I would strongly recommend readers take note of a recent parliamentary debate on deputies appointed by the Court of Protection, triggered by Duncan Hames MP (Liberal Democrat, Chippenham). The debate can be found here (about halfway down the page, column 53). Mr Hames details a story of his constituent “Mr Able”. Mr Able was appointed a solicitor as a deputy to manage his finances after he received a compensation award. Within nine years that award was wiped out, and much was spent on paying the deputy himself and on fruitless litigation on other matters. Hames comments:
‘More than a third of the personal capital that Mr Able possessed when control of his financial affairs was passed to court-appointed solicitors was subsequently paid to those solicitors as fees for the job of controlling his expenditure, yet they did not even ensure that he received appropriate benefits when he was unemployed. ‘
More alarming was Mr Hames’ description of the monitoring arrangements on the activity of the deputy. The Court of Protection visitors stopped visiting Mr Able in 2003, and he did not receive another visit until 2011 – despite his funds being wiped out and a change of deputy when eventually the local authority took over. In 2009 when Mr Able’s first deputy (the solicitor) applied to be discharged, the Court of Protection visitor wrote a report on Mr Able without having even met him. Duncan Hames MP contended ‘that not having Mr Able visited at any time in eight years demonstrates a terrible sense of complacency among those who were meant to be looking after his best interests.’
Mr Hames went to considerable lengths to try to get somebody to investigate what had happened to Mr Able’s money, and comments:
There was consensus among professionals that Mr Able did not have the capacity to manage his finances, so it cannot be suggested that the outcome—the depletion and, in some cases, wasting of his money—was his fault, or something for which he can be held to account; that is the very point of deputies acting on his behalf. None the less, the result, effectively, is that a vulnerable man has been left more or less penniless by the inaction of those who were meant to protect him, and the regulatory reaction has been tacit indifference.
The government responded that the OPG ‘has launched a fundamental review of how the supervision of deputies is carried out. The aims of the review are twofold: first, to ensure that proper safeguards are in place to protect people who lack capacity and to ensure that decisions are made in their best interests; and secondly, to ensure that supervision is proportionate.’ I can’t find any information about this review online, but if you know where it can be found please post a link in the comments below.
Hames pointed to an apparent inconsistency in the reasoning that a person who had been assessed as lacking capacity to manage his own financial affairs would be able to take steps to safeguard himself from poor financial management by his deputy. This is a pattern we see recurring throughout the MCA. Aside from the minimal safeguards of IMCAs, which in any case have nothing to do with financial deputies – a person would be very unlikely to get an IMCA if they had a deputy – most mechanisms for enforcing the MCA rely upon either the person themselves triggering some kind of complaint or litigation, or conflict breaking out between those making decisions on their behalf and others who are involved with them. DoLS and IMCAs aside, there are very few routine procedural safeguards which the person who is said to lack capacity themselves could take advantage of to trigger some kind of judicial scrutiny into what is happening to them (and we might reasonably question how reliably DoLS and IMCAs do that anyway). The whole system seems to operate on this cosy faith that professionals and indeed families always get it right. ‘Terrible complacency’, as Duncan Hames put it, or ‘informality’ as the Law Commission preferred to put it when they recommended such a paucity of procedural safeguards back in the 1990’s.
Although court appointed deputies are not exactly the same as ‘guardians’ such as those used in other jurisdictions, there are overlaps. Although in theory any person who has a deputy appointed retains their ‘legal capacity’ (ability to act in a legally recognisable way in their own name) insofar as they retain their decision specific ‘mental capacity’, in practical terms once another person has wrested control of your financial affairs and perhaps also taken steps to prevent you securing credit etc, it may be extremely challenging to recover control of your finances. A theoretical right to apply to the Court of Protection for the discharge of your deputy exists, but with the cost of legal advice and securing evidence that one has regained (or never lost) capacity, it seems reasonable to ask how a person who has no access to their finances except through the deputy they want to discharge could do this? The person can contact the OPG, who could initiate litigation – although I don’t know enough about how reliably the OPG would help a person initiate litigation to discharge or replace their deputy – but it seems to me that this places the remedy of applying directly to the court in the category of ‘theoretical and illusory’ rather than ‘practical and effective’.
Being forced to go through the OPG rather than applying directly to court for the discharge of a deputy is also hard to square with recent ECHR case law on guardianship and legal capacity. In the first place, the ECtHR has held that:
‘Remedies the use of which depends on the discretionary powers of public officials and which are, as a consequence, not directly accessible to the applicant cannot be considered as effective remedies within the meaning of Article 35 § 1 of the Convention’
In Stanev v Bulgaria (2012) the ECtHR also reiterated that it was unacceptable to require a person to go through a third party to challenge the appointment of a guardian. It might be countered that a person does have a right to apply directly to the Court of Protection to discharge their deputy here, but as I’ve already commented it would have to be a pretty inventive person to enable them to do so given the financial and practical barriers they would face. The Court of Protection report for 2010 says they have received two such applications (with 9437 deputyship appointments made in 2010). This is what the Mental Disability Advocacy Centre had to say about the right to challenge the appointment of a guardian in Hungary:
‘Although the right and opportunity to present evidence, and challenge that of others, is constitutionally and legislatively guaranteed, for adult representatives this rarely takes place in practice. Observation of court cases and reviews of the closed case files indicate that one possible explanation of this was the failure to provide adults subject to guardianship proceedings with appropriate assistance to allow them to take advantage of such provisions and to navigate the court process.’
I hesitate to compare domestic arrangements for deputyship under the MCA to guardianship in Hungary as there are many elements of the MCA and indeed the Office of the Public Guardian and the Court of Protection which are no doubt much more progressive and robust, but when one compares the procedural issues people face in challenging decisions made under the MCA using legal machinery there are some striking parallels with MDAC’s findings on guardianship in Central and Eastern European Countries.
