New Court of Protection Rules – important changes afoot for transparency and participation

The current Court of Protection Rules were drafted in 2007, and a lot has changed since then.  Today, the government published a wide ranging set of amendments to the Court of Protection Rules, which have responded to a number of issues that have emerged since 2007.  A lot of important policy issues in the Court of Protection are governed by the Rules rather than the Mental Capacity Act 2005 (MCA) itself.  The new amendments potentially impact on some really important human rights issues and areas of policy.  I confess, reading these amended rules is hard work – as it requires splicing the amendments into the old rules (an activity I did on my train home today, so apologies for any errors here).  I hope somebody publishes a new amended complete set of rules soon!

[Update! Alex Ruck Keene has posted a really interesting blog post about the discussions and reasoning that inspired the new rule changes]

[Update numero dos! Alex Ruck Keene has now posted versions of the new amended rules with a helpful and interesting commentary – what would we do without him?]

‘Transparency’ amendments

One important issue governed by the Rules is the current ‘transparency’ framework – issues such as whether hearings are in public and what information about proceedings can be communicated and published.  When the government originally consulted on the Rules, it had intended that hearings would usually be in public, but it changed its position in response to the consultation, and so the general rule is that proceedings are held in private.  When proceedings are held in private, a statute called the Administration of Justice Act 1960 (s12 to be precise) means that it may be a contempt of court to publish information about the proceedings.  ‘Publish’ is defined really broadly, and even includes simply telling other people about the proceedings (Re B).  This has huge consequences for whether and how the media can report cases, whether those subject to the Court of Protection’s jurisdiction can tell others about their case (even for quite mundane reasons, like telling a counsellor or therapist if they’re finding them stressful).  It also presents real difficulties for researchers like myself because we can’t easily talk to people about their experiences of the Court of Protection or look at case files because to do so would require a complex system of orders giving us permission to do so.  This was not, I don’t think, a deliberate decision when the 2007 Rules were drafted and everyone we have encountered at the Court and the Ministry of Justice has been keen to see changes to the Rules adopted so that research on the Court can take place.

The amendments to the Court of Protection Rules published today may have an important impact on the current transparency regime, and I suspect they pave the way for a more radical shake up.  Following changes to Rule 5 (Court’s duty to manage cases), the Court of Protection will have to consider in each case ‘whether any hearing should be held in public; and … whether  any  document  relating  to  proceedings  should  be  a  public document and, if so, whether and to what extent it should be redacted.’  This change isn’t discussed in the Explanatory Memorandum, but I wonder if it is intended to encourage more public hearings and perhaps to lay the framework for new guidance to share documentation (such as Skeleton arguments and reports) with the media or others?  Proposals of this nature have been floated by Sir James Munby, the President of the Family Court and the Court of Protection, in relation to the Family Court, and it’s not inconceivable they could be introduced in the Court of Protection.  Sir James Munby has also suggestion Pilot Studies of a scheme of greater information sharing in the Family Court, and I notice that the amended Rules will provide for procedural changes for the purpose of Pilot Studies.  My prediction is a consultation on a new Practice Guidance on the issue of public hearings and a possible pilot project on sharing documents with the media in the future…

Another change, which had me dancing around my office this afternoon, is an amendment to Rule 91  which means that it will now read:

91.—(1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated in accordance with paragraph (2) or (2A)”;

(2) The court may make an order authorising—

(a)  the publication or communication of such information or material relating to the proceedings as it may specify; or

(b)  the publication of the text or a summary of the whole or part of a judgment or order made by the court.

(2A) Subject to any direction of the court, information referred to in paragraph (1) may be communicated in accordance with Practice Direction 13A.

(3) Where the court makes an order under paragraph (2) it may do so on such terms as it thinks fit, and in particular may—

(a)  impose restrictions on the publication of the identity of—

(i) any party;

(ii) P (whether or not a party);

(iii) any witness; or

(iv) any other person;

(b)  prohibit the publication of any information that may lead to any such person being identified;

(c)  prohibit the further publication of any information relating to the proceedings from such date as the court may specify; or

(d)  impose such other restrictions on the publication of information relating to the proceedings as the court may specify.

