The Chief Coroner has published new guidance on Deprivation of Liberty Safeguards.

The new guidance note 16A comes into force on 3 April to coincide with commencement of changes introduced by Policing and Crime Act 2017 on the same day.

That Act amends the Coroners and Justice Act 2009 and relieves coroners of the current duty to undertake an inquest into every death where the deceased was subject to a Deprivation of Liberty Safeguards (DoLS) authorisation. It also deals with the effect of the Ferreira case and the meaning of 'state detention'.

Where the death takes place before 3rd April then guidance note 16 still applies and the new guidance stresses that the date is "is not tied to the notification of death to the coroner, but is dependent on the date on which death takes place". 

Helpfully at [50-52] of the guidance the Chief Coroner summarises his conclusions as set out below:

"50. With a death occurring on or after 3rd April 2017 any person subject to a DoL (i.e. a deprivation of liberty formally authorised under the MCA 2005) is no longer ‘in state detention’ for the purposes of the 2009 Act. 

51 When that person dies the death should be treated as with any other death outside the context of state detention: it need only be reported to the coroner where one or more of the other requisite conditions are met.
​
52. Of course, where there is a concern about the death, such as a concern about care or treatment before death, or where the medical cause of death is uncertain, the coroner will investigate thoroughly in the usual way. There will always be a public interest in the careful scrutiny of any death in circumstances akin to state detention. As in all cases there must be sufficiency of coroner inquiry."

The full text of the guidance note is available on the Chief Coroner's website.

Amendments to the Court of Protection Rules 2007 and a raft of changes to the accompanying Practice Directions have been published. 

An an accompanying explanatory memorandum published on the Judiciary website states that:

"7.1 Amendments to the Court of Protection Rules are long overdue: no comprehensive update of rules has been done since they were first introduced in 2007, and there have been only very limited amendments in 2009 and 2011, and some more substantial amendments in 2015. The changes made by this instrument will strengthen the Court of Protection’s powers to deal with current challenges particularly the increase in caseloads and complexity of cases.

7.2 The proposed rule changes will give the court greater powers, following the model of the Civil Procedure Rules providing for civil restraint orders, to deal with applications which are without merit and allow the court, for instance, to restrain litigants from submitting repeat applications. Further changes will also introduce a new framework for international applications that will reflect current practices and case law in cross jurisdictional cases and bring clarity and consistency to the making of such applications which is now needed as these types of cases are emerging more frequently. "

The Court of Protection (Amendment) Rules 2017 (SI 2017 no. 187) amend the 2007 Rules in two respects:

1. they insert provision for the making by the Court of Protection of civil restraint orders (a civil restraint order being an order against a person who has brought proceedings which are totally without merit from bringing further proceedings without the court’s permission).
2. they insert a new Part making provision for applications in relation to international protection of adults pursuant to Schedule 3 of the Mental Capacity Act 2005. 

These changes come into effect on 6 April 2017

Alongside these rule changes several changes to the Practice Directions are in force as set out below: 

• 1 March 2017: Transparency pilot & PD 9E – Applications relating to serious medical treatment
  
• 1 April 2017:  Practice Direction B - Fixed Costs in the Court of Protection 
• 6 April 2017: PD 10AA – Deprivation of liberty applications; PD 13A – Hearings (including reporting restrictions); PD 23C – Civil restraint orders; PD 24A – International protection of adults 

The amendments to the Practice Directions can be found via the Judiciary website here.

The Law Society has announced that it has created a mental capacity accreditation scheme for solicitors serving the Court of Protection.

The news has been announced on the Gazette website but there is little detail other than that 

• the scheme has been developed in association with City Law School
• it has been approved by the President
• and it is open to solicitors, barristers and fellows of the Chartered Institute of Legal Executives, who offer advice on health and welfare matters under the Mental Capacity Act 2005

You can read the full story on the Law Society Gazette.

​This case raised fundamental questions as to the nature of the Court of Protection’s jurisdiction and, in particular, the approach it should adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient or, as here, by the patient’s family.

The Supreme Court will hand down its judgment in the case of N v ACCG and others on 22 March 2017

The bare bones facts of the case are that the appellant's son, MN, has complex disabilities and lacks capacity to litigate and to make decisions for himself. He lives in an adult residential placement in the area of the first respondent, who has refused to fund home visits. The Court of Protection then refused to undertake an assessment of whether home visits were in MN's best interests, on the basis that they did not have jurisdiction to do so since home visits were not an available option. The appellant appealed.

The Supreme Court heard the appeal on 15 and 16th December and the judgment will look at two key issues: 

1. Whether a commissioning body can, by its decision not to fund a particular option for contact, remove the jurisdiction of the Court of Protection to make a best interests decision about contact?
2. Whether the failure to conduct a best interests assessment and/or determine the facts breached Mr N's rights under the ECHR to a fair trial and a family life?

A summary & discussion of the judgment subject to the appeal (MN (Adult) [2015] EWCA Civ 411) can be found here.