Urgent Applications in the Court of Protection

Transcription

1 Urgent Applications in the Court of Protection Second Edition Her Honour Nazreen Pearce District Judge Sue Jackson Nominated Judge of the Court of Protection

2 Published by Jordan Publishing Limited 21 St Thomas Street Bristol BS1 6JS Whilst the publishers and the author have taken every care in preparing the material included in this work, any statements made as to the legal or other implications of particular transactions are made in good faith purely for general guidance and cannot be regarded as a substitute for professional advice. Consequently, no liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in this work. Jordan Publishing Ltd 2014 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or by any means, including photocopying or recording, without the written permission of the copyright holder, application for which should be addressed to the publisher. Crown Copyright material is reproduced with kind permission of the Controller of Her Majesty s Stationery Office. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN Typeset by Letterpart Ltd, Caterham on the Hill, Surrey, CR3 5XL Printed in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne

3 CONTENTS Foreword to the First Edition Preface Table of Cases Table of Statutes Table of Statutory Instruments Table of Practice Directions and Codes of Practice List of Abbreviations v vii xix xxv xxix xxxi xxxv Chapter 1 Introduction 1 Part I General Chapter 2 General Principles 7 Law and practice Introduction To whom does the Act apply? Key principles that underpin the Act Threshold test of capacity 10 Diagnostic stage 10 The functional stage 11 (a) The person s ability to understand the information provided 12 (b) The ability to retain information 13 (c) The ability to use or weigh the information as a test of capacity 13 (d) The ability to communicate 13 Threshold of incapacity in cases of urgency (interim orders) 14 Assessment of capacity Best interests s Independent mental capacity advocates ss Permission to apply 20 Factors which the Court must take account of when considering an application for permission 22 Procedure for application for permission Allocation r86 23

4 x Urgent Applications in the Court of Protection 2.9 Fees and costs 25 Court fees 25 Charging 25 Costs 25 Precedent 28 Part II Property and Affairs Chapter 3 Appointment of a Deputy by the Court, Objection to the Appointment of a Deputy or Suspension and Discharge of a Deputy 33 Law and practice Powers of the Court The Court s approach when appointing a deputy Court s powers in relation to property and affairs Who can be a deputy? Costs Restrictions on deputies Objection/suspension/discharge of the appointment How to make the application for objection/suspension/discharge 42 Is permission required 42 How to apply 42 Urgent application 43 The Court 43 Service 43 The respondent/s to the application Procedural guide for objection/suspension/discharge of a deputy 45 Precedents 47 Chapter 4 Enduring Powers of Attorney 75 Law and practice Background Characteristic of EPAs Contents of the notice Grounds of objections Revocation Legal effect of registration Court s powers 78 The Court s power to confirm revocation on application by the donor 78 The Court s power to direct cancellation of a registered instrument Cancellation of registration by Public Guardian Practice and procedure 79 How to apply 80 Service 80

5 Contents xi Certificate of notification 80 The Court Procedural guide for registration of enduring power of attorney and objecting to registration and cancellation of the power 82 Precedents 83 Chapter 5 Lasting Powers of Attorney 89 Law and practice Background Characteristics of LPAs Registration of an LPA 91 Persons to whom notice of application to register must be given 91 Public Guardian s duty to register 91 Grounds on which registration may be refused Grounds of objection Revocation and cancellation Court s powers 95 As to validity under s As to operation under s Practice and procedure How to apply Procedural guide for registration of lasting power of attorney and objecting to registration and cancellation of the power 99 Precedents 100 Chapter 6 Statutory Wills 115 Law and practice Introduction Position under the Act 116 Best interest and P s wishes Capacity Factors to be considered before making an application Procedure 123 Who may apply for a statutory will 123 Respondents to an application for a statutory will PD 9F(9) 124 Person who must be notified of the application 124 The application form 125 Information to be provided with the application form PD 9F(6) 125 A copy of any existing will 126 Any consents to act as proposed executors 126 Details of family members 127 Valuation of assets 127 A schedule of the patient s current and future needs 127 Details of any capital gains tax etc 127

6 xii Urgent Applications in the Court of Protection An explanation of the effect if any, that the proposed changes will have on the patient s circumstances, preferably in the form of before and after schedule of assets and income Evidence required Provision that may be made in a will 128 Requirements relating to execution 128 Effect of execution 128 Procedure on execution of a statutory will Procedural guide 130 Precedents 133 Part III Personal Welfare (Including Health) Chapter 7 Welfare Decisions Marriage, Sexual Relations, Residence and Contact 145 Law and practice Introduction Capacity to marry and capacity to have sexual relations Residence Independent mental capacity advocate (IMCA) ss 38 and Contact 164 Prohibition on direct contact 165 Restrictions on contact 166 Endorsement of penal notice and an injunction Court s powers to make welfare orders Welfare deputies Practice and procedure Procedural guide for welfare order 173 Precedents 175 Chapter 8 Urgent Medical Treatment 197 Law and practice Introduction Persons who lack capacity s Inability to make decision s Best interests s Refusal of assessment/treatment Undue influence in decision making Phobia Fear, panic and anxiety Pain Abuse of drugs Religious beliefs The unborn child 208

