In the best interest - part three

In the third and final article of a three-part series on best interests decisions on personal welfare applications in the Court of Protection and the High Court over the last twelve months, Victoria Butler-Cole and Alex Ruck Keene look at bringing proceedings.

Proceedings are often instigated by local authorities, whether due to concern about an individual’s wellbeing, or because of disputes with family members which have not been able to be resolved in any other way. There are a number of common pitfalls for local authorities to be aware of and to avoid, in order to obtain the swiftest possible progress of a case through the Court of Protection.

Pre-proceedings

Before proceedings are even contemplated, it is important that local authorities have a realistic view of the time and resources that will need to be invested. Proceedings in the Court of Protection are usually lengthy and expensive. Expert reports may be commissioned, many hearings may be required at which social workers will often be needed, and it is difficult to stop proceedings once they have been started.  If there is any prospect of a dispute being settled through mediation or discussion, this should be explored thoroughly.  

Further, thought must be given as to whether proceedings are required in any event.

For example, where the local authority has granted a standard authorisation for a deprivation of liberty, the mere fact that a family member may disagree with that authorisation does not necessarily mean that the local authority has to take the matter to court. This, again, might well be something that could be addressed by way of other measures, for instance by reviewing the best interests assessment in light of the family member’s comments.

At present, however, there is something of a void in terms of guidance (either from cases or by way of Practice Directions) as to when the local authority should take matters to Court. This may be contrasted with the position that prevailed prior to the coming into force of the MCA 2005, when the Practice Note (Official Solicitor: Declaratory Proceedings: Medical and Welfare Decisions for Adults who Lack Capacity) – adopting as valuable guidance to be followed the approach suggested by the Official Solicitor – indicated that “[t] The claimant should usually be the NHS trust or other body responsible for the patient's care, such as a local authority. Should they decline to bring proceedings, any properly interested person, such as a family member or other individual closely connected with the patient, may bring proceedings, in which case the body with clinical or caring responsibility should be made a party Re S (Hospital Patient: Court's Jurisdiction) [1996] Fam 1, [1995] 1 FLR 1075”.

It is certainly the case that, if a family member does bring proceedings and the local authority is – inevitably – brought in as a party, it will generally be the case that the Court will look to the local authority to act as the applicant, at least in terms of the preparation of bundles and so forth.  This is particularly so when the family member is unrepresented, but we have had experience of the Court directing that the local authority be made the applicant even where it has expressed deep unwillingness to do so.  Quite whether this is something the Court actually has jurisdiction to do is another question, but as a matter of pragmatism, it makes a great deal of sense for the local authority to act as applicant unless there are very good reasons not to do so: in our experience, cases where this is not the case tend to take even longer and consume even more resources.

If proceedings are required on what appears to be a limited basis, for example in relation to DOLS, or contact only, it is important to ensure that all underlying matters, for example residence and care, have been thoroughly investigated and appropriate best interests decisions made and agreed. Otherwise, it will be very easy for the original point on which proceedings are brought to be expanded to incorporate other elements of the individual’s care and to take up considerable time and resources as a result.  

Having established that proceedings are required, it is vital that good quality evidence as to mental capacity is obtained:

• this means that evidence should ideally be obtained from a psychiatrist, and should address expressly the test for capacity under the Mental Capacity Act 2005.  Reports from general practitioners can be inadequate due to their relative lack of familiarity with questions of capacity (and we have heard that general practitioners are in any event increasingly unwilling to provide them without charging a fee).
• local authorities may wish to identify psychiatrists working in their area who could be asked to produce capacity reports and who could be given particular training about the law.  They should, at a minimum, have read (or at least have access to) the BMA/Law Society book Assessment of Mental Capacity, A Practical Guide for Doctors and Lawyers, in its 3rd edition (published December 2009), and not merely because authors of this paper contributed to it;
• In cases where there is guidance from case-law about how to apply the test of capacity, for example in relation to capacity to consent to sexual relations, and capacity to consent to marriage, it is prudent to ensure that the person assessing capacity is familiar with this guidance and prepares a report that demonstrates an understanding of the proper legal approach;
• in all cases, evidence should be obtained not merely in relation to the specific issues that the proceedings are likely to address, such as contact with particular relatives, residence, and so forth, but also as to capacity to litigate about those specific issues.  Capacity to litigate is not presently addressed as a separate box on the COP3 form (although this is likely to be remedied when the Court of Protection Rules Review Committee completes its work), and is frequently overlooked; this then leads to problems with representation by the Official Solicitor, who will not act without evidence as to lack of capacity in this regard.

