The recent case of Steven Neary is the tip of the iceberg. Mark Neary is to be commended for winning his case, but the grim truth is that he is an exception and not the rule.

The last two years have seen an explosion in awareness of an overbearing state. Under Labour, poorly drafted and shoddy laws gave public bodies wildly unchecked powers to lock people up and control their lives. Clumsy, bureaucratic and expensive legislation has put layer upon layer of hurdles in the way of people seeking to exercise their rights. Many forthright and well meaning people have talked about the problems but the only solutions proposed so far will worsen the problem. The recent announcement that councils will be required to have adult safeguarding boards utterly misses the point. In the Neary case the council claimed to be ‘safeguarding’ when they took Steven into care and kept him there unlawfully.

The law needs to recognise that people working for state bodies are only human and as error prone as the rest of us, and that often people will need safeguarding from the state. Remedies need to be cheap, simple and quick – not expensive, slow and complicated.

This article is not about problems. It is about solutions. The purpose of this article is to set out some specific policy proposals to make the Court of Protection and related institutions cheaper and more accessible to service users. It is my hope that these proposals will filter through to wiser and more knowledgeable souls who will build upon it. Readers of Anna’s blog are invited to comment and if we later publish a proper policy paper we will try to credit suggestions –

1. Court of Protection Procedures

Unlike Mental Health Review Tribunals, the Court of Protection is a full blown court making use of its own rules and also the Civil Procedure Rules. Typically both solicitors and barristers are required but due to the lack of legal aid many applicants are litigants in person.

It is proposed –

a. the Court of Protection rules be re-written and modelled along the Small Claims track of the County Court, for example in terms of the rules of evidence. Typically parties should only need solicitors.
b. like a Tribunal the Court should be under a strict duty to assist a litigant in person.
c. as now costs should not be awarded in welfare cases. This rule should be extended to some limited financial cases, in particular in complaints about the conduct of a property and affairs deputy or applications by P to discharge a deputy.
d. In general the Court should have the powers of the High Court but the accessibility of a very helpful County Court Judge in the Small Claims track.
e. the overriding duty of the Court should be set out as being first to protect P’s autonomy as far as possible and second to protect P’s interests.

2. Litigation Capacity

A disturbing trend has arisen of local authorities using the Mental Capacity Act 2005 to find litigants incapable, for example in the infamous Rachel Pullen case. Unfortunately the procedures are vague and there is no clearly defined procedure for challenging a finding of incapacity. This procedure needs to be cleared up and a low bar for the test of capacity needs to be set with the opportunity for review of capacity from time to time.

The problem is that again Britain lags behind largely because civil servants sulk whenever the Europeans point out problems with out procedures. Most European countries have procedures for restoring and contesting litigation capacity.

Oddly, in Mental Health Review Tribunals there appears to be little evidence of the appointment of litigation friends. Applicants whose cases are meritless or tainted by insane arguments, ‘the Pixies did it!’ simply lose or are dealt with under case management procedures. There is an argument that the concept of litigation friend should not exist and these are the proposals for reform –

a. in any court or tribunal, where a person is found to lack litigation capacity or the ability to instruct a lawyer the Official Solicitor be appointed as a Party. However unlike now the protected party should still be able to make applications to the Court in person (for example if they disagree with the Offical Solicitor).
b. where a party is deemed to lack capacity to instruct a lawyer, but can nevertheless find one to act pro-bono then they are to be allowed to instruct that lawyer and the court must hear any application made.
c. meritless applications may be dealt with under case management procedures, but the court will be under a strict duty to assist any application or representation made by a protected party whether in person or through counsel.
d. where a person who lacks capacity appoints a McKenzie friend the ordinary rules for McKenzie friends will apply and in addition the McKenzie friend will have automatic rights of audience.
e. in considering a finding of incapacity of any party no court or tribunal may consider expert witness evidence that is to the effect that the party lacks capacity unless that expert is instructed solely by the party alleged to lack capacity or solely by the court or tribunal.

