UK: The Court Of Protection – Recent Cases And Comments On Procedure (Part 2)

This article is part of a series: Click The Court Of Protection – Recent Cases And Comments On Procedure (Part 1) for the previous article.

31. In Re JK (unreported, July 2009), however, the Official Solicitor argued that this jurisdiction was very limited and should only be exercised very sparingly. The court declined to hold that the individual concerned met the test of being a vulnerable adult. It remains to be seen in which cases, other than those involving forced marriage (as was the case in SA) the High Court will be willing to exercise its inherent jurisdiction. Local authorities should therefore be aware than where someone is judged to be a vulnerable adult, but does have capacity, it will not be a straightforward matter to obtain the intervention of the High Court in the form of a best interests decision. They should, in particular, be aware that the High Court may well only be persuaded to intervene to take such steps as are required to enable the vulnerable adult to take the decision in question without the external pressures identified by Munby J.

32. Some further guidance may be found in PM v KH (Re HM) [2010] EWHC 870 (Fam), which is the most recent decision in an long-running case before, now, Munby LJ under the inherent jurisdiction relating to the abduction of an incapacitated adult. It is of particular importance because Munby LJ sets out in some detail (paragraphs 32 ff) his views as to the powers of the Court in cases under the inherent jurisdiction to make orders of the following kind: (1) injunctive orders directed to a respondent (PM) with custody of an incapacitated adult (HM), including a collection order; (2) orders inviting the assistance of both domestic and foreign public (including judicial) authorities; (3) orders seeking information from various individuals, friends or associates of a respondent (including summonses to court to give evidence), from various banks, insurers and travel agents, from an airline, various telephone and email service providers and the DVLA, and from others thought to be holding monies for PM; (4) freezing orders, some directed to specific individuals in relation to specific assets held by them, the other a general freezing order in respect of all of a respondent's assets which has been renewed from time to time; (5) various orders permitting frozen funds to be used to fund living expenses and to fund not merely PM's legal costs in this country and in Israel but also the living costs of HM and her mother (KH) costs both here and there and the costs of HM's guardian in Israel, together with directing a third part to transfer monies from an account in his name to an account in the name of the Official Solicitor's solicitors, directing the relevant bank to honour those instructions whatever contrary instructions they might have from PM, and subsequently directing the solicitors as to the utilisation of funds in that account and (6) various orders designed to prevent PM knowing what was going on, though at the same time permitting appropriate disclosure to others.

33. As Munby LJ noted, all of these orders would be familiar in the context of the location and recovery of missing or abducted children; he took the view that the Court had the power to make such orders in the case of an incapacitated adult, at least under the inherent jurisdiction. He was at particular pains: (1) to indicate the basis (paragraphs 36-8) upon which the Court in relation to children had the jurisdiction to order information to be provided by third parties where there is reason to believe that such information would lead to the location of the missing adult; and (2) to indicate the basis (paragraphs 39-40) of the Court's powers in relation to children to seize or block access to funds. He then went on to hold that (citing his own decisions in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867 and Re HM, PM v KH and others [2009] EWHC 2685 (Fam) that the Court has exactly the same powers in relation to a missing adult lacking capacity as it does in relation to a missing child.

34. The principles elucidated by Munby LJ in Re HM would, it seems, be equally applicable to a case proceeding in the Court of Protection (by virtue of s.47(1) MCA 2005, which provides that "[t]he court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court." The case is therefore of importance for anyone concerned with the – relatively rare, but far from isolated – circumstances in which P has gone missing and the involvement of a particular individual is suspected.

Interaction between COP/JR

35. The interaction and overlap between best interests proceedings and judicial review arises in many cases but has not been the subject of reported decisions. The issue can often arise where the family (or the Official Solicitor) wants substantial levels of support to enable the patient to remain living at home, whereas the local authority would prefer to fund a cheaper and simpler residential placement. Can the judge making the best interests decision consider whether the local authority's proposals are lawful in public law terms? Different judges appear to take different approaches to the problem. In best interests proceedings in the High Court, one judge in a case in which one of the authors was involved expressed the view that the best interests decision is simply a matter of choosing between available alternatives. Any consideration of whether a particular care plan is lawful has to be carried out by way of judicial review, such that separate proceedings should be issued and then joined to the best interests proceedings so that both matters can be determined simultaneously and by the same judge. There is a clear overlap between the two matters, since if the grounds for judicial review of the care plan are that it fails to meet the individual's assessed needs, or that those needs have not been properly assessed, this will have obvious implications for whether the proposed arrangements could be in the individual's best interests.

