Structure and Role of the Court; Court Appointed Managers »
Background
» Powers of the Court
» Powers of the court in healthcare matters
» Powers of the Court in welfare matters
» Access to healthcare records
» The "No Order" principle
Appointing a Manager
Powers of a Manager
3.1. These issues were addressed in Chapter 7 of Who Decides?
Background
3.2. The Law Commission recommended that, in support of their proposals for a unified system of decision-making to cover financial, personal welfare and healthcare matters, there should be a single court jurisdiction, which would deal with all these issues together. It envisaged the court as being principally the option of last resort in cases of dispute.
3.3. Who Decides? supported the recommendation in principle, but identified the potential resource implications and sought views on whether the Court of Protection offered the most appropriate base for this jurisdiction.
3.4. Most respondents favoured a single court jurisdiction for all areas of decision-making. Although there were some concerns about the Court of Protection. s perceived lack of accessibility and unsuitability for dealing with emergencies, no realistic alternatives were proposed, and a clear majority of respondents supported the Court of Protection exercising this jurisdiction.
The Government has decided that there will be a new single court jurisdiction, which will deal with all areas of decision-making for adults without capacity.
The new jurisdiction will be based at the Court of Protection, and concerns about accessibility will be met by a regionalised structure (see Chapter 4).
3.5. The Law Commission recommended that decision-making by the court should operate in the context of its key principles:
decisions should be taken in the best interests of the person without capacity
there should be minimal intervention in his or her affairs unless there is a demonstrable need to do so
the option least restrictive of the person. s freedom of action should be chosen.
3.6. The court would need to consider the nature and extent of the person. s decision-making capacity in reaching a decision.
The Government has decided that the court will be able to make decisions on behalf of a person without capacity, or appoint a manager to make decisions.
The Government intends that the court should have the power to make declarations about capacity.
In exercising its powers, the court will follow two principles that support the aim of making the jurisdiction aimed at limiting intervention to the minimum possible:
the decision of the court is preferable to the appointment of a manager
the appointment of a manager should be as limited in scope and duration as possible.
Powers of the court in healthcare matters
3.7. The Law Commission recommended that the court. s powers in this area should extend to:
approving or refusing approval to particular forms of healthcare
appointing a manager to consent, or refuse consent, to particular forms of healthcare
requiring a person responsible for the healthcare of a patient to allow a different person to take over the healthcare of that patient
obtaining access to healthcare records.
The Government agrees that the court should have these powers
3.8. The Government believes that certain serious healthcare decisions which can currently be made by a court, such as the withdrawal of artificial nutrition and hydration from a patient in a permanent vegetative state or similar condition, and questions of treatment where the patient has made an advance statement should remain a matter for the court, and should not be able to be delegated to a manager.
Powers of the Court in welfare matters
3.9. The Law Commission recommended that the court's powers should extend in particular to matters relating to:
where the person without capacity is to live
what contact, if any, the person without capacity is to have with any specified persons (including the power to restrain a named person from having contact with or molesting the person without capacity)
the exercise of the rights conferred on him or her by or under any enactment to obtain information
obtaining the benefits and services to which the person without capacity is entitled or which are available to him or her.
The powers in relation to where the person is to live would not, however, extend to requiring or authorising admission against his or her will for assessment or treatment for mental disorder under the Mental Health Act 1983.
3.10. The Government indicated in Who Decides? that it accepted these recommendations in principle. It raised the question of whether explicit provision should also be made for the court to make other welfare-related orders in addition to residence and contact orders.
On the basis of the responses received, the Government's view is that as the list proposed by the Law Commission is not exhaustive, and gives the court flexibility to make orders relating to other welfare needs, an explicit list of those orders is not necessary.
3.11. The Law Commission recommended that the powers of the court should extend to obtaining access to healthcare records. A manager may need access to healthcare records in order to exercise their function as proxy decision-maker.
3.12. The Government recognises that a manager who is empowered to take healthcare decisions could require access to healthcare records, and proposes that the court should have the power to authorise a manager to do so.
3.13. The Law Commission also proposed a new power for the court to order admission of people without capacity to hospital for assessment and treatment on similar criteria to those contained in the Mental Health Act 1983.
3.14. Responses did not support such a provision. The Law Commission proposal will therefore not be taken forward.
3.15. The Law Commission did not believe that there was a need for a "no order" principle such as that in the Children Act 1989, where the court may not make an order unless it is satisfied that doing so would be better for the child than not doing so.
3.16. The Government sought views on whether a "no order" principle was appropriate. The majority of responses supported a "no order" principle. However, authoritative opposition came from the Senior District Judge and the Official Solicitor. Their view was that the requirement that the court adopt the least restrictive option was sufficient and that the situation was not equivalent to that under the Children Act. Under that Act, the basis for the principle is that those with parental responsibility for the child should be left to exercise it without the intervention of the court unless necessary. However, there is no equivalent to parental responsibility for adults without capacity.
