In 2005 the Mental Capacity Act created the Court of Protection which specialises in all issues relating to people who lack capacity (P) to make decisions. The overriding objective of the court is to ensure that all decisions made on behalf of P are done so in their best interests.
The Court of Protection (Amendment) Rules 2015, amending the Court of Protection Rules 2007, were made on 4th March 2015 and laid before parliament on 9th March 2015. Some of the amendments relating to appeals came into force in April with the remainder, more significant, changes coming in on 1st July.
The amendments to the appeals procedure include changing the way appeals are dealt with. Appeals can now be dealt with by the Court of Protection instead of the Court of Appeal, as was previously the case. This gives wider access to a range of judges who will deal with appeals by way of allocation from a court decision, to one of three tiers of judges within the Court of Protection.
The most important change by the new rules is rule 3A, which encourages P to be more involved in Court proceedings, and the court will consider making directions to enable them to be so.
This fundamentally changes the approach of the Court in the participation of P, and there is a requirement for the Court to consider in each case whether it should make directions as to P’s level of participation.
The court could direct anything from the new Rule 3A as follows:
(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.
Other rule changes include:
- Notifying P, under Part 7 of the Act, Rule 40 and Rule 41A which include the general requirements to notify P and more specific circumstances when the court has made a direction under Rule 3A.
- Amending rule 4 to reinforce the duty of the parties to co-operate so as to further the overriding objective of dealing with cases justly having regard to the principles in the Act.
- Substituting a new Rule 9, which allows for the COP — in the case of a lacuna — to choose whether rules contained in the CPR or the FPR most appropriately fit the problem to be addressed.
- Making amendments to Parts 8, 9 and 12 to remove the need for a separate application where permission is required
- Introducing a requirement (in Rule 87A) that permission is required to withdraw proceedings
- In Part 13 (hearings), making amendments to allow communication of information about proceedings to third parties for specified purposes (for example, research), and for the court to be able to do this on its own initiative.
- In Part 19 (costs), making amendments to ensure that where provisions of the Civil Procedure Rules are incorporated by reference, they do not include the Jackson reforms insofar as they relate (e.g.) to costs budgeting;
- In Part 21 (enforcement), making amendments to ensure that where provisions of the Civil Procedure Rules are incorporated by reference, they are the provisions following recent amendment.
The amendments relating to appeals came into effect on 6th April 2015, whilst the remainder of the amendments come into effect on 1st July 2015.
This is a summary of the amendments, an unofficial version of the rules as they will stand on 1st July can be found at www.courtofprotectionhandbook.com
