It’s a fair assumption that unless you’ve been involved in a case in the Court of Protection, you may never have heard of it. After all, the cases which are heard in the Court of Protection are governed by the Mental Capacity Act 2005 (which came into force in 2007), so in comparison to other courts in our legal system, it’s the baby of the group!
For those of you who have heard of the Court of Protection (I’ll call it the COP for shorthand), and not through your own experience of the court, it’s also a fair assumption that your knowledge of it will have come from reading a news story about a case being heard in the court.
Most of the cases which manage to attract media attention are often extremely unusual, with often very difficult personal family circumstances at the heart of the case, and quite often, the news story paints an awful picture of a court which attracts cries of “how can they do that to a person?”
As a solicitor who specialises in health and welfare disputes in the court of protection, I want to dispel some of the myths that govern the COP.
- It’s a secret Court
This is the usual standard headline by a certain national newspaper who I won’t name – the court of protection is a ‘secret’ court where the public aren’t allowed in and judges can make decisions without any real public scrutiny and no one is held accountable.
To address those fears, a transparency pilot was brought into force on 29th January 2016. It was initially a six month pilot, but has now been extended until at least August 2017. The pilot means that all cases (unless the court makes an order otherwise) will be held in public and any member of the public (or journalist) is allowed into court. Those allowed into court, are given anonymised information about the parties and are told by the judge that if they make any information about anyone involved in the proceedings public, or cause them to be identified, they will be in contempt of court (which is a criminal offence). The default position is that all cases should be heard in public and there needs to be a good reason for them not to be.
Some may argue this doesn’t go far enough. Put yourself in this position; if your mother was the subject of proceedings arguing about whether she should be allowed to refuse kidney treatment, which if allowed would lead to her death, would you want that information splashed all over your local newspaper for anyone to read?
- Who gives a judge the right to decide what’s best for someone?
Well, in the case of the COP, the power of a judge to make a decision on behalf of someone else comes from the decision that the person does not have capacity to make their own decision. There must be a capacity assessment for the judge to consider (which can be challenged, if disputed). If a person has the relevant capacity, they have the right to make their own decisions, however unwise. However, cases in the COP can concern all kinds of people, including those with dementia, mental health problems, psychological or psychiatric disorders, brain injuries or stroke victims, learning disabilities. Having such a condition doesn’t automatically mean you don’t have capacity, so that is why the issue of capacity is such a fundamental issue for a judge to consider.
I have acted for many clients who have suffered from dementia, where the family think it’s best for them to live in a care home. Usually, the evidence is that when they were living at home, they were unable to manage. They would wander off and get lost, they’d leave the hob on, and they wouldn’t eat properly because they’d forgotten how to use the oven. They were vulnerable to financial abuse from the rogue trader who insisted they needed work doing on their house. You get the picture. That person thinks they can manage on their own and wants to go home. They may have little or no understanding about their care needs and have forgotten what life was like when they lived at home.
Or the alternative side of the coin; the local authority put someone in a care home when the family believe they are perfectly able to look after them at home. These cases need to go before a court of protection judge because there is a dispute about where that person should live.
If that was one of your elderly relatives, wouldn’t you want to ensure that such important decisions are scrutinised by specially trained judges?
- Judges make decisions about people they don’t even know
Another common argument amongst the COP haters is that the decision is made by a judge who just reads the case papers. Surely the family are the best people to make those decisions, they really know that person the best?
Not necessarily. Often cases come before the COP because there is a dispute between family members about what is best for their relative. Often cases come before the COP because a family member has abused/ neglected their relative. Or they have been appointed to look after their money and they’ve spent it all on flash cars and exotic holidays. Don’t always assume that relatives are best placed (or entirely independent enough) to make a decision in a person’s best interests.
Judges are also actively encouraged to visit the person, to get to know them, to understand their wishes and feelings. The protected party is encouraged to participate in the proceedings as much as they are able to or want to. They can come to court if they want to.
- The Court ‘takes control’ of people’s money
If you hadn’t guessed already, this is also false. If someone becomes incapable of looking after their own finances, perhaps they are involved in an accident and suffer a brain injury or a stroke, if they don’t have an attorney appointed, there is no one with legal authority to manage their money. This could be problematic. Where a person doesn’t have capacity to manage their own finances, the court can appoint a deputy. The deputyship order gives them legal authority to get information from banks and to look after their money on that person’s behalf. The deputy is subject to scrutiny from the Office of the Public Guardian and has to file annual accounts, as well as paying an insurance premium into court.
The court often appoints family members in this role, because they cannot charge for their time as a deputy. A professional deputy is appointed as a last resort.
Well, you would hope that banks wouldn’t go around letting any old Tom Dick or Harry manage your money without asking for proper authority to do so wouldn’t you?
If the case concerns health and welfare, legal aid may be available providing you qualify.