Devon Patriot

The Court of Protection – Who Does It Protect?

Up to two years ago most members of the Exeter branch of the British National Party would probably never have heard of the Court of Protection (CoP).  However, that was to change when a certain John Coles approached our ReferendumNow petition signing stall held in the St. Thomas’s area of Exeter.  He was pleading for help in his quest to visit his ailing wife who had been incarcerated in the Greenslades Nursing Home, and he has been banned by the CoP from having any contact with her.  As local members will know, we have been supporting John’s campaign for the last two years and have become only too aware of the draconian power that the CoP has and how difficult it is for ordinary people to challenge the injustices of its rulings.  Over the past six months there has been more articles written in the newspapers concerning the secrecy of the CoP, and the injustices of many of its decisions.

What is the Court of Protection?       

The Court of Protection in English law is a superior court of record created under the Mental Capacity Act 2005.  It has jurisdiction over the property, financial affairs and personal welfare of people who lack the mental capacity to make decisions for themselves.  Among its various roles the CoP is responsible for determining disputes as to the registration of Enduring Powers of Attorney, and Lasting Powers of Attorney, appointing new trustees, authorising certain gifts and making statutory wills.  Examples of personal welfare issues determined by the court are decisions about where protected persons live, who they see and how they are cared for.  The offices and full-time Judges of the CoP are located in the Thomas Moore Building at the Royal Courts of Justice on the Strand, London.

The Mental Capacity Act 2005 (MCA) categorises vulnerable adults, over which the CoP has jurisdiction, as groups including: people with mental health problems, dementia, substance abuse problems, brain injuries and learning difficulties.  The court’s powers cover a variety of contentious issues such as compelling individuals to undergo abortion and/or sterilisation, the administering or removal of feeding tubes, and the management of property and financial assets belonging to vulnerable adults.

Individuals who are reluctant (or who outright refuse) to make a decision regarding specific aspects of their lives because of their political convictions are not recognised as a group under the Act.  This relegates them to the status of ‘lacking mental capacity’ which allows swift and convenient decisions to be reached. (Could this be used to suppress members of the BNP from expressing their points of view?)  

The functions of the CoP are briefly outlined on the Devon County Council website; an edited extract is detailed below: 

What is the Court of Protection?

·       The Court of Protection is a superior court of record. It has the same rights, privileges, powers and authority as the High Court.  It is able to establish precedent – that means it can establish case law which gives examples of how the law should be put into practice.  The Court of Protection has been established to build up expertise in matters relating to capacity.

·       The Court of Protection follows the statutory Principles of MCA in all its work.

·       Before MCA came into force there was a Court of Protection which dealt only with the financial affairs of people who lacked capacity to manage their own affairs.  The new Court also deals with serious decisions about health and welfare.

·       The Court of Protection is the ultimate decision maker.  If it is not possible to make a decision about someone’s best interests or if someone wishes to object to a decision made under MCA, the Court of Protection can make a decision. The Court of Protection should be the last resort for any such decisions.

·       Decisions concerning people aged 16 or 17 who lack mental capacity can be heard in the Court of Protection or in a court dealing with family proceedings.  A Court that has powers under the Children’s Act can transfer cases to the Court of Protection and vice versa, depending on the situation.

Court of Protection declarations:

·       The Court of Protection can make declarations – a court determination about one particular decision.

·       The Court can make a declaration about someone’s mental capacity.  This rarely happens: it would be relevant if the person wants to challenge a decision about their mental capacity, or if professionals or family members cannot agree about someone’s mental capacity to make a serious decision.

·       The Court can make a declaration about the lawfulness of a specific act.  This will usually refer to a proposed form of serious medical treatment where there is doubt or disagreement over whether the treatment would be in the person’s best interests.  Decisions involving the withdrawal of artificial nutrition and hydration from people in a persistent vegetative state, organ or bone marrow donation by the person who lacks capacity, non-therapeutic sterilisation and other situations where there are ethical dilemmas must be referred to the Court.

·       The Court can make a decision about where someone should live or what care they should receive if other decision making processes do not apply.  If a proposed action (e.g. to move someone out of their home) will deprive them of their liberty, this cannot be agreed under the MCA.  The Deprivation of Liberty Safeguards do not always apply (e.g. if the person is to move into a Supported Living placement).  The Mental Health Act (MHA) may apply if the person is suffering from a mental disorder, but someone may lack capacity and not be suffering from a mental disorder, or the MHA may not be relevant.  In such (rare) cases the only legal way to undertake the act is after a declaration made by the Court of Protection.

