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Court of Protection Shakeup

On 9 March 2015, the new Court of Protection (Amendment) Rules 2015 were laid before parliament. They amend the previous Court of Protection Rules 2007, dealing with the administrative and procedural aspects of the court. Some of the amended rules will take effect from 6 April 2015, others from 1 July 2015 and result largely from the post-Cheshire West deprivation of liberty safeguarding (DOLS) cases, Re X and Re X (No. 2), where concerns about court caseload and procedure in DOLS cases were heard by the court. It is anticipated that, due to the decision of the Supreme Court in Cheshire West, the court will receive over 32,000 DOLS applications annually from local authorities, compared to just 200 in 2013 - 14.

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Summary of changes

Application of Family Procedure Rules

Under the amended rules, the court may now also apply the Family Procedure Rules as well as the Civil Procedure Rules to determine certain types of case and the issue of costs.

The participation of P

Under the 2007 rules, there is a negatively drafted provision that the person lacking capacity (“P”) shall not be named as a respondent unless the court provides otherwise.

Under the amended rules, in all cases, the court must actively consider whether P’s interests are being sufficiently represented in the proceedings. Accordingly, the court may, on its own initiative, make directions joining P as a party or, where that would not be possible or practical, securing his or her participation by other means. These would include representation at court by an accredited legal representative, by a representative providing the court with information, or by P being able to address the judge by other less formal means.

Accredited legal representatives

The amended rules refer to new “accredited legal representatives”, who will be authorised pursuant to a scheme of accreditation approved by the President of the Court of Protection. The Law Society is already in the process of canvassing practitioners as to their views on such a scheme.

The duty of the parties

It is fair to say that the old Rules 3 and 4 perhaps resulted in an impression that it is for the court alone to ensure that a case is dealt with justly (“the overriding objective”) and the duties of the parties in proceedings are limited to “helping” the court. Unfortunately, this has had undesirable results, summarised in the case of A&B (Court of Protection: Delay and Costs) before Mr Justice Jackson in October 2014. New Rule 4 now places distinct and positive responsibilities on the parties to work together to identify and narrow the issues before the court, and to adhere to court timetables and directions.

Jurisdiction of certain judges

In light of the anticipated increase in the DOLS caseload, there is now reference in the rules to new categories of Tier 1, 2 or 3 judges so that judges from other jurisdictions can be “drafted in” to hear cases. Appeals against decisions made by these “additional” judges would normally be transferred to the Court of Appeal (at some resourcing cost), and so the rules have also been amended to keep the appeal process within the Court of Protection in respect of any decisions made on or after 6 April 2015 (saving the government £19 million this year alone, according to the MoJ recommendation paper).