Before making an applicationApplications in health and welfare cases:before makingApplications in health and welfare casesCodes of Practice:Mental Capacity Act 2005 Code of Practice (2007):Chapter 15Codes of Practice:Mental Capacity Act 2005 Code of Practice (2007)Applications in health and welfare cases:before makingApplications in health and welfare casesApplications in health and welfare cases:before makingApplications in health and welfare cases
9.2In chapter 5 we consider how to decide when an application is appropriate in the context of P’s health or personal welfare. In chapter 19 we consider mediation and other forms of alternative dispute resolution (ADR). Readers are advised to refer to those chapters before commencing litigation, and should also bear in mind that the Code of Practice anticipates that attempts will be made to resolve disputes outside the court arena in the first instance.
1Mental Capacity Act 2005 Code of Practice chapter 15: www.justice.gov.uk/downloads/protecting-the-vulnerable/mca/mca-code-of-practice-0509.pdf and G v E (Deputyship and Litigation Friend) [2010] EWHC 2512 (COP), (2010) 13 CCLR 610.9.3There are broadly four types of case where a health or welfare application to court will need to be made:
•First, serious medical treatment cases must be brought to court even if there is no dispute. The particular issues arising from medical treatment cases are considered in chapter 22.
•The second type concerns
potentially risky medical or welfare questions, where even if there is no dispute, the implications of the decision are such that the court should be asked to authorise the proposed course of action so as to put the lawfulness of the actions taken in relation to the person beyond doubt.
2Why this is so is discussed in more detail in: Alex Ruck Keene, ‘Powers, defences and the ‘need’ for judicial sanction’ [2016] ELJ 244. •The third is where the court’s authority is needed because P’s care plan deprives him or her of his or her liberty, in a placement which is not a hospital or care home. These cases, and those relating to challenges against authorisations under Schedule A1 to the MCA 2005, are considered in chapter 21.
•The fourth is where there is a genuine dispute.
9.4If one of the parties is a public body, then that body will be expected to take the initiative in bringing the matter before the court.
3Hillingdon LBC v Neary [2011] EWHC 1377 (COP), [2011] COPLR Con Vol 632; also (by way of example of the approach adopted by district judges): The Local Authority v Mrs D and another [2013] EWHC B34 (COP) and Re RR (Costs) [2014] EWCOP 34. See also chapter 5. Parties should be aware that their conduct before proceedings start can be taken into account if the court is considering departing from the general rule in health and welfare cases that the parties should bear their own costs.
4Court of Protection Rules (COPR) 2007 SI No 1744 r159.