3. Right to Independent Expert

At present there are fears that experts may be subject to what academics call ‘repeat player prejudice’. Simply put, expert witnesses get a lot of work from councils and may not wish to upset them for fear of losing future work.

a. it is proposed that in any proceedings where capacity is an issue, where a public authority’s expert opinion is disputed the Court will instruct its own expert and include in that instruction any factual assertions made by the protected party.
b. the protected party will be allowed further opinions at a reasonable interval. E.g, once every 6 months in the first 12 months, and once a year thereafter.

4. Inspection Regime

Inspection regimes need to be quick, simple and fair. Punishments need to be harsh but only imposed on the guilty as a system will only deter wrong doing and encourage best practise if it accurately identifies both.

a. self assessment of all care homes and services should end.
b. the CQC should publish mandatory care standards (e.g. cleanliness of toilets, food, availability of activities, complaints procedures etc.)
c. all inspections should be unannounced.
d. inspectors should be able to impose spot fines. Private providers care about money. Appeals should be to the First Tier Tribunal.
e. inspectors should have the power to infiltrate and film in care providers in the same way as Panorama did. If the Regulation of Investigatory Powers Act needs to be changed then let it be changed.
f. the CQC should be given power and duty to prosecute for offences under section 44 of the Mental Capacity Act 2005. This power and duty should also given to the police, but not to local authorities. Local authorities should only have the power to refer offences under section 44 to the police or to the CQC.
g. the CQC should be given the power and duty to refer professionals for fitness to practise hearings if their inspections uncover serious wrongdoing.
h. private sector care providers should be given a tax break if they avoid any spot fines in a financial year.

5. Complaints Procedures

Human beings make mistakes. They cling to them often out of fear of punishment or disadvantage if they admit to the original error. This is the root of most disputes with councils. Public body complaints procedures often do not work because there is no incentive in complaints procedures to settle early. There must be an incentive to acquiesce to complaints and a disincentive to deal with complaints poorly.

a. Where a complaint to a public body is made and the body promptly accepts that complaint and rectifies the problem in a manner satisfactory to the claimant then there should be a reward in terms of limited protection from punishment.

i. The body should be exempt to the first £5,000 of a claim for damages arising from any non-pecuniary loss.
ii. That any professional involved should not be referred to fitness to practise proceedings for negligence. No such immunity would apply for malice and misconduct (e.g. abuse).

b. Where a complaint to a public body is made and not accepted and a claim for damages is successful then a court may have the power to increase the damages by up to 25%. This is not punitive but instead reflects the cost to the court system of public sector obstinacy. The court will be required to consider the thoroughness, reasonableness and independence of the process used to consider the complaint.

So for example in the Neary case had the council caved in to Mr Neary’s first complaint then the council would have received immunity to the first £5,000 of a claim for damages in distress and a presumption that the mistakes of the professionals were minor and should be overlooked absent other evidence. This would have given them a strong incentive to consider the case carefully and fix the problems much earlier.

Impact Assessment.

The current framework for the Court of Protection imposes fabulous legal costs on local authorities, whether they be right or wrong in any given case. By simplifying CoP procedures and requiring only solicitors, legal costs for councils and other public bodies will be substantially reduced and can be spent on improving care. Accessibility for clients will also be improved.

Private sector care providers care about money. Spot fines are a quick easy way to deal with problems. Tax breaks for a clean report will make sure that care managers worry about standards.

Public sector complaints procedures are often meaningless because they tend to rely on human beings admitting to mistakes. Giving an incentive to settle matters quickly will radically improve matters.

Sam Smith.

Edited by Anna to add: Do please take the opportunity to comment, and forward it on to anyone you know who has an interest in these matters – it will be going before the Minister. It is an excellent opportunity to put your point of view – and good work by Sam smith, who has been a diligent campaigner.

