Introduction

Welcome to the December 2015 Newsletters. Highlights this month in a bumper set include:

  1. In the Health, Welfare and Deprivation of Liberty Newsletter: landmark best interests and capacity decisions in the medical treatment sphere, more on the cross-over between the MHA and the MCA, forced marriage, and the CQC’s latest DOLS report;
  2. In the Property and Affairs Newsletter: gratuitous care, conflictsof interest and the OPG’s new guidance on safeguarding;
  3. In the Practice and Procedure Newsletter: a very important decision on fact-finding (and when it is and is not necessary), and guidance – by analogy – from the Supreme Court on the ‘urgency’ cross-border jurisdiction of the Court of Protection;
  4. In the Capacity outside the COP Newsletter: DNACPRs notices and capacity, a College of Police Consultation on Mental Health practice, a coroner fully grasping capacity, the inaugural UK Mental Disability Law Conference and a book corner;
  5. In the Scotland Newsletter: important amendments to the Education (Scotland) Bill, an important – and troubling – judicial review decision on ordinary residence in the cross-border context and guidance from the MWC on hidden surveillance.

And remember, you can now find all our past issues, our case summaries, and much more on our dedicated sub-site here. ‘One- pagers’ of the cases in these Newsletters of most relevance  to social work professionals will also shortly appear on the SCIE website.

We are taking a break over the holiday period so (those of you who get them) happy holidays, and we will return in February from the new COP Towers in Chancery Lane.

Gratuitous care and deputies

Re HNL [2015] EWCOP 77 (Senior Judge Lush)  Best interests – property and affairs

Summary

In this case Senior Judge Lush had to consider the issue of gratuitous care allowances paid to lay deputies or members of P’s family.

The deputy in this case was P’s brother and had been appointed receiver in relation to P’s clinical negligence damages award before the MCA came into effect.

When appointed, Master Lush (as he then was) authorised a gratuitous care allowance to be paid to the receiver for his care and case management services in the sum of £23,000 per year. That payment continued after the receiver became the deputy.

The Public Guardian required the deputy to apply to court for retrospective authorisation of the payments and an order permitting further payments on the ground that such payments were not permitted by section 19(7) MCA. The Senior Judge agreed that such authorisation was needed as section 19(7)  only allows reimbursement of deputies for performing deputy’s functions as such, see paragraph 41.

The Senior Judge authorised all past payments and directed a case manager’s report into future payments.

Unsurprisingly, given the extent of P’s disabilities, the report concluded that a professional case manager would charge far more than was being paid  to  the  deputy.  Thus,  the  payments  were

authorised for the future with the option of indexation, see paragraphs 50 and 51. He also provide for review in 2022, see paragraph 55.

So far as the amount of such payments is concerned, the Senior Judge reiterated that the Court of Protection approaches that in the same way as does the court in a damages claim, namely to ascertain the commercial value and discount it by 20% to reflect the fact that the payment is tax and NI free, see paragraphs 37 – 39.

The Senior Judge emphasised that a deputy must apply for authority to pay himself a care allowance, see paragraphs 43 and 44. He also stated that if a lay deputy wished to pay such an allowance to a family member the court must authorise this too, see paragraph 44.

Finally, he noted that professional deputies are now being required by the OPG to seek authorisation of such allowances when made to P’s family (seemingly as part of a general review of such payments). He stated that he had had a meeting with the OPG to discuss this issue in the light of the administrative and financial burden that such applications would cause. The result of this will soon be published. See paragraphs 3, 52, 53 and 54.

Comment

The decision in this case is uncontroversial; the position currently being adopted by the OPG is more so. We await with interest news of whether this policy will continue in light of the meeting foreshadowed in the judgment.

Managing conflicts of interest

Re JW [2015] EWCOP 82 (Senior Judge Lush)  Best interests – property and affairs  Summary

In this case Senior Judge Lush had to consider the issue of who should be P’s deputy, P’s son or the local authority authorised officer.

The local authority authorised officer was the existing deputy and the matter started as the son’s application to be a joint deputy. Unfortunately, the local authority stated that they would not agree to being a joint deputy in any circumstances (as a matter of policy not anything to do with the applicant or P’s situation). That led to the son amending his application so that he should replace the local authority authorised officer and be sole deputy.

The Senior Judge eventually decided that it was in P’s best interests that her son be her sole deputy and the importance of this case does not concern that part of the decision.

One of the grounds put forward by the local authority for opposing the amended application was that the son was in a position of conflict of interest as he proposed that P’s  house (where she no longer lived) should be renovated before sale and he (being a builder) should carry out the project. Thus, said the local authority, he stood to gain from his deputyship.

The Senior Judge accepted that but pointed out that potential conflicts of interest were endemic and included local authorities when they were providing care and assessing contributions, see paragraphs 28 – 49 where there is a very useful

survey of the law in in both its historical context and the context of Article 12(4) CRPD.

The court’s task was to manage  any inevitable conflict of interest and in this case the Senior Judge made detailed provisions as to how the son was to carry out the building work to protect P’s interests.

Comment

It is clear that Senior Judge Lush is particularly interested in working through some of the practical implications of Article 12(4) of the UNCRPD and, in particular, what securing against undue influence and  conflicts of interest in relation to the exercise of legal capacity actually means. One gets the impression  that paragraphs 28-49 of the judgment were intended to have a rather wider (and indeed different) audience than either the local  authority  or P’s son.

The OPG publishes its new Safeguarding Policy

On  1st   December,  the  OPG  released  its  new

Safeguarding Policy dated November 2015.

Of particular relevance in the area of property and affairs is section 11 that sets out some particular signs of potential financial abuse. Section 16 also has a useful summary of some of the circumstances when the OPG can and cannot become involved and the options in the latter case.