At the Annual Conference back in June we were very privileged to have HHJ Carolyn Hilder, the Supreme Judge at the Court of Protection speak directly to our delegates and answer some of their questions.
Article thanks to Andrew Mernin at the NR Times
The Court of Protection is an influential force on neuro-rehab – helping to shape the care arrangements of vulnerable people who lack mental capacity, including those affected by brain injury and neurological conditions. Here senior judge HHJ Carolyn Hilder answers your questions on the inner workings of the authority.
The Court of Protection (CoP) makes decisions on financial and welfare matters for people lacking mental capacity.
It was created under the Mental Capacity Act 2005 and has a range of responsibilities, including deciding whether an individual has mental capacity, and appointing deputies to make decisions for people who lack it.
Deputies may be a friend or relative of the individual, or a professional such as a solicitor or accountant appointed by the court.
The CoP can significantly influence the work of professionals with clients with brain injuries and neurological conditions.
Brain injury case managers, responsible for managing the overall care of brain injured individuals, are particularly attentive to its activities and rulings.
They were given a rare insight behind the scenes of the organisation recently, with an opportunity to put questions to a key figure at the CoP, Senior Judge HHJ Carolyn Hilder.
Their questions, arranged via brain injury and complex case management body BABICM, came amid changeable times in mental capacity-related decision-making.
A new model for determining deprivations of liberty in care, known as Liberty Protection Safeguards, come into play next year in a move which will hopefully speed up the delivery of justice for many vulnerable people, while many other developments are afoot.
Here’s what Judge Hilder had to say….
Case manager: Do you consider that any medical knowledge/experience of what it means to have a brain injury or cognitive impairment is required to make a judgment around capacity/best interests?
JH: One of the hats I wear is as a course director of training for the CoP judges. Understanding the complexities of different types of impairments to brain function has been a feature of training, and in the last several years, there has always been a clinical psychologist to provide introductory training.
In our ongoing review training, we have, to date, had specialist input in respect of bipolar disorder, dementia, learning disability and brain injury. Last year, all of the CoP judges had the privilege of hearing from a young man called William Hawkins, who suffered a very significant brain injury in a car accident. It was nobody’s fault so there were no damages to award, no case manager and actually no money either. So he wasn’t ever technically within the decision-making of the CoP. But over several years of extraordinary determination and courage, he has made more of a recovery than was ever expected. He and his mother now make something of a mission of educating people about the impact of acquired brain injury, not just on the person but on their wider family and their struggles to secure adequate support and resources. I can tell you that some of the judges left that presentation in tears. So to answer the question, I don’t think that medical qualification or experience is required for making decisions under the Mental Capacity Act – but I do consider that information about the nature of a person’s incapacity is an important part of the information which the judicial decision-maker has to consider. And, I do consider that the better the information and understanding of the condition, the higher the likelihood of reaching the best decision. That is why you will sometimes see orders which specify what type of expert is required to produce an assessment capacity. Where we are concerned with a person that has a complex or fluctuating condition, such as schizophrenia or bipolar disorder, a psychiatrist is likely to be required and similarly, with acquired brain injury, a neuropsychologist will be required. This [recognises] that complex conditions impact on capacity in ways that require an understanding, and an explanation to the court.
What are your thoughts on professional deputies taking on brain injured clients, in a scenario where they have no specific expertise or experience working with this unique client group?
I think this is meant to refer to property and affairs deputies who charge [a fee]. On the whole, that means solicitors, but actually, the meaning of professional in this context is getting more complicated via the latest iterations of Practice Directive 19B [part of UK CoP rules] – and the expanding commercial basis on which deputyship services are now offered. To me, the key is really the professionalism of the deputy, [in terms of] understanding the requirements of deputyship, which is a judicial duty carrying legal responsibilities, and performing that role with integrity and skill. It’s that kind of professionalism, in a case where a brain injured person has a very large number of challenges, which is more important than the professional qualification or experience with that particular type of injury. Of course, it’s gold standard to have both but I would not be in favour of saying that only a professional with experience of this type of brain injury is suitable to be appointed as a deputy. That runs the risk of limiting the protected person’s access to services, and it runs up against patently obvious difficulties of how do you get experience if you can’t do it without experience in the first place. That’s where case managers come in. A close working relationship between the many professionals that are likely to be involved in the life of a person with a serious brain injury seems to me likely to be the best way of achieving an optimal outcome.
The average time for an application to the CoP is taking too long. Whilst additional resources might help, are there any root and branch reviews planned to speed the process up? Failing to deal with applications expeditiously is letting vulnerable people down given that the court cannot deal with matters in a swifter fashion?