Jim Jones July 10, 2011 at 20:57

Dear Mr Smith,

I have been involved with the Court of Protection. We had a health expert,
sanctioned by the C.o.P, visit my father back in May 2010, who is placed in a
care home against his and my wishes. The health expert did not even see my
father fall over a chair, such was his bad state on that day, which was out of
character for him. The expert in question was hanging back further down the
corridor in the care home.

I later found out that my father had been given an extra dose of a drug the
day or evening before the expert’s visit to see him. The expert in question
said how my father was “crushed by Alzheimer’s” and said how he is better of
in that care home.

A few months later; I arranged another health professionals visit by a
local nurse, which was a drop in visit, un-anounced and she disagreed with the
previous verdict. It seemed to me that the court appointed expert dare not say
his real feelings, seemingly ignoring the fact that my father’s condition (and
his assessment) might have been interfered with. Like what you have wrote,
some experts might not want to rock the boat and dare to stick their necks out
against the authorities.

Thanks for reading this message.

Best regards,

Jim.

Howard June 25, 2011 at 14:46

CAFCASS anyone heard of them? They work for the Judge in each and every
case, not the interest of the child. The judge in my case demanded the CAFCASS
officer say what she wanted him to say. He was outflanked by the men hating
social workers at Hertfordshire County Council. I have never been in contact
with corruption on this scale in the Courts and Social Services
(Hertfordshire) I want to name them so much isn’t that right AQ?

Howard June 25, 2011 at 14:33

There is no Court of Protection and therefore what parades itself as such
should be renamed The Court for the Destruction of the Innocent, the harmless
and the Vulnerable.

anajinn June 21, 2011 at 01:26

SECOND CASE IN A WEEK – LOCAL AUTHORITY ISSUES
“The ruling is the second
time in as many weeks that the Court of Protection has found that a local
authority wrongly deprived someone of their liberty. Last week the London
Borough of Hillingdon was severely criticised by a judge for taking Steven
Neary, a 21-year-old man with autism and severe learning disabilities, away
from his father for more than a year.”

http://www.independent.co.uk/news/uk/home-news/locking-autistic-man-in-padded-room-ruled-illegal-2298553.html

anajinn June 21, 2011 at 01:14

THE ETHICS OF LOCAL AUTHORITIES

“The local authority had also pursued inconsistent agendas between April
and July 2010 – putting in place a transition plan for a return home whilst Mr
Neary remained unaware that the professional view was that Steven should not
return home. It was only when successful overnight stays at home meant that
the parallel agendas became unfeasible that the true view of the professionals
became known. Furthermore, in July, when the truth was known, it took almost
four months for an application to be made to the Court of Protection.
”
STEVEN NEARY CASE – FULL DETAILS HERE
http://www.familylawweek.co.uk/site.aspx?i=ed84021

cecile June 18, 2011 at 19:07

This all makes sense to me. My father was abused in many ways by the Court
and if there was a regular review that would be a start. I think it needs to
be the case that a patient is deemed to have capacity after a certain time
unless it is proven other wise, as is the case with mental health deprivation
of liberty.
Why aren’t incapacitated people referred to social services,
with Court and the legal profession only necessary if problems
arrive?
Because it is an anomolous, old fashioned money spinner for court
workers.

anajinn June 19, 2011 at 07:46

In other words, Cecile, it is racketerring. In the USA, there are laws
against it. This is the most horrible court in the universe, and it is set
up as a feeding ground for lawyers. For “feeding ground” read “stealing
ground”. It is LEGAL BACKSCRATCHING on the backs of donors. For “donors”
read “victims”. It is no better than the witch hunts, where the church
declared old laidies witches, and stole their assets. It still continues to
this day. The fees at the court are out of sight and criminal. They allow
any old TOM, DICK OR HARRY, to get power of attorney and turn a blind eye
while they rape the victims.

THIS IS THE PROBLEM AND IT WILL ONLY BE WORSE IF HANDED OVER TO LOCAL
GOVERNMENT WHO HAVE LESS REGULATIONS AND EVEN MORE CORRUPT ENTITIES
WITHIN.

