Committee calls for overhaul of rules of Court of Protection

The procedure and practice of the Court of Protection should be overhauled to reflect the significant differences in nature of the categories of work undertaken, a committee examining possible changes to the rules has recommended.

The ad hoc committee was set up in December 2009 by the then President of the Court of Protection, Sir Mark Potter, to look at the Court of Protection Rules 2007, following complaints about the court's practice and procedure and its higher than expected caseload.

The committee has suggested splitting the categories of work into: non-contentious property and affairs applications; contentious property and affairs applications; and health and welfare applications.

It said this change should be implemented by introducing new forms and relevant changes in the rules and practice directions.

Other recommendations included:

• The distinction between serving and notifying people who are or may be interested in making representations to the court should be preserved. “But it should be better explained and some amendments to the present provisions relating to this process should be made”
• The present position relating to the notification and participation of P should be retained, with some minor amendments
• Strictly defined and limited non-contentious property and affairs applications should be dealt with by court officers (for example, applications for a property and affairs deputy by local authorities and in respect of estates that do not include defined types of property). This would free up time for judges and reduce delay, the committee argued. However, there should be an automatic right to refer any such decision to a judge and internal monitoring and review by the judges
• Separate applications for permission should be abandoned and the application for permission should be incorporated into the main application form
• Issues as to whether and when the court should sit in public or permit its proceedings to be made public should be dealt with by the courts through decisions rather than any rule change
• Proposed new forms prepared by committee members should be tested with a range of potential users before they are finalised
• A committee should be established to review and make recommendations relating to the procedure and practice of the Court of Protection.

The committee said that an almost universal theme of the comments made and papers submitted on the operation of the new Court of Protection “was that in general terms (a) its practice and procedure operated reasonably well in health and welfare cases and contentious property and affairs applications, and (b) the bulk of the problems related to non-contentious property and affairs applications”.

It added: “The unanimous view was that the solution to these problems was to recognise that the attempt to create a common practice and procedure for all types of application (and in particular property and affairs applications that are normally non-contentious and contentious applications of all types) had failed and the practice and procedure should be application specific.”

New forms have been prepared by district judges who deal with all types of applications to the court on a day-to-day basis. “Their approach was to focus on the information required by the court for different applications and thereby to exclude unnecessary information from individual application forms and to make them easier to complete,” the committee said.

Responding to the report’s publications, the President of the Court of Protection, Sir Nicholas Wall, said:  "We accept all the recommendations which it makes, and would support their implementation sooner rather than later. Discussions are underway on the constitution of the committee which, in the future, will review and make recommendations relating to the procedure and practice of the Court of Protection.”

Sir Nicholas added that he was pleased to see that the recommendations were directed to speeding up the process and to making non-contentious cases simpler and more user friendly.

He said: “We would like to congratulate everyone associated with the court on the manner in which it has tackled the unexpected volume of work and the initial backlogs. We are confident that with the changes recommended by the committee the Court will move forward swiftly and fulfil efficiently the important role which it has in the overall administration of justice.”

A copy of the committee's report can be downloaded here.