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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