The Court of Protection must not be placed in ‘lockdown’

Key messages from the Vice President.

In his letter dated 4 May 2020, the Vice President of the Court of Protection, Mr Justice Hayden, responds to views expressed that the added pressures on society in the face of the Covid-19 pandemic health crisis must mean a relaxation of the protection of individuals’ rights under the Mental Capacity Act 2005 he says:

“The deprivation of the liberty of any individual in a democratic society, holding fast to the rule of law, will always require appropriate authorisation. Nothing has changed. The Mental Capacity Act 2005, the Court of Protection Rules and the fundamental rights and freedoms which underpin them are indispensable safeguards to the frail and vulnerable.” [emphasis original]

The Vice President has made it clear that any suggestion that the adherence to proper legal process and appropriate authorisation of an individual’s deprivation of liberty may need to take a backseat to other pressing welfare priorities is “…entirely misconceived”.

Mr Justice Hayden confirms that there has been a “…striking and troubling drop in the number of Section 21A (MCA 2005) applications” to the court as well as a “…significant reduction in referrals to advocacy services” during the current crisis.

The Vice President in his correspondence, dated 4 and 11 May 2020, to stakeholders and practitioners alike can be read in full here and here.

We set out some the headline points as follows:

1. The Vice President’s view that individual assessment of capacity can be conducted ‘remotely’ with both competence and fairness in the vast majority of cases with the “key” involvement of carers and an individual’s (P) family.

2. The announcement on 23 March 2020 of the formation of the COP Hive Group where the Vice President refers to the work done by the group so far in summary as follows:

“The group has met three times since its formation, with regular communication between members between meetings.  Its immediate focus was upon developing guidance for remote hearings, promulgated on 31 March 2020; That guidance is being kept under review, mindful of the need to balance the changing demands of the situation with not swamping already overloaded practitioners (and judges) with too many documents. The group has also had sight of, and via the Vice – President, approved the guidance on advocacy at remote hearings prepared by the Court of Protection Bar Association (6 April 2020) reflecting the very specific demands imposed upon both practitioners and the judiciary by the constraints of remote hearings.”

        You can read an earlier article by one of my colleagues’, Katrina McCrory, about the first fully contested remote hearing in which we were involved at the onset of the current crisis.

3. The need for the court to achieve a transparent process while sitting remotely.

4. The need to try to continue to ensure the involvement and participation of P in the court process.

To conclude, I think it is particularly important to refer to the following wording contained in the Vice President’s correspondence when he refers to those who are subject to litigation in the CoP:

“The protection afforded to this group of people by the Mental Capacity Act 2005 is constructed in a way which promotes autonomy, guards liberty and seeks to identify best interests.  It requires to be said, in terms which permit of no ambiguity, that these principles have, if anything, enhanced importance in times of national emergency.” 

Associated Guidance

Guidance from Ms Lorraine Currie, professional lead for Shropshire Council (who is referred to in Mr Justice Hayden’s correspondence) can be accessed follows:

1. Measures to manage DoLS authorisations during Covid-19; and
2. Assessing mental capacity in different ways during Covid-19.  

Additionally the Court of Protection Bar Association guidance on Effective Remote Hearings dated 8 April 2020 can be accessed here.

The healthcare team is extensively involved in CoP proceedings principally acting on behalf of NHS commissioners and both public and private sector providers of health and care  – don’t hesitate to get in touch if we can be of any help or assistance.