Completing the forms and supporting informationPersonal welfare pathwayApplications in health and welfare cases:completing formsApplications in health and welfare casesPersonal welfare pathwayApplications in health and welfare cases:Form COP1Applications in health and welfare cases:completing formsApplications in health and welfare casesPersonal welfare pathwayApplications in health and welfare cases:Form COP1Applications in health and welfare cases:completing formsApplications in health and welfare casesPersonal welfare pathwayApplications in health and welfare cases:Form COP1Applications in health and welfare cases:completing formsApplications in health and welfare casesPersonal welfare pathwayApplications in health and welfare cases:Form COP1Applications in health and welfare cases:completing formsApplications in health and welfare casesPersonal welfare pathwayApplications in health and welfare cases:Form COP1Applications in health and welfare cases:completing formsApplications in health and welfare casesPersonal welfare pathwayApplications in health and welfare cases:Form COP1Applications in health and welfare cases:completing formsApplications in health and welfare cases(reproduced in full in appendix A)Personal welfare pathwayApplications in health and welfare cases:Form COP1Applications in health and welfare cases:completing formsApplications in health and welfare casesPersonal welfare pathwayApplications in health and welfare cases:Form COP1Applications in health and welfare cases:completing formsApplications in health and welfare casesPersonal welfare pathwayApplications in health and welfare cases:Form COP1Applications in health and welfare cases:completing formsApplications in health and welfare casesPersonal welfare pathwayApplications in health and welfare cases:Form COP1Applications in health and welfare cases:completing formsApplications in health and welfare casesPersonal welfare pathwayApplications in health and welfare cases:Form COP1Applications in health and welfare cases:completing formsApplications in health and welfare casesPersonal welfare pathwayApplications in health and welfare cases:Form COP1Applications in health and welfare cases:completing formsApplications in health and welfare casesPersonal welfare pathwayApplications in health and welfare cases:Form COP1Applications in health and welfare cases:completing formsApplications in health and welfare cases(reproduced in full in appendix A)Personal welfare pathwayPermission:test for grantApplications in health and welfare cases:Form COP1Applications in health and welfare cases:completing formsApplications in health and welfare casesPersonal welfare pathwayApplications in health and welfare cases:Form COP1Applications in health and welfare cases:completing formsApplications in health and welfare casesPersonal welfare pathwayApplications in health and welfare cases:Form COP1Applications in health and welfare cases:completing formsApplications in health and welfare cases
9.21COPR Part 9 deals with starting proceedings. Practice Direction (PD) 9A provides guidance as to how to complete the application form (COP1). In addition, the Case Management Pilot PD sets out in para 4.3 a comprehensive list of the information that the applicant must include either within the application itself, or must refer to in the application and which must be filed alongside it. The checklist is designed, in particular, to ensure that such matters as the available options for P are identified as soon as possible. It is therefore advisable to use Case Management Pilot PD para 4.3 as a checklist to ensure that everything the court is likely to need has been included.
Form COP1
9.22This form is not complex. However, the following issues need to be considered with particular care.
9.23Section 4 of the form requires the applicant to set out the order that he or she is asking the court to make. Ideally, pre-issue correspondence and engagement will have helped to narrow the issues. In any event it is helpful to focus here on precisely what the court will need to determine. The more precision that can be brought to bear the better. For cases on the personal welfare pathway, Case Management Pilot PD para 4.3.1(a) requires a draft order or an explanation of the order that is sought.
9.24It is of course essential to draft the form in a balanced manner and not to ask for inappropriately broad orders or powers.
1Hillingdon LBC v Neary [2011] EWHC 1377 (COP), [2011] COPLR Con Vol 632. The application form and the permission form contain a statement of truth, and proceedings for contempt of court may be brought if a person makes a false statement in a document verified by a statement of truth.
2COPR r14. All litigants are ‘required to help the court to further the overriding objective’,
3COPR Pr1.4. as are their lawyers.
4COPR Pr1.5. Solicitors are further subject to the mandatory principles of the Solicitors Regulation Authority (SRA) Code of Conduct to act with integrity and maintain the trust of the public.
5SRA Code of Conduct 2011, Principles 2 and 6.9.25In a complex case, there is no reason why this section cannot be drafted in a separate document to which the COP1 can refer. A useful rule of thumb is to ask whether it will be easier for the judge reading the ‘package’ of materials in the application to understand what is being asked for, and why, by reference to one standalone document, rather than having to navigate between different forms.
9.26Section 5.1 provides that respondents to the application should be listed, together with their relationship to P and full postal address. Individuals listed here will automatically become parties
6COPR r73(1)(b). unless the court orders otherwise. PD 9A requires that the applicant must list as a respondent ‘any person (other than P) whom the applicant reasonably believes to have an interest which means he ought to be heard in relation to the application (as opposed to being notified of it)’.