There will not be a "No Order" principle in relation to court orders made for adults without capacity.
3.17. Who Decides? asked whether the court should be able to appoint a manager; what the scope of the manager. s responsibilities should be; and what criteria should be used to decide who should be a manager. The great majority of responses supported the court appointment of managers to deal with welfare, healthcare and property and financial decisions.
3.18. The Government. s proposals are an extension of, and replacement for, the current receivership system. The court will be able to appoint a manager to make decisions on matters relating to the personal welfare, healthcare, property or financial affairs of a person without capacity.
Transitional Arrangements
3.19. Appropriate arrangements will be put in place in respect of existing receiverships.
The manager. s responsibilities
3.20. The court will be able to appoint a suitable manager and set the scope of his or her responsibilities. The court will be able to appoint different managers for different areas of decision-making if appropriate.
Decisions that cannot be made by a manager
3.21. As is the case with the general authority to act reasonably, and with CPAs (see paragraphs 1.23 and 2.8), a manager will not be able to take certain decisions on behalf of people without capacity. In addition, neither the court nor a manager should have power to make decisions which the person without capacity could not lawfully have made, if that person had retained capacity.
Powers of a manager to refuse consent to healthcare
3.22. Who Decides? expressed concern about the provision that would allow a court appointed manager to refuse consent to healthcare and asked the views of respondents on this point. The majority of responses opposed a manager having this power, although there was a substantial minority in favour, including the Law Society and Age Concern.
3.23. The Government takes the view that in most healthcare cases, a one-off decision about treatment will be needed. This could be made by the court without the need to appoint a manager. If a dispute then arose, the matter could be returned to court.
3.24. In cases where the court considered that the appointment of a manager was needed, it would take all relevant factors into account when making the appointment.
In making property and finance decisions managers appointed by the court will be able to deal with:
the control and management of any property, and its disposal or acquisition
the carrying on of any business, trade or profession dissolution of any partnership carrying out of any contract discharge of any debt or obligation.
3.25. The Law Commission recommended these powers, and Who Decides? indicated the Government. s acceptance of these recommendations.
The Government will ensure that the following decisions, as recommended by the Law Commission, must be made by the court, and not delegated to a manager:
setting up a trust for the person concerned
making a settlement of any property; whether with the person concerned or with others as beneficiaries
making a will
exercising powers vested in the person concerned, such as under a trust.
The Government believes that, with the exception of these issues, the court should be able to decide the specific powers that a manager should have in each individual case.
Who can act as financial manager?
3.26. The Law Commission also suggested that in cases
where the Public Trustee was currently appointed as Receiver, there might
be scope for a wider range of bodies to be appointed as manager, such as
solicitors, accountants and investment managers. It also suggested that
a similar approach might be valuable in the case of private receivers. It
indicated that this would be a matter of practice rather than legislative
change. Although such managers would have greater autonomy and access to
capital, the Law Commission still envisaged a role for an administrative
body in taking security and reviewing annual accounts.
3.27. Who Decides? raised a number of potential
difficulties with this proposal. First, although the Law Commission had
recommended that security should always be taken from financial managers,
affordable security would not necessarily be readily available to individuals
managing substantial amounts of capital. The additional risk of releasing
large sums of capital without security or with expensive security could
present an obstacle.
3.28. Secondly, this could result in professional managers
who could give adequate security being preferred as managers to family members.
This would go against the Law Commission. s intentions and the existing
Court of Protection practice.
3.29. Thirdly, although the Law Commission intended
that their proposal would reduce the costs of administrative fees to people
without capacity, professional managers would also charge fees which could
easily exceed those of any administrative body, which would in any event
still need to finance its supervisory role.
3.30. No specific question was asked in Who Decides?
on this issue and few comments were received, although the Law Society shared
the concerns about the provision of adequate security and the consequent
expense. At present, the Court of Protection appoints solicitors as Receivers
in appropriate cases, and it would be open to the new court similarly to
appoint solicitors or other professionals as manager where appropriate.
The Government has decided that, when deciding who should be appointed
as manager, and the need for security to protect the money of the person
without capacity, the court should retain a wide discretion to deal with
each case on its particular facts.
The following requirements will apply to all managers:
a manager will be obliged to act in the best interests of the person
without capacity a manager must be an individual aged at least 18 or may, in relation
to property and financial affairs (but not healthcare and welfare issues),
be a trust corporation the holder of a specified office can be appointed provided there is
no conflict of interest, except in relation to healthcare issues more than one manager can be appointed to act the court would be able to remove a manager on grounds of unsuitability
or not acting in the best interests of the person without capacity a manager, acting in his or her capacity as such, will be regarded
in law as a statutory agent of the person without capacity no manager will be able to do anything which is inconsistent with
the decision of the attorney under a CPA acting within his or her authority.
