Where to find the law and guidance(reproduced in full in appendix A)Court of Protection:relevant law and guidanceCourt of Protection:law and guidanceCourt of ProtectionCourt of Protection:relevant law and guidanceCourt of Protection:law and guidanceCourt of ProtectionCourt of Protection:relevant law and guidanceCourt of Protection:primary legislationCourt of Protection:law and guidanceCourt of Protection(reproduced in full in appendix A)Court of Protection:secondary legislationCourt of Protection:rulesCourt of Protection:relevant law and guidanceCourt of Protection:regulationsCourt of Protection:primary legislationCourt of Protection:ordersCourt of Protection:law and guidanceCourt of ProtectionCourt of Protection:relevant law and guidanceCourt of Protection:practice guidanceCourt of Protection:practice directionsCourt of Protection:law and guidanceCourt of Protection:codes of practiceCourt of ProtectionLaw reportsCourt of Protection:relevant law and guidanceCourt of Protection:law and guidanceCourt of Protection:case-lawCourt of ProtectionLaw reportsCourt of Protection:relevant law and guidanceCourt of Protection:law and guidanceCourt of Protection:case-lawCourt of ProtectionLaw reportsCourt of Protection:relevant law and guidanceCourt of Protection:law and guidanceCourt of Protection:case-lawCourt of ProtectionCourt of Protection:relevant law and guidanceCourt of Protection:legal textbook opinionCourt of Protection:law and guidanceCourt of ProtectionCourt of Protection:relevant law and guidanceCourt of Protection:law and guidanceCourt of Protection:European Convention on Human RightsCourt of Protection(reproduced in full in appendix A):Part 1(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:Court of Protection, andCourt of Protection:relevant law and guidanceCourt of Protection:Mental Capacity Act 2005, andCourt of Protection:law and guidanceCourt of Protection(reproduced in full in appendix A)Court of Protection:rulesCourt of Protection:relevant law and guidanceCourt of Protection:regulationsCourt of Protection:practice guidanceCourt of Protection:practice directionsCourt of Protection:ordersCourt of Protection:law and guidanceCourt of Protection:codes of practiceCourt of ProtectionPractice Guidance:Committal for Contempt of Court (March 2015) Lord Chief Justice’s Practice Direction: Committal for Contempt of CourtCodes of Practice:Mental Capacity Act 2005 Code of Practice (2007)Codes of Practice:Deprivation of Liberty Safeguards (DOLS) Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice (2008)TextbooksCourt of Protection:textbooksCourt of Protection:relevant law and guidanceCourt of Protection:law and guidanceCourt of ProtectionEuropean Convention on Human Rights:Court of Protection, andCourt of Protection:relevant law and guidanceCourt of Protection:law and guidanceCourt of Protection:European Convention on Human RightsCourt of ProtectionEuropean Convention on Human Rights:Court of Protection, andCourt of Protection:relevant law and guidanceCourt of Protection:law and guidanceCourt of Protection:European Convention on Human RightsCourt of ProtectionEuropean Convention on Human Rights:Court of Protection, andCourt of Protection:relevant law and guidanceCourt of Protection:law and guidanceCourt of Protection:European Convention on Human RightsCourt of ProtectionEuropean Convention on Human Rights:Court of Protection, andCourt of Protection:relevant law and guidanceCourt of Protection:law and guidanceCourt of Protection:European Convention on Human RightsCourt of Protection
4.26The relevant law and guidance is found in several places:
•Primary legislation: the Mental Capacity Act 2005;
•Secondary legislation: orders, rules and regulations made under the authority of the Act;
•Practice Directions, Practice Guidance and Codes of Practice;
•Case-law decisions of judges;
•European Convention on Human Rights; and
•Textbooks and textbook opinion.
4.27The precise legal status of these different documents is not always easy to discern. However, the following brief points may help non-lawyers unfamiliar with the various documents and how to refer to them.
4.28Acts of Parliament (‘primary legislation’) are divided into sections (s), subsections (subs), paragraphs (para) and subparagraphs (subpara). If a document refers to MCA 2005 s22(3)(a)(i), this is a reference to subparagraph (i) of paragraph (a) of subsection (3) of section 22 of the Act.
4.29Primary legislation takes precedence over ‘secondary legislation’, that is over orders, rules and regulations made by the Lord Chancellor or by some other minister with Parliament’s permission, ie under the authority of an Act of Parliament.
•The term ‘rules’ is used for secondary legislation which is concerned with court procedures, eg the COPR. A set of rules is divided into rules (r), paragraphs (paras) and sub-paragraphs (sub-para). Thus, COPR r5(2)(b) refers to sub-paragraph (b) of paragraph (2) of rule 5 of those rules.
