Urgent Applications in the Court of Protection Second Edition Her Honour Nazreen Pearce District Judge Sue Jackson Nominated Judge of the Court of Protection
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 978 1 84661 809 3 Typeset by Letterpart Ltd, Caterham on the Hill, Surrey, CR3 5XL Printed in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne
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 7 2.1 Introduction 7 2.2 To whom does the Act apply? 8 2.3 Key principles that underpin the Act 9 2.4 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 15 2.5 Best interests s4 17 2.6 Independent mental capacity advocates ss 35 39 20 2.7 Permission to apply 20 Factors which the Court must take account of when considering an application for permission 22 Procedure for application for permission 22 2.8 Allocation r86 23
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 33 3.1 Powers of the Court 33 3.2 The Court s approach when appointing a deputy 34 3.3 Court s powers in relation to property and affairs 34 3.4 Who can be a deputy? 35 3.5 Costs 39 3.6 Restrictions on deputies 39 3.7 Objection/suspension/discharge of the appointment 40 3.8 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 44 3.9 Procedural guide for objection/suspension/discharge of a deputy 45 Precedents 47 Chapter 4 Enduring Powers of Attorney 75 Law and practice 75 4.1 Background 75 4.2 Characteristic of EPAs 75 4.3 Contents of the notice 76 4.4 Grounds of objections 76 4.5 Revocation 77 4.6 Legal effect of registration 77 4.7 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 79 4.8 Cancellation of registration by Public Guardian 79 4.9 Practice and procedure 79 How to apply 80 Service 80
Contents xi Certificate of notification 80 The Court 81 4.10 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 89 5.1 Background 89 5.2 Characteristics of LPAs 89 5.3 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 91 5.4 Grounds of objection 94 5.5 Revocation and cancellation 94 5.6 Court s powers 95 As to validity under s 22 95 As to operation under s 23 97 5.7 Practice and procedure 97 5.8 How to apply 98 5.9 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 115 6.1 Introduction 115 6.2 Position under the Act 116 Best interest and P s wishes 116 6.3 Capacity 120 6.4 Factors to be considered before making an application 122 6.5 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
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 127 6.6 Evidence required 127 6.7 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 129 6.8 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 145 7.1 Introduction 145 7.2 Capacity to marry and capacity to have sexual relations 148 7.3 Residence 157 7.4 Independent mental capacity advocate (IMCA) ss 38 and 39 163 7.5 Contact 164 Prohibition on direct contact 165 Restrictions on contact 166 Endorsement of penal notice and an injunction 168 7.6 Court s powers to make welfare orders 169 7.7 Welfare deputies 169 7.8 Practice and procedure 171 7.9 Procedural guide for welfare order 173 Precedents 175 Chapter 8 Urgent Medical Treatment 197 Law and practice 197 8.1 Introduction 197 8.2 Persons who lack capacity s2 199 8.3 Inability to make decision s3 199 8.4 Best interests s4 200 8.5 Refusal of assessment/treatment 201 8.6 Undue influence in decision making 204 8.7 Phobia 204 8.8 Fear, panic and anxiety 206 8.9 Pain 206 8.10 Abuse of drugs 207 8.11 Religious beliefs 207 8.12 The unborn child 208
Contents xiii 8.13 The common law doctrine of necessity and the position under the Mental Capacity Act 2005 211 8.14 Practice and procedure 212 Is permission required s50andpart 8 212 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 215 8.15 Powers of the Court of Protection in medical treatment cases 215 8.16 Costs 216 8.17 Appeals 216 8.18 Procedural guide for applications for urgent treatment 217 Precedents 219 Chapter 9 Serious Medical Treatment 225 Law and practice 225 9.1 Introduction 225 9.2 Definition of serious medical treatment and serious consequences 226 9.3 Basis principles 228 9.4 Withholding /withdrawing ANH from a person in a persistent vegetative state (PVS) 229 9.5 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 235 9.6 Cardio-pulmonary resuscitation (CPR) 237 9.7 Cases involving organ or bone marrow donation by a person who lacks capacity 238 9.8 Non-therapeutic sterilisation 239 Guidance on practice and procedure 242 9.9 Other cases where the case should be treated as requiring serious medical treatment 243 9.10 Termination of pregnancy 243 9.11 Use of reasonable force 245 9.12 Experimental medical treatment 247 9.13 Emergency medical treatment 249 9.14 Advance decision ss 24 26 250 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
