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A Practitioner's Guide to the Court of Protection, 3rd Edition

This Bloomsbury Professional book is a user-friendly handbook providing practical and detailed coverage of this increasingly significant topic. The Court of Protection is a specialist court for all issues relating to people who lack capacity to make specific decisions and this book covers all of these issues and the practices and procedures of the Court of Protection and the Public Guardian. It has been comprehensively updated to reflect the latest law at the time of publication, including the Mental Capacity Act 2005 and the decisions in S and S and Re P. Topics covered include the appointment and duties of deputies; managing affairs and property for others; litigation, trusts, costs, gifts and dispositions and powers of attorney. The book also deals with matters relating to foreign jurisdictions.

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Martin Terrell

Chapter 2 The new Court of Protection

Context of the new Court

The Mental Capacity Act 2005

2.1 On 1 October 2007 the Mental Capacity Act 2005 (MCA 2005) came into force. As we shall see, this is an impressive and ambitious piece of legislation which sets out to consolidate in a single piece of legislation the law relating to legal capacity. This covers both the legal nature of capacity and the legal framework within which decisions can be made on behalf of persons who lack capacity. The Act aims to address not just the question of how to make decisions, but also when decisions can be made, what decisions can be made and what those decisions should be.

The starting point of the Act is the principle, set out in s 1, that a person must be assumed to have capacity unless it is established that he lacks capacity. The Act aims to enable or empower the individual person to make as many decisions as he is able, with as little interference as possible. Only when a person cannot make a decision for himself does the Act allow a decision to be made on his behalf. That such a decision should be a judicial decision or pursuant to a judicial order is a last resort. Decisions can therefore be made in different forms and at different levels:

  • by an individual exercising his autonomous rights to make his own decisions (s 1);

  • by an individual refusing treatment in advance, so that the earlier decision is valid and applicable at a later date when he lacks capacity (ss24–26);

  • by another person performing basic acts of care and treatment or paying for essential goods and services, where there is no other form of authority in place (ss 5–8);

  • by another person to whom authority has been delegated by the individual under a Lasting Power of Attorney (LPA) (ss 9–14 and Sch 1);

  • by another person to whom authority has been delegated by the individual under an Enduring Power of Attorney (EPA) made prior to 1 October 2007 (Sch 4);

  • by the Court of Protection exercising its own authority or authorising another person to make a decision (ss 15–23, 48 and 49).

The different levels at which decisions can be made are a hierarchy. At the apex is the autonomous individual making his own decisions. An individual may then appoint another person to make decisions on his behalf. Decisions may be made in connection with care and treatment at a local or informal level. Only if there is no other remedy should the Court be involved.

When the Court of Protection is involved, it can either make decisions on behalf of an individual who lacks capacity or delegate authority to another person (a deputy) to make decisions on behalf of an individual who lacks capacity. The Court also has an important role in overseeing LPAs and EPAs and intervening where there are problems or disputes involving their validity or operation. Although the Court of Protection should therefore be a court of last resort, it sits at the heart of the new legislation, as its ultimate guardian and providing a remedy where an individual lacks capacity and there is no other way of enabling a decision to be made for that person. The fact that it should only intervene where there is no other remedy does not in any way diminish the importance of the Court. It has extensive powers to make decisions concerning a person's property and affairs as well as a person's welfare. These are vitally important decisions and as the Court can authorise the continuation or withdrawal of life-sustaining treatment, the Court may well have a power of life or death over an individual. However, any decision made by the Court will have a direct bearing on the individual's interests: the choice of deputy or a decision as to where a person will live may have a major impact on that person's quality of life; every decision goes to the heart of the person's identity and the Court of Protection deserves the consideration and respect that goes with its responsibilities.

History of the Court of Protection

2.2 Although the MCA 2005 creates an entirely new Court of Protection, the title of this body suggests some continuity with the past. Although its powers derive from statute, the Court of Protection continues to exercise the inherent jurisdiction of the Crown to manage the property and affairs of persons who lack the capacity to do so. This jurisdiction has evolved piecemeal since the Middle Ages. The origins of a distinct body or court that resembles the present Court of Protection go back to 1842 and the appointment of the two Commissioners in Lunacy. Despite these appointments the power to make orders was retained by the Lord Chancellor and the Lords of Appeal in Chancery. The Commissioners in Lunacy were renamed Masters in Lunacy in 1846 and acquired the power to make orders in 1891. In 1922 the number of Masters was reduced to one and in 1947 the Lunacy Office, which was briefly known by the unfortunate title of the Management and Administration Department, became the Court of Protection. This title was confirmed by the Mental Health Acts of 1959 and 1983, which established the Court of Protection with the form and status of an office of the Supreme Court.

The limitations of this body were, however, numerous and recognised by the various reports that led to the introduction of the new legislation, principally the 1995 Law Commission Report Mental Incapacity (Law Com) No 231. Although decisions could be made by nominated judges of the High Court, such decisions were extremely rare. Most decisions were dealt with by the Master and nominated officers of the Court. As only the Master held a judicial office, many decisions were made by civil servants. While administration as such was carried out by the Public Trust Office and from 2001 by the Public Guardianship Office, these were in effect the administrative arms of the Court of Protection. The Public Guardianship Office itself had no statutory basis or authority, despite often giving the appearance of making many day-to-day decisions. Its performance also suffered from a combination of factors: its uncertain and lowly status, regular reforms and improvements, lack of funding and trying to do too much with limited resources.

The principal limitation of the Court of Protection was, however, that it had no jurisdiction to make decisions concerning a person's welfare (F v West Berkshire Health Authority [1989] 2 All ER 545). This led to two obvious difficulties. First, it was not always possible to distinguish financial decisions from welfare ones as one usually has a bearing on the other; and second, where welfare decisions had to be made, these could only be made by the High Court or, on appeal, by the Court of Appeal or House of Lords. As there was no formal or statutory basis on which welfare decisions could be made, the High Court would in effect use its inherent powers to make declarations as to whether or not a proposed treatment or action was lawful within the existing common law (Airedale NHS Trust v Bland [1993] AC 789). Furthermore, as decisions could only be made in the High Court, the expense and complexity of proceedings ensured that applications were only made in exceptional circumstances and usually by health authorities who could afford the costs involved.

There were therefore two separate structures for welfare and financial matters. While in purely pragmatic terms these arrangements worked reasonably well, they were not an ideal solution. The limited role of the Court of Protection meant that it was treated as a legal anomaly or backwater outside of the main court structure. As such, the Court only had one venue in North London, apart from an arrangement for some hearings from 2001 onwards being held at Preston. More importantly, the lack of a readily accessible forum for important welfare decisions was not acceptable in a society where access to justice for the vulnerable and disabled was of fundamental importance. The Human Rights Act 1998 and the culture that underpins it could not countenance the blurring of the boundaries between the judicial role of the Court of Protection and the administrative role of the Public Guardianship Office (regardless of any practical benefits in this arrangement). The Court of Protection was an administrative body, with most of its decisions being made by clerical officers rather than judges.

The new Act would therefore set out to address these historical anomalies and practical defects. It would aim to create a new Court of Protection with clearly defined and widely drawn powers, with a separation of powers between the judges of the Court and the supervisory and administrative functions of a separate body known as the Public Guardian. The new Court would meanwhile work within existing court structures and have the prestige and authority that this would bring.

Terminology

2.3 The MCA 2005 introduces a new vocabulary for persons without capacity. Unlike the Mental Health Act jurisdiction, which defined a person who was unable to manage his property and affairs by reason of mental disorder, as a 'patient', the MCA 2005 attaches no such label to a person. The aim is to demonstrate that no one has a label attached that connotes a permanent status. The Act is concerned with individual acts rather than the person as a whole and it is therefore inappropriate to alter the status of the person who may well be capable of some acts at some moments in time and incapable of other acts at other moments in time. The person who lacks capacity who is the object of the Court's powers is a person who lacks capacity in relation to a particular matter or matters and for that matter or matters when he is the object of the Court's powers he is generally defined by the Act and the Court of Protection Rules simply, if somewhat bluntly, as 'P'.

In applications made to the Court, 'P' is usually described in Court forms as 'the person to whom this application relates'. In proceedings he is described as P or where a litigation friend is acting on his behalf, as 'P (by AB, his litigation friend)'. Other terms and definitions used by the Act are set out at 3.4.

The new Court of Protection

Statutory basis

2.4 On coming into effect on 1 October 2007, the MCA 2005 created the new Court of Protection and abolished the old court. Section 45 succinctly provides as follows:

'(1) There is to be a superior court of record known as the Court of Protection…'

'(6) The office of the Supreme Court called the Court of Protection ceases to exist.'

Various parts of the Act contain provisions for further regulations to be made to effect the detailed or practical implementation of the Act. While the Act contains the Court's principal powers, the detailed way in which those powers are to be exercised is covered by the Court of Protection Rules 2007. Thus the provisions of the Act are in effect supplemented by the following Orders, Rules and Regulations:

  • Lasting Power of Attorney, Enduring Power of Attorney and Public Guardian Regulations 2007 (SI 2007/1253);

  • Court of Protection Fees Order 2007 (SI 2007/1745) as amended by the Court of Protection Fees (Amendment) Order 2009 (SI 2009/513);

  • Court of Protection Rules 2007 (SI 2007/1899) as amended by the Court of Protection (Amendment) Rules 2009 (SI 2009/582) ('the Rules');

  • Mental Capacity Act 2005 (Transfer of Proceedings) Order 2007 (SI 2007/1989);

  • Mental Capacity Act 2005 (Transitional and Consequential Provisions) Order 2007 (SI 2007/1898);

  • Public Guardian (Fees, etc) Regulations 2007 (SI 2007/2051) as amended by the Public Guardian (Fees, etc.) (Amendment) Regulations 2009 (SI 2009/514); and

  • the Civil Procedure (Amendment) Rules 2007 (SI 2007/2204).

