Mental Capacity Act 2005: post-legislative scrutiny - Select Committee on the Mental Capacity Act 2005 Contents

Chapter 6: The Court of Protection

201.  The Court of Protection has authority to make decisions on behalf of a person who lacks capacity. The Act itself is silent on when applications should be made, but the Code of Practice to the Act explains that certain decisions, by virtue of their seriousness, must be taken by the Court unless a valid and applicable advance decision is in place. The Code further explains that applications to the Court are also to be made in respect of particularly difficult decisions, or disagreements that cannot be resolved in any other way, including a person challenging an assessment that they lack capacity, and where ongoing decisions may need to be made about personal welfare, property or financial matters. In the absence of an LPA, applications to the court are necessary for dealing with certain cash assets, or for selling a person's property or where the person has a level of income or capital that the court thinks a deputy needs to manage.[366]

Is the Court of Protection appropriate?

202.  Many witnesses valued the expertise of the Court, and its judgments were supported by service user organisations and local authorities.[367] Mencap described the judgements of the Court as "thoughtful and helpful", particularly concerning capacity and consent to treatment, sexual relationships and deprivation of liberty.[368] Kirsty Keywood was "heartened" by rulings which showed "great humanity and compassion for the people and families whom they are supporting".[369] Lorraine Currie of Shropshire County Council referred to a "fantastic body of expertise" among the judges.[370]

203.  Nevertheless many considered the Court to be remote, inaccessible and not well understood.[371] Some highlighted problems in gaining support to access the Court, with limitations on support available through legal aid[372] and the Official Solicitor,[373] the limited ability of IMCAs to act as litigation friends,[374] and concerns regarding the denial of litigation capacity.[375] Some witnesses said it was unclear who should initiate proceedings in the Court of Protection.[376] A number of legal professionals said that the Court of Protection rules required updating in light of experience, citing unimplemented proposals dating back to 2010.[377]

204.  A number of witnesses raised the cost of access to the Court, particularly in relation to cases concerning property and financial affairs, where the costs were usually met by P, even when they did not initiate the litigation.[378] Some argued for lower court alternatives, such as a tribunal service or mediation. Moira Fraser, of the Carers Trust, reported that "our services tell us that they feel it is a sledgehammer approach for comparatively small amounts of money … someone told me that they needed access to less than £5,000 for essential repairs to their mother's house; they had to go to the Court of Protection … and it took forever".[379] We consider these issues in more detail below.


205.  The workload of the Court of Protection has increased year on year since it was established, with 24,586 applications received in 2012, compared to 19,528 in 2009.[380] Responding to concerns about access and delays, District Judge Elizabeth Batten told us that:

"we acknowledge that we have had real problems. We would just like to communicate the fact that our workload has increased by 25% since 2009. Over that time, our staffing has reduced from 118 people in London to 86, a reduction of 30%. We have also been through a process whereby more experienced staff have been replaced by less experienced staff".[381]

We raised the issue of resourcing with Lord McNally who replied that this was a fact of life: "we are constantly asking public servants to do more for less".[382]

206.  Mr Justice Charles argued that, despite this reduction in resources and increasing workload, the Court had maintained or improved performance against its key performance indicators.[383] These consisted of a target of replying to initial applications within 20 working days in 95% of cases, met in 99% of cases in 2012/13; a target of giving directions where there is no oral hearing within 16 weeks in 75% of cases, met in 72% of cases in 2012/13; and a further target of giving directions where there is no oral hearing within 20 weeks in 98% of cases, achieved in 79% of cases in 2012/13.[384] However, based on the figures provided by the Court of Protection, performance against the two targets for giving directions had deteriorated since 2009/10, when 78% of cases requiring no oral hearing received directions within 16 weeks, and 85% of such cases received directions within 20 weeks.[385] Furthermore, the target of replying to initial applications within 20 working days of receipt appears generous, and we have some sympathy, therefore, with concerns raised about delays.