xiv Urgent Applications in the Court of Protection 9.15 Independent mental capacity advocates ss 35 37 256 The purpose of the IMCA 256 Definition of clauses referred to above 257 Functions of the IMCA 258 9.16 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 266 9.17 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 281 10.1 Introduction 281 10.2 Background 282 10.3 What are the Art 5 rights which must be respected? 285 10.4 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 292 10.5 The new framework of Safeguards 300 10.6 The Court of Protection s powers to make declaration authorising deprivation of liberty 302 10.7 Authority to restrain 305 What is meant by restraint 305 10.8 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
Contents xv The mental capacity requirement 309 The best interests requirement 309 The eligibility requirement 310 The no refusals requirement 310 10.9 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 318 10.10 Urgent applications 318 10.11 Appointment of relevant person s representative 319 10.12 Challenging authoristion 319 10.13 Review by the supervisory body 320 Review 320 Procedure 320 10.14 The Court s powers in relation to standard and urgent authorisation under Sch A1 321 10.15 Procedure 322 When can an application be made to the Court of Protection? 323 Who can apply without permission? 324 10.16 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 328 10.17 Appeals 328 Practice in relation to without notice applications 328 10.18 Example of orders 329 10.19 Procedural guide for deprivation of liberty order 331 Part V Children Chapter 11 Children 335 Law and practice 335 11.1 Introduction 335
xvi Urgent Applications in the Court of Protection 11.2 Property and affairs 335 11.3 Young person between the ages of 16 18 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 343 12.1 Introduction 343 12.2 Hearings in private 344 12.3 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 91 346 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 353 12.4 Procedural guide for an application by the media for permission to attend and reporting of information 356 Chapter 13 Disclosure 357 Law and practice 357 13.1 Introduction 357 13.2 Meaning of document 357 13.3 Meaning of disclosure 358 13.4 Privileged documents 358 13.5 Ongoing duty of disclosure 359 13.6 Consequences of failure to disclose 359 13.7 Court powers to withhold disclosure of documents 359 13.8 Disclosure of sensitive material to counsel or special advocate 364 13.9 Editing information contained in documents 365 13.10 Procedure 365
Contents xvii Part VII Enforcement and Appeals Chapter 14 Enforcement 369 Law and practice 369 14.1 Background 369 14.2 Penal notice 370 14.3 Freezing orders and injunctions and charging orders 370 14.4 Procedure 373 Permission 373 How to apply 374 Issue 374 Service 375 The respondent/s to the application 375 Orders 375 14.5 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 381 14.6 Procedural guide 382 Precedent 383 Forms 385 Chapter 15 Appeals 393 Law and practice 393 15.1 Introduction 393 15.2 Avenues of appeal 393 15.3 Grounds for allowing an appeal 394 The decision below was wrong 394 15.4 Permission to appeal 396 15.5 Matters to be taken into consideration when considering an application for permission 397 15.6 Appellant s notice 397 15.7 Extension of time 397 15.8 Documents to be filed with the appellant s notice 398 15.9 Respondent s notice 399 15.10 Documents to be filed with the respondent s notice 400 15.11 Service 400 15.12 Power of the appeal judge on appeal 400
xviii Urgent Applications in the Court of Protection 15.13 Determination of appeals 401 Part VIII Appendices Appendix 1 Mental Capacity Act 2005 405 Appendix 2 Transparency in the Court of Protection Publication of Judgments 565 Index 571