Cost of welfare litigation in Court of Protection “may have chilling effect”: report

The cost to public authorities of welfare litigation in the Court of Protection “may have a chilling effect on their willingness to refer disputes to court where appropriate”, researchers have said.

A report funded by the Nuffield Foundation and carried out by researchers at Cardiff University’s School of Law and Politics, Welfare cases in the Court of Protection: a statistical overview, estimated that a typical welfare case in the CoP could cost local authorities around £13,000.

However, the researchers also found examples of cases costing considerably more than this.

“For P [the person whom the case is about] and families who do not qualify for legal aid, the cost of litigation may be a major barrier to accessing justice,” they added.

The court was established in 2007 by the Mental Capacity Act 2005 (MCA) to adjudicate on questions relating to mental capacity and best interests.

Other key findings from the report, which was based on two studies, include:

• Unlike its predecessor jurisdiction in the Family Division of the High Court, the work of the CoP “leans more strongly towards social welfare questions such as where a person lives and how they are cared for than medical treatment”. Local authorities are now the main users of the CoP’s welfare jurisdiction – they are involved more frequently in CoP litigation than NHS organisations.
• Cases about relationships – who a person has contact with, and whether they have the mental capacity to consent to sex or marriage – are among the most complex in the CoP’s jurisdiction.  “They typically involve more parties and hearings, take longer and cost more than other kinds of case.”
• Little evidence was found that P or families were using the CoP’s main personal welfare jurisdiction to challenge decisions made under the MCA; in the researchers’ sample it served primarily as a vehicle for public bodies to seek authorisation for best interests decisions. “However, the procedure for asking the court to review a deprivation of liberty safeguards authorisation provided a vehicle for P and others to challenge assessments that they lacked mental capacity, or best interests decisions, about a wide range of matters including: disputes about serious medical treatment, contact with friends or family, and consent to sex or marriage. We raise concerns that recent rulings by the Court of Appeal may close down the only realistically available route into the CoP’s welfare jurisdiction for these fundamental human rights matters.”
• The researchers found few indications that P was routinely participating in CoP welfare proceedings. However, they hoped that following the introduction of new rules on participation this picture had changed since their research took place.

More information and copies of the report can be found here.