Court of Protection

The current Court of Protection was set up under the Mental Capacity Act 2005. It can make decisions on whether people have capacity in relation to particular decisions, make decisions on their behalf, appoint or remove people who make decisions on people's behalf, and make decisions relating to Lasting Powers of Attorney or Enduring Powers of Attorney. On 1/4/09 the COP administration transferred from the OPG to HMCS (now HMCTS).

See also

• Court of Protection Rules 2007 and, from 1/12/17, the Court of Protection Rules 2017
• Court of Protection Practice Directions
• Court of Protection forms
• Office of the Public Guardian
• 39 Essex Street COP Newsletter
• Mental Capacity Act 2005 (Transfer Of Proceedings) Order 2007
• Civil Procedure Rules 1998
• Practice Guidance: Committal for Contempt of Court [2013] EWHC B4 (COP)
• Practice Guidance: Committal for Contempt of Court (Supplemental) [2013] EWHC B7 (COP)

External links

MOJ website

• MOJ website: Court of Protection page

• MOJ website: another Court of Protection page

• HMCTS, 'Court of Protection: Listing Policy - information for court users' (September 2011)

• MOJ website: Court of Protection daily cause list

Judiciary website

• Sir James Munby, 'Opening up the Family courts: Transparency in the Family court and the Court of Protection' (Speech at Annual Conference of the Society of Editors, 11/11/13)†

• COP Report. Judiciary of England and Wales, 'Court of Protection: 2009 report' (10/6/10) — Extract from Foreword: "This report covers a period of twenty-seven months, from 1 October 2007, when the Mental Capacity Act 2005 came into force, until 31 December 2009, and I cannot pretend that it has been plain sailing." The report summarises several reported decisions.

• Judiciary of England and Wales, 'Court of Protection Report 2010' (27/6/11) The report contains the following chapters: (1) Judiciary; (2) Court administration; (3) Work of the court; (4) Review of performance; (5) Case law; and (6) Volume of business. The case law chapter summarises 28 decisions made during the year.

• Judicary of England and Wales, 'Report of the ad hoc Court of Protection Rules Committee' (29/7/10)

• Wolanski and Wilson, 'The Family Courts: Media Access & Reporting' (July 2011). This document (a joint publication of The President of the Family Division, the Judicial College and the Society of Editors) contains information on cases in the Court of Protection and under the High Court's inherent jurisdiction

• Sir James Munby P, 'View from the President's Chambers (4): The process of reform: an update' (July 2013) and Draft Practice Guidance on the Publication of Judgments (12/7/13)†

Expand (click to view full text)

• Court of Protection, 'Listing Deprivation of Liberty Safeguarding cases' (15/3/12). From 15/3/12, it is no longer necessary for DOLS cases to be heard by High Court judges.

Listing Deprivation of Liberty Safeguarding cases.

The President and the Judge in Charge of the Court of Protection have determined that it is no longer necessary for all cases where the issue of Deprivation of Liberty Safeguarding is raised to be heard by a High Court Judge.

The judges at the issuing court based in the Thomas More building of the Royal Courts of Justice will consider whether the issues raised in the case appear to require the consideration of a High Court Judge and allocate the case to the appropriate level of judge accordingly. The question of allocation may be reconsidered if and when further information relevant to the issue arises.

If the judges at Thomas More, or their colleagues in any court on reconsideration of the appropriate level of judge to hear the case, are unclear on whether the case should be heard by a High Court judge, they should seek guidance from the Family Division Liaison Judge for the circuit which will be hearing the case.

This change regarding the listing of Deprivation of Liberty Safeguarding cases has immediate effect.

Date 15th March 2012.

Litigation friend guidance

• Alex Ruck Keene, 'Acting as a litigation friend in the Court of Protection' (University of Manchester, October 2014)

Participation of P

• Lucy Series, Phil Fennell and Julie Doughty, 'The Participation of P in Welfare Cases in the Court of Protection' (Cardiff University, 16/2/17)

Statistics

• Statistics. Lucy Series et al, 'Welfare cases in the Court of Protection: A statistical overview' (Cardiff University, 28/9/17) — The report is based on findings from (1) a study based on data gathered from CoP welfare case files held by the court; and (2) a study using the Freedom of Information Act 2000 to gather data from local authorities and NHS bodies about their involvement in CoP welfare litigation.

