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Getting to know Court of Protection Law – a discussion with CJCH Solicitor, Connor Hegarty

As our Court of Protection team has been nominated for the Wales Legal Awards 2022 which will take place next week.  We had a chat with Connor Hegarty, Solicitor in our Court of Protection department

What is the Court of Protection and who does it help?

The Court of Protection deals with cases concerning people who have been assessed as lacking capacity to make a specific decision.  Where a person lacks capacity, the Court can make a best interest’s decision on the individual’s behalf. These can include the most serious and life-changing decisions including where someone lives, to how they interact with wider society, to considering withdrawal of life-sustaining medical treatment or nutrition/hydration. As well as dealing with cases concerning a person’s welfare, the Court also hears challenges to an individual’s deprivation of liberty pursuant to Article 5 ECHR.

As well as resolving disputes as to what might be in someone’s best interests, the Court also deals with the appointment of Deputies and Attorneys under Lasting Powers of Attorney.

What circumstances would lead to someone being considered as ‘lacking mental capacity’?

A person is considered to lack mental capacity for a specific decision if they met the legal test set out in the MCA 2005. Put simply, this is where a person has a cognitive impairment, and due to that impairment, cannot understand relevant information for a decision, use/weigh up that information, retain it, or communicate a decision on the specific subject. Examples of a cognitive impairment could be a brain injury, dementia or related conditions, or more severe learning disabilities. Although it is a legal test, assessments for capacity are often carried out by a health or social care professional.

It is always important to remember that lacking mental capacity is always decision specific.

What are some examples of decisions made in the Court of Protection? 

The Court can make a best interests decision concerning a wide variety of areas affecting a person’s life, where there is evidence to suggest they lack the capacity to make the decision themselves, including:

  • Conducting legal proceedings
  • Where they live
  • The care they receive
  • How their property and finances are managed
  • Who they have contact with, or how contact is regulated
  • How they access the internet and social media
  • Whether they can consume alcohol or smoke
  • The medical treatment they receive, including serious medical treatment, and decisions about vaccinations
  • Management of specific or long-term health conditions, such as diabetes
  • The appointment of a Deputy or Attorney for health/welfare or property/financial affairs

What does a solicitor who specialises in Court of Protection do and when should you speak to one? 

As specialists acting in the Court of Protection, the team of solicitors at CJCH can advise you on any areas that affect capacity law or best interests. We can advise on any disputes arising on whether a person has capacity for a specific decision, how a person’s personal welfare is being managed and challenges to a deprivation of liberty. We also have extensive experience advising on capacity and best interests concerning medical treatment, including the most serious cases before the High Court.

What is a Deputy?

A Deputy is a court-appointed individual to act in a person’s place to make decisions in their best interests, where the individual has been assessed as lacking capacity. Deputies can act in two areas, for health/welfare (less common) or property/financial affairs (more common). To be appointed a Deputy, the person seeking to act in this role must make an application to the Court.

Who can become a Deputy? Are there any rules surrounding this?

A Deputy must be over the age of 18. A Deputy is typically a relative or close friend of the individual concerned, but not always. Some Local Authorities will act as a Deputy for individuals in their area. There are also “professional” Deputies who act for a fee. There can be more than one Deputy appointed.

Deputies will be bound by obligations placed on their actions by the Mental Capacity Act 2005. They must also prepare an annual report detailing how they have acted in the individual’s best interest.

What is a Lasting Power of Attorney (LPA)? 

An LPA is a legal document that lets a person provide authority to another to assist them in making decisions about their health/welfare or property/financial affairs.

A crucial distinction between Attorneys and Deputies is that the Attorney must be appointed by the individual concerned when they have capacity to do so. If a person is assessed as lacking capacity, they cannot lawfully appoint an Attorney.

Who can become an Attorney? Are there any rules surrounding this? 

