The Court of Protection (CoP) was established by the Mental Capacity Act 2005 (MCA) to adjudicate on issues relating to mental capacity and best interests. It can also determine questions relating to MCA deprivation of liberty safeguards (DoLS) authorisations issued by supervisory bodies, and authorize deprivation of liberty in hospitals and care settings.  We requested information from local authorities about their involvement in CoP welfare cases during 2013-14 using the Freedom of Information Act 2000.

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

Key findings:

• 81% of authorities in England reported at least one welfare case, the average number for a local authority in England was three and 4% of authorities had been involved in more than ten.
• In Wales, 56% of local authorities reported at least one welfare case, the average number was one and none had been involved in more than three.
• Variations in the number of cases between local authorities could not be explained by population size alone, and neither could lower patterns of use of the court in Wales.
• Almost three quarters of applications to the court were made by local authorities; applications by the relevant person, their family or an advocate were rarer.
• Applications from the relevant person or an advocate were more common where the relevant person was subject to a deprivation of liberty  authorization under Schedule A1 to the MCA 2005.
• In 62% of cases the relevant person was deprived of their liberty, either by an authorization under Schedule A1 (25%), by order of the CoP (43%) or both (15%).
• Half of all completed cases reported in our study lasted nine months or longer; half of all ongoing cases lasted twelve months or longer.
• Some cases had lasted as long as seven years; these are likely to be situations where a person is deprived of their liberty but its continuation must be regularly authorized by a court because it is in a setting where the DoLS administrative procedures do not apply.
• Half of all cases reported in our study were estimated to have cost local authorities £8,881 or more, but this figure is likely to be an under-estimate.  One case was estimated to have cost a local authority £250,000.
• The greatest cost to a local authority was the time of in-house legal staff – costing £8,150 or more.  The next greatest cost was fees for counsel, with half costing £3,198 or more, followed by the local authorities’ contributions to independent expert reports, with half costing £1,357 or more.

Recommendations and conclusions

Those responsible for monitoring health and social care in general, and the deprivation of liberty safeguards in particular, should ensure that authorities understand and comply with obligations to refer cases to the CoP in line with legal guidance.

The high cost of CoP proceedings is a matter of serious concern, especially in light of the ruling in Cheshire West which is predicted to lead to an exponential increase in applications in 2014-15.

The underlying reasons for the high cost and lengthy duration of CoP proceedings requires urgent investigation.

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.