Posts in the ‘Best Interests’ Category

Autonomy and the empowerment of the individual

Posted on: October 14th, 2014 by Jess Flanagan

This is a blog by my colleague, Joanna Burton, all about our Mental Capacity Conference on Friday 17 October at Clarke Willmott.

I am really looking forward to this event, and it marks a real step forward for our team as being experts in welfare cases in the Court of Protection. I have always been keen on sharing information and educating those who need to be aware of the Mental Capacity Act, and this event takes it one step further as we have leading experts in the world of capacity talking to us about how far we have come in the 7 years since it came into force.

Over to Jo….

On 17 October 2014 Clarke Willmott is hosting a one day conference ‘The Mental Capacity Act 2005: Promoting Autonomy and Empowerment’. Ahead of the conference Joanna Burton looks at the way legislation has evolved over the past forty years, placing individuals at the centre of the procedures that affect them.

Empowerment of the vulnerable individual lies at the heart of our work, whether that individual has capacity or is unable to make decisions relevant to his or her welfare, and whether we are acting on behalf of the vulnerable person, or for a family member, friend, carer or advocate. Professor Hugh Rickards will talk to us about his clinical experience of assessing capacity at the conference.

Over the last twenty five years there has been a gradual but consistent development in health and social welfare legislation putting empowerment of the individual at its core. The Children Act 1989 was, perhaps, the first step in this process, making the ‘welfare of the child paramount’; it is the right of the child to have contact with both parents not the right of the parents to have contact with their child.

The protection of human rights has been an important development and since the European Convention on Human Rights became enshrined into the law of England and Wales, Scotland and Northern Ireland in 1998, all individuals in the United Kingdom have their rights under that convention protected.

Under Article 8 the individual is protected from arbitrary or unnecessary interference from the state in his or her private and family life, and it can also provide leverage upon the state to provide services to ensure that P’s rights under Article 8 are not breached.

In the recent case of P (Appellant) v Cheshire West and Chester and another and P and Q v Surrey County Council [2014] UKSC 19 Lady Hale spoke of the ‘universal character’ of human rights and underlined that ‘people with disabilities have the same human rights as the rest of the human race’ She spoke further of the State’s ‘duty to make reasonable accommodation to cater for the special needs of those with disabilities’. Simon Burrows will be talking about this case, and its implications six months on.

Throughout the 1990s various pieces of anti-discriminatory legislation were passed, culminating in the Equality Act 2010. At the core of the Equality Act 2010 is the individual’s right to be treated equally and have equal opportunities irrespective of age, gender, disability, race, colour, creed or sexual orientation. Obligations lie with the employer, or the provider of services and ultimately the state to ensure that the principle is respected and acted upon.

In October 2007 the Mental Capacity Act 2005 came into force. Fundamentally the MCA provides the legislative framework to ensure that an individual who lacks capacity to make decisions is treated with the same autonomy and respect given to adults with capacity. Any actions or decisions made on behalf of P must be in P’s best interests. The Act promotes and, in certain circumstances, makes it a duty for an Independent Mental Capacity Advocate, an IMCA, to be appointed to be the voice of P. I would like to see an IMCA appointed for P when any major decision is being made, irrespective of whether other family members are willing to speak on P’s behalf. In my view an IMCA is the acknowledgement of the autonomy of P and should be a fundamental part of P’s armoury. Jakki Cowley and Sue Lee from ‘Empowerment Matters’ will be talking about their work as IMCA’s and their important research which has recently led to the publication of their ‘Guidance for Assessing Supporting and Empowering Specific Decision making’.

The Court has been at the forefront of empowering P. Jurisprudence has set the bar low for assessing capacity. Our key-note speaker, Mr Justice Baker has discussed (in CC and KK and STCC [2012] EWCOP 2136) maximising the entitlement of the individual to make his or her own decisions, however unwise they may be. Best interest decisions made by the court have tended to resist the risk averse decisions that might be made by a local authority and have enabled P to go on holiday or return home when risks may appear to others to be quite high; the case of Manuela Sykes which I discussed in May is a prime example. Mr Justice Bakerwill be our key note speaker at the conference on 17 October 2014 giving his thoughts on cases that have been before him recently.