•The term ‘regulations’ is used for secondary legislation that relates to non-court executive procedures, eg the procedures of the Public Guardian. A set of regulations is divided into regulations (reg), paragraphs (para) and sub-paragraphs (sub-para).
•The term ‘order’ has no single meaning. In relation to the MCA 2005, it is used for secondary legislation that deals with matters directly relating to the Act’s implementation, such as transitional arrangements, consequential provisions and prescribed fees. An order is divided into articles (art), paragraphs (para) and sub-paragraphs (sub-para).
4.30In recent times, primary and secondary legislation has been augmented by a proliferation of codes of practice, practice directions and practice guidance:
•Practice directions: MCA 2005 s52 provides that the President of the Court of Protection may, with the concurrence of the Lord Chancellor, give directions ‘as to the practice and procedure of the court’. Such directions may not be given by anyone else (for example, by the Vice-President or Senior Judge) without the approval of the President of the Court of Protection and the Lord Chancellor.
•The court in
Bovale Ltd v Secretary of State for Communities and Local Government1[2009] EWCA Civ 171, [2009] 1 WLR 2274. considered the status of practice directions and the circumstances in which a judge may depart from them. The issue of a practice direction is the exercise of an inherent power of the court even when made under statutory authority. However, this does not mean that a judge dealing with an application can simply vary practice directions or alter rules with general effect; they are binding on her/him. In particular, a judge’s wide case-management powers in individual cases cannot be construed ‘as giving the power to individual judges or any court simply to vary the rules or practice directions generally’ (
Bovale, para 26). If there is a gap in the rules and practice directions, there is no impediment to a court making the order that is most appropriate to the case before it under its case management powers, or prescribing or suggesting a procedure which should be followed.
•Practice guidance: MCA 2005 s52(3) expressly states that providing for practice directions in this way does not prevent the President of the Court of Protection without the concurrence of the Lord Chancellor giving directions which ‘contain guidance as to law or making judicial decisions’.
•Codes of Practice: the two codes do not have statutory force, but professionals and some carers must have regard to their provisions, and the courts must take them into account where relevant.
4.31Case-law: judges’ decisions that settle or interpret significant points of law – for example, the precise meaning of a section of the Act – may be ‘reported’, that is published, in one of three historic series of law reports. These are the Official Law Reports; the Weekly Law Reports (WLR); and the All England Reports (All ER). The former should be referred to (‘cited’) in court if the case is reported in it.
4.32Transcripts of ‘unreported’ judgments often appear on the website of the British and Irish Legal Information Institute (Bailii).
2See: www.bailii.org. These transcripts have an uncertain status. They should not usually be cited unless they contain a relevant statement of legal principle not found in reported authority.
3PD of 24 March 2012: Citation of authorities para 10. Many such decisions are simply illustrative of how the law was applied in a novel legal situation or one of obvious public interest. Most often, they are aids to understanding the law and its application rather than legal precedents.
4.33Many new series of law reports have been established in recent years, the most important of which in this context are Jordan’s Court of Protection Law Reports.
4See also Community Care Law Reports published by LAG covering a significant number of Court of Protection cases. In practice, they are considered to be wholly reliable, and so are relied upon by the court.
4.34Legal textbook opinion may be quoted if it is likely to assist the court as to the meaning of a disputed or difficult legal provision.
4.35The European Convention on Human Rights (ECHR) is essentially a modern-day Magna Carta. So far as is possible, all primary and secondary legislation must be interpreted so as to be compatible with it.
Mental Capacity Act 2005
4.36The MCA 2005 consists of 69 sections in three parts. These sections are followed by nine schedules which deal with legal technicalities and formalities that would clog up and make unreadable the main body of the Act if placed there.
Mental Capacity Act 2005 |
Part of Act | Title | What it includes |
Part 1 | Persons who lack capacity | •Statutory principles •Definitions of incapacity and best interests •Legal protection for professionals and other carers in respect of care and treatment given informally •Payment for necessary goods and services; LPAs •Court declarations and orders •Appointment of deputies by the court •Court’s powers in relation to personal welfare matters, property and financial matters, deprivation of liberty, LPAs and advance decisions to refuse treatment •Research •IMCAs (independent mental capacity advocacy service) |
Part 2 | The Court of Protection and the Public Guardian | •Establishment, jurisdiction and powers of the Court of Protection and the Public Guardian •Court of Protection visitors |
Part 3 | Miscellaneous and general | •Scope of the Act •International protection of adults •Interpretation •Making of rules, regulations and orders |
Schedule 1 | Lasting powers of attorney: formalities | Technicalities and formalities relating to LPAs |
Schedule 2 | Property and affairs: supplementary provisions | Additional provisions relating to matters such as wills and the effect of the court disposing of part of an incapacitated person’s property on the distribution of their estate on their death (either by will or under the intestacy rules) |
Schedule 3 | International protection of adults | The schedule gives effect in England and Wales to the Hague Convention (the Convention on the International Protection of Adults, 2000). See also MCA 2005 s63 |
Schedule 4 | Provisions applying to existing enduring powers of attorney | The MCA 2005 repealed the Enduring Powers of Attorney Act 1985. Its provisions are, however, repeated here because, although no new EPAs may be made, EPAs made before the new Act continue to have effect, may be challenged in court on the old terms, etc. See also MCA 2005 s66 |
Schedule 5 | Transitional provisions and savings | |
Schedule 6 | Minor and consequential amendments | |
Schedule 7 | Repeals | |
Schedule A1 | Hospital and care home residents: deprivation of liberty | These schedules set out the ‘deprivation of liberty’ scheme inserted into the MCA 2005 by the MHA 2007 |
Schedule 1A | Persons ineligible to be deprived of liberty by this Act | |
Rules, practice directions, practice guidance, regulations and orders, and codes
4.37The MCA 2005 provides for issuing rules, regulations and orders, and the publication of codes of practice. The following are some of the most important for court users.
