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Court of Handbook Protection Court of Court of Court of Court of Protection Protection Protection Protection Court of Court of Court of Court of Protection Protection Protection Protection SUPPLEMENT TO THE SECOND EDITION Court of Court of Protection Protection Handbook Handbook a user’s guide Alex Ruck Keene, Kate Edwards, Professor Anselm Eldergill and Sophy Miles Cover design by Tom Keates the access to the access to justice charity justice charity courtofprotectionhandbook.com Court of Protection Handbook is supported by courtofprotectionhandbook.com On the site, you will find: • links to relevant statutory materials and other guidance that space precluded us from including in the appendices; • precedent orders covering the most common situations that arise before the court; • useful (free) web resources; and • updates on practice and procedure before the Court of Protection. These updates take the form of posts on the site’s blog, and also (where relevant) updates cross-referenced to the relevant paragraphs in the book. ThisRegist supplementer to receive toemail Courtup ofdat Protectiones at www Handbook.courtofprot includesectionhandb theoo Courtk.com of Protection Rules 2017 and commentary from the authors highlighting Follow us on Twitter @COPhandbook developments since the second edition. Readers also have access to courtofprotectionhandbook.com which provides regular updates on practice and procedure before the Court of Protection cross-referenced to the relevant parts of the book, together with links to all the relevant statutory materials and guidance. A revised second edition of Court of Protection Handbook which incorporates this supplementary material and the new rules in a single volume of the work is available: Pb 978 1 912273 10 2 / December 2017 / £65 Order at lag.org.uk Phone 01235 465577 Email [email protected] Available as an ebook at www.lag.org.uk/ebooks The purpose of Legal Action Group is to promote equal access to justice for all members of society who are socially, economically or otherwise disadvantaged. To this end, it seeks to improve law and practice, the administration of justice and legal services. 33132.indb 2 09/12/2016 16:11 The purpose of Legal Action Group is to promote equal access to justice for all members of society who are socially, economically or otherwise disadvantaged. To this end, it seeks to improve law and practice, the administration of justice and legal services. Court of Protection Handbook_Supplement.indd 2 16/11/2017 09:33:32 Court of Protection CourtHandbookof Protection HandbookA user’s guide A user’s guide SUPPLEMENT TO THE SECOND EDITION SECOND EDITION Alex Ruck Keene, Kate Edwards, Professor Anselm Eldergill Alexand RuckSophyKeene, Miles Kate Edwards, Professor Anselm Eldergill and Sophy Miles Legal Action Group 20172018 Court of Protection Handbook_Supplement.indd 3 16/11/2017 09:33:33 33132.indb 3 09/12/2016 16:11 This supplement to the second edition published in Great Britain 2018 by LAG Education and Service Trust Limited National Pro Bono Centre, 48 Chancery Lane, London WC2A 1JF www.lag.org.uk © Alex Ruck Keene, Kate Edwards, Professor Anselm Eldergill and Sophy Miles 2018 First edition published 2014 Revised first edition published 2016 Second edition published 2017 While every effort has been made to ensure that the details in this text are correct, readers must be aware that the law changes and that the accuracy of the material cannot be guaranteed and the author and the publisher accept no responsibility for any losses or damage sustained. The rights of the authors to be identified as authors of this work has been asserted by them in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, without permission from the publisher. British Library Cataloguing in Publication Data a CIP catalogue record for this book is available from the British Library. Crown copyright material is produced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland. ® This book has been produced using Forest Stewardship Council (FSC) certified paper. The wood used to produce FSC certified products with a ‘Mixed Sources’ label comes from FSC certified well-managed forests, controlled sources and/or MIX recycled material. Paperfrom responsible sources FSC® C020438 Print ISBN 978 1 912273 11 9 eBook ISBN 978 1 912273 13 3 Typeset and Printed in Great Britain by Hobbs the Printers, Totton, Hampshire Court of Protection Handbook_Supplement.indd 4 16/11/2017 09:33:33 Contents Developments since the second edition 1 Introduction 2 Capacity 2 Best interests 3 Informal decision-making and the role of the Court of Protection 4 Case management 5 The participation of P 8 Public funding 8 Deprivation of liberty 8 Statutory wills, gifts and powers of attorney 11 Human rights 11 Destination table 12 Court of Protection