Section 52 of the Act also provides for the giving of practice directions by the President of the Court of Protection dealing with practice and procedure in the Court of Protection. These various rules and practice directions further require the use of specific prescribed forms.

The result of this legislative and regulatory medley is a remarkably complex set of documentation. It is unlikely that every part functions as efficiently as it should and a hallmark of this area of law will be the need for constant refinement and change. At the time of publication, the Ministry of Justice is proposing amendments to the Lasting Power of Attorney, Enduring Power of Attorney and Public Guardian Regulations 2007, principally to update the prescribed LPA forms (Consultation Paper CP26/08).

Status of the new Court

2.5 To ensure that the new Court of Protection has the standing and authority it requires, the MCA 2005 establishes the new Court as a superior court of record, which will have the same powers, rights, privileges and authority as the High Court.

As a court of record, decisions can be reported (where permitted by the Court) and used as precedents. Not only will the Court build up a body of precedents for its own use and guidance, but reported decisions will be more widely available for the use of lawyers and others looking to see how the Court makes its decisions.

With the authority of the High Court, the Court of Protection also has greater standing to make and enforce its decisions in practice. However, the main improvement and enhancement of the status of the Court is in its composition: only the judges of the Court of Protection have authority to exercise the Court's powers under the Act.

Judges of the Court of Protection

2.6 Section 46 describes the nominated judges of the Court of Protection. For a judge to be nominated as a judge of the Court of Protection, he must be nominated by the Lord Chief Justice or a person nominated to act on his behalf, who may be the President of the Court of Protection or a judicial office holder (as defined in s 109(4) of the Constitutional Reform Act 2005). A person who may be nominated must be a judge from among the judges listed in s 46(2):

  • (a) the President of the Family Division;

  • (b) the Vice-Chancellor;

  • (c) a puisne judge of the High Court;

  • (d) a circuit judge; or

  • (e) a district judge.

Subsections (3) and (4) further provide that

  • one of the judges in sub-ss (2)(a)–(c) will be appointed President of the Court of Protection;

  • one of the judges in sub-ss (2)(a)–(c) will be appointed Vice-President of the Court of Protection; and

  • one of the judges in sub-ss (2)(d) or (e) will be appointed Senior Judge of the Court of Protection 'having such administrative functions in relation to the court as the Lord Chief Justice, after consulting the Lord Chancellor, may direct'.

The Act therefore provides for the exercise of the Court's powers at different judicial levels. Unlike other courts therefore, the Court of Protection operates at more than one level as a self-contained court. Only where there is an appeal against a decision of one of the High Court judges is it necessary for a decision to be made outside of the Court of Protection by the Court of Appeal or House of Lords.

President and Vice-President

2.7 By an appointment dated 26 September 2005 made by the Lord Chancellor, Sir Mark Potter and Sir Andrew Morritt (President and Vice President respectively of the Family Division) were appointed President and Vice President of the Court of Protection.

The status of the President and Vice President raises the profile of the Court of Protection, reflecting the equivalent and prestigious roles of President and Vice President of the Family Division. Their experience and standing will also help integrate the Court of Protection into the mainstream court system and ensure continuity with the role of the Family Division, which prior to the implementation of the Act had been responsible for exercising the welfare jurisdiction of the courts.

The President of the Court of Protection also has the authority (delegated to him by the Lord Chief Justice) to exercise the power of nomination of judges to the Court of Protection under s 46 of the Act and must concur with the Lord Chancellor in approving any regulations passed under the Act. Under s 52, he has express power to give directions as to practice and procedure as well as to give guidance as to law or the making of judicial decisions.

Although the current holders of these offices were appointed by the Lord Chancellor, following the passing of the Constitutional Reform Act 2005, any future appointment must be made by the Lord Chief Justice, after consulting the Lord Chancellor.

High Court judges

2.8 On 24 April 2007 the President nominated all the High Court judges of the Family Division and Chancery Division as judges of the Court of Protection to hear Court of Protection cases on a part-time basis. Their role will be to hear complex and contentious first instance cases, principally where end of life decisions are in issue, as well as to hear appeals from decisions made at circuit judge level.

Practice Direction 9E deals with cases to be heard by High Court judges and this and the procedure for appeal are dealt with in more detail in Chapter 3.

Circuit judges

2.9 On 16 April 2007 the President nominated the following Circuit Judges to hear Court of Protection cases:

Table 1. 

His Honour Judge Alweis

His Honour Judge Barclay

His Honour Judge Behrens

His Honour Judge Cardinal

Her Honour Judge Darwall Smith

His Honour Judge Hamilton

His Honour Judge Hodge QC

His Honour Judge Kaye TD, QC

Her Honour Judge Marshall QC

Her Honour Judge Moir

His Honour Judge Norris, QC - now a High Court Judge

His Honour Judge Pelling QC

His Honour Judge Price QC


His Honour Judge Purle QC was nominated in place of Judge Norris on 13 November 2007.

Senior Judge

2.10 The former Master of the Court of Protection, Denzil Lush, who held that title under s 93 of the (repealed) Mental Health Act 1983, was appointed Senior Judge for the purposes of s 46(4) of the Mental Capacity Act. As he was not a circuit judge for the purposes of that section, the Mental Capacity Act 2005 (Transitional and Consequential Provisions) Order 2007 (SI 2007/1898), art 4 provided that:

'The person who, immediately before the commencement of Part 2 of the Act, holds the office of Master of the Court of Protection, shall be treated as—

  • (a) being a circuit judge nominated under section 46(1) of the Act to exercise the jurisdiction of the Court of Protection; and

  • (b) having been appointed the Senior Judge of the Court of Protection under section 46(4) of the Act.'

The Senior Judge is a full-time judge of the Court of Protection and sits at the central registry at Archway, where the Court's full-time judges are based. His main role is to head the central registry and permanent court at Archway, described below at 2.13.

Although the current holder of this office was appointed by the Lord Chancellor, following the passing of the Constitutional Reform Act 2005, any future appointment must be made by the Lord Chief Justice, after consulting the Lord Chancellor.

District judges

2.11 The workhorses of the new Court are the district judges, who will be responsible for the great majority of day-to-day decisions as well as directions and orders that need to be given during the course of proceedings in the Court of Protection. At the time of writing, the President, Sir Mark Potter, has nominated the following district judges to hear Court of Protection cases:

Date

District Judge

Address

23.01.2007

District Judge Duncan Adam

Swindon Combined Court, The Law Courts, Islington Street, Swindon SN1 2HG

23.01.2007

District Judge Michael Anson

Walsall Hearing Centre, County Court, Bridge House, Bridge Street, Walsall WS1 1JQ

23.01.2007

District Judge Gordon Ashton

Preston Combined Court Centre, The Law Courts, Ring Way, Preston PR1 2LL

23.01.2007

District Judge Bazley-White

Ipswich County Court, 8 Arcade Street, Ipswich IP1 1EJ

23.01.2007

District Judge John Coffey

Liverpool Civil and Family Court, 35 Vernon Street, Liverpool L2 2BX

17.05.2007

District Judge Penny Cushing

Principal Registry of the Family Division (PRFD), First Avenue House, 42–49 High Holborn, London WC1N 6NP

23.01.2007

District Judge Tony Davies

Birmingham Civil Justice Centre, Priory Courts, 33 Bull Street, Birmingham B4 6DS

23.01.2007

District Judge Richard Dawson

Pontypridd County Court, The Courthouse, Courthouse Street, Pontypridd CF37 1JR

12.04.2007

District Judge John Freeman

Poole County Court, Civic Centre, Park Road, Poole, Dorset

23.01.2007

District Judge Margaret Glentworth

Wakefield County Court, Crown House, 127 Kirkgate, Wakefield WF1 1JW

12.04.2007

District Judge Nicholas Goudie

Newcastle Combined Court Centre, The Law Courts, The Quayside, Newcastle-upon-Tyne NE1 3LA

17.05.2007

District Judge Richard Harper

Principal Registry of the Family Division (PRFD), First Avenue House, 42-49 High Holborn, London WC1N 6NP

12.04.2007

District Judge Anthony Harrison

Courts of Justice, Crown Square, Manchester M3 3FL

23.01.2007

District Judge Charles Khan

Manchester County Court, Crown Square, Manchester M60 9DJ

23.01.2007

District Judge Knifton

Birmingham Civil Justice Centre, Priory Courts, 33 Bull Street, Birmingham B4 6DS

23.01.2007

District Judge Gordon Lingard

Bradford Combined Court Centre, Bradford Law Courts, Exchange Square, Drake Street, Bradford, BD1 1JA

23.01.2007

District Judge Mainwaring-Taylor

Teesside Combined Court Centre, Russell Street, Middlesbrough, TS1 2AE

23.01.2007

District Judge David Millard

Nottingham County Court, 60 Canal Street, Nottingham NG1 7EJ

23.01.2007

District Judge Debbi O'Regan

Birmingham Civil Justice Centre, Priory Courts, 33 Bull Street, Birmingham B4 6DS

23.01.2007

District Judge David Owen

Birmingham Civil Justice Centre, Priory Courts, 33 Bull Street, Birmingham B4 6DS

23.01.2007

District Judge Michael Payne

Oxford Combined Court Centre, St Aldates, Oxford OX1 1TL

23.01.2007

District Judge A B Thomas

Gloucester Family and Civil Courts, Kimbrose Way, Gloucester GL1 2DE

17.05.2007

District Judge Susannah Walker

Principal Registry of the Family Division (PRFD), First Avenue House, 42–49 High Holborn, London WC1N 6NP

17.05.2007

Senior District Judge Philip Waller

Principal Registry of the Family Division (PRFD), First Avenue House, 42–49 High Holborn, London WC1N 6NP

All the above judges are already appointed and have existing responsibilities and workloads. They are therefore part-time judges. In view of the need to have dedicated judges in place to deal with the day-to-day work of the Court and provide a level of continuity for the conduct of the Court's business, the following judges have been appointed to sit at Archway:

Date

District Judge

30.01.2007

District Judge Susan Jackson

23.01.2007

District Judge Marc Marin

31.01.2007

District Judge Stephen Rogers

12.09.2007

District Judge Keeley Bishop

02.04.2009

District Judge Alex Ralton

The five judges based at Archway are together with the Senior Judge full time apart from Judge Marin who sits one week in four. Due to the higher than expected workload of the Court, it is likely that additional judges will be appointed in the course of 2010. Until then, more cases are transferred to the other district judges, some of whom are also sitting at Archway from time to time.