207.  Efforts to increase the accessibility and responsiveness of the Court were made in the proposals of the ad hoc Rules Committee of the Court of Protection in 2010[386] and in the course of subsequent work on updating application forms. Only one recommendation of the ad hoc Rules Committee had been implemented so far; we were told that further implementation depended on support from the Ministry of Justice.[387] Mr Justice Charles explained that there were "long running problems relating to the failure to make amendments to the Rules".[388] At present the rules made no distinction between non-contentious property and financial affairs applications which were processed without oral hearings, and the remaining case-load of contested applications in either property and financial affairs or health and welfare.[389]

208.  However, the one recommendation that was adopted had resulted in the appointment of 'authorised officers', i.e. non-judicial staff, to complete the routine administration of non-controversial property and financial affairs matters. This change was designed to remove the backlog of cases, and had enabled the Court to handle routine property and financial affairs decisions, such as permission to buy a property, more quickly.[390] Solicitors for the Elderly welcomed the change, which had speeded up the process, but they argued that it was still taking too long to deal with matters such as orders for house purchase or disputed Power of Attorney matters.[391] Julia Lomas from Irwin Mitchell LLP argued for the number of authorised officers to be increased "simply because they can cut through so many of the standard decisions that are needed on property and affairs".[392] The Committee learned during its visit to the Court of Protection that there are four 'authorised officers'. They admitted that their small number created a pinch point in the process. When necessary, support was called in from the pool of District Judges.[393]

209.  We note the considerable strain on the processing of applications to the Court of Protection, due to the increased volume of work and significant cuts in staffing. Despite the appointment of authorised officers to handle non-controversial property and financial affairs applications, there continues to be a bottleneck in the process. We are concerned that the means by which this bottleneck is currently eased is from the pool of District Judges. It is questionable whether a system which relies on District Judges deputising for non-judicial staff is cost-effective or proportionate.

210.  We recommend the Government consider increasing the staff complement of authorised officers, following consultation with the Court of Protection, to achieve a significant reduction in the time taken to deal with non-contentious property and financial affairs cases.

211.  We also recommend that the Government consider as a matter of urgency the updating of the Rules of the Court, as recommended by the ad hoc Rules Committee and, as necessary, in light of subsequent changes.


212.  While much publicity is given to the decisions of the Court concerning medical or welfare matters, the vast majority of the case load is made up of non-contentious property and financial affairs cases decided without formal Court hearings. These constitute around 90% of the work.[394] Mr Justice Charles, Vice-President of the Court of Protection, argued that real care needed to be taken to ensure that "the tail does not wag the dog"—the tail being the high profile welfare cases, while "90% are the dog".[395]

213.  Media reporting of the Court of Protection tends to focus on the fact that its proceedings are held in private, and not all judgments are published, leading some to refer to it as a "secret court".[396] Such concerns were not widely raised in the evidence we received, though more open reporting of Court of Protection cases was seen as "important for the transparency of justice, and vital to counter some of the disparaging perceptions and media coverage of the Court as some secret tribunal".[397]

214.  We put these issues to the judiciary and to the Government. Mr Justice Charles and Lord McNally supported greater openness in the interests of transparent justice, while acknowledging the need to protect the privacy of individuals involved in cases.[398] Lord McNally argued that "transparency is the best disinfectant against abuse by people in power."[399] Mr Justice Charles pointed to another benefit:

"The other major advantage of having greater openness would be that it would improve the performance of all involved in the court process. I do not exclude the judges from that, but I think it would definitely improve the identification of issues and prevent quite a lot of family litigants making points that they would simply be embarrassed to make if other people were hearing them, if truth be known".[400]

215.  Since taking evidence on these matters, Sir James Munby, President of the Court of Protection, has issued new practice guidance on the publication of judgments in the Court of Protection, with the effect that more judgments will be routinely made available for publication. In publishing the guidance, Sir James Munby explained that:

"there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name".[401]

216.  We believe that the reputation of the Court will improve with greater transparency. We therefore welcome the decision by the President of the Court of Protection to make more judgments available to the public.

