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Court of Protection

Our experienced team is well placed to provide the fullest service to our clients, whether we are acting for a family member, the Official Solicitor or other litigation friend, local authority or healthcare body.

Court of Protection cases often raise aspects of mental health law, family law, community care law or social housing law. Members of our team are specialists in one or more of these linked areas of practice and bring to Court of Protection work their knowledge of a range of disciplines including civil liberties, administrative and public law, and human rights law.

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

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 Head Clerk for the Court of Protection Team is Dan Randall (); tel. 020 7993 7600.

Publications and Training

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

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.

Some of our notable cases

An NHS Trust v Mrs P and Ms P (by her litigation friend the Official Solicitor) COP11984767, Hedley J, 10 January 2013
It was 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
Care proceedings were brought in relation to a 16-year-old girl with a diagnosis of severe learning disability, severe autism and possibly Malignant Tourette’s Syndrome, who was at risk of self-injury. She needed 2:1 care. The local authority sought a residential placement costing £300,000 per annum. The proceedings were transferred to the Court of Protection. 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 Coleridge J, 8 April 2009, [2010] 13 CCLR 171
A young man with a mild learning disability and lacking capacity, was moved by the local authority from his home with his mother, to a care home, pursuant to a court order authorising the move. Police arrived in riot gear and the person lacking capacity was removed in handcuffs. The court gave guidance on how the parties and the courts should deal in future with cases where the police were to be involved in the removal of a person lacking capacity.

LLBC v TG, JG, KR [2007] EWHC 2640 Fam; [2007] 1 MHLR; [2009] 1 FLR 414; (2008) 11 CCLR 161
A 78-year-old man with dementia and cognitive impairment was placed in a care home, contrary to the wishes of close relatives, under an order of the court made without notice. As well as containing important guidance on principles and procedure in relation to without notice applications of this nature, the judgment contains an analysis of whether the person was deprived of his liberty when in the care home, concluding that he was not. This case is referred to in the Code of Practice on the Deprivation of Liberty Safeguards. (See now also P and Q v Surrey County Council [2011] EWCA Civ 190 on what constitutes a deprivation of liberty.)