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COURT OF PROTECTION: An Introduction

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Any review of the past year must inevitably begin with the coronavirus pandemic and the challenges that it has thrown up for the Court of Protection and the wider justice system. The imposition of a national lockdown in March 2020 mean that the Court of Protection had to shift almost overnight from holding attended hearings in physical courtrooms to holding online hearings. This shift presented obstacles that had to be overcome in a very short period of time ranging from the logistical difficulties posed by inadequate technology and physical paper court files to the key goal of ensuring that the voice of the incapacitated person and members of their family continued to be heard in online hearings. It was also necessary, so far as possible, to preserve the work that had been carried out in recent years to open up the Court of Protection and provide public access to its work. A steering group was set up under Mr Justice Hayden, the Vice-President of the Court of Protection, and this has adapted the Court’s procedures to meet the needs of the emergency and provided guidance to practitioners and parties on remote hearings.

Many of the persons whose interests fall within the jurisdiction of the Court are particularly vulnerable to the effects of coronavirus. The need to undertake assessments of capacity and to authorise deprivations of liberty for people being shielded in care homes and other residential accommodation has thrown up particular challenges. The early part of the pandemic saw a striking drop in applications to the court regarding deprivation of liberty assessments, a matter which prompted the Vice-President to write to local authority Directors of Adult Social services to remind them that the pandemic did not remove the need to ensure that any deprivation of liberty had been properly authorised.

The pandemic has also resulted in delays to the introduction of the new liberty protection safeguards. This regime, introduced under the Mental Capacity (Amendment) Act 2019, is intended to replace the existing DoLs regime. Originally intended to be introduced in October 2020, it seems likely that its introduction will now be delayed until 2021. However, the picture is not wholly one of delay; welcome news came in June 2020 during the course of the Parliamentary debates on the Private International Law (Implementation of Agreements) Bill when the Government announced that it would be bringing the 2000 Hague Convention on the International Protection of Adults into force in England and Wales.

There have been a number of important welfare decisions over the past year. In October 2019 the Supreme Court gave its long-awaited judgment in Re D (A child) [2019] UKSC 42 holding that parents could not consent to a deprivation of liberty of a 16 or 17 year old. AB (Termination of Pregnancy) [2019] EWCA Civ 1215, a case in which the Court of Appeal allowed an appeal against a decision by the first instance judge to authorise the termination of a pregnancy, made the national press. The case provided a clear illustration of the extremely difficult and important decisions that fall to be taken by Court of Protection judges. The debate on the correct test which should be applied when determining capacity to consent to sexual relations has continued and has recently resulted in the important decision of the Court of Appeal in A Local Authority v JB [2020] EWCA Civ 735 where the Court recast the issue to be addressed as one of P’s capacity to decide to engage in sexual relations. That decision also made clear that an understanding of the consensuality of sexual relations was part of the information that is required in order to be able to make such a decision.

The property and affairs side of the Court’s jurisdiction has been marked this year by a number of test cases that have been listed before the Senior Judge, HHJ Hilder, with the aim of giving guidance on issues that commonly come before the Court. Re Various Lasting Powers of Attorney [2019] EWCOP 40, whilst primarily concerned with the severance of offending words from lasting powers of attorney, also sought to give guidance on the extent to which an attorney under an LPA can use property belonging to the donor of the power to maintain third parties. Re Various Applications Concerning Foreign Representative Powers [2019] EWCOP 52 looked at the steps that could be taken to ensure that an attorney under a foreign equivalent of a lasting power of attorney could make use of the power in England and Wales. A decision which has caused particular concern to professional deputies is that of Re ACC & Others [2020] EWCOP 9. This case considered the conflict of interests that are faced by a solicitor deputy appointed for an incapacitated person (“P”) who wishes to instruct his or her own firm to provide legal services or conduct litigation on P’s behalf. The Senior Judge sought to identify what steps could (and could not) be undertaken by the deputy without returning to the Court for express permission and she set out measures that should be taken to address the potential conflict of interest that arises. The decision has proved controversial in some quarters and it is likely that this judgment may not be the last word on the subject.

Looking to the future, the pandemic has shown that elements of the way in which the Court of Protection has worked in the past are likely to change. It seems likely that there will be a shift away from paper-based methods of working, with parties being encouraged (as in some other jurisdictions) to file documents electronically. Likewise, recent months have shown that it is not always necessary for lawyers and parties to attend court, particularly for procedural directions hearings, and it seems probable that greater use will be made of remote hearings in the future. Nonetheless, whatever changes are introduced, the key objective must be to ensure that the interests of P remain at the heart of every case before the Court.