Cutting a pathway

Last year was the Court of Protection’s (CoP) year of the pilot. Three new pilot schemes were introduced in an attempt to make court proceedings more streamlined, less costly and more transparent. The case management pilot, which commenced on 1 September 2016, was arguably intended to be the most far-reaching.

President of the CoP and Family Division Sir James Munby has stated that the aim of the case management pilot is to introduce to the CoP the discipline of other branches of the court system, to include ensuring a clear focus on timetabling, and an early consideration of the key objectives of the proceedings.

The pilot is set to continue until 31 August 2017 and applies to CoP proceedings issued following the start of the pilot, although it excludes the following types of application:

• statutory wills and gifts
• those made by the Public Guardian
• serious medical treatment
• seeking authorisation for a community-based deprivation of liberty
• section 21A challenges to an urgent or standard authorisation.

In addition, the pilot does not apply in the event that an application is uncontested. However, where applications fall outside the pilot, the court remains likely to follow the spirit of the pilot in respect of general streamlining and efficiencies. It is therefore sensible to follow the more stringent obligations / tests in the pilot to help you put the best possible case before the court.

What has changed, essentially, is that where an application falls firmly within the pilot scheme, the court will allocate it to one of the three case management pathways on issue.

Amended rules will apply to cases allocated to the three pathways, and helpfully these are annexed to the comprehensive case management practice direction, with key changes underlined. Where there is a conflict between the pre-existing Court of Protection Rules 2007 (CPR 2007) and the case management practice direction, the practice direction will take precedence.

Personal welfare pathway

Pre-issue / issue stage

The personal welfare pathway (PWP) puts the onus on the intended applicant to consider whether matters in dispute can possibly be resolved without recourse to the court and, in the event they cannot be resolved, to front-load investigations and information gathering prior to issue.

The pilot provides that when an application is issued under the PWP, the following must be provided:

• a clear explanation of why an order is sought, or why a specific order is sought and/or a draft final order is to be filed
• an explanation of the dispute
• a statement of what is expected of P’s family and/or other interested parties
• a list of the key people involved in the case and their role
• a list of options for P
• a needs assessment and, if appropriate, a risk assessment
• a support plan for P, including a timeline and transfer plan, if appropriate
• evidence that key individuals and agencies have been consulted
• confirmation that a best interests meeting has taken place and a copy of the minutes of the meeting
• any relevant medical evidence, including a report from a medical practitioner (or other appropriately qualified professional) on P’s capacity to litigate and make decisions on the issues in the case
• if possible, an explanation as to how P can be best supported to maximise any decision-making capacity, and a statement of how it is proposed that P will be involved in the case an indication as to whether there is likely to be a public law challenge.

The expectation is that, in the course of gathering the above information, all potential respondents and interested parties should be identified and notified of the intention to commence proceedings. In doing so, the applicant must set out their proposals for resolving matters, to allow the potential parties the opportunity to resolve or, at least, narrow the issues without the need for proceedings.

For applicants that are not already in possession of a number of the documents above (such as representatives for P or their family members), many practitioners have found that the pilot has had the positive effect of encouraging public authorities to evaluate the options for P more thoroughly and to share certain care planning documents that they might not have otherwise.

At the very least, where proceedings remain the only way of reaching a resolution, the requirement to consider the above matters and gather the documents listed reduces the time taken to do so within the proceedings themselves.

Where an application cannot be avoided and proceedings need to be issued, the evidence listed above will need to be submitted alongside a COP1 form. Thereafter, a gatekeeper judge will consider the matter on the papers and make initial directions. These directions will include allocating the case to an appropriate judge (with a view to that judge having conduct for the entirety of the proceedings), listing a case management conference (CMC) within 28 days (unless a particular urgency has been indicated in the initial application) and giving consideration, in more complex cases, as to whether an advocates’ meeting should take place ahead of the CMC.

Case management conference

The CMC is the first attended hearing. Although there is no fixed timeframe in which proceedings allocated under the pilot have to be concluded, there is an obligation on both the parties and the court at the CMC to further narrow the issues as far as possible, and ensure that the onward directions are a proportionate way of resolving any outstanding issues at the earliest opportunity. This will include a consideration of the evidence that needs to be gathered ahead of a final management hearing (FMH), including expert evidence / section 49 reports.

Expert evidence / section 49 reports

In the spirit of proportionality, the pilot also addresses the circumstances in which it will be appropriate to direct the instruction of experts. The pilot modifies part 15 of the CPR 2007 (which previously stated that for expert reports to be directed, they must be ‘reasonably required’) and places an onus on the court to restrict expert evidence to that which is ‘necessary’ to assist the court to resolve the issues before it and be satisfied that the same evidence could not be provided by alternative means. Amended rule 122 (Experts – overriding duty to the court) now specifies that in determining whether expert evidence is required (in each of the three pathways), the court will have regard to:

(a) ‘the issues to which the expert evidence would relate;

(b) the questions which the expert would answer;

(c) the impact which giving permission would be likely to have on the timetable, duration and conduct of the proceedings;

(d) any failure to comply with any direction of the court about expert evidence; and

(e) the cost of the expert evidence.’

Specific to the personal welfare pathway is the requirement for the court, at the case management hearing, to ‘actively consider’ whether a section 49 report ‘could achieve a better result than use of an expert’.

Such is the focus on utilising section 49 of the Mental Capacity Act 2005 (MCA 2005) more efficiently, that the court has introduced a separate section 49 pilot that will run alongside the case management pilot until August 2017. Section 49 provides the court with the power to order NHS bodies and local authorities to produce reports within proceedings. In a climate of austerity, however, many public bodies have expressed concerns at the fact that reporting is taking staff away from their frontline duties, and that reports are often expected within unrealistic timescales. With the case management pilot restricting the use of expert evidence yet further, and in turn increasing the likely reliance on section 49 reports, the section 49 pilot has been introduced to try to address some of these issues.

