At the centre of all Court of Protection proceedings are vulnerable individuals whose fundamental rights and freedoms need to be protected across a wide range of decision taking. Wherever possible, measures should be taken which enable these important cases to proceed. In response to Covid-19, the Court of Protection is responding to the considerable challenges of striking the right balance on when it is appropriate for hearings to go ahead, and if they do, how they go ahead as people become symptomatic and self-isolate.
What the guidance says
Mr Justice Hayden, the Vice President of the Court of Protection, has issued two sets of guidance considering the operational situation of the Court of Protection and suggesting practical solutions to some current issues arising as a result of Covid-19:
- Visits to P by Judges and Legal Advisers – published on 13 March 2020
- Additional Guidance for Judges and practitioners arising from Covid-19 – published on 18 March 2020
The Court has recognised that this is a rapidly changing situation and that the guidance may well need to be added to and amended as the situation progresses.
Visits to P
The guidance of 13 March states that in view of the fact that individuals subject to Court of Protection proceedings are often highly vulnerable to the Covid-19 virus, alternative arrangements should be considered first such as telephone, facetime and skype conferencing. If the judge hearing the case considers that P would be disadvantaged by the absence of a visit they should discuss it with the regional lead judge before taking any decision.
Attendance at court
Practice Direction 4A relates to attending hearings. This Practice Direction enables the Court of Protection to direct the scope and ambit of the hearing. Facilitating options such as telephone, facetime and skype conferencing should be considered.
- It is likely that there will be an increase in the number of hearings being conducted remotely.
- Hearings with time limits of 2 hours or less will be conducted by telephone. The applicant should make the necessary arrangements as set out in COPGN5.
- Hearings with time estimates of more than 2 hours will proceed unless there is further guidance or a specific application is made in the case to vacate, adjourn or vary.
- Where hearings are conducted by telephone or skype the court listings will be published in advance as usual and updated guidance will be made public.
- Wherever possible, practitioners should endeavour to agree Directions’ Orders at interim stages without live hearings being required as long as this doesn’t compromise the interests of the client.
Documents that can only be signed personally by the appointed Deputy/COP3 orders/Court documents
Until further notice the Court of Protection can accept electronic signatures. Additionally where documents are e-mailed, a photograph of the signature could be attached.
The MCA and Codes of Practice require P to be personally notified of various matters. What happens if P is in care home which is locked down?
Arrangements can be made by the applicant for notification by an agent such as a member of staff at the care home. Alternatively a COP9 application to dispense of the requirement to personally notify P may be appropriate.
Property and affairs applications for the appointment of a professional Deputy. Would it be possible to issue emergency interim orders and how will the Court consider applications which lack the usual requirements of capacity evidence and notice requirements?
Interim orders of short duration would be possible but the Court would still need to be satisfied that there is reason to believe that P lacks capacity, and the range of authorities will be more limited. If applicants are not able to meet the usual requirements by other means they should identify any issues which really need to be addressed on an interim basis.
Will the Court accept orders issued by email?
Rule 6.3(4) allows the Court to direct that service may be effected by non-standard means. A template order has been agreed to provide for service on the OS by electronic means. Wider issue of orders by email will have to be further considered, but the possible risks especially in property and affairs should not be underestimated.
Will the Court accept electronic bundles?
The Court does not have the equipment to operate electronic bundles. The Court can accept scanned documents which should be separately scanned and sent by emails. In Tier 3 cases, both in London and regionally, electronic bundles are likely to be acceptable.
Can capacity assessments be undertaken by video when it is established that P is happy to do so and can be “seen” alone?
The assessor will need to make clear exactly what the basis of the assessment is. Whether such evidence is sufficient will then be determined on a case by case basis. Careful consideration will need to be given to P being adequately supported and to those arrangements which are most likely to assist P in achieving capacity. These arrangements should be addressed when the video arrangements are agreed.
The Vice President intends to set up a Core Working Group (Covid-19) comprising of Judges and representatives of the profession who will look at ongoing interim solutions focusing on helping the Court to operate efficiently in the current crisis.
This is clearly a fast moving situation and the guidance will be reviewed as circumstances develop. Mr Justice Hayden plans to provide regular updates which we will disseminate to our readers.
If you would like to discuss the details of this guidance or have any other queries please contact Hannah Taylor.
For further support and advice relating to the impact of COVID-19, please view our COVID-19 Advisory Service page.