The Court of Protection rules and procedures also place P at the centre of the case, requiring that P is served with any application to the court and that those interested in his or her welfare are also notified. In my view, however, it is an anomaly that P does not have to be joined as a party to Court of Protection proceedings. P is almost always joined in ss15,16 and s21A MCA 2005 health and welfare and deprivation of liberty proceedings, so for P to have potentially no part in proceedings where life changing decisions are being made for them, or where their liberty is at stake, this is in my view a breach of Article 5(4), Article 6 and potentially Article 8. It is our understanding that clarity on this issue is being sought as permission has been requested to appeal Sir James Munby’s recent decision in Re X and others (deprivation of liberty) [2014] EWCOP25 that P may not have to be joined in deprivation of liberty proceedings that do not fall under s21A MCA 2005. Watch this space.

Although I fully acknowledge the logistical and financial difficulties in P’s participation and representation in proceedings, in my view it is P’s fundamental right under Article 6 and rather than being brushed over, this needs to be addressed. If P lacks the capacity to litigate (and most P’s in Court of Protection proceedings do) he or she will need a litigation friend. There is a real shortage of people willing to act as litigation friend to P and the pressure on the Official Solicitor (OS) as litigation friend of last resort is overwhelming. Clarke Willmott has been in the forefront of encouraging and supporting advocates and RPRs to be litigation friends to P Sophia Roper from the Office of the OS will be speaking at our conference and we will no doubt cover this problem in discussions. Perhaps, as with the Court of Protection Panel Deputies, the court could consider setting up a panel of Litigation Friends.

The financial issue of P’s participation in the proceedings must also be considered. Court of Protection proceedings are very costly and few fall below £10,000 by their conclusion. Non means tested legal aid is only available to P in s21A MCA proceedings which challenge a DOLS Standard authorisation. Legal Aid for all other proceedings is means tested. We often act for individuals who have savings of less than £15,000, but more than the £8,000 legal aid limit. Until their savings have been whittled down in legal costs to below £8,000 we cannot apply for legal aid, and that is without taking into account a capital contribution they will have to pay if they have savings of more than £3,000. Non means tested legal aid is available for a child in child care proceedings, and we feel quite strongly that it should be available for P who lacks the capacity to litigate so that they can be properly legally represented in all proceedings concerning their life and liberty in the Court of Protection.

The Care Act 2014 comes into force in April 2015, placing “wellbeing” at its core and setting out that a local authority must have regard to “…the importance of beginning with the assumption that the individual is best placed to judge the individual’s wellbeing”. In the words of Martin Luther King ‘ It may be true that the law cannot change the heart but it can restrain the heartless. It may be true that the law cannot make a man love me but it can keep him from lynching me and I think that is pretty important, also’.

Laws and jurisprudence may not on their own change hearts but they can change practice. To properly empower our most vulnerable individuals we need to use all the resources available. Notwithstanding the austerity measures the legislation and our courts are clear that the rights of the individual are at the core of any process.

6 months of a new ‘Deprivation of Liberty’: March – August 2014

Posted on: August 11th, 2014 by Jess Flanagan

I’ve written a lot on my team’s blog about the game changing Supreme Court judgment of what is known to all of us Court of Protection ‘geeks’ as ‘Cheshire West.’

I have been pretty silent on this blog, as my energies went on ensuring that our Clarke Willmott blog readers were kept up to date. Today, I have had the honour of having my piece hosted on the Family Law website, and thought I would take this opportunity to summarise my pieces over the past 6 months following the judgment in March. More for me to have a record of it all than for anything else. It has been an exiting, and increasingly busy 6 months and there is no certainty as to how it is all going to pan out.

I speak almost daily to IMCAs and RPRs who have seen referrals increase unspeakably; to Local Authority lawyers who are wondering how they are best to advise their client Adult Services departments to deal with backlogs of assessments for Standard Authorisations; and to care home managers who are just about realising the implications of it all (and hearing about others who still haven’t got a clue!. The press is now starting to get wind of the real cost involved and with the Supreme Court judgment resulting in most adults who lack capacity to consent to their care arrangements requiring their placements to be authorised, and it being abundantly clear that any deprivation of liberty in a supported living or independent placement which is paid for, or arranged by the state in some ‘non negligible’ way, must be authorised, this simple change in legal test has some really good but really frightening implications for Adult Services in England & Wales.

