This is a post by Barbara Rich, originally published by her via twitter and kindly reproduced here with her permission. Barbara is a barrister in private practice at 5 Stone Buildings, Lincoln’s Inn, London. The views she expresses are personal.
The Daily Mail has published an “explainer” under the heading “What is the Court of Protection?” to accompany a news story about a current case in which the Court is considering whether to discontinue life-sustaining medical treatment for a man who is severely mentally incapacitated following a heart attack last year. [Ed : You can read the news story and explainer here : ‘There is no doubt my dad would want to live’: Daughter of a retired steelworker left brain damaged after a heart attack begs a judge to make doctors continue to treat him]
The “explainer” does not explain very much about the Court, contains many inaccuracies, and omits information which would give the public a better understanding of its work.
“Set up by Tony Blair’s government”
Whilst it is literally true that the Mental Capacity Act received Royal Assent during the Labour administration of Tony Blair (and came into force in 2007 after he had been replaced by Gordon Brown), it is nonsense to suggest that it was in any way a political statute or an expression of New Labour policy. As the explanatory notes to the Act make clear, the Act has its basis in the Law Commission’s report on Mental Capacity, published in February 1995 after extensive consultation. The Government in power in 1995 was Conservative, and the Prime Minister was John Major, not that that is any more relevant to the conceptual core of the Mental Capacity Act than the identity of the Prime Minister during its later gestation.
Whilst it is literally true that the Mental Capacity Act set up the Court of Protection in its current form (s45) as a superior court of record, there was a Court of Protection before the Act, which dealt only with the property and affairs of adults who lacked mental capacity. It ceased to exist when the Mental Capacity Act came into force.
“The troubled 2005 law”
The word “troubled” appears to be synonymous with “dysfunctional” or “unpopular”. It is true that the House of Lords post-legislative scrutiny report on the Act published in 2014 stated that adults were being failed by the Act, but, as the report explained, the failure was in understanding and implementation of the Act on the part of professionals involved in the care of adults who lack capacity, not in the structure of the legislation itself. The House of Lords’ “EasyRead”version of its report says in simple terms: “We still think the MCA is a great idea”.
I believe that the Daily Mail’s use of the word “troubled” is an exaggeration, consistent with a general editorial approach of apparent antagonism to the Act and the Court. I’ve written elsewhere about one example of its misleading and scare- mongering coverage of the work of the Court of Protection.
“For the first time gave legal force to ‘living wills’ that allow people to order doctors to let them die”
This isn’t accurate. As the Act’s Explanatory Notes say (at paragraph 84) the sections dealing with advance decisions to refuse treatment “seek to codify and clarify the current common law rules, integrating them into the broad scheme of the Act” – in other words, the law had decided that it was possible to give such advance directions before the Act, and this is largely a tidying-up exercise.
“At first the Lord Chancellor said the court would be open to the public”
Although it is true that the Court’s 2007 rules state as a general rule that a hearing is to be held in private, a transparency pilot for increased access to the Court for the public and media has been in place for a year, and extended until August 2017.
Practice Guidance on publishing anonymised judgments has been in place since January 2014, and numerous judgments have been published on the BAILII website since then.
A recent case about serious medical treatment – that of Paul Briggs, a police officer who was in a minimally conscious state following a road traffic accident, and whose wife Lindsey successfully argued that giving effect to his assumed wish for his life in that condition not to be prolonged would be in his best interests – was fully publicised at every stage, including live tweeting from the courtroom with the permission of the judge. The Court’s Practice Direction 9E relating to serious medical treatment cases says that the court will ordinarily order that any hearing of a serious medical treatment case will be held in public, with restrictions on publication of information about the proceedings. The purpose of such restrictions isn’t to veil the workings of the law in secrecy, but to preserve what remains of the dignity of people whose lives and bodies have been utterly diminished by mental incapacity, with obvious suffering for their families and others close to them.
“The secrecy has veiled serious rows over ‘deprivation of liberty’ rules in the Mental Capacity Act”
It is true that the definition of what constitutes a ‘deprivation of liberty’ and its implications for people in care homes or whose care is provided outside a care home is the subject of acute judicial debate. But I don’t think it’s true to say that this debate on the interpretation of law has been veiled in secrecy – important judgments of the Court of Protection, the Court of Appeal and the Supreme Court have been published and can be read by anyone.
“It has been alleged to protect people who appear to be a risk to the public”
The incompetent or fraudulent person who has been given authority to act under an enduring or lasting power of attorney, or as a Court-appointed deputy for property and affairs, is a familiar figure in many of the judgments published since the Practice Guidance of January 2014. The particular case that the Mail refers to – that of a gardener who drained more than £200,000 from the funds of an 89 year old woman with incipient dementia – was one of the first such published judgments. It can be read by anyone here.
The gardener, JM, had been chosen by the woman, DP, to act as her attorney. It’s a structural feature of appointing an attorney that the Court does not control the appointment or day-to-day conduct of the attorney, unless a concern about conduct is brought to the Court’s attention, which is what happened here. By the time the case came to the Court’s (and before that the Public Guardian’s) attention, the £200,000 the Mail refers to had been taken by JM and put in his own name. He put £165,000 into DP’s name when he became aware that the Public Guardian was investigating his attorneyship. The Court decided that he should be removed as her attorney, and appointed an independent professional person to act as DP’s property and affairs deputy instead. The Court is a civil court and doesn’t have the power to initiate a prosecution or impose criminal penalties itself. In this, as in similar cases, it acted to protect the public by taking JM’s authority to act for DP away from him.
In another 2013-2014 case, involving a Mrs Gladys Meek, who sadly died very shortly after the last hearing, the Court was extremely critical of the “total unacceptability” of the conduct of two property and affairs deputies, and made a number of orders to put right much of what they had done wrong.
The judge was also asked to consider whether the deputy who had replaced them should report the matter to the police. He decided (at a time when Mrs Meek was still alive) that it would not be in her best interests. He said:
“In my judgment, it would not be in Mrs Meek’s best interests for this to be done. Were the police to be alerted to this, I have no doubt that they would wish to contact the deputy, and that further costs would be incurred by him which would have to be defrayed out of Mrs Meek’s estate. I am also concerned that any police investigation would raise a serious risk that Mrs Johnson and Mrs Miller [the previous deputies] would be advised to cease any continuing contact with Mrs Gladys Meek whilst the police investigation, and any subsequent prosecution, were continuing and pending. I am also concerned that a police investigation might result in an approach, or approaches, whether directly by the police themselves, or indirectly through Social Services or some other body, to Mrs Meek; and again that would not be in her best interests. I am also concerned that it may be that any police investigation would involve Mrs Johnson or Mrs Miller in having to fund the defence of those criminal proceedings; and again that might operate to Mrs Meek’s detriment in diverting resources away from her continuing care. So, for those reasons, I am not proposing to direct that the panel deputy should refer the matter to the police.”
If the Daily Mail needed an illustration of a case in which there has been no secrecy, for the judge authorised publication of the 2014 judgment in full and without anonymisation, and a wide-ranging review of what the Court can and does do to protect adults who lack capacity from incompetent or dishonest office-holders, it should have looked no further than this case.
Feature Pic courtesy of Steve Rotman on Flickr – thanks!