36. Having obtained a best interests declaration, can a family member or the Official Solicitor rely on it to argue that an failure to implement the care plan approved in the best interests decision is irrational? No doubt the fact of a best interests decision would assist any such claim for judicial review, but the Court of Protection cannot short circuit this issue by requiring a local authority to implement the solution it has identified as being in the individual's best interests. It is likely that this issue will have to be the subject of a reported decision before too much longer, in particular as the financial pressures upon local authorities increase and it becomes more and more likely that local authorities involved in Court of Protection proceedings will seek on funding grounds to refuse to implement care plans endorsed by the Court.


37. Schedule 3 to the MCA 2005 relates to the international protection of adults. It may not have troubled many local authorities, but it has arisen in two cases in which one of the authors of this paper has been involved:

  1. in the first, Re P and OM, the High Court confirmed that the Court of Protection had jurisdiction in health and welfare matters over P, an incapacitated adult who had previously been resident in the United Kingdom but, subsequent to her loss of capacity through dementia, had been removed from the United Kingdom. This jurisdiction was founded upon the fact that paragraph 7(1)(a) of Schedule 3 gives the Court of Protection jurisdiction over an adult habitually resident in England and Wales, and the Court accepted that (at least on the facts of that case) P could not change her habitual residence once they lose their capacity to determine where they wish to reside;
  2. the second case is ongoing, and the Court of Protection is being asked to test the proposition from the opposite angle. A woman, originally British but previously resident abroad for many years, was brought to England after she lost the capacity to determine her residence through dementia. The issues of whether the Court of Protection has jurisdiction over her and on what basis, together with the wider question of how the Court should go about the steps mandated by Part 4 of Schedule 3 to recognise and enforce protective measures taken overseas are all to be scrutinised for the first time in a hearing listed for the middle of July.

Bringing proceedings

38. Proceedings are often instigated by local authorities, whether due to concern about an individual's wellbeing, or because of disputes with family members which have not been able to be resolved in any other way. There are a number of common pitfalls for local authorities to be aware of and to avoid, in order to obtain the swiftest possible progress of a case through the Court of Protection.


39. Before proceedings are even contemplated, it is important that local authorities have a realistic view of the time and resources that will need to be invested. Proceedings in the Court of Protection are usually lengthy and expensive. Expert reports may be commissioned, many hearings may be required at which social workers will often be needed, and it is difficult to stop proceedings once they have been started. If there is any prospect of a dispute being settled through mediation or discussion, this should be explored thoroughly.

40. Further, thought must be given as to whether proceedings are required in any event:

  1. for example, where the local authority has granted a standard authorisation for a deprivation of liberty, the mere fact that a family member may disagree with that authorisation does not necessarily mean that the local authority has to take the matter to court. This, again, might well be something that could be addressed by way of other measures, for instance by reviewing the best interests assessment in light of the family member's comments;
  2. at present, however, there is something of a void in terms of guidance (either from cases or by way of Practice Directions) as to when the local authority should take matters to Court. This may be contrasted with the position that prevailed prior to the coming into force of the MCA 2005, when the Practice Direction (declaratory proceedings: incapacitated adults) [2002] 1 All ER 794 – adopting as valuable guidance to be followed the approach suggested by the Official Solicitor – indicated that "[t]he claimant should be the NHS Trust or other body responsible for the patient's care, although a claim may also be brought by a family member or other individual closely connected with the patient" (emphasis added);
  3. it is certainly the case that, if a family member does bring proceedings and the local authority is – inevitably – brought in as a party, it will generally be the case that the Court will look to the local authority to act as the applicant in terms of the preparation of bundles and so forth. This is particularly so when the family member is unrepresented, but we have had experience of the Court directing that the local authority be made the applicant even where it has expressed deep unwillingness to do so. Quite whether this is something the Court actually has jurisdiction to do is another question, but as a matter of pragmatism, it makes a great deal of sense for the local authority to act as applicant unless there are very good reasons not to do so: in our experience, cases where this is not the case tend to take even longer and consume even more resources.

