2015 03 Incapacity

Wednesday 1 April 2015

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The Court of Protection (Amendment) Rules 2015 SI No. 548 will come into force in part on 6 April 2015 and otherwise on 1 July 2015. The rules amend the Court of Protection Rules 2007 including making provision for the court to consider how P should be enabled to participate in the proceedings, reinforcing the duty on parties to co-operate, allowing for the application of the Family Procedure Rules, removing the requirement for permission in certain cases, introducing rules on security for costs, dealing with allocation of types of cases to different levels of judge, and introducing new rules concerning litigation friends and appeals. Click here for the Statutory Instrument.

Rochdale MBC v KW (by her litigation friend Celia Walsh) and Others [2015] EWCOP 13, Mostyn J: The Court of Appeal, by a consent order, had allowed the appeal against the decision at first instance that KW, who was cared for in her own home, was not deprived of her liberty. Mostyn J considered the consent order and held that the Court of Appeal appeared to have taken a procedurally impermissible route in allowing the appeal without a hearing and a judgment. He therefore treated the allowing of the appeal as setting aside the factual basis upon which he made his finding that there was no deprivation of liberty. He held that the consent order did not contain a finding that there was “a situation of state detention”, but rather it authorised one if there was one. When the case would be listed for future review it would come before him to determine de novo whether a situation of state detention exists. In this difficult and sensitive area, where people are being looked after in their own homes at the state’s expense, the law was now in a state of serious confusion. Click here for the judgment.

Donna v Martin [2015] EWCOP 23, Senior Judge Lush: On an application to appoint deputies for property and financial affairs and personal welfare the court re-iterated the principle that decision-making in welfare matters is essentially a collaborative process between family members, care staff, social workers, healthcare professionals and anyone else who has an interest in the welfare of the person concerned. Therefore in most personal welfare matters the court does not need to appoint a deputy. Click here for the judgment.

Re BN [2015] EWCOP 11, Senior Judge Lush: The court considered an application under rule 89 of the Court of Protection Rules 2007 to reconsider an order made on the papers. The way in which rule 89 operates was described in Re S and S (Protected Persons) [2008] COPLR Con Vol 1074: on receiving such an application the court can make a decision on the papers, direct a full hearing or make an order as to how the application can best be dealt with. The general rule in property and affairs applications, that the costs are paid by the person to whom the proceedings relate, was departed from and CN was ordered to pay the costs, it being held that it would be unjust to expect BN to pay her legal costs of resisting such an unmeritorious application. Click here for the judgment.

A Healthcare NHS Trust v P & Q [2015] EWCOP 15, Newton J: The Trust applied for a declaration as to the best interests of P in respect of his medical care and at the same time applied for a reporting restriction. The family of P objected to the disclosure of P’s identity or that of his family to the Press Association through CopyDirect, now called the Injunctions Alert Service. The court considered whether in applications for reporting restrictions orders, the applicant, when notifying the Press of the application, is required to identify the parties and or P. It was held that the law of contempt, contract and confidentiality prevented the media from revealing parties’ names. In order to form a proper view of the application the Press should see all the information including the names. The disclosure of the identity of P and the family to the Injunctions Alert Service was ordered so that the Press could respond if they wished to do so. Click here for the judgment.

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