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Home > Areas of law > Court of Protection

Court of Protection

Our busy Court of Protection team acts for family members, the Official Solicitor, professional RPRs and other litigation friends, local authority or healthcare bodies.

What the Directories say

“Garden Court Chambers has a strong team of Court of Protection practitioners who act for the Official Solicitor, litigation friends, local authorities and family members. Members draw on the set’s parallel strengths in mental health, community care and family law.” Chambers UK Bar Guide

The work we do

We cover a broad range of areas under the Mental Capacity Act 2005, with an emphasis on health and welfare issues, as well as cases under the High Court’s jurisdiction in relation to vulnerable adults. Our work includes:

  • Personal welfare applications, including whether it is in the person’s best interests to live in a family home or residential care or other care setting, disputes over arrangements for contact with family members, decisions on complex/interventionist care packages involving deprivation or restriction of liberty
  • Serious medical treatment applications
  • Section 21A applications challenging authorisations of deprivation of liberty in a care home or hospital under the Deprivation of Liberty Safeguards (DOLS)
  • Emergency applications, e.g. the transfer of a person lacking capacity to a new care setting, requiring a transfer plan with potential deprivation of liberty, requiring advance authorisation by the court
  • Advising on local authority safeguarding duties and on the community care law issues arising in Court of Protection cases
  • Contested applications for the appointment of deputies (welfare/financial affairs), and other property and affairs applications, e.g. arrangements for the person lacking capacity’s affairs necessitated by a move to supported living or into long-term residential care; issues arising under Lasting Powers of Attorney, such as applications by the Office of the Public Guardian to revoke the power;
  • Proceedings concerning 16 and 17 year olds, and the overlapping jurisdictions of the Court of Protection and Children Act 1989
  • Members of our team can also offer expertise in related areas of law: community care, public law, mental health and family law. We can advise in these areas when they arise in Court of Protection cases and can act in related proceedings.

Our Service

We invite instructions in court cases and advisory work from clients in all parts of England and Wales. We are regularly instructed on an urgent basis, including to provide telephone advice and to draft applications at short notice, which we are happy to undertake in order to meet our clients’ needs.

The Practice Manager for the Court of Protection Team is Emma Nash (); tel. 020 7993 7600.

Publications and Training

 

We are pleased to offer training to legal practitioners and organisations. We provide regular seminars in chambers which are advertised on the chambers’ website and which are open to all, and also smaller ad hoc meetings on current issues, tailored to the training needs of the audience, in chambers and elsewhere. Please contact the clerks to discuss how we may be able to help with any training needs you may have.

We provide case summaries and notes about recent developments in COP and other areas of social welfare law on our Social Welfare Website.

Several members of our team are editors of the Community Care Law Reports.

Some of our notable cases

A and B v Z and A Local Authority and M (by her litigation friend) [2018] EWCOP 4, Theis J: appeal against a decision of the circuit judge as to the place of residence of a person lacking capacity; appeal allowed because the judge had formed her view before hearing the case; principles on what is and what is not permissible by way of interventionist judicial case management.

AB v HT, LB Hammersmith & Fulham, M (by her litigation friend the Official Solicitor) and MS [2018] EWCOP 2: Baker J held that the presumption of capacity had not been rebutted and an Islamic marriage (nikkah) was valid; principles on fact finding in the Court of Protection.

Health Service Executive of Ireland v PA and Others [2015] EWCOP 38; [2015] WLR (D) 243: decision of Baker J on the scope and interpretation of Schedule 3 of the Mental Capacity Act 2005 (International Protection of Adults).

Re X and others (Deprivation of Liberty) [2014] EWCOP 25; and [2014] EWCOP 37: Sir James Munby determined the procedure for court-authorized deprivation of liberty following the expansion of the concept by the UKSC ruling in Cheshire West.

Islington LBC v QR [2014] EWCOP 26: the court gave guidance of capacity to make decisions to enter a supported living tenancy.

An NHS Trust v Mrs P and Ms P (by her litigation friend the Official Solicitor) COP11984767, 10 January 2013, Hedley J determined that a young woman with learning difficulties had capacity to make her own decision whether to continue with her pregnancy. Read more in the BBC report.

B (A Local Authority) v (1) RM (2) MM (3) AM, Hedley J [2010] EWHC 3802 (Fam); [2011] 1 FLR 1635
Hedley J gave guidelines on Article 3 of the Transfer of Proceedings Order concerning the parallel jurisdictions for 16 and 17 year olds under the Mental Capacity Act 2005 and Children Act 1989.

LBH v GP and MP [2010] 13 CCLR 171 Coleridge J: In response to the inappropriate means used to remove a person with a learning disability from their home to a care home, the court gave guidance on how the parties and the courts should deal with cases where the police are to be involved in effecting a move of a person lacking mental capacity.

 

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