Secondly, it is helpful if the information that accompanies the initial application to the Court of Protection sets out in some detail and with supporting evidence the claims are being made about the risks to the person in question. Often, the case can seem clear-cut to the social work team involved, but a brief summary in the application form may not convey to the unfamiliar reader the true extent of the problems.   Further witness statements and evidence will be required once proceedings have started, but it is as well to include a thorough statement of the concerns at the outset, so that the nature and seriousness of the dispute is immediately apparent.

In cases where the Official Solicitor acts for the patient, the Official Solicitor will often seek to ensure that independent reports as to best interests, and as to capacity, are obtained.  A local authority will have to decide whether to rely purely on its own evidence, or whether to take part in a joint instruction.

Coming in on a joint instruction does have significant advantages, in particular because it allows an opportunity to frame the way in which the expert reports by way of input into the letter of instructions.   Furthermore, it may be that in some cases, the joint instruction of an independent social work expert can be useful in bringing family and social workers together, which is vital for when the proceedings come to an end.  It is the authors’ experience that some judges have ordered local authorities to be part of a joint instruction against their wishes in order to encourage agreement between the parties.

Thirdly, it will be important to ensure that crucial witnesses are brought on board early on in proceedings.  For example, where individuals are living in care homes that are not run by the local authority, the support of the care home for the proceedings will be needed. As often as not, the care home will itself be joined as a party.  This may be resisted, on the grounds of resources: it can then be up to the local authority to try to persuade the care home managers to take part in proceedings, in circumstances where from the care home’s perspective, much the easier route would be to terminate the placement.

Fourthly, before issuing proceedings, local authorities should be careful to consider the quality and strength of the evidence that exists in relation to alleged abuse or assault, and which has been used as a basis for drastic restrictions in contact.  Social work teams who have been involved with difficult situations for many months or years may understandably have reached the conclusion that an individual is being abused, or that drastic restrictions on contact are the only way to prevent a care package from breaking down.  However, local authorities need to be careful to look in some detail at the evidence underlying such situations, and to ensure that adequate thought has been given to other ways of improving relationships.

Fifthly, it is worth noting that personal welfare deputies are only appointed very rarely.  The favoured approach is to set out clearly declarations and orders that will deal with the particular disagreements that have been identified, and can be made by the court and reviewed as necessary.  If an application for a deputy is required, it will be important to identify in some detail exactly what sort of issues are likely to arise for decision in the future, the reasons why a deputy will be needed to make those decisions, and reasons why they cannot be dealt with at the time by an application to the Court of Protection.

Sixthly, it is prudent to prepare a bundle in accordance with the Practice Direction (Family Proceedings: Court Bundles at the outset of proceedings. (This direction was Issued by the President of the Family Division on 27 July 2006: http://www.hmcourts-service.gov.uk/cms/files/practice_direction_court_bundles.pdf. It is understood that a new practice direction regarding bundles in the Court of Protection is shortly to be issued).

In broad terms, this provides for the following divisions: (a) preliminary documents (such as position statements and the like); (b) applications and orders; (c) statements and affidavits; (d) care plans (where appropriate); (e) experts’ reports and other reports; and (f) other documents, divided into further sections as may be appropriate, with numbering internal to each division.  As well as endearing the local authority to the judge, it saves considerable time and confusion later on and means that the bundles can be updated easily.

Lastly, where the individual lacks litigation capacity, contact the Official Solicitor at an early stage.  The Official Solicitor needs to investigate the individual’s means before he can agree to act and this can be a time-consuming process.  Further, if the case raises a new or particularly difficult issue, it may be helpful to discuss it with the Official Solicitor at an early stage to see whether he is likely to support the local authority’s approach.