Let’s not beat around the bush, I accept that justice delayed is justice denied. And I understand that applications too often take too long to resolve. The [applications process] taking X number of weeks may be perfectly acceptable in some cases and hopelessly inadequate in others. There is actually only one key performance indicator in CoP statistics and that is ‘16 weeks to complete a non-contentious property and affairs deputy application’. As of March this year, 35% of applications are being concluded within that. Health and welfare applications are taking an average of four to six weeks to complete. But an average is meaningless to an applicant who wants his or her application determined. The reality is that we live in an age of austerity when resources are tight. At the same time, the number of applications for the CoP is on a constantly upwards trajectory, so there’s a degree of inevitability to the result… But I do not believe any of us should wallow in defeatism about this. There are structural measures already in place to address this as soon as possible and there is the prospect of further development. Firstly we have a cohort of dedicated staff. They are human beings, who come to work with a skip in their step wanting to do something which they believe to be socially useful. I ask you in your dealings with them to start on the basis that they really are trying to do their best to help. More concretely, every single day, there is an urgent business judge on duty so that applications which are genuinely urgent can be and are dealt with immediately.
Since October 2018, we have had for first time cohort of deputy judges. They’ve been a long feature of the civil and family courts but for reasons of history the CoP has not had a cohort of deputies until now. Most of those who were appointed have direct experience of CoP work as practitioners. And in February of this year, we secured some extra funding to have a blitz team of those deputies.
So in 10 judge days, those deputies cleared a backlog of 1200 non-contentious property and affairs deputyship cases, which reduced the waiting time to three weeks.
Unfortunately, in that same period, 920 new applications were received, so the overall effect was dispiriting and not as great as the efforts deserved. For the longer term, we have now secured additional funding for new and permanent posts of authorised court officers, increasing the manpower from five to eight. More strategically, just before last Christmas it was announced that the CoP was taken out of the great [programme of court reform] which is sweeping across court services throughout the country currently. That was a blow in terms of anticipated investment, although it has had a positive effect on our staff in terms of our stability being assured. Instead, we have a regime called ‘business as usual reform’. It means that the CoP will benefit from the reform processes as and when possible, within existing budgets. So I can’t promise a root and branch review, but rather incremental development.
Which development at the CoP over the next 12-18 months are you most excited about and which will benefit P the most? Is there a timeframe for online submissions for applications and electronic bundles in the COP?
As you will gather from my response to the last question, there’s not a huge amount of excitement here. I would get most excited about the development of online applications to the CoP. I think that that system is particularly well suited to property and affairs deputy applications. If it were possible, it would enormously reduce the workload of the court and therefore benefit P by speeding up the process. Unfortunately, I’m not really excited about it, because it is not yet on the horizon. There is a willingness but there are not the resources and so there is not a time frame either. Electronic bundles would have some potential advantages. Local authorities are accustomed to doing this in the family courts and there is a fair amount of pressure for them to be able to be able to do them for the CoP too. I’ve seen a demonstration of one particular system, which seems to meet the needs of the court. But unfortunately that’s not being made available yet either. So the two developments which I’m actually most excited about are the introductions of bulk scanning and dual screens. To my mind you can’t have one without the other. But there are plans actively on the way to move to a system which is already operating in other parts of the courts system whereby the application, once made, doesn’t go to any human brain in the central registry until it’s been to a bulk scanning centre somewhere else and turns it into electronic documents and reduces the amount of paperwork for the court. There is some suggestion that that might be up and running by Christmas.
Will the application process ever be made easier for lay deputies? It can be hugely time consuming to make an application, the OS fees are significant for P (and they are acting for a person they have never met) and the lay deputy has to either seek and pay for advice, or navigate the process on their own.
If you are a lay person that has found the application process too complicated, I can only offer the assurance that the court does its best as far as possible [to help you]. We operate a team of dedicated telephone enquiry options… The [application] forms are constantly under review for improvement. Overall it is our aim to offer as courteous a process as possible.
Official solicitor fees are, of course, completely outside my domain. But it was to tackle the expense and delay of official solicitor involvement that the accredited legal representatives were essentially invented by the rules committee. It’s taken a long time, and a lot of work on the part of the Law Society, to become a reality but there is now a cohort of them. The court has been able to appoint them for over a year. There have been few appointed so far but their numbers are gradually increasing. So if you have a case where you think an accredited legal representative would be appropriate given the nature of the issues, you can now make that request as part of your application. It remains to be seen if that will simplify the process at all, but that is the hope and intention.
What are your thoughts on the amendments to the Mental Capacity Act around Deprivation of Liberty (DoL)? Will the amendments help in making the application process and workload for the CoP more manageable?
