These Rules amend the Court of Protection Rules 2007 in two respects. They:
Read the SI here. A team of researchers from Cardiff University think that the Court of Protection’s ‘low participation’ model is ‘no longer compatible with developments in international human rights law’. As a result they feel there is “an urgent need to address the model of participation of P in the CoP. This will require revisions to the rules and practice directions, through increased resources for various elements of participation, and by addressing the question of when and how cases should come to the CoP. “ Their thinking is presented in a research report published this month that looks at The Participation of P in Welfare Cases in the Court of Protection. The team of Lucy Series, Phil Fennell & Julie Doughty consider different elements of participation in the CoP in turn, highlighting some particular concerns as below:
Secretary of State for Justice v Staffordshire County Council & Anor [2016] EWCA Civ 131722/12/2016
The issue in this case was whether, in order for the UK to avoid being in breach of Article 5(1) of the ECHR, it is necessary for a welfare order to be made by the Court of Protection where the Patient is being deprived of his or her liberty in a private arrangement rather than in a care home or hospital (where DOLS would apply). The Secretary of State for Justice lost its appeal, the court ruling that Mr Justice Charles was right in saying that, absent the making of a welfare order by the CoP, there are insufficient procedural safeguards against arbitrary detention in a purely private care regime and thus a CoP welfare order must be obtained in such circumstances.
It is interesting to note that Sir Terence Etherton MR concluded by saying that "it is important to note that, while an application to the CoP is necessary in the present state of law and practice for the State to discharge its positive obligation under Article 5(1), such a step might not be essential if a different legislative and practical regime were to provide for proactive investigation by a suitable independent body and periodic reviews. It would ... be for the Government to fill the gap as it had done in the case of the Bournewood gap." Read the full text of the jugdment on Bailii Mr Justice Baker considers how RPRs and s.39D IMCAs should decide whether to bring an application to the Court of Protection under s.21A of the MCA to challenge a standard authorisation under Schedule A1.
He rejected the argument of the Official Solicitor which was a presumption that P wishes to exercise the Article 5(4) right unless the RPR is satisfied that he or she does not. Instead he said: "The RPR and, when appointed, the IMCA, must consider not only the direct evidence of expression of wish, but also indirect evidence of P's wishes as inferred from behaviour taking into account all the circumstances in carrying out the assessment. The RPR must focus on the question whether P wishes to apply to the court and not simply whether he or she objects to the arrangements for their care. On the other hand, where P is unable to communicate his/her wishes, the RPR should consider what those wishes would be, were he or she able to communicate them. The right to apply to the Court of Protection is available to all persons subject to authorisation under Schedule A1, irrespective of whether or not they can communicate their wishes. The obligation on the RPR to represent and support P in matters relating to the Schedule includes supporting and representing P in making an application where the RPR concludes that P would wish to make the application in circumstances where he or she is unable to communicate that wish." Paragraph 86 of the judgment provides a helpful guide, listing the issues the RPR/IMCA should consider before making an application to the COP. Read the full text of the judgment on Bailii The High Court, exercising its inherent jurisdiction, has the ability to make orders for the protection of vulnerable or incapacitated individuals on the basis of their British citizenship, whether or not it possesses it in the Court of Protection.
Read the full text of the judgment on Bailii |
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