9.27It may seem anomalous that P does not become a party automatically given that P’s future is at stake in the application. Rule 73(4) provides that P should not be named as a respondent to any proceedings without the leave of the court. COPR r3A/COPR Pr1.2 attempts to offer the court a range of options in ensuring the participation of P and the implications are considered at paras 11.6 onwards. To this end, for cases on the personal welfare pathway, Case Management Pilot PD para 4.3.1(o) requires the applicant to address how it is proposed that P will be involved in every case. It should be noted that P is bound as if P were a party by orders of the court in any event.
7COPR r74(2)(a).9.28Specific issues arise in relation to the ability of P themselves to bring proceedings. The MCA 2005 provides that P can make an application without permission.
8MCA 2005 s50(1)(a). However, if P lacks capacity to conduct the proceedings, they must have a litigation friend.
9COPR Pr1.2.4/COPR 3A(2)(4). It would not be possible, we suggest, for P to bring proceedings by an Accredited Legal Representative because such will only ever be appointed ‘reactively’ by the court. See chapter 11 for a full discussion of the role of litigation friend; this is also considered in the context of applications under MCA 2005 s21A in chapter 21.
9.29Practical difficulties can arise if the adviser has represented P directly – perhaps in a forum such as a mental health tribunal where patients are represented without an intermediary – and an issue has arisen which the adviser reasonably believes requires resolution by the Court of Protection. The Official Solicitor will not normally accept an invitation to act unless proceedings have already started. If P has a family member or friend who might be willing to act as litigation friend, or an advocate who is willing to support P, that individual should be approached. In
Re UF,
10[2013] EWHC 4289 (COP), [2014] COPLR 93. Charles J recognised that it may be necessary for pragmatic reasons for an interim litigation friend to be named in order to commence proceedings, but for the court at a later stage to invite the Official Solicitor to act.
9.30In some cases P may lack capacity to conduct the proceedings, but may have capacity to decide to make the application in the first place. This may allow P to make the application in his/her own right. See para 11.12 for further discussion.
9.31There will be some cases where there really is no individual who is willing to act as litigation friend, even for a limited period. In some cases this may mean that it is not possible to take the matter forward to the court, unless another party – for example, the relevant local authority – can be persuaded to issue proceedings. There may be some cases where the adviser reasonably considers that P’s best interests will be seriously compromised if proceedings cannot be brought. In such cases, which will be rare, we consider the adviser could act as litigation friend, solely in order to bring the case to court. The adviser should prepare a detailed witness statement in which the attempts to locate a suitable litigation friend are described. This is not entirely without precedent, as a solicitor was appointed litigation friend to a protected party whom he knew well.
11Re RGS [2013] EWHC 1417 (COP). Advisers may find it useful to refer to the Law Society’s Practice Note on Meeting the Needs of Vulnerable Clients.
12www.lawsociety.org.uk/support-services/advice/practice-notes/meeting-the-needs-of-vulnerable-clients-july-2015/.9.32In addition to listing respondents, section 5.1 of form COP1 requires the applicant to list the people who will be notified of the application, once it has been issued by the court. PD 9B requires the applicant to try to identify at least three people who have an interest in being notified that the application has been issued.
13PD 9B para 4. Such individuals will have the opportunity of asking to be joined as parties.
14COPR r72(6), (8); PD 9C para 4. They will be bound by the court’s orders as if they were parties.
15COPR r74(2)(b). There is a presumption (which can be displaced) that close members of P’s family will have such an interest and the Practice Direction lists those who should ordinarily be notified, in descending order of closeness to P.
16PD 9B para 7. If someone in that list is not notified, then the reasons must be explained. (For example, P may have several siblings, only one of whom has any contact or involvement with P. There might in that case be good reason not to notify the remaining three.)
9.33In addition to P’s family, the following persons should generally be notified:
17PB 9B para 10.•if P is under 18, anyone with parental responsibility for P;
•any person – including a legal entity such as a trust or local authority – likely to be affected by the outcome of the application;
•a deputy or attorney whose powers relate to the issue involved in the application.
9.34There now no longer being a separate permission form, section 6 of form COP1 deals with the question of permission. This section asks three questions:
1)What is the matter you want the court to decide?
2)Please state the order you are asking the court to make?
3)How would the order benefit the person to whom the application relates?
9.35The test for the grant of permission is not set down either in the Mental Capacity Act (MCA) 2005 or in the COPR. The questions at section 6 reflect the guidance in
NK v VW and others.
18[2012] COPLR 105.9.36There is no requirement to send proposed respondents copies of the application before it is issued, but it is good practice to do so, especially as the proposed parties should have been in correspondence in any event during the pre-issue stage.
9.37Form COP1B requires some additional supporting information. This form is largely self-explanatory.