217.  Another way to improve the accessibility of the Court, and reduce its perceived remoteness, is to improve the information provided online. The Court has specific audiences to communicate with, including not only professionals, but also carers, litigation friends and those who may lack capacity or require support to access information to enable decision-making. The staff of the Court, whom we met on our visit, were concerned by their lack of ownership of the web content provided via[402] Their concern was borne out by a witness who argued that the Court had become less accessible when "the Government decided that they should lose their own websites".[403] Mr Justice Charles said that a dedicated website was not necessary, but that having control over the information relating to the Court was.[404] District Judge Elizabeth Batten explained that "not having control of that does limit our ability to put forward what we want to communicate to the public and to users about what we do".[405]

218.  We are persuaded that the Court of Protection has a range of audiences requiring access to information for professional or personal reasons, and that the staff and judiciary of the Court are best placed to determine what that information should be.

219.  We recommend that the Government consider enabling the Court to address the needs of its audiences either by giving it greater control of the information provided on or by enabling the Court to have a dedicated website.

A Mental Capacity Tribunal?

220.  One proposal to make access to justice more readily available was for a lower-tier tribunal system, similar to that operated under the Mental Health Act, particularly in respect of the deprivation of liberty safeguards. West Sussex County Council told us that "the lack of a tribunal system means that challenges are expensive, difficult and involve delays,"[406] and Professor Jones was one of many witnesses who argued that "serious consideration should be given to an alternative tribunal structure".[407]

221.  Support for such a system was not universal. Other ways of making the Court more accessible and less costly, such as removing the need for expert witnesses, increasing regional hearings and nominating local judges, were suggested in order to speed up the process.[408] Alex Ruck Keene thought that a tribunal layer would not necessarily add anything, but that there was a need for "much more aggressive time limits on how quickly a case needs to be progressed through the system and how quickly the court would be expecting to see evidence being produced by people." He felt that some of the evidence gathering work, such as obtaining expert witness reports, was necessary, but some was "perhaps slightly Rolls-Royce".[409] There were also questions about how a tribunal system would be funded and staffed, and whether it would deliver promised benefits.[410] Alex Rook of Irwin Mitchell LLP was unsure what a tribunal system would achieve "because decisions are already taken at district judge level that are fairly accessible. It is probably equivalent to a Mental Health Review Tribunal already".[411]

222.  Evidence from the judiciary suggested that access to justice would not necessarily improve with the establishment of tribunals. Since tribunals were usually composed of panels of three people, the feasibility of reconvening the tribunal, as was often required in cases brought to the Court of Protection, would depend on the availability of all three panel members and would inevitably impact on the time table. The alternative, for a case to be heard by a new tribunal with no previous experience of the case, would impede continuity of oversight.[412] Concern was also expressed that while a tribunal system would have the benefit of being local "the balance goes against it in the context of the Mental Capacity Act".[413] This was because the issues under the Act were often multifaceted, with the result that "Many best interests issues that come before the decision maker involve a wide range of fact-finding, which is something that tribunals do less of than courts".[414]

223.  While we have sympathy with concerns raised regarding access and delay, we believe that the replacement of the Court with a new tribunal system would risk the loss of expertise and potentially increase costs in the system. We therefore conclude that a new tribunal system would not be the best way to address these concerns.


224.  An alternative proposal presented by some witnesses was for greater use of mediation before matters escalated to court.[415] This was mentioned particularly in relation to property and financial affairs cases where the cost of the litigation was met from P's estate. In the absence of a power to award costs against other parties, except in exceptional circumstances, there was very little incentive for the parties to reach agreement.[416] BASW argued that better mediation services would avoid "hasty" applications to the Court and could help to encourage consensus between parties involved in the care of an incapacitated adult.[417] Joanna Burton, a solicitor who advises a large local authority in England, emphasised the benefits of a less adversarial approach to resolve disputes in light of the ongoing relationships between parties: "Whatever the outcome of a dispute P, the [local authority] social workers and P's family are almost certainly going to have to work together when it is resolved and/or the proceedings are over and the less adversarial this process is the better for P".[418]