41. First, it is vital that good quality evidence as to mental capacity is obtained:

  1. this means that evidence should ideally be obtained from a psychiatrist, and should address expressly the test for capacity under the Mental Capacity Act 2005. Reports from general practitioners can be inadequate due to their relative lack of familiarity with questions of capacity (and we have heard that general practitioners are in any event increasingly unwilling to provide them without charging a fee).
  2. local authorities may wish to identify psychiatrists working in their area who could be asked to produce capacity reports and who could be given particular training about the law. They should, at a minimum, have read (or at least have access to) the BMA/Law Society book Assessment of Mental Capacity, A Practical Guide for Doctors and Lawyers, in its 3rd edition (published December 2009), and not merely because authors of this paper contributed to it;
  3. In cases where there is guidance from case-law about how to apply the test of capacity, for example in relation to capacity to consent to sexual relations, and capacity to consent to marriage, it is prudent to ensure that the person assessing capacity is familiar with this guidance and prepares a report that demonstrates an understanding of the proper legal approach;
  4. in all cases, evidence should be obtained not merely in relation to the specific issues that the proceedings are likely to address, such as contact with particular relatives, residence, and so forth, but also as to capacity to litigate about those specific issues. Capacity to litigate is not presently addressed as a separate box on the COP3 form (although this is likely to be remedied when the Court of Protection Rules Review Committee completes its work), and is frequently overlooked; this then leads to problems with representation by the Official Solicitor, who will not act without evidence as to lack of capacity in this regard.

42. Secondly, it is helpful if the information that accompanies the initial application to the Court of Protection sets out in some detail and with supporting evidence the claims are being made about the risks to the person in question. Often, the case can seem clear-cut to the social work team involved, but a brief summary in the application form may not convey to the unfamiliar reader the true extent of the problems. Further witness statements and evidence will be required once proceedings have started, but it is as well to include a thorough statement of the concerns at the outset, so that the nature and seriousness of the dispute is immediately apparent.

43. In the experience of the writers, care plans (and transfer plans – see below) can be an area of particular difficulty. Care plans produced by social workers for other social/health professionals do not always translate well into litigation. It is helpful to remember that the judge and the representatives of the Official Solicitor are lawyers and not social care professionals. This means that what might feel obvious to a social care professional reading a care plan may need spelling out. It is often helpful to set out what an average day looks like in terms of activities and support, both in the period immediately after a move and once P has settled in.

44. The fact that the Official Solicitor is a department made up of lawyers can also influence the shape of litigation. Whilst there is a large degree of institutional knowledge in the Official Solicitor, in his capacity as litigation friend, the Official Solicitor will often insist that independent reports as to best interests, and sometimes capacity, are obtained. Some local authorities/PCTs feel that this represents implicit criticism of their own assessments. In some instances, it does reflect a likely or possible difference of opinion. But sometimes it is more a product of a desire for an independent social work opinion for the Official Solicitor and/or court to rely upon when reaching a view. A local authority will have to decide whether to rely purely on its own evidence, or whether to take part in a joint instruction. Coming in on a joint instruction does have significant advantages, in particular because it allows an opportunity to frame the way in which the expert reports by way of input into the letter of instructions. Furthermore, it may be that in some cases, the joint instruction of an independent social work expert can be useful in bringing family and social workers together, which is vital for when the proceedings come to an end. Where the local authority's evidence is insufficiently robust, it may be ordered to be part of a joint instruction against its wishes, although the authors query whether the court could lawfully compel a local authority to engage in instructions.

45. Thirdly, it will be important to ensure that crucial witnesses are brought on board early on in proceedings. For example, where individuals are living in care homes that are not run by the local authority, the support of the care home for the proceedings will be needed. As often as not, the care home will itself be joined as a party. This may be resisted, on the grounds of resources: it can then be up to the local authority to try to persuade the care home managers to take part in proceedings, in circumstances where from the care home's perspective, much the easier route would be to terminate the placement.

46. Fourthly, before issuing proceedings, local authorities should be careful to consider the quality and strength of the evidence that exists in relation to alleged abuse or assault, and which has been used as a basis for drastic restrictions in contact. Social work teams who have been involved with difficult situations for many months or years may understandably have reached the conclusion that an individual is being abused, or that drastic restrictions on contact are the only way to prevent a care package from breaking down. However, local authorities need to be careful to look in some detail at the evidence underlying such situations, and to ensure that adequate thought has been given to other ways of improving relationships.