Location of the Court

2.12 One of the aims of the MCA 2005 is to widen access to justice by making its judges more widely available than was the case under the Mental Health Act jurisdiction. As is clear from the spread of district judges, most of England and Wales is covered quite thoroughly. However, although s 45(3) allows the Court to sit at any time and at any place, there are at the time of writing, only a limited number of designated venues for the Court of Protection. Apart from the central court at Archway in North London, current designated venues are the central courts in Preston, Manchester, Newcastle, Bristol, Cardiff and Birmingham. The number of venues will expand as the demand increases, although this is less of a practical problem than had been anticipated as nominated judges are also able to organise hearings to be conducted in their own courts.

As the facilities at Archway remain limited, arrangements are in place to use the Brent Magistrates' Court as an extension to Archway where hearings require several parties to attend, especially if solicitors and counsel are also in attendance. It is also understood that the Central London County Court will also be used as a venue for hearings before a circuit judge other than the Senior Judge (who is based at Archway) as well as for appeals against decisions of the district judges. Where the issues before the Court are complex or contentious, the case may also be referred to a puisne judge.

The central registry and court

2.13 Section 45(4) of the MCA 2005 provides for the Court of Protection having a central registry at a place appointed by the Lord Chancellor. Although there is provision for further registries to be designated, there is just the one registry at:

Archway Tower

2 Junction Road

London

N19 5SZ

DX 141150 Archway 2

The central registry provides a single venue for all applications to be processed, regardless of where and at what level those applications are to be held. Although the Court of Protection is a separate organisation, premises are currently shared with the Public Guardian who was initially charged with responsibility for the Court's administration. Both bodies currently share a single helpline number and website:

Phone Number: 0845 330 2900

Website: http://www.hmcourts-service.gov.uk/

It is the role of the Court staff based at Archway to process the extensive paperwork relating to applications and proceedings generally. The district judges (with the dedicated Court staff based at Archway) are therefore able to work with the Senior Judge in order to:

  • act with the Senior Judge who has principal responsibility for the allocation of cases, addressing both issues of workload and ensuring that cases are heard by the right level of judge;

  • provide a single point of reference for new applications and enabling papers to be transmitted to other courts;

  • deal with directions and interim orders that do not require attended hearings, whether or not a final hearing takes place whether in Archway or elsewhere;

  • provide a venue for hearing applications that can be dealt with at district judge or (in the case of the Senior Judge) at circuit judge level, especially property and affairs cases or cases that address both personal welfare and financial issues;

  • hear cases where there is a review of a decision made without an attended hearing or (in the case of the Senior Judge) deal with appeals from decisions of district judges; and

  • deal with references from the Public Guardian relating to issues arising in connection with LPAs, EPAs and the supervision of deputies.

Court administration

2.14 Prior to the implementation of the MCA 2005 on 1 October 2007, applications to the Court of Protection under the Mental Health Act jurisdiction were handled by the Public Guardianship Office. Under the new jurisdiction, the Court of Protection is a separate self-contained body that is responsible for handling its own applications and processes. Especially with an enhanced jurisdiction with cases being heard at different levels and in different locations, the role and efficiency of the central registry at Archway is critical if the new jurisdiction is to operate effectively.

Most applications are expected to follow a logical process as they work their way through from first application to an order being made. The Court administration is therefore divided into sections to reflect this as follows:

Receipt and Issue

deals with all new applications including requests for urgent or interim orders and permissions

Pre-hearing and referrals

deals with pre-hearing procedure including notices and certificates of service and interim directions

Post-hearing and dispatch

deals with settling of orders and their dispatch; also EPA and LPA hearings and referrals from the Office of the Public Guardian

Listings and appeals

deals with Court hearings and appeals including liaising with other courts to arrange hearings

It is likely that with the passage of time, the administration and structure of the Court of Protection will evolve to reflect the demands on the new Court and any lessons earned from early experience. It is already apparent that the new Court has struggled to deal with a new jurisdiction while being dependent on the Office of Public Guardian for its central registry, telephone lines and website. Despite the aim of the MCA 2005 to give the Court a new status and sense of identity, the Court has yet to develop a confident public presence of its own. There is therefore a sense that it will suffer from its structural weaknesses with a central court and registry that have been overshadowed by the Office of Public Guardian while judges who rarely sit as Court of Protection judges are scattered across the rest of the country.

To address these concerns, the administration of the Court of Protection was transferred on 1 April 2009 to Her Majesty's Court Service. The aim of this transfer is to provide 'greater flexibility in judicial and courtroom resources, a closer working relationship between Court of Protection and RCJ listing teams, a shared procedural and legislative framework and a clearer definition for users of the respective responsibilities of the OPG and Court.' (Reaching Out, February 2009). This should also raise the profile of the Court of Protection within the Court Service.

Powers of the Court of Protection

Principles the Court must apply

2.15 Before addressing the Court's powers in detail, it is important to address the principles – and therefore the constraints – within which the Court can make decisions. The Court is as bound as any other person making decisions on behalf of a person who lacks capacity: it can only make a decision where a person lacks capacity to make that decision and any decision it makes on behalf of a person who lacks capacity to make that decision must be made in that person's best interests.

These limitations or obligations imposed by the MCA 2005 are considered in more detail in Chapter 2. However, it is important to appreciate that the Court is also bound by them before considering its otherwise widely drafted powers under the Act. The Court must therefore work within the framework of the Act, a fact that is emphasised more than once by the Act in defining the Court's powers:

The Court can only act when P lacks capacity

2.16 It is a fundamental principle of the Act that a person has the right to make such decisions as he is capable of making and that no person or body should take that right away. The Court can therefore only intervene if P lacks capacity. If the proposition is reversed, the Court cannot intervene if P has capacity.

Section 16(1), which sets out the Court's powers to make decisions, provides as follows:

'This section applies if a person ("P") lacks capacity in relation to a matter or matters concerning—

  • (a) P's personal welfare, or

  • (b) P's property and affairs.'

The same limitation applies to a deputy acting with the Court's authority. Under s 20(1):

'A deputy does not have power to make a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter.'

This principle has a number of important and potentially awkward consequences for the practitioner:

  • The Court will generally require medical evidence to establish its authority to act at the relevant time. That evidence will furthermore need to be specific to the matter for which authority is required.

  • If a decision is made by the Court (or another person acting with the Court's authority) that decision may well be invalid.

  • The Act is aimed at replacing individual decisions. This principle is harder to apply where a person has mixed or fluctuating capacity over a period of time.

  • A person acting on behalf of P or indeed a third party dealing with P or his deputy or attorney needs to understand the extent of the authority given by the Court, the matter or matters it relates to and whether an assessment is required to determine whether it applies to the matter being dealt with.

Decisions must be made in P's best interests

2.17 It is not sufficient to establish solely that P lacks capacity. The Court is also bound – as is any other person working under the Act's provisions whether directly or with powers conferred by the Court – to act in P's best interests. Any decision made for a person under the Act, must, under s 1(5), be made in that person's best interests. Best interests are defined by the Act at s 4 and are considered in more detail at 1.191.22.

The Court's decisions should be as limited as possible

2.18 While the Court has a great deal of discretion as to how it may act where P lacks capacity, it is an important principle of the MCA 2005 that P is not defined as someone who lacks capacity indefinitely. Thus, s 1(6) sets out the principle that:

'Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.'

This is reinforced in practice by the guidance contained in s 16(4) when the Court is considering the exercise of its powers to appoint a deputy:

'When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that—

  • (a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and

  • (b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.'

Although the Act assumes that the appointment of a deputy is a last resort and when appointed, his powers should be as limited as possible, applying this ideal can lead to a number of difficulties in practice:

  • Most persons whose lack of capacity is sufficiently advanced to require the involvement of the Court of Protection in administering their property and affairs will need more than a simple one-off order. They will need an ongoing authority to be conferred on a deputy.

  • If the deputy's authority is too restrictive in time or scope, the deputy will need to come back to the Court again in only a short period of time, involving a lengthy and expensive application to the Court of Protection.

  • The Court of Protection does not have the resources to provide ongoing support to deputies providing orders as and when needed; neither does the Public Guardian have the authority or ability to provide such a facility.

