Legal protection of persons lacking mental capacity
According to the Court of Protection statistics, 7,900 application under the Mental Capacity Act 2005 were undertaken from July to September 2018.
What does it concretely mean?
The Court of Protection’s main aim is to deal with adults over 18 years old who lack capacity and of 16 years old and more where there is evidence they will continue to lack capacity. The jurisdiction of the Court of Protection is founded by the Mental Capacity Act of 2005 and recently by a set of updates rule of 2017.
Before 2015, the jurisdiction of the Court of Protection used to only take the form of several regional courts (Cardiff, Bristol, Birmingham, Leeds, Manchester, Newcastle and Reading).
The regional courts are now unified through a First Avenue House, the National Lead Court of Protection today at its head HHJ Hilder. Above this first level of jurisdiction sits a body composed by nominated judges of the High Court, all Family and Queen’s Bench division and some of Chancery. The Court of Protection is directed by a president and vice-president. The Court of Protection is still quite a new jurisdiction as it is in its current form only since 2015.
As per the Transfer Proceedings Act of 2007, Family lawyers still set transfer to the Court of Protection work. Existing Court of Protection proceedings are not needed to make a transfer.
The jurisdiction of the Court of Protection
The two pillars of the Court of Protection jurisdiction are:
- Mental Capacity of ‘P’
Different types of capacity exist, including legal capacity. The capacity will be presumed unless evidence to contrary. The Protected parties (P) can have different degree of capacity based on their routines. In any event, if P is found having no capacity by the expert, evidence will be needed.
The main aim will then to involve P as much as possible and enable him to make decision, especially by the using of aids to set out P a way of communication.
The Court of Protection’s jurisdiction is related to the lack of capacity regarding health, welfare, property and finances going as far as deprivation of liberty.
First, positive evidence of capacity issues must be filed on file “CoP 3” as to how and why the protected party “P” lacks capacity. The Court cannot make this decision until all reasonable practicable steps have been taken to see if they can have capacity. Best interests of P are always the main aim of the application.
- Best Interests of P
Any act done or decision made on behalf of P must be done or made in his or her best interests. This idea governs all actions taken. It is henceforth unconceivable to only make unjustified assumptions based on P’s condition or behaviour. Capacity is presumed under the Mental Capacity Act 2005, and cannot be simply based on age, gender, etc.
The primary purpose is to encourage P to participate in his/her decision making. In order to always act in P’s best interests, several factors should be taken into account: past and present wishes and feelings; beliefs and values that would be likely to influence P’s decision if capacity and other factors P would be likely to consider if he could. P may also identify views of others (those named, carers, interested in welfare etc.) he wants taken into account.
The jurisdiction can be difficult in some cases, especially when it is dealing with somebody moving out of Mental Health Act to Capacity Issues. Property and welfare cases have separate hearing pathways e.g. DRA.
As a matter of fact, the majority of the Court of Protection work relates to Property and Financial Affairs. CoP cases keep growing as ten years ago only 16,000 were registered and in 2018 this amount was 40,000.
Judges and Lawyers role
Her Honour Judge Owens leads 35 Court of Protection Judges. Judges need to consider whether they need to visit P. In most common situations, someone is present to ensure a judicial continuity throughout cases.
Everything is recorded. Judge can take evidence during visits to P and transcripts, representation and legal funding are realised. P will need a litigation friend if he does not have the capacity as well.
This is the reason why protected person P needs properly trained lawyers who will deal with their situation and determine whether P have litigation capacity and file evidence.
Our law firm is able to provide you with the best advice on your situation. Should you require any legal help to deal with your situation, contact us on 01865 20246991 in order to book your 20-minute free appointment with our solicitor and partner, Suezanne King.
The Oxford Family Law Seminar 2019
Based on speeches of HHJ Owens and Tracy Duce
By Yamina Bouadi