Another aspect of the procedural side of the MCA that may be hard to square with recent ECtHR case law is the practice of dealing with cases ‘on the papers’, or – even if there is a hearing – the judge not meeting a person. The ECtHR has recently said ‘The Court considers that judges adopting decisions with serious consequences for a person’s private life, such as those entailed by divesting someone of legal capacity, should in principle also have personal contact with those persons’ (X and Y v Croatia, 84). It is hard to see how a decision to appoint a financial deputy, or indeed major welfare decisions, would not amount to ‘decisions with serious consequences for a person’s private life’ (if you have trouble imagining this is a serious decision, imagine how you would feel if a deputy were appointed to manage your money). The reason the court stresses the importance of a judge meeting a person in X and Y v Croatia is because:
‘at the end of the day, it is the judge and not a physician, albeit a psychiatrist, who is to assess all relevant facts concerning the person in question and his or her personal circumstances. It is the function of the judge conducting the proceedings to decide whether such an extreme measure is necessary or whether a less stringent measure might suffice. When such an important interest for an individual’s private life is at stake a judge has to balance carefully all relevant factors in order to assess the proportionality of the measure to be taken.’
The importance of judges being able to do this was really brought home by the recent domestic ruling in CC v KK (2012), where a judge found – against the evidence of all the experts – that a person had the capacity to decide where they should live. Another reason, emphasised in Shtukaturov v Russia is in case those representing a person in court (or in the event that they are not even joined as a party) do not adequately relay a person’s own views, or there are any issues of importance which they would like to communicate directly to the court. Importantly, these statements from the ECtHR do not amount to a statement that a person must attend court, however impractical that is – although in Shtukaturov it was important for the claimant to attend in order to point out deficiencies in expert evidence and arguments. It strikes me that a judge going to visit a person could go some way towards resolving this dilemma.
At this point I can imagine those of you reading this who work in or with the court on a regular basis taking a deep sigh, and perhaps muttering ‘ivory tower’ under your breath. I am not unaware of the enormous workload of the Court of Protection, nor how challenging it has been to process the number of cases it has to deal with in a timely fashion. I am not unaware that this is why case officers, not judges, handle a large number of ‘routine’ cases – including those concerning the appointment of financial deputies. I am not unaware that the financial settlement of the court and the OPG is increasingly stretched. I am not unaware of how laughably impracticable and unlikely the thought of judges routinely popping all over the country to meet people who have had deputies appointed or are the subjects of other litigation must seem. But I would ask, impracticable though it may be, is it really inappropriate that such a serious step as appointing a deputy might merit the courts poking their noses beneath the paperwork and that court visitors should go on doing so to make sure things are in order? That judges making very serious welfare decisions, which will significantly interfere with a person’s rights to enjoyment of home, private and family life – perhaps even their life and liberty – should bother to meet that person? If that strikes you as inappropriate, I’m not sure your views would be shared by the vast majority of disability rights campaigners or by those who were involved in the drafting of the UN Convention on the Rights of Persons with Disabilities. I am not sure it would be shared by the European Court of Human Rights either.
Anyway, the fundamental concern I have is that it is very hard to square the practical and procedural obstacles a person may face in challenging an assessment that they lack capacity (be it for financial deputyship or indeed for any other decision) with the recent exhortation of the ECtHR in Stanev v Bulgaria that:
In particular, the right to ask a court to review a declaration of incapacity is one of the most important rights for the person concerned since such a procedure, once initiated, will be decisive for the exercise of all the rights and freedoms affected by the declaration of incapacity, not least in relation to any restrictions that may be placed on the person’s liberty (see also Shtukaturov, cited above, § 71). The Court therefore considers that this right is one of the fundamental procedural rights for the protection of those who have been partially deprived of legal capacity. It follows that such persons should in principle enjoy direct access to the courts in this sphere. 
In theory, the right exists. In practice, as Luke Clements pointed out when the MCA was in parliamentary gestation ‘for every one person with mental capacity difficulties to get to court, there are probably 100,000 who have no access because the mere concept of stepping into a solicitor’s office is intimidating, as it is for all of us, and the reality is that people with mental capacity difficulties never take the first step.’ Even those few who manage to get into a solicitors office may encounter difficulties obtaining public funding for certain kinds of litigation – including the displacement of property and affairs deputies – and would very likely have to enlist the support of a litigation friend. A litigation friend might decide not to chase up a person’s ‘right to ask a court to review a declaration of incapacity’, which again is hard to square with Stanev and in the case of public officials acting as litigation friend is hard to square with the general observation that ‘Remedies the use of which depends on the discretionary powers of public officials and which are, as a consequence, not directly accessible to the applicant cannot be considered as effective remedies within the meaning of Article 35 § 1 of the Convention’. And even if a person got their case to court, they might never meet the judge, and so might not have that opportunity to prove the experts wrong. Can we really be confident that the right to challenge an assessment of incapacity under the MCA, which will have knock on consequences for a large range of other rights, is ‘practical and effective’ and not ‘theoretical and illusory’?
Note: Recently a growing number of people have contacted me with very alarming stories about court appointed deputies. I strongly advise anybody with concerns about the activities of court appointed deputies to contact the Office of the Public Guardian with details of their concerns – and to do it themselves, and promptly, and not rely on other parties to do so. In particular, whilst local authorities can investigate some financial safeguarding matters it is the Office of the Public Guardian – not local authorities – that are responsible for registering and supervising court appointed deputies (and donees of Lasting Powers of Attorney too). You can contact the OPG here, although a belt and braces approach of contacting local authorities as well cannot hurt.