225.  While supporting mediation in principle, the judiciary questioned how it would be delivered. District Judge Batten explained that "Particularly in property and affairs cases, it can be that nobody in the family wants anything to do with the local authority" meaning that local authority provided mediation would be unsuitable.[419] The group of solicitors and barristers argued that the Legal Aid Agency should be more willing to fund representation at mediation.[420]

226.  There was support from Ministers for mediation. Mr Lamb told us that "anything that avoids the need to go to court seems to me to be on the whole a good thing".[421] Lord McNally said he was an "absolute enthusiast" for mediation, although it could not replace the role of the Court, which remained the "final arbiter".[422]

227.  Despite this widespread support, the availability of mediation appeared to be limited in practice. Mind and Empowerment Matters suggested that this had led to an inappropriate tendency to expect IMCAs to fill this role,[423] because "the Act promotes mediation when family disagree yet the only mediation that exists is often within a legal context and is costly".[424]

228.  A number of witnesses discussed how such services would be resourced. On the one hand, it was argued that greater use of mediation would reduce the number of cases going through the formal court system, bringing about savings. Mr Lamb suggested that there was a "reasonable prospect" of the NHS and local authorities funding mediation from such savings.[425] On the other hand, we were told by BASW that "mediation is not a cheap alternative. It has to be done correctly, professionally and competently, and it also requires a degree of independence".[426] Whereas in the past public authorities had set aside resources to develop such services, this was now difficult for them.[427]

229.  We understand that the Office of the Public Guardian is to undertake a pilot study to "determine whether an in-house mediation service is a feasible option".[428] We were told that cases where mediation might be particularly useful were those involving disagreement between family members, "usually involving one or more attorneys … or a Court appointed Deputy"[429] and that cases selected for the pilot were likely to focus on property and financial affairs.[430] However, we were disappointed to learn that the pilot will involve only 15-20 cases, and that mediation would take place via the telephone. Building relationships and establishing trust are vital in mediation. Moreover, mediation carried out under the Mental Capacity Act should conform to the framework for decision-making set out in the Act, including taking all practicable steps to help P to make the decision for themselves; and where this is not possible, following the best interests principle and process. We find it difficult to envisage how this can be done effectively without face to face communication, and we question how P can be appropriately involved and visible within the process without it.

230.  The Office of the Public Guardian appears to be well placed to provide a mediation service in cases of dispute involving holders of Lasting Powers of Attorney or Court appointed deputies. We are concerned, however, that their proposed pilot study will not provide robust data upon which to make a decision about the feasibility of such a service because of the small sample size and the decision to conduct mediation by telephone.

231.  Mediation under the Mental Capacity Act should conform to the decision-making framework set out in the Act, and provision must be made to ensure that the views and wishes of P are adequately represented and central to the outcome. We recommend that the evaluation of the mediation pilot by the Office of the Public Guardian includes consideration of the extent to which the principles of the Act were reflected in the process.

232.  We are persuaded that mediation would be beneficial in many more cases prior to initiating proceedings in the Court of Protection. We recommend that consideration be given to making mediation a pre-requisite for launching proceedings, especially in cases concerning property and financial affairs where the costs fall to P.

Access to the Court

233.  We heard evidence of barriers to accessing the Court of Protection. Professor Fennell and Dr Series highlighted problems faced by individuals wanting to challenge an assessment that they lacked capacity or a decision said to be in their best interests. They argued that while there "are no explicit statutory or regulatory bars against people who 'lack mental capacity' making an application … people who are said to lack capacity will face many practical difficulties in bringing proceedings".[431] They suggested that these difficulties "dilute the right of access to a court under the MCA to a point where its protection is more likely to be 'theoretical and illusory' rather than 'practical and effective'".[432]