My colleague Joanna Burton introduced the judgment in her summary piece in March and following a flippant comment I made on twitter resulted in Simon Burrows from Kings Chambers coming along to our Bristol office in April to set out the initial implications of the judgment to a full house of health and social care professionals, private client lawyers, RPRs and IMCAs. I set out my review of that talk in another piece on the Clarke Willmott blog.

Two months after the judgment I was invariably talking a lot more about DOLS and what the statutory safeguards were there for. I was spending (and still do spend) a lot of time reminding care home staff, the individual who is deprived of their liberty and their families that a Standard Authorisation is NOT a DOLS Order and it is not something that can be ‘lifted’. It is a tough thing to explain to someone who feels detained, and to all intents and purposes is detained, but is actually deprived of their liberty because of the arrangements required to keep them safe. So I wrote about DOLS being safeguards, not imprisonment in order to try and spread the word…

Those first three months were so exciting that DOLS was the feature of our second edition of the Court of Protection and Health & Social Care Newsletter and there is a summary of what the House of Lords Committee’s report on the Mental Capacity Act 2005 in there somewhere.

I haven’t blogged about the Government’s response to the House of Lord’s Select Committee report because it was really quite sad. I think the most important thing for us to take away from it is that the statutory scheme isn’t going to change any time soon, and non means tested legal aid (that P is eligible for when challenging a Standard Authorisation in the Court of Protection)is not going to be available when P requires representation in the Court of Protection when authorisation is being sought for Deprivation of Liberty in supported, or independent living environments. I blogged about what I might like to ask the Government as a result. The story behind this was a senior partner in my firm was invited to an audience with the Minister of Courts and Legal Aid and asked if I had any questions. I did and I set this out for him to take with him. The minister cancelled. Perhaps he knew he was likely to face some really tricky questions…

So, this brings me nicely on to Thursday’s judgment and my piece published on Family Law today. Sir James Munby has produced guidance for Local Authorities to follow when making applications to the Court of Protection to authorise a DOL in placements other than care homes and hospitals. He will deal with other issues and provide more detail in due course, but this is a start.

Happy reading.

I am keeping a close eye on how all of this pans out in reality and especially in respect of how local advocates cope with the pressure and how the safeguards really do safeguard people, not imprison. So, if anyone has any experiences they want to share, please don’t hesitate to get in touch to chat it through.

The most sensible thing I’ve said

Posted on: March 9th, 2014 by Jess Flanagan

I don’t make a habit of referring directly to clients as I firmly believe in keeping private matters private. However, I have recently had the pleasure to meet such a charming young man and “say the most sensible thing I have heard in years” to him that, at least skeletally, I want to share our exchange with you.

His history and circumstances are irrelevant but suffice to say he has had a tough time over the past 4 years, cannot walk, needs support with all acts of personal care and aspects of daily living and there is evidence of exploitation from others and risk minimisation on his part. He tells me that his illness means he doesn’t have that long left to live.

Like many people before him, this chap has been assessed by services as lacking the mental capacity to make decisions concerning where he receives necessary care and treatment and is now deprived of his liberty under a Standard Authorisation, receiving that care and treatment in a specialist placement miles from his family. The story could belong to many vulnerable adults and these outline facts are no different to many we frequently see in Court of Protection judgments.

I will be sharing these comments with the parties and the court, so if anyone who recognises these circumstances and can identify him (and I have drafted this in such a way that only those with direct knowledge of the proceedings, not even the man himself, would have any idea who I am talking about), this is information that they will see anyway.

I listened to him clearly explain his background, his worries, his current misery and wishes and I advised him that due to his vulnerability, professionals have a duty to protect him from harm and meet his needs. I then went on to advise that the relevant law was not there to wrap him “in forensic cotton wool” (A favourite quote of mine from Mr Justice Hedley, paragraph 10 Re P [2013] EWHC 50) and explained to him the decisions in KK v CC v STCC and Manuela Sykes (see posts on the Sykes judgment and reference to supported decision making) and told him that both these ladies were allowed to go home from a residential placement, at least for a trial period.

