Welfare cases in the Court of Protection: the real story

Once again we are all indebted to Cardiff Law School for further research about the use of the Court of Protection in welfare cases.   Their full report can be found here, and the executive summary here.

We hope you will find time to read the report but set out below the authors’ key findings:

• Unlike its predecessor jurisdiction in the Family Division of the High Court, the work of the CoP leans more strongly towards social welfare questions such as where a person lives and how they are cared for than medical treatment. Local authorities are now the main users of the CoP’s welfare jurisdiction – they are involved more frequently in CoP litigation than NHS organisations.
• Cases about relationships – who a person has contact with, and whether they have the mental capacity to consent to sex or marriage – are among the most complex in the CoP’s jurisdiction.  They typically involve more parties and hearings, take longer and cost more than other kinds of case.
• The team estimate that a typical welfare case in the CoP can cost local authorities around £13,000, but found examples of cases costing considerably more than this. The cost to public authorities of welfare litigation in the CoP may have a chilling effect on their willingness to refer disputes to court where appropriate. For P and families who do not qualify for legal aid, the cost of litigation may be a major barrier to accessing justice.
• The team found little evidence that P or families were using the CoP’s main personal welfare jurisdiction to challenge decisions made under the MCA; in our sample it served primarily as a vehicle for public bodies to seek authorisation for best interests decisions. However, the procedure for asking the court to review a deprivation of liberty safeguards authorisation provided a vehicle for P and others to challenge assessments that they lacked mental capacity, or best interests decisions, about a wide range of matters including: disputes about serious medical treatment, contact with friends or family, and consent to sex or marriage. They raise concerns that recent rulings by the Court of Appeal may close down the only realistically available route into the CoP’s welfare jurisdiction for these fundamental human rights matters.
• The team found few indications that P was routinely participating in CoP welfare proceedings. They hope that following the introduction of new rules on participation this picture has changed since their research took place.

[With thanks to Sophy Miles, my co-author on the Court of Protection Handbook, for the original post on this subject on the Handbook website].