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Court of Protection performance report

The Court of Protection published their first ever report recently summarising the Court’s performance between the introduction of the Mental Capacity Act 2005 on 1st October 2007 and 31st December 2009.

The Court of Protection is a specialist court which was established under the Mental Capacity Act 2005 to make decisions on behalf of or appoint a Deputy to make those decisions for people who do not have the capacity to make those decisions themselves.

The Mental Capacity Act 2005 provides a legal framework for people who lack capacity and those people who make decisions on their behalf. It covers decisions about their personal welfare as well as their property and financial affairs and sets out the statutory principles which must be applied to ensure all decisions are made in the person’s best interests.

In a foreword to the report, Senior Judge Densil Lush commented “I cannot pretend that it has been plain sailing. The Court has had to endure more than its fair share of setbacks, which were caused in the main by a failure to anticipate, prior to the implementation of the Act, the volume of work that would inundate the court during the initial transitional period, and the overall burden it would place on the judges and staff.”

In addition to this, for the majority of the period reviewed – whereby it was identified that six Judges were required, the Court of Protection has had only three full time Judges to deal with the vast array of applications. Whilst regional District Judges were used to try to deal with some of the backlog it is hoped that the recent appointment of three additional fulltime judges should improve the position in the future. The report shows that, during the relevant period 1,672 complaints were received about the Court. Of these, 30% were due to “the length of the process and delays” and 15% were due to “administrative errors”.

The Court received 39,579 applications from October 2007 to December 2009 for the appointment of Property and Affairs Deputies. Of these applications, 31,063 orders were issued.

In comparison, the Court received fewer applications for personal welfare orders than the 2000 per annum it was expecting. In the 27 months reviewed by the report, 2,734 applications for health and welfare decisions were made and, of these, only 324 orders were issued. Out of the 324 orders issued, 195 appointed a health and welfare Deputy with the remaining orders being issue specific.

This reflects the Mental Capacity Act’s emphasis that “personal welfare applications should only be made as a last resort” and that “deputies for personal welfare decisions will only be required in the most difficult cases where:

  • important and necessary actions cannot be carried out without the court’s authority, or
  • there is no other way of settling the matter in the best interests of the person who lacks capacity to make personal welfare decisions.”

Senior Judge Lush agrees that the procedures of the Court have become “more bureaucratic and time-consuming than they used to be” and he anticipates that the review of the Court’s rules, forms and practice directions “will result in improvements in each of these respects”

In conclusion, we can see that since it’s inception on 1st October 2007 the Court has failed to provide the level of service its own targets or key performance indictors required. Changes are being made but only time will tell whether the new Court will be able to provide the efficient and user friendly service needed by its users.

Hugh James have a dedicated Court of Protection Unit headed by partner Andrew Harding. The team have years of specialist knowledge of the Court of Protection and its rules and procedures and understand the difficulties faced when decisions need to be made on behalf of a person who does not have the capacity to make those decisions for themselves.

Andrew Harding acts as Professional Deputy for a number of clients whose personal estate vary substantially in size. In addition, we provide advice and support to people wishing to make an application to the Court of Protection as well as existing Deputies.

The team have successfully obtained orders appointing health and welfare deputies and can advise families on the circumstances in which this may be required.

Andrew Harding is also a member of the Court of Protection’s Court User Group, which is a forum for consultation between the Court of Protection’s judges and both professional and lay deputies and Court users. The group meets quarterly to discuss issues and matters which may be causing concern and to provide views and comments on the Court’s policy issues.

If you would like more information on the Court of protection, Mental Capacity Act 2005 or the Hugh James Court of Protection unit please contact Kate Coles on 02920 391157 or kate.coles@hughjames.com.


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