The section 49 pilot is aimed at ensuring that public bodies are only targeted for information / opinions in circumstances where they can usefully assist, and the approach takes place in a planned and considered way. In particular, the pilot provides for the following.

• Advanced notice must be given to public bodies to make them aware that a report is to be sought, and so that confirmation of a realistic timeframe for completion can be obtained for the consideration of the court.
• Orders for section 49 reports must delivered to the relevant public body within 48 hours, so as to remove some of the practical difficulties that may be caused by delayed service of orders.
• Letters of instruction must be sent to the body from which a section 49 report is required. The body is then to identify a person with the appropriate expertise to complete this, and notify the parties of that person’s name and contact details within seven days.
• A standardised, standalone order for section 49 reports must be used wherever a section 49 report is directed.

Final management hearing / final hearing

The date for the FMH will have been set at the CMC, so that there is a clear timescale by which the evidence of the nature described above can be obtained.

At least five days before the FMH, there should be an advocates’ meeting, at which the evidence received since the time of the CMC will be considered and the outstanding issues further narrowed or resolved. If agreement can be reached, parties are encouraged to prepare a draft agreed order for the consideration of the court, ahead of the FMH.

If the FMH proceeds, however, the pilot provides that the applicant (or, if unrepresented, a represented respondent) must file a compliant core bundle of no more than 350 pages. If a party fails to file a compliant court bundle at the appropriate time, or fails to comply with directions, the court may order the FMH to be adjourned and may make an order for costs against the defaulting party.

At the FMH, the aim is that the court will be able to determine whether the case can be resolved at that hearing. In the event it is clear that a final hearing is required, the court can ensure the parties prepare appropriately for trial with a trial timetable, a witness template and directions being given as to the contents of the bundle.

Property and affairs pathway

The property and affairs pathway comprises fewer stages than the PWP, on the basis that it is often only at issue stage (and following receipt of COP5 forms prepared in response to the application) that it becomes clear whether or not a particular application is contentious.

Initial case management

If it becomes apparent that the application is contested, the pilot provides for the appropriate case management to take place on the papers. This will include either:

• listing the case for a dispute resolution hearing (DRH); or
• transferring the case to the most appropriate regional court for the listing of a DRH and further case management.
• At this time, the judge will also order the respondent to file a summary of the reasons for opposing the application or for seeking a different order, if those reasons are not sufficiently clear from their COP5.

Dispute resolution hearing

The DRH is the biggest change to pre-existing practice, in that it is intended to be a form of judicial mediation. The pilot provides that the DRH will take place before a district judge, with a view to determining whether the case can be resolved and further unnecessary litigation avoided. The pilot suggests that ‘for the dispute resolution hearing to be effective, parties must approach it openly and without reserve’. With this in mind, the case management pilot provides that discussions had during the course of the DRH are not to be disclosed and are not admissible as evidence.

In addition, and so as to focus the parties’ minds, the court is required to give its view on the likely outcome of the proceedings. It is hoped that this will have the effect of encouraging the parties to reach agreement, such that a consent order can be prepared at the conclusion of the DRH.

If agreement cannot be reached, the court will give directions for the management of the case and for a final hearing. Unlike the PWP, where judicial continuity is encouraged, the final hearing must be listed before an alternative judge, given the need to separate this from the mediation environment of the DRH.

Mixed welfare and property pathway

When a case involves both property and affairs and welfare aspects, the case management practice direction requires the parties to try to identify which pathway is the most appropriate, and then comply with that pathway to resolve issues as far as possible.

However, on issue of the application, the court will consider a list of issues filed by the parties and determine which pathway or elements of a pathway will be appropriate, and give directions to this effect.

Impact of the pilot so far

At this stage, many are finding that the shift in culture intended by the pilot scheme has yet to be fully felt.

One of the main reasons for this, from my perspective as a health and welfare specialist, is that deprivation of liberty matters are excluded. Following the decision of the Supreme Court in Cheshire West [2014] UKSC 19, a significant number of cases now have a deprivation of liberty element, such that it is appropriate for applications to be made under section 21A of the MCA 2005. This is likely to increase following the decision in Briggs v Briggs [2016] WLR(D) 634.

While we await the Law Commission’s final report on the reform of the current deprivation of liberty regime, which is widely agreed not to be fit for purpose, it remains unclear how and if the reforms will feed into the CoP’s case management initiative.

What is clear, however, is that in cases which fall within the pilot, significant criticism and costs consequences could flow from a failure to adhere to the various key changes brought in by the pilot. The pilot has certainly encouraged a renewed focus on mediation and other forms of alternative dispute resolution (ADR) that have historically been underused in the CoP. Under the terms of the pilot, if a party is refusing to engage in ADR without good reason, this could amount to unreasonable conduct, justifying a departure from the usual non-order for costs in health and welfare proceedings.

In respect of costs, the pilot also gives judges the general case management power to direct any party to file and serve an estimate of costs. This is likely to be in response to concerns about the increasing cost of CoP proceedings that was highlighted in A & B (Delay and Costs) [2014] EWCOP 48, where Mr Justice Peter Jackson dealt with two cases: one had lasted 18 months at an estimated cost of £140,000; and the other had extended for five years and involved estimated overall costs of £530,000.

In summary, while the full force of the reforms and a general shift in ethos may not have reached us yet, it is likely that the changes are here to stay, and that to ignore this could have significant consequences.