I did so to illustrate the current judicial thinking in respect of protective decision making on behalf of people who may not be able to make decisions themselves, to give him some hope and to let him know that I understood and would support him in his application to challenge his circumstances. This is when he turned to his RPR and thanked her for introducing to me and, looking me straight in the eye said how those words which I will always now carry with me and that make my hard work worth it. He knows I understand him and tells me he trusts me. Being solicitor for P is such a unique and privileged position to be in. It also carries with it a lot of responsibility, but given his response to me and how driven I feel to fight for his right to be back with his family it’s a responsibility I welcome with open arms.

Public Guardian v JM: Another Cautionary Tale for Attorneys

Posted on: February 14th, 2014 by Jess Flanagan

I am delighted to be hosting an article (my first) penned by my colleague Alison Lamont on the recent judgment, OPG v JM. Usually I skim read judgments relating to finances, but given this was another thorough analysis provided by Senior Judge Lush on the downfall of another attorney, it was a must read. Alison felt the same and as I often do with welfare judgments, felt compelled to draft a blog for our Clark Willmott / Elderly Care and Court of Protection websites. This is the longer version, for those who wanted a little more information, without having to read the judgment itself.

Over to you Alison…

Public Guardian v JM (Case No 12351387 heard on 4 February 2014):

Guidance issued by the Court of Protection’s President on 16 January 2014 requires judges (where permission is sought) to allow judgments to be published in “any case where the issues include whether a person should be restrained from acting as an attorney or a deputy or that an appointment should be revoked or his or her powers should be reduced.

Senior Judge Lush’s judgment in the matter of Public Guardian v JM (Case No: 12351387 hearing on 4 February 2014) has now been published: http://www.bailii.org/ew/cases/EWHC/COP/2014/B4.html.

The background

  • DP is around 89 years old and is/was a member of the Orthodox Church. Her husband died in 1997 and was buried in Brookwood Cemetery. Her closest relatives are two elderly cousins and several first cousins once removed.
  • In August 2011 DP made a will appointing JM and her accountant to be her executors. The will left
10% of the net proceeds of sale of her house to Brookwood Cemetery and 10% to the Russian Orthodox Church. The remaining 80% of the net proceeds of sale of the house and her entire residuary estate were to go to her former gardener JM.
DP had known JM for about seven years. .
  • In October 2011, DP made an LPA for property and financial affairs, appointing JM as sole attorney without appointing a replacement attorney or imposing any special restrictions or conditions.
  • In January 2012 a social worker contacted the Office of the Public Guardian (‘OPG’) following safeguarding concerns but as the matter related to welfare rather than financial matters, the OPG did not feel able to take any action. The NHS Trust placed DP under a safeguarding alert.
  • The LPA was registered on 20 February 2012.
  • DP moved to live in a residential care home in London in April 2012.
  • JM arranged a banker’s draft for £1,500 on 7 June 2012 from DP’s account and appears to have made a number of cash withdrawals from March 2012 to March 2013 totalling £8,520.
  • In July 2012, JM paid a deposit of £599 from DP’s funds to lease a Motability vehicle for his wife. He then withdrew £55 a week from DP’s funds to hire this vehicle even though his wife was in receipt of the mobility element of DLA. JM argued that the vehicle had been acquired for DP’s benefit and also tried to justify paying for petrol from DP’s funds (£20 – £30 per week).
  • In August 2012, the Financial Ombudsman awarded DP compensation of £38,606.32 following negligent investment recommended by a financial adviser. In November 2012 JM made a gift to himself from DP’s funds for around the same sum (£38,000).
  • In February 2013, JM sold DP’s house for £165,000 and placed the net proceeds of sale in a high interest account at Barclays Bank in his own name. There is nothing in the judgment to suggest that Barclays raised any concerns about this. JM subsequently asked for the account to be registered in DP’s name but only after he became aware of the OPG’s investigations.
  • JM had paid himself a salary of £20 a day for 365 days’ house clearance and rubbish removal. He also awarded himself a salary of £1,040 for twelve months’ gardening at a rate of £20 a week.
  • DP’s assets after the attorney’s unauthorised withdrawals and payments were in the region of £281,000.
  • In March 2013 a Court Visitor concluded that DP did not have mental capacity in relation to a decision about revoking or suspending the LPA.