In practice the Court will provide deputies with as much authority as possible to prevent repeated applications to the Court. However, even if this is the practice, it does not lead to an assumption that a deputy will be appointed on an indefinite basis. Some orders do need to be limited in time and scope, especially where the person concerned is a child or young adult and a large damages award is involved. The Court will in such cases limit the appointment to a period of three years so that the deputy must bring the matter before the Court again in a relatively short time and provide an account of his role and whether its continuance is in the best interests of the person concerned.

Where P is a child

2.19 Section 2(5) of the MCA 2005 imposes a minimum age of 16 for P in order for the Court to have jurisdiction. Other defined acts cannot be performed by or on behalf of a person under 18, such as the making of an LPA (s 9(2)(c)), an advance directive (s 24(1) or a Will (s 18(2)). However, the Court can accept jurisdiction in the case of a child in respect of the child's property and affairs. Under s 18(3) so long as P is under the age of 16, the Court may accept jurisdiction in the matter if it considers it likely that P will still lack capacity to make decisions in respect of the matter in question when P reaches 18.

Proceedings involving a child are normally dealt with under the Children Act 1989. However, a case may have a financial consequence or the child may be over 16 and the decision may have longer term consequences. In such a case, the proceedings should be transferred to the Court of Protection. Conversely, the Court of Protection may believe that a case should more properly be dealt with under the Children Act. Such cases can be transferred from one jurisdiction to another so long as the court transferring the proceedings considers it just and convenient to do so and considers the factors laid out in the Mental Capacity Act 2005 (Transfer of Proceedings) Order 2007 (SI 2007/1899).

Power to make declarations concerning capacity

2.20 Section 15 of the MCA 2005 contains a new power for the Court to make declarations as to:

  • '(a) whether a person has or lacks capacity to make a decision specified in the declaration;

  • (b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration; or

  • (c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.'

Whether or not a person or a court can make a decision on behalf of another person depends entirely on whether or not that person lacks capacity. One-off decisions are preferable to ongoing delegation of powers and where possible doctors and carers should work within their common law rights or with the protection afforded by ss 5–8 of the Act. The Act does therefore provide a 'safety valve' for professionals and carers making decisions whose validity might be in doubt, especially if there is uncertainty over the capacity of the person on whose behalf a decision is being made. Thus a doctor may obtain a declaration that he may operate on a patient or that he may or may not ignore the instructions of the patient whose capacity is in doubt.

Although this provision is aimed primarily at carers and medical professionals, there is no reason why it should not be used by deputies and attorneys where financial decisions are in issue. For instance, a solicitor who is unsure whether a client is capable of making a Will (perhaps to avoid future litigation where capacity is in issue or where he already acts as deputy for the client) would be able to obtain a definitive declaration that his client has capacity. Clearly the Court will expect professionals to use their own judgment and obtain expert advice to inform themselves, using the Court as a last resort. The last resort nature of the Court's powers to determine issues of capacity is emphasised by the Code of Practice (para 4.65). However, in contentious and complex cases, this might prove a helpful facility for practitioners. The problem faced by practitioners is that they may be asked to implement major decisions for persons who in other respects appear to lack capacity. It is easier in theory than in practice to explain how a person may be incapable of managing his property and affairs but can make a significant decision such as a will or gift.

In a recent case the donor of a registered EPA recovered sufficient capacity to wish to make some substantial lifetime gifts following the sale of her property. She could not deal with the day-to-day management of her property and affairs and it was in any case unlikely that her condition would improve sufficiently to justify an application to cancel registration of the EPA. The donor's attorneys were concerned that the proposed gifts might give rise to questions on the part of the bank or following the donor's death when the gifts would have to be declared to HMRC Capital Taxes. The Court received sufficient medical evidence to provide a declaration under s 15 of the MCA 2005 that the donor could make the gifts notwithstanding the existence of the registered EPA.

Power to direct reports

2.21 To assist the Court in its core functions or to assist with the protection of P's estate and person, the Court has a new statutory power under s 49 of the MCA 2005 to call for a report from one or more of the following:

  • the Public Guardian;

  • a Court of Protection Visitor;

  • a local authority; or

  • an NHS body.

The report must deal with such matters relating to P as the Court may direct and may be made orally or in writing as the Court may direct.

The power to call for reports is an important part of the Court's armoury in determining issues concerning P's capacity and best interests. It is also referred to in Rule 85 of the Court of Protection Rules as the first of the directions that the Court may exercise. When an application has been made to the Court, it may direct a report and then use that report to inform the Court directly as to the manner in which its substantive powers should be exercised.

Although reports are aimed at providing the Court with independent and impartial evidence, reports should be used to assist all the parties to an application. Thus Rule 117 of the Court of Protection Rules requires the Court to send a copy of the report to the parties 'and to such persons as the Court may direct'. Rule 118 also allows the Court to permit a party to submit written questions relevant to the issues to the person preparing the report. For instance if there are concerns about P's capacity or best interests, a party to an application may instead of obtaining his own report, ask the Court Visitor to deal directly with his queries.

Not only is there a saving in cost if only one expert advises all the parties, the person conducting the report for the Court will have a right to access information which would otherwise be confidential or restricted. Under s 49(7) of the Act, the Public Guardian or Court Visitor has a right to examine and take copies of health, social services and care home records. Under s 49(8) the Public Guardian or Court of Protection Visitor also has a right to interview P in private.

The Court's power to call for a report is a separate power for the Court to exercise primarily for its own benefit and thereby for the benefit of all the parties. It is in addition to the Court's general powers of case management and its powers on application by a party to issue a witness summons or direct a party to proceedings to provide information (Rules 106 and 107 of the Court of Protection Rules). It is also separate from the report that a deputy is expected to submit to the Public Guardian under s 19(9) as a condition of being appointed.

The status and role of Court of Protection Visitors is dealt with at 2.45 below.

Powers in relation to P's welfare

Section 17 powers generally

2.22 The Court may exercise various powers in relation to the welfare as well as the property and affairs of a person who lacks capacity either directly as a 'one off' decision or through the appointment of a deputy. The Court's powers are set out in s 17 (personal welfare) and s 18 (property and affairs).

The Court's powers in relation to a person's welfare are new powers provided by the Act, and extend in particular to:

  • (a) deciding where P is to live;

  • (b) deciding what contact, if any, P is to have with any specified persons;

  • (c) making an order prohibiting a named person from having contact with P;

  • (d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;

  • (e) giving a direction that a person responsible for P's health care allow a different person to take over that responsibility.

The Court's powers are widely drafted, and confer a great deal of power on the Court. A decision refusing consent to a particular treatment may relate to a life-sustaining treatment which when withdrawn will bring about the death of P. However, the Court and any person to whom powers are delegated by the Court must act in accordance with the Act's core principles.

Limits to Court's powers

2.23 Although at first sight the Court's powers appear all-encompassing, they are of course still constrained and governed by the principles described above at 2.162.18. Thus the Court cannot act where a person has capacity, its decisions should be as limited in scope and time as possible and decisions must be made in a person's best interests. There are, furthermore, certain acts that the Court cannot authorise. Sections 27–29 set out a number of decisions that are beyond the scope of the MCA 2005 entirely. These must be dealt with within their own legal frameworks. Thus no power contained in the Act permits any decision to be made by the Court or any other person on behalf of a person who lacks capacity:

Under section 27

  • (a) consenting to marriage or a civil partnership;

  • (b) consenting to sexual relations;

  • (c) consenting to a divorce being granted on the basis of two years' separation;

  • (d) consenting to a dissolution order being made in relation to a civil partnership based on two years' separation;

  • (e) consenting to a child being placed for adoption by an adoption agency;

  • (f) consenting to the making of an adoption order;

  • (g) discharging parental responsibilities in matters not relating to a child's property; and

  • (h) giving a consent under the Human Fertilisation and Embryology Act 1990.

Under section 28

  • (a) giving medical treatment for a mental disorder; and

  • (b) consenting to a patient being given medical treatment for a mental disorder where the treatment is regulated by the Mental Health Act.

Under section 29

– voting at an election for public office or at a referendum.

The restriction in s 29 applies only to elections for public office or a referendum as defined by s 29(2). The Court is not restricted in its powers where the elections relate to private associations or contractual rights, for instance under a company's articles.

Detention of P and deprivation of liberty

2.24 There has been some uncertainty as to the extent of the Court's powers to authorise the detention of a person who lacks capacity to consent to be detained, following the European Court of Human Rights decision in the 'Bournewood' case of HL v United Kingdom (2004) 40 EHRR 761 and the High Court decision of DE and JE v Surrey County Council [2006] EWHC 3459. These cases have made it clear that if P is in hospital or a care home and lacks capacity to consent to his own detention, P is still being deprived of his liberty. It is irrelevant that P has no knowledge or understanding of his surroundings or actually wishes to leave his premises. His detention is an objective fact, regardless of his state of mind.

This uncertainty has been clarified by the Mental Health Act 2007 which makes a number of amendments to the MCA 2005 known as the Deprivation of Liberty Safeguards (or DOLS). After much deliberation and delay, these amendments came into force on 1 April 2009. New ss 4A and 4B will provide as follows:

'4A Restriction on deprivation of liberty

(1) This Act does not authorise any person ("D") to deprive any other person ("P") of his liberty.

(2) But that is subject to -

  • (a) the following provisions of this section, and

  • (b) section 4B.

(3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.

(4) A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.

(5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).

4B Deprivation of liberty necessary for life-sustaining treatment etc

(1) If the following conditions are met, D is authorised to deprive P of his liberty while a decision as respects any relevant issue is sought from the court.

(2) The first condition is that there is a question about whether D is authorised to deprive P of his liberty under section 4A.