Rules |
COPR 2007 SI No 1744 | These rules govern the procedures of the court. They are somewhat cumbersome: 202 rules in 22 parts, supplemented by 50 practice directions, numerous prescribed forms and where necessary the Civil Procedure Rules 1998 and Family Procedure Rules 2010. |
Practice directions5See: https://courtofprotectionhandbook.com/legislation-codes-of-practice-forms-and-guidance/. |
The practice directions are essentially of two kinds. Some do no more than repeat in plainer English what is said in a part of the rules; others, such as those on the right, are substantive. | •PD 9D – Applications by currently appointed deputies, attorneys and donees in relation to [the person’s] property and affairs |
| •PD 9E – Applications relating to serious medical treatment |
Practice guidance |
Practice guidance | Lord Chief Justice’s Practice Direction: Committal for Contempt of Court – Open Court issued on 26 March 2015 (this applies to a number of courts, including the Court of Protection) 6See: https://www.judiciary.gov.uk/wp-content/uploads/2015/03/practice-direction-committals-for-contempt.pdf. |
Regulations and orders |
Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 SI No 1253 | These regulations deal with matters such as the completion and registration of Lasting Powers of Attorney, the registration of enduring powers of attorney, the reports required of deputies and the registers maintained by the Public Guardian. |
Codes of Practice |
There are separate codes on the MCA 2005 as originally passed and the deprivation of liberty provisions added in 2007. | •Mental Capacity Act 2005: Code of Practice (Department for Constitutional Affairs, 2007) 7See: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/497253/Mental-capacity-act-code-of-practice.pdf. |
| •Deprivation of liberty safeguards: Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice (Ministry of Justice, 2008) 8See: http://webarchive.nationalarchives.gov.uk/20130107105354/http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_087309.pdf. |
Textbooks
4.38The main textbook on court practice and procedure is Jordans’ Court of Protection Practice, a new edition of which appears annually in the spring. The other four standard publications used by practitioners are:
•Court of Protection Law Reports (Jordans), which contain decisions made by senior judges on important legal issues;
•Heywood & Massey: Court of Protection Practice (looseleaf) (Sweet & Maxwell);
•Cretney & Lush on Lasting and Enduring Powers of Attorney (7th ed, Jordans, 2013);
•the monthly Mental capacity law newsletter produced by 39 Essex Chambers (A Ruck Keene, V Butler-Cole, N Allen, A Bicarregui, S Edwards, V Butler-Cole, A Lee (eds)) and published at www.39essex.com, and by (free) subscription by contacting marketing@39essex.com.
European Convention on Human Rights
4.39The HRA 1998 makes it unlawful for a public authority, such as the NHS or a local authority, to act in a way which is incompatible with a convention right unless legislation requires it to act in that way. So far as is possible, all primary and secondary legislation must be interpreted so as to be compatible with the ECHR. If this is impossible, one of the higher courts will make a declaration of incompatibility.
4.40The articles of the ECHR which are most often ‘in play’ in Court of Protection proceedings are Articles 5 (right to liberty and security) and 8 (right to respect for private and family life).
4.41Article 5 is engaged when an incapacitated person is deprived of their liberty. The state is obliged to take effective measures to protect vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge. A proper authorisation or court order is required. The person concerned should have access to a court and the opportunity to be heard in person or, where necessary, through some form of representation.
4.42Article 8 provides a qualified right to respect for one’s private and family life, home and correspondence. Any interference with an incapacitated person’s family or private life must be authorised by law, proportionate (‘necessary in a democratic society’) and for a permitted purpose, eg for the protection of their health. The court should consider the nature and strength of the evidence of any alleged risk of harm and there must be a proper, factual basis for such concerns.