Similar to Deputies, an Attorney must be over the age of 18, and is typically a relative or close friend of the individual concerned, but not always. There are also “professional” Attorneys who act for a fee. There can be more than one Attorney appointed, who can act together or separately. For example, a parent may appoint more than two children to act as Attorneys to assist with decisions on finances.

What is the Office of the Public Guardian?

The Office of the Public Guardian is the body that oversees Deputies and Attorneys in England & Wales and investigates any complaints or concerns on how they may be acting.

Mental Health Awareness Week: Unlocking lockdown

By Sarah Newport

We hope that our clients and their families are all keeping safe and well during the coronavirus crisis.

Sarah Newport

The Court of Protection team here at CJCH have been busy during the lockdown, continuing to represent vulnerable individuals and their families. We have been on hand to assist in ‘unlocking the lockdown’ to guide our clients through the emergent impact of the coronavirus pandemic.

There has been guidance coming from all directions across the legal, medical, and community care professions. All of which have been insightful and helpful, but can be daunting for an individual to review and understand. Our team has been keeping on top of the guidance to break vast amounts of information down to the crucial issues for our clients.

We are proud to have supported Mental Health Awareness week, seeing the initiative remain at full strength is a pleasure. It is important now more than ever that the promotion of mental health support is as prevalent as possible.

Lockdown and the rights of the individual

We are all feeling the effects of the lockdown and the separation from loved ones. However, the coronavirus has unfortunately impacted vulnerable individuals and those lacking mental capacity to a disproportionate degree.

Our team has been keeping a keen eye on ensuring that our vulnerable clients are not being inappropriately subjected to ‘blanket policies’ in care settings, whether it be in a hospital, care home, or supported living placements.

We have taken a strong stance in reminding public bodies of their duties in taking a person-centred approach.

We have been advocating strongly for family contact to be maintained in whatever creative, but safe, way possible. We have enjoyed checking in with our lovely clients via platforms such as Skype or Zoom and we appreciate the occasional guest star when pets or children make an appearance!

Question: What can I do if I have concerns about a person who lacks mental capacity?

It cannot be emphasised enough that the protection offered by the Mental Capacity Act 2005 prevails. The principles of the legislation and the Deprivation of Liberty Safeguards (DoLs) remain unchanged during the pandemic. Groups of individuals who lack capacity cannot be treated the same, restrictions must be considered on a person by person basis.

If somebody is deprived of their liberty under a ‘DoLs’, any greater restriction during the pandemic must be lawfully authorised. The relevant public body must conduct an appropriate review.

If there is any dispute about a person’s best interests, an application to the Court of Protection remains the appropriate route to resolve this. The Court of Protection has adapted to lockdown quickly and efficiently with cases are being heard remotely every day.

If you are worried about a vulnerable person at this time, the CJCH Court of Protection team is available to assist, click here for our contact information. CJCH Here for you. 

CJCH Solicitors partner named one of Wales’ 30 young lawyers to watch!

The senior partners of CJCH Solicitors are proud to congratulate Amy Roberts-Rees, our firm’s partner in charge of the Mental Health Law and Court of Protection practice, for being named one of the 30 young lawyers to watch in the Wales Online publication.

Amy joined CJCH in 2013 as a partner and has been instrumental in expanding the great work we do in Legal Aid to represent those in need of assistance with Mental Health Law. Amy has also developed and grown our Court of Protection practice, and built a high performing, client-centric department of dedicated specialists.

Congratulations on a well-deserved accolade and recognition of your continuous growth.

Find the full Wales Online feature here.

 

Fluctuating capacity and how to address future uncertainties of care planning in a section 21A appeal

By Emma Sutton (instructed on behalf of MB) and Rebecca Evan-Williams (CJCH Solicitors). Re-post of article from No5 Barristers Chambers.

31 January 2018

Background

The court had before it an application brought on behalf of MB pursuant to section 21A of the Mental Capacity Act 2005 (‘the Act’) by his RPR, Mrs Claire Reid, to challenge a standard authorisation made in accordance with schedule A1 of that Act; the primary challenges being whether the mental capacity and best interests qualifying requirements were met. So far, so good.

