By Paul McGough
|Published 10 August 2016
The Court of Protection's case management and section 49 pilots will apply to proceedings started on or after 1 September 2016.
The pilots will principally affect CCGs and local authorities in the context of disputed welfare cases and Mental Health Trusts in terms of changes to the rules around section 49 reports.
The aim of the case management pilot is to introduce more robust management of cases in the Court of Protection with a view to encouraging early resolution. Cases involving serious medical treatment and deprivation of liberty are not included within the case management pilot and will continue to be dealt with under existing procedures. For welfare applications, the changes are likely to mean:
The section 49 reports pilot will also mean some important changes including:
From 1 September 2016 onwards, Court of Protection cases (excluding serious medical treatment, deprivation of liberty and uncontested applications) will be allocated to one of the three case management pathways under the pilot scheme – the personal welfare pathway, the property and affairs pathway or the mixed pathway for cases with elements of both welfare and property/finance.
The Court is under a duty to actively manage these cases to further the overriding objective of dealing with cases justly and at proportionate cost.
The Case Management Pilot Practice Direction sets out the new rules to be followed for each pathway.
The new case management procedures for personal welfare cases will include the following:
Pre-Issue – the applicant will be required to give P and all other potential respondents advance notice of their intention to start proceedings, an explanation of what the Court will be asked to decide and their proposals for resolving matters without the need for proceedings.
Application – there is a long list of information which will have to be provided when making the application, including a list of options for P and copies of needs assessments/support plans.
Case Management Conference within 28 days – at this hearing, the Court will record the issues in dispute, consider how P is to be involved in the case, determine who is to be P's litigation friend (with appointment of the Official Solicitor being a last resort), set a timetable for the proceedings and actively consider whether a section 49 report could achieve a better result than use of an expert.
Final Management Hearing – the Court will determine whether the case can be resolved and, if not, will give directions to ensure the Final Hearing is properly prepared.
Final Hearing – an advocates' meeting should take place at least 5 days before the Final Hearing to resolve/narrow the issues as far as possible. If any directions have not been complied with, the Court will consider whether to adjourn the hearing and, if it does so, will consider making an order as to costs.
This pathway is to be followed in cases which relate only to P's property/financial affairs. Like the personal welfare pathway, it will only apply to contested cases.
The key provision here is the introduction of a Dispute Resolution Hearing before a District Judge when the Court can give its view on the likely outcome of the proceedings with the aim of trying to resolve the case. If the parties reach agreement to settle the case, the Court will make a final order if it considers it in P's best interests. Otherwise the Court will give directions for management of the case and a Final Hearing, which must take place before a different judge.
For cases which have elements of both welfare and property/financial affairs, the Court has the power to pick whichever elements of the other pathways it considers appropriate.
The Court of Protection's power to order NHS bodies and local authorities to produce section 49 reports has caused difficulties in terms of unreasonable timescales and staff resource implications.
These issues are to some extent addressed by the section 49 reports pilot which will make some important changes to existing procedures, as follows:
Advance notice - before a party applies for a section 49 report, they must do their best to make contact with an appropriate person within the relevant NHS body/local authority to make them aware that the application is going to be made and what they would like the report to cover. Importantly, they must also ask the NHS body/local authority about the reasonableness and timescales for providing the report should the Court order it. The Court will ask the applicant what the response of the NHS body/local authority was and this will be taken into consideration by the Court before making an order. This should give NHS bodies/local authorities more scope for influencing who is asked to produce section 49 reports and the timescales involved.
Timing – orders for Section 49 reports must be served on the NHS body/local authority within 48 hours. This should help address the practical difficulties caused by late service of orders.
Letter of instructions – the applicant must submit a draft letter of instructions to accompany the section 49 report order. Although this often happens in practice already, this will become a requirement under the pilot.
Factors the court may consider – under the pilot, there are a number of factors which the Court may consider when deciding whether to order a section 49 report, including whether the public body has recent knowledge of P or should have knowledge due their statutory responsibilities. This may pave the way for organisations to argue that it is not appropriate to require them to produce a section 49 report where they have no prior knowledge of P.
We anticipate that the pilots will see an increase in requests for section 49 reports, particularly given the requirement in personal welfare cases to consider whether a section 49 report could achieve a better result than use of an expert and the change to the rules on experts which will see the threshold for obtaining an expert report raised from whether such a report is 'reasonably required' to whether it is 'necessary'.
NHS bodies and local authorities should ensure that they have nominated a contact person within their organisations to deal with these requests.
Our national team of Mental Capacity Act and Court of Protection specialists have extensive experience of advising commissioners and providers across the health and social care sector.
We are able to provide responsive, practical advice on all aspects of the law in this area, including:
Paul McGough
Partner
Leeds