(3) The second condition is that the deprivation of liberty -

  • (a) is wholly or partly for the purpose of -

    • (i) giving P life-sustaining treatment, or

    • (ii) doing any vital act, or

  • (b) consists wholly or partly of -

    • (i) giving P life-sustaining treatment, or

    • (ii) doing any vital act.

(4) The third condition is that the deprivation of liberty is necessary in order to -

  • (a) give the life-sustaining treatment, or

  • (b) do the vital act.

(5) A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P's condition.'

Decisions affecting treatment for mental disorder and detention for that purpose remain outside the scope of the MCA 2005, and are dealt with under the separate jurisdiction of the Mental Health Act. However, decisions affecting detention and deprivation of liberty of persons who lack capacity and are not being detained for such treatment, such as elderly persons with dementia in care homes, can be dealt with by an order of the Court of Protection under s 16. However, the legislation does not anticipate the Court of Protection being used as a matter of course in every such situation. Applications to the Court are time consuming and expensive and therefore a last resort. The aim is that in the majority of day-to-day cases detention should be authorised by the non-judicial procedure set out in Sch A1 of MCA 2005. This will also provide for the involvement of P or his representative or independent mental capacity advocate (IMCA). A new s 21A also contains a right of referral to the Court of Protection for a determination, effectively making use of an already established system as a forum for judicial review.

The MCA 2005 furthermore contains its own express prohibitions against detention which amounts to a deprivation of liberty being authorised by a deputy (s 20(7)) or by an attorney acting under an LPA (s 11(1)).

A detailed review of the Deprivation of Liberty Safeguards is outside the scope of this work. Further information is available from the Department of Health at:

http://www.dh.gov.uk/en/SocialCare/Deliveringadultsocialcare/MentalCapacity/MentalCapacityActDeprivationofLibertySafeguards.

Relevance of welfare deputy and further limits on deputy's powers

2.25 The Court can exercise its powers in respect of P's welfare either directly or by appointing a deputy with powers delegated or 'deputed' by the Court. Section 16(4) of the MCA 2005 which sets outs a preference for making single orders to appointing deputies has already been noted. In welfare cases such a preference may be appropriate. A welfare order may for instance be required for a single procedure, for instance determining whether or not P should be treated or deciding where P should live. It should not then be necessary to make any further orders or authorise a person to go on making decisions in the future at least where P's welfare is concerned. It may for instance be appropriate for the Court to make a welfare order deciding where P should live and then make a separate order appointing a deputy to deal with P's property and affairs. The deputy will need long term authority to sell P's property, invest the proceeds and pay the nursing home; the decision as to where P should live is, however, one that only needs to be taken once.

It is therefore unusual for a welfare deputy to be appointed. A person applying for such an order will need to show that the matter cannot be dealt with in a less restrictive manner, whether by a single order or by using the authority conferred by s 5 of the Act (acts in connection with care and treatment). The appointment of a welfare deputy would only be relevant in cases where there is a clear long term need to provide authority at regular intervals or over an extended period of time. A welfare deputy may therefore need to be appointed in situations where:

  • there has been a history or risk of abuse or abduction and a health care provider needs the reassurance of knowing that ongoing authority can be provided;

  • P's health needs are complex and frequent medical intervention or treatment is required which does not form part of an established pattern.

Section 20 furthermore sets out additional restrictions appropriate to when a deputy is responsible for welfare matters. Not only must a deputy not act when a person lacks capacity, but the deputy has no authority to:

  • prohibit a person from having contact with P;

  • direct a person responsible for P's health care to allow a different person to take over that responsibility;

  • 'refuse consent to the carrying out or continuation of life-sustaining treatment in relation to P.' A life or death decision is therefore reserved to the Court of Protection;

  • restrain P unless the five conditions set out in sub-ss 20(8)–(13) are satisfied, that:

    • – the deputy is acting within the scope of an express authority;

    • – P lacks capacity in relation to the matter;

    • – the deputy reasonably believes that the restraint is necessary to prevent harm to P;

    • – the restraint is proportionate to the likelihood of P suffering harm and the seriousness of that harm; and

    • – the act of restraint does not amount to a deprivation of liberty.

Powers in relation to property and affairs

Powers generally

2.26 The principal powers of the Court of Protection are contained in s 18 of the MCA 2005 and are broadly similar to those given to its predecessor by s 96 of the Mental Health Act 1983. The Court's powers to make decisions on P's behalf in respect of property and affairs extend in particular to:

  • (a) the control and management of P's property;

  • (b) the sale, exchange, charging, gift or other disposition of P's property;

  • (c) the acquisition of property in P's name or on P's behalf;

  • (d) the carrying on, on P's behalf, of any profession, trade or business;

  • (e) the taking of a decision which will have the effect of dissolving a partnership of which P is a member;

  • (f) the carrying out of any contract entered into by P;

  • (g) the discharge of P's debts and of any of P's obligations, whether legally enforceable or not;

  • (h) the settlement of any of P's property, whether for P's benefit or for the benefit of others;

  • (i) the execution for P of a will;

  • (j) the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise;

  • (k) the conduct of legal proceedings in P's name or on P's behalf.

There are further administrative powers relating to property and affairs contained in Sch 2 to the Act:

para 5

vesting orders in respect of any settlement made by P or power exercised on behalf of P to appoint trustees or retire as a trustee

para 6

varying a settlement made by virtue of s 18

para 7

vesting stock in a curator appointed outside of England and Wales

para 8

preserving an interest in P's property to take effect as the same interest under a Will or intestacy

para 10

appointing a properly qualified person to exercise P's powers as patron of a benefice

Limits to Court's powers

2.27 Although at first sight the Court's powers appear extremely wide, they are of course still constrained and governed by the principles described at 2.152.18 above. However, these principles impose greater difficulties where P's property and affairs are concerned. The Court's authority is limited to making decisions on P's behalf. This is straightforward where a single decision is made, such as the making of a Will. It can be shown that P lacks testamentary capacity and the Court therefore has authority to make a Will on P's behalf. But it is less clear what happens where ongoing authority is required over a period of time, for the management and administration of P's property and affairs. It is often difficult to separate the ability to manage property and affairs from the ability to make specific decisions and this is considered in more detail at 1.5 above. Although in practice it provides a deputy with extensive authority and a discretion as to whether it can be used (see below), the Court will need a detailed medical analysis of what it is that P can and cannot do. This gives the Court four basic options:

  • 1 declaring that the management and administration of property and affairs is in itself a matter that P lacks capacity to do for himself;

  • 2 declaring that P cannot manage his property and affairs apart from those specified matters that are reserved to or retained by P;

  • 3 declaring that P can manage his property and affairs to a limited degree and that certain matters are reserved to or to be dealt with by the Court or deputy; or

  • 4 confirming that P lacks capacity to do various things and placing the onus on the deputy or person dealing with P to ensure that they are acting within the scope of the authority given.

In many cases, these issues will not give rise to any difficulty. If P has advanced dementia and is in a nursing home, issues of capacity do not arise. But what happens if P has some ability to carry out individual acts, but without understanding their wider relevance? Or if P has the ability to do some things but not others, but the day-to-day administration of P's affairs overlaps with matters that P is also able to do for himself? The difficulty faced by the Court, deputies and those providing medical advice is in contrast to the clarity of the previous Mental Health Act jurisdiction. Section 95 gave the Court authority, with respect to the property and affairs of a 'patient' (who by definition could not manage his property and affairs), to do or secure the doing of all such things as appeared necessary or expedient:

  • (a) for the maintenance or other benefit of the patient;

  • (b) for the maintenance or other benefit of members of the patient's family;

  • (c) for making provision for other persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered; or

  • (d) otherwise for administering the patient's affairs.

The MCA 2005 jurisdiction requires greater clarity, thought and therefore effort in determining what authority needs to be conferred and how it should be exercised. Neither is there an explicit authority to maintain P or his family. All acts performed under the MCA 2005 must be authorised by the Court and must be in P's best interests.

Territorial limits to Court's jurisdiction

2.28 The Court's powers under the MCA 2005 extend only to P's property and affairs situated within England and Wales. Section 63 and Sch 2 provide for reciprocal recognition of the equivalent authority in other jurisdictions. These include Scotland, Channel Islands and the Isle of Man. Where other jurisdictions are concerned the authority of the Court of Protection may be recognised or proceedings may have to be brought locally. International aspects of P's estate – foreign property of P or property of a person who lacks capacity and whose habitual residence is in another jurisdiction are dealt with in Chapter 16.

Power to appoint deputies

2.29

As with making welfare decisions for a person who lacks capacity, the Court can, under s 16 of the Act, make decisions or appoint a deputy to make those decisions. Although s 16(4) sets out the aim that a decision of the Court is preferred to the appointment of a deputy, this will not be possible in most cases where authority is needed to deal with the day-to-day management or oversight of P's estate. A single order might, however, be appropriate where other arrangements are already in place for the management of P's property and affairs, for instance under an LPA or EPA or under a settlement.

The procedure for appointing a deputy is dealt with in detail in Chapter 5 and the powers and responsibilities of the deputy are dealt with in Chapter 4.

Restrictions on deputies

2.30 In general, the deputy has powers delegated or deputed to him by the Court to make decisions on P's behalf. The Court may determine the extent of the deputy's authority and has the responsibility of ensuring that the deputy has sufficient authority to carry out his obligations to P's estate consistent with the limitations and constraints imposed by the Act. However, not all the specific powers available to the Court under s 18 can be delegated and where these are not available to the deputy, the deputy must apply to the Court for authority. The aim of the Act is therefore to allow deputies to deal with day-to-day matters but to require deputies to return to the Court for certain decisions to be made.

