The House of Lords’ Post Legislative Scrutiny report on the Mental Capacity Act 2005 (“MCA”) concluded that the MCA is “failing.”
Much of the evidence heard by the Lords and the resulting discussions focus on the impact of serious difficulties in the application of the MCA’s principles in welfare matters and the controversial Deprivation of Liberty Safeguards. For analysis of the welfare aspects of the House of Lords’ Report please see Jess Flanagan’s recent blogs: What it means for my clients and Deprivation of Liberty Standards.
The Lords also heard evidence about the “run of the mill” property and affairs applications dealt with by the Court of Protection – these are the 22,000 non-contentious matters that make up 90% of the Court’s work.
Mr Justice Charles told the Lords that the high profile Court of Protection welfare should not be “the tail that wags the dog.” So what conclusions did they draw about how the Court is coping with its workload and how can things be improved?
The Court of Protection: “Remote, inaccessible and not well understood.”
Where someone lacks capacity to manage their finances and there is no Lasting Power of Attorney or Enduring Power of Attorney, an application may be needed to the Court of Protection to allow assets to be dealt with, a property sold or a Deputy for Property and Affairs to be appointed.
The Lords heard evidence that the Court of Protection is considered “remote, inaccessible and not well understood” by the public.
Concerns were also raised about the costs of accessing the Court of Protection. Moira Fraser from the Carers’ Trust said that an application to the Court of Protection can sometimes be “a sledgehammer approach for comparatively small amounts of money.” Is it fair that the costs of an application should come out of the assets of the person who lacks capacity, when they have not initiated the proceedings?
Workload – Authorised Officers and Regionalisation
District Judge Batten told the Lords that the Court of Protection’s workload had increased from 19,528 applications in 2009 to 24,586 in 2012 – an increase of 25%. At the same time, the Court’s staffing has been cut by 30%. Despite this, and although not all targets are met, Judge Batten said that there had been an improvement in performance.
It is clear, however, that there is a considerable strain on processing applications in the Court of Protection, even for routine property and affairs applications.
Following recent recommendations, it was decided that “authorised officers” could draft routine property and affairs orders to ease the workload of the judges. The authorised officers are not judicially qualified but they have many years’ experience of working in the Court of Protection. There are, however, only four authorised officers for routine Property and Affairs matters and when their workload is too high, the bottleneck is currently relieved by District Judges stepping in. This is clearly not a cost effective or proportionate way of dealing with the problem.
The House of Lords recommended, after hearing this evidence, that the Government should increase the number of authorised officers and update the Court of Protection Rules, which have not been updated since 2007.
However, the Rt Honourable Sir James Munby (President of the Court of Protection) and Mr Justice Charles gave evidence to the Justice Committee on 18 March 2014, shortly after the publication of the House of Lords’ report, suggesting that they did not think more nominated offers were needed. They did not think there was much more that authorised officers could or should be doing – the issue for them was that effective use was not being made of judges in the regional courts. Their view was that regionalisation of the Court of Protection will make a significant difference to the efficiency of the court, particularly in dealing with contentious matters. The judges suggested that significant reforms are afoot that should improve the use of regional Courts and ensure that people have access to a court that is close to them.
Transparency – “the best disinfectant against abuse by people in power”
Mr Justice Charles said that there was a need for greater openness in the Court of Protection in the interest of transparent justice. This needs to be balanced against the need to protect the privacy of the individuals involved in these sensitive cases.
Lord McNally said that “transparency is the best disinfectant against abuse by people in power” and it improves the performance of all of those involved in the court process. Sir James Munby’s practice guidance regarding property and affairs judgments, which has been operative since February 2014, has led to the increased publication of these cases. Judges must now publish certain judgments if they think it is in the public interest to do so and they no longer have to wait to be asked by the media or one of the parties. This brings the rules on publication of property and affairs judgments more in line with welfare judgments, but it remains to be seen whether the judges’ duty to publish more cases will result in further delays in the Court.