·       The Court can make a declaration where there is a major disagreement about a serious decision – for instance about where someone should live. This might apply if all local attempts to resolve a family dispute had failed.

·       The Court can make a declaration if it is suspected that someone who lacks capacity may be at risk of harm or abuse from a named individual.  The Court could make a declaration authorising the local authority to stop contact between the named person and the person who lacks capacity.

·       A declaration from the Court of Protection should always be the last resort; after all other means of making a decision have been exhausted.  If you think Court of Protection action may be necessary make sure you have legal advice from the relevant legal team and make sure you have advice from the local Safeguarding Adults Team and/or MCA Lead.

Court Appointed Deputies

·       The Court of Protection also appoints and monitors the work of deputies. These are people appointed to make decisions about someone’s property and affairs or welfare.

·       A Property and Affairs Deputy should be appointed when someone has savings and/or property or their financial affairs are complex, they do not have capacity to manage their own affairs and have not appointed a LPA (Lasting Power of Attorney) or EPA (Enduring Power of Attorney) to do this for them.

·       Anyone can be appointed as Property and Affairs deputy by the Court.  This can be a family member or friend, a solicitor or the local authority.

·       Advice about the appointment of a Property and Affairs deputy is available in Devon from the Court of Protection Team.  In Torbay, contact should be made with the Client Proxy finance Officer.

·       Welfare deputies are rarely appointed.  The Court prefers that each individual decision is made using the best interest’s procedure.  If court action is necessary the preferred route is to make one decision, rather than appoint a deputy.

·       If any statutory agency receives a referral requesting the appointment of a Welfare Deputy, this matter should be passed to the Safeguarding Adults Team and/or the MCA Lead.

·       A deputy is appointed by the Court of Protection after a court hearing. It is always necessary to have a medical decision concerning someone’s capacity if a deputy is to be appointed.

The Court of Protection and LPAs

·       The Court of Protection is ultimately responsible for the appointment of LPAs and EPAs

·       The Court can give directions to an attorney

·       The Court can cancel the appointment of an attorney if there is evidence that the attorney is not acting in the best interests of the person.  The Court might decide then to appoint a deputy to take over the role.

This appears to be all very commendable, which is designed to protect the weakest members of society from exploitation and abuse.  So what can possibly go wrong with a court system which is designed to be benevolent towards the mentally and physically incapacitated members within our society – quite a lot in fact! 

Does the Court of Protection Function as Intended?      

There have been many complaints over the years concerning the secrecy in which the workings of the various courts are carried out.  Considering that the Court deals with some of the most politically and ethically controversial issues of marginalised and silenced people in our society, the CoP is rarely reported on.  This blackout is, in large part, due to the many barriers people face when trying to investigate its actions.   As a general rule, cases are heard in private, but the Court of Protection Rules of 2007 do permit the media to attend hearings and to publish information relating to proceedings.  The application process, however, is complicated and expensive, often involving many hearings so that a judge can decide whether there is “good reason” to allow press attendance based on the competing interests of Article 8 and Article 10 of the European Convention on Human Rights.  If authorisation is given for media to be present, further decisions then need to be made for subsequent reporting and the extent of such reporting; decisions often include restricting the publication of any information which leads to the identity of the parties being revealed, and in some cases, mentioning that the order exists.  This is so even for politically sensitive cases which trigger public interest.

In a majority of cases the Courts function as intended, with most vulnerable people given the protection that they deserve.  But what has happened over the past few years is that its power has been exploited by service providers who wish to use the Court’s power to protect the anonymity of a vulnerable person to conceal malpractices within its own organization.  Those organizations with a vested interest in using the CoP can include the care-home providers and County Councils who pay for the vulnerable people under their care.         

How Does the Court of Protection Deviate From its Prime Purpose?      

How can the CoP’s duty in protecting vulnerable people be exploited by persons or organizations to further their own interests?  The following are a list of examples by which the CoP deviates from its prime function?

Abuse by Local Authorities and Care-home Providers

By promoting the concept of acting in the best interest, an unscrupulous care-home owner can use the CoP to prevent the vulnerable person’s relations from visiting them or acting on their behalf.

Evidence of this abuse is evident in the case of John Coles, who was prevented by the CoP from having contact with his wife at the Greenslades care home in Exeter.  They made false allegations against John so that they could gain control over his wife’s care and affairs – so preventing John from moving his wife to a different care-home and protecting the council grant of some £40,000 per year for her care.  