The judgment

The Public Guardian applied to the Court of Protection (‘CoP’) requesting the Court to revoke and direct the cancellation of the registration of a Lasting Power of Attorney (‘LPA’) and to appoint a Panel Deputy instead.  Judge Lush was satisfied that the attorney had both contravened his authority as an attorney and had not acted in DP’s best interests. He revoked the LPA and directed the Public Guardian to cancel its registration. He also directed that a member of the panel of deputies be invited to make an application to be appointed as deputy for DP. This judgment is of interest for a number of reasons:

1              The OPG’s investigation began after they were tipped off by a senior risk consultant at Aviva UK Life Financial Crime Team. The attorney (JM) had requested Aviva to transfer the donor (DP)’s bond of over £130,000 into an account in the attorney’s own name, saying that it was a gift from DP. Aviva refused to do so. He also asked for the bond money to be transferred into a bank account in DP’s name. Again Aviva refused to act on the attorney’s instructions and froze the bond. Now that these cases are being published with greater frequency, perhaps more banks and institutions will tackle problems with attorneyships and deputyships in this way.

2              In this case, the attorney had carefully ensured that care home fees were paid up to date and spending money was provided to DP. The care home may have been oblivious to what the attorney was doing.  He had “gifted” himself £38,000, paid himself a salary without authority and made substantial cash withdrawals without keeping accounts.

3              Judge Lush confirmed that Section 12 of the Mental Capacity Act 2005 (‘the Act’)sets out the limited circumstances in which an attorney may make gifts to persons, related to or connected with the donor, including the attorney himself. In order to have made a gift of this magnitude (£38,000), he should have applied to the Court of Protection for formal authorisation under section 23(4) of the Act.  Judge Lush has already provided useful guidance on gifting in the recent cases of Re GM and Re Joan Treadwell deceased.

4              The judge referred to the ‘inherent artificiality’ of the attorney’s claim for remuneration at a rate of £20 a day for 365 days’ house clearance and rubbish removal and £20 a week for 52 weeks’ gardening. JM had no authority to charge for his services under the LPA itself. If he wished to receive a salary, he should have applied to the Court for directions under section 23(3)(c) of the Act. Attorneys need to be aware that they cannot simply pay themselves what they want, particularly if there is no provision for this in the LPA itself.  By failing to keep proper accounts and financial records, he was in breach of his fiduciary duties as an attorney.

5              JM’s witness statement of 17 November 2013 objected to the OPG investigating him about potential fraud and money laundering. He argued that
DP had become part of his family; they would go on holidays and days out together.
 He said that Aviva had ‘misled’ the OPG by giving false information.  He said that the police had concluded their investigation and had not taken things further so he did not understand why the OPG was still investigating.  Judge Lush explained the different standards of proof involved in criminal and civil investigations.  The police may not have felt there was enough evidence to pursue a criminal charge: to convict him of a financial crime would require evidence “beyond reasonable doubt.”  However, the CoP’s role was to judge whether the LPA should be revoked on the “balance of probabilities”.

6              The judgment brushes upon the law regarding ademption caused by an attorney; this is where gifts in a will fail because the subject matter of the gift no longer exists, perhaps because the attorney has disposed of it either deliberately or unwittingly. Judge Lush referred to this area of the law as “a minefield”. In this case, the issue was that the house named in the will had been sold by DP’s attorney so it would not form part of DP’s estate on death. Judge Lush commented in an addendum to this judgment that because Aviva froze the investment bond, it was entirely appropriate for JM to sell DP’s house to make funds available to pay her care home fees. The ademption of the gifts in the will to Brookwood Cemetery and the Russian Orthodox Church was “unavoidable and there was no intentional interference on JM’s part with the succession rights under DP’s will, even though he was aware of the contents of the will and stood to gain substantially from the ademption as the residuary beneficiary.”

7              The judge revoked the LPA and said a panel deputy should be appointed.  He commented further that a statutory will application should be considered by the new Deputy to resolve this issue and give effect to DP’s wish that Brookwood Cemetery and the Russian Orthodox Church should receive some kind of financial benefit.

