Urgent Applications in the Court of Protection

  • Authors : Her Honour Nazreen Pearce, District Judge Sue Jackson
  • Review Author : Moira Sofaer
  • Date : September 2010
Moira Sofaer is a Barrister at 1 Mitre Court Buildings

E mergencies requiring an immediate application present special difficulties in the Court of Protection (CoP). Critical situations can occur suddenly with a person who lacks capacity (P). Due to the CoP being such a recent invention, professionals can feel out of their depth because of lack of experience with its procedures and requirements.

The aim of the book is to provide an easy to follow guide to most of the issues likely to arise. It is aimed to provide a detailed guide of the law, procedures and remedies for lawyers, local and health authorities, NHS trusts and concerned family members. The format for each topic is to set out the law, both statute and code of practice, cases are then used to demonstrate how courts apply the law. This assists in deciding whether court intervention is necessary. Checklists and procedure are then set out in a table guide. How to obtain interim measures by telephone, before issuing, and without a hearing or on short notice on filed documents is explained, with 24 hour telephone numbers.

As the documents to be filed with applications require draft orders and supporting statements, the precedents for them are invaluable. DJ Susan Jackson is a nominated judge in the CoP well placed to assist those who are not familiar with what the court needs, and are working under the stress of a sudden crisis. It maximises the chances of quickly getting the action needed.

Once the interim order is obtained, the guide reverts to the ordinary procedure. The writing style is easy to understand and there is enough information for an advisor to obtain an exparte interim order or injunction without having to search for additional material.

The first part is a short introduction dealing with the general principles of the Mental Capacity Act 2005 (MCA). It will be familiar to the STEP practitioner and simple to understand for trainees and healthcare professionals.

The second part covers personal welfare and deprivation of liberty decisions. It is the core, running to nearly two-thirds of the text, and it is particularly useful as it is the new area of alternative decision making introduced by the MCA. It starts with residence, contact and sexual relations issues, including the capacity to marry, with previous cases making interesting reading. Precedents for interim orders include details about interim arrangements for example conditions of contact, or where and with who P is to live, the types of decisions carers can make, and how they may deprive P of liberty. Directions for expert evidence and disclosure are useful and highlight the agreed and contentious areas. This would be the main problem area for private practitioners.

Deprivation of liberty (DoL) by supervisory bodies of hospitals and care homes and safeguards to ensure it is lawful are outlined in the next section The Mental Health Act 2007 (MHA) and decided cases are set out to provide a guide as to when authorisation is needed. Cases provide an insight as to whether P or P’s representatives should challenge DoL in the CoP. The special fast track system is explained, the special forms required for DoL and sample draft orders are printed out. As wrongful detention gives rise to compensation claims and misguided applications wasted costs, this is invaluable.

Applications relating to medical treatment are interesting, but unlikely to occur for private client advisors. The section on urgent medical treatment and doubts about P’s capacity outlines cases where P’s condition of and treatment required directly affect P’s mental capacity. P’s objections based on phobias, fear, panic, anxiety, pain, drug abuse and religious beliefs are explored. Serious medical treatment is contrasted, beginning with a definition and the validity of P’s advance decision to refuse life-sustaining care, which might have to be determined by the CoP. Precedents cover an injunction to protect P’s privacy, to withhold life sustaining treatment and not to resuscitate.

Part three concentrates on property and affairs. It deals with the suspension and removal of deputies which becomes urgent if there is misappropriation of P’s property or mismanaging P’s affairs. Precedents are given of an order to discharge a deputy with a statement is support and to appoint a new deputy Revocation of the appointment of attorneys under lasting power of attorneys deals with when a crisis might arise due to problems with the attorney and provides a draft order and statement in support.

Part four outlines how to get freezing orders and injunctions to protect P’s property and affairs. The type of evidence and identity of appropriate witnesses is demonstrated by different case scenarios and examples of injunctive relief that can be granted. Committal applications for non-compliance with court orders are covered; service, the prescribed forms and contents of the affidavit in support are explained.

This is a user-friendly, concise and comprehensive handbook with an index that is simple to use. The text is straightforward and the precedents can be adapted without much effort to the specific facts of common dilemmas.

Rushing to the CoP is daunting as it is a new entity. Obtaining the right order rapidly and without stress is the real advantage of this publication.

ISBN: 978 1 84661 2152
Price: GBP75
Publisher: Jordans (March 2010)

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