Pilot schemes in the CoP

Vivienne Sedgley and Lee Parkhill summarise the key points for two pilot schemes commencing in the Court of Protection next month.

Two pilot schemes for the Court of Protection will operate between 1 September 2016 and 31 August 2017, for (1) case management and (2) reports commissioned under section 49 Mental Capacity Act 2005.

For both pilot schemes, the emphasis is on identifying the issues early. The court will expect a lot of preparation to have been done before issuing proceedings or making an application.

It is important to note that different Rules will apply throughout the case management pilot. Therefore, practitioners should be careful to treat the pilot Practice Direction as the starting point rather than the existing Rules.

Case management pilot

The Practice Direction for the case management pilot sets out three case management pathways:

1. Personal Welfare pathway;
2. Property and Affairs pathway;
3. Mixed Welfare and Property pathway.

The case management pilot will not apply to ‘Re X’ applications, to authorise a deprivation of liberty, and applications under s. 21A of the Mental Capacity Act.

The pathways are divided into stages. It is recognised that they may need to be abridged in urgent cases.

Personal Welfare pathway

• Pre-issue: Steps should be taken before issuing proceedings, to ensure all relevant parties are engaged, the issues are identified and (where possible) cases are resolved without the need for court proceedings.
• Application: This should reflect the progress made pre-issue. Various information and documentation must be included. It must set out how it is proposed that P will be involved in the case.
• Case management on issue: A judge will consider the case on the papers and allocate it to the correct level of the judiciary. S/he will also make initial case management directions and list a case management conference within 28 days.
• Case management conference: The case will be allocated to a specific judge and further directions will be made.
• Final management hearing: At least 5 days before this hearing, there should be a meeting between advocates and (so far as practicable) any unrepresented parties. The purpose is to resolve or narrow the issues to be determined at the hearing. A draft order should be prepared and a core bundle filed not later than 3 days before the hearing.
• Final hearing: At least 5 days before this hearing, there should be another meeting between advocates and (so far as practicable) any unrepresented parties. Again, the purpose is to resolve or narrow the issues to be determined at the hearing. The bundle must be filed not later than 3 days before the hearing. It should not exceed 350 pages or contain more than one copy of the same document.

Property and Affairs pathway

It is recognised that it often only becomes apparent that such cases are contentious when a routine application is opposed. Therefore, there is no pre-issue stage.

• Application becomes contested (i.e. the court is notified in Form COP5 that a property and affairs application is opposed or the respondent seeks a different order), then the case must be allocated to the pathway.
• Case management on allocation: Following receipt of Form COP5, a judge will consider the case on the papers and allocate it to the Property and Affairs pathway. The case will then be either (a) listed for a Dispute Resolution Hearing or (b) transferred to an appropriate regional court for the listing of a Dispute Resolution Hearing and further case management.
• Dispute Resolution Hearing: All parties must attend unless the court orders otherwise. Attempts should be made to settle the case and the Judge will give its view on the likely outcome of the proceedings (similar to an FDR in family proceedings). This is a private hearing and the content is not to be disclosed (unless an offence is committed in the hearing). If an agreement is not reached, directions will be made for a final hearing which must be listed before a different judge.
• Final hearing. This will take place according to directions given at the dispute resolution hearing.

Mixed Welfare and Property pathway

Where a case contains elements of both of the above pathways, the court can use whichever elements of each pathway it considers most appropriate.

There are two stages before the court decides which pathway (or elements of the pathways) are the most appropriate:

• Pre-issue: Prospective parties should seek to identify the relevant pathway and comply with the requirements so far as possible.
• Application: The parties must file a list of issues to allow the court to identify which pathway is the most appropriate.
• Case management on issue: A Judge will consider the case on the papers and either (a) allocate to a pathway and give directions or (b) give directions as to which elements of each pathway will apply.

Rules applicable during the pilot

Different Rules will apply during the pilot (see Part 2 of the pilot Practice Direction). The annex to the pilot Practice Direction sets out the rules that have changed in full.

The following is a summary of the key points:

• Expert evidence will now be restricted to that which is ‘necessary’ rather than that which is ‘reasonably required’. This echoes the position under the Family Procedure Rules and so the judgment of Munby LJ in Re H-L (A Child) [2013] EWCA Civ 655 is likely to be useful when considering the meaning of ‘necessary’:

“The short answer is that 'necessary' means necessary […] it "has a meaning lying somewhere between 'indispensable' on the one hand and 'useful', 'reasonable' or 'desirable' on the other hand", having "the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable".”

