All change at the Court of Protection

April 15, 2015

Major changes are taking place in the process of the Court of Protection. The team at 39 Essex Chambers outline the key developments.

The Court of Protection (Amendment) Rules 2015 were laid before Parliament on 9th March. The first part of the Rules changes (dealing with reconsideration, appeals, and human rights) came into force in part on 6 April and the second, larger, part on 1 July.

They represent the first tranche of rule changes that will bring about the most fundamental reform of the Court’s processes since it came into being in 2007, reflecting the experiences of the first seven years of its life.

An unofficial consolidated version of the Rules as they will stand on 1 July 2015 can be found here and an unofficial consolidated version with commentary by Alex Ruck Keene can be found here, and updates to the Court of Protection Handbook specifically addressing appeals here. Practice Directions (including the amendments/new PDs that will be in force as of 1st July) can be found here.

This note serves as an overview.

The most important rule change – and the rule that we think it is proper to say most exercised the brain cells of the members of the ad hoc Rule Committee (including Alex) – is the new Rule 3A, coming into force on 1st July 2015. This rule fundamentally refocuses the approach of the Court of Protection to the participation of P. It requires in each case the Court to consider, either on its own initiative or on the application of any person, consider whether it should make one or more of one of a ‘menu’ of directions relating to P’s participation. That menu includes:

P being a party;
P’s participation being secured by the appointment of a representative whose primary function is to give P a ‘voice’ by relaying information as to P’s wishes and feelings;
Specific provision for P to address (directly or indirectly) the judge determining the application; or
No direction or an alternative direction (meeting the overriding objective) if P’s interests and position can properly be secured.

Equally importantly, assuming that the necessary steps are taken to enable this to happen by way of the creation of a panel of such representatives, Rule 3A provides that a direction may be made appointing an accredited legal representative (‘ALR’) to represent P. This can be done whether or not P is a party; importantly, if P is a party, then an ALR may be appointed without a litigation friend being appointed to act for P. This innovation, drawn from Rule 11(7) of the Mental Health Tribunal Rules, is designed to supplement, not supplant, the role of litigation friends; the intention (as spelled out in the accompanying Practice Direction, 2A) is that ALRs can provide assistance where urgent orders are required and it is not possible to appoint a litigation friend. They may also play an important role in ‘narrow’ applications such as applications under s.21A MCA 2005, thereby allowing the resources of litigation friends – whether the OS or otherwise – to be reserved for more complex cases where, for instance, expert evidence will be required.

Other important rule changes include (this summary being drawn in part from the Explanatory Note):

Amending rule 4 to reinforce the duty of the parties to co-operate so as to further the overriding objective of dealing with cases justly having regard to the principles in the MCA 2005, and making express that a failure to cooperate (and to be full and frank in the disclosure of information and evidence to the court) can sound in costs. This is a precursor to what we anticipate will be more detailed consideration to be given in the second tranche of rules to the question of how case management in the COP can be reinforced as to ensure that limited public monies and judicial time are deployed in a way properly calibrated to the nature of the issues at stake (i.e. picking up concerns voiced by Peter Jackson J in Re A and B (Costs and Delay) [2015] EWCOP 48);
Substituting a new Rule 9, which allows for the COP – in the case of a lacuna – to choose whether rules contained in the CPR or the FPR most appropriately fit the problem to be addressed. There is also provision to enable the version of the CPR or FPR to be applied to be specified – thereby getting round the problem which at exists at present in light of the mismatch between the CPR post-Jackson and the COPR as regards costs provisions;
Making amendments to Parts 8, 9 and 12 to remove the need for a separate application where permission is required, removing the requirement for permission in certain cases (most obviously Re X type applications where authority is sought by way of an order under s.16(2)(a) MCA 2005 to deprive a person of their liberty), and making it easier for the requirement for permission to be removed in other cases;
Introducing a requirement (in Rule 87A) that permission is required to withdraw proceedings (mirroring the provision in FPR r.29.4(2));
In Part 12 (dealing with applications), making amendments in relation to allocation of types of cases to levels of judge, reflecting the introduction of Tier 1, Tier 2 and Tier 3 categories of judge following widening of the pool of judges who may be judges of the Court of Protection by virtue of changes made by the Crime and Courts Act 2013;
In Part 13 (hearings), making amendments to allow communication of information about proceedings to third parties for specified purposes (for example, research), and for the court to be able to do this on its own initiative. There is also an important amendment to Rule 95 clarifying that the court can admit, accept and act upon such information, whether oral or written, from P, any protected party or any person who lacks competence to give evidence, as the court considers sufficient, although not given on oath and whether or not it would be admissible in a court of law apart from this rule. This amendment picks up – belatedly – the decision of McFarlane J (as he then was) in Enfield LBC v SA [2010] EWHC 196 (Admin) and the ‘work around’ he gave there as to the admissibility of evidence from P;
Replacing Part 17, with details of how litigation friends and ‘Rule 3A’ representatives are to be appointed and how their appointment is to be brought to an end. It should be noted here that the new rule 144 ends the anomaly in the rules that existed previously that required P, in essence, to prove that they had litigation capacity: all P has to do now is to make an application;
in Part 19 (costs), making amendments to ensure that where provisions of the Civil Procedure Rules are incorporated by reference, they do not include the Jackson reforms insofar as they relate (e.g.) to costs budgeting;
in Part 20 (appeals), which will come into force on 6th April, making provision for appeals within the Court of Protection between the different tiers of judge, and revised provision about appeals to the Court of Appeal; and
in Part 21 (enforcement), making amendments to ensure that where provisions of the Civil Procedure Rules are incorporated by reference, they are the provisions following recent amendment.

New forms are in train to pick up these changes, and we will provide updates as and when we can.

The ad hoc Committee very deliberately did not seek in this tranche to tackle some of the other thorny questions that face the Court, for instance relating to transparency, expert evidence and the extent to which a regime akin to the Public Law Outline should be imported. This first tranche, however, will start the Court of Protection on a new trajectory that is orientated more clearly around P.

This article was written by the Court of Protection team at 39 Essex Chambers.