234.  Alex Rook of Irwin Mitchell LLP argued that "there is a real lack of clarity" on the question of who should bring a case to court and called for clearer guidance from the Code of Practice on this.[433] Mencap explained that the Neary case[434] had made it clear "that the onus should be on the [Local Authority] to refer cases to the Court of Protection when there was disagreement about best interests" and had highlighted this case to families "to make them aware that they can ask for a case to be referred and that the onus should not be on them to actually refer it"[435] Nevertheless, Nicola Mackintosh reported that in her experience public authorities did not bring such cases: "what happens is that the statutory body just goes ahead and makes the decision, and leaves it … to some other person, to bring the case before the court. Often that simply does not happen."[436] Irwin Mitchell LLP agreed that a local authority was unlikely to refer a case to the Court to question its own best interests decision, suggesting that the IMCA role to do so should be stronger.[437]

235.  Professor Fennell and Dr Series raised a further concern about access to the Court in relation to "situations where professionals and family are in agreement as to a person's capacity and best interests, but where the person themselves is not."[438] In such a situation the person was unlikely to have an independent mental capacity advocate, and the ruling in Neary appeared not to require the public authority to refer such a case to court. They argued that "surely, under the ECHR, a person's rights to access justice to assert their capacity cannot hinge on something so arbitrary as whether or not their relations and professionals have fallen out?"[439]

236.  We are concerned that the responsibility of public authorities to initiate proceedings in cases of dispute is not widely known or adhered to. We also share the concerns of Professor Fennell and Dr Series regarding the ability of the person concerned to challenge decision-making when all others are in agreement.

237.  We recommend that the Government, and in future the independent oversight body, provide clearer guidance to public authorities regarding which disputes under the Act must be proactively referred to the Court by local authorities. This should include situations in which it is the person who is alleged to lack capacity who disagrees with the proposed course of action. Efforts must be made to disseminate this guidance to families and carers as well as to local authorities.

Legal Aid

238.  Restrictions in the availability of legal aid, and practical difficulties in accessing it, were a strong theme in concerns over access to the Court of Protection. Nicola Mackintosh and Sophy Miles, both expert legal practitioners in the area, explained that "due to the way in which the scope of legal aid has changed from 'it's available unless it is excluded' to 'unless a case falls within the list it will be out of scope', it is likely that some cases which were previously within the scope of legal aid may now fall outside".[440]

239.  Non-means tested legal aid is available for appeals against a standard authorisation made by a local authority acting as supervisory body to deprive someone of their liberty, under schedule A1 of the Act.[441] However, some deprivations of liberty are authorised directly by the Court of Protection and these appear now to be ineligible for legal aid following recent changes under the Legal Aid, Sentencing and Punishing of Offenders Act 2012. Two types of cases falling into this category were drawn to our attention.

240.  If an authorisation expires and is not renewed by the local authority while appeal proceedings are underway, the Court of Protection has in the past authorised the deprivation directly for the duration of proceedings. However, under the recent changes to legal aid, deprivations authorised by the Court are no longer eligible for non-means tested legal aid, potentially resulting in legal aid being withdrawn during proceedings and cases being discontinued.[442] This matter was also raised as a concern by the Official Solicitor.[443]

241.  The second example concerned a deprivation of liberty in supported living accommodation. Only care homes and hospitals are subject to the standard authorisation procedure. However, deprivations in supported accommodation may be authorised directly by the Court. The Law Society said that as a result "for one group of detained persons legal aid is free; for another, because the court authorised the detention, it is not free and P may be prevented from accessing legal advice." This was "an unjustifiable barrier to P's rights under Article 5(4)" of the European Convention on Human Rights.[444]