The following powers are expressly excluded from the powers that can be conferred on a deputy and are therefore reserved to the Court (s 20(4))[1]:

  • (a) the settlement of any of P's property, whether for P's benefit or for the benefit of others;

  • (b) the execution for P of a Will; or

  • (c) the exercise of any power (including a power to consent) vested in P whether beneficially or as a trustee or otherwise.

As already mentioned, a deputy must work within the constraints of the Act. Section 20(6) explicitly states that his authority is subject to the provisions of the Act and in particular ss 1 and 4. It may, however, not always be sufficient for a deputy to comply with the best interests requirements of the Act. A deputy also has fiduciary duties towards P's estate which must not be overlooked, especially where P is acting in a professional role.

Powers in relation to enduring powers of attorney

2.31 The Court of Protection also has the responsibility and jurisdiction for dealing with proceedings relating to EPAs under Sch 4 to the MCA 2005. Subject to the limitations of the EPA itself, and unless the Court intervenes, an attorney who derives his authority from his appointment by the donor generally operates without any further authority or supervision. The Court does, however, have to intervene if there are any disputes over the EPA or the role of the attorney, or if the attorney needs to exceed his authority under the instrument.

EPAs are dealt with in Chapter 14.

Powers in relation to lasting powers of attorney

2.32 The Court of Protection also has the responsibility and jurisdiction for dealing with proceedings relating to LPAs under ss 22 and 23 of and Sch 1 to the MCA 2005. The Public Guardian (whose role is dealt with at 2.36 below) is simply responsible for registering LPAs. If an application to register an instrument as an LPA is correctly made, and there are no objections, then the Public Guardian must register the instrument as an LPA.

If any objection is made to registration of an instrument as an LPA or an application is made to cancel the LPA, then this must be dealt with by the Court of Protection. LPAs are dealt with in more detail in Chapter 15.

Service standards

2.33 A party who is not happy with a judicial decision of the Court of Protection has a right, with permission where it is required, to request an oral hearing where a matter was decided without an oral hearing, or appeal to a judge at a higher level or to the Court of Appeal. These procedural issues are dealt with in more detail in Chapter 3. Decisions of the Public Guardian are also subject to a separate review process (see 3.52).

Both the Court and the Office of Public Guardian currently have the same general service commitments which are set out in booklet OPG503, available from the OPG Customer Services or website. Although service standards are under review and will be set out separately following the transfer of the Court administration to HM Court Service, both bodies provide (as at 31 March 2009) a commitment to:

  • reply to letters, faxes and emails within 15 working days;

  • see visitors at the OPG offices within ten minutes, with or without an appointment;

  • aim to answer telephones within 60 seconds;

  • post application forms or printed advice within one working day of being requested;

  • acknowledge a complaint within two working days; and

  • within 15 working days of a complaint, provide a full response or an explanation as to why a full response cannot be given and when a full response will be given.

Where the OPG is dealing with the registration of an LPA or EPA, it is committed to:

  • registering the instrument within five working days of the end of the relevant waiting period provided there are no objections in relation to the application; and

  • if there are any errors in the application, inform the applicant within ten working days of receipt.

The time standards become progressively more generous where the Court of Protection is involved in making decisions:

  • where a deputy has been appointed, the OPG will notify the deputy of the type of supervision required;

  • where an application is made to the Court, the Court will contact the applicant within 25 working days of receipt of the application;

  • where no oral hearing is directed, the Court will give a direction within 21 weeks of receipt of an application; and

  • where an oral hearing is directed, the hearing will be set for within 15 weeks of the direction.

The Court's service standards do not indicate when a direction for a hearing will be given where a hearing is appropriate. Clearly it is not always obvious immediately whether a hearing will be necessary and it may take several weeks for the Court to receive responses to an application. Even when a hearing is necessary and a direction is made to that effect, it provides little comfort to realise that this might not take place for a further three months.

Complaints

2.34 It is always good policy for any potential complainant to attempt to resolve an issue before it becomes a complaint. Often a potential complaint can be avoided simply by an explanation of what has happened, an opportunity for a matter to be considered in detail or an apology if there has been an error. As with any professional organisation, the Court of Protection and Office of Public Guardian aim to address complaints and resolve them where possible. Complainants in turn are expected to take their complaints through two stages; first through the person they are dealing with and then, if the complaint cannot be resolved, by way of a formal complaint to the Head of Court Administration (Gabby Bradshaw) or the Public Guardian (Martin John). In practice, such complaints are treated seriously and referred to a senior member of staff to resolve.

If the matter cannot be resolved internally a complaint about the Court of Protection wil be referred to the Area Director of the Court Service; a complaint about the Office of the Public Guardian may be referred to the independent Adjudicator who can be contacted at:

Haymarket House

Haymarket

London

SW1Y 4SP

Tel: 020 7930 2292

Fax: 020 7930 2298

Email: adjudicatorsoffice@gtnet.gov.uk

Website: www.adjudicatorsoffice.gov.uk

The appointment of an Adjudicator does not affect the rights of complainants to refer cases to the Parliamentary Commissioner for Administration (the Ombudsman) or their MP. However, the Parliamentary Commissioner or an MP will expect the internal and official independent procedures to have been used first. Complaints about the Court Service must be referred to the Parliamentary Commissioner's whose details are as follows:

Office of the Parliamentary Commission for Administration

Millbank Tower

Millbank

London

SW1P 4QP

Tel: 0845 015 4033

Fax: 020 7217 4160

Email: phso.enquiries@obudsman.org.uk

Website: www.ombudsman.org.uk

The Public Guardian

Background

2.35 Prior to the implementation of the MCA 2005, the administrative work of the Court was carried out by the Public Guardianship Office, which took on that role from the Public Trust Office in April 2001. As mentioned above at 2.2, the role and capability of the Public Guardianship Office was regularly criticised by, among others, the National Audit Office in its reports of 1999 (HC 206, 1998–99) and 2005 (HC 27 2005–06) and the Lord Chancellor's Department in its Quinquennial Review of 1999. Generally criticism centred around the performance of this body and its inability to pay its way from fees charged to its customers. There was also an underlying concern that the Public Guardianship Office and Court of Protection were too closely entangled and it was often unclear where responsibility lay for particular tasks. Thus applications were processed by the Public Guardianship Office, even though these were for judicial decisions. Correspondence would come from the Public Guardianship Office requesting information or giving permission for a small gift or major expense; in most cases a decision had been made by a nominated officer authorised to make decisions under the Mental Health Act 1983, but frequently letters of advice or guidance were sent which had no formal authority. Although the Public Guardianship Office was an executive agency within (at the time of its demise) the Ministry of Justice, it had no statutory authority or standing to make decisions. The new legislation would therefore provide a vehicle for the functions of this body to be defined and placed on a statutory footing. This would be combined with the policy of ensuring that these functions would be administrative and supervisory and that judicial decisions would be made by duly appointed judges within the Court of Protection.

Role of Public Guardian

2.36 Section 57 of the Act provides for the creation of a new, statutory office-holder to be known as the Public Guardian. Section 58 confers on the Public Guardian various functions, principally:

  • establishing and maintaining registers of LPAs and deputies appointed by the court;

  • supervising deputies appointed by the court;

  • directing a visit by a Court of Protection Visitor to a deputy, donee or P and the making of reports;

  • receiving security from deputies;

  • receiving reports from donees of LPAs and from deputies (including accounts);

  • reporting to the Court on such matters relating to proceedings as the Court requires;

  • dealing with representations and complaints about the conduct of donees and deputies; and

  • publishing information.

The Lasting Power of Attorney, Enduring Power of Attorney and Public Guardian Regulations 2007 (SI 2007/1253) extend the Public Guardian's duties and powers, so that the duties include the provision of a register of EPAs.

The Office of the Public Guardian

Nature of OPG

2.37 The Public Guardian is a statutory office holder and this role is currently held by Martin John who is also chief executive of the Office of Public Guardian (OPG), which is an executive agency of the Ministry of Justice.

The OPG provides continuity with the Public Guardianship Office, but the new body emphasises the separation of roles between the OPG and the Court implicit in the Mental Capacity Act. The existence of such a body, to enable the Public Guardian to carry out his statutory duties, was first promoted by the Department for Constitutional Affairs in its submission to the parliamentary joint scrutiny committee after the introduction of the draft Mental Incapacity Bill. This submission (HC1083 MIB 1222) proposed this new body as follows:

'A new Office of the Public Guardian (OPG)

There would be a new Office of the Public Guardian (OPG), replacing the existing Public Guardianship Office. Both the new Court and the Office of the Public Guardian would build on the existing court and office structures. The OPG would liaise and work closely with other agencies in financial, health and welfare areas.

As now the OPG would have partly an administrative function and partly a supervisory function. It would be responsible for registering LPAs and for supporting the Court. Its supervisory function would be mainly focused on financial decision making (see below). However, it would have a role in identifying and tackling possible abuse with other agencies by providing a focus for concerns and fielding them to the appropriate agency.

The new Court and OPG would, as now, set fees to cover costs, with a remissions policy where the criteria were met. …

Under the Bill, the Public Guardian has a supervisory role in monitoring LPAs and Deputies. The OPG's supervisory role would be geared to risk and would intrude as little as possible. The focus would be on supervision of Deputies. Deputies would have a new and unique relationship with the person lacking capacity under the Bill and further work is being undertaken to understand how this will affect the monitoring requirements.