Anajinn June 18,
2011 at 13:26

Actually, there is an article in the paper today. If ANYONE knows the
issues with the Court of Protection, it is John Hemming, who is in the best
position to make recommendations. I am sure he is privy to many more cases and
facts than Mr. Smith – he mentions a few issues in the article, but he has
information on a very wide range of cases and knows the issues.

http://www.telegraph.co.uk/news/uknews/law-and-order/8303896/John-Hemming-MP-Court-of-Protection-must-be-reformed.html

Sam Smith June 20, 2011 at 19:52

Hi Anajinn,

Just so you know, Mr Hemming has been very helpful with these proposals
and has arranged for them to be put to the Minister. He also linked to some
of the recent articles on this block, including my own entitled ‘Hello
DoLS’.

In relation to your other comments I would only add that the idea of
these proposals is to make it cheaper and easier for ordinary people to
challenge decisions by local councils or the Office of the Public
Guardian.

Adam
Collyer June 16, 2011 at 22:24

Sam’s suggestions are all very commendable. On the other hand, I think the
whole concept of the “Court of Protection” is a rather sinister one, frankly.
You might argue that without it, many vulnerable people would be exploited. On
the other hand, I suspect that with it, many vulnerable people are exploited
by the State.

The whole thing is part of the idea that has grown in the West, of the
State being there to “look after you” if you need it for any reason at all.
I’m not so sure we weren’t better off taking our chances with our family,
friends and neighbours before anyone ever invented the “Court of
Protection”.

Christine Hockett
June 16, 2011 at 17:54

People arriving at the Court of Protection may have suffered or be
suffering from the results of accident, illness, infirmity due to old age, the
list is endless. Some may completely recover or, at a later date, at least be
able to manage their affairs, many will not. They may be represented/in the
care of Social Services or family or in dispute with either or both. What is
clear is that all parties need a right of audience should they wish it, so
that each knows the wishes and intentions of the others, particularly where
this has not been made clear earlier by any of the parties involved. The
simplification of Court procedures is therefore an urgent necessity so that
these contentious cases can be resolved without undue delay impacting on the
life of the applicants, either by way of where they live, or access to their
money to fund their daily expenses. The Mental Capacity Act 2005 had the
stated aim of putting the patient at the heart of any decisions, therefore, I
would be happy to see an “inquisitorial” system in this Court, with the Judge
or panel of Judges directly examining all parties in person rather than having
“evidence” presented to them, often in documentary form or by “experts”. This
Court should have a direct dialogue with applicants and any other interested
party who may not be legally informed or represented to enable the Court to
arrive at the best decision in their best interests, having had a right of
audience should they so wish it.
Currently every decision of the Court is
subject to proceedings more proper for contentious matters. I am Deputy for my
aged aunt whose affairs are non contentious. I have made non contentious paper
applications to the Court at a cost of £400 a time, and feel that I should be
presenting myself in person and would like the opportunity to do so and meet
the Judge. I welcome the supervision of the Court on my actions and accounts
and would like to feel that I was working with them in the best interests of
my aunt. Full Court applications should not be the required procedure for non
contentious matters – i.e. the level of the indemnity bond. I have received
decisions from the Court but do not know the rationale behind them. This lack
of transparency in proceedings means that it is more likely that applicants
will need expensive legal advice and representation in order to navigate the
system. The system should be set up so that families will be able to care for
their relatives and/or set up the financial systems to do so without having to
engage legal advisors at considerable cost to assist in the setting up of
these systems. There will always be cases where expert legal advice is
necessary because of their contentious or complicated nature but this branch
of the law needs to be more accessible to the public – transparency of non
contentious matters may help to achieve this and dispel the fear and myths
surrounding these matters.
The Office of the Public Guardian (OPG) the
administrative arm of the Court and the Court Funds Office (CFO), where many
people are ordered or choose to lodge their capital, also have considerable
roles to play. The OPG has been deemed to be “self funding” by the Ministry of
Justice, from the fees it charges. They also need some reform to ensure that
they provide a SERVICE as well. As “experts” in this field, they should be
providing guidance and signposting for Deputies to advice and information to
ensure that they are discharging their duty to their patient in the best
possible way. A public consultation has recently closed with the stated
intention of increasing these fees from July. The statutory instrument for
this has yet to be placed before Parliament and it is my wish that the debate
critically look at what the “patients”, “deputies” and “attorneys” are being
provided with when these fees are increased.
The care system is not one of
“choice”. Try to find a bed for a relative! I would also like to see tax
breaks – not necessarily as “rewards” for care homes, but full tax relief on
the interest earned on capital raised from the sale of homes and contents by
“self funders” to buy care! In the current climate this may enable their
capital to last longer before they need to rely on state
provision.
Statistically one in four people will suffer mental health
problems, others may suffer injury, others still will become infirm due to
age. The provision of future care for everyone is a concern, not only how it
will be provided, but perhaps more importantly that we have made our wishes in
this regard clear – we are being told to take out “Power of Attorney” forms –
I would ask that I be able to make this provision as a codicil to my will.
Like many others I would like to make my wishes clear in this respect, as I
cannot know if I will suffer an accident and yet cannot afford the two
documents. I also feel that should I suffer mental incapacity there will be a
whole raft of documents to be found, and it would be simpler and more sensible
by far if my wishes for my care and the residue of my estate were in one
document which would then be registered at Court should the need arise.