47. Fifthly, it is worth noting that personal welfare deputies are only appointed very rarely. The favoured approach is to set out clearly declarations and orders that will deal with the particular disagreements that have been identified, and can be made by the court and reviewed as necessary. If an application for a deputy is required, it will be important to identify in some detail exactly what sort of issues are likely to arise for decision in the future, the reasons why a deputy will be needed to make those decisions, and reasons why they cannot be dealt with at the time by an application to the Court of Protection.

48. Sixthly, it is prudent to prepare a bundle in accordance with the Practice Direction (Family Proceedings: Court Bundles3 at the outset of proceedings. In broad terms, this provides for the following divisions: (a) preliminary documents (such as position statements and the like); (b) applications and orders; (c) statements and affidavits; (d) care plans (where appropriate); (e) experts' reports and other reports; and (f) other documents, divided into further sections as may be appropriate, with numbering internal to each division. As well as endearing the local authority to the judge, it saves considerable time and confusion later on and means that the bundles can be updated easily.

49. Lastly, where the individual lacks litigation capacity, contact the Official Solicitor at an early stage. The Official Solicitor needs to investigate the individual's means before he can agree to act and this can be a time-consuming process. Further, if the case raises a new or particularly difficult issue, it may be helpful to discuss it with the Official Solicitor at an early stage to see whether he is likely to support the local authority's approach.

During proceedings

50. The following represent the fruits of the authors' collective experience in the conduct of best interests proceedings in the Family Division at the Royal Courts of Justice, Archway and in the regional courts (in particular in Birmingham):

  1. it is almost always the case that proceedings develop a life and shape of their own which cannot be determined at the outset. It is therefore particularly important to be in a position to prepare for and hence to set the agenda at directions hearings; if one does not do so, then the burden will usually fall upon the Official Solicitor, which can mean that the direction of proceedings takes a course that the local authority is unhappy with;
  2. connected to this is that it can be difficult to 'ring-fence' issues. For instance, local authorities regularly seek the endorsement of the Court to deprive service users of their liberty in order to transfer them to a care home (where they will then be covered by a standard authorization).4 We have had very different experiences of the process before the same judge at Archway – in one instance, the local authority had prepared an extremely detailed assessment of the transfer process and of the benefits of the residential placement to which the move from home was proposed, and had also ensured that they had clarified the position of the patient's relatives (who were either supportive of or neutral in relation to the move). The Official Solicitor was consulted in advance of the hearing, was shown the documentation, and, whilst not formally consenting, did not object to the proposal. The move was then endorsed at one hearing and the proceedings were brought to an end. In a second case, the local authority had gone through the same process, the family were also in agreement, but the Official Solicitor has taken a different view on residence and the local authority in question has now been engaged in a 10 month-long dispute regarding residence. Whilst it may be very difficult or even impossible entirely to prevent proceedings widening from an initial focus, it does perhaps indicate the extent to which it is necessary to carry out as much work as possible to lay the ground before bringing an application;
  3. a well thought out and detailed transfer plan will be vital if a local authority wishes to ensure a swift resolution of an application for transportation. This will include two parts. First, the moving house per se should be dealt with in the car plan (packing, travelling with whom, what to take in the car, when and where to eat, how to settle in etc). Secondly, if it is anticipate that the use of force may be necessary, the transfer should explain the various stages escalating up to the possible use of force. So for example, when will carers cease to try to persuade and start to lead by the arm? If, as is often the case, there will be a police presence, if not active involvement, regard out to be had to the guidance of Coleridge J in LBH v GP & MP5 which was endorsed by the then president of the Family Division. It may be desirable to have a separate transfer plan/risk assessment from the police.
  4. it is useful, if at all possible, to ensure that orders are agreed on the day, especially where they concern contact schedules. Our experience is that agreeing matters in principle and arranging to set out the finer details later on can lead to time-consuming, expensive and frustrating negotiations via email over the subsequent days as parties think of new points and become more entrenched;
  5. we repeat the point about bundles above: there is no easier way to ensure that the judge is not on your side than by having a bundle that is difficult to navigate. Our experience is also that it is very rare for any of the courts to retain bundles on the court file (even when they say that they will), so the default position should always be that it is necessary to prepare a fresh bundle for each hearing – at least for the benefit of the court;
  6. whilst on the issue of bundles, perhaps the most frequent complaint from the Official Solicitor is that they are not provided with sufficient information during the course of proceedings, for instance by way of contact notes. Whilst the demands of the Official Solicitor can sometimes be unduly onerous, and can place unrealistic burdens upon the hard-pressed social workers responsible for compiling them, it remains the case that it is very much better if documents are compiled and (if appropriate) disseminated on an ongoing basis. It is all too often the case that parties become exercised and matters are brought back to court at great expense (both monetary and in terms of staff time) because of breakdowns in information sharing;
  7. during the course of proceedings, especially contentious proceedings, it is dangerously easy to become fixated on the hearings themselves, and to lose sight of the fact that the involvement of the Court of Protection will (even if does not feel like it at times) come to an end and that it will be necessary to maintain some form of working relationship with the family members in question;
  8. conversely, we have experienced situations where there has arisen a very real tension between the fact that the parties have signed up to hard-negotiated consent orders (especially as to contact) which have been endorsed by the Court and the immediacy of a situation on the ground which is not catered for in the consent order. It must never be forgotten that the mere fact that a local authority is engaged in proceedings does not relieve it of its community care obligations towards P as a vulnerable person within their area for whom they have a statutory obligation. This can, on occasion, mean that it is necessary to intervene in a situation so as to safeguard P (for instance by bringing contact to an end) in circumstances not envisaged in the order. Whilst in an ideal world, orders will be drafted so as to allow the local authority flexibility to act in this way, they cannot always be drafted to cover every situation. If this does arise, it is always necessary to make sure that information is shared with other parties as soon as possible and (where appropriate) the matter is brought back before the court;
  9. wherever questions of P giving evidence and/or police interviewing of P arise, the guidance of Macfarlane J in London Borough of Enfield v SA & Ors [2010] EWHC 196 (Admin).