Other links

• Moira Sofaer, 'The Court of Protection - continuing complaints', Family Law Week, 27/9/10

• Victoria Butler-Cole and Alex Ruck Keene, 'Preparing care plans, transition plans and best interests assessments for Court of Protection proceedings', 39 Essex Street, November 2009

• Family Law Week:

• Sally Bradley, 'Court of Protection Update (January 2011)' (Family Law Week, 7/1/11)

• Sally Bradley, 'Court of Protection Update (October 2011)' (Family Law Week, 2/10/11)

• Sally Bradley, 'Court of Protection Update (January 2012)' (Family Law Week, 18/1/12)

• Directgov, 'Making an application to the Court of Protection'

• Lucy Series, 'Access, reporting and judgments in the Court of Protection' (Small Places blog, 29/7/11)

• Jan Insley, 'Court Funds claimants losing out to effects of tax and inflation' (30/7/11)

• Letter from COP Court Manager (July 2011) and associated COP Questionnaire (July 2011)

• Guardian newspaper list of Court of Protection articles (automatically updated). Selected articles below:

• Amelia Hill, 'Court of protection should be open to public scrutiny, says leading judge' (Guardian, 6/11/11)

• Amelia Hill, 'The court of protection: defender of the vulnerable or shadowy and unjust?' (Guardian, 6/11/11)

• Martin Terrell, 'Court of protection must balance needs of vulnerable with rights of family' (Guardian, 7/11/11)

• David Lock, 'Best Interest decision-making in the Court of Protection' (No 5 Chambers, 28/2/12)

General press articles following Stoke City Council v Maddocks [2012] EWHC B31 (COP), [2012] MHLO 111 case:

• Sue Reid, 'Neil has an IQ of 125 and runs his own business. So why won't a secret court let him spend his own money?' (Daily Mail, 28/4/13)

• Chris Green, 'The blind pianist who led our reporter to a closed courtroom' (Independent, 2/5/13)

INFORMATION

• Representation
  • The role of the mental health lawyer
  • Ethical and other conduct guidance for lawyers
  • Case preparation
• Civil sections and CTOs
  • Section 2: admission for assessment
  • Section 3: admission for treatment
  • Section 4: emergency admission for assessment
  • Section 5: holding powers
  • Section 7: guardianship
  • Community Treatment Order
• Criminal sections
  • Section 37: hospital order
  • Section 37/41: hospital order with restrictions
  • Conditional discharge resources
  • Sections 47, 48 and 49: transferred prisoners
  • Prison sentences
  • Notional s37
  • Section 45A: hospital direction
  • Section 38: interim hospital order
  • Section 135: Warrant to search for and remove patients
  • Section 136: Mentally disordered persons found in public places
  • Section 35: Remand to hospital for report on accused’s mental condition
  • Section 36: Remand of accused person to hospital for treatment
  • Section 37: guardianship order
  • Section 43: committal by magistrates for restriction order
  • Section 44: committal to hospital under s43
  • Section 51(5): hospital order without conviction
  • Detention under insanity legislation
  • Admission order
• Aftercare
  • Patients who are eligible for aftercare
  • The aftercare duty and its duration
  • The definition of aftercare
  • Charging for aftercare services
  • Which authority pays for aftercare
  • Ordinary residence ...
• Mental Health Tribunal
  • Tribunal Rules
  • Preliminary legal points
    • Standard and burden of proof (MHT)
    • Delay (MHT)
    • Re-sectioning after tribunal discharge
  • Tribunal eligibility
    • Eligibility periods
    • Change in status during tribunal proceedings
  • Commentary on some FTT matters
    • Overriding objective (MHT)
    • Applications (MHT)
    • Parties (MHT)
    • Victims (MHT)
    • Representatives (MHT)
    • Notice of proceedings, and listing (MHT)
    • Medical examination (MHT)
    • Remote hearings (MHT)
    • Recording of hearings (MHT)
    • Disposal without hearing (MHT)
    • Hearing in a party’s absence (MHT)
    • Decisions by a single judge (MHT)
    • Reports (MHT)
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    • Non-disclosure of documents and information (MHT)
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    • Appealing against a tribunal decision (MHT)
• Mandatory and discretionary references
• Nearest relative
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  • Identification of nearest relative
  • Nearest relative powers
    • Nearest relative powers - introduction
    • Nearest relative's right to receive information
    • Right to apply to Tribunal
    • Right to be consulted and to object to s3 admission
    • Right to discharge from guardianship
    • Right to request discharge of s2 or s3 or CTO
    • Dangerousness criterion
  • Changing the nearest relative
    • Delegation by existing nearest relative
    • Displacement (appointment) by county court
  • Nearest relative - miscellaneous
• Legal Aid
  • Contracts
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  • Main types of funding
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    • Peer review
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    • Non-means-tested non-tribunal matters
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• International law
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  • The CRPD and mental health law

