10 Chapter 10: (Clauses 14-22) The Court
of Protection and Court Appointed Deputies
160. Clauses 14 - 22 make provision for the new Court
of Protection to make substitute decisions about both financial
and welfare matters for an incapacitated person who has not previously
made an LPA, or to appoint a 'deputy' to do so. Details of the
new Court of Protection, its powers and procedures, are set out
in Part 2 of the draft Bill. The proposals for court appointed
deputies will replace the current system of receiverships and
extend powers to include welfare and healthcare matters as well
as financial and property affairs.
161. The proposals for the new Court of Protection
were recommended by the Law Commission in 1995:
"This jurisdiction will have a number of
new distinctive features. It will provide a single integrated
framework for the making of personal welfare decisions, health
care decisions and financial decisions. It will provide for both
"one-off" orders or, where necessary, for the appointment
of a "manager" with continuing powers."
162. In 'Making Decisions' the Government accepted
the Law Commission's recommendation and commented:
"Most respondents favoured a single court
jurisdiction for all areas of decision-making. Although there
were some concerns about the Court of Protection's perceived lack
of accessibility and unsuitability for dealing with emergencies,
no realistic alternatives were proposed, and a clear majority
of respondents supported the Court of Protection exercising this
163. The Court will have the power to make declarations
as to an individual's capacity, as to whether a particular act
or omission taken in relation to the individual is lawful and
to give directions to deputies. In cases where there is no need
for on-going decision making powers, the Court will be able to
make a single order enabling a particular matter to be resolved.
Such orders can include straightforward decisions (such as the
sale of property) as well as major or difficult decisions (including
some medical treatment decisions) or resolving disputes where
people cannot agree (e.g., where an incapacitated person should
live or who he/she should have contact with). In deciding whether
to grant permission for an application to be made for court intervention,
the Court has to be satisfied that a court order or directions
will benefit the person lacking capacity and it is not possible
to resolve the matter without going to Court.
Clause 16(3) of the draft Bill provides that the powers of the
Court to make decisions and to appoint deputies will be subject
to the best interest checklist in clause 4.
164. The Committee is concerned that the draft Bill
fails to give adequate guidance to the Court to determine when
it will be in an individual's best interests to appoint a deputy.
We recommend that further guidance should be provided to assist
the Court of Protection in deciding when a single order is more
appropriate than the appointment of a deputy.
165. It is intended that that the Court will have
a regional presence and be able to sit at any place in England
and Wales. In
connection with its jurisdiction, it will have the same 'powers,
rights, privileges and authority as the High Court.'
Furthermore, certain groups will not require permission to apply
to the court.
In particular, no permission is required for an incapacitated
person or someone acting on their behalf.
166. The proposals for the new Court generated a
similar response to that presented by the Government in 'Making
Decisions'. The principle of a unified Court of Protection with
the powers and a regional presence provided by the draft Bill
were strongly welcomed by our witnesses.
However, there was widespread concern as to whether the Court
would be accessible to carers and persons lacking capacity
and how single orders of the Court would be enforced and by whom.
167. Article 6 of the European Convention on Human
access to a fair and impartial judicial hearing for the determination
of civil rights and obligations. Lord Filkin, the Parliamentary
Under-Secretary for State for the Department submitted that it
"easier to go to the Court of Protection
than it is to go to the High Court."
168. Although resort to the Court is intended to
occur only when a benefit to the person lacking capacity cannot
be achieved in any other way,
a number of witnesses strongly criticised the draft Bill for failing
to provide a suitable alternative to the Court, or assistance
for people with capacity problems to be able to take up their
concerns, such as independent advocacy.
People First submitted:
"The draft bill does not give people who
are having choices made for them a right to an independent advocate.
If the government were really serious about making sure people
who find it hard to make choices were in control of their lives,
they would be making a law giving us a right to independent advocacy."
169. This view was supported by the Law Society,
who pointed out the difficulties faced by people lacking capacity
in obtaining legal advice and pursue a case in court.
They saw a "fundamental role" for advocates in helping
incapacitated people to gain access to justice, not least by helping
them to instruct lawyers if there is no other way of resolving
a dispute than taking it to court.