Michael Clarke
June 16, 2011 at 07:03

Frustration plays the biggest role.
In any other dealings I’ve had with
other bodies or organisation whether they be public or private there has
always been an easy simple format available to complain or speak about certain
problems where with this body everything seems to be ignored, swept under the
carpet and or just painly rebuffed as troublemaking. There is no serious
concious effort to get to the bottom of the issue’s you have and or the
serious concerns that leave you angry, frustrated & culminating in deep
deep resentment of your own country where they bang on about JUSTICE. It
does’nt exist in the UK. Why also is it that the jurisdiction appears extended
from UK & Wales to cover other countries we don’t live in the UK but still
suffer at UK hands. WHY?

Sabine K
McNeill June 16, 2011 at 10:09

Very true from my experiences with victims of white collar crimes: the
complaints procedures send people from pillar to post, fob them off or
respond by “not dealing with individual cases”.

Hence frustration does play the biggest role indeed, before it turns into
anger and utter disillusionment, if not shame.

Anajinn June 16, 2011 at 13:25

I agree. Nobody will take responsiblity and nobody feels that they are
accountable. The problem is that the public officials are so self-serving
that they have entirely forgotten that they are supposed to serve the
public. Because there is no accountability, this has continued to the
point of absolute madness, and not one government department feels any
sense of accountability to the public, or even to parliament in many
cases. I do believe that parliament needs to micro-legislate the
government into being accountable. The Court of Protection is a big
offender and, even when a complaint is made, they only PRETEND to do an
investigation. I can prove that. This is because NOBODY is accountable and
judges work against the donor and family.

I know of one case at least of serious economic crime taking place with
the court of protection enabling it. The legal professionals in question
got an injunction to silence the victim – and the victim was never a
candidate for the court of protection, but put under this court unlawfully
for the purpose of theft. The court will do nothing about it, neither will
police. THIS IS A VERY SERIOUS ISSUE and the public is very much aware
that economic crime is taking place under cover of this court.

