2. What is the Court of Protection?

The Court of Protection is a new court established by the MCA to hear cases about mental capacity, best interests and related matters under the Act.  Before the MCA the High Court used to deal with health and welfare matters, and an office of the Supreme Court which is sometimes called the ‘old Court of Protection’ dealt with property and affairs matters.  The Court of Protection’s powers are set out in the MCA, and it also has its own special court rules.  The Court of Protection can ‘sit’ at many different levels, from district judges through to circuit judges and high court judges.  Its main offices are in London, but it can also have hearings in regional courts around the country.  The Ministry of Justice has a page with more information about the Court of Protection.

The Court of Protection is led by Sir James Munby (President of the Family Courts and the Court of Protection), Sir William Charles (Vice-President of the Court of Protection), and Senior Judge Lush.

Some issues under the MCA have to go to the Court of Protection – for example decisions about non-therapeutic sterilization.  In other cases where there is a dispute about a person’s capacity or best interests, or if there is doubt about the best course of action, then an application to the Court of Protection may need to be made.  The MCA Code of Practice offers further guidance on when cases should go to the Court of Protection.

The Court of Protection can also appoint ‘deputies’ to make decisions on behalf of people in areas where they lack capacity.  Deputies are most common for property and affairs matters.  A small number are appointed for health and welfare matters, but generally these applications are rejected because it is possible to make most health and welfare decisions without a court authorisation, using a ‘general defence’ contained within s5-6 MCA.

The Court of Protection usually sits in ‘private’, but increasingly judges choose to publish their decisions so that the public can be made aware of important decisions.  The number of published judgments is likely to increase because of new transparency guidance issued by Sir James Munby.  You can read these decisions in a number of places, including the British and Irish Legal Information Institute (BAILII) website, Mental Health Law Online or in the Court of Protection Law Reports.  Barristers at 39 Essex Street write a monthly newsletter about the MCA, and have put together a database where you can search or browse online for summaries of Court of Protection cases.

You can also read some early reports from the Court of Protection online.