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What are the changes to the Court of Protection Rules 2007 and why are they important?
Sep 29, 2018, 21:46 PM
family law, court of protection, transparency, participation, access to justice, deprivation of liberty, DOLS, Cheshire West
The recent changes seem to be focused on participation in the proceedings and transparency within the Rules. The area of Court of Protection has come a long way since 2007 and these recent changes reflect the issues experienced and the need for amendment in the old Act. The amendments relating to appeals come into effect on 6 April 2015, while the remaining amendments come into effect on 1 July 2015.
The Court of Protection (Amendment) Rules 2015 amending the
Court of Protection Rules 2007 were made on 4 March 2015 and laid
before Parliament on 9 March 2015. These changes came about by way
of recommendation made by a committee established by the Court of Protection
Increased participation of the person who lacks capacity
One of the main focuses of the recent changes include
encouraging the person who lacks capacity (P) to become more involved in Court
of Protection proceedings. There is a requirement that in each case the court
will consider making directions to enable P to be more involved in the
proceedings. The court could direct anything from Rule 3A below:
(a) P should be joined as a party;
(b) P’s participation should be secured by the
appointment of an accredited legal representative to represent P in the
proceedings and to discharge such other functions as the court may direct;
(c) P’s participation should be secured by the
appointment of a representative whose function shall be to provide the court
with information as to the matters set out in section 4(6) of the Act and to
discharge such other functions as the court may direct;
(d) P should have the opportunity to address
(directly or indirectly) the judge determining the application and, if so
directed, the circumstances in which that should occur;
(e) P’s interests and position can properly be
secured without any direction under subparagraph (a) – (d) being made or by the
making of an alternative direction meeting the overriding objective.
The purpose of this change is to require the court to
consider in each case which is the best way to ensure that the relevant
person’s participation in the proceedings is secured. Under (b) above, the judge can direct for an
accredited legal representative to be appointed to represent P by voicing their
wishes and feelings. This can be done regardless of whether P is a party to
proceedings. If they are a party then an accredited legal representative can be
appointed without a litigation friend having to be in place. This change is
important because it supplements the need and use of a litigation friend instead
of replacing the role which is in great demand.
Under Part 7 of the Act it provides a full explanation of
the duty to notify P of any new matters arising in, or in relation to proceedings
or any changes to the same. Rule 40 describes the general requirements to
notify P and Rule 41A includes more specific circumstances such as where the
court has made a direction under Rule 3A regarding how P is to participate in
proceedings such as the appointment of a litigation friend or representative. This
is an important change again because it brings the focus back to P and keeping
them fully updated.
The amendments include changing the way appeals are dealt
with. A wider range of judges will deal with appeals by way of allocation from
a court decision to one of three tiers of judges within the Court of Protection.
This enables appeals to be dealt with within the Court of Protection instead of
the Court of Appeal which is a great improvement.
This change has come about because of the anticipated
increase in Deprivation of Liberty Safeguarding Orders following the recent
P (By His Litigation Friend the Official Solicitor) v Cheshire West and Chester Council and Another; P and Q (By Their Litigation Friend the Official Solicitor) v Surrey County Council  UKSC 19,  COPLR 313.
Application permission procedure
The changes have clarified the procedures for applying for
permission to proceed. They have also simplified the procedure for removing the
requirement for permission in some cases. Under Rule 51 permission of the court
is not required:
(a) Where an application is made by –
Official Solicitor; or
(b) where the application concerns –
property and affairs;
lasting power of attorney which is, or purports to be, created under the Act;
instrument which is, or purports to be, an enduring power of attorney;
(c) Where an application is made under section
21A of the Act;
(d) Where an application is made for an order
under section 16(2)(a) of the Act, which is to be relied on to authorise the
deprivation of P’s liberty pursuant to section 4A(3) of the Act;
(e) Where an application is made in accordance
with Part 10;
(f) Where a person files an acknowledgement of
service or notification in accordance with this Part or Part 9, for any order
proposed that is different from that sought by the applicant or;
(g) In any other case specified for this purpose
in a practice direction.
Two importance changes here are that applications relating
to property and affairs are now much clearer - permission is not needed.
Secondly that permission is not needed where judicial authorisation for the
deprivation of P’s liberty is sought.
Where permission is required the applicant must apply for
permission when making an application. The previous requirement that a separate
permission form needs to be filed (from July 2015) will be abolished.
The amendment introduces greater flexibility relating to new
rules on sharing information. Where there are procedural gaps in the Court of Protection
Rules (CPR), there is now provision to allow the court to refer to not only the
CPR but also the Family Procedure Rules 2010 (FPR), with a view to give
directions for filling such a gap in the proceedings before it.
This is important because it allows the judge to choose
whether the appropriate solution to the problem they are faced with lies within
the CPR or the FPR.
The introduction of free standing rules
Part 10 of the Act deals with Applications within
proceedings. There are now freestanding rules for Security for Costs and
Service out of Jurisdiction. The provisions model on those in the CPR with
alterations to reflect the nature of Court of Protection proceedings.
recent changes seem to be focused on participation in the proceedings and
transparency within the Rules. The area of Court of Protection has come a long
way since 2007 and these recent changes reflect the issues experienced and the
need for amendment in the old Act. The amendments relating to appeals come into
effect on 6 April 2015, while the remaining amendments come into effect on 1 July 2015.