b)
exemptions from and reductions in fees;
(c)
remission of fees in whole or in part.
(3)
Before making an order under this section, the Lord Chancellor must consult—
(a)
the President of the Court of Protection,
(b)
the Vice-President of the Court of Protection, and
5
(c)
the Senior Judge of the Court of Protection.
(4)
The Lord Chancellor must take such steps as are reasonably practicable to
bring information about fees to the attention of persons likely to have to pay
them.
(5)
Fees payable under this section are recoverable summarily as a civil debt.
10
53
Costs
(1)
Subject to Court of Protection Rules, the costs of and incidental to all
proceedings in the court are in its discretion.
(2)
The rules may in particular make provision for regulating matters relating to
the costs of those proceedings, including prescribing scales of costs to be paid
15
to legal or other representatives.
(3)
The court has full power to determine by whom and to what extent the costs
are to be paid.
(4)
The court may, in any proceedings—
(a)
disallow, or
20
(b)
order the legal or other representatives concerned to meet,

the whole of any wasted costs or such part of them as may be determined in
accordance with the rules.
(5)
“Legal or other representative”, in relation to a party to proceedings, means
any person exercising a right of audience or right to conduct litigation on his
25
behalf.
(6)
“Wasted costs” means any costs incurred by a party—
(a)
as a result of any improper, unreasonable or negligent act or omission
on the part of any legal or other representative or any employee of such
a representative, or
30
(b)
which, in the light of any such act or omission occurring after they were
incurred, the court considers it is unreasonable to expect that party to
pay.
54
Fees and costs: supplementary
(1)
Court of Protection Rules may make provision—
35
(a)
as to the way in which, and funds from which, fees and costs are to be
paid;
(b)
for charging fees and costs upon the estate of the person to whom the
proceedings relate;
(c)
for the payment of fees and costs within a specified time of the death of
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the person to whom the proceedings relate or the conclusion of the
proceedings.

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Part 2 — The Court of Protection and the Public Guardian
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(2)
A charge on the estate of a person created by virtue of subsection (1)(b) does
not cause any interest of the person in any property to fail or determine or to
be prevented from recommencing.
The Public Guardian
55
The Public Guardian
5
(1)
For the purposes of this Act, there is to be an officer, to be known as the Public
Guardian.
(2)
The Public Guardian is to be appointed by the Lord Chancellor.
(3)
There is to be paid to the Public Guardian out of money provided by Parliament such
salary as the Lord Chancellor may determine.
10
(4)
The Lord Chancellor may, after consulting the Public Guardian, provide him with such
officers and staff as the Lord Chancellor thinks necessary for the proper discharge of his
functions.
(5)
Any functions of the Public Guardian may, to the extent authorised by him, be
performed by any of his officers.
15
56
Functions of the Public Guardian
(1)
The Public Guardian has the following functions—
(a)
establishing and maintaining a register of lasting powers of attorney,
(b)
establishing and maintaining a register of orders appointing deputies,
(c)
supervising deputies appointed by the court,
20
(d)
directing a Court of Protection Visitor to visit—
(i)
a donee of a lasting power of attorney,
(ii)
a deputy appointed by the court, or
(iii)
the person granting the power of attorney or for whom the
deputy is appointed (“P”),
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and to make a report to the Public Guardian on such matters as he may
direct,
(e)
receiving security which the court requires a person to give for the
discharge of his functions,
(f)
receiving reports from donees of lasting powers of attorney and
30
deputies appointed by the court,
(g)
reporting to the court on such matters relating to proceedings under
this Act as the court requires,
(h)
dealing with representations (including complaints) about the way in
which a donee of a lasting power of attorney or a deputy appointed by
35
the court is exercising his powers.
(2)
The functions conferred by subsection (1)(c) and (h) may be discharged in co-
operation with any other person who has functions in relation to the care or
treatment of P.
(3)
The Lord Chancellor may by regulations make provision—
40
(a)
conferring on the Public Guardian other functions in connection with
this Act;

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Part 2 — The Court of Protection and the Public Guardian
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(b)
in connection with the discharge by the Public Guardian of his
functions.
(4)
Regulations made under subsection (3)(b) may in particular make provision—
(a)
as to the giving of security by deputies appointed by the court and as to
the enforcement and discharge of security so given;
5
(b)
as to the fees which may be charged by the Public Guardian;
(c)
as to the way in which, and funds from which, such fees are to be paid;
(d)
as to the making of reports to the Public Guardian by deputies
appointed by the court and others who are directed by the court to
carry out any transaction for a person who lacks capacity.
10
(5)
For the purpose of enabling him to carry out his functions, the Public Guardian
may, at all reasonable times, examine and take copies of—
(a)
any health record, and
(b)
any record of, or held by, a local authority and compiled in connection
with a social services function,
15

so far as the record relates to P.
(6)
The Public Guardian may also for that purpose interview P in private.
Court of Protection Visitors
57
Court of Protection Visitors
(1)
A Court of Protection Visitor is a person who is appointed by the Lord
20
Chancellor to—
(a)
a panel of Special Visitors, or
(b)
a panel of General Visitors.
(2)
A person is not qualified to be a Special Visitor unless he—
(a)
is a registered medical practitioner or appears to the Lord Chancellor to
25
have other suitable qualifications or training, and
(b)
appears to the Lord Chancellor to have special knowledge of and
experience in cases of impairment of or disturbance in the functioning
of the mind or brain.
(3)
A General Visitor need not have a medical qualification.
30
(4)
A Court of Protection Visitor—
(a)
may be appointed for such term and subject to such conditions, and
(b)
may be paid such remuneration and allowances,

as the Lord Chancellor may determine.
(5)
For the purpose of carrying out his functions under this Act in relation to a
35
person who lacks capacity (“P”), a Court of Protection Visitor may, at all
reasonable times, examine and take copies of—
(a)
any health record, and
(b)
any record of, or held by, a local authority and compiled in connection
with a social services function,
40

so far as the record relates to P.
(6)
A Court of Protection Visitor may also for that purpose interview P in private.