Guidance Given On Reporting Of Court Of Protection Cases02.05.12
Bryan McGuire QC appeared for the local authority in a recent Court of Protection case which gives guidance in reporting of Court of Protection Decisions.
Sian Davies has helpfully digested Hedley J’s comments on best practice in regard to the citation and application of Court of Protection:
The case of A Local Authority v FG AG and HG (Court of Protection, anonymised transcript 27th April 2012) concerned the issue of how one assesses capacity. The question arose in the context of a young woman who could play some part in decision making, albeit a limited part and only with help. Hedley J found at paragraph 21:“21 Now that, I think, deals with the questions of capacity with just this comment to be added: I have been referred to the decision of Mr Justice Baker in PH v A Local Authority  EWHC 1704 (Family). This is a considered decision on capacity, and one that is undoubtedly helpful, particularly in relation to its analysis of the law between paragraphs 13 and 16. I have deliberately not referred to it in this judgment, not because it is unhelpful or because I disagree with it, but because it seems to me that unless and until there is any binding authority available, courts may be safest in an approach to this case by ascertaining the facts, applying the statutory principles and reasoning a conclusion from that, and treating each case as one to be decided on its own facts. I say that so as to avoid a multiplicity of first instance judgments being cited as a matter of course in these cases. It may be that parties and advisors and those who have to operate this system will find the individual expressions of judges helpful, but debates in proceedings about saying the same thing in many different ways does not seem to me helpful, particularly, where, as here, no doubt increasingly so in the future, the question of capacity will be determined summarily as a preliminary issue prior to the determination of welfare which is probably, in most of these cases, what is going to be upper most in the minds of all those who engage in them. Therefore, for the reasons I have given, I find that H lacks capacity in the areas identified, and that accordingly the question of her welfare falls to be decided by the court”.
This is helpful guidance on the citation of authority in Court of Protection cases.
A clear view is now emerging as to when and for what purposes a Court of Protection first instance judgment might be cited in a Court of Protection hearing.
a) The starting point is that the Mental Capacity Act 2005 contains a new self contained code for making best interests declarations for those lacking capacity. It follows that decisions which pre- date the coming into force of the Act ought not generally to be cited. If they are inconsistent with the statutory scheme, they are wrong. If they are consistent with it, they are not required.
b) Turning to decisions on capacity:
i. The citing of a multiplicity of first instance cases is to be avoided. Thus in this case even the decision of Baker J in PH v A Local Authority and Z Limited and R  EWHC 1704 (Fam), which contained a clear, logical and comprehensive account of how capacity is to be assessed under the Act, was not relied upon in the judgment.
ii. The default position ought to be that unless and until there is any binding (Court of Appeal) authority available, the safest approach for a court to adopt is to ascertain the facts, apply the statutory principles and from that reach a reasoned conclusion. Each case is essentially to be treated as one turning on its own facts.
iii. Increasingly decisions on capacity should be reached by summary consideration of the evidence. In such circumstances it would be undesirable and unnecessary for a large body of case law to be developed.
c) The courts are likewise resistant to attempts to add a gloss to best interests. Thus for instance in W v M & Ors  1 All E.R. 1313 the court refused to accept that there was a different test in relation to decision on the lawfulness of the withdrawal of artificial nutrition and hydration from a person in a Minimally Conscious State
It does not follow, however, that first instance Court of Protection cases should never be cited to the Court of Protection. It is safest not to do so, and the dangers in doing so have been clearly flagged up. There may however be cases where matters of principle or approach are identified (Neary v LB Hillingdon  EWHC 3522 (Fam); is a good recent example) or where guidance is provided as to how the statutory scheme fits together (this case), and the lawyers may take the view that one can and should depart from the general rule.