Where there are allegations of possible abuse (of any kind) Office of the Public Guardian would liaise closely with all of the agencies and individuals involved, including social services, the police, voluntary organisations and Adult Protection Committees. The existing Public Guardianship Office is already establishing and developing partnerships with local authorities and other bodies to ensure that any concerns about a person lacking capacity are highlighted and acted upon. Work is also in progress to establish an investigation unit.

The OPG is supported by the currently named Lord Chancellor's Visitors. Visitors would be able to visit attorneys and Deputies if so directed and provide an independent and impartial report on circumstances to the Court.'

The Office of the Public Guardian currently shares the same premises as the Court of Protection at Archway (see 2.13). However the Public Guardian is in the process of diverting operations to other offices, including central London, Birmingham and Nottingham. While there is no need for the Public Guardian to be in the same location as the Court (and there are policy reasons to separate the two bodies as much as possible) and a regional presence is a worthwhile goal, there are concerns that a small organisation such as this will dilute its operational effectiveness.

Public Guardian Board

2.38 Although the OPG is part of the Ministry of Justice and therefore responsible to the Lord Chancellor and Minister of Justice, it also has a duty to account under s 59 of the MCA 2005 to a Public Guardian Board. Members of the Board are appointed by the Lord Chancellor and s 59(5) requires at least one member of the Board who is a judge and at least four who appear to the Lord Chancellor 'to have appropriate knowledge or experience of the work of the Public Guardian'. Section 59(6) provides for further regulations to be made dealing with the composition of the Board, terms of office and conduct of meetings and these have been enacted as the Public Guardian Board Regulations 2007 (SI 2007/1770). These provide, inter alia, that members are appointed for a fixed term not exceeding four years and may be reappointed for one further term on its expiry.

Under s 49(2), the Public Guardian Board has a duty to:

'… scrutinise and review the way in which the Public Guardian discharges his functions and to make such recommendations to the Lord Chancellor about that matter as it thinks appropriate.'

The Lord Chancellor is required by s 59(3) to 'give due consideration to recommendations made by the Board'. The efficacy of the Public Guardian Board lies entirely in the willingness of its members to hold the OPG to account. Its first annual report, published on 7 October 2008, indicates that as a body it is prepared to evaluate critically the operation of the OPG and the implementation of the MCA 2005. Its first annual report is available from the OPG website at: http://www.publicguardian.gov.uk/docs/pgboard-report

Wider public role of the OPG

2.39 The OPG is not just responsible for dealing with deputies and donors of powers of attorney who lack capacity. One of the Public Guardian's statutory functions under the MCA 2005 is to publish 'in any manner the Public Guardian thinks appropriate, any information he thinks appropriate about the discharge of his functions'. This gives the Public Guardian a 'public relations role' which the OPG website defines as follows:

'The OPG also provides information on mental capacity to the public, legal and health professionals, and researchers. It can provide contacts with other organisations working in the field of mental capacity. The OPG also has responsibility for policy issues relating to the Mental Capacity Act and in relation to mental capacity issues generally.'

Powers of the Public Guardian

Statutory powers

2.40 The core function of the Public Guardian is to deal with the non-judicial aspects of the MCA 2005 jurisdiction relating to powers of attorney and deputies. In practice this is limited to registration of powers of attorney and the supervision of deputies after their appointment by the Court. Where supervision is concerned, the Court will direct a report to be submitted by a deputy to the Public Guardian; the Court may also direct a report from the Public Guardian under s 49 of the Act. The Public Guardian's powers are therefore geared towards enabling him to obtain that report.

The Public Guardian's principal powers are contained in s 58 of the MCA 2005 and the Lasting Power of Attorney, Enduring Power of Attorney and Public Guardian Regulations 2007. The Public Guardian may, for the carrying out of his functions:

  • examine and take copies of health records, social services records and care home records;

  • interview P in private;

  • allow a deputy an extended period of time to submit a report;

  • require a deputy to verify or authenticate documents submitted with a report;

  • require a deputy to submit a final report on the termination of his appointment;

  • require a deputy to provide specified information or produce specified documents;

  • direct a Court of Protection Visitor to visit a person; and

  • require a donee of an LPA or an attorney under an EPA to provide specified information or documents.

The Public Guardian does have sufficient powers to obtain information from deputies and attorneys, whether at the express direction of the Court, as part of an ongoing obligation to supervise or in response to a query or concern from a relative, friend or healthcare professional. However, if the Public Guardian does have his own concerns as to fraud or misuse of the power, then the Public Guardian may investigate the matter further and see if there is an error or oversight that can be readily corrected. However, if the matter cannot be resolved informally, the Public Guardian must make an application to the Court of Protection. Rule 43 of the Lasting Power of Attorney, Enduring Power of Attorney and Public Guardian Regulations 2007 confers authority on the Public Guardian to make applications to the Court 'in such circumstances as he considers it necessary or appropriate to do so'. In welfare cases, the Public Guardian is furthermore not required to obtain permission before making an application (Rule 51 of the Court of Protection Rules).

Powers of supervision

2.41 To carry out his functions, the Public Guardian does in most cases have control over the way in which deputies are supervised. Only the Court of Protection has authority to order that a report be made to the Public Guardian under s 19(9)(b) or under s 49 of the Act. Rule 39 of the Lasting Power of Attorney, Enduring Power of Attorney and Public Guardian Regulations 2007 states that such a report must contain or be accompanied by specified information. Where the report relates to P's property and affairs then it is for the Public Guardian to specify the information required, subject only to any other direction of the Court and the information being reasonably required by the Public Guardian to exercise his functions under the Act. The Public Guardian also has authority under the Public Guardian (Fees, etc) Regulations 2007 to determine which of the three levels of supervision are appropriate to the case.

The Public Guardian's role in supervising deputies and attorneys is dealt with separately in the chapters dealing with those matters.

Interaction with the Court

2.42 After the MCA 2005 was passed in 2005 and prior to implementation, it was unclear whether the Public Guardian would be responsible for processing applications to the Court of Protection and continue that function of the Public Guardianship Office. As mentioned in the context of the administration of the new Court of Protection (2.14 above), the Court has been established as a separate body with its own administration, although sharing premises, a website and contact numbers with the Public Guardian. This has proved to be an imperfect arrangement and from 1 April 2009 the Court administration was transferred to HMCS. It is expected that the separate character and function of the two bodies will in due course be further emphasised by their occupying separate premises.

While the separation of powers between the Court and Public Guardian is necessary if the policy required by the MCA 2005 and Human Rights Act is to be followed, it does present some practical difficulties. At first sight, there are two bodies with one address, telephone number and website, working under the same statutory framework for the same people who lack capacity. The OPG website addresses this issue as follows:

'How does the OPG and COP work together?

The OPG works closely with the Court to make sure that the best interests of people who lack mental capacity are served.

If you have not made or registered an LPA for property and affairs or for personal welfare, and you lose capacity to make decisions on these areas for yourself, someone else may apply to the Court for the power to make these decisions for you.

Only the Court is able to decide who is the best person to do this for you and it will give that person whatever powers it believes are necessary for them to act in your best interests.

The Court may appoint a Deputy decision maker, who can be given a wide range of powers or it may make a single order, covering an individual decision.

In coming to its decision, the Court may ask the OPG to obtain a report on an individual case. This report can cover a wide range of issues and may involve the OPG sending a specialist visitor to gather the facts in the case.

Once the Court has made its order, it is up to the OPG to monitor and supervise any Deputies who are appointed. The OPG can decide on the level of supervision each case requires and this will depend on a wide range of factors.

Where a Deputy fails to meet the supervision requirements laid down, the OPG has the power to take the case back to the Court. The case will then be reviewed and the Court may take further action, including terminating the appointment of the Deputy.

Both organisations will complement one another, with the Court providing the decision making functions and the OPG providing regulation and supervision.'

In practice, it is much harder for the two bodies to work effectively together as only the Court of Protection has authority to make decisions. If a decision is required from the Court then a formal application has to be made using the Part 9 or Part 10 procedure (see Chapter 3). Unless the application is made within existing proceedings, the Court will have no record of the management of the case and no prima facie evidence that at the time the application is made and for the matter which is the subject of the application, P lacks capacity. The Court will therefore require evidence of earlier proceedings, the authority and status of the applicant or other party, medical evidence that P lacks capacity and the evidence required to support the application. Although the Public Guardian is not required to pay a fee, any such application still requires a great deal of information and is therefore time-consuming and expensive to prepare.

To ensure that deputies do not need to keep coming back to the Court for routine decisions, the policy of the Court is to provide deputies with as wide an authority as possible. The Court will in most cases make the order appointing a deputy and pass the order to the Public Guardian to deal with security and the supervision of the deputy. The Court has finished its involvement in the case and the Public Guardian has no authority to make any further decision. The Public Guardian cannot therefore give advice in response to a particular query. If an anxious deputy wants to know whether he can spend money on a further holiday for P or arrange extensive repairs to P's property, the Public Guardian cannot advise on the merits of the case lest such advice be treated as a form of consent. The Public Guardian can give general advice as to the jurisdiction, website page, helpsheet or Code of Practice. The decision maker meanwhile must exercise his own judgment or apply to the Court. Likewise, the Public Guardian has limited authority to tackle a defect in the accounts or report presented to him for supervision. As mentioned at 2.40 above, if such a matter cannot be resolved informally, the Public Guardian must also make an application to the Court of Protection.