(4) The court may on its own initiative or upon request authorise communication—

(a) for the purposes set out in Practice Direction 13A; or

(b) for such other purposes as it considers appropriate, of information held by it.

This change will allow the Court of Protection to introduce a Practice Direction similar to that used in the Family Court to allow people to communicate information about Court of Protection cases for certain purposes set out in the Practice Direction.  For example, for sharing information in order to make complaints about legal representatives or medical practitioners, to seek help from their MP, to obtain healthcare or counselling where a person may need to disclose some matters to do the proceedings.

This rule change is hugely important for anyone doing research in the Court of Protection, as it means that it can adopt a procedure similar to that in the Family Court whereby if you are conducting research which involves speaking to people about cases or consulting files or observing proceedings, you simply* need to seek authorisation for the project as a whole from the President of the Court of Protection, rather than obtaining an order for every single case.  We’re very excited about this rule change, and we’re delighted that the Ministry of Justice and the Court of Protection have been keen to help out researchers like ourselves by adopting it.

Participation of the relevant person in proceedings

As I’ve written about here, since the Court of Protection Rules were drafted in 2007 there have been very rapid and significant developments in international and domestic human rights law on how a person should be able to participate in proceedings with serious consequences for their private life – particularly those concerning their legal capacity and any deprivation of liberty.  Whilst it was possible to comply with many of these developments under the existing Court of Protection Rules, they did not require consideration of these issues nor give any guidance.  Concerns about compliance with these human rights obligations were raised by lawyers in written evidence to the House of Lords Committee on the MCA (see the evidence of Victoria Butler-Cole and colleagues in Volume 1), particularly around how often judges meet with the relevant person.

These issues also came up in Re X 1 and Re X 2, where the Court of Protection considered questions like whether the relevant person needs to be made a party to the proceedings and given legal representation and a litigation friend (to instruct his lawyer on his behalf) in cases concerning deprivation of liberty.  The rulings are currently under appeal, but they required careful consideration of how people participate in Court of Protection proceedings in general, and it was recognised that the Rules might need to be amended both to take into account recent human rights case law, and also to provide more flexible procedures in relation to how people were represented.  This is because there are serious problems arising from the ruling in Cheshire West, because the Court of Protection system – including finding litigation friends and funding legal representation – is simply not set up to cope with such a large influx of cases relating to deprivation of liberty.

The amendments to the Rules make a number of changes to the existing procedure relating to participation.  First up, they insert an entirely new rule – Rule 3A – requiring the Court of Protection to explicitly consider (of its own motion, or when asked to do so by a party) how the person should participate.  Presumably at some point a Practice Direction may give further guidance on this, to reflect the case law, but this means that practices such as a person not being made to proceedings that are about them or not meeting the judge should no longer happen by default, but should only occur after explicit consideration.  New Rule 3A reads:

Participation of P

3A.—(1) The court shall in each case, on its own initiative or on the application of any person,  consider  whether  it  should  make  one  or  more of  the  directions  in  paragraph  (2), having regard to—

(a)  the nature and extent of the information before the court;

(b)  the issues raised in the case;

(c)  whether a matter is contentious; and

(d)  whether P has been notified in accordance with  the provisions of Part 7 and what, if anything, P has said or done in response to such notification.

(2) The directions are that—

(a)  P should be joined as a party;

(b)  P’s  participation  should  be  secured  by  the  appointment  of  an  accredited  legal representative  to  represent  P  in  the  proceedings  and  to  discharge  such  other functions as the court may direct;

(c)  P’s participation should be secured by the appointment of a representative whose function shall be to provide the court with information as to the matters set out in section  4(6)  of  the  Act  and  to  discharge  such  other functions  as  the  court  may direct;

(d)  P  should  have  the  opportunity  to  address  (directly  or  indirectly)  the  judge determining  the  application  and,  if  so  directed,  the  circumstances  in  which  that should occur;

(e)  P’s interests and position can properly be secured without any direction under subparagraphs  (a)  to  (d)  being  made  or  by  the  making  of  an  alternative  direction meeting the overriding objective.

