The Court of Protection – Is it a “secret court”?

By Nazmun Ismail

There has been much in the media recently about the “secret court” and the work of the Court of Protection.

The Court of Protection makes clear that it operates by applying the Mental Capacity Act 2005. It suggests that there are five principles which are to be applied when an application is made:

1. A person must be assumed to have capacity unless it is established that he lacks capacity.
2. A person is not to be treated as unable to make a decision unless all practical steps to help him do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
4. An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. Section 4 of the Act consists of a checklist to help the court or decision-maker determine whether something is in the person’s best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

The Court of Protection deals with two main branches of case. One branch concerns “health and welfare” cases. The other branch is “property and finance” cases. On many occasions, the two will be combined.

Examples of property and finance cases include resolving matters arising in respect of persons with dementia. There may not be a clear way forward on how the person concerned’s money is to be spent but (s)he lacks capacity to be able to do so. There may also be disputes as to how the money has been spent in the past by someone who has the benefit of a Power of Attorney. The Office of the Public Guardian invariably brings such cases and Respondents, usually, family members then provide their evidence.

In respect of Health and Welfare cases, by far the biggest area that the Court of Protection deals with relates to section 21 Deprivation of Liberty Safeguards (DOLS) cases. How is a person who lives in a care home or similar institution to be cared for if there is a risk to herself/himself if left in the community without carers? The Mental Capacity Act 2005 provides mechanisms for authorising the deprivation of liberty of a person who cannot consent when that is necessary for their care or treatment in their best interests .

There is no doubt that Court of Protection cases involve stressful and emotional difficulties for families involved in them, but the expertise of the Court of Protection is overseen by many experienced Judges across England and Wales. The days when all cases were heard in London have long passed. Nor is the Court of Protection really a “secret court” because for some time now there has been a pilot scheme whereby members of the media and of the public can make themselves aware of cases which are taking place, albeit the names of the parties involved will be anonymised.

Nazmun Ismail is a specialist barrister in Court of Protection, Human Rights, Public Law and Family Law.