Update to para 5.35, page 160: Costs
Sophia Roper
17.05.17
In MR v SR and Bury Clinical Commissioning Group [2016] EWCOP 54[1], a rare costs award has been made in a medical case in the Court of Protection. The substantive application in this case was brought by SR’s daughter, MR, in the face of the Clinical Commissioning Group’s (‘CCG’) failure to do so. The CCG opposed the application and maintained its opposition until the Official Solicitor changed his position, after the first day of evidence. The parties then agreed that the application should be granted but Hayden J considered it necessary to hear a further day’s evidence from the three instructed experts before reaching his conclusion. MR sought her costs of bringing the application.
Hayden J observed that determination of costs is not a precise science but ‘an intuitive art reflecting the judge’s feel for the litigation as a whole’. He agreed with MR that the CCG were guilty of avoidable delay and ‘a disturbing disregard for National Guidelines’; he also agreed that MR should not have had to bring the application in the first place, noting that if the appropriate health authority had done so, MR could have avoided costs by ‘’sheltering under the wing’ of the Official Solicitor or health body. As applicant, she had no real choice other than to pay for representation. Hayden J said it would not be appropriate to burden the CCG with the full costs of the final hearing when he himself had made the decision to continue that hearing, but that he was satisfied that the CCG should pay half of MR’s costs.
This case is a reminder that the Court of Protection’s power to award is most often exercised when a public authority has failed to initiate proceedings. The logic is clear: apart from the significant costs consequences of being the applicant in proceedings, it is a huge emotional burden to start an application seeking the death of a close relative. It is also a reminder of the importance of following the RCP guidelines and complying with any directions as the courts continue to push for more efficient conduct of COP cases.
[1] the sequel to Re N; M v (1) Mrs N (By Her Litigation Friend the Official Solicitor) (2) Bury Clinical Commissioning Group (3) A Care Provider [2015] EWCOP 76, [2016] COPLR 88 [discussed at §13.11], in which Hayden J granted a declaration that it was lawful to withdraw life sustaining artificial nutrition and hydration from a woman with advanced multiple sclerosis, who was found to be in a minimally conscious state.
Update to para 5.30, page 152: Deprivation of Liberty para 5.31, page 153: How are proceedings begun?
Sophia Roper
01.03.17
The substantive judgment in Briggs (please see our previous update) has received wide publicity. Shortly before the final hearing, Charles J considered as a preliminary issue whether Mr Briggs’ wife was properly able to bring proceedings under s21A MCA 2005 seeking a declaration that it was in Mr Briggs’ best interest for artificial feeding and hydration to be withdrawn. S21A MCA is the provision under which applications are brought to challenge a standard authorisation, and is more typically used – so far – where P has been placed in a care home and objects to the restrictions on his/her liberty arising out of implementation of the care plan.
Mrs Briggs was open about the purpose of the application, which was to secure non-means tested legal aid (available for applications brought under s21A MCA 2005 but not for other MCA applications). The case was argued on the basis that Mr Briggs was being deprived of his liberty and therefore properly subject to a standard authorisation, but significantly, all parties reserved the right to argue otherwise.[2]
Charles J held that the application was properly brought: on a s21A application, the Court of Protection had wide ranging powers to make declarations and orders under ss15 and 16 MCA 2005.[3] In determining whether the best interests condition for a standard authorisation is met, the Court had to consider both ‘the impact of possible and available alternatives’ and ‘as far as reasonably ascertainable, P’s past and present wishes and feelings, beliefs and values and factors that P would be likely to consider if he were able to do so.’[4]
Charles J observed that many s21A applications turn on the best interest assessment and lead to changes in the care package to make it less restrictive, rather than to P being no longer deprived of his/her liberty. He also observed that there was no problem in complying with Practice Direction 9E on an application under s21A. The CCG was commended for discontinuing the s16 proceedings which it had brought, in order to allow the case to proceed under s21A and allow Mrs Briggs access to legal representation.
The judgment, if maintained on appeal, is likely to lead to many more applications being brought under s21A MCA rather than s16, and where applications have been brought under s16, to applications for a direction deeming the proceedings to have been brought under s21A, in order for one party to secure non means tested legal aid.
Given the overall benefit of all parties being adequately represented, the authors suggest that whenever a standard authorisation is in place, consideration should be given to bringing proceedings by this route if it will enable a family member to be properly represented.[5] It is not suggested, however, that this should have any impact on the usual rule in cases of serious medical treatment that the applicant Trust or CCG should pay half the costs of the Official Solicitor which he incurs in representing P.
[1] http://bit.ly/2lrvpuW
[2] And may well do so, especially after the Court of Appeal decision in R (ota Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 (see here)
[3] Following Re UF [2013] EWHC 4289 at para [11] and CC v KK [2012] EWHC 2136 (COP),
[4] Paragraph 52
[5] And see also MR v SR & Anor [2016] EWCOP 54
UPDATES BY PARAGRAPH ORDER
Update to para 5.12, page 132: Introduction to the Official Solicitor para 5.26, page 147: Litigation Friend para 5.58, page 170: The High Court’s inherent jurisdiction in relation to vulnerable adults Appendix 5.7
Sophia Roper
01.03.17
The Official Solicitor has isued a new and amplified Practice Direction – Appointment In Family Proceedings And Proceedings Under The Inherent Jurisdiction In Relation To Adults, January 2017: http://bit.ly/2lYHJ8O
This replaces the Practice Direction issued in March 2013, set out at Appendix 5.7.
The new Practice Direction provides a new section on vulnerable adults, good news on rapid allocation times and updated contact details for the Official Solicitor and is set out in the updated Appendix 5.7 here.
