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


Note by the Clerk and Policy Analyst

Overview of the Visit

A delegation of the Committee visited the Court of Protection on Wednesday 20 November 2013. The members of the delegation were Lord Hardie (Chairman), Lord Alderdice, Baroness Barker and Baroness Hollins. They were accompanied by the Specialist Adviser, the Policy Analyst and the Clerk.

The purpose of the visit was to provide members with the opportunity to view proceedings. However, at the suggestion of the Vice-President of the Court of Protection, Mr Justice Charles, the visit also included a tour of the so-called 'back office' functions of the Court. Having viewed the proceedings and toured the offices, the delegation subsequently met with Mr Justice Charles, a number of high court judges and district judges, and staff of the Court of Protection and the Family Division for a brief Question & Answer session. Staff included 'authorised officers', a role introduced in 2011 to adjudicate in non-contentious property and affairs cases. This note summarises the main points raised over the course of the tour, the proceedings and Question & Answer session.

'Back office functions'

The staff of the Court were keen to emphasise that the vast majority of the work of the Court takes place outside the court room, in the routine administration of applications concerning property and affairs (around 95% of the caseload). Of those applications 93% were non-contentious, according to figures provided by Mr Justice Charles. These were cases which were decided on the papers, without recourse to a hearing, by a small group of authorised staff in a quasi-judicial function.

The volume of applications to the Court of Protection could reach upwards of 100 per day. The majority of these concerned property and affairs, although welfare applications were dealt with as well. How to manage such volumes in a timely manner was of great concern to the management and staff of the Court. Processes were monitored and timed precisely: a wall chart in the corridor showed that the target time for conducting a basic check on a COP44A application form, including whether the form had been completed, signed and dated, was 4.4 seconds. A member of staff commented that the office's move to open plan accommodation would reduce time lost moving between offices, and passing through time-consuming security doors.

There are four 'authorised officers'. Their role in adjudicating on non-controversial property and affairs cases was introduced in 2011, following the report by the Rules Committee. Enabling non-judicial staff to complete the routine administration of such matters was designed to remove the backlog of cases, which had grown to 3000. They considered 200 cases a manageable workload and work towards the key performance indicators (reply to initial application within 20 working days in 95% of cases; decision where there is no oral hearing within 16 weeks in 75% of cases). However, they admitted that their small number created a pinch point in the process. When necessary, and provided other demands on their judicial time allowed it, the four District Judges were able to provide help.

Urgent applications were dealt with by a dedicated office. The aim was to deal with the form within one hour and then to contact a judge for an immediate hearing. The office operated 9-5, five days a week, but there was 24 hour out-of-hours access through the Royal Courts of Justice. There was a dedicated route for making urgent applications that ensured they come into the correct office, but this was not always followed. One example of the changes planned for application forms was to allow applicants to indicate on the front of the form if it was urgent. Examples given of urgent cases were an application by a local authority on the legality of preventing a young woman with learning disabilities from going to a party, where there was a legitimate fear that she would be sexually exploited, and a woman who had barricaded herself into her home against a bailiff with a warrant to seize property. In the latter case the Court was able to contact the bailiff directly and request that they delay enforcement of the warrant while a property and affairs deputy was appointed, who subsequently applied for the warrant to be suspended due to the vulnerability of the individual concerned.

The office also provided a supervisory function for deputies and attorneys, handling applications for financial and property decisions outside the standard powers of a deputyship or LPA. The example was given of an application by an attorney to buy the dwelling house of P. It was acknowledged that this could be appropriate but that the Court would insist on safeguards, such as ensuring that the price paid for the home was not less than the market value. This could lead to delays while valuations were obtained but it was felt to be a necessary safeguard.

The office also contained a call service. When the delegation visited there appeared to be few calls being taken, but it was reported that the average was 500-700 calls per day. There were issues with the telephone system leading to problems receiving calls and when this occurred there was a resulting increase in e-mail enquiries, which had recently tripled. It was acknowledged that callers to the service were frequently vulnerable and required more assistance than most; there was therefore no restriction on the length of calls.


The delegation observed two different sets of proceedings.

The judge in the first set of proceedings was Mrs Justice King. The case was on day three of three and proceedings consisted of an application to accept further submissions, which was denied, and the issuing of the judgment. It concerned a personal welfare, residence and parental contact application regarding the third son of the family to be placed in residential care. The commissioner for health care wished the court to determine that P no longer met the criteria for NHS continuing health care funding and that this was the responsibility of the Local Authority. P resided in a care home for people with severe learning disabilities. He required 2 to 1 care during the day time, and 1 to 1 care at night. He had the cognitive capacity of a one year-old child. His parents disagreed with the placement and had expressed grievances about the care being provided. Placement of P was at risk as due to the dispute over the funding of P's care.