242.  Another source of concern was the fact that non-means tested legal aid is not available where an unauthorised deprivation of liberty is alleged. As Alex Rook of Irwin Mitchell LLP explained: "If you are saying, 'My family member … is being deprived of their liberty', and the public authority says, 'No, they're not', you do not get non-means tested legal aid".[445] Mr Neary reported that he was frequently contacted by people in this situation.[446] A personal submission, describing the story of a woman (WM) who had acted as a relevant person's representative for her friend (MS) in order to challenge her deprivation of liberty, explained how legal aid was withdrawn after a Best Interests Assessment concluded that there was no such deprivation. As a result WM no longer retained the position as relevant person's representative and the legal aid was lost. Without legal aid WM was not able to "continue a legal fight for her friend's wellbeing".[447]

243.  The means testing of legal aid for all other areas falling under the Act, including for serious medical cases or cases affecting a person's right to life, was also seen as problematic by many witnesses.[448] The Official Solicitor, the 'litigation friend of last resort' for those who lack litigation capacity, told us that his office had traditionally funded litigation in medical cases from his own budget, subject to seeking to recover half the costs from the hospital.[449] He had, nevertheless, refused representation outside these circumstances because of a lack of legal aid. This was because legal aid was available to those who lack litigation capacity in the same way as it is to any person in any normal form of litigation. He told us: "some of my staff spend a lot of their time trying to work out how to fund the representation of the person I have been asked to act as litigation friend for".[450] A group of solicitors and barristers reported that this had resulted in cases where no court proceedings could take place, because there was no-one willing or able to act as litigation friend, and they argued for the Official Solicitor's office to "be resourced so that he is genuinely a litigation friend of last resort who can act regardless of P's resources, as he does in medical treatment cases".[451]

244.  A similar concern was reflected in the report of the Joint Committee on Human Rights (JCHR) in their consideration of proposals to introduce a residency test for legal aid eligibility, whereby an individual would be denied legal aid if they could not provide evidence of having resided in the UK for at least 12 months. The JCHR considered the effect of these proposals on those who lack the mental capacity to litigate. If denied legal aid on the ground of residency, such a person "would have no access to the court whatsoever," because they would be prohibited from acting as litigant in person.[452] Sophy Miles and Nicola Mackintosh also raised concerns about the documentation required to satisfy the proposed residency test. They argued that:

"many people who lack capacity will not have passports, or other documentary evidence of lawful residence, and because their paperwork is often being managed by others (who could be in a position of conflict) this is of significant concern because very vulnerable people at risk of abuse or neglect will be left without protection".[453]

245.  Advocacy Support Cymru argued that, even where legal aid was available, there were significant barriers to access.[454] Changes to the way in which the means test is applied, it was suggested, have impacted particularly on those who may lack capacity.[455] Evidence of income and capital, required in applications for legal aid, may be held by a family member rather than P, raising particular problems in the case of family disputes;[456] delays in obtaining confirmation of benefits claims were also reported.[457]

246.  Lord McNally explained that the policy intention behind the provision of legal aid in cases under the Act, was to "layer the application of legal aid in a way that gave absolute access when it was a question of liberty and then to phase it out with what we considered to be less essential issues".[458] As such, the creation of lasting powers of attorney or advance decisions to refuse treatment were not considered to be of "sufficient priority" to justify funding through legal aid.[459] Means tested legal aid was available for Mental Capacity Act matters "that are within the scope of civil legal aid … including cases involving medical treatment, welfare issues and other best-interest decisions".[460] This reflected the policy that "civil legal aid should be focused on the most financially vulnerable clients".[461] Non-means tested legal aid would be available "where it was a matter of personal liberty", as "such cases are regarded as a particularly strong example of state intervention involving the human rights of a vulnerable individual".[462] We took this to mean all cases involving a deprivation of liberty, regardless of how it was authorised.

247.  However, further information provided by the Ministry of Justice following the evidence session with Lord McNally appeared to narrow the application of "absolute access when it was a question of liberty".[463] We were told that changes contained in the Legal Aid, Sentencing and Punishment Offenders Act 2012 were intended "to put beyond doubt that means free funding was only to apply where an authorisation was in force and was the subject of a challenge under section 21A of the Mental Capacity Act 2005".[464] This specifically excludes deprivations authorised by the Court, or cases where a deprivation is alleged, but disputed.

