Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings14/11/2016
Mr Justice Charles has released practical guidance in order to provide helpful suggestions as to how practitioners might consider enhancing the participation of P in proceedings in the Court of Protection. Whilst this guidance is primarily directed towards health and welfare cases in the Court, it is also likely to be of assistance in some, but by no means all, property and affairs cases. The guidance is not prescriptive. It is suggestive only. It is not a required checklist of all matters for consideration in all cases. Instead it is a list of suggestions for consideration by those representing P and also other parties, including statutory agencies, as to how P’s participation in proceedings might be enhanced.
Read the guidance here The Patient, who was tetraplegic and currently residing in hospital, wanted to return home but the LA was unable and unwilling to fund the cost of this. At this hearing, Mr Justice Holman questioned the relevance of a further hearing to determine whether or not the Patient had capacity to decide on his living arrangements, especially with regard to the cost to the state - the question of the capacity of the Patient to make decisions with regard to his care may be a very abstract one since he may have very little room for capacitous choice.
Read the full text of the judgment on Bailii P's litigation friend's case, on behalf of the OS representing P, was that the key decision-maker in respect of P's active participation in the case was the Litigation Friend, often – as here – the OS, with the Court having no or only a residual duty to overrule. In this case, however the precise legal test was formulated, a further question arose, namely, whether or how P should be allowed to participate, whether by attendance or by meeting the Judge, by presence in the court room or via a link, or offering direct oral input into the proceedings.
Read the full text of the judgment on Bailii DOLs case where the 2 Patients had been born and lived in Scotland but both had been receiving treatment in the same specialist hospital in England for several years. The issue to be resolved here was whether the Patients had acquired habitual residence in England so as to vest jurisdiction in the Court in order for a court to make decisions concerning the care and residence of them under its powers under sections 15 and 16 of the MCA.
Read the full text of the judgment on Bailii Mr Justice Charles had to decide whether the positive obligations imposed by Article 5 or its spirit and so its purpose to protect individuals from arbitrary detention would be violated if, on a proper application of the domestic regime of law, supervision and regulation a welfare order is not made by the COP to authorise the P's private deprivation of liberty (i.e. one where the P was not in a care home or hospital) within Article 5. He ruled that it would, expressing that he had "reached this conclusion with real reluctance because ... in this and many other such cases a further independent check by the COP will add nothing other than unnecessary expense and diversion of private and public resources which would be better focused elsewhere."
Read the full text of the judgment on Bailii |
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