‘Serious concern’ over cost of Court of Protection proceedings

In the Court of Protection (CoP), Mr Justice Peter Jackson and Mr Justice Roderic Wood have recently expressed concern about the cost and duration of CoP proceedings. Research by Cardiff University’s School of Law and Politics confirmed that the cost of welfare proceedings to local authorities was a serious concern, as was the duration of cases. The research also found considerable variations between English and Welsh local authorities in the number of welfare cases brought to the Court.

Those are some of the findings of the Cardiff research team which sought information on the typical costs and duration of CoP cases in response to concerns around the accessibility and efficiency of the Court and claims that welfare proceedings could be very costly and slow.

Established by the Mental Capacity Act 2005, the CoP makes decisions on behalf of people deemed to lack the mental capacity to do so in relation to their welfare, finances and property. If a person is deprived of liberty in a setting other than a hospital or care home, the CoP must authorise that detention. Issues of deprivation of liberty form a substantial part of the CoP’s case law.

Using information from local authorities about their involvement in CoP welfare cases during 2013-14, the Cardiff researchers examined how often local authorities were involved in welfare litigation in the CoP, how much CoP welfare cases cost local authorities, and how long CoP welfare cases typically last.

They found that most local authorities in England and Wales had been involved in at least one welfare case in the CoP in 2013-14. However, local authorities in England were involved in significantly more than those in Wales. The average number of cases in England was three compared to one in Wales. Some local authorities in England had more than ten CoP welfare cases in the timeframe examined, whereas no local authority in Wales had more than three.

Most welfare applications to the CoP are made by local authorities, according to the research findings. Applications by family members, advocates and people who are said to lack mental capacity are relatively rare. Overall, the number of cases involving the Mental Capacity Act 2005 deprivation of liberty safeguards was low, raising concerns about whether people can effectively exercising rights to appeal against their detention.

Notably, the research confirms that the cost of CoP welfare proceedings to local authorities is considerable, with half of all cases in the study costing £8,150 or more. Cases involving a deprivation of liberty cost more on average than those which did not. The study also corroborates widely expressed concerns that welfare litigation in the CoP can be very long running. The typical duration of a CoP welfare case was found to be 12 months. However, some cases involve situations where people are deprived of their liberty and require an annual court authorisation, meaning these types of cases are never truly over.

The research team commented that: “The high cost of CoP proceedings is a matter of serious concern and the underlying reasons for the high cost and lengthy duration of CoP proceedings require urgent investigation.”

In relation to geographical variations in the use of the CoP, the team recommended: “Those responsible for monitoring health and social care in general, and the deprivation of liberty safeguards in particular, should ensure that authorities understand and comply with obligations to refer cases to the CoP in line with legal guidance.”

There has been widespread concern since P v Cheshire West and Chester Council [2014] UKSC 19 where the Supreme Court gave a wide meaning to deprivation of liberty. As a consequence of that ruling, many more people will be found to be deprived of liberty in settings outside hospital or care homes and, to be lawful, that deprivation will need authorisation by the CoP. This will mean many more applications to the CoP by local authorities, and the costs of these cases will come out of the local authority social care budgets.

Noting this, Dr Lucy Series, the Report’s lead author, and Professor Phil Fennell who leads the research project, warned: “Our findings suggest that unless the CoP and local authorities radically change the conduct of welfare cases there could be devastating consequences for their resources.”

The report Use of the Court of Protection’s welfare jurisdiction by supervisory bodies in England and Wales is available at the Welfare cases and Court of Protection website. The research was funded by the Nuffield Foundation, and the research team included three undergraduates funded jointly by the Cardiff Undergraduate Research Opportunity Programme (CUROP) and the Centre for Social Care Law in the School of Law and Politics.