248.  The Mental Capacity Act concerns some of the most vulnerable individuals in society, whom the law recognises may require support to make decisions. That such individuals will require support to access the legal system is indisputable.

249.  We note the pressures on legal aid, but we are concerned by the inconsistent provision of non-means tested legal aid for cases concerning a deprivation of liberty, including those where there is a dispute over whether a deprivation is taking place. We cannot see a justification for such inconsistency and we recommend that the gap in protection that it creates be remedied as a matter of urgency.

250.  We are concerned by reports that those found to lack litigation capacity are prevented from bringing proceedings due to a lack of legal aid, and note the concerns raised in this regard by the Joint Committee on Human Rights. We are particularly concerned that individuals whom the Court of Protection has asked the Official Solicitor to represent are being refused representation on the grounds of ineligibility for legal aid.

251.  We recommend that the Government reconsider the provision of resources to the Official Solicitor, with a view to determining whether some cases merit the same unconditional support as is currently afforded to medical treatment decisions.

252.  We further recommend that the Government review the policy underlying the availability of legal aid for those who lack the mental capacity to litigate and therefore cannot represent themselves. For such people, denial of legal aid may result in having no access to Court. No-one who is found to lack the mental capacity to litigate should be denied access to Court solely because they do not have the means to pay for representation.

366   MCA Code of Practice (2007), Op. Cit. para 8.35. Back

367   Mencap; Social Care Institute for Excellence. Back

368   Mencap. Back

369   Q 42. Back

370   Q 184. Back

371   Social Care Institute for Excellence; South West IMCA Group; Mental Health Alliance. Back

372   Official Solicitor to the Senior Courts; Rescare (The Society for Children and Adults with Learning Disabilities and their Families); Age UK; Royal Hospital for Neuro-disability; Victoria Butler-Cole, Neil Allen, Andrew Bowmer, Julie Cornes, Charlotte Haworth Hird, Laura Hobey-Hamsher, Laura Jolley, John McKendrick, Alex Ruck Keene, Polly Sweeney, Rachel Turner and Paula Scully. Back

373   Solicitors for the Elderly; Empowerment Matters CIC; Irwin Mitchell LLP. Back

374   VoiceAbility. Back

375   Professor Phil Fennell and Dr Lucy Series. Back

376   Housing and Social Care Services, London Borough of Camden. Back

377   Victoria Butler-Cole, Neil Allen, Andrew Bowmer, Julie Cornes, Charlotte Haworth Hird, Laura Hobey-Hamsher, Laura Jolley, John McKendrick, Alex Ruck Keene, Polly Sweeney, Rachel Turner and Paula Scully. An ad hoc Rules Committee of the Court of Protection recommended a series of changes to update the Rules in 2010, only one of which has been implemented. In addition, Alex Ruck Keene, a barrister and former member of the ad hoc Rules Committee, wrote to us arguing for further amendments to the rules to reflect the changes that have since taken place in the Courts system more widely, including the move of the Court of Protection into the Family Division. Back

378   David Rees; Royal Hospital for Neuro-Disability.; Q 248 (Julia Lomas, Irwin Mitchell LLP). Back

379   Q 138. Back

380   Mr Justice Charles. Back

381   Q 305. Back

382   Q 330. Back

383   Mr Justice Charles. Back

384   Ibid. Back

385   Ibid. Back

386   Report of the ad hoc Court of Protection Rules Committee, August 2010: Back

387   Q 293. See also footnote 377. Back

388   Mr Justice Charles. Back

389   Ibid. Back

390   Ibid. Back

391   Solicitors for the Elderly. Back

392   Q 258. Back

393   Note of the Committee Visit to the Court of Protection. See appendix 10. Back

394   Mr Justice Charles. Back

395   Q 292. Back

396   John Hemming MP (Chairman - Justice for Families); Mira Makar MA FCA. Back

397   Browne Jacobson LLP. Back

398   Mr Justice Charles; Q 329. Back

399   Q 329. Back

400   Q 309. Back

401   Practice Guidance, Transparency in the Court of Protection: Publication of Judgements, Sir James Munby, 16 January 2014, paragraph  2:  Back

