Leducate Explains: The Court of Protection
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This Article explains the Court of Protection: what the Court is and what it does. It also gives an example of a recent case decided by the Court.
What is the Court of Protection? What does it do?
The Court of Protection, established in 2007, is a specialist Court in England and Wales. While it is based at the Central Family Court in London, cases can be heard across the country.
The Court of Protection makes decisions on behalf of people who are unable to make their own decisions. If someone cannot make their own decisions, this is called lacking capacity.
Capacity
A person is considered to be lacking capacity if they suffer from an impairment, or disturbance in the functioning of their mind or brain which makes them unable to make decisions for themselves. This might be because they are suffering from a mental illness, have a learning disability, or have a condition such as dementia.
In any case, the first thing the Court will look at is whether a person has capacity to make a decision. Importantly, capacity is decision specific. This means that someone may have the capacity to make some decisions but not others. For example, someone may be able to make a decision about where they want to live (they have capacity), but not able to make a decision about how to spend their own money (they lack capacity).
There are two categories of Court of Protection decisions:
Decisions about finances, property, or affairs. For example, whether someone has capacity to decide how to spend their money.
Decisions about health and welfare. For example, a care home resident suffering from dementia, but wants to leave: the question being whether that person has capacity to decide whether they should leave the care home and where they should live instead.
In deciding whether someone is able to make a decision on their own, the Court must consider whether they:
Understand the information needed to make the decision
Remember that information
Weigh up and consider that information
Communicate their decision – even if not by speaking
The Court cannot decide if someone lacks capacity to make a decision simply because of their age, appearance or the particular condition or illness that they have.
Best Interests
If the Court decides someone has capacity, then they are free to make their own decisions. At this point, the Court will not and cannot make decisions for them.
However, if the Court decides someone lacks capacity to make a decision, the Court will move onto the next stage, and will make that decision for them in their best interests. In deciding what would be in someone’s best interests the Court must take into account a range of factors.
These include:
The current wishes and feelings of the person lacking capacity
Their wishes and feeling in the past
The views of the persons carers, family members and anyone else with an interest in their welfare
Any medical evidence about the person's needs
Whether the person is likely to have capacity to make the decision in the future
Sometimes the Court will get this information from written reports such as medical notes. Sometimes the Court will hold an oral hearing. This means people, such as the person lacking capacity, and their family members will come to Court to give evidence in person.
Once the Court has heard all this evidence, they will weigh it all up to decide what would be in the best interests of the person lacking capacity.
Some examples of decisions the Court might make in someone’s best interests are:
If someone lacks capacity to decide how to spend their own money, the court might decide it is in their best interests if someone else has responsibility for their money.
This would ensure they did not spend all their money on unnecessary things and had enough left for essentials like food and rent. It would also prevent them being scammed or taken advantage of.
A person responsible for managing the property of someone lacking capacity is called a deputy. This might be a family member or someone involved in the person’s care. In a case like this, The Court of Protection can appoint someone as a deputy to have responsibility for someone’s money or property.
If someone wishes to move from a care home but lacks capacity to make this decision, the Court might decide it would not be in their best interests to move into their own house as they would not be able to get all the care they need.
However, the Court might take into account the reasons they want to move and decide it would be in their best interests to compromise and to move to a different care home.
In a case like this, The Court of Protection can order that someone is moved to a different care home.
Decisions of the Court of Protection are generally final. Everyone involved will legally have to follow the decision of the Court. However, in exceptional cases it may be possible to appeal a decision of the Court of Protection to the Court of Appeal.
A recent case
One example of a recent case decided by the Court of Protection is called “An ICB & RN & TN”
In this case an individual named RN (only their initials are used to protect their identity) had learning disabilities and a heart condition.
The Court of Protection had to decide whether RN had capacity to decide whether to take the COVID-19 vaccine.
If RN did not have capacity, the court had to decide whether it was in RN’s best interest to receive the vaccine. RN’s doctors thought it would be in his best interests to take the vaccine given his heart condition. However, RN’s mother thought because of his heart condition, taking the vaccine could cause RN serious harm.
The Court looked at a mental capacity assessment completed by one of RN’s doctors. The assessment concluded that because of RN’s learning disabilities, he could not make a decision about whether to take the vaccine. RN and RN’s mother did not dispute this and so the Court agreed that RN lacked capacity to make this decision.
The Court then had to make its own decision as to whether taking the vaccine would be in RN’s best interests. The Court looked at a large amount of medical evidence about the risk of RN catching COVID, the potential complications if he caught it, and the risk of him taking the vaccine. The Court found RN’s heart condition and learning disabilities made him particularly vulnerable to COVID.
The Court also found that there was no evidence that RN was more at risk from taking the vaccine than not taking it. Because of this the Court concluded it was in RN’s best interest for him to have the vaccine.
By the end of this article you should now have the basic knowledge of what the Court of Protection is, what it does, and have some understanding of the example cases given.
Written by Harry Piercy
Glossary box
Capacity – Someone’s ability to make decisions for themselves
Deputy – Someone appointed by the Court to have responsibility for someone’s property or an aspect of their care
Court of Appeal – A Court that deals with appeals from other courts in England and Wales. If someone believes a court has made a mistake in applying the law involved in their case, it may be possible for them to apply to the Court of Appeal to re-decide the case. However, it is not enough that someone disagrees with the original court’s decision, the original court must have made an error in applying the law.