8              Senior Judge Lush also referred to the OPG’s Annual Report and Accounts 2012-2013, revealing some interesting statistics.  Relatively few matters investigated by the OPG will culminate in an application to the CoP for the removal of an attorney or deputy. Last year a total of 2,982 safeguarding referrals were made to the OPG.  728 (only 24%) were referred for full investigation and the Public Guardian approved 480 investigation case recommendations. Following investigation, only 136 resulted in an application to the Court of Protection for the removal of an attorney or deputy.

This case serves as a further warning to attorneys that they cannot simply pay themselves or gift what they want, particularly if there is no provision for this in the LPA itself.  By failing to keep proper accounts and financial records, JM was in breach of his fiduciary duties as an attorney.  Panel deputyships often arise from these sorts of situations. For further information about panel deputies, please see this article drafted by Anthony Fairweather, the only panel deputy in Bristol.

 

 

Transforming Legal Aid – restricting access to justice in the Court of Protection?

Posted on: February 6th, 2014 by Jess Flanagan

The Legal Aid Agency recently published this statement on its website:

Two important reforms which are part of the legal aid transformation programme go live from Monday 27 January.

These are:

1. Borderline merits – removing legal aid for civil cases with borderline prospects of success 

2. Crown Court eligibility – introducing a financial eligibility threshold

 As a civil lawyer I am concerned predominantly with the cuts to civil legal aid. That cases now initially assessed as having ‘Borderline’ merit will no longer benefit from legal aid, troubles me greatly.

In June 2013 I responded to the Ministry of Justice consultation: Transforming legal aid: delivering a more credible and efficient system’ (Ministry of Justice, April 2013). In September, a paper I wrote on the impact that the proposed ‘transformations’ would have on access to justice in the Court of Protection was published in the Elder Law Journal [2013] Eld LJ (Issue 3 Volume 3), by Jordans Publishing (please see http://www.jordanpublishing.co.uk/publications/private-client/elder-law-journal for further information on this excellent publication).

I expressed grave concern at the proposal to remove borderline cases from the scope of legal aid, and I have obtained permission to replicate that part of my article on my blog. What is set out below is a condensed version of the article, a full copy of which can be obtained by approaching Jordans Publishing direct.

Over the years I have been involved in legal aid practice, I have frequently had to adapt to the changes, cuts and withdrawals of various services for clients and providers alike. I have acted and continue to act for elderly clients with cognitive impairment who have been deprived of their liberty in a care home contrary to their wishes, and for family members of dementia sufferers who are trying desperately to uphold the welfare wishes of their loved ones in the face of risk averse and protective public authority decision makers.

The purpose of the paper was to discuss the impacts of the proposals set out in the Consultation Paper  Transforming legal aid: delivering a more credible and efficient system’ (Ministry of Justice, April 2013), which included proposals to cut civil legal aid that in my view will fundamentally change access to legal representation in welfare proceedings in the Court of Protection. In turn, this will result in restricting access to justice in some of the most complex and significant issues concerning vulnerable and elderly people.

Information about the types of disputes that the Court of Protection hears can be found elsewhere in this blog and on the Elderly Care and Court of Protection. The current process for obtaining Legal Aid for disputed welfare applications in the Court of Protection (excluding applications in relation to the Deprivation of Liberty Safeguards (DOLS) brought under s.21A Mental Capacity Act 2005 (MCA), for which there is no means assessment), is summarised below and in more detail in the paper.

In order to benefit from legal representation funded by Legal Aid within contested welfare proceedings, the circumstances of the matter in dispute had to concern an individual’s life; liberty; physical safety; medical treatment; capacity to marry or to enter into a civil partnership; capacity to enter into sexual relations; or right to family life. In addition the court must have ordered or was likely to order an oral hearing at which it was necessary for the applicant for funding to be legally represented. Given the nature of the disputes often before the Court of Protection, obtaining funding on merits is not particularly onerous.

Funding for Court of Protection matters was barely affected by the recent changes to public funding brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) but there are some key changes that would be brought about if the proposals set out in the consultation document were to come into effect.

