Joint Committee on the Draft Mental Incapacity Bill First Report

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."[187]

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 jurisdiction."[188]

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.[189] 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.[190] In connection with its jurisdiction, it will have the same 'powers, rights, privileges and authority as the High Court.'[191] Furthermore, certain groups will not require permission to apply to the court.[192] 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.[193] However, there was widespread concern as to whether the Court would be accessible to carers and persons lacking capacity[194] and how single orders of the Court would be enforced and by whom.

167. Article 6 of the European Convention on Human Rights[195] requires 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 would be:

    "easier to go to the Court of Protection than it is to go to the High Court."[196]

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,[197] 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.[198] [199]

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."[200]

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.[201] 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.'[202] 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."[203]

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 and complexity".[204] Yet other witnesses expressed the view that:

    "The objectives of this Bill will be wholly undermined without adequate public funding"[205]

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 Bill:

    "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 an LPA"[206]

176. Although some witnesses believed that the draft Bill provided sufficient checks and balances on the powers of court appointed deputies,[207] others disagreed:

    "….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."[208]

177. In common with evidence received on LPAs,[209] the additional safeguards that were proposed to the Committee included a standard of care to be imposed on deputies.[210] Although there is a duty on the Lord Chancellor to prepare Codes of Practice for the guidance of deputies[211] the Law Society further submitted:

    "…that a checklist would be of some assistance in maintaining a standard for court appointed deputies."[212]

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.[213]

    "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."[214]

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.[215] 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."[216]

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 considerable concern."[217]

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."[218]

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.[219] 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

188   October 1999, Cm 4465, para 3.4 Back

189   Clause 40(3)(c)&(d) Back

190   Clause 34(2) Back

191   Clause 37 Back

192   Clause 40 Back

193   Ev 30 MIB 950 para 4.9 Back

194   Ev 30 MIB 950 para 4.9.1; Ev 203 MIB 1030 para 8.1 Back

195   As set out in Schedule 1 of the Human Rights Act 1998 Back

196   Q715 Back

197   Clause 40(3)(d) Back

198   Ev 228 MIB 778; Ev 30 MIB 950 Back

199   See Chapter 16 Back

200   Ev 228 MIB 778 Back

201   Q634 (Mr Clements) Back

202   'Making Decisions' (CM 4465) Chapter 3, para 3.4 Back

203   Ev 30 MIB 950 para 4.9 Back

204   Enclosure to letter dated 31 October 2003 from Lord Filkin to Lord Carter, MIB 1222 Back

205   Ev 203 MIB 1030 Back

206   Ev 30 MIB 950, para 4.7.1 Back

207   Q204 (Mr Broach) Back

208   Ev 30 MIB 950, para 4.7.1 Back

209   See Chapter 9 Back

210   For example, Q511 (Mr Lush) Back

211   Clause 30(1)(d)  Back

212   Ev 224 MIB 1215 Back

213   Ev 30 MIB 950 para 4.7.3 Back

214   Q480 (Mr Dixon) Back

215   See for example Ev 30 MIB 950, Ev 419 MIB 1193 Back

216   Q237 (Ms Morgan) Back

217   MIB 1193, para 38 Back

218   Q205 (Mr Broach) Back

219   Clause 16(4) Back

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