I’ve kept a distant eye on various iterations of the Amendment Act because it’s important to know what’s on the horizon but its definitely not the role of the judiciary to wade into legislative development. We do now have a final version so we can seriously think about how it will work. We know that the present intention is for the new Liberty Protection Safeguards to come into force on 1st of October 2020, with the final draft of the code to be made before Parliament several months before that in spring of 2020. It’s not appropriate for me to express views in case I am in due course called upon to determine issues, but we can look at the impact on the work of the court. There’s a lot which is very difficult to predict, but every stage of the development of the DoL jurisdiction, the predictions of numbers involved have been eye-watering but they have never materialised. You can speculate as to why, but it doesn’t make it any easier to plan for. On a structural level, the implementation of the Liberty Protection Safeguards will be the demise of the streamlined, Re X procedure. [This process was put in place in 2015 to deal with large volumes of cases, allowing judges to make an order authorising a deprivation of liberty in uncontroversial cases “on the papers” – without an oral hearing, saving time and costs. This followed the 2014 Cheshire West judgement, when the Supreme Court clarified the definition of a deprivation of liberty as a person being “under continuous supervision and control and not free to leave” the place they were in, regardless of whether this arrangement would be appropriate or ‘normal’ for a person with those particular needs. This exposed thousands of cases in which people were being deprived of their liberty by the arrangements made by the state and created a surge in cases for the court to deal with]. There won’t be a need for [Re X] and that will have a liberating effect on some resources. Presently we have a whole team of staff which will be able to be deployed in other areas. I’m not getting too excited about that just yet because the indications are that there will be a time when they both run in tandem. My priority at the moment is to do what we can to make sure that the current backlog in the streamlined applications does not swamp the new system from the start. And to that extent, there are administrative meetings going on to see if there can be some progress in clearing that backlog as quickly as possible. As to how it will affect the workload of the court, the Rules Committee has set up a working group which is considering forms and procedure. That has yet to produce anything substantive but the wheels are in motion. In theory, the Liberty Protection Safeguards should take a large tranche of people who currently need to come to the CoP and also to the family court out of the need for court orders.
General experience would suggest that there is going to be a new type of workload for the court and that’s going to be the challenge of LPS authorisation, but we have no idea how many appeals will be made or on what grounds. We approach the implementation of the new system in the spirit of optimism and we will see where it takes us.
We are depriving the liberty of 14 community dwelling clients. They each lack capacity around decisions relating to need for support, going out alone etc. Best interests judgment is that, to remain in the community, the least restrictive option is applied but this is still a (reasonable) deprivation. We have applied to the relevant local authority (LA) in each case. Responses by LAs so far have been to deny responsibility, to say DOLS does not apply in the community, to refuse to respond to correspondence or to try and get a non-expert to find capacity (in one case) against experienced ABI team opinion. In 3 years, not one case has been progressed or resolved. Our approach has been designed with a leading public law firm. We quote judgments and charge our clients for our time. This feels unethical and a poor use of money. What should we do in these situations where the LAs respond in this way and do not seem to understand their responsibilities?
It’s a story I hear often and probably goes a long way to explain the mismatch between the predictions of need and the actual numbers of applications. I’m afraid it all comes down to money. The local authorities have been saying ever since the Cheshire West case that they do not have the resources to apply processes as they should be applied. The last vice president of the CoP, Sir William Charles, before he retired [in February 2018] did not mince his words in the line of cases which followed Re X and how the funding gap needed to be addressed. His last word on this was SRK against Staffordshire County Council. SRK’s care package from home was arranged and provided without any input from the local authority. Care was supervised by a specialist brain injury case manager and provided by current carers. The local authority had no knowledge of SRK or his care arrangements until his property and affairs deputy wrote to them saying that there was probably a deprivation of liberty. The local authority did an assessment and they shared that conclusion. And so it made an application to the court for authorisation. The Secretary of State for Justice was joined as a respondent so she could address the circumstances and extent to which the state is imputable in any deprivation of liberty arising out of private care arrangements. Everybody else said it was but the Secretary of State said it wasn’t. The vice president decided at the time that a welfare report had to be made to provide a procedure that protects the relevant person from arbitrary detention and so to avoid violation of the state’s positive obligation under Article 5 [of the Human Rights Act, which protects an individual’s right to liberty and security]. That was based on the premise that the state knows or ought to know the situation on the ground and that knowledge exists because the civil court awarding the damages and the CoP appointing the deputy – and the deputy when appointed should take steps to ensure that the relevant local authority with various safeguard elements knows of the regime of care. The Court of Appeal upheld Sir William Charles’s judgement. It sounds to me like the questioner is fully aware of all of this and is doing what they can to bring the situation on the ground to the attention of the local authority, so what then can be done?
I’ve seen applications made by the deputy under the streamline procedure, usually in situations such as this. My response has been to require the relevant local authority to explain why it should not be substituted for this applicant. So far, they have always accepted that they should be. Of course there are cost implications. In the Staffordshire case, the vice president expressly provided for the deputy to act as a Rule 1.2 representative in the annual reviews. [A 1.2 Representative is the name given by the court to a person who is able to consider whether from the perspective of individuals best interests you agree or do not agree that the Court should authorise the individuals package of care and support resulting in a deprivation of their liberty].
That was possibly a reflection of the availability of funds for that from damages. And the vice president specifically said that when damages are assessed, this should be considered carefully. Generally, it is my view that requiring a protected person to pay for the state to be able to meet its obligations is unattractive. If no one can be identified to act as a Rule 1.2 representative then it becomes a balancing act. Is it in P’s best interest to pay the cost of representation so the application can be considered, in the case of no authorisation? It’s going to be a case-by-case decision that probably comes down to P’s resources. When I have required local authorities to justify why P should pay, miraculously an alternative solution so far has been found. Ultimately it must be acknowledged that it is wholly unacceptable for the state to be in violation of its obligations for a period of three years as described and I wonder why applications for damages have not been issued. That would be a best interests decision in each case.