Michael
Clarke June 20, 2011 at 12:33

We are ashamed. Totally ashamed of our own country. Thats why we left,
to live in another country, but the long arm of UK CORRUPTION just follows
us. It will not let go. Obviously, for financial reasons of spending
someone else’s money. THEFT by Solicitors from hell seems to be the order
of the day. The UK government has lost its credability completely in my
eyes. I have warned before but someone will become riddled with
frustration to the point where a serious crime will be comitted before
someone will take notice of whats happenning. http://www.opg.me/

Single
Acts of Tyranny June 16, 2011 at
06:13

You generously say early on that people who work for the council are only
human. True enough but whilst some humans, as we have seen. are just
incompetent, others are manifestly sinister and sociopathic. The latter
category maybe drawn to this sort of work, just as they were drawn to direct
child care in the 1970′s.

This is a difficult area so the very best of luck.

Sabine K
McNeill June 16, 2011 at 10:06

It has even been suggested that people are selected for their jobs
according to their minimum capacity for empathy and sympathy for
children!

Anajinn June 16, 2011 at 13:16

Well said, Single Acts of Tyranny. This is a very dark area indeed and
open to abuse by all and sundry.

I don’t think what Sam Smith suggests is going to get to the heart of it.
I wonder what his own personal agenda is in putting this forward.

Without effective “policing” of powers of attorney, there will always be
abuse, some of which is outright criminal. I know of cases where legal
professionals refuse to “let go” of “donors” when they are capable of
handling their own affairs – quite obviously because they would lose fees if
they don’t represent the person – all against the wishes of the donor and
their family. An annual review is simply not good enough. We are talking
about deprivation of liberty too.

It is not the court that is the problem, but the way it is run. Local
councils are self-serving and the system would break down even further if
the responsibility were given to them. Accountability should be with the
Ministry of Justice, and they should be given no excuse to shirk it.

Sam Smith
June 16, 2011 at 19:01

Hi Anajinn,

I don’t have an agenda. This is a consultation. A proper consultation
where we actually listen and change stuff based on feedback
I agree
with you that better policing of the financial aspects of the CoP and the
OPG would be desirable and am happy to add to the next draft a policy
requiring parties to CoP proceedings to prove service by keeping (for
example) recorded delivery slips from the post office.

This seems quite reasonable. Anna has also mentioned something
similar.

Please let us know if you have any other suggestions.

Sabine K
McNeill June 16, 2011 at 02:36

It’s a nice try indeed, Sam and Anna!

However, from what I’ve seen of the Court of Protection, general courts as
well as Family Courts, is a trend of ‘outside staff’ abusing the court system
and judges sanctioning wrong-doings, e.g. social services, insolvency
services, lawyers, accountants, banksters.

Hence Law and Order have been replaced by Crime and Disorder.

The general populace is the threat of being ‘ground down’ in a number of
ways. The courts are contributors to it.

More on
http://victims-unite.net/
http://edm1297.info/
http://rm14.wordpress.com/

electro-kevin
June 16, 2011 at 01:39

A greater problem has been the release of mentally unhinged people under
the Tory policy of Care in the Community. Many deaths and many assaults
resulting.

We actually seem to live in a society whose leaders want to avoid locking
people up at all costs.

I don’t think the general populace is under any great threat of being
locked up. The risk of being killed or injured by people who simply should not
be on the streets is far greater.

Anajinn June 15, 2011 at 23:19

The Court of Protection has no proper policies and procedures to limit
fraud, or to ensure that statements made on the applications for power of
attorney are true. They do not ask for evidence, for example, that relatives
have been advised by registered mail at least. Anyone can produce a so called
carbon copy of a letter than NEVER was sent. There is a deliberate movement to
hide these applications from relatives, so that they cannot contest. The Court
has even stated that there is a reluctance on their part to leave loopholes
for contentious litigation. This is very bad. there should be proper security
protocols in place, and procedures to ensure that fraud cannot take place. At
present, they do not exist, and fraud has been taking place in various forms.
As money laundering has taken place, as in a case of a Lincolnshire solicitor
who used the court for theft and money laundering, there is obviously no
safeguard to prevent this. This court is a fraud enabler, especially as it has
been informed of the problems and does NOTHING to close up these security risk
loopholes.