Chapter 9: Judicial Forum
- In order to enable the various judicial decisions required within other
sections of the Report to be made, the Law Commission recommended a new
role for the Court of Protection, and the Public Trust Office. This Chapter
examines those recommendations.
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- Background
Courts or Tribunals?
Independent reports
Privacy of proceedings
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Background
- Although jurisdictional questions were ancillary to its substantive
proposals for reform of the law, the Law Commission received views on
the structure of the judicial forum as part of its consultation process
and made certain recommendations in the Report.
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- 9.2. The Government accepts the majority of these recommendations in
principle, but seeks views on their practicality in a number of areas.
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Courts or Tribunals?
- 9.3. The Law Commission identified three possible options as to the
type of judicial forum which would operate the jurisdiction:
- a jurisdiction integrating the Court of Protection and exercised by
ordinary courts;
- a jurisdiction exercised by administrative tribunals;
- a hybrid system with medical issues decided by tribunals and the courts
deciding all other issues.
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- 9.4. Although favouring the informality which could be offered by tribunals,
the Law Commission recommended that the new jurisdiction be operated by
the courts, particularly as an informal and inquisitorial approach is
adopted by the Court of Protection in any event. Using the courts would
have the advantages of:
- using existing resources and expertise; and
- having an integrated forum for decision making.
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- 9.5. These conclusions were supported in broad terms by the House of
Lords Select Committee, who accepted that it would not be practical or
desirable to establish a tribunal forum for dealing with health care matters,
alongside a court-based forum for considering other matters. Such a proposal
would lead to complication and confusion.
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- 9.6. The Government accepts this recommendation in principle, but notes
the Select Committee's observation that "some mechanism should be
adopted whereby the new court will make full use of appropriate ethical
and medical advice" (1). Views are welcomed
on how best this could be achieved.
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- Q103. How could any new forum ensure the best use of appropriate
ethical and medical advice?
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- Magistrates' courts
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- 9.7. The Law Commission recognised that family proceedings courts currently
exercise a specialist jurisdiction in relation to children and other family
cases. They suggested that, since specially trained magistrates have built
up experience in exercising emergency protective powers under the Children
Act 1989, this expertise should be utilised. The Law Commission suggested
that the jurisdiction of magistrates' courts should be extended in relation
to applications under Part II of their draft Bill (i.e. the granting of
warrants and short-term orders in respect of those at risk). In addition,
the Law Commission recommended that proceedings under Part II of their
draft Bill should be treated as family proceedings.
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- 9.8. The Government accepts this recommendation in principle, and agrees
that magistrates should not be required to deal with private law issues
arising in this field. This would result in a dilution of the expertise
of the judiciary required to deal with these cases.
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- Constitution
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- 9.9. The Law Commission advocated the establishment of a new superior
court of record called the Court of Protection in place of the current
Court of Protection. They recommended that the Lord Chancellor should
designate a Senior Judge of the Court of Protection and, if in the future
the volume of work justified it, a President of the Court of Protection.
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- 9.10. The Government accepts this recommendation in principle, and observes
that there would be benefits in maintaining the same name. Some concerns
have been expressed, however, as to whether it would be confusing for
the new court to retain the name of the current court.
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- Q104. What should any new forum be called?
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- Location of the Court of Protection
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- 9.11. The Law Commission noted that many respondents to their Consultation
Papers had criticised the Court of Protection's lack of a regional presence.
The Law Commission suggested in their report that the new Court of Protection
should be based in London but be able to sit in different parts of England
and Wales. They suggested that at least one venue be designated for each
of the six court circuits in England and Wales.
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- 9.12. In making these recommendations the Law Commission did, however,
note that it was hard to quantify the effect of the lack of regional presence
of the current Court of Protection. The need for a regional presence would
also need to be balanced with the potential impact on currently centralised
expertise and resources.
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- 9.13. It is far from easy to predict the likely caseload that would
emerge from these proposals. The Government notes that the Law Commission
recommended only that the Court of Protection should have a regional presence,
and not the PTO. This would cause difficulties for the PTO, in their role
in support of the Court. Creating a regional presence for the PTO would
have significant resource implications. The Government is also keen to
ensure that the expertise that currently exists in the Court of Protection
and the PTO is not diluted. Other factors which would need to be considered
are that the development of information technology means that urgent matters
can more easily be dealt with promptly at a distance, and over 50% of
the patients of the Court of Protection currently live in the South of
England.
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- 9.14. The Government therefore intends to adopt the approach taken with
other specialist areas of the court system, where resources are centralised
until the workload in a particular area justifies a new centre. This is
the way mercantile and commercial work is managed in the county court.
The Government therefore accepts the Law Commission's recommendation that
the Lord Chancellor should take the power to be able to designate additional
registries outside London. Views are welcomed on how a regional structure
for the Court of Protection would work in practice.
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- Q105. Are the Government's proposals acceptable?
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- Judiciary
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- 9.15. The Law Commission recommended that the Lord Chancellor should
have the power to provide by order for which kind of judge of the Court
of Protection should deal with any particular proceedings and for the
transfer of proceedings between the different kinds of judges.
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- 9.16. The Law Commission also suggested that the jurisdiction of the
Court of Protection should be exercised by judges nominated by the Lord
Chancellor, whether Chancery Division or Family Division High Court Judges,
Circuit Judges or District Judges. The need for a range of levels of judiciary
to deal with different proceedings at different stages of a case's progress
is accepted. It should be noted that the jurisdiction currently operated
is very small with only five judicial officers.
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- 9.17. The Government accepts these recommendations. A key factor for
the Lord Chancellor in considering the nomination of additional judges
will be the need to maintain the high degree of specialisation and expertise
that currently exists in this field.
