Legal Eagle: The Court of Protection - what is it?

It was introduced by the Mental Capacity Act 2005 and is there to provide best interest decisions for those who cannot make decisions for themselves.

In addition to the Mental Capacity Act, the Court of Protection also has to consider the Human Rights Act 1998. Often issues relating to a person’s Article 5 right to liberty and Article 8 right to a private life are brought into contest within these types of proceedings. The court has to ensure that if they are to make deprivations of such rights, they are making these decisions lawfully.

The Court of Protection is able to make decisions around a person’s welfare, medical treatment and financial affairs. However, it is worth noting that court should be a last resort. Attempts can be made with the local authority or family members to try and narrow issues between parties, and through mediation.

How to bring a Deprivation of Liberty (DoL) matter to the Court of Protection

Where someone is subject to a standard authorisation depriving them of their liberty they will be appointed a Relevant Person’s Representative (RPR). An RPR is an independent person who acts on behalf of a person who lacks capacity. Usually, proceedings to challenge a DoLS are brought by a person’s RPR. Where the incapacitated person is continuously objecting to their placement, their RPR must bring section 21A proceedings.

Section 21A proceedings allows for a person who has been deprived of their liberty to challenge their placement in court. This allows for a judge to review the placement and consider whether the standard authorisation could be varied or discharged.

Proceedings can also be brought to the court’s attention by family members or the local authority.

How does the Court of Protection run?

In cases relating to welfare, it is normal for hearings to be arranged, but then vacated if parties can agree to an order beforehand. P (the relevant person) is encouraged to be involved in the proceedings as much as possible. This is often done via a combination of visits with a solicitor who will pass on their views to the court as well as the judge visiting P at their placement.

It is worth nothing that there are limitations on what the Court of Protection can do. The court can only make a decision between the available options. For example, the court could not decide to send P to a placement which does not have a bed available, as this would not be an available option.

Where the parties are unable to come to an agreement, the case will be listed for a final hearing which will gather all evidence together and the Judge will make a decision as to what is in P’s best interests.

Ben Hoare Bell LLP has specialist Court of Protection solicitors who can help with issues surrounding the Court of Protection.

To speak to a solicitor please contact us on 0191 275 2626 or email [email protected].