The (practical) limits of the Court of Protection

The powers of the Court of Protection are set out in the Mental Capacity Act 2005 ss15 to 23. In summary it can

• Make declarations as to an individual’s capacity
• Make declarations as to the lawfulness of actions taken in relation to that individual
• Make decisions on behalf of an individual who lacks capacity
• Appoint a deputy to make decision for someone who lacks capacity in relation to their health and welfare and/or property and financial affairs
• Revoke the appointment of a deputy
• Authorise the deprivation of an incapacitated individual’s liberty
• Make declarations with regard to authorisations under the Deprivation of Liberty Safeguards
• Determine the validity of a power of attorney
• Give directions on how to use a power of attorney
• Revoke or cancel powers of attorney

(It also has powers in relation to the application of protective measures in other jurisdictions, but that is a whole other issue).

As set out in ss17 and 18, the decisions that the court can be called upon to make are varied, and broad. The power of the declarations and injunctions it can give are equivalent to those made by the High Court. Enforcement, as set out in the Court of Protection Rules 2018, can be through committal to the criminal court for contempt of court.

The extent of the court’s jurisdiction with regard to available options is now clear (see, for example, discussion in Re N (Court of Protection: Jurisdiction) [2013] EWHC 3859 (COP)) namely that it can only do for the incapacitated adult what they would otherwise be able to do for themselves). Any challenge as to funding decisions by authorities are to be made by way of judicial review.

But within these bounds, there is a tendency to see an application to the court as a ‘cure all’ for those difficult cases where disputes arise and can’t be resolved. But in pragmatic terms, this isn’t always the case. I have been thinking on the issues that have come up in cases I have dealt with, and the practical limits to what the court can actually achieve for individuals.

It can’t magic up a better placement

The situation won’t be unusual to anyone who has been involved in section 21A challenges in any capacity. P is in a placement that meets his needs, but it is specialist residential care and P would like more freedom. The multi-disciplinary team meet, they agree that his needs could be met in supported living. So far, so good. However, there’s an issue here – his needs can only be met in a supported living placement that meets specific requirements. He needs ground floor only, for example, or to only share with 1 or 2 males of a similar age and ability, or he needs a provider that has access to specialist therapies, or he only wants to live in one specific rural market town where he can see sheep out of his window….

So P is saying he wants to move, that’s a clear objection, and so the Relevant Person’s Representative diligently does their job and instructs solicitors to bring a section 21A challenge. There follows the usual orders, disclosure of records, statements, best interests documents and round table meetings. But here’s the thing, that brilliant supported living placement that would meet his needs doesn’t exist now. Sure, the local authority can commission something especially for him, but here’s the thing with that: first they’ve got to conduct a lawful and transparent procurement exercise with detailed service specifications, then they’ve got to evaluate the tenders received, and award contracts. Depending on the local authority’s processes and the strength of the local market, that might only take a few weeks. But that is not the end of it, because that provider has to find a suitable building in the right area, not to close to a main road but with good public transport links. Then they’ve got to make structural adjustments so that P has level access (and what if those adaptations require planning permission?!). Staff need to be recruited (not easy in P’s chosen market town) and they need to be trained. If P needs a slow transition too, well that could take a year. Maybe even two or three.

And I am not, in any way, suggesting that our diligent RPR could or should have done anything else (more on the importance of s21A challenges in an upcoming post) but it is important for expectations to be managed because sooner or later the judge will utter the phrase “Right now, there appears to be only one available, viable option”. It isn’t the outcome anyone in that room wants (trust me, the vast majority of social workers want that move to happen just as much as P does) but neither the court, nor the local authority has a magic hat they can pull perfect placements out of.

It can’t make people co-operative

As mentioned above, the court can make injunctions and these injunctions can be enforced as contempt of court. Now for a lot of people in this world, standing in a court and listening to whichever legal professionals make their arguments and then the judge deliver their very stern and clear judgement about the importance of complying with the injunction order will be enough to ensure that the injunction achieves it aim. We don’t usually do full wigs and gowns in the Court of Protection  but it can still be pretty intimidating.

But I’m now going to let you into a bit of a secret (I’m wearing my pragmatic hat here):  those people are not usually the ones you’ll need to get an injunction against. The ones that you’ll end up in the Court of Protection in a dispute with will, 9 times out of 10, be the kind that sees the judge as just another authority figure to be scoffed at and ignored, and an injunction order as just a piece of paper to be thrown in a bin, and how you deal with these people is tricky.

I have dealt with numerous family members and friends who have sat in front of the judge and said they understand the order and the reasons for it, and that they have no intention of doing anything against the order because “absolutely they understand why the door would need to be open during visits” and “yes, I accept that my previous behaviour wasn’t in mum’s best interests and I’ll stay out of the carers’ way from now on”. Two weeks later, that door is closed and the carers are reporting interference and verbal abuse. And in these cases, that injunction is only ever going to be an interim measure whilst the court and the other parties gather evidence and then a decision will be made that either:

• That family member needs to be out of the picture for P to be suitably supported, or
• The level of restrictions is disproportionate to the risks

And again, this isn’t me saying that injunctions shouldn’t be sought. Sometimes they work. Other times, they are an important tool in displaying reasonable and proportionate action. In short, its about stepping up the restrictions until either you have something that works or the best interests balance tips and lands in disproportionate territory.

A useful tool, but not a magic fix for problem family members.

So let us all go into these proceedings with realistic expectations.

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority