As I noted this morning, the President and Vice-President of the Court of Protection, Sir James Munby and Mr Justice Charles respectively, gave evidence to the Justice Committee today in relation to the operation of the Court of Protection. The oral evidence session itself made very interesting viewing (putting blushes to one side at the paean of praise for our Newsletter given by the President); almost equally interesting was the written documentation that has just been put up on the Justice Select Committee’s website in relation to the session. I summarise below this documentation here as much of has not (as far as I know) been seen previously, before turning to the oral evidence given, and, finally commenting upon the way forward as I see it.
As the opening letter from the Rt Hon Sir Alan Beith MP to Chris Grayling notes, the MOJ had sent to the Committee a memorandum in October 2010 giving its post-legislative post-legislative assessment of the operation of the MCA 2005. The Committee used this memorandum as the basis for an oral evidence session it conducted in November 2010 with the Public Guardian and the Director of the Royal Courts of Justice Group within HMCTS. This session covered a number of matters to do with the operation of the Court of Protection as established under the 2005 Act, in particular relating to (1) the efficiency and effectiveness of the Court in dealing with its workload, including the adequacy of its judicial and administrative capacity and the appropriateness of its procedures; and (2) the openness of the court, including the scope for opening its proceedings and judgments more to the public and the press while protecting the interests of parties to those proceedings. The Justice Committee did not go on to produce a report on the Court or the operation of the Mental Capacity Act more widely at that time, but continued to maintain a watching brief. As Sir Alan Beith noted “you will be aware that the operation of the Court is a matter of recurrent and sometimes acute concern for the public and the media.”
The Committee therefore asked for an updating memorandum from the MOJ, which it received in September 2013. Key points in that document included:
(1) Discussion of the implementation of recommendation 5 of the ad hoc Committee established to review the COPR, i.e. the creation of authorised court officers empowered to make certain decisions relating to property and affairs applications;
(2) A clear indication that the MOJ was not – at that time – minded to implement the other substantive changes recommended by the Committee because: “[t]he changes would require a major overhaul of the rules and have not yet been taken forward because of competing priorities, in particular the work on digitisation of services to support the transformation of the Office of the Public Guardian. In the absence of wholesale changes to rules, the court management has worked with the judiciary and its stakeholders on a wide variety of other improvements that can be delivered without the need for legislative change” (paragraph 14). Further on, the MOJ suggested that “[m]any of [the] issues [identified by the committee] have been addressed by re engineering business processes within. the court administration, by making improvements to guidance, and by working with stakeholders to make the court more accessible” (paragraph 33).
(3) Information about the steps taken to improve the administration of the Court of Protection, in particular through the implementation of ‘lean’ continuous improvement methods, steps which enabled (the MOJ considered) the court to “absorb the loss of 35 full time staff since April 2010”
(4) Information regarding steps taken to improve transparency and the publication of judgments (including note of both Mental Health Law Online and our newsletter. The MOJ acknowledged, however, that “the level [of] knowledge and awareness about accessing the Court of Protection for personal welfare and deprivation of liberty applications is not as well embedded, particularly as these applications represent only a small proportion of the Court of Protection’s total workload” (paragraph 28);
(5) Steps taken to overcome two “technical difficulties with the Mental Capacity Act as drafted” identified in the October 2010 memorandum. The first was remedying – in the Crime and Courts Act 2013 – the anomaly that Deputy District Judges could not hear cases relating to the MCA 2005; the second was overcoming by way of a memorandum of understanding between the OPG and the CoP in relation to the sharing of information where objections to registration of an EPA have been received.
The Committee also sought information to enable it to asses the impact of the guidance issued in May 2013 (in response to the Wanda Maddocks case) in relation to the holding of hearings in relation to contempt of court. The Committee suggested to the MOJ that they reintroduce the separate category of those imprisoned for contempt of court into the Offender Management Statistics. The MOJ by letter dated 19 November 2013 indicated that they had already planned to reintroduce this category, and noted that, in 2012, there were 131 people received into prison for contempt of court.
The Committee also sought, in November 2013, information from HMCTS in relation to:
(1) The Official Solicitor’s current position in relation to the resources available to the Official Solicitor to take on Court of Protection cases, and the HMCTS’s assessment of the implications; and
(2) John Hemming MP’s early day motion on 24 June 2013 which referred to a “lack of scrutiny” of out-of-hours applications to the Court of Protection and called for the maintenance of statistics as to the number of out-of-hours applications and their outcomes.
By letter dated 19 November 2013, HMCTS responded as follows:
(1) that the current position of the Official Solicitor in respect of his acceptance of Court of Protection welfare cases is that the waiting list has been eliminated as from October 2013. In cases where the Official Solicitor has been invited to act as litigation friend and where his acceptance criteria have been met (as to last resort and funding), he aims to allocate cases to a litigation case manager within two to four weeks of such criteria having been met.
(2) the collection of data sought by John Hemming MP would incur a disproportionate cost.
In a very interesting memorandum submitted jointly by Sir James Munby P and Mr Justice Charles in advance of the oral evidence session, the following key points are made:
(1) Confirmation of the point made recently in ACCG that the jurisdiction of the CoP “is conferred by statute and the court does not have an inherent jurisdiction or an administrative law jurisdiction. So it has no jurisdiction over a vulnerable adult who has the relevant capacity and, subject to some arguments under the Human Rights Act, no power to overturn or declare unlawful decisions of public authorities concerning the provision of care or support on administrative law (judicial review) grounds” (paragraph 3)
(2) There are “significant differences” between the issues that arise in the two types of work undertaken by the CoP (i.e. health and welfare/property and affairs) “The policy directive at the time the CoP Rules were drafted was that one process should fit all. As identified by the ad hoc Rules Committee this caused, and is still causing, problems” (paragraph 8)
(3) “In his first report to the President and Vice President in November 2011, the Judge in Charge recommended that as a matter of urgency a process for the transfer of cases to High Court Judges and to judges on the circuits be agreed and implemented. He reported that this recommendation related to the issues about which he had heard the most complaints. Since then attempts have been made to achieve this but they have not succeeded… There can be no doubt that ad hoc arrangements for transfer are unsatisfactory and are causing problems and justifiable annoyance to litigants, practitioners, judges and court staff” (paragraphs 12-3)
(4) the two main problems relating to the day to day performance of the CoP are the long running problems relating to the failure to make amendments to the CoP Rules and to introduce a process for transfer of cases to the circuits. “The solution to these problems is not in the hands of the CoP” (paragraph 14)
(5) In the context of revisions to the COPR previously recommended, “Issues relating to the appointment of a litigation friend, the representation of P and obtaining the views of P also need to be addressed in the context of amongst other things the resource and other difficulties faced by the Official Solicitor. New provisions need to be introduced relating to costs, to appeals to address the wider pool of judges who can now be nominated to sit and the disclosure of documents to defined people for defined purposes e.g. to researchers, regulators etc. The balance between the provision of a quick, convenient and inexpensive procedure for the honest and checks and balances and the provision of security to guard against the dishonest needs regular review” (paragraph 24).
(6) in relation to the changes made in relation to transparency:
“29. There are strongly held views on both sides of the debate on whether the default position should be that hearings are in private or in public and if in public what the general position should be on what can be reported and so on what restrictions on reporting should generally be imposed.
30. There is much to be said for there being general consistency between the Rules of the two courts. But there are differences between the arguments on the underlying issues. They flow from differences between the relevant factors concerning persons who lack capacity and children and so their respective families and carers. These differences and issues relating to size and resource could lead to the CoP taking a different course to the Family courts on the default position, or to the CoP holding a greater percentage of its hearings in open court.
31. The differences have founded a slightly different and wider approach being taken in respect of the CoP in the Guidance given by the President of the CoP and the Family Division on the reporting of judgments in the Family courts and the CoP (see  1 WLR 230 and 235) […]. As can be seen from a comparison of the two, the CoP Guidance includes some cases relating to property and affairs, and for clarity includes the Senior Judge (who is treated for all purposes as if he were a circuit judge) and has a different provision on costs.”
(7) Finally, in relation to steps being taken to address the two main problems identified above and transparency:
“39. Following his appointment in January 2014 the Vice President, with the full support of the President, had a helpful meeting with HMCTS and MoJ officials to discuss Rule change and transfer to the circuits. These issues are being addressed again and, hopefully, progress will be made in the near future. If not, the CoP will continue to do what it can to try to overcome these problems and the difficulties they cause.
40. The President’s Guidance on the reporting of judgments sets out that he is adopting an incremental approach. If resource is provided to consider and to make changes to the CoP Rules, this exercise would provide an appropriate vehicle to further that approach. Nominated judges have been, and will continue to be, encouraged to report more judgments and to consider under the existing CoP Rules whether there is “good reason” to depart from the default position of the hearing being in private and duly accredited members of the media being excluded from it.“
The oral evidence session
In the oral evidence session, Sir James Munby P and Mr Justice Charles elaborated upon the points made in their written memorandum. The transcript of their evidence will be on the Parliament website in due course, but from my review of their evidence today, the following key points emerged in amplification of the written evidence:
(1) In relation to transparency, Sir James Munby indicated that he considered that there had already been an impact as a result of the publication of his guidance in terms of the number of judgments published on Bailii and also the number of stories in the media relating to cases before the CoP. He indicated that he proposes to issue in the next month for discussion and consultation a draft document identifying categories of cases in which subject to suitable restrictions and protections, documents could be made available to the media. He also contemplates that the categories of judgment which must rather than may be published may be extended (subject always to the particular circumstances of the case dictating a different outcome), as well as including the judgments of District Judges within the scope of the guidance. He noted, though, that there will come a point in implementing his transparency agenda when he will come up against the Rules, and in particular the default position (unlike in family cases after the changes brought about by the FPR 2010) that there is no right of media access. He expressed his ‘continuing concern’ (in his words, “a diplomatic phrase” at the fact that the need for changes in rules identified as long ago as 2010 had thus far fallen on deaf ears;
(2) Charles J indicated that he did not think that there was much scope for giving further work to authorised court officers. In relation to the regionalisation agenda, it appears that there may very recently have been progress (whether or not related to the hearing before the Justice Committee), such that the necessary actions required to bring about effective transfers of cases out of London should be able to be implemented by the end of May;
(3) In relation to the position of the Official Solicitor, Sir James Munby P suggested that the Justice Committee might wish to care to probe the Official Solicitor as to the allocation of his resources between his different functions, in particular between the balance of resources dedicated to those cases involving children in which he was appointed to act as litigation friend for a parent, and welfare cases before the Court of Protection;
(4) Both the President and Vice-President indicated a degree of scepticism that it would be possible for increased use of mediation (which both of them indicated that they saw as valuable in the right case) significantly to reduce the case-load of the Court of Protection;
(5) As regards the dissemination of information relating to the Court, both indicated a degree of dissatisfaction with the use of the gov.uk portal as a route. As noted above, Sir James Munby P gave an (unsolicited) endorsement of the utility of our newsletters as a service for professionals, but indicated that the much bigger problem was engaging the public at large.
(6) Both judges declined to answer substantive questions relating to the impact of legal aid which were, as the President noted, matters of policy of considerable controversy, but noted that there were cases in which – on the facts of those cases – judicial comment had been made as to the non-availability of legal aid (for example Re UF).
The evidence given to the Committee and summarised above is very important, and will, I hope be read alongside the strong recommendations of the House of Lords Select Committee. In particular, I would want to draw attention to the fact that the failure to implement all but one of the recommendations of the ad hoc Rules Committee is causing real problems; there are also now further changes which are required to reflect the fact that the world has moved since 2010 – not least in terms of the introduction of the Family Procedure Rules 2010. These rules set in place a very clear forensic framework for the determination of cases involving children which is, in many ways, a much better model for the determination of cases involving – in particular – the health and welfare of incapacitated adults than is the CPR upon which the COPR were in significant part modelled. Interested readers are invited to read this document here for my further views in relation to reforms required that are additional to those previously proposed.
I would want to make very clear, though, that I am not saying either that the CoP should be folded into the Family Division or that incapacitated adults are to be equated with ‘big children.’ Very far from it – the law that Court of Protection judges have to apply and the factors to take into account when considering what substantive decision to take upon an application relating to an incapacitated adult is – and should be – very different from the law and factors that apply in relation to a child. However, the forensic processes in both types of proceedings are – I suggest – very similar, and for very good reason: they are above all designed to ensure that, as best as possible, a judge is put in a position to take the decision that is right for a person who is not a full player in the proceedings but their subject. In this regard, I would like to think that I am in good company – see, in particular, the very recent article by Baker J ‘Reforming the Court of Protection: lessons to be learned from the Family Justice Reforms’  4 Elder Law Journal 1, 45-50.