Court of Protection proceduresCourt of Protection:proceduresCourt of ProtectionCourt of Protection:proceduresCourt of ProtectionCase Management PilotApplications in health and welfare cases:Case Management PilotCourt of Protection:proceduresCourt of ProtectionCase Management PilotApplications in health and welfare cases:Case Management PilotCourt of Protection:proceduresCourt of ProtectionCase Management PilotApplications in health and welfare cases:Case Management Pilot(reproduced in full in appendix B):r3Court of Protection:proceduresCourt of Protection:overriding objectiveCourt of Protection(reproduced in full in appendix A):s1Court of Protection:proceduresCourt of Protection:overriding objectiveCourt of Protection(reproduced in full in appendix B):r3Court of Protection:proceduresCourt of Protection:overriding objectiveCourt of ProtectionLitigation friendsCourt of Protection:proceduresCourt of Protection:duty of partiesCourt of ProtectionCourt of Protection:proceduresCourt of Protection:parties to proceedingsCourt of ProtectionCourt of Protection:proceduresCourt of Protection:involvement of person concernedCourt of Protection(reproduced in full in appendix B)Court of Protection:proceduresCourt of Protection:litigation friendsCourt of Protection
4.100The court’s procedures are dealt with in the relevant chapters. However, it is helpful to emphasise the following points by way of general introduction.
Case Management Pilot
4.101It should firstly be noted that a Case Management Pilot came into effect on 1 September 2016, designed to address a perception that (at least some) cases before the court are taking too long to resolve, and too great expense.
1See in particular the comments of the President, Sir James Munby, in Re MN [2015] EWCA Civ 411, [2016] Fam 87 at paras 100–105. The Pilot, which will run until 31 August 2017, sets pathways for health and welfare cases, property and affairs cases, and mixed cases. Not all types of cases are on pathways,
2The exceptions are (a) uncontested applications; (b) applications for statutory wills and gifts; (c) applications made by the Public Guardian; (d) applications relating to serious medical treatment; (e) applications in Form COPDOL10 (ie applications challenging deprivation of liberty authorisations under Schedule A1); and (f) applications in Form DLA (ie so-called Re X applications for judicial authorisation of deprivation of liberty): see further in relation to these last two chapter 21. but for cases which are the Pilot places an obligation on applicants to provide improved analysis of the issues at the start of a case, allowing for more robust case management decisions to be taken at the outset and all issues to be identified at the earliest opportunity in proceedings. It will also seek to encourage early resolution of cases, to reduce the number and length of hearings required in contested cases and to promote judicial continuity.
4.102At the time of writing, it is not clear whether cases that are not on a pathway fall outside the scope of the Pilot altogether. We understand that this was the intention behind the Case Management Pilot, but the wording of the Practice Direction appears to have brought
all applications issued on or after 1 September 2016 within the scope of the Pilot, and therefore to apply to
all cases both the new numbering in Pilots Part 1-5 of the Court of Protection Rules (COPR) and the substantively different obligations imposed under some parts of Pilots Part 1-5 and Pilot Part 15 (relating to expert evidence).
3There is a mismatch between the wording of paras 1.1 and 1.3 of Case Management Pilot PD the former suggesting that the Pilot applies only to cases on a pathway (supported by Para 3.1); the latter suggesting that all cases issued between 1 September 2016 and 31 August 2017 fall within the scope of the Pilot.4.103We anticipate that the issue of whether all cases now fall within the scope of the Pilot will be the subject of a judgment sooner rather than later; news of any such judgment will be provided at www.courtofprotectionhandbook.com. In the interim, we identify in the chapters below the different effect of the rules depending upon whether the case falls within the scope of the Pilot or not. In any event, and as a rule of thumb, we suggest that wherever a stricter obligation is imposed under the Pilot it is advisable to proceed on the basis that this stricter obligation is to be applied even if, strictly, the case falls outside the scope of the Pilot.
The overriding objective
4.104COPR r3 sets out the overriding objective of the rules which is to enable the court to deal with a case justly ‘having regard to the principles contained in the Act’.
4.105The principles contained in the MCA 2005 are those set out in section 1. So, for example, a person should not be held to lack capacity to make litigation decisions merely because they make what others regard as an unwise decision or until all practicable steps to help them litigate their own case have been taken without success.
4.106Where the Case Management Pilot applies, COPR r3 is re-titled COPR Pr1.1, and the overriding objective is modified to make specific reference not just to dealing with the case justly but also to enabling the court to deal with it at proportionate cost. See further chapter 9.
Duty of the parties
4.107COPR r4 (or COPR Pr1.4 where the Case Management Pilot applies) then provides that ‘the parties are required to help the court to further the overriding objective’. Thus, for example, so far as practicable they must help to save litigation expense and deal with the case in ways which are proportionate to the nature, importance and complexity of the issues. In an appropriate case, the penalty for not doing so would be not to allow the party all of their costs in a property and financial affairs case or to require them to contribute to another party’s costs in a case involving, eg health and welfare. This is discussed further in chapter 9.
Who are the parties to the proceedings
4.108Unlike proceedings in other courts, the parties do not define themselves – although they will generally be the applicant(s), any objectors and, in significant personal welfare cases, the person said to be incapacitated. The district judge dealing with a case initially must identify the persons who should be parties and ensure that notice is given to other relevant people to enable them to be joined if they wish.
Involvement of the person concerned
4.109COPR r3A (or COPR Pr1.2 where the Case Management Pilot applies) is concerned with the participation of the relevant person. Having considered the issues raised in the case, whether it is contentious and any response of the person on being notified of the application, the court must always consider making one of a number of directions. These directions are joining the person as a party to the proceedings, appointing an accredited legal representative or non-legal representative for them, arranging for them to have an opportunity to address the judge, giving some other appropriate direction, or (having considered the matter) making no direction at all. In practice, the options available to the judge are often severely limited by the unavailability of legal aid and the financial circumstances of the public authorities and family members involved. A flexible approach is necessary which has regard to the person’s wishes and feelings and seeks to facilitate their attendance and participation in decisions affecting them. Depending on the particular circumstances, this may be achieved by their attendance at hearings; telephone hearings; inviting and considering their letters and written representations; the use of advocates; a visit to the person at their home, hospital or place where they are detained; or by a combination of all of these approaches. See further, in this regard, chapters 10 and 15.
Litigation friends
4.110Because the COPR are based on the Rules of the Supreme Court, rather than the Mental Health Tribunal Rules, they require (at present) the relevant person to have a litigation friend if they are made a party to the proceedings (or intend to be a party) and lack capacity to conduct the proceedings.
4COPR r141(1). This issue is dealt with in chapter 10.