During proceedings

The following represent the fruits of the authors’ collective experience in the conduct of best interests proceedings in the Family Division at the Royal Courts of Justice, Archway and in the regional courts (in particular in Birmingham).

It is almost always the case that proceedings develop a life and shape of their own which cannot be determined at the outset.  It is therefore particularly important to be in a position to prepare for and hence to set the agenda at directions hearings; if one does not do so, then the burden will usually fall upon the Official Solicitor, which can mean that the direction of proceedings takes a course that the local authority is unhappy with.

It is useful, if at all possible, to ensure that orders are agreed on the day, especially where they concern contact schedules.   Our experience is that agreeing matters in principle and arranging to set out the finer details later on can lead to time-consuming, expensive and frustrating negotiations via email over the subsequent days as parties think of new points and become more entrenched.

We repeat the point about bundles above: there is no easier way to ensure that the judge is not on your side than by having a bundle that is difficult to navigate.  Our experience is also that it is very rare for any of the courts to retain bundles on the court file (even when they say that they will), so the default position should always be that it is necessary to prepare a fresh bundle for each hearing – at least for the benefit of the court.

Whilst on the issue of bundles, perhaps the most frequent complaint from the Official Solicitor is that they are not provided with sufficient information during the course of proceedings, for instance by way of contact notes.  Whilst the demands of the Official Solicitor can sometimes be perceived as being unduly onerous and as placing unrealistic burdens upon the hard-pressed social workers responsible for compiling them, it remains the case that it is very much better if documents are compiled and (if appropriate) disseminated on an ongoing basis.   It is all too often the case that parties become exercised and matters are brought back to court at great expense (both monetary and in terms of staff time) because of breakdowns in information sharing.

During the course of proceedings, especially contentious proceedings, it is dangerously easy to become fixated on the hearings themselves, and to lose sight of the fact that the involvement of the Court of Protection will (even if does not feel like it at times) come to an end and that it will be necessary to maintain some form of working relationship with the family members in question.

Conversely, we have experienced situations where there has arisen a very real tension between the fact that the parties have signed up to hard-negotiated consent orders (especially as to contact) which have been endorsed by the Court and the immediacy of a situation on the ground which is not catered for in the consent order.   It must never be forgotten that the mere fact that a local authority is engaged in proceedings does not relieve it of its community care obligations towards P as a vulnerable person within their area for whom they have a statutory obligation.

This can, on occasion, mean that it is necessary to intervene in a situation so as to safeguard P (for instance by bringing contact to an end) in circumstances not envisaged in the order.   Whilst in an ideal world, orders will be drafted so as to allow the local authority flexibility to act in this way, they cannot always be drafted to cover every situation.  If this does arise, it is always necessary to make sure that information is shared with other parties as soon as possible and (where appropriate) the matter is brought back before the court.

Wherever questions of P giving evidence and/or police interviewing of P arise, the guidance of Macfarlane J in London Borough of Enfield v SA & Ors will need to be followed.

Conclusion

Best interests proceedings in the Court of Protection can often be time-consuming and demanding for local authorities. Apparently simple cases can bring up new legal issues, or can open up all aspects of an individual’s care to the court’s scrutiny. By keeping abreast of case-law and ensuring that new cases are prepared thoroughly before issue where possible, local authorities will put themselves in the best position to avoid criticism at court and to bring proceedings to swift conclusions.

Finally, as noted above, there is on foot at the moment a thorough-going review of the Court of Protection Rules (with which one of the authors of this paper is involved); whilst it is likely that any rule changes to be recommended following that review will not be implemented for a considerable period of time, it is likely that the forms and Practice Directions will be the subject of some substantial amendments before the end of the current year. At present, it is anticipated that there will be a consultation upon any amendments to be recommended, so it is a question of watching this space (or, more precisely, the judiciary.gov.uk website) for news of when this consultation is to take place.

Victoria Butler-Cole (This email address is being protected from spambots. You need JavaScript enabled to view it.) and Alex Ruck Keene ( This email address is being protected from spambots. You need JavaScript enabled to view it.) are barristers at 39 Essex Street.

Related articles

In the best interest? - pt 1

In the best interest? - pt 2

Parts one and two of this series can be read here and here.