15.64If the judgment has been circulated in draft ahead of it being handed down, the judge will expect that the parties will have tried to agree the terms of that order. If the judgment has been given orally, and if the order records anything more than a simple decision/declaration, then it may well prove difficult for all the details of the order made to be finalised at the end of what is likely to have been a long court day. For similar reasons as discussed at para 10.55 above in relation to directions hearings, however, every effort should be made to ensure that the broad outlines of the order have been agreed and (if possible) endorsed by the judge before the parties leave for the day to avoid lengthy – and expensive – debates in the ensuing days via correspondence as to the terms of the order.

15.65One oddity of proceedings under the MCA 2005 is that it is far from unusual that an order made at what all parties and the court treat as final hearing will not, in fact, be a final order. A good example of this is where the court has, itself, authorised the deprivation of P’s liberty (for instance, because P is deprived of their liberty in supported accommodation, so cannot be made the subject of the DOLS regime discussed in chapter 21 below). In such a case, it is necessary in order to secure P’s rights under Article 5 ECHR (right to liberty) that the court undertakes regular reviews of that deprivation.1Cheshire West and Chester Council v P [2011] EWCA Civ 1257, [2012] COPLR 37, (2012) 15 CCLR 48 at para 4 per Munby LJ. This aspect of the judgment of the Court of Appeal was not contested before the Supreme Court on the Official Solicitor’s (successful) appeal against the decision. In such cases, particular care needs to be paid to the way in which the order made at the hearing provides for the payment of the costs of any publicly funded party so as to ensure that such funding is readily available for purposes of any further review by the court.

15.66A final point should be made here. In many cases, the court will be asked to take a one-off decision on P’s behalf. In other cases, the court will be asked to make a declaration under MCA 2005 s15 as to P’s capacity in respect of a particular decision, or to decide on P’s behalf (for instance) where to live. It is quite possible that circumstances will change after the hearing, however, such that P’s best interests may dictate a different course of action. The question that arises immediately in this regard is whether it is necessary to return the matter to court, or whether the parties to the proceedings are bound by the declaration(s) contained in the final order.

15.67Although the question has not yet come before the courts to be determined (at least in any recorded cases), it is suggested that, by analogy with the position that prevails in respect of decisions taken by mental health tribunals, the parties must consider themselves bound by the decision unless they reasonably and in good faith consider that they have information unknown to the court ‘which put a significantly differently complexion on the case as compared with that before the [court]’.2R (von Brandenburg) v East London and City NHS Trust [2004] 2 AC 280, (2004) 7 CCLR 121 at para 10 per Lord Bingham. If there has not been such a material change of circumstances, but the circumstances are such that they nonetheless require revisiting by the court then, depending upon the length of time since the original proceedings were concluded (and especially if all questions relating to costs have been resolved), it may be necessary for a fresh application to be made. If a fresh application has to be made, then it would be prudent for the applicant to make clear that the proceedings were previously before the court and to seek an order at the first directions hearing that (if the court bundle from the previous proceedings is still in readily accessible form and remains relevant) that the documents contained in the bundle stand as evidence in the new proceedings, so as to ensure that all relevant materials are before the court in the new proceedings.

15.68The position where P regains capacity after the proceedings have come to an end is covered by PD 23B (primarily concerned with property and affairs). Where P ceases to lack capacity after proceedings have concluded, an application may be made to the court to discharge any orders made (including an order appointing a deputy or an order in relation to a security bond) by filing a COP9 application notice, together with any evidence in support of the application. The application notice should set out details of the order or orders the applicant seeks to have discharged, and should in particular be supported by evidence that P no longer lacks capacity to make decisions in relation to the matter or matters to which the proceedings relate.3PD 23B para 5. Note that if the Court Funds Office is holding funds or assets on behalf of P, it will require an order of the court to the effect that P no longer lacks capacity to make decisions with regard to the use and disposition of those funds or assets before any funds or assets can be transferred to him.4PD 23B para 6.