Book review: “Urgent Applications in the Court of Protection”

 In Book Reviews for Private Client practitioners, Elderly/Vulnerable Client

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LawSkills Law | Tax | Wills | Probate | Trusts Book review“Urgent Applications in the Court of Protection”
– Authors: District Judge Sue Jackson, Her Honour Nazreen Pearce
(Jordan Publishing 2nd Ed)

This is the second edition of this book.  It has been up-dated to reflect recent cases, and further developments in practice at the Court of Protection.  The book focuses on the law and practice of Urgent Applications to the Court of Protection.   The knowledge and practical experience of the authors is evident.  In our office, it sits alongside alongside the Court of Protection procedural ‘Blue Book’.   This book comprises a review of legal principles and case decisions, and includes practical guidance and precedents.

Contents

The book begins appropriately with a review of the Mental Capacity Act 2005 (‘MCA’) and its principles.  A chapter is dedicated to each of the types of ‘urgent’ application that are most likely to be made.  These include applications relating to Property and Finance matters (including the appointment and removal of Deputies, applications concerning  Enduring and Lasting Powers of Attorney, applications concerning those aged between 16 and 18 and for Statutory Wills) and a range of specific Health and Welfare issues.  This includes applications regarding personal contact (including marriage and sexual relations) and in relation to Urgent and Serious Medical Treatment. Further chapters consider applications relating to Deprivation of Liberty Safeguards, Restrictions on Publicity, Disclosure, Appeals and Enforcement.  The appendices include the MCA and Sir James Munby’s practice direction on transparency in Court of Protection judgements.

Each section includes a procedural guide and advice on costs.  All sections include detailed analyses of the law and cases relevant to the applications. There are helpful draft orders and specimen supporting affidavits to include with applications. The case references give sufficient information to allow practitioners to understand the rationale for decisions.

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Commentary

To test the accessibility of the book I asked a second year trainee with little practical experience of applications to the Court of Protection to read the relevant section of the book before drafting an application in relation to Deprivation of Liberty Safeguards.  She found the explanation of the relevant statute, case law and process clear and accessible.  She felt able to attempt drafting the application, and the order being sought.  She felt the chapter gave her, as an inexperienced practitioner insight and understanding.

On reviewing the application the trainee drafted, I found the book had given enough information for the trainee’s draft application to demonstrate understanding of the law, and the principal issues the application had to cover.  While not perfect, the trainee’s draft supporting affidavit and order required less alteration than a similar application prepared by a practitioner with a little more experience, but without access to the book.  The more experienced practitioners’  advantage was understanding some of the more practical issues such the wording appropriate in the COP1 at 5.1 and 5.3 concerning what the Court was being asked to decide, and asking how the order would be of benefit to the vulnerable person.

Suggestions for inclusion

The term ‘Urgent’ can cover emergency and well as ‘needed soon’ applications, and some guidance on the distinction so far as the Court is concerned might be helpful, as would  guidance on ways to ensure  ‘urgent consideration’ of applications by the Court. A future edition might also address jurisdiction in the context of orders made in foreign courts, which though rare can cause difficulties when they arise.

Conclusion

The book is excellent resource for anyone making applications to the Court of Protection – there is much to be learned from the logical review of procedure whatever the type of application.  The analysis of the law is thorough, and comprehensible.  The book dealt clearly with nuanced issues such as applications where a person is refusing treatment as opposed to lacking the capacity to agree to treatment.  Consideration of factors such as phobias, fear, pain and religious belief are carefully covered, as are the interplay of common law doctrines and the MCA as they arise.  The detailed consideration of various types of serious medical treatment is particularly good. I would recommend this as a valuable practical resource to any office which is making applications to the Court of Protection on a regular basis. Update following the original publication of this review: There has been a supplement issued to Chapter 10 of this book and a review of this is provided by Philippa Bruce-Kerr as an addendum below:

Review of Supplement

The case P v Cheshire West and Chester Council and P and Q v Surrey Council [2014] UKSC19, [2014] COPLR which was heard by the Supreme Court has impacted upon Local Authorities, the Court and practitioners.

  • Local Authorities are far more hesitant in using DoLS, and in some cases are preparing self referrals to the Court of Protection of many existing DoLS registrations
  • The Court of Protection is anticipating a significant increase in its caseload as a consequence, and has called for a review of forms for use in such cases, and related rules
  • Practitioners will find they are asked to advise on these applications more frequently, but will also find they are facing different means by which social services and safeguarding teams seek to fill the protection gap previously filled by DoLS

This supplement provides a clear account of the history to the introduction of DoLS and the recent cases and circumstances which result in increased scrutiny. It summarises the facts of the case and the judgement. It also provides a helpful analysis of the DoLS legislation and practice against the backcloth of the European Convention of Human Rights. It clarifies the appropriate questions and tests the Court will consider in future and the role of the Court. It is a helpful analysis of a significant decision, and also highlights further issues that are likely to need clarification in future cases and in day to day practice. Available on Amazon…

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