MB had resided in a care home since 2008 and had a diagnosis of moderate learning disability, autism spectrum disorder and complex epilepsy and as a consequence of his diagnoses, required close supervision of daily living and prompting from his carers.

Due to the complexities of MB’s presentation, a number of expert reports were necessary to assist the court to resolve the proceedings and a position was reached whereby the capacity evidence prepared by Dr Michael Layton (Consultant Psychiatrist) and Dr Lisa Rippon (Consultant Developmental Psychiatrist), and their jointly prepared statement, was accepted by the parties. The expert evidence unanimously concluded that MB had the capacity to make decisions regarding his residence and care needs, but lacked the capacity to conduct the proceedings.

By reason of the above, the court accepted that it had no jurisdiction to make best interest decisions regarding MB’s residence and care; notwithstanding his requests to leave his care home and move to alternative accommodation. The court determined (per section 21A(2)(a) and section 21A(3)(a) of the Act) that MB did not meet all of the necessary qualifying requirements in order for a standard authorisation to be in place (the mental capacity qualifying requirement not being met), and on such basis, the standard authorisaation was terminated with immediate effect.

Comment

Mrs Reid, as MB’s litigation friend, fully recognised that MB would (as a consequence of the expert evidence) effectively be removed from the procedural safeguards contained in schedule A1 of the Act. Her status as RPR would also end upon the termination of the standard authorisation.

Although his ‘appeal’ had been successful, careful consideration had to be given prior to the final hearing as to whether the case fell into the ambit where ‘contingent’ capacity decisions were appropriate. The Court of Protection Practice helpfully provides a template order [see pages 2362-2364 of the 2017 edition] for such circumstances and this was brought to the courts attention. However, on the facts of this particular case, it was accepted that there was no identifiable external trigger which would ‘cause’ a loss of capacity – for example, another person who unduly influences P, P resorting to alcohol use, capacity being dependent on a continuance of training/ advice etc.

Instead, MB’s fluctuation of capacity was intrinsically linked to his own inherent complex functioning and could not be put into a prescribed ‘box’ of when he would and wouldn’t have the ability to make capacitous decisions. In this regard, the experts said this:

Both Dr Rippon and Dr Leighton agreed that MB’s capacity could fluctuate during times of seizure activity but also when his level of anxiety rises and he becomes distressed because of environmental triggers. It was Dr Leighton’s view that these periods could last for several days and he gave the example of the time that MB had become angry with his RPR and had refused to see her for a week. However, what is less clear is whether his capacity was affected over the whole of this period. Therefore, although both doctors agreed that MB’s capacity had fluctuated, what is less certain is how long these periods could last(my emphasis)

As MB’s care plan had (for the past 10 years) met his complex needs, and due to the lack of specificity regarding whether and if so, for how long, seizure activity could potentially impact on his decision making, it was not considered appropriate for further exploration to be given to this issue – particularly as the ongoing nature of the proceedings was having an impact on MB.

A further point that required consideration was whether the appointment of an independent advocate (within the meaning of section 67 of the Care Act 2014) to represent and support MB for the purpose of any future needs assessment and the preparation of a care and support plan (etc) was necessary.

This was raised on behalf of MB which HHJ Parry addresses in her Judgment (with reference to the Care and Support (Independent Advocacy Support) (Number 2) Regulations 2014) and emphasised that the order would record ‘the Local Authority’s willingness and indeed, in my view, obligation to consider this ongoing additional support for MB in the decisions that he will now be making on his own behalf’.

Although set out in a recital (which is positive for reference as to the ‘reasonableness’ of future actions) this ultimately relates to a primary issue that the powers of the court do not extend to decisions compelling parties to provide services for P (N (Appellant) v ACCG and others (Respondents) [2017] UKSC 22, Baroness Hale, paragraph 29).

