COURT OF PROTECTION: An Introduction

At the heart of the Court of Protection’s jurisdiction are two objectives which cannot always be easily reconciled. Applying the Mental Capacity Act 2005 (MCA 2005) the Court must seek to empower incapacitous people to make (or to participate in making) decisions for themselves whilst, at the same time, equally, protecting them from harm. A number of key cases this year, some of which have received significant press attention, have highlighted this tension at the heart of the Court’s jurisdiction and have demonstrated how the Court and its jurisprudence have continued to mature.

The difficulty that these objectives present to judges is perhaps shown by the number of cases which continue to come before the Court. After two years of decline the number of reported Court of Protection cases on BAILII rose somewhat this year (from 27 to 45). The majority of these were decisions of High Court judges dealing with complex and sensitive matters, and a number of these have sparked press attention. Cases before the Court in the past year have covered a wide range of matters including some issues that the court has not previously had to consider, such as the capacity to enter into a pre-nuptial agreement (PBM v TGT [2019] EWCOP 6) or the capacity to use social media (B v Local Authority [2019] EWCA Civ 913).

An issue that is always of particular sensitivity and difficulty is the question of capacity to consent to sexual relations, and this too was a matter that the Court of Appeal had to deal with in B v Local Authority. The issue has also arisen in Re NB (Consent to Sex), a case before Mr Justice Hayden, the new Vice-President of the Court of Protection. Remarks made by the judge in this latter case drew a great deal of press interest, some of which was later criticised by the judge as “sententious” and “irresponsible.” Nonetheless, the furore made headlines and brought the work of the Court of Protection into the wider public consciousness, as did a visit by BBC Radio 4’s Law in Action to a hearing at the Court’s Central Registry at First Avenue House in Central London. Such attention is likely to increase as the press and general public become aware that the vast majority of Court of Protection hearings take place in public (subject to certain reporting restrictions to prevent the person concerned being identified).

As mentioned above, new appointments have been made in the Court’s hierarchy. Sir Andrew MacFarlane has taken over as President of the Family Division and Court of Protection and Mr Justice Hayden has been appointed to act as its Vice-President. As the new chair of the ad hoc Court of Protection Rules Committee, he has expressed a wish for this to be placed on a proper statutory footing. At the Bar, the year was marked by the setting-up of a Court of Protection Bar Association. This group exists to provide a forum for the discussion of common interests of all barristers undertaking work in the Court of Protection. It is hoped that it will operate to create links and break down the divide that still exists between those that do property and affairs work and those whose practices focus primarily on health and welfare.

In Parliament, the key event of the year (at least so far as the Court of Protection was concerned) was the passage of the Mental Capacity (Amendment) Act 2019 which received Royal Assent on 16th May 2019. This Act, which has its genesis in a report of the Law Commission introduces a new scheme of Liberty Protection Safeguards. These are intended to replace the existing Deprivation of Liberty Safeguards and to provide a mechanism for authorising deprivations of liberty in relation to persons over the age of 16 who have a mental disorder and who lack capacity to consent to the arrangements that are in place for them. No date has yet been set for the new Act to come into force, although it is understood that the Government is working towards an implementation date in Spring 2020.

Also announced in early 2019 was a review of the existing MCA 2005 Code of Practice. Under the MCA 2005 deputies, attorneys, professionals and others acting in relation to a person lacking capacity are required to have regard to the Code. However, the existing Code was published in April 2007 some six months before the MCA 2005 came force and unsurprisingly, as the law has been clarified and developed over the last twelve years, it is now out of date in a number of important respects. Two of these were identified by cases heard in the past year. In the key case of An NHS Trust v Y [2018] UKSC 46, the Supreme Court identified that passages in the Code of Practice that suggested that the Court of Protection must always be involved before a decision is taken to withdraw clinically assisted nutrition and hydration, did not represent the law. Likewise in Re Lawson, Mottram and Hopton [2019] EWCOP 22 Hayden J held that a passage in the Code of Practice that suggested that a welfare deputy would only be appointed in the most difficult cases was incorrect. There is no presumption as to whether or not to appoint a welfare deputy; the decision is one to be taken (like every other decision under the MCA 2005) by reference to the incapacitated person’s best interests.

On the property and affairs side of the Court’s work, there have been a number of decisions of Senior Judge Hilder in relation to the appointment and remuneration of property and affairs deputies including London Borough of Enfield v Matrix Deputies Ltd [2018] EWCOP 22 where the Court took the view that applications to call in a security bond in respect of a deputy who was alleged to have caused loss to the incapacitated person should be determined on a summary basis.

A number of test cases about common mistakes in lasting powers of attorneys were brought by the Public Guardian and were heard by Mr Justice Baker shortly before his elevation to the Court of Appeal. His judgment (The Public Guardian v DA [2018] EWCOP 26) clarifies the approach that the Public Guardian should take when faced with lasting powers that contain ambiguous instructions as to how the attorneys are to act or which contain directions to the attorney to assist in ending the donor’s life.

The next year is likely to be a challenging one. Judgment is awaited from the Supreme Court in Re D, an important case about whether parents can authorise a deprivation of liberty in relation to a 16 year old who lacks capacity to make decisions about his residence and care, and the introduction of the Liberty Protection Safeguards is likely to have an impact on a great number of incapacitous adults and those who fight for their rights before the Court.