170. On the basis of the evidence, the Committee
are of the opinion that the same criticisms that were set out
in 'Making Decisions' four years ago are still relevant to the
draft Bill, namely 'a perceived lack of accessibility and unsuitability
for dealing with emergencies.'
We are of the opinion that access to the new Court of Protection
could be further enhanced for persons lacking capacity. We
strongly recommend that further consideration is given to the
provision of independent advocacy services and other means of
enabling people lacking capacity to participate as fully as possible
in any hearing affecting their rights and entitlements.
171. The issue of court costs was also seen as an
essential factor in determining whether the Court would be accessible:
"The MDA welcomes the provision for the
Court to make single orders on important decisions. However, the
MDA would be concerned if the costs of such orders were so high
that it would act as a disincentive."
172. In a paper provided by the Department for Constitutional
Affairs on Implementing the draft Bill, we were told that there
will be provision for "specialist but limited public funded
legal advice where this is necessary for cases of particular seriousness
Yet other witnesses expressed the view that:
"The objectives of this Bill will be wholly
undermined without adequate public funding"
173. We seek assurances that public funds will
be made available to ensure that the Court of Protection is sufficiently
accessible for those with limited assets. Furthermore, we seek
clarification as to the types of cases for which legal aid will
be provided to mentally incapacitated applicants and alternative
remedies for those cases which will not qualify.
174. Clause 19 of the draft Bill provides for the
appointment and powers of court appointed deputies. Restrictions
on those powers are set out on clause 20. Like LPAs a deputy's
powers will include making decisions on personal welfare as well
as property and affairs. The Court will be able to appoint more
than one deputy to act on behalf of an individual who lacks capacity
and the deputies can act jointly or jointly and severally. In
deciding whether the appointment of a deputy or deputies is in
the best interests of an individual, the Court must first consider
whether a single order will be preferable to the appointment and,
secondly, if a deputy is to be appointed, the appointment should
be as limited in scope and duration as possible.
175. Our inquiry revealed a general consensus that
the deputy system was seen as a desirable feature of the draft
"We acknowledge the need for this set-up
should the person be born with impaired capacity, or lose their
capacity without having made previous arrangements to nominate
176. Although some witnesses believed that the draft
Bill provided sufficient checks and balances on the powers of
court appointed deputies,
.there need to be full checks and
balances to ensure that decisions made by Deputies on behalf of
people who lack capacity are in their best interests. Whilst we
welcome the restrictions on Deputies set out in clause 20, we
feel that they do not go far enough in safeguarding the rights
of people who lack the capacity."
177. In common with evidence received on LPAs,
the additional safeguards that were proposed to the Committee
included a standard of care to be imposed on deputies.
Although there is a duty on the Lord Chancellor to prepare Codes
of Practice for the guidance of deputies
the Law Society further submitted:
that a checklist would be of some
assistance in maintaining a standard for court appointed deputies."
178. The MDA stated that the Court of Protection
needed to be given powers to make checks about the competency
or capacity of the applicant to carry out their functions as a
deputy and to investigate conflicts of interest.
"For example, if a care home manager was
already the deputy for five of his residents and a sixth application
was made, we would want the court of protection to investigate
whether that was appropriate."
179. A further area where the Committee foresaw a
potential for conflict was in cases where a social worker was
appointed as a deputy. As an employee of a local authority, a
social worker would owe a duty to his employer, but circumstances
might well arise where that duty would conflict with his role
as a deputy requiring him to act in the best interests of an incapacitated
person. The Association of Directors of Social Services conceded:
"It is better in many instances for us to
come in in an investigatory capacity rather than to have it on
a long-term basis."
180. We believe that further guidance is required
for deputies as to the standard of conduct they must maintain
in the operation of their duties.
181. Moreover, to minimise the potential for conflicts
of interests, we urge that guidance should be issued to the Court
of Protection to assist in the appointment of the most appropriate
individual to act as a deputy.
182. A number of witnesses were also
dismayed that by clause 17(d) of the draft Bill, deputies' powers
would extend to refusing consent to the carrying out or continuation
of medical treatment.