402   Note of Committee Visit to the Court of Protection. See appendix 10. Back

403   Peter Edwards (Director, Peter Edwards Law). Back

404   Q 304. Back

405   IbidBack

406   West Sussex County Council. Back

407   Q 25; Safeguarding Essex; Sheffield Safeguarding Adults Board; Shropshire Council; London Borough of Bromley; Derek Boothby AMHP/ BIA; British Association of Social Workers. Back

408   Q 184; Q 258. Back

409   Q 258. Back

410   Q 184. Back

411   Q 250. Back

412   Q 302. Back

413   IbidBack

414   IbidBack

415   VoiceAbility; British Association of Social Work; Jenny Kitzinger; Adrian Watts; The Law Society. Back

416   Note of the Committee Visit to the Court of Protection. See appendix 10. Back

417   British Association of Social Work. Back

418   Joanna Burton. Back

419   Q 311. Back

420   Victoria Butler-Cole, Neil Allen, Andrew Bowmer, Julie Cornes, Charlotte Haworth Hird, Laura Hobey-Hamsher, Laura Jolley, John McKendrick, Alex Ruck Keene, Polly Sweeney, Rachel Turner and Paula Scully. Back

421   Q 327. Back

422   IbidBack

423   Mind; Empowerment Matters CIC. Back

424   Empowerment Matters CIC. Back

425   Q 327. Back

426   Q 151. Back

427   IbidBack

428   Letter from Lord McNally, Minister of State for Justice, 10 December 2013. See appendix 7. Back

429   Ibid. Back

430   Ibid. Back

431   Professor Phil Fennell and Dr Lucy Series. Back

432   Ibid. Back

433   Q 256. Back

434   London Borough of Hillingdon v Neary & Anor [2011] EWHC 1377 (COP) §33. Back

435   Mencap. Back

436   Q 42. Back

437   Irwin Mitchell LLP. Back

438   Professor Phil Fennell and Dr Lucy Series. Back

439   Ibid. Back

440   Nicola Mackintosh and Sophy Miles. Back

441   The Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, regulation 5 (g). Back

442   Nicola Mackintosh and Sophy Miles. Back

443   The Official Solicitor to the Senior Courts. Back

444   The Law Society. Back

445   Q 257. Back

446   Mark Neary. Back

447   MM. Back

448   Age UK Cheshire Advocacy; Irwin Mitchell LLP; Joanna Burton. Back

449   Q 274. Back

450   Q 275. Back

451   Alex Ruck Keene, Neil Allen, Victoria Butler-Cole, Andrew Bowmer, Julie Cornes, Charlotte Hayworth Hird, Laura Hobey-Hamsher, Laura Jolley, John McKendrick, Polly Sweeney, Rachel Turner and Paula Scully. Back

452   Joint Committee on Human Rights, The Implications for access to justice of the Government's proposals to reform legal aid (7th Report of Session 2013-14, HL Paper 100 HC 766), paras 122 & 123: Back

453   Nicola Mackintosh and Sophy Miles. Back

454   Advocacy Support Cymru. Back

455   Nicola Mackintosh and Sophy Miles; Victoria Butler-Cole, Neil Allen, Andrew Bowmer, Julie Cornes, Charlotte Haworth Hird, Laura Hobey-Hamsher, Laura Jolley, John McKendrick, Alex Ruck Keene, Polly Sweeney, Rachel Turner and Paula Scully. Back

456   Q 257. Back

457   Nicola Mackintosh and Sophy Miles. Back

458   Q 332. Back

459   Ibid. Back

460   Ibid. Back

461   Ibid. Back

462   Ibid. Back

463   Ibid. Back

464   Memorandum from Ministry of Justice, 12 February 2014. See appendix 8. Back

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