Reform required for the Court of Protection

by Sam Smith on July 8, 2011

Post image for Reform required for the Court of ProtectionIf you were disabled, how much would you want to be protected? The thought occurred to me today whilst reading about the case of a disabled man living in care in one of the Court of Protection’s (CoP) latest public judgements on BAILII.

The man has serious disabilities and the unfortunate habit of trying to eat his own used incontinence pads. He therefore needs significant intervention and restraint, amounting to a deprivation of liberty.

The bizarre facts around the case are that despite the obvious and unchallenged reasons for the deprivation, council workers rewrote care records in order to hide the extent of the restraint.

Unsurprisingly the judge took a dim view and awarded costs against the authority. The judgement is a good one. It cannot be faulted. What struck me though is the willingness of council staff (since sacked) to lie and fabricate even in a case where the restraint was unavoidable and justified. The reason is unclear but seems to have been to avoid a finding that the disabled man was deprived of his liberty. The conspiracy was only uncovered because of a whistle-blower.

Now – if a council will go to all those lengths when it is in the right, how much further will they go when in the wrong? Safeguarding adults is an essential activity. Unfortunately, the grim fact is that adults often need safeguarding from state employees. The difficulty is that when there is a dispute about local authority care, the authority itself is the first state body to investigate. As a result family members who make a fuss are often themselves made the subject of allegations.

Given the extremely poor showing of the Care Quality Commission (CQC) as a regulator, the only independent body families have access to is a court. This is by no means a happy state of affairs. The Court of Protection has been effective lately in some cases but the sector urgently needs cheaper, quicker means of resolving disputes.

The system is no fairer on councils and the NHS. Money that could be spent on patient care pours instead into the coffers of their lawyers. Public employees are scared to use the Deprivation of Liberty Safeguards (DoLS) because of their complexity.

The system underlies the problems of our judicial system. Litigation is expensive and access to justice can be almost impossible. Ancient laws introduce needless complexity. A good example is the hearsay rule, which is the legal equivalent of the offside rule. Very few people understand it other than lawyers but it adds very little to the process.

On the continent they do not have a hearsay rule. Instead the judges can just apply weight to the evidence depending on it’s nature and source yet in the UK their are whole cases about this kind of procedural issue.

The problem with the DoLS and much of our judicial system is the complexity and expense. It is a theme covered by many authors in many areas of law. Who would it hurt if the Court of Protection, or even the High Court as a whole were reformed to use the evidence rules of the Small Claims track of the County Court and required to actively assist litigants in person in the manner of a tribunal?

The present system is unfair, mitigated only by charitable intervention by lay advisers like the McKenzie friends network started by John Hemming MP and by lawyers taking work pro bono or under a Conditional Fee Arrangements (CFA).

The situation is the same outside family law. For example in libel law access to justice can be a problem. This is mitigated to some degree by lawyers acting under CFAs.

As an example prominent law firm Carter Ruck take a good deal of pro bono and CFA work on both the claimant and defendant side. Nigel Tait, a partner at the firm is widely regarded as one of the country’s best lawyers and he personally takes on many such cases. I mention Carter Ruck in particular as they do not always get the credit they deserve from the media.

Other public spirited lawyers include Chris Cuddihee (who represented Mark Neary against Hillingdon) or Nia Williams at Saunders who is very capable in the area of Human Rights. In the Hillingdon case there was legal aid but this is set very low. A talented lawyer like Mr Cuddihee could earn far more in the corporate sector. All of these lawyers are effectively subsidising the justice system.

By its nature litigation is always complex and contentious but a great deal could be done in the UK to make it cheaper, simpler and fairer.

Sam Smith

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