7 Contents xiii 8.13 The common law doctrine of necessity and the position under the Mental Capacity Act Practice and procedure 212 Is permission required s50andpart How to apply Parts 8 10 of the COP Rules 2007 and PD 9C and 10A 212 What will the Court do if permission is granted to make the application 213 What the applicant must do if the application is granted 214 What the person served with or notified of the application should do 215 Hearing Powers of the Court of Protection in medical treatment cases Costs Appeals Procedural guide for applications for urgent treatment 217 Precedents 219 Chapter 9 Serious Medical Treatment 225 Law and practice Introduction Definition of serious medical treatment and serious consequences Basis principles Withholding /withdrawing ANH from a person in a persistent vegetative state (PVS) What of cases where there is some awareness in P minimally conscious state (MCS) 234 Strongly held wishes and religious beliefs of patient in minimally conscious state Cardio-pulmonary resuscitation (CPR) Cases involving organ or bone marrow donation by a person who lacks capacity Non-therapeutic sterilisation 239 Guidance on practice and procedure Other cases where the case should be treated as requiring serious medical treatment Termination of pregnancy Use of reasonable force Experimental medical treatment Emergency medical treatment Advance decision ss Validity of the decision 253 Conditions which must be satisfied for an effective advance decision relating to life-sustaining treatment 253 Effect of an advance decision 255

8 xiv Urgent Applications in the Court of Protection 9.15 Independent mental capacity advocates ss The purpose of the IMCA 256 Definition of clauses referred to above 257 Functions of the IMCA Practice and procedure 259 Allocation 259 Steps to be taken pre-proceedings 260 The application form 260 The applicant 261 Permission to apply 262 Court fees 263 Urgent applications 263 Parties to the application 264 Respondent to the application 264 Persons (although not respondents) who should be notified 265 Steps that the respondent/s need to take (PD 9C) 265 First directions 265 Form of draft order Procedural guide for an application in cases of serious medical treatment 267 Precedents 270 Part IV Deprivation of Liberty Chapter 10 Deprivation of Liberty 281 Law and practice Introduction Background What are the Art 5 rights which must be respected? What amounts to a deprivation of liberty? 285 Restrictions for the benefit of the person 290 Relevance of consent 291 Relevance of the freedom to leave 292 Cases post 2009 and the introduction of the DOLS The new framework of Safeguards The Court of Protection s powers to make declaration authorising deprivation of liberty Authority to restrain 305 What is meant by restraint Restraint or deprivation of liberty in a hospital or care home 306 When do the Deprivation of Liberty Safeguards apply? 306 The s 5 provisions 307 The Sch A1 provisions 307 The qualifying requirements 308 The age requirement 308 The mental health requirement 309

9 Contents xv The mental capacity requirement 309 The best interests requirement 309 The eligibility requirement 310 The no refusals requirement Standard authorisation 311 The application process for authorisation 311 Supervisory body 313 The interface between the administrative DOLS regime and the Court of Protection 315 Decision making 315 Responsibilities of the supervisory body 316 Position where equivalent assessments have already been carried out 316 Supervisory body s duty to give authorisation 317 Duty of the managing authority 317 Rights of third party to require consideration of unauthorised detention by the supervisory body Urgent applications Appointment of relevant person s representative Challenging authoristion Review by the supervisory body 320 Review 320 Procedure The Court s powers in relation to standard and urgent authorisation under Sch A Procedure 322 When can an application be made to the Court of Protection? 323 Who can apply without permission? How to apply 324 Steps to be taken before issuing an application 324 Issuing an application 326 The Court Office 326 After issue/directions given 327 The first hearing 327 Orders the Court can make Appeals 328 Practice in relation to without notice applications Example of orders Procedural guide for deprivation of liberty order 331 Part V Children Chapter 11 Children 335 Law and practice Introduction 335

10 xvi Urgent Applications in the Court of Protection 11.2 Property and affairs Young person between the ages of years 336 The assessment 338 The pathway plan 339 The functions of the personal adviser 340 Part VI Publicity and Disclosure Chapter 12 Publicity, Restrictions on Publication and Attendance by Representatives of the Media 343 Law and practice Introduction Hearings in private Attendance of media in proceedings 345 The problems that arise 345 Procedure for making an application for permission to attend and to publish COP Rules 2007, rr 90 and Orders that the Court may make to displace privacy 346 When may the Court make any of the above orders 347 Ground on which the Court may make the orders 347 Notification of proposed reporting restriction orders 351 Notice of an application seeking restrictions on publication on Convention grounds 352 Drafting of orders which include conditions and restrictions Procedural guide for an application by the media for permission to attend and reporting of information 356 Chapter 13 Disclosure 357 Law and practice Introduction Meaning of document Meaning of disclosure Privileged documents Ongoing duty of disclosure Consequences of failure to disclose Court powers to withhold disclosure of documents Disclosure of sensitive material to counsel or special advocate Editing information contained in documents Procedure 365

11 Contents xvii Part VII Enforcement and Appeals Chapter 14 Enforcement 369 Law and practice Background Penal notice Freezing orders and injunctions and charging orders Procedure 373 Permission 373 How to apply 374 Issue 374 Service 375 The respondent/s to the application 375 Orders Committals 375 Service of order to be enforced 377 Use and content of prescribed forms and evidence in support 377 The content of the affidavit 378 Service of the application for committal 378 Oral hearing 379 Burden and standard of proof 379 Disposal of the committal application 379 Power of the Court to commit on its own initiative 380 Discharge of person committed 381 Form of committal order Procedural guide 382 Precedent 383 Forms 385 Chapter 15 Appeals 393 Law and practice Introduction Avenues of appeal Grounds for allowing an appeal 394 The decision below was wrong Permission to appeal Matters to be taken into consideration when considering an application for permission Appellant s notice Extension of time Documents to be filed with the appellant s notice Respondent s notice Documents to be filed with the respondent s notice Service Power of the appeal judge on appeal 400

12 xviii Urgent Applications in the Court of Protection Determination of appeals 401 Part VIII Appendices Appendix 1 Mental Capacity Act Appendix 2 Transparency in the Court of Protection Publication of Judgments 565 Index 571