UK: The Mental Capacity Act - Part 2 - The Court of Protection

Last Updated: 24 October 2007
Article by Cara Guthrie

This is Part 2 of an article considering the provisions of the Mental Capacity Act 2005 (the Act), much of which comes into force on 1st October 2007. This part of the article considers the effect of the changes to the Court of Protection for those representing patients. Given the detailed nature of the provisions, I have only attempted to provide a summary, and a non-exhaustive one at that. Further information is to be found in the Act and the Guidance to it and also the Court of Protection Rules.

The new Court of Protection

The Act creates a new superior court of record which will be known as the Court of Protection. The existing Court of Protection, which is an office of the Supreme Court, will cease to exist.

The new Court of Protection will have the jurisdiction to make decisions for people who lack capacity to make decisions for themselves and to appoint and remove deputies to make decisions for such people. The new Court of Protection will have the jurisdiction to make decisions in relation to personal welfare, decisions which have formerly been made under the inherent jurisdiction of the High Court, as well as decisions about property and financial affairs. This is a wider jurisdiction than that of the current Court of Protection which only has jurisdiction over the property and financial affairs of people lacking capacity.

It is estimated in the Explanatory Notes to the Court of Protection Rules 2007 (the Rules) that the new court will consider approximately 17,000 cases each year. The majority are expected to be in relation to property and financial affairs because a person wanting to make decisions in relation to the property and financial affairs of a person who lacks capacity will need authority to do so. However it is permissible for personal welfare decisions to be made without a court application and the expectation is that personal welfare matters should only be brought before the Court of Protection when the matter cannot be resolved by other means, or where the matter is so serious that a judicial decision is needed.

Court appointed Deputies

Where a person lacks capacity in relation to matters of personal welfare or property and affairs, the Court may appoint a deputy to make decisions on that personís behalf. In deciding whether it is in a personís best interests to appoint a deputy, the court must have regard to the principles that

  • a decision by the court is to be preferred to the appointment of a deputy to make a decision
  • the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.

It is suggested that the court will be reluctant to appoint a deputy to make big decisions about personal welfare, as the decision of the court is to be preferred. It remains to be seen whether the court will be prepared, particularly where someone has serious learning disabilities which will not improve, to appoint a deputy early on with the powers to make decisions regarding personal welfare.

The court has the power to appoint more than one deputy and they can be given the power to act only jointly or severally. It would be possible to have a situation where a professional is appointed a deputy with the power to take decisions in relation to property and financial affairs and another person, for example a family member, is appointed as a deputy with the power to make decisions relating to personal welfare. This would be similar to the situation in the State of California, for example, where it is common for there to be someone acting as the Conservator of the Person and someone else acting as the Conservator of the Estate.

The power of a deputy will depend on the authority given to that deputy by the Court. However there are additional restrictions to the powers of all deputies. A deputy cannot:

  • make a decision if the person has the capacity to make the decision himself;
  • prohibit a named person from having contact with a patient;
  • direct that a different person take over responsibility for the patientís healthcare;
  • make a settlement of the patientís property;
  • execute a will;
  • exercise any power vested in the patient;
  • refuse consent to life-sustaining treatment.

Furthermore a deputy may only do an act intended to restrain the patient if it is within the scope of his authority, it is necessary to prevent harm and the act is proportionate to the likelihood and seriousness of that harm.

The Office of the Public Guardian will be responsible for supervising deputies appointed by the court, direct Court of Protection visitors to visit deputies and deal with complaints about deputies.

Transition provisions provide that existing Receivers will become deputies, keeping their existing powers and duties. Such deputies may make applications to the court in connection with the day-to-day management of a patientís property and financial affairs and any supplementary decision necessary to give effect to any orders made before 1st October 2007.

The Court of Protection Rules 2007

The Court of Protection Rules 2007, which also come into force on 1st October 2007, govern the manner in which proceedings will be conducted in the new Court of Protection. The Rules adopt many of the provisions of the CPR, along with certain rules relating to family proceedings, as well as some of the rules relating to the current Court of Protection. Where necessary the rules have been tailored to meet the needs of the new jurisdiction. There are also practice directions to the Court of Protection Rules which have yet to be published.

The Rules set out the overriding objective of the new Court of Protection. In many ways it is similar to the overriding objective in the Civil Procedure Rules. The overriding objective is to deal with a case justly including, so far as is practicable:

  • ensuring that it is dealt with expeditiously and fairly;
  • ensuring that the patientís interests and position are properly considered;
  • dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
  • ensuring the parties are on an equal footing;
  • saving expense; and
  • allotting to it an appropriate share of the courtís resources, while taking account of the need to allot resources to other cases.

Most applications to the Court of Protection will require the permission of the Court. However the following people, including deputies, will not require permission:

  • a person who lacks, or is alleged to lack, capacity;
  • the person with parental responsibility for a person without or allegedly without under the age of 18;
  • the donee or donor of a lasting power attorney to which the application relates;
  • a deputy for a person to whom the application relates;
  • a person named in an existing court order where the application relates to that order.

The judges of the new Court of Protection will be nominated from High Court judges, circuit judges and district judges. However the Act and the Rules also provide for nominated officers to consider applications by former receivers which relate to the day-to-day management of a patientís property and affairs. It is thought that people currently working in the Court of Protection are likely to become nominated officers when the new provisions come into force.

The Rules contain general rules about costs but also specify the circumstances which would justify a departure from the general rules. The general rule is that the costs of proceedings relating to a patientís property and financial affairs will be met out of the patientís estate. In proceedings concerning a patientís personal welfare the general rule is that there will be no order as to the costs of the proceedings. Accordingly the Rules essentially preserve the current position.

An appeal against the decision of a nominated officer will lie to a judge of the Court of Protection. No permission is required to appeal such a decision. Where a party seeks to appeal the decision of any other judge, permission to appeal is required. Permission to appeal the decision of a district judge may be granted by a circuit judge, a relevant High Court judge or by the President or Vice-President of the Court of Protection. Permission to appeal the decision of a circuit judge may only be given by a relevant High Court judge or by the President or Vice-President of the Court of Protection. Permission to appeal will only be granted where the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.

An appeal judge has all the powers of the first instance judge whose decision is being appealed. An appeal will be limited to a review of the decision of the first instance judge unless a practice direction provides otherwise or the appeal judge considers that it would be in the interests of justice to hold a re-hearing. As would be expected an appeal from the decision of a district judge shall be heard by the circuit judge, an appeal from a first instance decision of a circuit judge shall lie to a relevant High Court judge and an appeal from the decision of a High Court judge will lie only to the Court of Appeal.

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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