Rules 2017 15 v Court of Protection Handbook_Supplement.indd 5 16/11/2017 09:33:33 Court of Protection Handbook_Supplement.indd 6 16/11/2017 09:33:33 UPDATE Developments since the second edition S.1 Introduction S.4 Capacity S.5 Best interests S.7 Informal decision-making and the role of the Court of Protection S.11 Case management S.16 The participation of P S.18 Public funding S.19 Deprivation of liberty S.24 Statutory wills, gifts and powers of attorney S.26 Human rights S.28 Destination table 1 Court of Protection Handbook_Supplement.indd 1 16/11/2017 09:33:34 2 Developments since the second edition Introduction S.1 The second edition of this book addressed the law as it stood on 1 November 2016. In material part, much of that law remains substan- tially the same as it did a year ago such that a third edition cannot yet be justified. However, as of 1 December 2017, the look of the Court of Protection Rules is to be dramatically changed with the coming into force of the Court of Protection Rules 2017, which will recast all of the Rules into the same format as the Civil Procedure and Family Procedure Rules. The new-look Court of Protection Rules will also incorporate those rules relating to case management which have, since September 2016, been implemented by way of the Case Man- agement Pilot. Accompanying – renumbered – Practice Directions will also cement into the practice of the Court the Transparency Pilot and the Section 49 Report Pilot. S.2 In the circumstances, we have prepared a revised second edition. The main body of the work remains unchanged, but the Court of Pro- tection Rules (to be found in appendix B) have been substituted with the Court of Protection Rules 2017. In this introductory supplement, we highlight the key developments in both substance and procedure over the past year. We also provide a table which will allow readers readily to identify where old (or Pilot) rules are now located in the Court of Protection Rules 2017. S.3 Readers can also use the free website accompanying the book (www.courtofprotectionhandbook.com) to keep themselves abreast of further developments prior to the publication of the third edition, which we anticipate for late 2018. The website also includes the new practice directions coming into force on 1 December 2017, includ- ing the important Practice Direction 24C providing for transitional arrangements. Capacity S.4 Unhelpful doubt was cast upon the long-established Re F1 test for engaging the interim jurisdiction of the Court of Protection by Hayden J in Wandsworth LBC v M and Others.2 Hayden J took the view that the test had been set too low, and suggested that the phrase ‘reason to believe’ that P lacks capacity in the Mental Capacity Act (MCA) 2005 s48 ‘must be predicated on solid and well reasoned assessment in which P’s voice can be heard clearly and in circum- 1 [2009] COPLR Con Vol 390. 2 [2017] EWHC 2435 (Fam). Court of Protection Handbook_Supplement.indd 2 16/11/2017 09:33:34 Developments since the second edition 3 stances where his own powers of reasoning have been given the most propitious opportunity to assert themselves.’3 This formulation of the test could pose problems where the application has been made to court precisely because it has not been possible to obtain access to the person to assess their capacity, and there are good reasons based on other evidence to consider that they do lack capacity. Hayden J did not have drawn to his attention that the test has been endorsed by (inter alia) the Vice-President of the Court of Protection, Charles J in Re UF,4 and it is suggested that practitioners should still, in appro- priate cases, approach the court even where it has not been possible to assess P personally. In any such case, the obvious – and crucial – first step will be for directions and orders to be made so as to secure proper evidence of P’s capacity to make the relevant decisions. Best interests S.5 Charles J undertook a detailed discussion of the approach to best interests in the context of life-sustaining treatment in Briggs v Briggs (No 2),5 emphasising that, although the test is not a ‘what P would have done test,’ it is nonetheless the case that if sufficiently reliable evidence exists, the answer to the question of whether P would have consented or refused is likely to be determinative of whether con- tinuing such treatment is in their best interests. Another example of the ‘Aintree effect’6 and the move closer towards substituted judg- ment where P’s wishes are sufficiently clear was B v D7 in which Baker J provisionally concluded that it was in the best interests of a brain-injured soldier to go to Serbia for highly experimental stem cell therapy, predominantly on the basis that it was clear that this was a course of action that the soldier deeply desired.
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