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23.13It can be seen from the very brief review above that what might be entitled adult protection proceedings before the Court of Protection sit within the broader safeguarding context. It is, however, vitally important to recognise that a decision to instigate proceedings before the Court of Protection is a decision that gives rise to a specific set of obligations upon the applicant – be that a local authority or NHS body – arising from the demands of the court process. These obligations are discussed in greater detail in the main part of this work; of particular relevance is chapter 14, because fact-finding will – often – form an important part of adult protection proceedings.
23.14Perhaps the most important point to emphasise here is that it is inappropriate for Court of Protection proceedings to be used as a ‘voyage of discovery’,
1A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166 at para 38, per Charles J. such that it is important that the applicant is satisfied at the outset that it has a satisfactory evidential basis for any allegations that it advances against those whom it contends have harmed the adult or from whom the adult is at risk. That evidential basis may, in a very urgent case, be limited, but as a general rule, it is clear that a local authority should not embark upon Court of Protection proceedings except on the basis that it is satisfied that it has the evidence that it will need at the final hearing to support factual allegations made against any individuals.
23.15This means that a decision to bring proceedings has to be taken after as rigorous a process as possible in the time allowed (involving senior members of the social work management team and the legal department) so as to ensure that:
•a considered decision is taken as to whether evidence being put before the Court is sufficiently cogent. While the standard of proof before the Court of Protection is the civil standard (see further para 14.20), it is axiomatic that a serious allegation should not be advanced absent proper evidence;
2A Local Authority v HS and others [2013] EWHC 2410 (COP) at paras 184–186, per District Judge Eldergill. This decision does not have precedent value but is cited here as it contains a very detailed discussion of the consequences of a failure to analyse the evidential basis upon which an adult protection application is brought. •the sources of information forming the foundation of the decisions being made are checked so as to allow an assessment to be made about its reliability. ‘The fact that a piece of information has been repeated many times does not enhance its reliability’;
3Surrey CC v M and others [2013] EWHC 2400 (Fam), (2013) 157(32) SJLB 31 at para 77 per Theis J (the comments relate to care proceedings, but are of wider application). •where orders are being sought that interfere with rights under Article 8 ECHR, the picture being put to the court is a balanced one, rather than one presenting solely the negative information or the facts cast only in a negative light;
4Surrey CC v M and others at para 78. and
•proper consideration has been given to whether it is necessary to put the allegations to the alleged abuser before taking steps upon the basis of those allegations. The obligation upon public bodies to treat parties affected by their actions in a just manner is capable of being overridden by the obligation to protect an adult at risk, but a failure to recognise that obligation can, itself, give rise to flawed decision-making.
5R (Davis and Davis) v West Sussex CC [2012] EWHC 2152 (Admin), [2013] PTSR 494. 23.16The courts are alive to the fact that, on occasion, local authorities are on the horns of a dilemma, and that it may be necessary urgently to invoke the jurisdiction of the Court of Protection before it has been possible properly to investigate an allegation of abuse.
6HS at para 187. However, in such a case, it is all the more important that stock is taken as soon as possible thereafter of matters. A failure to do so leads to (at least) two adverse consequences:
•leaving allegations ‘[hanging] like a cloud’ over family members or other individuals can act as a substantial distraction to the real welfare issues, by placing those individuals in an unnecessarily adversarial position vis-à-vis the local authority;
7A London Borough v (1) BB (by her litigation friend the Official Solicitor) (2) AM (3) SB (4) EL Trust [2011] EWHC 2853 (Fam), [2012] COPLR 16 at para 18 per Ryder J (as he then was). •in the worst case scenario, it can lead to very substantial damages and/or costs being incurred unnecessarily by other parties which fall to be paid by the local authority. By way of example, a local authority was ordered to pay the full costs of the Official Solicitor and of P’s brother (agreed in the total sum of £88,000) after it withdrew allegations of sexual abuse against the brother almost two years after the proceedings were brought in the Court of Protection. District Judge Eldergill held that:
There was a prolonged failure on the local authority’s part to recognise the weakness of its case. The allegations were vague and insufficiently particularized. The ‘evidence’ in support was manifestly inadequate. It was internally inconsistent and unreliable. The truth of what was alleged was assumed without any proper, critical, analysis.
8Para 188. For other cases in which local authorities have been heavily criticised and had to pay substantial damages and/or costs, see Somerset County Council v MK [2014] EWCOP B25 (damages not quantified) and [2015] EWCOP B1 (indemnity costs); Milton Keynes Council v RR [2014] EWCOP B19 and [2014] EWCOP 34 (costs); Essex County Council v RF [2015] EWCOP 1: (£60,000 damages, care home fees waived at a cost to the local authority of £23–£25,000, costs).23.17The propositions set out above do not affect the general duty to place before the court disputes where the best outcome may not be immediately clear. Court of Protection proceedings need not be adversarial and may be the best forum for resolving finely-balanced questions as to what may constitute the best and least restrictive alternative for P. In all cases, however, it is essential to show that available evidence has been properly evaluated and that it is openly shared with the court and the parties.
23.18Importantly, if a public body brings a matter to the Court of Protection for determination as to where an individual’s best interests lie, then, for forensically similar reasons to those which apply in relation to child care proceedings they must work in partnership with the court. This means that it lies in the court’s power to direct the public body to file evidence (including a care plan), even though the plan’s contents may not or do not reflect its formal position, ‘for it is not for the local authority (or indeed any other party) to decide whether it is going to restrict or limit the evidence that it presents’.
9Re MN (Adult) EWCA Civ 411, [2016] Fam 87, (2015) 18 CCLR 521 at para 37, citing Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 2 FLR 431. Further, as noted at para 15.7, the court’s powers in this regard have been strengthened by the introduction of COPR r87A, which means that the permission of the court is required before proceedings may be withdrawn. Where the public body decides, in the discharge of its public law obligations relating to funding of care and treatment, that a particular option is no longer on the table, the position is different, and is discussed in chapter 24.