The parents had made several appeals and attempts to discharge the care orders made in this and the previous cases involving his brothers. Previous proceedings in respect of two older brothers of P had been litigated and the parents sought to re-open these cases. They made claims under Article 8 of the Human Rights Act.

P was represented in the case by the Official Solicitor who had engaged Counsel to act for P in Court. Both the health care commissioner and the family were also represented. P was not in Court, but his parents were present, as were the press. In giving the judgment Mrs Justice King indicated that she would use the names of P and his parents in giving the judgment, as a matter of respect for them, but that the printed judgment and all reporting of it should refer to them only by their initials. The judgment was read out in full, with approximately an hour allowed for this. The delegation were present for the first 20 minutes of the judgment, which illustrated some of the issues that the Committee had heard of, including: significant dispute between the family of P and service providers concerning standards of care; unsuccessful attempts at informal resolution, including through changes to the care and contact arrangements provided to P and his family; and cost as a factor in deciding on available care package options. The judgment was subsequently published online following anonymisation.

The second case the delegation observed was heard by Mr Justice Baker. It concerned an application to restrict the online activities of P on the basis that he had an addiction to pornography, a history of sexual offending and was likely to access child pornography. P was present but not legally represented. An interim order declaring that P lacked capacity was made, despite conflicting evidence on capacity. The local authority sought permission to disclose information regarding P to other agencies as part of public protection measures and this resulted in a request by Mr Justice Baker that the Official Solicitor give urgent attention to the appointment of a case manager so that the issue of disclosure could be heard swiftly.

Mr Justice Baker spoke to the delegation after the hearing and outlined some of the challenges presented by the second case, including whether the Court of Protection was the appropriate place to decide on questions of access to pornography. He went on to outline two further cases due to be heard that day, the first relating to accommodation for an individual whose care home was closing, and involved a dispute between her mother and the local authority; the second case related to care arrangements for the children of a person with a significant brain injury. The latter case raised issues with regard to the management of compensation funds and the response of the Court of Protection where issues outside its jurisdiction arose. In this instance Mr Justice Baker was able to act as both a Court of Protection judge and a Family Court judge and deal with both the MCA questions and the care proceedings. When questioned on the legal basis for this, it was explained that this was a pragmatic solution that was not infrequent and had not yet been challenged by parties.

Question & Answer session

The delegation met with Mr Justice Charles, a number of high court judges and district judges, and staff of the Court of Protection and the Family Division, including authorised officers, for a brief Question and Answer session.

The discussion covered the practice of reading out of judgments in full, which was reported to be a question of discretion and preference for individual judges. Some preferred to give a short summary of findings followed by a full judgment later on.

The call for a dedicated website and digital telephone line, made by staff during the tour of the office, was raised again during this session. The delegation was informed that the digital roll-out had been delayed by technical difficulties but was expected to reach the Court of Protection by April 2014. Regarding the website, there was discussion as to the most appropriate way of ensuring that the technical information regarding the Court was made widely available and accessible. Staff felt it important that they were able to respond to issues of concern, for example by placing guidance on urgent applications in a prominent place. Frustration was expressed regarding the constraints on the material that could be presented through the website and the lack of control that gave the Court. It was felt that a dedicated website could contribute significantly to addressing accessibility and remoteness of the Court.

It was reported that the number of applications relating to issues outside the remit of the Court had increased, particularly following cuts to legal aid. Staff attempted to direct such applicants to the appropriate service, but they were not experts so were often limited to advising the individual to contact the Citizen's Advice Bureau or similar. Applicants were generally clearer on which property and affairs issues needed Court oversight, but applications were sometimes made for a deputyship when an appointeeship by the Department for Work and Pensions would be more appropriate, as well as less restrictive and costly.

The desirability of increased mediation was discussed, with some participants in favour. Options included encouraging greater access to mediation provided through local authorities, although the suitability of this was questioned in cases of dispute with the local authority. It was pointed out that since the costs of litigation fall on P and P's estate, there was no incentive to mediate rather than litigate. One participant suggested that a potential solution would be for punitive costs to be attached to parties for failure to attempt mediation prior to litigation. Discussion also covered the potential for the Court to provide mediation, including as a pre-condition of application or active engagement in case management meetings. While some were in favour of this approach, all agreed that this would not be possible with current levels of resources. It was also acknowledged that current practice tried to encourage resolution between parties or, as a minimum, a 'narrowing of the issues' through agreement on all bar the areas of significant contention.

The visit concluded with the Chair thanking all those present for their assistance to the Committee.

November 2013

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