(3) Any appointment or directions made pursuant to paragraph (2)(b) to (e) may be made for such period or periods as the court thinks fit.

(4) Unless P has capacity to conduct the proceedings, an order joining P as a party shall only take effect—

(a)  on the appointment of a litigation friend on P’s behalf; or

(b)  if  the  court  so  directs,  on  or  after  the  appointment  of  an  accredited  legal representative.

(5) If the court has directed that P should be joined as a party but such joinder does not occur because no litigation friend or accredited legal representative is appointed, the court shall record in a judgment or order—

(a)  the fact that no such appointment was made; and

(b)  the reasons given for that appointment not being made.

(6) A  practice  direction  may  make  additional  or  supplementary  provision  in  respect  of any of the matters set out in this rule.

(The appointment of litigation friends, accredited  legal representatives and representatives under paragraph (2)(c) is dealt with under Part 17.)

(“Accredited legal representative” is defined in rule 6.)”.

One of the big problems with the current Court of Protection system is the general requirement that the relevant person is represented by a litigation friend.  The most pressing practical problem was that there simply weren’t enough litigation friends out there to cope with the flood of cases that is anticipated following Cheshire West. 

The amended rules now allow a person to be represented by an ‘accredited legal representative’ or even just a ‘representative’ without a litigation friend.  An accredited legal representative is defined as ‘a  legal  representative  authorised  pursuant  to  a scheme  of  accreditation  approved  by  the  President  to  represent  persons  meeting  the definition of “P” in this rule in proceedings before the court’.  So presumably the President will shortly announce a scheme of accreditation for certain lawyers who can represent the relevant person without taking instruction from a litigation friend.  I would be really interested to see whether this may lead to changes in how they represent the person – for example, will we see a move towards a more adversarial model, like that adopted in the Mental Health Tribunals, where representatives basically argue for what the person wants and not for what they don’t want, rather than arguing for what (in their view) is in the person’s best interests?

Perhaps more controversially, especially in the wake of cases like MS v Croatia which emphasises the importance of legal representation in deprivation of liberty cases, the rules also provide for a person to be represented by a non-legal ‘representative’.  It seems that a person may have a ‘representative’ (of the non-legal variety) only if they are not a party to the proceedings.  Their function is to provide the court with information about the relevant person’s ‘past and present wishes and feelings (and, in particular , any relevant written statement made by him when he had capacity)… the beliefs and values that would be likely to influence his decision if he had capacity, and (c)  the other factors that he would be likely to consider if he were able to do so’ (i.e. s4(6) MCA).  This, presumably, is because the Re X 2 judgment described the role of a ‘representative’ for the relevant person in cases relating to deprivation of liberty, but no such role was provided for in the MCA or the existing Court of Protection Rules.  It remains to be seen whether the Court of Appeal regards it as lawful for a court to authorise detention of a person who is not a party and/or is not legally represented in the proceedings.  If not, then tricky questions will arise about how legal representation is to be funded since the Re X procedure is not subject to non-means tested legal aid, which is (in my view) a major human rights concern and constitutes discrimination.  Watch this space…

There are also changes to the way in which the relevant person is to be notified about the proceedings.  In particular, a change to Rule 44 means that the relevant person must be given a copy of any court order relating to a decision that affects them (other than case management decisions).  The existing rules (rule 46) already stated that they must be notified in ‘a way that is appropriate to P’s circumstances (for example, using simple language, visual aids or any other appropriate means)’, but the amendments mean that whoever effects that notification will now need to explain (in the certificate of notification) ‘the  steps  taken  to  enable  P  to understand, and the extent to which P appears to have understood, the information’ (Rule 48, as amended).  The purpose of this is not spelled out in the Explanatory Memorandum, but I expect it is to provide a further safeguard to ensure that when the relevant person is notified it is done so in a way that maximises their opportunities to understand decisions that affect them and potentially to appeal against them.  I’m still not sure how effective the rules are in relation to the latter, as I can’t see any requirement to assist the person in appealing or securing legal representation to do so, but this is a step in the right direction.

