7 November 2017 | Comment | Article by Charlotte Fletcher
To mark 10 years since the Mental Capacity Act came into force Cardiff University has released research relating to the Court of Protection's health, welfare and deprivation of liberty jurisdiction.
The Court of Protection is responsible for making decisions on financial and welfare matters for people who can't make decisions at the time they need to be made, or in other words they lack mental capacity. The Court’s jurisdiction covers property and financial affairs as well as matters concerning health and welfare. The report prepared by Cardiff University focuses on the Health and Welfare jurisdiction of the Court of Protection.
A full copy of this Cardiff University Report can be found here - http://sites.cardiff.ac.uk/wccop/files/2017/09/Series-Fennell-Doughty-2017-Statistical-overview-of-CoP-Key-findings.pdf
The report details a number of findings about how the Court of Protection welfare jurisdiction is being used, the problems that are being encountered and the involvement of those lacking capacity in the proceedings themselves.
Interestingly, the report confirms that whilst decisions about serious medical treatment shine the spotlight on the Court of Protection in terms of mainstream media, this is in fact a small proportion of their work. Instead, the Court is more often making decisions about where someone should live, how they should be cared for and relationships with others. The main users of the Court of Protection tend to be social care professionals and local authorities and not, as may often appear to be the case, health authorities.
Concerns are often raised about secrecy within the Court of Protection and a lack of transparency about the decisions that are being made. Cardiff University’s research has shown that in fact there is little evidence of active media efforts to attend or report on hearings and only a small number of examples of reporting restrictions have been imposed on the media. It may well be that the main media interest surrounds the high profile medical treatment cases rather than the higher volume of cases concerning other welfare issues.
The research shows that the number of cases being heard under the Court of Protection's health and welfare jurisdiction has increased dramatically, from 1000 cases in 2008 to over 4000 in 2016. This is expected to continue to rise. The research has also raised concerns about the average length of these proceedings but ultimately this depends on the types of decisions that the Court is being asked to consider.
There are also grave concerns about the current costs involved in bringing a health and welfare matter to the Court of Protection and that the high costs will act as a barrier to accessing justice and prevent serious issues and disputes being brought before the Court of Protection for consideration.
Another question which is arising more regularly is how involved the person lacking capacity (known as ’P’) should be in Court of Protection proceedings. The Cardiff University research shows that at present this participation is very low. Judges do not tend to meet P and their involvement is often not being considered in other ways. This may change moving forward, following a new rule which came into force in July 2015. Cardiff University had collated their data prior to this new rule being introduced and so there is likely to have been increased participation from P since this date. For now, however, the research suggests P's involvement in these proceedings has been fairly minimal.
Cardiff University's report also mentions the Law Commission's recent proposals for reform of the Mental Capacity Act. The report suggests that the Law Commission should keep in mind the problems in terms of the cost and duration of Court of Protection welfare proceedings and the difficulties in accessing justice for P.
It will be interesting to see how things progress in the next 10 years in this area of law and how the Mental Capacity Act is reformed moving forwards.
The Court of Protection Team at Hugh James has vast experience dealing with all matters concerning an individual’s property and financial affairs, to include acting as professional deputy and applications to the Court of Protection for the appointment of lay deputies, gifts, statutory wills and other matters.
If you have any queries about the Court of Protection please do not hesitate to contact us on 02920 391184.