The Importance of accessing Legal Representation

This section appears slightly differently in the article, but it is important to understand the importance of legal representation in particularly complex matters. This leads on to the point I make below about the importance of funding being available for what initially may be viewed as ‘borderline’ cases.

When a public authority is involved in a Court of Protection case, experienced and prominent counsel will be instructed to advise and represent the relevant department throughout the proceedings, preparing information in a way the court can access quickly and efficiently, and providing their client department with expert advice in a timely fashion. Usually, a social worker can access legal advice and representation from their Local Authority legal department without the financial concerns a lay person will experience.

Section 4 MCA 2005 sets out that, when determining what is in the best interests of someone who lacks capacity to make the decision themselves, the decision maker (including a Judge of the Court of Protection) must consider all relevant circumstances and must take into account the views of anyone engaged in caring for the person or interested in his welfare and where possible, consult them as part of the best interests analysis.

Some carers or family members find it difficult to express exactly what they need to tell the court. Some are too scared or feel threatened by the process, with the result that their views are not put to the court in a way it can properly consider. Some may become defensive or too difficult for a public authority opponent to work with – having access to expert legal advice can assist to smooth the path greatly.

A similar point can be made in respect of ‘P’ (the person that the court is concerned with) as section 4 also requires the decision maker to take into account P’s past and present wishes and feelings. On occasion the court will want to hear from P him/herself or through a litigation friend if P lacks litigation capacity. If that litigation friend wants P to benefit from legal representation, which is often the case when the Official Solicitor is invited to act in that capacity, the same process for obtaining legal aid needs to be undertaken.

The point I make is this – in complex proceedings, individuals need to be represented by experienced lawyers who can assist them in providing the court with information that may be fundamental to making a best interests decision that is in accordance with the provisions of MCA 2005. A separate point is that legal representation is often required to ensure that there is equality of arms between the parties.

The first question relevant to my type of work concerns the ‘Residence Test’. I will discuss this in another separate blog post at another time, as it may be relevant to an appeal that has been sought in the recent case concerning ‘habitual residence’, Re PO.

Q6. Do you agree with the proposal that legal aid should be removed for all cases assessed as having “borderline” prospects of success? Please give reasons.

This paragraph appears exactly as it does in the original article

Under the Access to Justice Act 1999 (A2J) and LASPO, in order for an applicant to benefit from civil Legal Aid their case must satisfy the merits criteria. Where legal representation is required, this includes looking at the likely costs of the case, the prospects of success and the outcome sought by the applicant for funding.

Under both A2J and LASPO, in order to benefit from Legal Aid the applicant’s solicitor will need to give an estimate of the prospects of successfully achieving the outcome the client wants – by indicating whether the prospects are very good (80%), good (60-80%), moderate (50-60%); borderline or poor.  Where the prospects are moderate or poor, the solicitor must provide an explanation as to why funding should be granted.

In the normal course, funding is generally only available for cases that are assessed as having moderate to very good prospects of success. However, when the matter is of ‘overwhelming importance’ to the applicant, or the case is of ‘significant wider public interest’, the requirement is to have at least borderline prospects of achieving the outcome desired by the applicant.

The Civil Legal Aid (Merits Criteria) Regulations 2013 established under LASPO maintain the merits and prospects of success criterion and again, if the case is of significant wider public interest or is of overwhelming importance to the individual it only has to have borderline prospects of success. 

Court of Protection cases more often than not involve circumstances which are of overwhelming importance to the applicant and often bring into question ECHR rights. The terms of the Funding Code under A2J recognised this by ensuring that cases could be funded even where the evidence available at the point of making an application for funding was more supportive of restrictive decision making, usually contrary to what P and/or family members are seeking. In these types of cases it would be difficult to say that a case had moderate, or very good chances of success, due to the weight of the evidence available at the time. This is most evident in DOLS challenges made pursuant to Section 21A MCA 2005. Although the application for funding should include representations that the applicant has some relevant argument to pursue against the authorisation depriving them of their liberty, a fundamental human right is at stake and in my experience this is the primary issue in obtaining funding, even if there are only borderline prospects of success at the time of the application.

