CHAPTER ONE – INTRODUCTION TO THE COURT OF PROTECTION
The Court of a Protection is a distinct court, established by section 45 of the Mental Capacity Act 2005 (“the MCA). It may only make decisions on behalf of someone who lacks capacity or in relation to such a person (known as “P”) although in United Lincolnshire Hospitals NHS Trust v CD  EWCOP 24 (04 July 2019) the court determined that it has, in exceptional circumstances, the power to make an anticipatory declaration of lawfulness, contingent on P losing capacity, pursuant to section 15(1)(c) MCA.
The Court of Protection is based at First Avenue House, London, but there are also (currently) seven regional hubs and details can be found at www.gov.uk/courts-tribunals/court-of-protection. Contact details for the courts are as follows:
Court of Protection
PO Box 70185
First Avenue House
42-29 High Holborn
DX 160013 Kingsway 7
0300 456 4600
North East – East Regional Hub
Leeds Combined Court Centre
1 Oxford Row
DX 703016 Leeds 6
0113 306 2800
North East – North Regional Hub
Newcastle Combined Court Centre
Newcastle upon Tyne
DX 65127 Newcastle upon Tyne 2
0191 205 8750
North West Regional Hub
Manchester Civil Justice Centre
1 Bridge Street West
DX 724783 Manchester 44
0161 240 5000
South East Regional Hub
Reading Court & Family Court
160-163 Friar Street
DX 98010 Reading 6
0118 987 0500
South West Regional Hub
Bristol Civil & Family Justice Centre
2 Redcliff Street
DX 95903 Bristol 3
0117 366 4830
Wales Regional Hub
Cardiff Civil & Family Justice Centre
2 Park Street
DX 99500 Cardiff 6
0292 037 6400
Midlands Regional Hub
Birmingham Civil and Family Justice Centre
The Priory Courts
33 Bull Street
DX 701987 Birmingham 7
0121 250 6395
COP – Court of Protection
Court of Protection visitors – visitors report independently to the Public Guardian, to help them in their role of supervising deputies and investigating concerns about the actions of a deputy or attorney. There are two types of visitors: special visitors (medical practitioners who have specialist knowledge of mental incapacity) and general visitors (who do not need to be medically qualified but must have experience of mental incapacity).
Litigation friend – the role of a litigation friend is to ‘direct the proceedings’ on behalf of P. This may include instructing a solicitor (and acting on their advice), acting in the best interests of P and complying with any orders of the court.
Official Solicitor – in proceedings before the Court of Protection where P is a party the Official Solicitor may be instructed to act as litigation friend for P. The office of the Official Solicitor includes a number of experienced lawyers who specialise in Court of Protection proceedings.
OPG – The Office of the Public Guardian is an executive agency of the Ministry of Justice. Its responsibility includes supervising deputies and guardians appointed by the courts and taking action where there are concerns about an attorney, deputy or guardian. The OPG is overseen by the Public Guardian (the Public Guardian as at January 2023 is Amy Holmes).
Guidance issued by the Official Solicitor as to when she will act can be found at www.gov.uk/government/publications/appointment-of-the-official-solicitor-in-property-and-affairs-proceedings-practice-note.
The Official Solicitor can be contacted at:
DX 141423 Bloomsbury 7
020 3681 2751
Fax: 020 36812762
P – the person about whom the proceedings relate
The Court of Protection and the Office of the Public Guardian are two separate and distinct organisations with limited ability to share information. The OPG has powers of investigation but if it has concerns (particularly if action needs to be taken to consider the ongoing appointment, or removal, of an attorney or deputy), it must make an application to the Court of Protection to deal with the matter.
The Court of Protection has power to make decisions on behalf of a person who lacks capacity or in relation to such a person. The court can exercise its jurisdiction in a number of ways, including to:
make declarations of capacity (section 15 MCA 2005);
make one-off decisions on behalf of a person without capacity (sections 16–18 MCA 2005);
appoint a deputy to make decisions (section 16(2)(b) MCA 2005);
give directions in respect of lasting powers of attorney (‘LPAs’) (sections 22 and 23 and Schedule 1 MVA 2005);
give directions in respect of enduring powers of attorney (‘EPAs’) (Schedule 4 MCA 2005);
direct reports from the Public Guardian, Court of Protection Visitor, local authority or NHS body (section 49 MCA 2005); and
act as a venue for hearing appeals against administrative decisions made under the Deprivation of Liberty Safeguards provisions contained in section 21A and schedule A1 MCA 2005.