Quite often the County Council is likely to collude with the unscrupulous care-home owner to preserve the availability of their care facilities for an ever expanding elderly population suffering from dementia – as in the case of John Coles’ wife.

As Devon BNP members will know, we have been involved with John Coles for the past two years, and even produced a leaflet for him to distribute around Exeter; as shown below:

The full story was displayed on the website, such that it could be down-loaded and printed out in PDF format.  However, the solicitors for Greenslades managed to get a Judge in the USA to issue a subpoena against the website provider to close the site down.   

Often it is local authorities who wilfully abuse their powers to get a vulnerable person’s disability rating upgrade from challenging behaviour to extreme challenging behaviour.  In cases of extreme challenging behaviour it is the NHS that foots the bill, not the local authority.  This became very apparent in the case of Steven Neary, who was a mentally disabled young man and lived with is father.  When his father became ill Steven was temporarily sent to a care-home where he had stayed on many previous occasions.   At the end of that first day in the care-home the staff felt themselves ‘unable to cope with Stephen’; so the care-home transferred him to the ominously named ‘Positive Behaviour Unit’.  Now the Positive Behaviour Unit is a mighty politically-correct place.  Tap someone on the shoulder to attract their attention, and they don’t think ‘that is how Steven has always attracted my attention since he was a child’ – they say – ‘he touched me, that’s an assault’ and promptly record it in their daily log.   

When Steven’s father went to collect him after three days, the Positive Behaviour Unit had logged many such ‘assaults’ – and announced that they were retaining Steven for ‘assessment’.  No! His father couldn’t take him home. 

The longer they kept Steven away from his father, the more upset he became, and the more people he tapped on the shoulder to ask when he might be allowed home again.  Eventually the Positive Behaviour Unit had logged 306 such incidents over a seven month period, and decided that Steven’s behaviour was ‘so challenging’ that he could never be allowed to return home.  Despite the fact that by this time the unhappy Steven had been assessed as ‘extremely challenging’ – too ‘dangerous’ to be returned to his father’s care. 

Steven, unattended by these ‘professional behaviour managers’ managed to slip out of the Unit, in his pyjamas, and attempted to return home.  Now comes the interesting bit!  Whilst Steven lived happily at home, he had the support of professional carers from the ‘Trinity Noir’ company.  Steven’s father was very happy with the level of support and had no complaints.  The Local Authority (Hillingdon in London) footed the bill, as is their legal duty.  Changing Steven’s diagnosis from “autism, severe learning difficulties and challenging behaviour”, to “extreme challenging behaviour, learning difficulties and possible autistic spectrum disorder” may seem very trivial, but on such finite definitions rest the liability to pay for Steven.  The new diagnosis would shift the responsibility for care onto the NHS Primary Care Trust – so the local authority would be rid of the burden for Steven’s care. 

Fortunately, on appeal a Judge ordered that Steven be released from the Positive Behaviour Unit in time for Christmas 2010.

Abuse Due to Unnecessary Secrecy

It seems incredible that virtually every decision made by the CoP is subject to secrecy.  Once John Coles’ wife came under the protection of the CoP it became an offence merely to state that she was resident at the Greenslades nursing home.  Why should that be?  She was in no danger; and from whom did she need protection – certainly not from her husband?   Furthermore, virtually all the court hearings are held in chambers (behind closed doors) with only the Judge, the care-home’s lawyer and the defendant present.  On leaving the chambers the defendant is not allowed to speak to anybody concerning the Court’s decision – hardly open and transparent justice.

Clearly, an unscrupulous care-home owner will use the CoP to silence anyone who has witnessed malpractices within the home by getting an injunction against them on the grounds that it is in the best interest of a particular resident.   

Below are details Wanda Maddocks, whose treatment by the CoP is similar to that of John Coles.  She was concerned at the standard of treatment her dementia afflicted father was subjected to, and decided to take him out of the care-home and look after him herself in the family home.  

As can be seen from the details above, there is no evidence that Wanda mistreated her father.  In fact the secrecy within the CoP was not to protect her father, but to protect the interests of the care-home, local authority and the various legal aid funded lawyers.  

In both the cases of John Coles and Wanda Maddocks there was no need for secrecy, in fact it would have served justice better if all the facts were put into the public domain so that folks could make up their own minds as to where the malpractices occurred and who was to blame.  But of course, the CoP, is more interested in promoting the powers of the judiciary and legal profession over the general public, rather than serving the interests of the common people.    

