The “secretive” Court of Protection
Posted on 17th November 2016
The Court of Protection (COP) is relatively new to the legal system and was established via the Mental Capacity Act 2005 and started operating in October 2007. The COP specialises in issues relating to people who lack capacity to make decisions for themselves in relation to finances, property, health and welfare. It is not a Court that most people have heard of or have had dealings with but sadly applications to the COP are becoming more and more common as more people are diagnosed with dementia or Alzheimer’s.
Up until January 2016 COP hearings were held in private, much like Family Court hearings. Family proceedings are held in private to protect the child who, the law says, cannot protect themselves. COP proceedings involve adults who lack capacity to manage their own affairs and, similarly to children, cannot protect themselves.
In October 2016 another case revolving around the “secretive” Court of Protection hit the headlines. This case involved the removal of an elderly man who lacked capacity to Portugal by a friend of his. The woman in question did not comply with various Orders made by the Court and was therefore jailed for contempt of Court. Whether or not the judge was right to make this decision is not what I want to discuss, but rather, why the daily newspapers still insist on calling it a “secret” Court.
On 29th January 2016 a pilot transparency Practice Direction came into force. The pilot created a period of time where most COP hearings would be held in public. The only part that remains “secret” is the identity of the Patient and their family, in much the same way as the Family Courts.
As of 6th April 2016 there had been 40 public hearings at the COP’s central registry and a grand total of 13 people attended. Clearly the Court can no longer be called “secretive” and yet the Telegraph’s most recent headline dated 16th October was: The terrifying tale of how Britain’s most secret court imprisoned a grandmother. The question must be; if it’s so secret, how are you able to report on it?
The majority of clients that I meet have only heard of the COP because a family member or friend has lost or is losing capacity. They are worried and concerned. The last thing that they need is to think that they are putting someone they care about into the hands of a “secretive” Court. I sometimes have to spend considerable time explaining that the COP is not the horror story that they hear about in the newspapers, but is in fact the only way in which they can assist their loved ones.
The COP should not be looked upon as “secret” or “terrifying” but in fact a channel by which people can assist those who can no longer assist themselves. The media portrayal of it is likely to put off some people who genuinely need assistance which will simply make matters worse.
If someone needs assistance with a person who lacks capacity, don’t listen to what the media says, but speak to the experts who deal with the COP every day and can advise you on the best way to help your loved one in their time of need.