In cases where a fundamental human right is not engaged, one has to be slightly more persuasive in arguing that a case has more than borderline prospects of success. In some cases, it is sometimes difficult to see any prospects at all when you have only seen the evidence submitted on behalf of the opponent, more often than not a public authority.

As an adviser I am frequently presented with vast amounts of ‘evidence’ of safeguarding concerns that portray a family member or members as being abusers or culpable of neglect.  Experience has taught me such information cannot always be taken at face value. Public bodies are very able to put together large bundles of documents to discredit a particular carer, who would find it difficult to dispute what is said due to lack of time (normally due to their caring role) or lack of understanding as to how to go about addressing the allegations. Once legal aid has been granted and further evidence requested, analysed and checked against what was originally relied upon by an Authority, the picture is not always as bleak.  One example is a case where until recently an elderly gentleman was the sole carer for his wife who has had a dementing illness for over 25 years. Following a visit by an official from a public authority, notes were entered into the client’s record that, in the view of the family, put a negative spin on an otherwise positive (if not challenging) set of circumstances over the previous 5 years.  These notes resulted in concerns being raised amongst other professionals who otherwise had very little knowledge of the family or the history, causing enormous tension and mistrust of the husband’s ability to care appropriately for his wife. Had I not intervened, this less than accurate picture may have resulted in an elderly lady who wanted to live at home and be cared for by her husband being inappropriately placed into a care home.

When acting for an individual through a litigation friend, instructions can come from the Official Solicitor (the ‘OS’ – litigation friend of last resort) often very shortly before a hearing. A lawyer will have a very limited amount of time to consider the papers and make an application for funding in the normal way. More frequently, applications to the Court of Protection are made by public authorities seeking confirmation that its agents have made, or intend to make the correct and lawful decision in the best interests of an individual who lacks capacity. In these circumstances, the initial evidence is often presented in such a way to suggest the public authority’s decision is the ONLY legitimate option. Again, on further investigation, this is not always the case. Sadly this cannot be confirmed without some form of funding in place due to the huge amount of work involved. In these circumstances, where the merits look pretty bleak, assessing a case as having borderline prospects of success is the only way forward.

Without the ability to obtain public funding for borderline cases in Court of Protection matters, many individuals will be denied the benefit of having evidence against them properly tested and investigated. Judges may have no option but to simply ‘rubber stamp’ decisions made by public authorities that are based on incorrect interpretation of limited evidence. Judges will no doubt retain the integrity and fairness that is instilled within them and look at the evidence critically, but the court cannot itself seek specific evidence (other than directing reports and statements to be filed).  This is a risk that should not be taken.

The purpose of the proposals is to save costs to the Legal Aid bill. I suggest that removing Legal Aid for borderline cases in circumstances where the issue is of overwhelming importance to the individual concerned will not achieve this aim. Furthermore, the resulting pressure placed on other public budgets will increase. Family members who are not able to obtain funding for legal representation will often wish to pursue their case in any event as the outcome is so important to them and their loved one. In cases to determine whether an elderly person must be transferred to, or remain in a care home, some clients say the outcome sought is the difference between life or death. In my experience, individuals pursuing a case as litigants in person will be at increased cost to the public authority opponent and increase the strain on court time. The public authority will also have the ability to instruct the most expert counsel in Court of Protection proceedings, leading to the system becoming unfair and weighted heavily in favour of the public authority.

Post 27 January 2014, we shall hold our breath and wait and see what happens to those clients who may now not benefit from legal representation on the basis of the evidence stacked against them.

The final question that I responded to was Q33: Do you agree with the proposal that fees paid to experts should be reduced by 20%? I said no and argued that this would drive the effective experts away from providing reports. This would in turn result in poorer standards of reports, potentially leading to increased costs in arguing against the findings and a risk of the wrong decision being made on behalf of a vulnerable adult.

Where next?

‘The cuts may not have yet hit welfare disputes in the Court of Protection head on, whether under LASPO or in the current proposals, but if they are implemented, the proposals will make obtaining the right advice and the best evidence to uphold fundamental rights and choices even more difficult than it is already.’ This is from the original paper. Sadly, as we now know, the proposals are already starting to take effect. We await the publication of the response in the next couple of weeks. I have a feeling I might be re-visiting the other points raised in the original paper again.