In the Matter of The Court of Protection v The Pandemic

Beverley Beale, Court of Protection Panel Deputy and Associate at Weightmans LLP, talks about the impact the pandemic has had on those with impaired decision making capacity and the Court of Protection.

The last 12 months have been extraordinarily challenging for us all and have seen the legislative imposition of far-reaching kerbs on our basic liberties and freedoms. Whatever our view of these restrictions, the great majority of us understand the reasoning behind and purpose of them and comply and adapt (or not and thereby face the consequences) accordingly. But how have those with impaired decision making capacity and the Court of Protection faired in this new normal?

Unlike the Care Act 2014, neither the Mental Capacity Act 2005 (MCA) nor the Deprivation of Liberty Safeguards (DoLS) were directly amended by the Coronavirus Act 2020 and the five principles underpinning the MCA remain at its centre:

1. The presumption of capacity
2. The requirement for support in decision making
3. That an unwise decision does not equate to an incapacity
4. Any decision taken must be a best interests decision; and
5. Any decision taken is the least restrictive option

However, the application of the provisions of both the MCA and DoLS were impacted significantly and the Government issued guidance on the application of the MCA and DoLS during the pandemic.

Assessing capacity and providing adequate and timely support in circumstances where a face-to-face meeting is not possible and resources are stretched, makes an already critically important job, extremely challenging and sometimes impossible.

Best interests decisions have had to be taken within the confines of the emergency legislation as well as Government guidance and regulations relating to COVID-19 (none of which made specific provision in relation to those lacking decision-making capacity). Decisions, for example, about medical treatment, social contact, COVID-19 testing, hospital discharge or living arrangements, particularly involving deprivation of liberty considerations, have had to take into account the changing rules and the fluctuation of available options.

The “COVID-19 factor” entered the decision making and judicial arenas. One relatively early case considered whether it was in the best interests of a terminally ill woman to leave the care home where she was residing to move to live with her daughter. Lieven J held that it was and whilst she made it clear that the risk of COVID-19 was not a factor in her decision, the contact restrictions between the woman and her family as a result of COVID-19 whilst she remained in the home, undoubtedly was.

So what of the workings of the Court of Protection?

As with all other courts in England and Wales, the Court of Protection had to move swiftly to conduct its business in a new and radically different way; sitting remotely by default and with proceedings being held by video or telephone.

But the challenge was not only logistical, somehow, the court had to preserve the meaningful and inclusive participation of P, family members, carers and other parties to the proceedings and at the same time preserve the culture of transparency and the validity of its judgments. Guidance provided by Justice Hayden, the Vice-President of the Court of Protection, addressed the issue of access to the Court of Protection during the currency of the pandemic with the aim of ensuring “ongoing access to justice by all parties to cases before the court”.

But how successful has the court been in achieving its stated aims in regard to accessibility of parties?

Feedback from a case heard entirely by Skype and early in the first lockdown highlights the disparity between the experience of the participating professional (advocates and witnesses) and that of the lay participants. The former group adapted to the process quickly, whilst the latter found it to be, at best stressful and distracting and at worst “like a second-best option” that “didn’t feel professional” and “didn’t feel like justice”.

Mr Justice MacDonald in his document The Remote Access to Family Court identifies the problems of remote hearings and the possible solutions.

Throughout 2020 and now well into 2021, remote hearings are the norm and questions remain as to when and how pre-pandemic procedures will return but whatever the course of the COVID-19 pandemic, the meaningful participation of the decision-impaired individual, and those parties most closely involve, must be at the centre of the court’s responsibilities and we must continue to strive to improve the experience for all.

https://www.gov.uk/government/publications/coronavirus-covid-19-looking-after-people-who-lack-mental-capacity/the-mental-capacity-act-2005-mca-and-deprivation-of-liberty-safeguards-dols-during-the-coronavirus-covid-19-pandemic
BP v Surry County Council [2020]EWCOP 17 https://www.bailii.org/ew/cases/EWCOP/2020/22.html
VE v AO & Ors [2020] EWCOP 23 https://www.bailii.org/ew/cases/EWCOP/2020/23.html
judiciary.uk/wp-content/uploads/2020/04/20200331-Court-of-Protection-Remote-Hearings.pdf
A Clinical Commissioning Group v AF & Ors [2020] EWCOP 16
http://www.transparencyproject.org.uk/remote-justice-a-family-perspective/
https://www.judiciary.uk/wp-content/uploads/2020/04/The-Remote-Access-Family-Court-Version-3-Final-03.04.20.pdf
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