3.31. The Law Commission proposed that the appointment
of a manager should be for the shortest duration that the court deemed necessary,
and that a maximum time limit of 5 years for an appointment should be fixed
by statute. This would necessitate the automatic review of all cases at
least every 5 years.
3.32. Who Decides? identified a number of practical
drawbacks to this proposal. The majority of longer-term appointments would
be likely to concern financial matters. At present, the vast majority of
the Court of Protection. s patients have no prospect of recovering capacity.
A requirement for an appointment to expire, be reviewed and renewed every
5 years would thus involve a substantial waste of resources, which would
have serious implications for the workload of the court and would be of
consequent additional cost to the patient.
3.33. It could also cause problems if the date of expiry
was overlooked and resulted in the manager authorising transactions without
authority, or co-incided with an important decision which could not be delayed
. for example selling property.
3.34. Responses to Who Decides? were divided
on whether time limited appointments would be useful. The Master of the
Court of Protection suggested that, rather than time limit all appointments,
the court should have the power to fix a time limit or order a review where
appropriate. This view received wide support.
The Government has decided, as a result of the responses, that the
court should have the power to fix a time limit or order a periodical review
where appropriate in cases where managers are appointed to deal with decisions
on financial and welfare issues.
Healthcare managers are likely to be needed for a much shorter duration,
and the court should always place a time limit on these appointments. Such
appointments will be for a fixed period of no more than 5 years, but they
will be renewable by the court.
3.35. The Law Commission recommended that:
managers should continue to be asked for security and annual accounts
as is currently the case for receivers under the Court of Protection,
and that annual reports would still be appropriate even where the appointment
related only to welfare or healthcare matters. It envisaged the Public
Trust Office taking on responsibility for monitoring welfare and healthcare
managers as well as financial ones; and the Public Trustee could continue to be appointed as financial manager
of last resort as at present. The Public Trustee would have the power
to raise questions on managers' reports, to direct a Lord Chancellor.
s Visitor to visit and report, and to inspect the person without capacity.
s property or direct an appropriate person to do so. 3.36. Who Decides? asked how practical these
proposals would be. It highlighted the workload and training implications
for the current Public Trust Office taking on the monitoring of welfare
and healthcare matters, and the fact that many people requiring a welfare
or healthcare manager would not have the resources to pay Public Trust Office
fees. Most respondents agreed that the proposals were practical, subject
to adequate staffing and resources being made available either to the PTO
or to other bodies carrying out these functions.
The Government will ensure that appropriate arrangements are put
in place to provide a practical and effective system to monitor healthcare,
welfare and financial managers.
3.37. There will be an expansion in the role and numbers
of the visiting service, a task currently performed by Lord Chancellor.
s Visitors and Lord Chancellor. s Medical Visitors, to enable reports to
be provided on cases involving welfare and healthcare managers.
3.38. The Law Commission recommended no changes to
the current position where the court can direct whether remuneration or
expenses should be paid from the estate of the person without capacity.
It also recommended that the Public Trustee should be able (as now) to charge
a fee for acting as manager and for the monitoring functions proposed above.
3.39. The Government accepted this recommendation in
principle in Who Decides?, although it was concerned about how these
arrangements would work where the person without capacity had no finances
. particularly where a person without capacity had only a healthcare and
welfare manager.
3.40. The respondents to Who Decides? took the
view that family members and carers acting as managers should only be able
to receive out of pocket expenses. Professional managers should be able
to be remunerated at a rate approved by the court. The Government agrees
with this approach.
Family members and carers may receive out of pocket expenses for
acting as managers, and professional managers (including the Public Trustee)
may be paid at a rate approved by the court.
Management of Residents' Funds by Care Establishments
3.41. The question of care establishments managing
the funds of incapable residents was raised in the report of the Scottish
Law Commission. The Law Commission (of England and Wales) did not specifically
address this issue.
3.42. Who Decides? asked whether there should
be a general presumption that care home managers should not be appointed
as managers of the financial affairs of a person without capacity because
of the possibility of conflicts of interest arising.
3.43. The great majority of respondents supported this
presumption, although it was recognised that there may be circumstances
where a care home manager might need to be appointed. The Government agrees
with this approach. The approach suggested in Scotland is set out in Making the Right Moves There will be a presumption against the appointment of the manager
of a care home in which the person without capacity resides, as the manager
of the person. s financial affairs.
(see paragraph 4 of the Introduction).