On 18 March 2014 the President and Vice- President of the Court of Protection, Sir James Munby and Mr Justice Charles, gave evidence to the Justice Select Committee in relation to the operation of the Court of Protection. The session relied on written evidence which had previously been submitted and which has since been added to the Justice Select Committee’s website.
A number of interesting documents were provided to the Select Committee by the Government, summarised and discussed here. For present purposes, we concentrate on the evidence given by Sir James Munby P and Mr Justice Charles. In advance of the oral evidence session, they submitted a memorandum which made the following key points:
- The jurisdiction of the CoP “is conferred by statute and the court does not have an inherent jurisdiction or an administrative law jurisdiction. So it has no jurisdiction over a vulnerable adult who has the relevant capacity and, subject to some arguments under the Human Rights Act, no power to overturn or declare unlawful decisions of public authorities concerning the provision of care or support on administrative law (judicial review) grounds” (paragraph 3)
- There are “significant differences” between the issues that arise in the two types of work undertaken by the CoP (i.e. health and welfare/property and affairs) “The policy directive at the time the CoP Rules were drafted was that one process should fit all. As identified by the ad hoc Rules Committee this caused, and is still causing, problems” (paragraph 8).
- “In his first report to the President and Vice President in November 2011, the Judge in Charge recommended that as a matter of urgency a process for the transfer of cases to High Court Judges and to judges on the circuits be agreed and implemented. He reported that this recommendation related to the issues about which he had heard the most complaints. Since then attempts have been made to achieve this but they have not succeeded… There can be no doubt that ad hoc arrangements for transfer are unsatisfactory and are causing problems and justifiable annoyance to litigants, practitioners, judges and court staff” (paragraphs 12-3)
- The two main problems relating to the day to day performance of the CoP are the long running problems relating to the failure to make amendments to the CoP Rules and to introduce a process for transfer of cases to the circuits. “The solution to these problems is not in the hands of the CoP” (paragraph 14)
- In the context of revisions to the COPR previously recommended, “Issues relating to the appointment of a litigation friend, the representation of P and obtaining the views of P also need to be addressed in the context of amongst other things the resource and other difficulties faced by the Official Solicitor. New provisions need to be introduced relating to costs, to appeals to address the wider pool of judges who can now be nominated to sit and the disclosure of documents to defined people for defined purposes e.g. to researchers, regulators etc. The balance between the provision of a quick, convenient and inexpensive procedure for the honest and checks and balances and the provision of security to guard against the dishonest needs regular review” (paragraph 24).
In relation to the changes made to transparency:
“29. There are strongly held views on both sides of the debate on whether the default position should be that hearings are in private or in public and if in public what the general position should be on what can be reported and so on what restrictions on reporting should generally be imposed.
30. There is much to be said for there being general consistency between the Rules of the two courts. But there are differences between the arguments on the underlying issues. They flow from differences between the relevant factors concerning persons who lack capacity and children and so their respective families and carers. These differences and issues relating to size and resource could lead to the CoP taking a different course to the Family courts on the default position, or to the CoP holding a greater percentage of its hearings in open court.
31. The differences have founded a slightly different and wider approach being taken in respect of the CoP in the Guidance given by the President of the CoP and the Family Division on the reporting of judgments in the Family courts and the CoP (see  1 WLR 230 and 235) [...]. As can be seen from a comparison of the two, the CoP Guidance includes some cases relating to property and affairs, and for clarity includes the Senior Judge (who is treated for all purposes as if he were a circuit judge) and has a different provision on costs.”
(7) Finally, in relation to steps being taken to address the two main problems identified above and transparency:
“39. Following his appointment in January 2014 the Vice President, with the full support of the President, had a helpful meeting with HMCTS and MoJ officials to discuss Rule change and transfer to the circuits. These issues are being addressed again and, hopefully, progress will be made in the near future. If not, the CoP will continue to do what it can to try to overcome these problems and the difficulties they cause.