The new jurisdiction therefore requires a new approach on the part of deputies and their advisers. There is no longer the safety net of the Public Guardian being there in the background approving day-to-day transactions. In effect, the responsibility for making decisions has been outsourced from a public body to the private individual. While this is liberating for many experienced deputies, it does reduce the level of protection available to the person who lacks capacity and increases the burden on the private individual to ensure that he is making the right decision. While it is not the place of this work to take issue with an administrative change that has such wide reaching implications, this is an underlying theme of the work especially where the role of decision makers needs to be addressed.

Service standards and complaints

2.43 Service standards and complaints are dealt with above at 2.33 and 2.34.

The role of the Official Solicitor

2.44 The Official Solicitor to the Supreme Court is appointed by the Lord Chancellor and acts as a legal representative to persons under disability in legal proceedings in England and Wales. In proceedings before the Court of Protection the Official Solicitor is frequently instructed to act as litigation friend for P, whose interests might otherwise not be adequately represented, especially where there is an actual or potential conflict of interest between P and his deputy. The Official Solicitor thereby supplements the capacity of P during the proceedings in question.

In practice the Official Solicitor will continue to serve the very useful role he has provided under the Mental Health Act 1983 jurisdiction. This was frequently used to provide an independent source of representation, principally in proceedings disposing of P's property or where a Will was being made on behalf of P. Although this important role should not change under the MCA 2005 jurisdiction, and Rule 143 expressly allows the Court to appoint the Official Solicitor, the Court of Protection Rules do not require the Official Solicitor to be appointed litigation friend. The Official Solicitor is described in its website as a 'litigation friend of last resort' and there may be cases where a competent friend, relative or solicitor can act in this role. However, in most cases brought before the Court, the Court will at the directions stage consider whether P should be joined as a party, and if so, whether a litigation friend should be appointed by the Court. The Court will then consider whether the Official Solicitor should be appointed or whether some other person should be appointed.

In contentious welfare cases it is more likely that the Official Solicitor will be appointed, building on his experience in dealing with welfare decisions under the High Court declaratory regime that existed prior to implementation of the Act. Certainly a case should be discussed at an early stage with the Official Solicitor's staff and Practice Direction 9E, which deals with serious medical treatment, states that:

'Members of the Official Solicitor's staff are prepared to discuss applications in relation to serious medical treatment before an application is made. Any enquiries about adult medical and welfare cases should be addressed to a family and medical litigation lawyer at the Office of the Official Solicitor.'

The Practice Direction further states at para 14 that the Court will, at the directions stage:

'if P is to be joined as a party to the proceedings, decide whether the Official Solicitor should be invited to act as a litigation friend or whether some other person should be appointed as a litigation friend.'

The Official Solicitor's staff includes a number of experienced solicitors who specialise in Court of Protection proceedings and whose experience and practical knowledge not only assist the Court and P but also any other party to the proceedings. The Official Solicitor may for instance advise the Court on an aspect of its powers or procedures or liaise with other parties to clarify issues, make suggestions and assist with achieving a consensus between the parties where possible.

Official Solicitor

81 Chancery Lane

London

WC2A 1DD

DX 141150 London/Chancery Lane WC2

Tel: 020 7911 7127

Fax: 020 7911 7105

E-mail: enquiries@offsol.gsi.gov.uk

Website: http://www.officialsolicitor.gov.uk

Court of Protection Visitors

2.45 The concept of the Court having its own panel of experts or visitors is an established one that operated under the Mental Health Act jurisdiction. It would prevent the Court from being isolated in its offices, removed from the actual client whose affairs were being dealt with, and dependent on incomplete or partisan evidence being obtained by the parties.

The Lord Chancellor's Visitors, who were appointed under s 102 of the Mental Health Act 1983, had two principal functions:

  • reporting directly to the Court in response to a particular issue requiring a decision by the Court; and

  • providing a general support and monitoring service, visiting clients in their own homes and generally making sure that the client, carers, Public Guardianship Office and receivers were working effectively.

The role of the Visitors is an important one, especially where there are no relatives or friends who can act as a deputy or report problems to the Court. The importance of this role (which was not managed as well as it should have been) was recognised by the National Audit Office in its 1999 Report, which stated that 'Visitors should act as the eyes and ears of the [Public Guardianship Office], gathering information essential to the patient's welfare and the effective running of their estates' (National Audit Office, Protecting the Financial Welfare of People with Mental Incapacity at para 3.1).

The role of visitors has been recognised by the MCA 2005, which provides for two categories of visitors, special and general. The title Lord Chancellor's Visitor is replaced by the title Court of Protection Visitor. Section 61 provides as follows:

  • '(1) A Court of Protection Visitor is a person who is appointed by the Lord Chancellor to—

    • (a) a panel of Special Visitors, or

    • (b) a panel of General Visitors.

  • (2) A person is not qualified to be a Special Visitor unless he—

    • (a) is a registered medical practitioner or appears to the Lord Chancellor to have other suitable qualifications or training, and

    • (b) appears to the Lord Chancellor to have special knowledge of and experience in cases of impairment of or disturbance in the functioning of the mind or brain.

  • (3) A General Visitor need not have a medical qualification.

  • (4) A Court of Protection Visitor—

    • (a) may be appointed for such term and subject to such conditions, and

    • (b) may be paid such remuneration and allowances,

as the Lord Chancellor may determine.

The power to call for reports is contained in s 49 where the Court directs a report and the Public Guardian also has power to call for reports under s58(1)(d) and r 44 of the Lasting Power of Attorney, Enduring Power of Attorney and Public Guardian Regulations 2007.

The importance of the Visitors' function is further emphasised by their rights, set out in ss 49 and 61 to access information and interview P in private. A Special Visitor conducting a report for the Court also has a right to carry out a private medical, psychiatric or psychological examination of P's capacity and condition.

As at October 2007, there were nine Special Visitors who are all senior consultant psychiatrists. There were a further 40 General Visitors. All Visitors are self-employed and paid for each visit they undertake. The number of Visitors, their status and relevance does, however, remain subject to constant review. There have been concerns that changing the status of some visitors to employees will limit the number and efficacy of visitors (see for instance the comments of Trevor Lyttleton in the Law Society Gazette 31 July 2008 and 11 September 2008). On the one hand, the Visitor 'service' is an important part of the new jurisdiction, protecting and supporting vulnerable adults without being overly intrusive. On the other hand, it is a time-consuming and expensive operation to ensure that several thousand clients can be visited each year, which needs to be covered by the supervision fees recovered by the OPG. It is also likely that as the Court's welfare jurisdiction becomes more widely understood and used, more detailed reports will be needed. These may well be very complex reports addressing issues of capacity, welfare, treatment and best interests. The issues raised may be more extensive than a Special Visitor can deal with and more complex than a General Visitor, who is trying to see a number of clients in the same day for a fixed cost per visit, might be able to provide. It is therefore also possible for the Court to obtain reports under s 49 from other specialists within a local authority or NHS body. For example, the Court may decide that a report from a social worker or case manager is more appropriate.

Independent Mental Capacity Advocates

2.46 The principal role of Court of Protection Visitors is to report directly to the Court or Public Guardian. There will, however, be many instances, especially where welfare decisions are being taken and the person concerned has capacity to understand or participate in decisions being made, where the person also requires advice and assistance.

Sections 35–41 of the MCA 2005 therefore set up a new independent mental capacity advocate (IMCA) service to provide safeguards for people who (Code of Practice, 10.1):

  • lack capacity to make a specified decision at the time it needs to be made;

  • are facing a decision on a long-term move or about serious medical treatment;

  • have nobody else who is willing and able to represent them or be consulted in the process of working out their best interests.

The role of IMCAs is further defined by regulations made pursuant to ss 35 and 36 of the Act, principally:

  • the Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006 (SI 2006/1832);

  • the Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006 (SI 2006/2883).

The MCA 2005 does not just provide IMCAs as a useful service for use at the Court's discretion. An IMCA must be involved in cases where important welfare decisions are being made on behalf of P by a public body and there is no other independent person who can be consulted for the purposes of determining P's best interests in relation to the decision. In all such cases the relevant NHS body or local authority must instruct an IMCA and take account of any information given or submissions made by the IMCA. Important welfare decisions are:

  • the provision of serious medical treatment by a NHS body (s 37). Serious medical treatment is defined as 'treatment which involves providing, withholding or withdrawing treatment of a kind prescribed by regulations made by the appropriate authority';

  • the provision of accommodation by a NHS body (s 38). This applies where arrangements are being made to provide accommodation or arrange new accommodation in a hospital or care home, whether or not the accommodation itself is provided by the NHS body;

  • the provision of accommodation by a local authority (s 39). This applies where the local authority is arranging residential accommodation or a change of residential accommodation.

The requirement to consult an IMCA does not apply where there is another person to be consulted. Section 40(1) (on amendment by the Mental Health Act 2007) provides that the requirements set out in ss 37–39 do not apply where there is:

  • '(a) a person nominated by P (in whatever manner) as a person to be consulted on matters to which that duty relates;

  • (b) a donee of a lasting power of attorney created by P who is authorised to make decisions in relation to those matters,

  • (c) a deputy appointed by the court for P with power to make decisions in relation to those matters; or

  • (d) a donee of an enduring power of attorney (within the meaning of Schedule 4) created by P'.

The role of IMCAs in welfare matters is a new one and will no doubt evolve as the MCA 2005 becomes more widely understood. There are, needless to say, resource issues, as the requirement to appoint an IMCA is not one that can be charged for. The IMCA service must therefore be funded by NHS bodies and local authorities with the conflict over the allocation of scarce resources which this entails. It is also likely that charities in the voluntary sector will be able to provide some additional IMCA services.



[1] This should actually refer to s 20(3)

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