On 1st July this year, significant changes to the Court of Protection Rules were introduced.
Among the changes are rules, forms, and practice directions designed to make court procedure more accessible and streamlined.
Possibly the most significant changes to the Court of Protection Rules deal with the involvement of the person lacking capacity, known as ‘P’, who will usually be the subject of court proceedings.
These changes come as the Court of Appeal delivered an important judgement in the case of Re X, tackling issues raised in cases where P seeks to challenge the deprivation of his or her liberty and the recently introduced ‘streamlined’ process for dealing with such cases.
The New Rule 3A
A new rule 3A, together with the practice direction 2A which accompanies it, deals with the issues of notifying P of court proceedings, and involving him or her in those proceedings, clarifying the court’s discretionary powers when dealing with these issues.
The Court of Protection has a high volume of deprivation of liberty cases and it will be interesting to see how it deals with P’s involvement in such cases in the future – and whether court’s approach will address the broader issues of access to justice and P’s human rights, which Re X touched upon.
Of course, the court will deal with all cases fairly and justly but there is surely room for concern about a system which, theoretically at least, allows minimal involvement or representation of P despite the availability of new ‘accredited legal representatives’ under the new rules and the wide discretion of the court.
As a public authority, the court has a duty to comply with the Human Rights Act 1998 and to interpret and apply the law, including the Court of Protection Rules and practice directions, in a way which gives effect to human rights under the European Convention on Human Rights.
Just as public authorities such as social services and NHS bodies involved in P’s care, or dealing with P’s best interests, must respect relevant human rights, so the court itself must not act in a way which is incompatible with a Convention right.
If P is not meaningfully involved in proceedings – and it should be said there is nothing to suggest that Rule 3A will be interpreted by the court in a restrictive way – the court may still have to deal thoroughly with wider human rights issues not easily suited to any ‘streamlined’ procedure.
The court must take care to ensure that all involved in proceedings comply with human rights and the Articles of the Convention, including the right to a fair hearing (Article 6) and the right to respect for privacy and family life (Article 8).
It will be interesting to see how the court interprets its duties under the new rules and the role of P in important proceedings when, let us not forget, P is an incapacitated and vulnerable person often in need of a high level of care and help.
Richard Copson is a Principal Lawyer in Slater and Gordon’s Court of Protection team.
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