Abuse by Solicitors and Local Authorities with Powers of Attorney

If a resident in a care home is suffering from dementia the CoP has the authority to appoint someone, or some organization, as Property & Affairs Deputy with Powers of Attorney to handle the resident’s financial affairs.  Normally this would be a family member, but often no family member is available; consequently a firm of Solicitors or the local authority is appointed as the Property & Affairs Deputy by the CoP. 

Very often the resident’s next of kin is working overseas or for some reason is unable to immediately take on the role of Property & Affairs Deputy; in this situation a solicitor or local authority will be appointed to the role.  There have been many cases when the next of kin is available to take on the role they have found that the resident’s assets have been plundered by the appointed Property & Affairs Deputy on grossly over inflated legal costs or other maintenance costs.  In many instances the CoP refuses to appoint a family member as Property & Affairs Deputy, and the resident’s assets are often seized without their knowledge or consent.  

A typical case is that of Neil Barker who ten years ago suffered a motorcycle accident that left him brain damaged and temporarily mentally incapacitated, and the CoP appointed a firm of solicitors to act as the Courts Property & Affairs Deputy with power of attorney to handle Neil’s affairs.  Now a huge sum of his compensation money is lying in a State bank account controlled by a hidden corner of the legal system: the astonishingly powerful Court of Protection, which has decreed that Neil’s accident means he lacks the mental capacity to handle his own financial affairs.  Neil has an IQ of 125 and runs a successful computer consultancy and property restoration business without any help from the State.  Yet the CoP will not surrender the power of attorney from the Property & Affairs Deputy back to Neil who has been mentally able for some considerable number of years since his accident.

Clearly, the lawyers involved in Neil’s case have too much to lose if they surrender their powers of attorney as the Property & Affairs Deputy.  This is clearly a case of corruption within the legal profession, and one is left with the impression that the judiciary are only too willing to collude with these crooked lawyers as it gives more power to their cronies in the legal profession.

What Can Be Done To Combat Institutionalised Corruption Within The Court of Protection’s Remit?      

The cases detailed above are only the tip of the iceberg, with many cases being withheld from the public domain as a result of the CoP’s inherent obsession for secrecy; in fact it is even an offence, subject to imprisonment, to openly discuss the case with other people.  However, there are now numerous groups in existence who are prepared to challenge the CoP on abuse within its scope of responsibilities, and where appropriate publish details of these abuses regardless of the legal consequences.   A few of these groups are:     

Families Against Court of Protection Theft (FACT) represents those who have had problems dealing with the Court of Protection.  The group argues that for the CoP to justify itself as a democratic institution, cases should be held in a far more open manner.  FACT has stated that there have been over 15,000 recorded complaints alleging abuse, fraud and corruption on the part of the Court itself, the police and the Houses of Parliament between 2001- 2010.  In 2007-2009 a total £3.2 billion of assets were seized from thousands of elderly and mentally impaired people.

The Alzheimer’s Society has been campaigning strongly for a change in the law to give family members of an Alzheimer sufferer more power over the CoP in deciding what is best for their ailing relative.    

In an interview in 2011, Sir Nicholas Wall, Head of the CoP, called for public debate on opening up the Court to public scrutiny: “It seems to me a matter of public interest.  The public is, after all, entitled to know what’s going on….we don’t want people quietly locked up in private.” Understandably, some decisions – such as a plea for a sister’s right to die after suffering severe brain damage – are deeply personal and private to the family whose wishes should be respected in such instances.  The problem, however, is differentiating between these cases and those with a strong public interest because they throw up wider questions of politics, policy and broader society.

Public scrutiny of the Court’s moral and ethical remit would require a radical shift in mentality, policy and law.  Without this, the politics of the CoP are nothing more than the centralisation of power, impinging on basic human rights and freedoms; where the vulnerable are further denied an audience and a voice.

It was noticeable that when scanning the internet for a means of resolving the problems associated with CoP practices, it was overwhelmingly solicitors who claimed to provide the solution.   Surely the secret workings of the CoP, together with the possibility that they may get powers of attorney over a vulnerable person’s estate are the very reason that solicitors should be the last people to be consulted over a person’s mental capacity.What can the BNP do to help victims of CoP maladministration?  Not a lot really.  There are other organizations with greater expertise and experience in handling these situations then the BNP.  The Exeter branch only got involved with John Coles because he approached us directly, pleading for our help – which we rightly offered.  Let’s hope that John finds such an organization that is prepared to lobby for changes in the way that the CoP’s operates, and that our contribution will be recognized.