40. The President’s Guidance on the reporting of judgments sets out that he is adopting an incremental approach. If resource is provided to consider and to make changes to the CoP Rules, this exercise would provide an appropriate vehicle to further that approach. Nominated judges have been, and will continue to be, encouraged to report more judgments and to consider under the existing CoP Rules whether there is “good reason” to depart from the default position of the hearing being in private and duly accredited members of the media being excluded from it."
The oral evidence session
In the oral evidence session, Sir James Munby P and Mr Justice Charles elaborated upon the points made in their written memorandum. The following key points emerged:
- In relation to transparency, Sir James Munby indicated that he considered that there had already been an impact as a result of the publication of his guidance in terms of the number of judgments published on Bailii and also the number of stories in the media relating to cases before the CoP. He indicated that he proposes to issue in the next month for discussion and consultation a draft document identifying categories of cases in which, subject to suitable restrictions and protections, documents could be made available to the media. He also contemplates that the categories of judgment which must rather than may be published may beextended (subject always to the particular circumstances of the case dictating a different outcome), as well as including the judgments of District Judges within the scope of the guidance. He noted, though, that there will come a point in implementing his transparency agenda when he will come up against the Rules, and in particular the default position (unlike in family cases after the changes brought about by the FPR 2010) that there is no right of media access. He expressed his ‘continuing concern’ (in his words, “a diplomatic phrase”) at the fact that the need for changes in rules identified as long ago as 2010 had thus far fallen on deaf ears;
- Charles J indicated that he did not think that there was much scope for giving further work to authorised court officers. In relation to the regionalisation agenda, it appears that there may very recently have been progress (whether or not related to the hearing before the Justice Committee), such that the necessary actions required to bring about effective transfers of cases out of London should be able to be implemented by the end of May;
- In relation to the position of the Official Solicitor, Sir James Munby P suggested that the Justice Committee might wish to care to probe the Official Solicitor as to the allocation of his resources between his different functions, in particular between the balance of resources dedicated to those cases involving children in which he was appointed to act as litigation friend for a parent, and welfare cases before the Court of Protection;
- Both the President and Vice-President indicated a degree of scepticism that it would be possible for increased use of mediation (which both of them indicated that they saw as valuable in the right case) significantly to reduce the case-load of the Court of Protection;
- As regards the dissemination of information relating to the Court, both indicated a degree of dissatisfaction with the use of the gov.uk portal as a route. Further (and most importantly) Sir James Munby P gave an (unsolicited) endorsement of the utility of this newsletter as a service for professionals, but indicated that the much bigger problem was engaging the public at large.
- Both judges declined to answer substantive questions relating to the impact of legal aid which were, as the President noted, matters of policy of considerable controversy, but noted that there were cases in which – on the facts of those cases – judicial comment had been made as to the non- availability of legal aid (for example Re UF).
The evidence given to the Committee and summarised above is very important, and will hopefully be read alongside the strong recommendations of the House of Lords Select Committee. In particular, this evidence underlines the fact that the failure to implement all but one of the recommendations of the ad hoc Rules Committee is causing real problems. Further changes are now required to reflect the fact that the world has moved on since 2010 – not least in terms of the introduction of the Family Procedure Rules 2010. These rules set in place a very clear forensic framework for the determination of cases involving children which is, in many ways, a much better model for the determination of cases involving – in particular – the health and welfare of incapacitated adults than is the CPR upon which the COPR were in significant part modelled.
The above is not intended as a suggestion that the CoP should be part of the Family Division (despite its current location). Nor should it be read as suggesting that incapacitated adults are to be equated with ‘big children.’ The law that Court of Protection judges have to apply and the factors to take into account when considering what substantive decision to take upon an application relating to an incapacitated adult is – and should be – very different from the law and factors that apply in relation to a child. However, the forensic processes in both types of proceedings are very similar, and for very good reason: they are designed to ensure that, as far as possible, a judge is put in a position to take the decision that is right for a person who is not a full player in the proceedings but their subject (see also Baker J (“Reforming the Court of Protection: lessons to be learned from the Family Justice Reforms” 4 Elder Law Journal 1, 45-50).