The Court’s powers to make decisions on P’s behalf in respect of property and affairs under section 18 MCA 2005 extend in particular to:
the control and management of P’s property;
the sale, exchange, charging, gift or other disposition of P’s property;
the acquisition of property in P’s name or on P’s behalf;
the carrying on, on P’s behalf, of any profession, trade or business;
the taking of a decision which will have the effect of dissolving a partnership of which P is a member;
the carrying out of any contract entered into by P;
the discharge of P’s debts and of any of P’s obligations, whether legally enforceable or not;
the settlement of any of P’s property, whether for P’s benefit or for the benefit of others;
the execution for P of a will;
the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise;
the conduct of legal proceedings in P’s name or on P’s behalf.
The Court’s principal powers in respect of health and welfare are contained in section 17 MCA 2005 and in sections 18 and schedule 2 MCA 2005 in respect of property and financial affairs. All the powers set out in sections 17 and 18 MCA 2005 can be delegated to a deputy apart from those expressly reserved to the Court and set out in section 20. These include:
the settlement of any of P’s property whether for P’s benefit or for the benefit of others;
the execution for P of a Will; or
the exercise of any power (including a power to consent) vested in P whether beneficially or as a trustee or otherwise.
Section 20 MCA 2005 furthermore sets out additional restrictions appropriate to when a deputy is responsible for welfare matters. Not only must a deputy not act when a person lacks capacity, but the deputy has no authority to:
prohibit a person from having contact with P;
direct a person responsible for P’s healthcare to allow a different person to take over that responsibility;
‘refuse consent to the carrying out or continuation of life-sustaining treatment in relation to P’; this is reserved to the Court of Protection;
restrain P unless the five conditions set out in subsection 20(8)–(13) MCA 2005 are satisfied, that:
the deputy is acting within the scope of an express authority;
P lacks capacity in relation to the matter;
the deputy reasonably believes that the restraint is necessary to prevent harm to P;
the restraint is proportionate to the likelihood of P suffering harm and the seriousness of that harm; and
the act of restraint does not amount to a deprivation of liberty.
Whilst the court’s powers are wide, there are limitations to its authority:
any decision made by a body or person on behalf of another person who lacks capacity must be made in that person’s best interests (sections 1, 4 and 16(3) MCA 2005);
the court (and a deputy appointed by the court) can only act in respect of decisions a person lacks capacity to make (sections 16(1) and 20(1) MCA 2005);
decisions made by the court should where possible be the least restrictive and limited (sections 1(6) and 16(4) MCA 2005);
decisions can only be made on behalf of a person who is over 18 – however, if P is under the age of 16, the court can make decisions in respect of property and affairs if it considers it likely that P will still lack capacity to make decisions in respect of the matter in question when P reaches 18 (section 18(3) MCA 2005);
certain decisions such as consenting to marriage or sexual relationships, voting in an election or consenting to treatment for mental disorder are beyond the scope of the MCA 2005 (sections 27–29 MCA 2005).
Principles of the Mental Capacity Act 2005
All decisions made on behalf of or in respect of a person who lacks capacity, must be made pursuant to the principles of the MCA, as set out in section 1. These principles are:
A person must be assumed to have capacity unless it is established that he lacks capacity.
A person it not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
An act done or decision made under the MCA for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
Before the act is done, or the decision is made, regard must be had as to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
For the purposes of the MCA 2005, there is a two-stage test of capacity.
The first stage, as set out in section 2 MCA 2005, states that “a person lacks capacity in relation to a matter if at the material time, he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.
It does not matter whether the impairment or disturbance is permanent or temporary and there does not need to have been any formal diagnosis.
A lack of capacity cannot be established merely by reference to:
A person’s age or appearance, or
A condition of his or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
The test of capacity is on the balance of probabilities. That is, whether a person is more likely that not to lack capacity to make the decision in question.
The second stage of the test of capacity is set out in section 3 MCA 2005 and this states that for the purposes of section 2, a person is unable to make a decision for him or herself if he or she is unable to:
Understand the information relevant to the decision (which also includes the reasonably foreseeable consequence of deciding one way or another or making no decision at all).
Retain that information.
Use or weigh that information as part of the process of making the decision or
Communicate his decision (whether by talking, using sign language or any other means).
That fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision in question.
Section 3 MCA 2005 requires the person to understand the information relevant to the decision. The relevant information depends on the decision in question and can be determined by reference to case law. Specific tests of capacity are set out in the following section.
The fourth principle of the MCA 2005 states that any decision made on behalf of or in respect of a person who lacks capacity must be made in their best interests. Section 4 MCA 2005 sets out some of the factors to be considered when making a best interests decision. Although no factor carries more weight than any other, consideration of P’s past and present wishes and feelings is very important.
Any application to the Court of Protection needs to demonstrate how it is in P’s best interests for the order to be made.