Let’s talk about court processes: part 1 – making the application

The headline from my series on court process is that the court of protection is not like the courts you see in TV dramas.

As a side note, in my career I’ve not seen much evidence that any real court is much like the ones we see on TV but this is especially true for the court of protection.

For one, it is a modern court. It was only created by the Mental Capacity Act 2005. So it isn’t steeped in all the history and tradition that a lot of our older courts are.

It also exists for the sole purpose of making decisions for adults that can’t make decisions for themselves. So it was designed to deal with families going through difficult times, so it is intended to be as ‘user-friendly’ as possible, especially when P might well attend in person.

So I am going to walk you through the process in stages, so you can see what I mean. This is part 1, where I will focus on making the application.

For the purpose of this series of posts we’re going to use a case example of P, a man in his 30s with a learning disability and autism. He lives in supported living in circumstances that amount to a deprivation of liberty so the court needs to authorise this on a yearly basis. His mum wants him at home, but P was very isolated at home with his mother. He was bored and displayed destructive behaviour that put himself and his mother at risk. His wishes are to remain where he is, and visits with his mother are supported. Nevertheless, there is a dispute which means we can’t use the streamlined paper only process, so we’re in standard court process territory.

So first off, the application needs to be made. In this scenario, the local authority are going to make the application. Processes will differ depending on the authority but generally you’d expect that the legal team will draft the application papers, and the allocated practitioner will provide a capacity assessment, and a witness statement. There are forms for each of these, but the court will also accept this evidence in different formats. I’ll leave discussing the content of the statement for another day, so we can focus on processes today.

As part of the process of preparing an application, it is necessary to consider whether there is anyone who needs to be a party (which means they’ll be expected to attend all hearings and will receive all of the papers in the proceedings). It is bad form to do this without notifying the person or organisation and getting their agreement/giving them the opportunity to object. But health partners are often listed as parties, once they have agreed this.

But there will be other people who also have an interest in the proceedings, but who you won’t necessarily want to make a party, such as P’s mum in our hypothetical case. Whilst it wouldn’t be wrong to add her as a party, what we would usually do is notify her of the proceedings, and then she has the option of whether or not she wants to be involved. So her details would need to be added to the relevant section of the application form, as well as the details of any other families members that are in any way involved.

Thought will also have to be given to whether a suitable litigation friend can be identified. In some cases, the individual will lack capacity to make the relevant decisions, but have capacity to instruct solicitors and conduct the proceedings. But those cases are not the norm, and most of the time someone will need to be appointed as litigation friend in order for proceedings to move forward.

In certain circumstances it is possible to involve the person in another way, without a litigation friend being appointed but this is rare, outside of the streamlined process.

In some cases, there will be a family member or advocate who is willing and suitable to carry out this role. But in this instance, since P’s mother has views that appear to be opposite to P’s own views, it isn’t going to be appropriate for her to be the one instructing solicitors for P. She needs to be expressing her own views, and these need to be distinguished from P’s views and his best interests. So a lot of the time, there won’t be anyone suitable already involved so you’ll be expecting to invite the Official Solicitor to act as litigation friend. The Official Solicitor and their staff exist for this purpose and are a team of people based in London who instruct independent solicitors for people who lack capacity to do so themselves.

Now the Official Solicitor will only act if they are satisfied a) the person lacks capacity to litigate and instruct solicitors themselves, b) there is no one else willing and suitable to act as litigation friend, and c) the costs of the solicitors they will instruct will be met. The first is easily addressed with a capacity assessment, the second can be dealt with by informing the Official Solicitor in writing that this is the case. The third, however, can get difficult. Because solicitor’s costs will need to be met either by legal aid, and so it will be necessary to provide some evidence to the Official Solicitor of their likely eligibility for this, or through private funding for this, in which case it will be necessary to provide evidence of sufficient liquid assets (savings etc) to meet the costs.

Depending on who manages P’s finances, this might be easier said than done. If the local authority holds deputyship or appointeeship then this will be relatively easy to provide. But if finances are managed by a third party, this can be tricky, especially if that third party does not want to co-operate.

But generally, the lawyer involved will talk through these issues with the practitioner, and will then put together draft orders. These are essentially the orders that the judge will be asked to make on receiving the application and will usually include:

1) the transparency order – this is made in the vast majority of cases and ensures that proceedings can be public (which stops the newspapers assuming that the whole thing is some sort of abuse of government power) but that any publication will be anonymous (to protect the privacy of P and their family);

2) the first directions order which will say things like the time frame for the first hearing date, who should be notified of the proceedings and inviting the Official Solicitor to act; and, if needed

3) an order that authorises the Official Solicitor to make enquiries about P’s finances with banks and financial other organisations

The application and accompanying evidence and draft orders will then be sent to the court either electronically or by post. Given the current situation, we are using email exclusively, but even before coronavirus we were doing this most of the time.

The court will receive the papers and ‘issue’ them, which means accepting them and logging them on their systems and the send the application back to the local authority with a stamp on to say it has been issued. Shortly afterwards (hopefully) the orders will also be sent out to the local authority, approved and stamped by the Court, with a date set for the first hearing (referred to as a case management conference currently).

The next step will then be for the papers, including the sealed orders, to be sent by the legal team to the Official Solicitor and any parties named in the order. A notification form will also be sent to any directed to be notified, in this case P’s mum, with a form for her to fill in if she wants to be a party, and details of the first hearing (when, where, that she can get her own legal advice etc).

At this time, it is expected that someone will also speak to P in the most appropriate way to let him know that the proceedings have commenced.

“How long will all this take?” asks literally every practitioner on their first COP case. The answer depends, in part, on how long it takes to get the evidence together. This is, by far, the lengthiest part of the process at this stage. The actual application papers can be knocked together in a few hours by an experienced member of the legal team (but it can take longer if it isn’t the local authority making the application because family members/advocates need to find an appropriate solicitor and sort out legal aid or private funding arrangements. As for the NHS organisations, the less I say on their processes for bringing the application, the better).

But once the papers have gone to the court, you are at the mercy of judges and court staff. It is possible to request an urgent hearing, even on the same day if needed, but only where there is clear evidence of a need for such urgency. And most of the time, those urgent slots will be used for medical treatment cases or other clear life or death scenarios. But when preparing the papers, you can ask the court for a hearing within whichever period is appropriate in the case, and this will be provided for so long as the need for this is sufficiently clear to justify potentially messing up a judge’s schedule.

In P’s case, because he is safe in the interim, we’d expect 6 weeks or so before the hearing date, to allow P’s mum time to take advice, and the Official Solicitor to make their arrangements.

And that’s probably enough for now, but I’ll share a further post on the next stage in the process in a few days.

Talk about a cliffhanger, right?

The second post in this series is now at https://musingsoflocalauthorityasclawyer.com/2020/07/02/lets-talk-about-court-processes-part-2-ongoing-proceedings/

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

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