The cost of transcription will usually come out of the public purse, but the Lords considered that the reputation of the Court of Protection should improve by the more frequent publication of judgments. They also responded to concerns that the Court needed to have a greater say in what information is provided on the www.gov.uk website because the staff and judiciary of the Court were best placed to determine this.
The Lords said that the Office of the Public Guardian (OPG) was in a good position to be able to offer a mediation service for LPA attorneys or deputies. The OPG is running a pilot scheme offering mediation by telephone. Mediation should comply with the MCA2005 principles to make sure that P’s views and wishes are adequately represented.
The Lords felt that mediation is not used enough and recommended that consideration should be given as to whether mediation should be a prerequisite for starting proceedings in the Court of Protection where matters are contentious. This is particularly important in property and affairs matters because the general rule is that the costs are payable from P’s estate (but see, e.g. Re JS v KB & MP for an example of a departure from that general rule).
Sir James Munby and Mr Justice Charles’s were sceptical about whether mediation would work in Court of Protection matters. Sir James Munby said:
“Whatever our professional backgrounds, anybody who has ever had to deal with financial disputes between members of families knows from experience that they are some of the most bitter the courts ever have to deal with. My suspicion, based upon 40 years’ exposure to such litigation on various fronts and in various contexts, is that mediation is unlikely to be very effective in many of those cases.”
Lasting Powers of Attorney- “fewer people with dementia have powers of attorney in place than could benefit from them.”
The Lords heard evidence that LPAs were underused and not widely known, that access to good quality information was not always readily available and that the banking sector had a very poor understanding of LPAs.
Age UK said that putting an LPA in place was a “taboo subject” for many families and the Alzheimers Society said that “fewer people with dementia have powers of attorney in place than could benefit from them.”
These organisations and the OPG have issued new guidance and are now working with the British Bankers Association and Building Societies Association.
The OPG said it was likely to hit 300,000 LPA registrations in this financial year. The take up has grown significantly year on year, but clearly there is still work to be done in the arena of public awareness.
Senior Judge Lush told the House of Lords that he dealt with a steady stream of financial abuse cases in the Court of Protection, where attorneys and deputies showed a lack of knowledge of the Mental Capacity Act Code of Practice. He said: “Most attorneys and deputies are unaware that it exists…almost none of them are interested.” Better levels of awareness are crucial to ensure compliance with the MCA and its Code of Practice.
Figures from the Court of Protection suggest there are around 48,000 appointed Deputies for Property and Affairs and around 880,000 LPAs have been registered with the OPG. Last financial year, the Office of the Public Guardian investigated 718 suspected cases of financial abuse. Senior Judge Lush expressed dismay at the extent of financial abuse matters, especially those involving close family members.
Solicitors for the Elderly said that they were concerned that if the process of making an LPA was made easier, this could result in more cases of abuse.
Anyone who has made an application to the Court of Protection has known for some time that the Court’s workload is high and staffing never seems to be adequate. This is confirmed by the House of Lords’ conclusions, but we wait to see whether resources are made available to relieve the pressure.
In the recent one off session of the Justice Select Committee, Judges Munby and Charles indicated that important changes were on the way to ensure that regionalisation of the Court can be progressed. This will enable more cases to be heard by judges in cities other than London. Further news on this key development is awaited and we hope it will result in greater efficiency in the handling of Court of Protection cases.
Greater transparency in the workings of the “secret court” is to be welcomed to dispel some of the myths perpetuated by the media and improve public awareness of the Court’s role. Lawyers also have a role to play in transparency, see e.g. barrister Alex Ruck-Keene’s new website: Mental Capacity Law and Policy and our Clarke Willmott blogs and twitter account (@CWCoP) for updates on Court of Protection cases and developments in mental capacity law.
The full report of the House of Lords can be read here.
For assistance with property and affairs applications to the Court of Protection, please contact Alison Lamont or Anthony Fairweather.