Senior judge at Court of Protection admits setbacks since Mental Capacity Act introduced

The Court of Protection has had to endure “more than its fair share of setbacks” since 1 October 2007, when the Mental Capacity Act 2005 came into force, its senior judge has admitted.

Writing in the foreword to the court’s first report, which covered a 27-month period to 31 December 2009, Denzil Lush said that he “could not pretend that it has been plain sailing”.

The senior judge pinned the blame on the failure to anticipate – prior to implementation of the Act – the volume of work that would inundate the court during the initial transition period, and the overall burden it would place on the judges and staff.

The court has, until recently, had insufficient judges to handle its workload, Lush claimed. It was allotted four full-time judges, one of whom suffered from long-term sickness, when the amount of work would have merited appointing six.

However, the senior judge expressed the hope that the appointment of three new district judges, who took up their posts in April 2010, would relieve the pressures.

Lush agreed that complaints from service users that the court’s procedures had become more bureaucratic and time-consuming were justified. “It is anticipated that the review of the court’s rules, forms and practice directions, which was announced by the President of the Family Division in December 2009, will result in improvements in each of these respects,” he suggested.

The senior judge added that one of the main aims of the 2005 Act – to create a unified jurisdiction, combining that of the old Court of Protection in relation to property and financial affairs with the personal welfare jurisdiction exercised by the High Court judges of the Family Division – had yet to be fully realised.

“There remain significant differences of practice between property and affairs cases and welfare cases,” he said.

Lush highlighted, on a positive note, the fact that the Association of Public Authority Deputies had commented that the court’s orders “are fit for purpose and are making a significant contribution to the safeguarding of vulnerable adults”.

The court’s regional protocol for attended hearings was also working satisfactorily.