What is the Court of Protection?
The Court of Protection is a specialist court and is responsible for safeguarding the rights of those who have been assessed to lack mental capacity to make a particular decision for themselves.
Sometimes, a person cannot make big decisions affecting their life for a number of reasons. A person may, for example, have a diagnosis of dementia or Alzheimer’s disease, have a learning disability, a brain injury or other medical condition. The condition might affect their ability to understand their situation or make a decision.
It is important to remember that the existence of an illness or condition does not in itself mean that a person may lack capacity and an assessment by a professional is required to determine this. The law around whether a person has capacity is complex and it is therefore important that specialist legal advice is sought if this disputed.
Best interests decisions and disagreements
When someone is assessed to lack mental capacity, and a decision needs to be made, it must be made for them, based on what is in their best interests. This can be difficult and disagreements with local authorities or doctors, or between family members is common.
The Court of Protection can consider a wide range of issues and decisions on behalf of people lacking mental capacity, such as:
- Where a person should live, for example, there may be a disagreement about whether a person should move to a residential care home or nursing home
- What kind of care a person should receive
- Who a person should see and have contact with, for example, there may be a disagreement about a disabled adult having contact with family members or certain people
- What kind of medication and/or medical treatment a person should receive, for example, whether a disabled adult should receive life-saving surgery or treatment
- Whether a person is able to consent to and engage in sexual relations, for example, a disabled adult may have a partner and want to have sex with them, but professionals and family members may disagree on whether this is in their best interests
- Whether a person’s care and support (and restrictions in place to keep them safe) amounts to a deprivation of liberty
- Deprivation of liberty challenges and appeals, including deciding whether someone living in a care home can return to their own home, should stay in the care home or move to another care home.
Our team of Court of Protection solicitors has extensive experience in dealing with these issues. Our experience includes:
- Advising on whether a mental capacity assessment has been done properly and complies with the law
- Challenges to a mental capacity assessment, including instructing psychologists and psychiatrists to undertake independent capacity assessments and using this evidence to successfully argue that a person has mental capacity to make a decision (despite their diagnosis or outcome of previous assessments)
- Dealing with cases where a person has regained capacity to make decisions, for example, after a period of rehabilitation
- Making applications to the Court of Protection in relation to a wide range of disputes, including:
- To challenge capacity evidence
- On behalf of family members, to contest that a decision made by a social worker or doctor is in a person’s best interests
- To challenge a deprivation of liberty safeguards authorisation
- Responding to applications in the Court of Protection on behalf of family members, for example drafting witness statements for the court, position statements and representation at court where there is a disagreement
- Disagreements in relation to where a person should live, including whether they need to move to residential care or can stay in their own home, including challenging social work assessments and decisions about the amount of care a person needs
- Cases involving vulnerable adults that have been assessed to have mental capacity to make one decision, but not in relation to another
- Disagreements about whether a disabled adult should adhere to and follow religious practices, such as fasting and hair removal
- Cases relating to termination of pregnancy and sterilisation of a disabled adult
- Cases involving a complex overlap with mental health law, where a person has previously been sectioned and subject to both a community treatment order and deprivation of their liberty following discharge.
How can my Court of Protection case be funded?
Stephensons are able to offer legal aid in some cases in making or responding to a Court of Protection application, or to simply provide advice in respect of the best interests process. This is public funding from the government, and means that you may not have to pay anything for us to help you.
Legal aid is available to people deprived of their liberty in care homes and hospitals where the person wants to challenge this- regardless of the amount of their savings. It is also available in other cases, subject to eligibility criteria (including the merits of your case and assessment of your finances).
If legal aid is not available to you, because your case does not qualify for public funding or your savings or income are too high, there are other options available to fund your case.
We offer fixed fee initial consultations with specialist Court of Protection solicitors, to enable you to discuss your concerns for a small fee, before any action is taken to determine the best course of action. During this initial discussion, a solicitor can advise you on the steps that need to be taken to resolve the issue and the likely cost of the case.
We also offer fixed fee packages throughout a case, so that clients have complete clarity on how much each stage of the case is going to cost.
In some cases, due to the complexity or unpredictability of the case, it may be more appropriate to instruct us on an hourly rate basis, which will be a competitive rate with regular costs updates throughout the life of the case.
It is important that you seek specialist advice before making or responding to Court of Protection applications. Any application or response needs to be carefully considered in order to protect your position. If an application has already been made to the Court of Protection or you want advice about making an application yourself, then we can advise you on the way best forward. For a confidential, no-obligation discussion regarding your case, contact our specialists on 01616 966 229 or complete our online enquiry form and a member of the team will contact you directly.