• Representation
• Civil sections and CTOs
• Criminal sections
• Aftercare
• Mental Health Tribunal
• Mandatory and discretionary references
• Nearest relative
• Legal Aid
• International law

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• Changes made by MHA 2007
  • 16- or 17-year-old with capacity cannot be detained on basis of parental consent
  • Abnormally aggressive or seriously irresponsible conduct is only a consideration for learning disability (not personality disorder)
  • Additional safeguards for ECT introduced in new s58A
  • Appropriate treatment test replaces treatability test and applies to all patients under long-term detention
  • Approved Mental Health Professional replaces Approved Social Worker
  • Automatic reference scheme under s68 changed
  • Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005
  • Civil partners are treated as if married when determining nearest relative
  • Conditionally-discharged hospital direction patients can be absolutely discharged by MHRT
  • Domestic Violence Crime and Victims Act 2004 applies to unrestricted criminal patients
  • Fundamental principles set out in Act and included in Code of Practice
  • Higher penalties for offences under Act
  • Hospital direction patients can no longer apply to Tribunal during first six months
  • Hospital directions under s45A apply to any mental disorder
  • Legal status of Code of Practice set out in Act
  • Limitation to the exceptions to the duty to instruct IMCA
  • Mental disorder no longer split into separate classifications
  • Minor drafting error in MCA 2005 corrected
  • New cross-border arrangements for leave and transfer
  • New definition of medical treatment
  • New Independent Mental Health Advocate scheme
  • New procedure for renewal of detention
  • New regulations on conflicts of interest
  • New requirements for age-appropriate accommodation for children
  • NHS Foundation Trusts discharge power problem remedied
  • Organisation of Mental Health Review Tribunal changed
  • Patient can apply to displace nearest relative, who can now be displaced on grounds of unsuitability
  • Patients can be transferred between places of safety under s135 and s136
  • Procedure for making of instruments by Welsh Ministers set out
  • Reference to Local Health Boards inserted into Act
  • Responsible Clinician/Approved Clinician replaces Responsible Medical Officer
  • Restriction orders can no longer be time-limited
  • SOAD certificate becomes invalid when patient loses or gains capacity
  • Some exclusions to definition of mental disorder have been removed
  • Supervised Community Treatment replaces Supervised Discharge
  • Transitional provisions until full implementation of MHA 2007
  • Treatment while under SCT is covered by new Part 4A
• Coronavirus
  • Coronavirus resources
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• Legislation overviews
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• Mental capacity law
  • Capacity to consent to sexual relations
  • Court of Protection Practice Directions
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• Organisations
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  • All Party Parliamentary Group on Legal Aid
  • Care and Social Services Inspectorate Wales
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  • Civil Contracts Consultative Group
  • Commission for Social Care Inspection
  • Community Care (company)
  • Court of Protection User Group
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  • European Union Agency for Fundamental Rights
  • Family Law Week
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• Psychiatry
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• Statistics
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• The Law Society
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• Changes made by MHA 2007
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• Things to sign up for

What links here:

• Mental Capacity Act 2005
• Civil Procedure Rules 1998
• Mental Capacity Act 2005 (Transfer Of Proceedings) Order 2007
• Court of Protection Rules 2007
• COP
• Practice Guidance: Committal for Contempt of Court [2013] EWHC B4 (COP)
• Practice Guidance: Committal for Contempt of Court (Supplemental) [2013] EWHC B7 (COP)
• Freedom of Information Act 2000
• Court of Protection Rules 2017
• Lucy Series et al, 'Welfare cases in the Court of Protection: A statistical overview' (Cardiff University, 28/9/17)
• 39 Essex Street, 'Court of Protection update' (issue 11, July 2011)
• Judiciary of England and Wales, 'Court of Protection: 2009 report' (10/6/10)
• Contact:Court of Protection (High Holborn)