Update to para 5.22, page 138: Sources of Procedural Rules and Guidance Court of Protection (Amendment) Rules 2017
Court of Protection (Amendment) Rules 2017
Sophia Roper
01.03.17
The Court of Protection (Amendment) Rules 2017[1] (in force on 6 April 2017) allow the Court of Protection to make civil restraint orders, preventing a party who has made an application which is totally without merit from bringing further applications. See also Practice Direction 23C.
Provision is made for applications under MCA 2005 schedule 3 for the international protection of adults: see Practice Direction 24A.
The transparency pilot direction, which hitherto did not apply to cases of serious medical treatment, generally applies to these cases (and the requirement for notifying Copy Direct has been dropped). Paragraph 16 of PD9E (providing that the court will usually make an order that the hearing is to be in public with reporting restrictions) will not apply if the transparency pilot direction applies.
It is understood that a new model order will be issued shortly; a link to this and to the judiciary website will be provided when available.
Update to para 5.30, page 152: Deprivation of Liberty para 5.31, page 153: How are proceedings begun?
Sophia Roper
01.03.17
The substantive judgment in Briggs (please see our previous update) has received wide publicity. Shortly before the final hearing, Charles J considered as a preliminary issue whether Mr Briggs’ wife was properly able to bring proceedings under s21A MCA 2005 seeking a declaration that it was in Mr Briggs’ best interest for artificial feeding and hydration to be withdrawn. S21A MCA is the provision under which applications are brought to challenge a standard authorisation, and is more typically used – so far – where P has been placed in a care home and objects to the restrictions on his/her liberty arising out of implementation of the care plan.
Mrs Briggs was open about the purpose of the application, which was to secure non-means tested legal aid (available for applications brought under s21A MCA 2005 but not for other MCA applications). The case was argued on the basis that Mr Briggs was being deprived of his liberty and therefore properly subject to a standard authorisation, but significantly, all parties reserved the right to argue otherwise.[2]
Charles J held that the application was properly brought: on a s21A application, the Court of Protection had wide ranging powers to make declarations and orders under ss15 and 16 MCA 2005.[3] In determining whether the best interests condition for a standard authorisation is met, the Court had to consider both ‘the impact of possible and available alternatives’ and ‘as far as reasonably ascertainable, P’s past and present wishes and feelings, beliefs and values and factors that P would be likely to consider if he were able to do so.’[4]
Charles J observed that many s21A applications turn on the best interest assessment and lead to changes in the care package to make it less restrictive, rather than to P being no longer deprived of his/her liberty. He also observed that there was no problem in complying with Practice Direction 9E on an application under s21A. The CCG was commended for discontinuing the s16 proceedings which it had brought, in order to allow the case to proceed under s21A and allow Mrs Briggs access to legal representation.
The judgment, if maintained on appeal, is likely to lead to many more applications being brought under s21A MCA rather than s16, and where applications have been brought under s16, to applications for a direction deeming the proceedings to have been brought under s21A, in order for one party to secure non means tested legal aid.
Given the overall benefit of all parties being adequately represented, the authors suggest that whenever a standard authorisation is in place, consideration should be given to bringing proceedings by this route if it will enable a family member to be properly represented.[5] It is not suggested, however, that this should have any impact on the usual rule in cases of serious medical treatment that the applicant Trust or CCG should pay half the costs of the Official Solicitor which he incurs in representing P.
[1] http://bit.ly/2lrvpuW
[2] And may well do so, especially after the Court of Appeal decision in R (ota Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 (see here)
[3] Following Re UF [2013] EWHC 4289 at para [11] and CC v KK [2012] EWHC 2136 (COP),
[4] Paragraph 52
[5] And see also MR v SR & Anor [2016] EWCOP 54
Update to para 5.35, page 160: Costs
Sophia Roper
16.05.17
In MR v SR and Bury Clinical Commissioning Group [2016] EWCOP 54[1], a rare costs award has been made in a medical case in the Court of Protection. The substantive application in this case was brought by SR’s daughter, MR, in the face of the Clinical Commissioning Group’s (‘CCG’) failure to do so. The CCG opposed the application and maintained its opposition until the Official Solicitor changed his position, after the first day of evidence. The parties then agreed that the application should be granted but Hayden J considered it necessary to hear a further day’s evidence from the three instructed experts before reaching his conclusion. MR sought her costs of bringing the application.
Hayden J observed that determination of costs is not a precise science but ‘an intuitive art reflecting the judge’s feel for the litigation as a whole’. He agreed with MR that the CCG were guilty of avoidable delay and ‘a disturbing disregard for National Guidelines’; he also agreed that MR should not have had to bring the application in the first place, noting that if the appropriate health authority had done so, MR could have avoided costs by ‘’sheltering under the wing’ of the Official Solicitor or health body. As applicant, she had no real choice other than to pay for representation. Hayden J said it would not be appropriate to burden the CCG with the full costs of the final hearing when he himself had made the decision to continue that hearing, but that he was satisfied that the CCG should pay half of MR’s costs.
This case is a reminder that the Court of Protection’s power to award is most often exercised when a public authority has failed to initiate proceedings. The logic is clear: apart from the significant costs consequences of being the applicant in proceedings, it is a huge emotional burden to start an application seeking the death of a close relative. It is also a reminder of the importance of following the RCP guidelines and complying with any directions as the courts continue to push for more efficient conduct of COP cases.
[1] the sequel to Re N; M v (1) Mrs N (By Her Litigation Friend the Official Solicitor) (2) Bury Clinical Commissioning Group (3) A Care Provider [2015] EWCOP 76, [2016] COPLR 88 [discussed at §13.11], in which Hayden J granted a declaration that it was lawful to withdraw life sustaining artificial nutrition and hydration from a woman with advanced multiple sclerosis, who was found to be in a minimally conscious state.
You can read selected extracts from this chapter here.