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Lord Chief Justice Promises Greater Transparency for Court of Protection

By Practice Group Leader, Court of Protection

Lord Chief Justice Lord Thomas - the Head of the judiciary and President of the Courts of England and Wales - has promised to open the Court of Protection to greater public scrutiny.

ParliamentThe Court of Protection was set up under the Mental Capacity Act 2005 to grant individuals, social workers and lawyers the power to make decisions on financial or welfare matters for people who are ruled as lacking the capacity to look after their own affairs. These include people suffering from dementia, learning disabilities, brain injuries and mental health illnesses.

When someone lacks the mental capacity to look after their own affairs and has not implemented a Power of Attorney before losing capacity, the Court of Protection will appoint a Deputy to look after that person’s affairs. The Deputy must act in that person’s best interests and follow the rules of the Mental Capacity Act 2005.

Lord Chief Justice Lord Thomas has pledged to open up cases in which individuals deemed to lack capacity hand over control of their finances, property and medical treatment to a person or persons appointed by the Court of Protection.

The Court of Protection has been subject to growing criticism since it was revealed in 2012 that a Court of Protection judge in Birmingham secretly sentenced Wanda Maddocks to five-months in prison for contempt. Mrs Maddocks disobeyed court orders and attempted to remove her elderly father from a care home where he was being ill-treated, because she believed his life was in danger.

Following the revelations and the ensuing concerns about the powers held by the Court of Protection, the Lord Chief Justice and Sir James Munby - President of the family division of the civil courts in England and Wales, issued urgent guidance to judges that no one should be jailed in secret.

The guidance states, "It is a fundamental principle of the administration of justice in England and Wales that applications for committal for contempt should be heard and decided in public, that is, in open court."

The Court of Protection has heard a number of cases in recent months involving serious abuse of the power of attorney rules. They include the case of a gardener who was able to take more than £200,000 from the account of an 89 year-old woman with dementia following an agreement approved by the Court of Protection to hand him control of her bank accounts, savings and property.

Following concerns raised by the woman’s insurance company when the gardener tried to withdraw a further £150,000 of her savings, action was taken against the man and the Court of Protection stripped him of his lasting power of attorney (LPA). Although the Court ruled that he could no longer manage the woman’s affairs, it also ruled that his name should be kept secret. Despite an investigation by the police, the Crown Prosecution Service decided not to prosecute and, astonishingly, he was allowed to keep £60,000 of the woman’s money.

The absence of any kind of criminal prosecution in such cases where money has been wilfully misspent in this way is not uncommon, as is the fact that the names of perpetrators are never made public.

The Mental Capacity Act was set up under the Labour government 10 years ago in order to protect the elderly and those deemed sick and vulnerable. But it has come under increasing criticism that it has led to the wrongful imprisonment of tens of thousands of care home residents.

Commenting on an unidentified case, Lord Thomas said: “It seems to me the Court of Protection and the whole problem of us making certain that those who no longer have their faculties and where you have someone who is acting on their behalf, it is essential that that area is also open and transparent.

“Over the past year, I had one case which worried me very considerably where I felt very much that the fact everything was closed did not provide the extra assurances of shining the light from the outside.”

Lord Thomas’ promise to open the hidden workings of the Court of Protection to greater public scrutiny comes at a time when plans for greater transparency in the Family Court system appear to have come to a grinding halt. It will be interesting to see what happens.

Gillian Hitchen is an inheritance and welfare solicitor in the Court of Protection department of Slater and Gordon in Manchester.

For more information on the responsibilities of a Deputy or to speak with a Court of Protection solicitor, please call Slater and Gordon on freephone 0808 175 8000 or contact us online and we’ll be happy to help.

 

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