• The overriding objective now requires cases to be dealt with proportionately and at proportionate cost. This includes the need to enforce compliance with rules, practice directions and orders. (This echoes the changes to the Civil Procedure Rules in April 2013, as part of the Jackson reforms.)
• Greater emphasis is placed on the duty of the parties and the court to ensure cases are actively managed. In particular, parties are expected to ask the court to take steps to manage a case if it appears an order does not deal with an issue or if a new issue arises.
• Although changes are made to Parts 1-5, 12 and 13 of the existing Rules, the Practice Directions to these Parts will continue to apply.

Practice Direction 14E pilot: reports commissioned under section 49 Mental Capacity Act (“MCA”) 2005

The main point is the requirement for parties to take steps before making an application for an order requiring a section 49 report. However, PD 14E (pilot) also applies where the court considers such an order on its own initiative.

The key changes are summarised below:

Steps to be taken before making an application

A party should use its best endeavours to do the following before making an application for an order requiring a section 49 report (paragraph 7):

(a) Make contact with an appropriate person within the relevant local authority or NHS body so they are made aware that an application is to be made; its purpose; and the issues or questions which are hoped to be addressed within the report;

(b) Identify a named person or by reference to their office (“the senior officer”) within the relevant local authority or NHS body who will be able to receive the court order on its behalf; and

(c) Enquire as to the reasonableness and time scales for providing the report should the court order it.

The court will want to know what has been done and the response given. The court will take this into consideration before making an order (paragraph 9).

The party making the application must submit a draft letter of instruction to accompany the order (paragraph 8).

Most cases will be subject to a transparency pilot order, which will prevent communication of information which identifies P. The enquiries required by the new practice direction will usually only be of value if the NHS Trust, or Local Authority, can be told P’s identity. Communication of P’s identity is likely to be lawful in these circumstances by application of para. 5(D) of the transparency order, which applies PD 13E, and para. 34(1)(a) of PD 13E, which permits communication of information where it is necessary to ‘obtain support, advice or assistance in the conduct of the proceedings.’

Factors affecting whether a section 49 report should be ordered

PD 14E (pilot) lists the following common factors that the court may consider when deciding whether to order a section 49 report (paragraph 3):

(a) Where P objects to the substantive application or wishes to be heard by the court and does not qualify for legal aid;

(b) Where it has not been possible to appoint a litigation friend or rule 3A representative, including where the court has made a direction under rule 3A(5);

(c) Where a party is a litigant in person and does not qualify for legal aid;

(d) Where the public body has recent knowledge of P; or it is reasonably expected that they have recent knowledge of P; or should have knowledge due to their statutory responsibilities under housing, social and/or health care legislation;

(e) The role of the public body is likely to be relevant to the decisions which the court will be asked to make;

(f) The application relates to an attorney or deputy and involves the exercise of the functions of the Public Guardian;

(g) Evidence before the court does not adequately confirm the position regarding P’s capacity or where it is borderline; or if information is required to inform any best interests decision to be made in relation to P by the court.

The order

An order for a section 49 report should be self-contained and not form part of the other directions (paragraph 2).

A template order is contained in the annex to PD 14E (pilot). The order must follow the format of the template and specify the matters set out in paragraphs 9 and 10 of the template (paragraph 13).

Steps to be taken following receipt of an order for a report arranged by a local authority or NHS body

Within 48 hours of the order being made: The party who made the application (or the party deemed by the court to be the most appropriate) must serve a copy of the approved order on the senior officer. The order need not be sealed before it is served (paragraph 10).

Within 7 days of receipt of the order: The senior officer must ensure that a person with appropriate expertise is nominated to make the report (the “nominated person”). S/he must then ensure the parties are informed of the nominated person’s name and contact details as soon as practicable (paragraphs 11-12).

Few will doubt the need for improved case management in the Court of Protection. Most practitioners will have experience of long running proceedings and the judiciary has expressed concern about delays. In A & B (Delay and Costs) [2014] EWCOP 48 Peter Jackson J dealt with two cases which he said illustrated the problem. One case had lasted for 18 months and the estimated legal costs were £140,000. The other case had lasted for five years and the estimated legal costs were £530,000. Hopefully, the structure provided by the case management pilot will help to eliminate delay, and avoid excessive costs, in all but the most complex cases.

Vivienne Sedgley and Lee Parkhill are barristers at 4-5 Gray’s Inn Square. You can contact them by email, This email address is being protected from spambots. You need JavaScript enabled to view it. or on 0207 404 5252.