Another interesting change is to the court’s power to control evidence.  Rule 95 has been amended to allow the Court of Protection to ‘admit, accept and act upon such information, whether oral or written, from P, any protected party or any person who lacks competence to give evidence, as the court considers sufficient, although not given on oath and whether or not it would be admissible in a court of law apart from this rule.’  In general in the courts, a person can only give evidence on oath, and they need to be ‘competent’ in order to do so.  Clearly this presents a problem in the Court of Protection, where many people who are subject to the jurisdiction may not satisfy the competence tests for giving evidence on oath.  This sits in tension with European human rights jurisprudence which says that judges must meet with the relevant person to form their own view of them and the proportionality of any measures in relation to them.  If the person cannot given evidence on oath, what is the evidential status of that encounter?  This rule change seems to be designed to offer some clarity as to the acceptability of ‘information’ gleaned from the person in other ways than under oath.  There are probably still issues to be thrashed out about how that ‘information’ should be gathered, in order to give other parties an opportunity to scrutinise and potentially to raise concerns or objections, but I presume that will be addressed by a Practice Direction.

The amendments have also replaced Part 17 of the Court of Protection Rules, which governs the appointment of litigation friends, in its entirety.  Having a litigation friend, who acts in your best interests and may not argue for the outcome you prefer, can have huge consequences for how your case proceeds and its ultimate outcome, and I think this is an issue we need to think very carefully about.  Under the old rules on litigation friends, there were some provisions that sat very uncomfortably with human rights jurisprudence on legal capacity and indeed the ethos of the MCA.    For example, the existing rules effectively presumed that the relevant person would need a litigation friend (see Rule 141(1) and Rule 146(b), before amendments).  The Court of Protection still required evidence to appoint them, but this was still a strange provision that ran contrary to the presumption of mental capacity under the MCA.  This appears to have vanished, to be replaced by Rule 3A(4) which states that:

(4) Unless P has capacity to conduct the proceedings, an order joining P as a party shall only take effect—

(a)  on the appointment of a litigation friend on P’s behalf; or

(b)  if  the  court  so  directs,  on  or  after  the  appointment  of  an  accredited  legal representative.

Under the existing practice direction on litigation friends (17A) a person who had a litigation friend but who wished to terminate their appointment, for example because they felt they had the mental capacity to instruct their own legal representatives, had to support their application with evidence (see paragraph 16).  This was problematic, as it placed the burden on the person asserting that they had mental capacity to provide evidence to support that, rather than the person arguing that they lacked capacity.  Not only was this contrary to the ethos of the MCA’s presumption of capacity, this also presents quite serious practical challenges in terms of securing medical evidence to this effect.  This rule has gone, and presumably the Practice Direction will shortly be replaced as well.

Other changes

The amendments bring in a wide range of other important amendments, including changes to the structure of appeals, the removal of the need to seek permission for applications to authorise a deprivation of liberty or to appeal against a committal decision, and a new requirement to seek permission to withdraw a case.   There are also new rules on costs and cross-border procedures and a range of other procedural matters.  I’m not going to discuss these in any detail, but I’m sure Alex Ruck Keene will do so in due course, so keep your eye on his blog!

The amended rules come into force in two tranches – some (including new rule 3A on participation) come into force on April 6^th; the rest on July 1^st.  Presumably new Practice Directions giving guidance on these rules will follow, so keep your eyes peeled…

* I say ‘simply’, but you’d still probably need additional authorisation from the Ministry of Justice Data Access Panel (and the Judicial Office if it involves speaking to judges), your university Research Ethics Committee and quite possibly also a statutory Research Ethics Committee that can approve research on people who may lack the mental capacity to consent… so there’s still enough paperwork and oversight in there to make the DoLS look like light touch regulation, but still, this is a massive breakthrough!