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- The proceedings
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- 9.18. It is intended that the new statutory decision-making jurisdiction
should be available in respect of persons without capacity who have attained
the age of sixteen. It is recommended by the Law Commission that, as regards
persons who have not attained the age of eighteen, the Lord Chancellor
should have the power to provide for the transfer of proceedings between
a court having jurisdiction under their proposals and a court having jurisdiction
under the Children Act 1989. In respect of sixteen and seventeen year
olds, this would allow applicants to choose the most appropriate jurisdiction.
The court would also have the power to decline to exercise its jurisdiction
if it considered that the case could be dealt with more suitably under
the other jurisdiction. The Lord Chancellor would have the power to make
orders to effect this. The present jurisdiction over the financial affairs
of minors who will remain under a Mental incapacity on attaining the age
of 18 would remain intact.
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- 9.19. The Government accepts this recommendation in principle.
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- Applicants
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- 9.20. In its Consultation Papers, the Law Commission suggested that
some applicants for private law orders should be able to apply as of right,
while others would require leave. The Law Commission noted the difficulty
in setting parameters as to who should have an automatic power to make
applications. They decided, therefore, to restrict those categories of
applicants who should have an automatic right to apply to those who have
existing decision-making powers, or are mentioned in an existing order.
In addition, the Law Commission advocated the giving of an automatic right
to apply to the Public Trustee where he or she has any function that can
be exercised by virtue of an existing order.
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- 9.21. The Government is minded to reject this recommendation as:
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- there is no indication that the current system (where there is no
leave to apply) is being abused;
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- applications for leave may increase delay and cost to vulnerable
people, carers and their families and the taxpayer; and
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- application for leave increases the sense of formality.
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- 9.22. The Law Commission proposed that the new Court of Protection should
have the power to make an order or directions on a matter, pending a decision
on whether the person concerned is without capacity in relation to that
matter. It also recommended that proceedings under the new jurisdiction
should be conducted in accordance with rules made by the Lord Chancellor
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- Q106. Should there be a restriction on the categories of applicants
with an automatic right to apply?
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- Appeals
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- 9.23. The Law Commission recommended that the usual civil appeals system
should apply to the new jurisdiction.
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- 9.24. The Government accepts this recommendation in principle.
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Independent reports
- 9.25. The Law Commission stated in their report that decisions taken
by the court on behalf of a person without capacity should in general
be taken in that person's "best interests", including consideration
of their wishes and feelings. In circumstances where the person concerned
is neither present nor represented, the Law Commission advocated that
an independent report be prepared. The Official Solicitor currently prepares
reports on adult medical treatment, contact and residence issues in cases
under the declaratory jurisdiction of the High Court. As to providing
a mechanism by which such a report could be prepared, the Law Commission
suggested giving the court the power to ask a probation officer to report
to the court or arrange for another person to report on the matters with
which the court is concerned. Finally, the Law Commission recommended
that the role of the Lord Chancellor's
Visitors should be preserved.
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- 9.26. The Government accepts that a reporting function may be desirable,
but seeks views on by whom and how this might be conducted. The Government
do not regard this as an appropriate function for the Family Court Welfare
Service (FCWS). The FCWS is already operating at full capacity, and has
no expertise at dealing with mentally incapable adults: their work is
restricted exclusively to children. The Lord Chancellor's Visitors have
expertise in this area, but there would be considerable resource implications
in extending their remit.
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- Q107. By whom, and how, should reports be prepared?
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Privacy of proceedings
- 9.27. At present PVS cases are heard in open court. The court will normally
take steps to preserve the anonymity of the patient and the patient's
family by making appropriate orders under section 11 of the Contempt of
Court Act 1981. The present Rules of the Court of Protection make provision
for proceedings to be held in private and for enabling the court to determine
who should be admitted, when it sits in private, and excluded, when it
sits in public. The Law Commission suggested that this should also be
the case for the new jurisdiction.
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- 9.28. In addition, the Law Commission suggested that, as under the Children
Act 1989, it should be an offence to publish identifying information about
a person involved in incapacity proceedings and that the provisions of
the existing law, which render publicity a contempt of court in certain
circumstances, should also apply, as they do at present, to proceedings
under part VII of the Mental Health Act 1983.
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- 9.29. Two recent cases have helped clarify the law in this area, and
support the line suggested by the Law Commission. In Re G (2),
which concerned a patient in PVS, the President of the Family Division
held that there was a legitimate public interest in the issues raised
in applications for declarations that the withdrawal of treatment may
be lawful. The public interest was such that the hearing of those applications
should be in open court. The President confirmed that the parties should
be protected from intrusive publicity by means of section 11 of the Contempt
of Court Act 1981.
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- 9.30. In the case of Re C (3), which also
concerned a PVS patient, an order was made prohibiting publication of
any details identifying the patient, his parents, other witnesses and
the hospital. The Official Solicitor applied to the court for guidance
as to whether the order continued in effect following the death of the
patient. The President of the Family Division decided that the order must
continue after death on the basis that those involved in the case must
feel free to do and assert what they regard as in the patient's best interests,
without fear of the cloak of anonymity being lifted as soon as the patient
dies. The President emphasised that the public interest in hearing more
about a particular case could always be tested by an express application
to the court seeking discharge of the order.
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- 9.31. The Government accepts the principle of the Law Commission's proposals
relating to the privacy of proceedings.
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- 1 HL Paper 21-I, para. 248.The Judicial ForumThe
Judicial ForumThe Judicial Forum
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- 2 Re G (Adult Patient: Publicity) [1996]
1 FCR 413.
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- 3 Re C (Adult Patient: restriction of publicity
after death) [1996] Fam Law 610
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