The Foundation for People with Learning Disabilities submitted:
if deputies can make a decision regarding
withdrawal of treatment, the decisions need to go to court and
be very, very seriously considered. I think the withdrawal of
nutrition and hydration is a very painful experience and that,
if people choose to in their advance directive, that is one thing,
but to assume that for someone who does not have the capacity
undermines their right to life."
183. Under the mechanisms of LPAs and advance decisions,
the refusal of consent to the carrying out or continuation of
treatment can only be given if authorised by the individual when
he was capable. However, under the structure of court appointed
deputies, the withdrawal of treatment could be consented to even
though the appointment would not have been made by the individual
patient. The Catholic Union submitted:
it is highly likely that such an
appointee will be some official such as the chief Social Worker
for the area concerned. Thus the chief Social Worker for the area
is likely to be making decisions about the provision of treatment
(or even sustenance by tube) to the patient and thus perhaps making
a decision about whether that patient should continue to live
or not, even though that social worker is not medically qualified
and has no medical duty of care. That is clearly a matter for
184. We strongly urge that the provisions allowing
deputies to consent to treatment be restricted to exclude the
withdrawal or refusal of life-sustaining treatment. Unless there
is a valid LPA or advance decision expressing the individual's
wishes in relation to the subject, decisions relating to the carrying
out or continuation of life-sustaining treatment should be referred
to the Court of Protection for determination.
185. Evidence was submitted to the Committee that
there was some confusion as to whether certain decisions should
be taken, or acts done, under the general authority or by the
appointment of a deputy. The MDA expressed concern that the borderline
between the general authority, and the occasion when an application
should be made for the appointment of a deputy, was unclear:
with the general authority being
so broad, we do not really see many situations where a family
or carer would feel the need to apply to become a deputy. That
is a problem which is again a reason why the general authority
needs to be more circumscribed."
186. Accordingly it is foreseeable that, due to the
wide scope of the general authority, decisions will be taken or
acts done under the general authority even though they might be
more appropriate for a deputy to undertake. A deputy will only
be appointed if the court is satisfied that the appointment is
in a person's best interests and the powers conferred on the deputy
will be as limited in scope and duration as possible.
The appointment will therefore provide safeguards lacking in the
exercise of the general authority.
187. The Committee strongly recommend that it
should be made clear on the face of the Bill which decisions or
acts should fall under the remit of a court appointed deputy and
not under the general authority. Furthermore, guidance should
be provided to family members, carers and others exercising the
general authority as to the point at which it would be appropriate
to apply to the Court of Protection for the appointment of a deputy.
187 Law Commission Report No 231, para 8.1 Back
October 1999, Cm 4465, para 3.4 Back
Clause 40(3)(c)&(d) Back
Clause 34(2) Back
Clause 37 Back
Clause 40 Back
Ev 30 MIB 950 para 4.9 Back
Ev 30 MIB 950 para 4.9.1; Ev 203 MIB 1030 para 8.1 Back
As set out in Schedule 1 of the Human Rights Act 1998 Back
Clause 40(3)(d) Back
Ev 228 MIB 778; Ev 30 MIB 950 Back
See Chapter 16 Back
Ev 228 MIB 778 Back
Q634 (Mr Clements) Back
'Making Decisions' (CM 4465) Chapter 3, para 3.4 Back
Ev 30 MIB 950 para 4.9 Back
Enclosure to letter dated 31 October 2003 from Lord Filkin to
Lord Carter, MIB 1222 Back
Ev 203 MIB 1030 Back
Ev 30 MIB 950, para 4.7.1 Back
Q204 (Mr Broach) Back
Ev 30 MIB 950, para 4.7.1 Back
See Chapter 9 Back
For example, Q511 (Mr Lush) Back
Clause 30(1)(d) Back
Ev 224 MIB 1215 Back
Ev 30 MIB 950 para 4.7.3 Back
Q480 (Mr Dixon) Back
See for example Ev 30 MIB 950, Ev 419 MIB 1193 Back
Q237 (Ms Morgan) Back
MIB 1193, para 38 Back
Q205 (Mr Broach) Back
Clause 16(4) Back