The Court of Protection, established by section 45 of the Mental Capacity Act 2005, is a specialist court set up to deal with decision-making for adults (and children in a few cases) who may lack capacity to make specific decisions for themselves, namely in relation to their health and welfare or property and affairs, as well as matters relating to the Deprivation of Liberty Safeguards (DoLS). With the same powers, rights, privileges and authority as the High Court of England and Wales, the Court of Protection makes decisions in the best interests of the person who lacks capacity to make the relevant decision.
What We Do
- We provide support and represent people who lack mental capacity to make a specific decision as a Litigation Friend or ‘Rule 1.2’ Representative at the Court of Protection.
- We provide training in relation to the role of the Court of Protection and relevant roles such as Litigation Friends and Rule 1.2 Representatives.
The Court of Protection
The Court of Protection is a specialist court and ‘superior court of record’ for all issues relating to people who lack capacity to make specific decisions. The Court makes decisions and appoints deputies to make decisions in the best interests of those who lack capacity to do so. The Court is responsible for:
- deciding whether someone has the mental capacity to make a particular decision for themselves
- appointing deputies to make ongoing decisions for people who lack mental capacity (either property and financial affairs deputies appointed to do things like pay the person’s bills or organise their pension, or personal welfare deputies appointed to make decisions about medical treatment and how someone is looked after)
- giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
- handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
- making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration
- considering applications to make statutory wills or gifts
- making decisions about when someone can be deprived of their liberty under the Mental Capacity Act
The procedures of the Court are governed by the The Court of Protection Rules 2017, which set out all matters relating to the functions of the Court, from how it will meet it’s ‘overriding objective’ to deal with cases “justly and at proportionate cost” to applications, case management, how hearings should be held, proceedings should be managed and admissions, evidence and depositions heard; the involvement of experts, litigation friends and Rule 1.2 Representatives as well as matters of costs and appeals made.
Participation of the Relevant Person in Court Proceedings
The Court of Protection Rules places a duty on the Court to consider making one or more direction for the purpose of facilitating the relevant person’s participation in the proceedings. These directions are:
- The person being joined as a party;
- The person’s participation being secured by the appointment of an accredited legal representative to represent them in the proceedings and to act as the court may direct;
- The person’s participation being secured by the appointment of a representative (i.e. Rule 1.2 Representative) whose function is to provide the court with information as to the person’s past and present wishes and feelings, the beliefs and values that would be likely to influence their decision if they had capacity, and any other factors that they would be likely to consider if they were able to do so, as well as to act in another capacity as the court may direct;
- The person being given the opportunity to address (directly or indirectly) the judge determining the application and, if so directed, the circumstances in which that should occur;
- Making an alternative direction meeting the overriding objective.
Deprivation of Liberty Safeguards (DoLS)
Challenges to a standard or urgent authorisation that has deprived someone lacking mental capacity of their liberty must be made to the Court of Protection. This may be in circumstances where:
- the order may not have been authorised properly
- this action is not in the person’s best interests
- the person has mental capacity to decide their own care or treatment
If a person who lacks mental capacity is not in a care home or hospital but is being deprived of their liberty, this cannot be authorised in the same way so an application must be made to the Court to get an order authorising the restriction of their freedom. This procedure is often referred to as ‘Community DoLS’.
Court of Protection government website; Part 2 of the Mental Capacity Act 2005; Chapter 8 of the Mental Capacity Act 2005 Code of Practice; Chapter 10 of the Deprivation of Liberty Safeguards Code of Practice.