Public

Local authorities in the Court of Protection – new research

Lucy Series

29 January 2015

Researchers at Cardiff Law School have recently completed a study of local authorities involvement in welfare cases in the Court of Protection (CoP).

You can read a copy of our report here: Local Authorities’ Use of the CoP

Welfare cases in the Court of Protection

The CoP was established by the Mental Capacity Act 2005 (MCA) as a special court to make decisions on matters relating to people who may lack the mental capacity to make decisions for themselves.

Most of the court’s work is about the property and affairs of people with conditions such as dementia, brain injuries or learning disabilities, who need somebody else to manage them on their behalf.  However, a growing volume of the court’s work is also about health and welfare decisions.  For example, whether or not a person should have a particular medical treatment.  Increasingly, the court is called upon to make decisions about wider welfare matters such as where a person lives, how they are cared for, who they should have contact with and decisions about relationship matters such as sex and marriage.  Very often, local authorities are involved in these cases, because local authorities often provide care to people in the community, they are responsible for safeguarding adults who may be at risk of abuse or neglect and because they are responsible for administering a framework called the deprivation of liberty safeguards which means that care homes and hospitals may apply for authorisation for people to be deprived of their liberty in their best interests.

Recently the Supreme Court ruled that people are deprived of their liberty, and need special safeguards to protect their human rights, if they are under constant or continuous supervision and control and are not free to leave their care setting (P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19).  This judgment, known as Cheshire West, means that the Court of Protection is likely to hear many more cases about deprivation of liberty in the future, and most of these will involve local authorities.

Concerns about cost, delay and access to the court

Several people have raised concerns that CoP welfare proceedings can be costly and can last a long time.  The House of Lords Select Committee on the Mental Capacity Act 2005 raised concerns about this in a report, and some judges of the CoP have expressed concern about long lasting and expensive cases (A & B (Court of Protection: Delay and Costs) [2014] EWCOP 48; A Local Authority v ED & Ors [2013] EWHC 3069 (CoP)).  However, not very much was known about how much these cases typically cost or how long they lasted.

The House of Lords Select Committee on the Mental Capacity Act 2005 were also concerned that in situations where a person or their family might disagree with public authorities about their mental capacity or best interests, serious disputes that could not be resolved by other means might not be referred to the CoP.  This mean that people might find it very hard to challenge decisions about their mental capacity and best interests that they disagreed with.  In an important case about a young man called Steven Neary, who was unlawfully deprived of his liberty in a care home despite his objections and those of his father, the court said that disputes about serious welfare matters that could not be resolved by other means had to be referred to the Court of Protection (London Borough of Hillingdon v Neary & Anor [2011] EWHC 1377 (COP)).  Failure on the part of public authorities to refer serious disputes to court can be a serious violation of people’s human rights, and there have been a growing number of cases where the CoP has found human rights violations by local authorities who did not refer disputes to court when they should have done.  However, very little is known about how often cases end up in court, and whether different local authorities are more or less likely to apply to the court.

In our study, we used the Freedom of Information Act 2000 to ask local authorities in England and Wales to tell us about how many CoP welfare cases they had been involved in during 2013-14, what they were about (in broad terms), how long they had lasted, and how much they cost.  We also wrote to Local Health Boards in Wales, because (unlike in England) they are responsible for administering the deprivation of liberty safeguards.  82% of local authorities provided us with some or all of the information we requested.

Main findings of the research

  • Most local authorities were involved in at least one welfare case in 2013-14.  However, there were large variations in how many cases they were involved in.
  • Most local authorities in England had been involved in three cases that year, 20% had been involved in five or more, 4% in ten or more and one had as many as 17 cases.  In Wales, most local authorities had only been involved in one case, and none had been involved in more than three.  These differences in how often individual local authorities are involved in CoP welfare cases, and the differences between England and Wales, could not be explained by population size alone.
  • There were only a small number of cases involving the deprivation of liberty safeguards in contrast with the overall number of people who were subject to an authorisation in 2013-14.
  • Of the seven Local Health Boards in Wales that are responsible for administering the deprivation of liberty safeguards, only one was involved in any Court of Protection cases.
  • Two thirds of all cases were about people who were deprived of their liberty.
  • Most applications were made by local authorities; applications to the CoP by families and people who may lack mental capacity, or their advocates, were comparatively rare.
  • The average duration of a CoP welfare case is 12 months.  Some cases lasted a very long time – 18% of cases in our sample lasted 18 months or longer, and the longest running cases had lasted as long as seven years.  However, many of these longer running cases involved situations where the CoP had to review a deprivation of liberty every year, and so it would not be truly ‘over’ and did not necessarily involve any dispute about a person’s care.  Some cases involved the deprivation of liberty safeguards, and these cases lasted on average ten months.
  • Many local authorities estimated how much welfare cases cost them, but these are likely to be under-estimates as most did not include the cost of social care staff time and several did not include the cost of local authority legal staff.  However, we found that half of all cases in our study cost local authorities £8,150 or more.  The biggest single cost was the time of in-house legal staff, followed by fees for barristers and then expert reports.  Cases involving a deprivation of liberty were more costly than other cases.
  • The very variable use of the CoP by local authorities could be because of variations in settling disputes out of court.  However, it could also be because some local authorities are not complying with guidance to refer disputes to court – which may amount to serious human rights violations.
  • The low number of cases concerning the deprivation of liberty safeguards are a cause for concern, as it may mean that people are not able to exercise rights of appeal against detention in a care home or hospital when they or their family do not want them to be there.
  • Our research does confirm reports that proceedings in the CoP can be costly and can last a long time.  However, we are unable to say why this is.  It could be because these cases are very complex, and because sometimes courts have to wait and see how a situation develops before they can make final orders.  Some cases are never truly over because the court has to review them every year.  However, it could also be that there are procedural changes that could be made that could reduce the cost and duration of proceedings.  Further research is needed to explore these possibilities.

Main conclusions and recommendations

  • The very variable use of the CoP by local authorities could be because of variations in settling disputes out of court.  However, it could also be because some local authorities are not complying with guidance to refer disputes to court – which may amount to serious human rights violations.
  • The low number of cases concerning the deprivation of liberty safeguards are a cause for concern, as it may mean that people are not able to exercise rights of appeal against detention in a care home or hospital when they or their family do not want them to be there.
  • Our research does confirm reports that proceedings in the CoP can be costly and can last a long time.  However, we are unable to say why this is.  It could be because these cases are very complex, and because sometimes courts have to wait and see how a situation develops before they can make final orders.  Some cases are never truly over because the court has to review them every year.  However, it could also be that there are procedural changes that could be made that could reduce the cost and duration of proceedings.  Further research is needed to explore these possibilities.

Information about the research project

This report is part of a research project on welfare cases in the CoP, funded by the Nuffield Foundation.  The research project is led by Professor Phil Fennell.  The report’s lead author was Dr Lucy Series, and Dr Julie Doughty and Professor Luke Clements are consultants on the research project.  Three undergraduate law students – Adam Mercer, Abigail Walbridge and Katie Mobbs – worked on the research project, helping to collect and analyse data and write up the results.  Their bursaries were funded by the Centre for Health and Social Care Law and Cardiff Undergraduate Research Opportunities Programme.