1. In this regard, the website serves as an invaluable resource, as it features case reports posted by many of the main practitioners in the field.

2. A number of cases have been or about to be heard in which this issue is being considered. It is not yet clear which (if any) will lead to judgments of principle.

3. Issued by the President of the Family Division on 27 July 2006:

4. The new Schedule 1A to the MCA 2005 which came into force in April 2009 introduced system of authorisations for deprivations of liberty (DOLS) which should prevent local authorities from breaching the Article 5 rights of individuals without capacity. In DCC v KH (2009), the Court of Protection confirmed that a standard authorisation would be sufficient to return an individual from contact sessions to his place of residence, where doing so entailed a deprivation of liberty. No anticipatory declaration about the use of force was appropriate because restraint was permitted under s.5 and s.6 MCA 2005. Note, however, that this does not cover the position where a person is being moved for the first time to the anticipated place of residence to be covered by the standard authorisation: whilst the position is not entirely clear, it is the authors' view (so far shared by the Official Solicitor and the Court) that it is necessary to obtain the authorisation of the Court in such a case, especially where there is any indication that it will be necessary to sedate or physically restrain the person in order to facilitate the transfer. For the practical implications of this, see further below in the section dealing with proceedings.

5. Coleridge J at para. 31 - "In the event that it is expected that the assistance of the Police may be required to effect or assist with the removal of a vulnerable/ incapacitated adult ("P") which the Court is being asked to authorise, the following steps should generally be taken:

(1) the Local Authority/NHS body/other organisation/person (the Applicant) applying to the Court for an authorisation to remove P should, in advance of the hearing of the Application, discuss and, where possible, agree with the Police the way in which it is intended that the removal will be effected, to include, where applicable, the extent to which it is expected that restraint and/or force may be used and the nature of any restraint (for example, handcuffs) that may be used;

(2) the Applicant should ensure that information about the way in which it is intended that removal will be effected is provided to the Court and to the litigation friend (in cases where a person has been invited and/or appointed to act as P's litigation friend) before the Court authorises removal. In particular, the Court and the litigation friend should be informed whether there is agreement between the Applicant and the Police and, if there is not, about the nature and extent of any disagreement;

(3) where the Applicant and the Police do not agree about how removal should be effected, the Court should give consideration to inviting/directing the Police to attend the hearing of the Application so that the Court can, where appropriate, determine how it considers removal should be effected and/or ensure that any authorisation for removal is given on a fully informed basis."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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This article is part of a series: Click The Court Of Protection – Recent Cases And Comments On Procedure (Part 1) for the previous article.
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If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.