 

 

Emma Sutton was instructed by Rebecca Evan-Williams and Amy Rees-Roberts (Partner) of CJCH Solicitors (Cardiff) on behalf of MB

Claire Reid is a professional RPR and Project Lead for Training in Mind

Reflection on Mental Health Awareness Week with a look to the future.

By Keith James, Solicitor/Partner

Last week, 8 to 14 May 2017, marked UK Mental Health Awareness week for 2017. The purpose of this annual event is to ‘prompt a national conversation about what we can do as communities, schools, families and individuals ‘to move from surviving to thriving’ (The Mental health foundation).

There is little doubt that in recent months awareness of the wide variety of mental health conditions and of the impact of mental health problems has grown and now appears to be rising up the political agenda.

High profile individuals who have experienced the impact of issues such as depression, including prominent figures in the football world, have helped to shine a light on how mental health problems can impact on the lives of everyday people – Mental Health issues do not discriminate.

Also in the news have been many stories from prominent individuals of how bereavement can impact on families and how help can be provided to families to talk through these issues.

Of particular current interest is how the result of the general election will impact on Mental Health Law and the provision of Mental Health Services. Already suggestions have been made of manifesto commitments to increase provision of community mental health staff and services but also a suggestion that the Mental Health Act should be replaced. This perhaps is the most intriguing suggestion.

The Mental Health Charity, Mind, has called for a review of the Mental health Act but there is a suggestion this could go further to avoid ‘unnecessary detentions’. It will certainly be interesting, during the General Election campaign, to see if this forms part of a manifesto commitment. Of particular interest will be what alternative proposals are suggested.

There is little doubt that Mental Health issues have risen up the political agenda, and for CJCH will continue to be an important part of our focus and drive to support our community.

For any questions or queries, please do not hesitate to contact our Mental Health and Mental Capacity Law team at mentalhealth@cjch.co.uk or call on +44 333 231 6405 (24 hour emergency line: +44 7967 305949)

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Planning for tomorrow – Introduction to Lasting Power of Attorney

By John Moore, Solicitor

We live in a time of better healthcare and advances in science where we are able to enjoy life for longer than previous generations.  We never know what is around the corner, however, with many people experiencing challenges with their mental health in their later years or are incapacitated through accident, injury or illness.

Here at CJCH, we regularly meet people of all ages who come to us for advice and who are concerned about safeguarding their personal affairs in the future.  Where appropriate, we try and assist by arranging a Lasting Power of Attorney for our clients in respect of their property and financial affairs.

A Lasting Power of Attorney is a legal document which allows individuals to appoint someone of their choosing to act on their behalf (as their attorney) if they are no longer able to manage things themselves for whatever reason. An attorney would be able to access a person’s property and finances to help pay bills, manage investments and pay care home fees. An attorney is legally under a duty, however, to act in the person’s best interest at all times.

Sadly, however, many people that we meet have loved ones who have not set up a Lasting Power of Attorney and no longer have the mental capacity, whether by illness or accident, to be able to do so.  We often find that family members hit a brick wall when dealing with banks and buildings societies who will of course only deal with the account holder themselves.  As there is no one legally able to act for the person it means that there are often situations where bills and care fees cannot be paid. This causes a great deal of stress for everyone involved because a person’s finances cannot be accessed or their property cannot be managed or sold.

In order to resolve this our team of experienced lawyers represent families in making applications to the Court of Protection so that family members can be appointed as Deputies to manage a person’s property and financial affairs.  Once the Court has approved an application the family members who have applied will be able to access a person’s finances and manage the sale of a property under a Court Order.  The Majority of applications to the Court are straightforward and dealt with on paper and do not require any attendance at Court.

If you would like to speak with us for a free consultation on better preparing for your future to ensure those things that are so important to you can be managed property should you no longer be able to do so yourself, you can contact Mr John Moore (solicitor) in our Private Clients department:

Telephone number0333 231 6405, or email privateclients@cjch.co.uk.

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